Professional Documents
Culture Documents
(4) Police Force [sec. 6] Straight baseline method– consists of drawing straight
(a) One police force lines connecting appropriate points on the coast without
(b) National in scope departing to any appreciable extent from the general
(c) Civilian in character direction of the coast, in order to delineate the internal
waters from the territorial waters of an archipelago
(5) Consumer Protection [sec. 9]
See R.A. No. 9522–amended R.A. No. 3046, entitled "An
(6) Mass Media [sec.11] Act to Define the Baselines of the Territorial Sea of the
Ownership and management limited to (i) citizens of Philippines;" specified that baselines of Kalayaan Group of
the Philippines or (ii)corporations, cooperatives or Islands and Bajo de Masinloc (Scarborough Shoal) shall be
associations wholly-owned and managed by Filipino determined as “Regime of Islands” under the Republic of
citizens the Philippines, consistent with the UNCLOS.
(7) Advertising Industry [sec. 11] R.A. No. 9522 is not unconstitutional: it is a statutory tool
(a) Can only be engaged in by (i) Filipino citizens or (ii) to demarcate the maritime zone and continental shelf of
corporations or associations at least 70% of which the Philippines under UNCLOS III, and does not alter the
is owned by Filipino citizens national territory. While UNCLOS III does not bind the
(b) Participation of foreign investors is limited to their Philippines to pass a baselines law, Congress may do so.
proportionate share in the capital The law also does not abandon the country’s claim to
(c) Managing officers must be Filipino citizen Sabah, as it does not expressly repeal the entirety of R.A.
No. 5446. [Magallona v. Ermita (2011)]
General Considerations PIL Reviewer [p. 198], II for further discussion on Baselines
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When not against the state Philippines under the provisions of this Act; but a copy
It was held that the suit is not against the State: thereof duly certified by the clerk of the Court in which
(1) When the purpose of the suit is to compel an officer judgment is rendered shall be transmitted by such clerk to
charged with the duty of making payments pursuant to the President of the Philippines, within five days after the
an appropriation made by law in favor of the plaintiff to same becomes final.
make such payment, since the suit is intended to
compel performance of a ministerial duty. [Begoso v. Sec. 8. The President of the Philippines, at the
PVA (1970)] commencement of each regular session of the Legislature,
(2) When from the allegations in the complaint, it is clear shall transmit to that body for appropriate action all
that the respondent is a public officer sued in a private decisions so received by him, and if said body determine
capacity; that payment should be made, it shall appropriate the sum
(3) When the action is not in personam with the which the Government has been sentenced to pay,
government as the named defendant, but an action in including the same in the appropriations for the ensuing
rem that does not name the government in particular. year.
Act No. 3083 Special Agent - One who receives a definite and fixed
An Act Defining the Conditions under which the order or commission, foreign to the exercise of the duties of
Government ofthe Philippines may be Sued. his office if he is a special official. [Merritt v. Gov’t of the
Philippine Islands, (1916)]
Sec. 1. Subject to the provisions of this Act, the Government
of the Philippines hereby consents and submits to be sued Special Law - may come in the form of a private bill
upon any moneyed claim involving liability arising from authorizing a named individual to bring suit on a special
contract, express or implied, which could serve as a basis
claim
of civil action between private parties.
Implied consent
Sec. 2. A person desiring to avail himself of the privilege
(1) When the State enters into a business contract or itself
herein conferred must show that he has presented his commences litigation;
claim to the Commission on Audit and that the latter did
(2)If the gov’t files a complaint, defendant may file a
not decide the same within two months from the date of its counterclaim against it. When the state files complaint,
presentation. suability will result only where the government is
claiming affirmative relief from the defendant.
Sec. 3. Original actions brought pursuant to the authority (3) When it would be inequitable for the State to invoke its
conferred in this Act shall be instituted in the Regional
immunity.
Trial Court of the City of Manila or of the province where
(4) In instances when the State takes private property for
the claimant resides, at the option of the latter, upon which public use or purpose.
court exclusive original jurisdiction is hereby conferred to
hear and determine such actions. Specific Rules
Suits against Government Agencies – Depends on whether
Sec. 4. Actions instituted as aforesaid shall be governed by
the agency is incorporated (i.e. there is a separate charter)
the same rules of procedure, both original and appellate, or unincorporated (i.e. no separate personality).
as if the litigants were private parties.
(1) Incorporated – If the charter provides that the agency
Sec. 5. When the Government of the Philippines is plaintiff can sue, then suit will lie. The provision in the charter
in an action instituted in any court of original jurisdiction,
constitutes express consent. [See SSS v. Court of
the defendant shall have the right to assert therein, by way Appeals (1983)]
of set-off or counterclaim in a similar action between (2) Unincorporated – There must be an inquiry unto the
private parties.
principal functions of government.
(a) If governmental: NO suit without consent. [Bureau of
Sec. 6. Process in actions brought against the Government
Printing v. Bureau of Printing Employees Association
of the Philippines pursuant to the authority granted in this
(1961)].
Act shall be served upon the Solicitor-General whose duty (b) If proprietary: Suit will lie, because when the state
it shall be to appear and make defense, either himself or
engages in principally proprietary functions, it
through delegates. descends to the level of a private individual, and may,
therefore be vulnerable to suit. [Civil Aeronautics
Sec. 7. No execution shall issue upon any judgment
Administration v. Court of Appeals (1988)]. State may
rendered by any court against the Government of the
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only be liable for proprietary acts (jure gestionis) and (3) Renunciation of war [Sec. 2]
not for sovereign acts (jure imperii). (4) Only refers to wars of aggression, not defensive war
(5) Adoption of generally-accepted principles of
SYNTHESIS OF RULES ON SUING GOV’T AGENCIES international law [Sec. 2]
Type Function Rule (6) Adherence to a policy of peace, freedom, and amity
with all nations [Sec. 2]
Incorporated Governmental CAN be sued IF (7) Civilian supremacy [Sec. 3]
or proprietary charter allows (8) Civilian authority (Section 3, Article II) is not defeated in
Unincorporated Governmental CANNOT be sued a joint task force between the PNP and Marines for the
unless consent is enforcement of law and order in Metro Manila as long
given as control is left to the PNP. [IBP v. Zamora (2000)]
Proprietary CAN be sued (9) (6) Role of the armed forces [Sec. 3]
(a) Protector of the people and the State
Suits against Public Officers – The doctrine of state (b) Secure the sovereignty of the State and the
immunity also applies to complaints filed against officials integrity of the national territory
of the State for acts performed by them in the discharge of (7) Compulsory military and civil service [Sec. 4]
their duties within the scope of their authority. Under conditions provided by law
(8) Maintenance of peace and order, promotion of general
Exception:The doctrine of immunity from suit will not apply welfare [Sec. 5]
and may not be invoked where the public official is being (9) Recognition of a hierarchy of rights [BERNAS]
sued in his (1) private and personal capacity as an ordinary (a) Life
citizen, for (2)acts without authorityor in excess of the (b) Liberty
powers vested in him. (Lansang vs CA [2000]) (c) Property
(10) Separation of Church and State [Sec. 6]
Note:Acts done without authority are not acts of the State
Policies [sec. 7-28]:Guidelines for the orientation of the
Exceptions to Prior Consent Rule state [BERNAS]
Caselaw provides that the following are well-recognized
exceptions when the state/public officer MAY be sued (1) Independent foreign policy [Sec. 7]
without prior consent: (2) Freedom from nuclear weapons [Sec. 8]
(3) Promote a just and dynamic social order [Sec.9]
(1) To compel him to do an act required by law; (4) Promote social justice in all phases of national
(2) To restrain him from enforcing an act claimed to be development [Sec. 10]
unconstitutional; (5) Personal dignity and human rights [Sec. 11]
(3) To compel the payment of damages from an already (6) Family as basic social institution [Sec. 12]
appropriated assurance fund or to refund tax over- (7) Vital role of youth in nation-building [Sec. 13]
payments from a fund already available for the (8) Role of women in nation-building [Sec. 14]
purpose; (9) Fundamental equality before the law of women and
(4) To secure a judgment that the officer impleaded may men [Sec. 14]
satisfy by himself without the State having to do a (10) Right to health [Sec. 15]
positive act to assist him; (11) Right to a balanced and healthful ecology [Sec.16,
(5) Where the government itself has violated its own laws. Oposa v. Factoran]
[Sanders v. Veridiano II, (1988)] (12) Priority to education, science and technology, arts,
culture, and sports [Sec. 17]
Scope of Consent (Suability v. Liability) (13) Labor as a primary social economic force [Sec.18]
Consent to be sued is not concession of liability:Suability (14) Self-reliant and independent national economy
depends on the consent of the state to be sued, and [Sec.19]
liability on the applicable law and the established facts. (15) Role of private sector [Sec. 20]
The circumstance that a state is suable does not (16) Comprehensive rural development and agrarian
necessarily mean that it is liable, but it can never be held reform [Sec. 21]
liable if it does not first consent to be sued. When the state (17) Recognition and promotion of rights of indigenous
does waive its sovereign immunity, it is only giving the cultural communities [Sec. 22]
plaintiff the chance to prove that it is liable. [United States of (18) Community-based, sectoral organizations [Sec.23]
America v. Guinto (1990)] (19) Role of communication and information in nation-
building [Sec.24]
PRINCIPLES AND POLICIES (20) Autonomy of local governments [Sec. 25]
ART. II – DECLARATION OF PRINCIPLES AND STATE (21) Equal access for public service and prohibition of
POLICIES political dynasties [Sec. 26]
Principles [sec.1-6]: Binding rules which must be observed (22) Honesty and integrity in public service [Sec. 27]
in the conduct of government [BERNAS] (23) Policy of full public disclosure [Sec. 28]
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three powers are to be kept separate and distinct that the requires the President or an agency to submit the
Constitution intended them to be absolutely unrestrained proposed implementing rules and regulations of a law to
and independent of each other. The Constitution has Congress for approval, is unconstitutional. It encroaches
provided for an elaborate system of checks and balances on:
to secure coordination in the workings of the various
departments of the government [Angara v. Electoral (1) The executive - it allows Congress to take a direct role
Commission (1936)]. in the enforcement of its laws;
(2) The judiciary - administrative issuances enjoy a
The government established by the Constitution follows presumption of validity, and only the courts may decide
fundamentally the theory of separation of power into the whether or not they conform to statutes or the
legislative, the executive and the judicial [Angara v. Constitution. [Abakada Guro Partylist v. Purisima
Electoral Commission (1936)]. (2008)]
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It indicates the circumstances under which the sworn to uphold the fundamental law of the Republic
legislative command is to be effected.[Edu v. Ericta under her government. (In re Bermudez (1986) citing
(1970)] Lawyers League for a Better Philippines v. Aquino (1986)]
BOTH tests must be complied with. [Pelaez, supra] In the cited cases [Lawyers League for a Better Philippines
and/or Oliver A. Lozano v. President Corazon C. Aquino, et
N.B.The legislature may leave to another body the al], we held that the government of former President
ascertainment of facts necessary to bring the law into Aquino was the result of a successful revolution by the
actual operation. [See Abakada v. Ermita (2005)] sovereign people, albeit a peaceful one. No less than the
Freedom Constitution declared that the Aquino government
FORMS OF GOVERNMENT was installed through a direct exercise of the power of the
DEFINITION Filipino people "in defiance of the provisions of the 1973
“Government of the Philippines” is defined as: Constitution, as amended."
The corporate governmental entity through which the
functions of government are exercised throughout the It is familiar learning that the legitimacy of a government
Philippines, including sired by a successful revolution by people power is beyond
(1) the various arms through which political authority is judicial scrutiny for that government automatically orbits
made effective in the Philippines, whether pertaining out of the constitutional loop. In checkered contrast, the
to: government of respondent Arroyo is not revolutionary in
(a) the autonomous regions, character. The oath that she took at the EDSA Shrine is the
(b) the provincial, city, municipal, or barangey oath under the 1987 Constitution. In her oath, she
subdivisions, or categorically swore to preserve and defend the 1987
(c) other forms of local government. [Sec. 2(1), Constitution. Indeed, she has stressed that she is
Administrative Code] discharging the powers of the presidency under the
authority of the 1987 Constitution.
“Government” is that institution or aggregate of
institutions by which an independent society makes and In fine, the legal distinction between EDSA People Power I
EDSA People Power II is clear. EDSA I involves the exercise
carries out those rules of action which are necessary to
enable men to live in a social state or which are imposed of the people power of revolution which overthrew the
upon the people forming that society by those who possess whole government. EDSA II is an exercise of people power
of freedom of speech and freedom of assembly to petition
the power or authority of prescribing them. [US v. Dorr
(1903)] the government for redress of grievances which only
affected the office of the President. EDSA I is extra-
constitutional and the legitimacy of the new government
DE JURE AND DE FACTO GOVERNMENTS
De jure government that resulted from it cannot be the subject of judicial
review, but EDSA II is intra-constitutional and the
(1) Has rightful title but
(2) no power or control, either because this has been resignation of the sitting President that it caused and the
withdrawn from it, or because it has not yet actually succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question;
entered into the exercise thereof. [In re Letter of
Associate Justice Puno, (1992)] EDSA II involves legal questions. xxx
Even if the petitioner can prove that he did not resign, still,
De facto government
Government of fact, that is, it actually exercises power or he cannot successfully claim that he is a President on leave
on the ground that he is merely unable to govern
control without legal title. [Co Kim Cham v. Valdes, (1945)]
temporarily. That claim has been laid to rest by Congress
(1) The gov’t that gets possession and control of, or usurps, and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government
by force or by the voice of the majority, the rightful
legal gov’t and maintains itself against the will of the cannot be reviewed by this Court. [Estrada v. Desierto /
Estrada v. Arroyo (2001)]
latter.
(2) That established as an independent gov’t by the
inhabitants of a country who rise in insurrection against
the parent state.
(3) That which is established and maintained by military
forces who invade and occupy a territory of the enemy
Legislative Department
in the course of war, and w/c is denominated as a gov’t
of paramount force, like the Second Republic WHO MAY EXERCISE LEGISLATIVE POWER
Legislative power is the authority to make laws and to alter
established by the Japanese belligerent.
and repeal them. It is vested in:
The legitimacy of the Aquino government is not a (1) The Congress of the Philippines, which consists of a
Senate and a House of Representatives [CONST., art. VI,
justiciable matter. It belongs to the realm of politics where
only the people of the Philippines are the judge. And the sec. 1]
people have made the judgment; they have accepted the (2) The people to themselves, by the system of initiative
and referendum [Id.]
government of President Corazon C. Aquino which is in
effective control of the entire country so that it is not
Legislative power may also be exercised by:
merely a de facto government but in fact and law a de jure
(1) Regional/local legislative assemblies – N.B. A regional
government. Moreover the community of nations has
recognized the legitimacy of the present government. All assembly exists for the ARMM
(2) President, under martial rule or in a revolutionary
the eleven members of this Court as reorganized have
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government. [See CONST., art. VI, sec. 23(2)]. Congress (4) A registered voter
may delegate legislative powers to the president in (5) Resident of the Philippines for at least 2 years
times of war or in other national emergency. [BERNAS] immediately preceding the day of the election
th
Congress - Grant of legislative power to Congress is Term of Office: 6 years, commencing at noon on the 30
plenary.Congress may legislate on any subject matter day of June next following their election
provided that constitutional limitations are observed.
Term Limits: only up to 2 consecutive terms. However, they
Initiative and Referendum may serve for more than 2 terms provided that the terms
The power of initiative and referendum is the power of the are not consecutive.
people directly to “propose and enact laws or approve or
reject any act or law or part thereof passed by the House of Representatives
Congress or local legislative body.” (art. VI, sec. 32) [Art. VI, Sec. 5-8]
Composition: Not more than 250 members, unless
The operationalization of initiative and referendum has otherwise provided by law, consisting of:
been left by the Constitution to Congress (art. VI, sec. 32;
BERNAS); District Representatives - Elected from legislative districts
apportioned among the provinces, cities, and Metro Manila
The provision is not self-executory [Santiago v. COMELEC area
(1997)];
Rules on Apportionment of Legislative Districts:
RA 6735 – “An Act Providing for a System of Initiative and (a) Apportionment of legislative districts must be by law
Referendum and Appropriating Funds Therefore” – valid which could be a:
for laws, ordinances, and resolutions, but NOT (i) General Apportionment Law; or
amendments to the Constitution [Santiago, supra] (ii) Special Law (i.e. creation of new provinces)
Note: The power to apportion legislative districts is
HOUSES OF CONGRESS textually committed to Congress by the Constitution.
COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE Thus, it cannot be validly delegated to the ARMM
Senate House of Representatives Regional Assembly [Sema v. COMELEC (2008)].Under
(art. VI, sec. 2-4) (art. VI, sec. 5-8) the Constitution and the Local Gov. Code,
Composition apportionment and reapportionment do not require a
plebiscite. [Bagabuyo v. COMELEC (2008)]
24 senators elected at Not more than 250 (b) Proportional representation based on number of
large members, unless otherwise inhabitants
provided by law, consisting (i) Each citywith a population of at least 250,000shall have
of: at least 1 representative.
(1) District Repre-sentatives (ii) Each province, irrespective of the number of
(2) Party-List Representa- inhabitants, shall have at least 1 representative.
tives (c) Each legislative district shall comprise, as far as
Qualifications practicable, contiguous, compact, and adjacent
territory. (N.B. Anti-gerrymandering provision)
(1) Natural-born citizen (1) Natural-born citizens
(d) Re-apportionment by Congress within 3 years after the
(2) At least 35 years old on (2) At least 25 years old on
return of each census.
the day of the election the day of the election
(3) Able to read and write (3) Able to read and write
Party-List Representatives –shall constitute 20% of the
(4) A registered voter (4) Registered voter in the
total number of representatives, elected through a party-
(5) Resident of the district he seeks to
list system of registered national, regional, and sectoral
Philippines for at least 2 represent
parties or organizations
years immediately (5) A resident of the said
Sectoral Representatives - For 3 consecutive terms from 2
preceding the day of the district for at least 1 year
February 1987, ½ of the partylist seats shall be allotted to
election immediately preceding the
sectoral representativesto be chosen by appointment or
day of the election
election, as may be provided by law. Until a law is passed,
they are appointed by the President from a list of nominees
Term of Office by the respective sectors. [Art. XVIII, Sec. 7]
6 years 3 years
Qualifications of Representatives:
Term Limits (1) Natural-born citizens
(2) At least 25 years old on the day of the election
2 consecutive terms 3 consecutive terms (3) Able to read and write
(4) Registered voter in the district he seeks to represent
Senate (5) A resident of the said district for at least 1 year
[Art. VI, Sec. 2-4] immediately preceding the day of the election.
Composition: 24 senators elected at large th
Term of Office: 3 years, commencing at noon on the 30
Qualifications: day of June next following their election.
(1) Natural-born citizen
(2) At least 35 years old on the day of the election
(3) Able to read and write
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Tenure may be shorter than the term or it may not exist at Disqualified parties:
all. These situations will not change the duration of the (1) Religious Sects
term of office. [Dimaporo vs Mitra (1991)] (2) Foreign Organizations
(3) Those Advocating Violence or Unlawful Means
Term Limits: No member of the House of Representatives (4) It is receiving support from any foreign government,
shall serve for more than 3 consecutive terms. foreign political party, foundation, organization,
whether directly or through any of its officers or
Party-list System members or indirectly through third parties for partisan
BOC’s Note: Atong Paglaum v. COMELEC, G.R. No. 203766, election purposes.
April 3, 2013 is beyond the 2013 Bar Coverage cut-off date, (5) It violates or fails to comply with laws, rules or
but the decision reversed and significantly modified regulations relating to elections;
previous Court rulings on the party-list system. (6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
Atong Paglaum Guidelines (8) It fails to participate in the last two (2) preceding
(1) Three different parties or organizations may participate elections or fails to obtain at least 2 per centum of the
in the party-list system: (a) national; (b) regional; or (c) votes cast under the party-list system in the two (2)
sectoral; preceding elections for the constituency in which it has
registered.
(2) National and regional parties or orgs do not need to (a)
organize along sectoral lines or (b) represent any Qualified Sectors:
“marginalized or underrepresented” sector; (1) Labor
(2) Peasant
(3) Political parties may participate in the party-list system (3) Fisherfolk
provided: (a) they register under the party-list system; (4) Urban Poor
(b) they do not field candidates in legislative district (5) Indigenous Cultural Com-munities
elections. (6) Elderly
(i) A party that participates in the legislative district (7) Handicapped
elections may still participate in the party-list (8) Women
through a sectoral wing. (9) Youth
(ii) The sectoral wing can be part of the political party’s (10)Veterans
coalition, but the former must be registered (11) Overseas Workers
independently in the party-list system. (12) Professionals
(4) Sectoral parties or orgs may either be (a) “marginalized Query: Are political parties allowed to participate in the
or underrepresented” (e.g. labor, peasant, fisherfolk); party-list system?
or (b) “lacking in well-defined political constituencies”
(e.g. professionals, women, elderly, youth) Political parties are allowed by the constitution to
participate in the party-list system provided that they
(5) The nominees of sectoral parties or orgs, of either type, represent the interests of the marginalized and
must (a) belong to their respective sectors, or (b) have a underrepresented. The following conditions must be
track record of advocacy for their respective sectors. complied:
(1) Must represent marginalized and under-represented
Majority of the members of a sectoral party, of either sectors;
type, must belong to the sector they represent. (2) Major political parties must comply with this statutory
policy;
(6) National, regional, or sectoral parties or orgs shall not (3) Must be subject to the express constitutional
be disqualified if some of their nominees are prohibition against religious sects;
disqualified, provided they have at least one (1) (4) The party must not be disqualified under RA 7941;
nominee who remains qualified. (5) The party must not be an adjunct or entity or project
funded by the government;
For computation of allocation of party-list seats, see Election (6) The party and its nominees must comply with the
Law portion of the reviewer or BANAT v. COMELEC, G.R. requirements of the law;
No. 179271, April 21, 2009. (7) The nominee must also represent a marginalized or
under-represented sector;
N.B. The following have been either modified or repealed by (8) The nominee must be able to contribute to the
Atong Paglaum, but were good law as of the cut-off date for formulation and enactment of appropriate legislation
the 2013 Bar. that will benefit the nation. [Ang Bagong Bayani-OFW
Labor Party v. COMELEC (2000)].
See R.A. 7941, An Act Providing For The Election Of Party-
List Representatives Through The Party-List System, And Four inviolable constitutional and statutory parameters in the
Appropriating Funds Therefor party-list system:
(1) 20% Allocation – the combined number of all party-list
Parties, organizations, and coalitions must obtain at least congressmen shall not exceed 20% of the total
2% of all votes cast to obtain a party-list seat. membership of the House of Representatives.
(2) 2% threshold – only those parties garnering a
Those garnering more than 2% are entitled to additional minimum of 2% of the total votes cast for the party-list
seats in proportion to their total number of votes, but may system are qualified to have a seat in the House.
not have more than 3 seats.
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(3) Three seat limit – each qualified party, regardless of The provision refers to an Incompatible Office. Forfeiture of
the number of votes it actually obtained is entitled to a the seat in Congress shall be automatic upon the
maximum of three seats (1 qualifying and 2 additional member’s assumption of such office deemed
seats). incompatible. [Adaza v. Pacana (1985)].
(4) Proportional representation – the additional seats (2) May not be appointed to any office created or the
which a qualified party is entitled to shall be computed emoluments thereof were increased during the term
“in proportion to their total number of votes”. [Veterans for which he was elected. [Art. VI, Sec. 13]
Federation v. COMELEC (2000)]. The provision refers to a Forbidden Office. He cannot validly
take the office even if he is willing to give up his seat.
LEGISLATIVE PRIVILEGES, INHIBITIONS AND (3) Cannot personally appear as counsel before any court,
DISQUALIFICATIONS electoral tribunal, quasi-judicial and administrative
PRIVILEGES bodies during his term of office. [Art. VI, Sec. 14]
Salaries (4) Shall not be financially interested, directly or indirectly, in
The salaries of Senators and Representatives shall be any contract with, or franchise or special privilege
determined by law. granted by the government during his term of office.
[Art. VI, Sec. 14]
No increase in said compensation shall take effect until (5) Shall not intervene in any matter before any office of the
after the expiration of the full term of all the Members of government when it is for his pecuniary benefit or
the Senate and the House of Representatives approving where he may be called upon to act on account of his
such increase. [Art. VI, Sec. 10]. office. [Art. VI, Sec. 14]
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In computing a quorum, members who are outside the (2) Other Special Cases
country, thus outside of each House’s coercive jurisdiction,
are not included. Vote Required (out of all
Action Basis
members)
“Majority” refers to the number of members within the Determine 2/3 of both Houses, voting Art. VII,
“jurisdiction” of the Congress (those it can order arrested for President’s separately sec. 11, par.
the purpose of questioning). In this case, one Senator was disability 5
out of the Philippines which is not within the “jurisdiction” Declaring a 2/3 (of both Houses, in joint Art. VI,
of the Senate, so that the working majority was 23 State of War session), each House voting sec. 23(1)
Senators. separately
There is a difference between a majority of "all members of
the House" and a majority of "the House", the latter DISCIPLINE OF MEMBERS
requiring less number than the first. Therefore, an absolute Each house may punish its members for disorderly
majority (12) of all members of the Senate less one (23) behavior, and with the concurrence of 2/3 of ALL its
constitutes constitutional majority of the Senate for the members:
purpose of the quorum. [Avelino v. Cuenco (1949)] (1) Suspension (shall not exceed 60 days)
(2) Expulsion
VOTING MAJORITIES
Doctrine of Shifting Majority– For each House of Congress Other disciplinary measures:
to pass a bill, only the votes of the majority of those (1) deletion of unparliamentary remarks from the record
present in the session, there being a quorum, is required. (2) fine
(3) imprisonment
Exceptions to Doctrine of Shifting Majority: (4) censure
(1) Votes where requirement is based on “ALL THE
MEMBERS OF CONGRESS” – requirement is based on The suspension contemplated in the Constitution is
the entire composition of a House or Congress (in its different from the suspension prescribed in the Anti-Graft
entirety), regardless of the number of Members present and Corrupt Practices Act (RA 3019). The former is punitive
or absent in nature while the latter is preventive. [Defensor-Santiago
v. Sandiganbayan (1995)].
Vote
Required Houses ELECTORAL TRIBUNALS AND THE COMMISSION ON
Action Basis
(out of all voting APPOINTMENTS
members) ELECTORAL TRIBUNALS
Override 2/3 Separately Art. VI, sec. [Art. VI, Sec. 17]
presidential 27(1) (1) Senate Electoral Tribunal (SET)
veto (2) House Electoral Tribunal (HRET)
Grant of tax Majority (Silent) Art. VI, sec.
exemptions 27(4) N.B. There is a Presidential Electoral Tribunal (PET), but it
Elect Majority Separately Art. VII, is governed by different provisions.
President in sec. 4, par.
case of tie 5 Composition
Confirm Majority Separately Art. VII, (1) 3 Supreme Court justices, designated by CJ
appointment sec. 9 Senior Justice in the Electoral Tribunal shall be its
of VP Chairman
Revoke or Majority Jointly Art. VII, (2) 6 members of the Senate or House, as the case may be,
extend (a) sec. 18 chosen on the basis of proportional representation
Martial Law from parties;
or (b) (3) The ET shall be constituted within 30 days after the
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Senate and the House shall have been organized with the tripartite scheme of government, it is to all intents and
the election of the President and the Speaker. purposes, when acting within the limits of its authority, an
(4) Members chosen enjoy security of tenure and cannot be independent organ; while composed of a majority of
removed by mere change of party affiliation. [Bondoc v. members of the legislature it is a body separate from and
Pineda (1991)]. independent of the legislature. [Bondoc v. Pineda (1991)]
When does it acquire jurisdiction: ET has jurisdiction only COMMISSION ON APPOINTMENTS (CA)
when there is an election contest, and only after the (Art. VI, Sec. 18)
proclamation of a candidate. [See Lazatin v. HRET (1988)].
Composition
Election Contest- one where a defeated candidate (1) Senate President as ex-officio chairman (shall not vote
challenges the qualification and claims for himself the seat except in case of a tie)
of a proclaimed winner. (2) 12 Senators
(3) 12 Members of the HOR
In the absence of election contest, and before
proclamation, jurisdiction remains with COMELEC. [See The CA shall be constituted within 30 days after the
Lazatin, supra] Senate and the House of Representative shall have been
organized with the election of the President and the
Supreme Court has jurisdiction over the Electoral Speaker.
Commission for the purpose of determining the character,
scope and extent of the constitutional grant to the The CA shall act on all appointments within 30 session
Electoral Commission as "the sole judge of all contests days from their submission to Congress.
relating to the election, returns and qualifications of the
members of the National Assembly." [Angara v. Electoral The CA shall rule by a majority vote of all its members.
Commission (1936)]
It is NOT mandatory to elect 12 Senators to the
Note: Constitution mandates that the HRET “shall be the Commission; what the Constitution requires that there
sole judge of all contests relating to the election, returns must be at least a majority of the entire membership.
and qualifications” of its members. By employing the word [Guingona v. Gonzales (1993)].
“sole,” the Constitution is emphatic that the jurisdiction of
the HRET in the adjudication of election contests involving The power to approve or disapprove appointments is
its members is exclusive and exhaustive. Its exercise of conferred on the CA as a body and not on the individual
power is intended to be its own — full, complete and members. [Pacete v. Secretary (1971)]
unimpaired. [Duenas Jr. v. HRET (2009)]
Rule on Proportional Representation – The 12 Senators and
Independence of the Electoral Tribunals 12 Representatives are elected on the basis of proportional
Since the ET’s are independent constitutional bodies, representation from the political parties and party-list
independent even of the respective House, neither organizations.
Congress nor the Courts may interfere with procedural
matters relating to the functions of the ET’s. [Co vs HRET, HOR has authority to change its representation in the
(1991)] Commission on Appointments to reflect at any time the
changes that may transpire in the political alignments of
The HRET was created to function as a nonpartisan court its membership. It is understood that such changes in
although two-thirds of its members are politicians. membership must be permanent and do not include the
temporary alliances or factional divisions not involving
To be able to exercise exclusive jurisdiction, the House severance of political loyalties or formal disaffiliation and
Electoral Tribunal must be independent. Its jurisdiction to permanent shifts of allegiance from one political party to
hear and decide congressional election contests is not to another. [Daza v. Singson (1989)]
be shared by it with the Legislature nor with the courts.
"The Electoral Commission is a body separate from and The provision of Section 18 on proportional representation is
independent of the legislature and though not a power in mandatory in character and does not leave any discretion
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to the majority party in the Senate to disobey or disregard NON-LEGISLATIVE POWERS (SCOPE)
the rule on proportional representation. (1) power to canvass the presidential elections;
(2) declare the existence of war;
By requiring a proportional representation in the (3) give concurrence to treaties and amnesties;
Commission on Appointments, sec. 18 in effect works as a (4) propose constitutional amendments;
check on the majority party in the Senate and helps to (5) impeachment;
maintain the balance of power. No party can claim more
than what it is entitled to under such rule. [Guingona v. SPECIFIC POWERS
Gonzales (1993)] (1) Constituent power
(2) Legislative Inquiries
Meetings (3) Appropriation
(1) CA shall meet only while Congress is in session. (4) Taxation
(2) Meetings are held either (a) at the call of the Chairman (5) Concurrence in treaties and international agreements
or (b) by a majority of all its members. (6) War powers and delegations powers
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committee regarding executive operations in a given its members 3 days before the passage of the bill. (art.
administrative area. Allows Congress to scrutinize the VI, sec. 26[2])
exercise of delegated law-making authority, and
permits Congress to retain part of that delegated Exception: President certifies to the necessity of its
authority. Through this, Congress exercises supervision immediate enactment to meet a public calamity or
over the executive agencies. emergency
N.B. Legislative supervision is NOT allowed under the Presidential certification dispenses with the requirement (1)
Constitution. [Abakada Guro Partylist v. Purisima (2008)] printing requirement and (2) readings on separate days
See also discussion in Separation of Powers, above. requirement[Tolentino v. Secretary of Finance (1995)]
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appropriations. However, the following may, BY LAW, (a) Classificationfor the purpose of taxation is not
be authorized to AUGMENT any item in the general prohibited per se, BUT it must comply with the Test of
appropriations law for their respective offices FROM Valid Classification [see Ormoc Sugar Central v. Ormoc
SAVINGS in other items of their respective City (1968), on equal protection and local taxes]
appropriations:
(a) President Test of Valid Classification
(b) Senate President (1) Based on substantial distinctions which make real
(c) Speaker of the HOR differences
(d) Chief Justice of the Supreme Court (2) Germane to the purpose of law
(e) Chairs of Constitutional Commissions (3) Applies to present and future conditions substantially
identical to those of the present
Guidelines for disbursement of discretionary funds (4) Applies equally to those who belong to the same class
appropriated for particular officials:
(1) For public purposes Progressive
(2) To be supported by appropriate vouchers The rate increases as the tax base increases
(3) Subject to such guidelines as may be prescribed by law
Tax burden is based on the taxpayers’ capacity to pay
If Congress fails to pass the general appropriations bill by the
end of any fiscal year: Suited to the social conditions of the people
(1) The general appropriations bill for the previous year is
deemed reenacted Reflects aim of the Convention that legislature following
(2) It shall remain in force and effect until the general social justice command should use taxation as an
appropriations bill is passed by Congress. instrument for more equitable distribution of wealth
For Special Appropriations Bills Progressive taxation is a directive to Congress and is not a
(1) Shall specify the purpose for which it is intended judicially enforceable right [Tolentino v. Secretary of Finance,
(2) Shall be supported by funds supra]
(i) actually available as certified by the National Treasurer;
or Constitutional Tax Exemptions:
(ii) to be raised by corresponding revenue proposal therein (1) Religious, charitable, educational institutions and their
properties
Limitation on Use of Public Funds [Art. VI, Sec. 29] (2) All revenues and assets of non-stock, non-profit
(1) No money shall be paid out of the National Treasury educational institutions are exempt from taxes and
except in pursuance of an appropriation made by law. duties PROVIDED that such revenues and assets are
(2) However, this rule does not prohibit continuing actually, directly and exclusively used for educational
appropriations, e.g. for debt servicing, for the reason purposes [Art. XIV, Sec. 4(3)]
that this rule does not require yearly or annual (3) Grants, endowments, donations or contributions used
appropriation. actually, directly and exclusively for educational
purposes shall be exempt from tax, subject to
Four phases of Government’s budgeting process: conditions prescribed by law [Art. XIV, sec. 4(4)]
(1) Budget preparation
(2) Legislative authorization Special Funds
(3) Budget execution (1) Money collected on a tax levied for a special purpose
(4) Budget accountability shall be treated as a special fund and paid out for such
purpose only.
Taxation [Art. VI, Sec. 28] (2) Once the special purpose is fulfilled or abandoned, any
Nature of provision balance shall be transferred to the general funds of the
Sec. 28 is a listing of the limits on the inherent and Government
otherwise unlimited power
Presidential Veto and Congressional Override
Purposes of taxation Submission to the President; President’s Veto power [Sec 27,
(1) Pay debts and provide for the common defense and Art VI]
general warfare; Every bill, in order to become a law, must be presented to
(2) Raise revenue; and signed by the President.
(3) Instrument of national and social policy;
(4) Instrument for extermination of undesirable acts and If the President does not approve of the bill, he shall veto
enterprises; the same and return it with his objections to the house
(5) Tool for regulation; from which it originated. The House shall enter the
(6) Imposition of tariffs designed to encourage and protect objections in the journal and proceed to reconsider it.
locally produced goods against competition for
imports. The President must communicate his decision to veto
within 30 days from the date of receipt thereof. Otherwise,
Limitations the bill shall become a law as if he signed it.(“Lapsed into
(1)Public purpose- Power to tax should be exercised only law”)
for a public purpose.
(2) Uniform and equitable. To override the veto, at least 2/3 of ALL the members of
(a) Operates with the same force and effect in every place eachhouse must agree to pass the bill. In such case, the
where the subject of it is found veto is overridden and becomes a law without need of
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Exceptions:
(1) Veto of particular items in an appropriation, revenue, or
tariff bill; Above resolution AFFIRMED (if favorable) or
(2) Doctrine of Inappropriate Provisions (See below) OVERRIDDEN (if unfavorable) by vote of 1/3 of all the
members of the HOR
Item veto
The President may veto particular items in an
appropriation, revenue or tariff bill.The whole item (and not Verified complaint or resolution [Sec. 3(4)]
just a portion) must be vetoed. [Bengzon v. Drilon (1992)] FILED by 1/3 of all the members of the HOR; trial by
Senate forthwith proceeds
Item - in a bill, refers to the particulars, the details, the
distinct and severable parts; an indivisible sum of money Notes on Initiation: [See Gutierrez v. HOR Committee on
dedicated to a stated purpose; in itself, a specific Justice (February 15, 2011 and March 8, 2011)]
appropriation of money, not some general provision of law,
which happens to be in an appropriation bill. Basic limitation: No impachment proceeding shallbe
initiated against the same official more than once within a
The president cannot veto unavoidable obligations, i.e. period of one year (CONST., art. XI, sec. 2[5])
already vested by another law (e.g. payment of pensions,
see Bengzon, supra). Initiation means filing coupled with referral to the
Committee on Justice.
This veto will not affect items to which he does not object.
Court cannot make a determination of what constitutes an
Veto of a Rider impeachable offense; it is a purely political question [citing
A rider is a provision which does not relate to a particular Francisco v. House of Representatives (2003)]
appropriation stated in the bill.
On motion to inhibit: Impeachment is a political exercise.
Since it is an invalid provision under art. VI, sec. 25(2), the The Court cannot apply (to Congressmen) the stringent
President may veto it as an item. stands it asks of justices and judges when it comes to
inhibition from hearing cases.
The executive's veto power does not carry with it the power
to strike out conditions or restrictions. If the veto is Constitutional requirement that HOR shall promulgate its
unconstitutional, it follows that the same produced no rules on impeachment (see CONST., Art. XI, Sec. 3[8]) is
effectwhatsoever, and the restriction imposed by the different from the publication requirement in Tañada v.
appropriation bill, therefore, remains. [Bolinao Electronics Tuvera. (In the Gutierrez case, promulgation was found to
Corp v. Valencia (1964)] be sufficient.)
Doctrine of Inappropriate Provisions The SENATE shall have the sole power to try and decide all
A provision that is constitutionally inappropriate for an cases of impeachment. (sec. 3[6])
appropriation bill may be singled out for veto even if it is
not an appropriation or revenue item. [Gonzales vs By virtue of the expanded judicial review (art. VIII, sec. 1[2]),
Macaraig, (1990)] the Court’s power of judicial review extends over justiciable
issues arising in impeachment proceedngs. [Francisco v.
NON-LEGISLATIVE HOR (2003)]
Informing Function
Via legislative inquiries: Conduct of legislative inquiries is BUT the question of WON Senate Impeachment Rules were
intended to benefit not only Congress but the citizenry, followed is a political question. [Corona v. Senate (2012)]
who are equally concerned with the proceedings. [Sabio v.
Gordon (2006)] Other non-legislative powers
(1) power to canvass the presidential elections;
Impeachment [CONST., Art. XI] (2) declare the existence of war;
The HOR shall have the exclusive power to initiateall cases (3) give concurrence to treaties and amnesties;
of impeachment. [sec. 3(1)] (4) propose constitutional amendments;
(5) implied powers such as the power to punish contempt
Two modes of initiation in legislative investigations.
Regular Procedure: [Sec. 3(2)(3)]
FILING by (a) any member of the HOR or (b) any citizen
upon endorsement by a member of the HOR; followed by
REFERRAL to the proper HOR committee
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privilege - invoked by U.S. Presidents, beginning with unavailability of the information elsewhere by an
Washington, on the ground that the information is of such appropriate investigating authority. [Neri v. Senate, supra.
nature that its disclosure would subvert crucial military or See Akbayan v. Aquino (2008) for application of this
diplomatic objectives. (2) Informer’s privilege - the privilege principle.]
of the Government not to disclose the identity of persons
who furnish information of violations of law to officers VICE-PRESIDENT
charged with the enforcement of that law. (3) Generic Qualifications, election and term of office and removal are
privilege for internal deliberations - has been said to attach same as the President, except that no Vice-President shall
to intragovernmental documents reflecting advisory serve for more than 2 successive terms.
opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and The Vice-President may be appointed as member of the
policies are formulated. [Senate v. Ermita (2004)] Cabinet; such requires no confirmation by the Commission
of Appointments.
Scope: This jurisdiction recognizes the common law
holding that there is a "governmental privilege against PROHIBITIONS
public disclosure with respect to state secrets regarding Prohibited Acts
military, diplomatic and other national security matters." (1) Shall not receive any other emoluments from the
Closed-door Cabinet meetings are also a recognized government or any other source.
limitation on the right to information. (2) Unless otherwise provided in the constitution, shall not
hold any other office or employment.
Note: Executive privilege is properly invoked in relation to (a) The prohibition does not include posts occupied by
specific categories of information and not to categories of executive officials without additional compensation in
persons—it attaches to the information and not the person. an ex-officio capacity, as provided by law oras required
Only the President (and the Executive Secretary, by order by the primary functions of the said official’s office.
of the President) can invoke the privilege. (Senate v. Ermita, (b) The ex-officio position being actually (i.e. merely
supra). additional duty) and in legal contemplation part of the
principal office, it follows that the official concerned
Synthesis of Jurisprudential doctrines has no right to receive additional compensation for his
The following are the equisites for invoking presidential services in said position. [National Amnesty
privilege:—(1) Formal claim of privilege: For the privilege to Commission v. COA (2004]
apply there must be a formal claim of the privilege. Only (3) Shall not directly or indirectly practice any other
the President or the Executive Secretary(by authority of the profession, participate in any business, or be financially
President) can invoke the privilege; and (2) Specificity interested in any contract with; or in any franchise or
requirement:A formal and proper claim of executive special privilege granted by the government or any
privilege requires a specific designation and description of subdivision, agency, or instrumentality thereof,
the documents within its scope as well as precise and including government-owned or controlled
certain reasons for preserving confidentiality. Without this corporations or their subsidiaries.
specificity, it is impossible for a court to analyze the claim (4) Strictly avoid conflict of interest in the conduct of their
short of disclosure of the very thing sought to be protected. office
[Senate v. Ermita, supra] (5) May not appoint spouse or relatives by consanguinity or
affinity within the fourth civil degree as members of
Once properly invoked, a presumption arises that it is Constitutional Commissions, or the Office of the
privileged. If what is involved is the presumptive privilege of Ombudsman, or as Secretaries, Under Secretaries,
presidential communications when invoked by the Chairmen, or heads of bureaus or offices, including
President on a matter clearly within the domain of the government-owned or controlled corporation and their
Executive, the said presumption dictates that the same be subsidiaries.
recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for Who are prohibited?
disclosure by the one assailing such presumption. (Neri v. (1) President
Senate, G.R. No. 180843, March 25, 2008) (2) Vice-President,
(3) themembers of the Cabinet, and their deputies or
The following are the requisites for validity of claimneeded to assistants
be complied with in order for the claim to executive
privilege to be valid. These are: — (1) Quintessential and The stricter prohibition applied to the President and his
non-delegable presidential power- power subject of the official family under art. VII, sec. 13, as compared to the
legislative inquiry must be expressly granted by the prohibition applicable to appointive officials in general
Constitution to the President, e.g commander-in-chief, under art. IX-B, sec. 7, par. 2, which is proof of the intent of
appointing, pardoning, and diplomatic powers; (2) the 1987 Constitution to treat them as a class by itself and
Operational Proximity Test: it must be authored, solicited, to impose upon said class stricter prohibitions.[Civil
and received by a close advisor of the President or the Liberties Union v. Executive Secretary (1991)]
President himself. The judicial test is that an advisor must
be in “operational proximity” with the President (i.e. Exceptions to rule prohibiting executive officials from
officials who stand proximate to the President, not only by holding additional positions:
reason of their function, but also by reason of their
positions in the Executive’s organizational structure); (3) President
Noadequate need:The privilege may be overcome by a (1) The President can assume a Cabinet post, (because the
showing of adequate need, such that the information departments are mere extensions of his personality,
sought “likely contains important evidence,” and by the according to the Doctrine of Qualified Political Agency,
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so no objection can be validly raised based on art. VII, (a) Call Out Power - armed forces to suppress lawless
sec. 13. violence;
(2) The President can assume ex officio positions. e.g. The (b) Suspension of Writ of Habeas Corpus- only (1) in
President is the Chairman of NEDA. (art. XII, sec. 9) times of rebellion or invasion AND (2) when
required by public safety
Vice-President (c) Martial Law – N.B. does not suspend Constitution
“xxx The Vice-President may be appointed as member of (7) Diplomatic Powers - including Power to Enter into
the Cabinet. Such appointment requires no confirmation” Treaties
[Art. VII, Sec. 3] (8) Residual Power - to protect the general welfare of
people; founded on duty of President as steward of the
Cabinet people; includes powers unrelated to execution of any
provision of law (See Marcos v. Manglapus)
(1) The Secretary of Justice shall be an ex-officio member of
the Judicial and Bar Council. (art. VIII, sec. 8[1]) (9) Other Powers
(2) Unless otherwise allowed by law or by the primary (a) Power to Pardon - reprieve, commute, pardon, remit
fines and forfeitures after final judgment [Art. VII,
functions of his position, appointive officials shall not
hold any other office or employment in the Sec. 19(1)]
(b) Power to Grant Amnesty - with concurrence of
Government or any subdivision, agency or
majority of all members of Congress
instrumentality thereof, including government- owned
or controlled corporations or their subsidiaries. (art. IX- (c) Borrowing Power - contract or guarantee foreign
loans with concurrence of Monetary Board [Art. VII,
B, sec. 7)
(3) Art. VII, sec. 13 talks of "unless otherwise provided by Sec. 20]
the Constitution." In the case of Cabinet members, this (d) Budgetary Power -submit to congress budget of
bills and expenditures [Art. VII, Sec. 22]
refers to art. IX-B, sec. 7, par. 2.
(4) Thus, the Constitution allows a Cabinet member to (e) Informing Power – address Congress during
opening of session, or at any other time [Art. VII,
hold another office provided either:
Sec. 23]
(5) such is necessitated by the primary functions of his
position (e.g. Secretary of Trade and Industry as
POWER OF APPOINTMENT
Chairman of NDC and Secretary of Agrarian Reform as
Chairman of the Land Bank) In General
(6) such is allowed by law The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
POWERS executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from
EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL
the rank of colonel or naval captain, and other officers
Executive power whose appointments are vested in him in this constitution.
He shall also appoint all other officers of the Government
The power to enforce, implement, and administer laws.The
president shall ensure that the laws be faithfully whose appointments are not otherwise provided for by law,
executed.[Art. VII, Sec. 17] and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other
One Executive: This power is exercised by the President.[Art. officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions or
VII, Sec. 1]
boards. [Art. VII, Sec. 16]
As administrative head of the government, the President is
Definition: the selection, by the authority vested with the
vested with the power to execute, administer and carry out
laws into practical operation. [National Electrification power, of an individual who is to exercise the functions of a
Commission vs. CA (1997)] given office.
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Note: Heads of bureaus were deliberately removed from [Art. VII, Sec. 3(2)]
the provision of appointments requiring confirmation and (2) Those whose appointments are not otherwise provided
th
were included in the 4 group and hence, their by law.
appointments no longer need confirmation. [Sarmiento v. (3) Those whom he may be authorized by law to appoint.
Mison (1987)] (4) Those other officers lower in rank whose appointment is
vested by law in the President (alone).The phraseology
Steps in the appointing process: is muddled.
Nomination by the President
Sarmiento v Mison (1987):
Const. Text: "The Congress may, by law, vest in the
appointment of other officers lower in rank in the President
Confirmation by the Commission on Appointments alone". This meant that until a law is passed giving such
appointing power to the President alone, then such
appointment has to be confirmed.
Held:The inclusion of the word "alone" was an oversight.
Issuance of the Commission Thus, the Constitution should read "The Congress may, by
law, vest the appointment of other officers lower in rank in
the President."
Acceptance by the appointee
Limitations on appointing power of the President
(1) Art. VII, sec. 13, par. 2 - The spouse and relatives by
Notes:
consanguinity or affinity within the 4th civil degree of
In the case of ad interim appointments, steps 1, 3 and 4
the President shall not, during his "tenure", be
precedes step 2.
appointed as:
(a) Members of the Constitutional Commissions;
An appointment is deemed complete only upon
(b) Member of the Office of Ombudsman;
acceptance. [Lacson v. Romero (1949)].
(c) Secretaries;
(d) Undersecretaries;
Appointment is essentially a discretionary power, the only
(e) Chairmen or heads of bureaus or offices, including
condition being that the appointee, if issued a permanent
government-owned or controlled corporations and
appointment, should possess the minimum qualification
their subsidiaries.
requirements, including the Civil Service eligibility
(2) Recess (Ad Interim) appointments:The President shall
prescribed by law for the position. This discretion also
have the power to make appointments during the
includes the determination of the nature or character of
recess of the Congress, whether voluntary or
the appointment.
compulsory, but such appointments shall be effective
only until disapproval by the Commission on
When confirmation is not required:
Appointments or until the next adjournment of the
(1) When the President appoints other government officers
Congress. (art. VII, sec. 16[2])
whose appointments are not otherwise provided for by
law;
Interim or Recess Appointments
(2) Those officers whom he may be authorized by law to
Regular and recess (ad interim) appointments
appoint(e.g. Chairman and Members of the
2 Kinds of Appointments Requiring Confirmation: — (1)
Commission on Human Rights);
Regular: if the CA (Congress) is in session; and (2) Ad
(3) When Congresscreates inferior offices but omits to
Interim: during the recess of Congress (because the
provide for appointment thereto, or provides in an
CAshall meet only while Congress is in session [Art. VI, Sec.
unconstitutional manner for such appointments(See
19]
Sarmiento v. Mison)
(4) Appointment of the Vice-President as member of the
Regular appointment
Cabinet (art. VII, sec. 3)
(1) Made by the President while Congress is in session
(5) Appointments upon recommendation of the Judicial
(2) Takes effect only after confirmation by the Commission
and Bar Council – see below
on Appointments (CA)
(6) Appointments solely by the President– see below
(3) Once approved, continues until the end of the term of
the appointee.
Appointments Upon Recommendation of the Judicial and
Bar Council
Ad-interim appointment
Do not require confirmation by the Commission on
(1) Made by the President while Congress is not in session
Appointments.
(2) Takes effect immediately, BUTceases to be valid (1) if
(1) Members of the Supreme Court and all other courts[Art.
disapproved by the CA or (2) upon the next
VII, Sec. 9]
adjournment of Congress. [Art. VII, Sec. 16, par. 2]
For lower courts, appointment shall be issued within 90
(3) Ad interim appointments are permanent
days from submission of the list
appointments.Ad Interim appointment to the
(2) Ombudsman and his 5 deputies (for Luzon, Visayas,
Constitutional Commissions (e.g. COMELEC) are
Mindanao, general and military)[Art. XI, Sec. 9]
permanent as it takes effect immediately and can no
All vacancies shall be filled within 3 months after they
longer be withdrawn by the President once the
occur.
appointee has qualified into office. The fact that it is
subject to the confirmation of the CA does not alter its
Appointments solely by the President [Art. VII, sec. 16]
permanent character. [Matibag v. Benipayo (2002)]
(1) Those vested by the Constitution on the President alone
(e.g. appointment of Vice-President to the Cabinet)
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Career Civil Service - members of the career civil service of Supervision Control
the Civil Service who are appointed by the President may
be directly disciplined by him [Villaluz v. Zaldivar (1965)] then the former may take
such action or steps as
Serve at the pleasure of the president -Cabinet members prescribed by law to make
and such officers whose continuity in office depends upon them perform these duties.
the pleasure of the president may be replaced at any time,
but legally speaking, their separation is effected not by This does not include the
removal but by expiration of their term. power to overrule their
acts, if these acts are within
POWER OF CONTROL AND SUPERVISION their discretion.
The President shall exercise general supervision over Call out the AFP to prevent lawless violence
autonomous regions to ensure that laws are faithfully This is merely a police measure meant to quell disorder. As
executed. [Art. X, Sec. 16] such, the Constitution does not regulate its exercise
radically.
Supervision and Control, Distinguished
State of Rebellion
Supervision Control
While the Court may examine whether the power was
Overseeing or the power or Power of an officer to alter, exercised within constitutional limits or in a manner
authority of the officer to modify, nullify or set aside constituting grave abuse of discretion, none of the
see that subordinate what a subordinate officer petitioners here have, by way of proof, supported their
officers perform their had done and to substitute assertion that the President acted without factual basis.
duties, and if the latter fail the judgment of the former The President, in declaring a state of rebellion and in calling
or neglect to fulfill them, for that of the latter. out the armed forces, was merely exercising a wedding of
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her Chief Executive and Commander-in-Chief (a) The effect therefore is only to extend the periods during
powers. These are purely executive powers, vested on the which he can be detained without a warrant. When the
President by Sections 1 and 18, Article VII, as opposed to privilege is suspended, the period is extended to 72
the delegated legislative powers contemplated by Section hours.
23 (2), Article VI. (Sanlakas v. Executive Secretary [2004]) (b) What happens if he is not judicially charged nor
released after 72 hours? The public officer becomes
Exercise of Emergency Powers liable under RPC Art. 125 for "delay in the delivery of
Background: Presidential Proclamation 1017 (Declaring a detained persons."
State of National Emergency) is different from the law in (3) The right to bail shall not be impaired even when the
Sanlakas as this proclamation was woven out of the privilege of the writ of habeas corpus is suspended.
“calling out” and “take care” powers of the President (art. III, sec. 13)
joined with the “temporary takeover” provision under Art.
XII, section 17. PP1017 purports to grant the President, Proclaim Martial Law
without authority or delegation from Congress, to take over The Requisites in proclaiming Martial Law are:
or direct the operation of any privately-owned public utility (1) There must be an invasion or rebellion, and
or business affected with public interest. (2) Public safety requires the proclamation of martial law
all over the Philippines or any part thereof.
While the President could validly declare the existence of a
state of national emergency even in the absence of a The following cannot be done [Art. VII, Sec. 18]:
Congressional enactment, the exercise of the emergency (1) Suspend the operation of the Constitution.
powers, such as the taking over of privately-owned public (2) Supplant the functioning of the civil courts and the
utility or business affected with public interest, requires a legislative assemblies.
delegation from Congress which is the repository of (3) Confer jurisdiction upon military courts and agencies
emergency powers. (David v. Arroyo [2006]) over civilians, where civil courts are able to function.
"Open Court" doctrine. —Civilians cannot be tried by
Suspend the privilege of the writ of habeas corpus military courts if the civil courts are open and
"Writ of habeas corpus" functioning.If the civil courts are not functioning, then
Is an order from the court commanding a detaining officer civilians can be tried by the military courts. Martial law
to inform the court usually contemplates a case where the courts are
(1) if he has the person in custody; and already closed and the civil institutions have already
(2) his basis in detaining that person crumbled, i.e. a "theater of war." If the courts are still
open, the President can just suspend the privilege and
"Privilege of the writ" achieve the same effect.
Is that portion of the writ requiring the detaining officer to (4) Automatically suspend the privilege of the writ of
show cause why he should not be tested. Note that it is the habeas corpus.
privilege that is suspended, not the writ itself. The President must suspend the privilege expressly.
The requisites for the suspension are: The Role of Congress (See art. VII, sec. 18, par. 1,2)
(1) There must be an invasion or rebellion, and (1) Congress may revoke the proclamation of martial law or
(2) The public safety requires the suspension. suspension of the privilege of the writ of habeas corpus
before the lapse of 60 days from the date of
Duration: Not to exceed 60 days unless extended by suspension or proclamation.
Congress. (2) Upon such proclamation or suspension, Congress shall
convene at once. If it is not in session, it shall convene
Effects of the suspension of the privilege: in accordance with its rules without need of a call
(1) The suspension of the privilege of the writ applies only within 24 hours following the proclamation or
to persons "judicially charged" for rebellion or offenses suspension.
inherent in or directly connected with invasion (art. VII, (3) Within 48 hours from the proclamation or the
sec. 18[5]). suspension, the President shall submit a report, in
(a) Such persons suspected of the above crimes can be person or in writing, to the Congress (meeting in joint
arrested and detained without a warrant of arrest. session of the action he has taken).
(b) The suspension of the privilege does not make the arrest (4) The Congress shall then vote jointly, by an absolute
without warrant legal. But the military is, in effect, majority. It has two options:
enabled to make the arrest anyway since, with the (a) To revoke such proclamation or suspension.
suspension of the privilege, there is no remedy When it so revoked, the President cannot set
available against such unlawful arrest (arbitrary aside (or veto) the revocation as he normally would
detention). do in the case of bills.
(c) The arrest without warrant is justified by the emergency (b) To extend it beyond the 60-day period of its validity.
situation and the difficulty in applying for a warrant
considering the time and the number of persons to be Congress can only so extend the proclamation or
arrested. suspension upon the initiative of the President.
(d) The crime for which he is arrested must be one related
to rebellion or invasion. As to others, the suspension of The period need not be 60 days; it could be more, as Con-
the privilege does not apply. gress would determine, based on the persistence of the
(2) During the suspension of the privilege of the writ, any emergency.
person thus arrested or detained shall be judicially
charged within 3 days, or otherwise he shall be
released. (art. VII, sec. 18[6])
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Note: If Congress fails to act before the measure expires, it There are 4 ways, then, for the proclamation or suspension to
can no longer extend it until the President again re- be lifted: (P-C-S-O)
declares the measure. (1) Lifting by the President himself
(2) Revocation by Congress
Congress cannot "validate" the proclamation or (3) Nullification by the Supreme Court
suspension, because it is already valid. (see Carpio, (4) Operation of law after 60 days
dissenting, in Fortun v. Macapagal-Arroyo, infra)
Cf. RA 7055 (1991) "An Act Strengthening Civilian
If Congress extends the measure, but before the period of Supremacy over the Military by Returning to the Civil Courts
extension lapses the requirements for the proclamation or the Jurisdiction over Certain Offenses involving Members of
suspension no longer exist, Congress can lift the extension, the Armed Forces of the Philippines, other Persons Subject to
since the power to confer implies the power to take back. Military Law, and the Members of the Philippine National
Police, Repealing for the Purpose Certain Presidential
The Role of the Supreme Court(See Art. VII, Sec. 18, par. 3) Decrees"
(1) The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the RA 7055 effectively placed upon the civil courts the
factual basis of: jurisdiction over certain offenses involving members of the
(a) the proclamation of martial law or the suspension AFP and other members subject to military law.
of the privilege of the writ, or
(b) the extension thereof. It must promulgate its RA 7055 provides that when these individuals commit
decision thereon within 30 days from its filing. crimes or offenses penalized under the RPC, other special
(c) Note: Calling-out power is purely discretionary on penal laws, or local government ordinances, regardless of
the President; the Constitution does not explicitly whether civilians are co-accused, victims, or offended
provide for a judicial review of its factual basis.[IBP v. parties which may be natural or juridical persons, they
Zamora (2001)] shall be tried by the proper civil court, exceptwhen the
offense, as determined before arraignment by the civil
(2) The jurisdiction of the SC may be invoked in a proper court, is service-connected in which case it shall be tried by
case. court-martial.
Although the Constitution reserves to the Supreme The assertion of military authority over civilians cannot rest
Court the power to review the sufficiency of the factual on the President's power as Commander in Chief or on any
basis of the proclamation or suspension in a proper theory of martial law. As long as civil courts remain open
suit, it is implicit that the Court must allow Congress to and are regularly functioning, military tribunals cannot try
exercise its own review powers, which is automatic and exercise jurisdiction over civilians for offenses
rather than initiated. Only when Congressdefaults in its committed by them and which are properly cognizable by
express duty to defend the Constitution through such civil courts. To hold otherwise is a violation of the right to
review shouldthe Supreme Court step in as its final due process. [Olaguer v. Military Commission No. 34 (1987)]
rampart. The constitutional validity of thePresident’s
proclamation of martial law or suspension of the writ of
PARDONING POWER
habeas corpus isfirst a political question in the hands of Nature of Pardoning Power
Congress before it becomes a justiciable one in the
Power to reprieve, commute, pardon, remit fines and
hands of the Court.
forfeitures after final judgment [Art. VII, Sec. 19(1)]
If the Congress procrastinates or altogether fails to
Forms of executive clemencies
fulfill its duty respecting the proclamation or (1) Reprieves - a temporary relief from or postponement of
suspension within the short time expected of it, then execution of criminal penalty or sentence or a stay of
the Court can step in, hear the petitions challenging
execution. (BLACK’S LAW DICTIONARY). It is the
the President’s action, and ascertain if it has a factual withholding of a sentence for an interval of time, a
basis. [Fortun v. Macapagal-Arroyo (2012)]
postponement of execution, a temporary suspension of
execution. [People vs. Vera (1937)]
(3) Petition for habeas corpus (2) Commutations - Reduction of sentence. [Black’s Law
(a) When a person is arrested without a warrant for
Dictionary]. It is a remission of a part of the
complicity in the rebellion or invasion, he or punishment; a substitution of a less penalty for the one
someone else in his behalf has the standing to originally imposed. (Vera, supra)
question the validity of the proclamation or
(3) Amnesty - a sovereign act of oblivion for past acts,
suspension. granted by government generally to a class of persons
(b) Before the SC can decide on the legality of his
who have been guilty usually of political offenses and
detention, it must first pass upon the validity of the
who are subject to trial but have not yet been con-
proclamation or suspension. victed, and often conditioned upon their return to
obedience and duty within a prescribed time. (BLACK’S;
(4) Limit on Calling out Power. —Test of Arbitrariness: The Brown v. Walker, 161 US 602).
question is not whether the President or Congress Requires concurrence of majority of all members of
acted correctly, but whether he acted arbitrarily in that
Congress (art. VII, sec. 19)
the action had no basis in fact. [IBP v. Zamora, (2000)].
Amounts to a determination of whether or not there
(4) Pardons - Permanent cancellation of sentence.
was grave abuse of discretion amounting to ack or
[BLACK’S] It is an act of grace proceeding from the
excess of jurisdiction. power entrusted with the execution of the laws, which
exempts the individual on whom it is bestowed, from
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the punishment the law inflicts for the crime he has Application of Pardoning Powers to Admin. Cases
committed. It is a remission of guilt, a forgiveness of (1) If the President can grant reprieves, commutations and
the offense. [Vera, supra] pardons, and remit fines and forfeitures in criminal
cases, with much more reason can she grant executive
Plenary or partial. —(1) Plenary - extinguishes all the clemency in administrative cases, which are clearly less
penalties imposed upon the offender, including accessory serious than criminal offenses.
disabilities. (2) Partial – does not extinguish all penalties (2) However, the power of the President to grant executive
imposed clemency in administrative cases refers only to
administrative cases in the Executive branch and not in
Absolute or conditional. —(1) Conditional - the offender has the Judicial or Legislative branches of the govt. [Llamas
the right to reject the same since he may feel that the v. Executive Secretary (1991)]
condition imposed is more onerous than the penalty
sought to be remitted. (2) Absolute pardon - pardonee has Removal of administrative penalties
no option at all and must accept it whether he likes it or Removal of Administrative Penalties or Disabilities - In
not. In this sense, an absolute pardon is similar to meritorious cases and upon recommendation of the (Civil
commutation, w/c is also not subject to acceptance by the Service) Commission, the President may commute or
offender. remove administrative penalties or disabilities imposed
upon officers or employees in disciplinary cases, subject to
Limitations on PARDON.—(1) Cannot be granted on such terms and conditions as he may impose in the
impeachment cases.(art. VII, sec. 19).(2) Cannot be granted interest of the service. [Sec. 53, Chapter 7, Subtitle A, Title I,
in cases of violation of election laws without the favorable Book V, Administrative Code of 1987 ]
recommendation of the COMELEC. (art. IX-C, sec. 5).(3)
Can be granted only after conviction by final judgment Who may avail of amnesty?
(People v. Salle, 250 SCRA 581)(4) Cannot absolve the (Asked 5 times in the Bar; answers from case law)
convict of civil liability.(5) Cannot be granted to cases of
legislative contempt or civil contempt.(6) Cannot restore Amnesty Proclamation No. 76 applies even to
public offices forfeited, even if pardon restores the Hukbalahaps already undergoing sentence upon the date
eligibility for said offices. [Monsanto v. Factoran (1989)] of its promulgation. The majority of the Court believes that
by its context and pervading spirit the proclamation
Pardon Amnesty extends to all members of the Hukbalahap. [Tolentino v.
Infractions of peace of the Addressed to Political Catoy (1948)]
state Offenses
Granted to individuals To classes of persons The SC agreed with the Sandiganbayan that in fact the
petitioners were expressly disqualified from amnesty. The
Exercised solely by the Requires concurrence of acts for which they were convicted were ordinary crimes
executive Congress without any political complexion and consisting only of
Private act which must be Public act which the courts diversion of public funds to private profit. The amnesty
pleaded and proved could take judicial notice proclamation covered only acts in the furtherance of
Looks forward and relieves Looks backward and puts resistance to duly constituted authorities of the Republic
the pardonee of the into oblivion the offense and applies only to members of the MNLF, or other anti-
consequences of the itself. government groups. [Macagaan v. People (1987)]
offense
Extended after final May be extended at any DIPLOMATIC POWER
judgment stage Scope of Diplomatic Power-The President, being the head
of state, is regarded as the sole organ and authority in
(5) Remit fines and forfeitures, after conviction by final external relations and is the country’s sole representative
judgment with foreign nations. As the chief architect of foreign
policy, the President acts as the country’s mouthpiece with
Exceptions: respect to international affairs.
(a) In cases of impeachment, and
(b) As otherwise provided in this Constitution The President is vested with the authority:
For election offenses- No pardon, amnesty, parole or (1) to deal with foreign states and governments;
suspension of sentence for violation of election laws, rules, (2) extend or withhold recognition;
and regulations shall be granted by the President without (3) maintain diplomatic relations;
the favorable recommendation by the Commission on (4) enter into treaties; and
Elections. [Art. IX, sec. 5] (5) transact the business of foreign relations. [Pimentel v.
Executive Secretary (2005)]
Probation - disposition where a defendant after conviction
and sentence is released subject to (1) conditions imposed Treaty-making power
by the court and (2) supervision of a probation officer.(PD No treaty or international agreement shall be valid and
No. 968, sec. 3[a]) effective unless concurred in by at least two-thirds of all
the members of the Senate. [Art. VII, sec. 21]
Parole- suspension of the sentence of a convict granted by
a Parole Board after serving the minimum term of the Treaty - as defined by the Vienna Convention on the Law of
indeterminate sentence penalty, without granting a Treaties, “an international instrument concluded between
pardon, prescribing the terms upon which the sentence States in written form and governed by international law,
shall be suspended. (REYES) whether embodied in a single instrument or in two or more
related instruments, and whatever its particular
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designation.” [Bayan v. Executive Secretary (2000)] and undemocratic. [Qua Chee Gan v. Deportation Board
(1963)]
Other terms for a treaty: act, protocol, agreement,
compromis d’ arbitrage, concordat, convention, declaration, 2 ways of deporting an undesirable alien. —(1) by order of the
exchange of notes, pact, statute, charter and modus President after due investigation, pursuant to sec. 69 of the
vivendi. Revised Administrative Code; (2) by the Commissioner of
Immigration under section 37 of the immigration Law [Qua
Note:It is the President who RATIFIES a treaty (not the Chee Gan v. Deportation Board, supra]
Senate), the Senate merely CONCURES. [Bayan v.
Executive Secretary, supra] Scope of the power
(1) The Deportation Board can entertain deportation based
The President cannot be compelled to submit a treaty to on grounds not specified in sec. 37 of the Immigration
the Senate for concurrence; she has the sole power to Law. The Board has jurisdiction to investigate the alien
submit it to the Senate and/or to ratify it. [Bayan Muna v. even if he had not been convicted yet.
Romulo (2011)] (2) The President’s power to deport aliens and to
investigate them subject to deportation are provided in
Executive Agreements the Revised Administrative Code.
(1) Entered into by the President (3) The State has inherent power to deport undesirable
(2) Need no concurrence aliens. This power is exercised by the President.
(3) Distinguished from treaties- International agreements (4) There is no legal orconstitutional provision defining the
involving political issues or changes in national policy power to deport aliens because the intention of the law
and those involving international agreements of is to grant the Chief Executive the full discretion to
permanent character usually take the form of determine whether an alien’s residence in the country
TREATIES. But the international agreements involving is so undesirable as to affect the security, welfare or
adjustments in detail carrying out well-established interest of the state.
national policies and traditions and those involving a (5) The Chief Executive is the sole and exclusive judge of
more or less temporary character usually take the form the existence of facts which would warrant the
of EXECUTIVE AGREEMENTS. [Commissioner of deportation of aliens. [Go Tek v. Deportation Board
Customs vs. Eastern Sea Trading (1961)] (1977)]
(4) Executive agreements may be entered into with other
states and are effective even without the concurrence POWERS RELATIVE TO APPROPRIATION MEASURES
of the Senate. From the point of view of international
law, there is no difference between treaties and Contracting and guaranteeing foreign loans
executive agreements in their binding effect upon Requisites for contracting and guaranteeing foreign loans:
states concerned as long as the negotiating (1) With the concurrence of the monetary board [Art. VII,
functionaries have remained within their powers. The Sec. 20]
distinction between an executive agreement and a treaty (2) subject to limitations as may be provided by law [Art.
is purely a constitutional one and has no international XII, Sec. 2]
legal significance. [USAFFE Veterans Assn. v. Treasurer (3) information on foreign loans obtained or guaranteed
(1959)] shall be made available to the public [Art. XII, Sec. 2]
Two Classes of Executive Agreements. —(1) Agreements Cf. Republic Act 4860
made purely as executive acts affecting external relations An Act Authorizing The President Of The Philippines To
and independent of or without legislative authorization, Obtain Such Foreign Loans And Credits, Or To Incur Such
which may be termed as presidential agreements; and (2) Foreign Indebtedness, As May Be Necessary To Finance
Agreements entered into in pursuance of acts of Congress, Approved Economic Development Purposes Or Projects,
or Congressional-Executive Agreements. And To Guarantee, In Behalf Of The Republic Of The
Philippines, Foreign Loans Obtained Or Bonds Issued By
Although the President may, under the American Corporations Owned Or Controlled By The Government Of
constitutional system enter into executive agreements The Philippines For Economic Development Purposes
without previous legislative authority, he may not, by Including Those Incurred For Purposes Of Re-Lending To
executive agreement, enter into a transaction which is The Private Sector, Appropriating The Necessary Funds
prohibited by statutes enacted prior thereto. He may not Therefore, And For Other Purposes (Approved, September
defeat legislative enactments that have acquired the 8, 1966.)
status of lawby indirectly repealing the same through an
executive agreement providing for the performance of the Role of Congress:The President does not need prior
very act prohibited by said laws. [Gonzales v Hechanova approval by the Congress
(1963)] (1) Because the Constitution places the power to check the
Once the Senate performs the power to concur with President’s power on the Monetary Board;
treaties or exercise its prerogative within the boundaries (2) BUT Congress may provide guidelines and have them
prescribed by the Constitution, the concurrence cannot be enforced through the Monetary Board
viewed as an abuse of power, much less a grave abuse of
discretion. [Bayan v. Executive Secretary, supra, on the
constitutionality of the Visiting Forces Agreement]
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VETO POWER
Emergency powers
In times of war or other national emergency, the Congress, General rule: all bills must be approved by the President
before they become law
may, by law, authorize the President, for a limited period,
and subject to such restrictions as it may prescribe, to
Exceptions:
exercise powers necessary and proper to carry out a
(1) The veto of the President is overridden by 2/3 vote of all
declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the Members of the House where it originated;
(2) The bill lapsed into law because the inaction of the
the next adjournment thereof. [Art. VI, Sec. 23]
President; and
Different from the Commander-in-Chief clause: (3) The bill passed is the special law to elect the President
and Vice-President.
(1) When the President acts under the Commander-in-
Chief clause, he acts under a constitutional grant of
This gives the President an actual hand in legislation.
military power, which may include the law-making
However, his course of action is only to approve it or veto it
power.
(2) When the President acts under the emergency power, as a whole.(see Legislative Power of Congress)
he acts under a Congressional delegation of law-
making power. It is true that the Constitution provides a mechanism for
overriding a veto [Art. VI, Sec. 27(1)]). Said remedy, however,
is available only when the presidential veto is based on
Meaning of “power necessary and proper” - Power to issue
rules and regulations policy or political considerations but not when the veto is
claimed to be ultra vires. In the latter case, it becomes the
duty of the Court to draw the dividing line where the
This power is:
(1) for a limited period, and exercise of executive power ends and the bounds of
legislative jurisdiction begin. [PHILCONSA v Enriquez
(2) subject to such restrictions as Congress may provide.
(1994)]
When Emergency Powers cease
EXECUTIVE PRIVILEGE
(1) According to the text of the Constitution - The power
ceases: See discussion under Presidential Privilege.
(a) upon being withdrawn by resolution of the
RESIDUAL POWERS
Congress; or
(b) if Congress fails to adopt such resolution, upon the General doctrine:The President has unstated residual
powers, which are implied from the grant of executive power
next (voluntary) adjournment of Congress.
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necessary for her to comply with her Constitutional duties, only by two standards: (1) there must be a factual basis for
such as to safeguard and protect the general welfare. It the impairment of the Marcoses’ right to return (as
includes powers unrelated to the execution of any distinguished from their right to travel, which is a
provision of law. [See Marcos v. Manglapus (1988)] constitutional right); and (2) the impairment must not be
In Marcos v. Manglapus, supra, the Court held that then- arbitrary.
President Corazon Aquino had the power to prevent the N.B. The decision was pro hac vice.
Marcoses from returning to the Philippines on account of
the volatile national security situation. This was limited
RULES ON SUCCESSION
PRESIDENT
Death or permanent disability of the Vice-President-elect shall become
President-elect President
President-elect fails to qualify Vice-President-elect shall act as
President until the President-elect
shall have qualified
President shall not have been chosen Vice-President-elect shall act as
President until a President shall
Vacancy have been chosen and qualified.
at the No President and Vice-President Senate President or, incase of his In the event of inability of the SP
Beginning chosen nor shall have qualified, or inability, Speaker of the House of and Speaker, Congress shall, by
of the both shall have died or become Representatives, shall act as law, provide for the manner in
term permanently disabled President until a President or a which one who is to act as
Vice-President shall have been President shall be selected until a
chosen and qualified. President or Vice-President shall
have qualified.
Death, permanent disability, removal Vice-President shall become
from office, or resignation of the President
President
Vacancy Death, permanent disability, Senate President or, in case of his Congress, by law, shall provide for
during removal from office, or resignation of inability, the Speaker of the House the manner in which one is to act
the term President ANDVice-President of Representatives, shall act as as President in the event of inability
President until a President or Vice- of the SP and Speaker.
President shall be elected and
qualified.
When President transmits to the Such powers and duties shall be
Senate President and the Speaker of discharged by the Vice-President as
the House his written declaration Acting President, until the
that he is unable to discharge the President transmits to them a
powers and duties of his office written declaration to the contrary
When a Majority of all the members The Vice-President shall
of the Cabinet transmit to the immediately assume the powers
Senate President and the Speaker and duties of the office as Acting
their written declaration that the President until the President
President is unable to discharge the transmits to the Senate President
powers and duties of his office and Speaker his written declaration
that no inability exists.
If after the President transmits his Congress determines by a 2/3 vote Congress shall convene, if not in
Temporary declaration of his ability to discharge of both houses, voting separately, session, within 48 hours. And if
disability his office, and a majority of that the President is unable to within 10 days from receipt of the
members of the Cabinet transmit discharge the powers and duties of last written declaration or, if not in
within 5 days to the Senate his office, the Vice-President shall session, within 12 days after it is
President and Speaker their written act as President; otherwise, the required to assemble.
declaration that the President is President shall continue exercising
unable to discharge the powers and the powers and duties of his office
duties of his office, Congress shall
decide the issue.
Convening of Congress cannot be suspended nor the
CONSTITUTIONAL DUTY OF CONGRESS IN CASE OF VACANCY IN THE special election postponed. xxx No special election shall be
OFFICES OF PRESIDENT AND VICE-PRESIDENT called if the vacancy occurs within 18 months before the
rd
At 10 o’clock in the morning of the 3 day after the vacancy date of the next presidential election.
occurs, Congress shall convene without need of a call, and
within 7 days enact a law calling for a special election to VICE-PRESIDENT
The President shall nominate a Vice-President from
elect a President and a Vice-President to be held not earlier among the members of the Senate and the House of
than 45 nor more than 60 days from the time of such call. Representatives who shall assume office upon
The bill shall be deemed certified and shall become law confirmation by a majority vote of all the members of both
upon its approval on third reading by Congress. xxx the houses of Congress voting separately. [Art. VII, Sec. 9]
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Vested in: Supreme Court and in such lower courts as may Locus standi
be established by law. Standing NOT the same as “real party in interest”
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N.B. The reckoning point is the first competent court.The assumed jurisdiction whenever it found constitutionally-
question must be raised at the first court with judicial review imposed limits on the exercise of powers conferred upon
powers. Hence, the failure to raise the constitutional the Legislative and Executive branches [BERNAS].
question before the NLRC is not fatal to the case. [See
Serrano v. Gallant Maritime Services (2009] Political Question Justiciable Controversy
(2) Lis Mota Alejandrino v. Quezon Avelino v. Cuenco, (1949):
Decision on the constitutional question must be (1924): The legislature’s election of Senate
determinative of the case itself. exercise of disciplinary President was done
power over its member is without the required
The reason for this is the doctrine of separation of powers not to be interfered with by quorum
which requires that due respect be given to the co-equal the Court.
branches, and because of the grave consequences of a Vera v. Avelino, (1946): Tañada v. Cuenco, (1957):
declaration of unconstitutionality. [De la Llana v. Alba inherent right of the The selection of the
(1982)] legislature to determine members of the Senate
who shall be admitted to Electoral Tribunal is
OPERATIVE FACT DOCTRINE its membership subject to constitutional
General Rule:The interpretation (or declaration) of limitations.
unconstitutionality is retroactive in that it applies from the Severino v. Governor- Cunanan v. Tan, Jr., (1962):
law’s effectivity General (1910): Mandamus The Commission on
and injunction could not lie Appointments is a
Exception: to enforce or restrain a constitutional creation and
OPERATIVE FACT DOCTRINE– Subsequent declaration of duty which is discretionary does not derive its power
unconstitutionality does not nullify all acts exercised in line (calling a special local from Congress.
with [the law].The past cannot always be erased by a new election).
judicial declaration. [Municipality of Malabang v. Benito Manalang v. Quitoriano, Lansang v. Garcia(1971):
(1969), citing Chicot County] (1954): President’s Suspension of the privilege
appointing power is not to of the writ of habeas corpus
Effect of a Declaration of Unconstitutionality be interfered with by the is not a political question.
(1) Orthodox view - An unconstitutional act is not a law; it Court.
confers no rights; it imposes no duties; it affords no Javellana v. Executive
protection; it creates no office; it is inoperative, as if it Secretary(1973): WON the
had not been passed at all. 1973 Constitution had been
(2) Modern view - Certain legal effects of the statute prior ratified in accordance with
to its declaration of unconstitutionality may be the 1935 Constitution is
recognized. justiciable.
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(7) The SC has exclusive power to discipline judges of lower But see Francisco v. House of Representatives (2001). At
courts. [Art. VIII, Sec. 11] the same time, the Court has the duty to determine
The Ombudsman is duty bound to refer to the SC all whether or not there has been grave abuse of
cases against judges and court personnel, so SC can discretionby any instrumentality of government under
determine first whether an administrative aspect is its expanded judicial review powers. (This allowed the
involved. The Ombudsman cannot bind the Court that SC to interfere in a traditionally purely political process,
a case before it does or does not have administrative i.e. impeachment, when questions on compliance with
implications. [Caoibes v. Ombudsman (2001)] Constitutional processes were involved.)
(8) The members of the SC and all lower courts have
security of tenure, w/c cannot be undermined by a law Guidelines for determining whether a question is political or
reorganizing the judiciary. [Id.] not: [Baker v. Carr (369 US 186), as cited in Estrada v.
(9) They shall not be designated to any agency performing Desierto (2001)]:
quasi-judicial or administrative functions. [Art. VIII, Sec. (1) There is a textually demonstrable constitutional
12] commitment of the issue to a political department;
Administrative functions are those thatinvolve (2) Lack of judicially discoverable and manageable
regulation of conduct of individuals or promulgation of standards for resolving it;
rules to carry out legislative policy. Judges should (3) The impossibility of deciding without an initial policy
render assistance to a provincial committee of justice determination of a kind clearly for non-judicial
(which is under DOJ supervision) only when it is discretion;
reasonably incidental to their duties. [In Re Manzano (4) Impossibility of a court’s undertaking independent
(1988)] resolution without expressing lack of the respect due
(10) The salaries of judges may not be reduced during their coordinate branches of government;
continuance in office. [Art. VIII, Sec. 10] (5) An unusual need for unquestioning adherence to a
(11) The judiciary shall enjoy fiscal autonomy. [Art. VIII, Sec. political decision already made;
3] (6) Potentiality of embarrassment from multifarious
Fiscal autonomy means freedom from outside control. pronouncements by various departments on one
As the Court explained in Bengzon v. Drilon: As question
envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission APPOINTMENTS TO THE JUDICIARY
and the Commission on Audit, the Commission on SYNTHESIS OF CONSTITUTIONAL AND STATUTORY QUALIFICATIONS
Elections, and the Office of the Ombudsman SC and Collegiate MTC/ MCTC
RTC Judge
contemplates a guarantee of full flexibility to allocate Courts Justice Judge
and utilize their resources with the wisdom and dispatch Citizenship
that their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of Natural-born
Filipino citizen
compensation not exceeding the highest rates Filipino
authorized by law for compensation and pay plans of Age
the government and allocate and disburse such sums
At least 40 years old At least 35 At least 30
as may be provided by law or prescribed by them in the
years old years old
course of the discharge of their functions. [In re:
Clarifying and Strengthening the Organizational Experience
Structure and Set-up of the Philippine Judicial Academy, 15 years or more as a Has been engaged for at least 5
A.M. No. 01-1-04-SC] judge or a lower years in the practice of law* in the
(12) The SC alone may initiate rules of court. [Art. VIII, Sec. court or has been PHLor has held public office in
5(5)] engaged in the the PHL requiring admission to
(13) Only the SC may order the temporary detail of practice of law in the the practice of law as an
judges.[Art. VIII, Sec. 5(3)] PHL for the same indispensable requisite
(14) The SC can appoint all officials and employees of the period
judiciary.[Art. VIII, Sec. 5(6)]
JUDICIAL RESTRAINT
The judiciary will not interfere with its co-equal branches Tenure
when: Hold office during good behavior until they reach the age
(1) There is no showing of grave abuse of discretion of 70 or
(a) PPA v. Court of Appeals: If there is no showing of become incapacitated to discharge their duties
grave abuse of discretion on the part of a branch or Character
instrumentality of the government, the court will
decline exercising its power of judicial review. Person of proven competence, integrity, probity and
(b) Chavez v. COMELEC: Judicial review shall involve independence
only those resulting to grave abuse of discretion by
virtue of an agency’s quasi-judicial powers, and not *“Practice of law” is not confined to litigation. It means any
those arising from its administrative functions. activity in and out of court, which requires the application
of law, legal procedure, knowledge, training and
(2) The issue is a political question. experience. [Cayetano v. Monsod (1991)]
Even when all requisites for justiciability have been
met, judicial review will not be exercised when the issue CONSTITUTIONAL REQUIREMENTS (CANNOT BE REDUCED BY LAW)
involves a political question. Supreme Court Justice
(1) Natural born citizens
(2) At least 40 years of age
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Supreme Court refused, invoking judicial privilege. (3) Civil Service Commission
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fraud, or other analogous causes; and (c) after the voting The Commission on Elections may sit en banc or in two
and during the preparation and transmission of the divisions, and shall promulgate its rules of procedure in
election returns or in the custody or canvass thereof such order to expedite disposition of election cases, including
election results in a failure to elect on account of force pre-proclamation controversies. All such election cases
majeure, violence, terrorism, fraud or other analogous shall be heard and decided in division, provided that
causes. [Sison v. COMELEC (1999)] motions for reconsideration of decisions shall be decided by
the Commission en banc. [Art. IX—C, Sec. 3]
(4) Decide administrative questions pertaining to election
except the right to vote(jurisdiction with the judiciary). Cases which must be heard by division
(1) All election cases, including pre-proclamation contests
(5) File petitions in court for inclusion or exclusion of originally cognizable by the Commission in the exercise
voters. of its powers under Sec. 2(2), Art IX-C.
(2) Jurisdiction over a petition to cancel a certificate of
(6) Investigate and prosecute cases of violations of election candidacy.
laws. (3) Even cases appealed from the RTC or MTC have to be
heard and decided in division before they may be heard
The COMELEC has exclusive jurisdiction to investigate and en banc.
prosecute cases for violations of election laws. [De Jesus v.
People (1983)] If the COMELEC exercises its quasi-judicial functions then
the case must be heard through a division.
Thus, the trial court was in error when it dismissed an
information filed by the Election Supervisor because the If the COMELEC exercises its administrative functions then
latter failed to comply with the order of the Court to secure it must act en banc. [Bautista v. COMELEC, 414 (2003)].
the concurrence of the Prosecutor. [People v. Inting (1990)]
However, the COMELEC may validly delegatethis power to Composition: A Chairman and 6 Commissioners.
the Provincial Fiscal. [People v. Judge Basilia (1989)]
Qualifications:
(7) Recommend pardon, amnesty, parole or suspension of (1) Must be natural-born citizens;
sentence of election law violators. (2) At least 35 years of age;
(3) Holders of a college degree;
(8) Deputize law enforcement agencies and (4) Have not been candidates in the immediately preceding
instrumentalities of the Government for the exclusive election;
purpose of ensuring free, orderly, honest, peaceful, and (5) Majority, including the Chairman, must be members of
credible elections. the Philippine Bar who have been engaged in the
practice of law for at least 10 years. [Art. IX-C, Sec. 1]
(9) Recommend to the President the removal of any officer
or employee it has deputized for violation or disregard COMMISSION ON AUDIT
of, or disobedience to its directive. Powers and Functions
(A) Examine, audit, and settle accounts pertaining to
(10) Registration of political parties, organizations and government funds or property: its revenue, receipts,
coalitions and accreditation of citizens’ arms. expenditures, and uses
(11) Regulation of public utilities and media of information. Post-audit basis:
The law limits the right of free speech and of access to (1) Constitutional bodies, commissions and offices;
mass media of the candidates themselves. The (2) Autonomous state colleges and universities;
limitation however, bears a clear and reasonable (3) GOCCs with no original charters and their
connection with the objective set out in the subsidiaries;
Constitution. For it is precisely in the unlimited (4) Non-governmental entities receiving subsidy or
purchase of print space and radio and television time equity, directly or indirectly, from or through the
that the resources of the financially affluent candidates Government, which are required by law or the
are likely to make a crucial difference. The purpose is to granting institution to submit such audit as a
ensure "equal opportunity, time, and space, and the right condition of subsidy or equity.
to reply," as well as uniform and reasonable rates of
charges for the use of such media facilities, in (B) Exclusive Authority to
connection with "public information campaigns and (1) Define the scope of its audit and examination;
forums among candidates." [National Press Club v. (2) Establish techniques and methods required ;
COMELEC (1992)] (3) Promulgate accounting and auditing rules and
regulations.
Note: This power may be exercised only over the media, not
over practitioners of media. Thus, a COMELEC resolution Note: Art. IX-D, sec. 3.No law shall be passed exempting
prohibiting radio and TV commentators and newspaper any entity of the Government or its subsidiaries in any
columnists from commenting on the issues involved in the guise whatever, or any investment of public funds, from the
forthcoming plebiscite for the ratification of the organic jurisdiction of the Commission on Audit.
law establishing the CAR was held invalid. [Sanidad v.
COMELEC (1990)] Composition: A Chairman and 2 Commissioners
(12) Decide election cases Qualifications:
(1) Natural born Filipino citizens
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will be applied, and the case will be brought to the (3) Those whose mothers are citizens of the Philippines
Court of Appeals. and, upon reaching the age of majority, elect Philippine
citizenship;
ADMINISTRATIVE (4) Those who are naturalized in accordance with law. [Art.
Each Commission shall appoint its own officials in IV, Sec. 1]
accordance with law [Art. IX-A, Sec. 4]
The following persons were citizens of the Philippines on
Each Commission En Banc may promulgate its own rules May 14, 1935 – the date of the adoption of the 1935
concerning pleadings and practices before it [Art. IX-A, Constitution:
Sec.6] (1) Persons born in the Philippine Islands who resided
therein on April 11, 1899 and were Spanish subjects on
But these rules shall not diminish, increase or modify that date, unless they had lost their Philippine
substantive rights citizenship on or before May 14, 1935.
(2) Natives of the Spanish Peninsula who resided in the
Each Commission shall perform such other functions as Philippines on April 11, 1899, and who did not declare
may be provided by law[Art. IX-A, Sec. 8] their intention of preserving their Spanish nationality
between that date and October 11, 1900, unless they
had lost their Philippine citizenship on or before May
14, 1935.
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Special Qualifications [C.A. 473, Sec. 3] – ANY will result to Judgment directing the issuance of a certificate of
reduction of 10-year period to 5 years naturalization is a mere grant of a political privilege and
(1) Having honorably held office under the Government of that neither estoppel nor res judicata may be invoked to bar
the Philippines or under that of any of the provinces, the State from initiating an action for the cancellation or
cities, municipalities, or political subdivisions thereof; nullification of the certificate of naturalization thus issued.
(2) Established a new industry or introduced a useful [Yao Mun Tek v. Republic (1971)]
invention in the Philippines;
(3) Married to a Filipino woman; DUAL CITIZENSHIP AND DUAL ALLEGIANCE
(4) Engaged as a teacher in the Philippines in a public or DUAL CITIZENSHIP
recognized private school not established for the Allows a person who acquires foreign citizenship to
exclusive instruction of children of persons of a simultaneously enjoy the rights he previously held as a
particular nationality or race, in any of the branches of Filipino citizen.
education or industry for a period of 2 years or more;
(5) Born in the Philippines. DUAL ALLEGIANCE
(1) Aliens who are naturalized as Filipinos but remain loyal
Disqualifications [C.A. 473, Sec. 4] to their country of origin
(1) Persons opposed to organized government or affiliated (2) Public officers who, while serving the government, seek
with groups who uphold and teach doctrines opposing citizenship in another country
all organized governments;
(2) Persons defending or teaching the necessity or “Dual citizens” are disqualified from running for any
propriety of violence, personal assault, or assassination elective local position. (LOCAL GOVERNMENT CODE, sec. 40[d]);
for the success of their ideas; this should be read as referring to “dual allegiance” (see
(3) Polygamists or believers in polygamy; below)
(4) Persons convicted of crimes involving moral turpitude;
(5) Persons suffering from mental alienation or incurable Once a candidate files his candidacy, he is deemed to have
contagious diseases; renounced his foreign citizenship in case of dual
(6) Persons who during the period of their stay, have not citizenship. [Mercado v. Manzano (1999)]
mingled socially with the Filipinos, or who have not
evinced a sincere desire to learn and embrace the Clearly, in including sec. 5 in Article IV on citizenship, the
customs, traditions, and ideals of the Filipinos; concern of the Constitutional Commission was not with
(7) Citizens or subjects of nations with whom the dual citizens per se but with naturalized citizens who
Philippines is at war maintain their allegiance to their countries of origin even
(8) Citizens or subjects of a foreign country other than the after their naturalization. Hence, the phrase “dual
United States, whose laws do not grant Filipinos the citizenship” in R.A. No. 7160, sec. 40(d) and in R.A. No.
right to become naturalized citizens or subject thereof; 7854, sec. 20 must be understood as referring to “dual
allegiance.”
DENATURALIZATION
Process by which grant of citizenship is revoked. Consequently, persons with mere dual citizenship do not
fall under this disqualification. For candidates with dual
Grounds [C.A. 473, Sec. 18]– upon the proper motion of the citizenship, it should suffice if, upon the filing of their
Sol. Gen. or the provincial fiscal, naturalization may be certificates of candidacy, they elect Philippine citizenship
cancelled when to terminate their status as persons with dual citizenship
(1) Naturalization certificate was fraudulently or illegally considering that their condition is the unavoidable
obtained [See Po Soon Tek v. Republic (1974)] consequence of conflicting laws of different states.
(2) If, within the five years next following the issuance, he
shall return to his native country or to some foreign LOSS AND REACQUISITION OF FILIPINO CITIZENSHIP
country and establish his permanent residence there GROUNDS FOR LOSS OF CITIZENSHIP
Remaining for more than one year in his native country (1) Naturalization in a foreign country [C.A. 63, sec.1(1)];
or the country of his former nationality, or two years in (2) Express renunciation or expatriation [Sec.1(2), CA 63];
any other foreign country, shall be considered as prima (3) Taking an oath of allegiance to another country upon
facie evidence of his intention of taking up his reaching the age of majority;
permanent residence in the same; (4) Accepting a commission and serving in the armed
(3) Petition was made on an invalid declaration of forces of another country, unless there is an offensive/
intention; defensive pact with the country, or it maintains armed
(4) Minor children of the person naturalized failed to forces in RP with RP’s consent;
graduate from the schools mentioned in sec. 2, through (5) Denaturalization;
the fault of their parents, either by neglecting to support (6) Being found by final judgment to be a deserter of the
them or by transferring them to another school or AFP;
schools. (7) Marriage by a Filipino woman to an alien, if by the laws
(5) If he has allowed himself to be used as a dummy in of her husband’s country, she becomes a citizen
violation of the Constitutional or legal provision thereof.
requiring Philippine citizenship as a requisite for the
exercise, use or enjoyment of a right, franchise or Expatriation is a constitutional right. No one can be
privilege. compelled to remain a Filipino if he does not want to. [Go
Gullian v. Government]
Naturalization is never final and may be revoked if one
commits acts of moral turpitude. [Republic v. Guy (1982)] Exception: A Filipino may not divest himself of Philippine
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citizenship in any manner while the Republic of the to all attendant liabilities and responsibilities under
Philippines is at war with any country. [C.A. 63, sec. 1(3)] existing laws of the Philippines and the following
conditions:
Loss of Philippine citizenship cannot be (1) Those intending to exercise their right of suffrage must
presumed.Considering the fact that admittedly, Osmeña meet the requirements under Sec. 1, Art. V of the
was both a Filipino and an American, the mere fact that he Constitution, RA 9189, otherwise known as "The
has a certificate stating that he is an American does not Overseas Absentee Voting Act of 2003" and other
mean that he is not still a Filipino, since there has been NO existing laws;
EXPRESS renunciation of his Philippine citizenship. [Aznar (2) Those seeking elective public office in the Philippines
v. COMELEC (1995)] shall meet the qualifications for holding such public
office as required by the Constitution and existing laws
HOW MAY CITIZENSHIP BE REACQUIRED? and, at the time of the filing of the certificate of
(1) Naturalization[C.A. 63 and C.A. 473] candidacy, make a personal and sworn renunciation of
Now an abbreviated process, no need to wait for 3 years (1 any and all foreign citizenship before any public officer
year for declaration of intent, and 2 years for the judgment authorized to administer an oath;
to become executory) (3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of
Requirements: the Philippines and its duly constituted authorities
(1) be 21 years of age prior to their assumption of office: provided, that they
(2) be a resident for 6 months renounce their oath of allegiance to the country where
(3) have good moral character they took that oath;
(4) have no disqualification (4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
(2) Repatriation license or permit to engage in such practice; and
Repatriation results in the recovery of the original (5) That right to vote or be elected or appointed to any
nationality. Therefore, if he is a natural-born citizen before public office in the Philippines cannot be exercised by,
he lost his citizenship, he will be restored to his former or extended to, those who:
status as a natural-born Filipino. [Bengson III v. HRET (a) are candidates for or are occupying any public office in
(2001)] the country of which they are naturalized citizens;
and/or
Mere filing of certificate of candidacy is not a sufficient act (b) are in active service as commissioned or non-
of repatriation.Repatriation requires an express and commissioned officers in the armed forces of the
equivocal act. [Frivaldo v. COMELEC (1989)] country which they are naturalized citizens.
In the absence of any official action or approval by proper NATURAL-BORN CITIZENS AND PUBLIC OFFICE
authorities, a mere application for repatriation does not, NATURAL-BORN
and cannot, amount to an automatic reacquisition of the (1) Citizens of the Philippines from birth without having to
applicant’s Philippine citizenship. [Labo v. COMELEC perform any act to acquire or perfect their Philippine
(1989)] citizenship; and
(2) Thosewho elect Philippine citizenship in accordance with
(3) Legislative Act [Art. IV, Sec. 1(3)]
Both a mode of acquiring and reacquiring citizenship
The term "natural-born citizens," is defined to include
RA 9225 (CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF "those who are citizens of the Philippines from birth
2003) without having to perform any act to acquire or perfect
Sec. 3. Retention of Philippine Citizenship. — Any provision their Philippine citizenship." [Tecson v. COMELEC (2004)]
of law to the contrary notwithstanding, natural-
born citizens of the Philippines who have lost their WHO MUST BE NATURAL-BORN?
Philippine citizenship by reason of their (1) President [Art. VII, Sec. 2]
naturalization as citizens of a foreign country are (2) Vice-President [Art. VII, Sec. 3]
hereby deemed to have re-acquired Philippine (3) Members of Congress [Sec. 3 and 6, Art. VI]
citizenship upon taking the following oath of (4) Justices of SC and lower collegiate courts [Sec. 7(1), Art.
allegiance to the Republic: xxx VIII]
(5) Ombudsman and his deputies [Sec. 8, Art. XI]
Natural-born citizens of the Philippines who, after the (6) Members of Constitutional Commissions
effectivity of this Act, become citizens of a foreign country (7) CSC [Art. IX-B, Sec. 1(1)]
shall retain their Philippine citizenship upon taking the (8) COMELEC [Art. IX-C, Sec.1]
aforesaid oath. (9) COA [Art. IX-D, Sec. 1(1)]
(10) Members of the central monetary authority [Art. XII,
Sec. 4 Derivative Citizenship. — The unmarried child, Sec. 20]
whether legitimate, illegitimate or adopted, below (11) Members of the Commission on Human Rights [Art.
eighteen (18) years of age, of those who re-acquire XIII, Sec. 17(2)]
Philippine citizenship upon effectivity of this Act shall be The Constitutional provision(i.e. “whose fathers are
deemed citizens of the Philippines. citizens”)does not distinguish between “legitimate” or
“illegitimate” paternity. Civil Code provisions on illegitimacy
Sec. 5. Civil and Political Rights and Liabilities. — Those govern private and personal relations, not one’s political
who retain or re-acquire Philippine citizenship under this status. [Tecson v. COMELEC, supra, on the petition for
Act shall enjoy full civil and political rights and be subject disqualification against presidential candidate FPJ]
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without the need of a franchise. But in operating an air HOWEVER, land sold to an alien which was later
transport business, franchise is required. transferred to a Filipino citizen OR when the alien later
becomes a Filipino citizen can no longer be recovered by
ACQUISITION, OWNERSHIP AND TRANSFER OF PUBLIC the vendor, because there is no longer any public policy
AND PRIVATE LANDS involved. [Republic v. IAC (1989)]
Lands of the Public Domain are classified into:
(1) Agricultural Lands PRACTICE OF PROFESSIONS
(2) Forest or Timber Lands The practice of all profession in the Philippines shall be
(3) Mineral Lands limited to Filipino citizens, save in the case prescribed by
(4) National Park [Art. XII, Sec. 3] law. [Art. XII, Sec. 14]
Note: The classification of public lands is a function of the
ORGANIZATION AND REGULATION OF
executive branch, specifically the Director of the Land CORPORATIONS, PRIVATE AND PUBLIC
Management Bureau (formerly Director of Lands). The STEWARDSHIP CONCEPT
decision of the Director, when approved by the Secretary of
the DENR, as to questions of fact, is conclusive upon the The use of property bears a social function, and all
courts. [Republic v. Imperial (1999)]. economic agents shall contribute to the common good.
Alienable lands of the public domain shall be limited to Individuals and private groups, including corporations,
agricultural lands. [Art. XII, Sec. 3] cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic
To prove that the land subject of an application for enterprises, subject to the duty of the State to promote
registration is alienable, an applicant must conclusively distributive justice and to intervene when the common
establish the existence of a positive act of the government good so demands. [Art. XII, Sec. 6]
such as a presidential proclamation or an executive order
or a legislative act or statute. [Republic v. Candymaker, Inc. The State shall apply the principles of agrarian reform or
(2006)] stewardship, whenever applicable in accordance with law,
Foreshore land is that part of the land which is between the in the disposition or utilization of other natural resources,
high and low water, and left dry by the flux and reflux of including lands of the public domain under lease or
the tides. It is part of the alienable land of the public concession suitable to agriculture, subject to prior rights,
domain and may be disposed of only by lease and not homestead rights of small settlers, and the rights of
otherwise. [Republic v. Imperial, supra] indigenous communities to their ancestral lands. [Art. XIII,
Sec. 6]
Private corporations or associations may not hold such
alienable lands of public domain except by lease, for a MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
period not exceeding 25 years, and not to exceed 1000 COMPETITION
hectares in area. MONOPOLIES
Citizens of the Philippines may lease not more than 500 The State shall regulate or prohibit monopolies when the
ha., or acquire not more than 12 hectares thereof by public interest so requires. No combinations in restraint of
purchase, homestead, or grant. [Art. XII, Sec. 3] trade or unfair competition shall be allowed. [Art. XII, Sec.
19]
PRIVATE LANDS
General Rule: No private lands shall be transferred or Although the Constitution enshrines free enterprise as a
conveyed except to individuals, corporations, or policy, it nevertheless reserves to the Government the
associations qualified to acquire or hold lands of the public power to intervene whenever necessary for the promotion
domain. [Art. XII, Sec. 7] of the general welfare. [Philippine Coconut Dessicators v.
PCA (1998)]
Exceptions:
(1) Hereditary succession (art. XII, sec. 7) Monopolies are not per se prohibited by the Constitution
(2) A natural-born citizen of the Philippines who has lost but may be permitted to exist to aid the government in
his Philippine citizenship may be a transferee of private carrying on an enterprise or to aid in the performance of
lands, subject to limitations provided by law. (art. XII, various services and functions in the interest of the public.
sec. 8) Nonetheless, a determination must first be made as to
whether public interest requires a monopoly. As
Consequence of sale to non-citizens: monopolies are subject to abuses that can inflict severe
Any sale or transfer in violation of the prohibition is null prejudice to the public, they are subject to a higher level of
and void. [Ong Ching Po. v. CA (1994)]. When a disqualified State regulation than an ordinary business undertaking.
foreigner later sells it to a qualified owner (e.g. Filipino [Agan, Jr. v. PIATCO (2003)]
citizen), the defect is cured. The qualified buyer owns the
land. [See Halili v. CA (1998)] CENTRAL MONETARY AUTHORITY [ART. XII, SEC. 20]
Functions:
Can a former owner file an action to recover the property? (1) Provide policy directions in the areas of money,banking,
Yes. The Court in Philippine Banking Corp. v. Lui She, (1967) and credit;
abandoned the application of the principle of in pari delicto. (2) Supervise the operations of banks;
Thus, the action will lie. (3) Exercise such regulatory powers as may be provided by
law over the operations of finance companies and other
institutions performing similar functions
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Social Justice & Human The Commission on Human Rights shall have the
following powers and functions:
Rights (1) Investigate, on its own or on complaint by any party, all
forms of human rights violations involving civil and
CONCEPT OF SOCIAL JUSTICE political rights;
1987 CONSTITUTION (2) Adopt its operational guidelines and rules of procedure,
and cite for contempt for violations thereof in
The State shall promote social justice in all phases of
accordance with the Rules of Court;
national development. [Art. II, Sec. 10]
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as
The Congress shall give highest priority to the enactment well as Filipinos residing abroad, and provide for
of measures that protect and enhance the right of all the preventive measures and legal aid services to the
people to human dignity, reduce social, economic, and under-privileged whose human rights have been
political inequalities, and remove cultural inequities by violated or need protection;
equitably diffusing wealth and political power for the (4) Exercise visitorial powers over jails, prisons, or detention
common good. facilities;
(5) Establish a continuing program of research, education,
To this end, the State shall regulate the acquisition, and information to enhance respect for the primacy of
ownership, use, and disposition of property and its human rights;
increments. [Art. XIII, Sec. 1] (6) Recommend to Congress effective measures to promote
human rights and to provide for compensation to
victims of violations of human rights, or their families;
The promotion of social justice shall include the (7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
commitment to create economic opportunities based on
freedom of initiative and self-reliance. [Art. XIII, Sec. 2] (8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the
Social justice is "neither communism, nor despotism, nor truth in any investigation conducted by it or under its
atomism, nor anarchy," but the humanization of laws and authority;
the equalization of social and economic forces by the State (9) Request the assistance of any department, bureau,
so that justice in its rational and objectively secular office, or agency in the performance of its functions;
conception may at least be approximated. Social justice (10) Appoint its officers and employees in accordance with
means the promotion of the welfare of all the people, the law; and
adoption by the Government of measures calculated to (11) Perform such other duties and functions as may be
insure economic stability of all the competent elements of provided by law. [Art. XIII, Sec. 18]
society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members
of the community, constitutionally, through the adoption As should at once be observed, only the first of the
of measures legally justifiable, or extra-constitutionally, enumerated powers and functions bears any resemblance
to adjudication or adjudgment. The Constitution clearly
through the exercise of powers underlying the existence of
all governments on the time-honored principle of salus and categorically grants to the Commission the power to
investigate all forms of human rights violations involving civil
populi est suprema lex. Social justice, therefore, must be
and political rights. But it cannot try and decide cases (or
founded on the recognition of the necessity of
interdependence among divers and diverse units of a hear and determine causes) as courts of justice, or even
quasi-judicial bodies do. To investigate is not to adjudicate
society and of the protection that should be equally and
evenly extended to all groups as a combined force in our or adjudge. Whether in the popular or the technical sense,
social and economic life, consistent with the fundamental these terms have well understood and quite distinct
meanings. [Cariño v. CHR (1991)]
and paramount objective of the state of promoting the
health, comfort, and quiet of all persons, and of bringing
about "the greatest good to the greatest number."
[Calalang v. Williams (1940)]
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ACADEMIC FREEDOM
Academic freedom shall be enjoyed in all institutions of
higher learning. [Art. XIV, Sec. 5 (2)]
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Police power prevails over contracts. [PNB v. Office of the Public Safety. – Agustin questions President Marcos’ Letter
President (1996)] of Instruction No. 229 compelling owners of motor vehicles
to install specific early warning devices to reduce road
Specific Coverage accidents.
(1) Public Health
(2) Public Morals Police power, public safety: The Court identified police
(3) Public Safety power as a dynamic agency, suitably vague and far from
(4) Public Welfare precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government
Test of Reasonability limitations to safeguard constitutional rights did not
(1) Lawful subject intend to enable an individual citizen or a group of citizens
(2) Lawful means to obstruct unreasonably the enactment of such salutary
(3) Least restrictions of individual right measures calculated to communal peace, safety, good
order, and welfare. According to the Court, a heavy burden
The limit to police power is reasonability. The Court looks lies in the hands of the petitioner who questions the state’s
at the test of reasonability to decide whether it encroaches police power if it was clearly intended to promote public
on the right of an individual. So long as legitimate means safety. [Agustin v. Edu, (1979)]
can reasonably lead to create that end, it is reasonable.
[Morfe v. Mutuc (1968)]
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otherwise, the State’s power to legislate for the public REQUISITES FOR VALID EXERCISE
welfare might be seriously curtailed
(4) Taxes should be uniform and equitable [Sec. 28(1), Art. POLICE POWER
VI] Tests for Validity of Exercise of Police Power
(1) Lawful Subject: Interest of the general public (as
Judicial review for unconscionable and unjust tax amounting distinguished from a particular class required exercise).
to confiscation of property This means that the activity or property sought to be
The legislature has discretion to determine the nature, regulated affects the general welfare. [Taxicab
object, extent, coverage, and situs of taxation. But where a Operators v. Board of Transportation (1982)]
tax measure becomes so unconscionable and unjust as to (2) Lawful Means: Means employed are reasonably
amount to confiscation of property, courts will not hesitate necessary for the accomplishment of the purpose, and
to strike it down, for despite all its plenitude, the power to are not unduly oppressive. [Tablarin v. Gutierrez (1987)]
tax cannot override constitutional prescriptions. [Tan v. del (3) Least Restrictions of Individual Rights: It must also be
Rosario (1994)] evident that no other alternative for the
accomplishment of the purpose less intrusive of private
Specific Limitations rights can work. [White Light Corporation, et al v. City of
(1) Uniformity of taxation Manila (2009)]
General Rule: simply geographical uniformity, meaning it
operates with the same force and effect in every place EMINENT DOMAIN
where the subject of it is found Requisites
(1) Private property
Exception: Rule does not prohibit classification for (2) Genuine necessity - inherent/presumed in legislation,
purposes of taxation, provided the ff requisites are met: but when the power is delegated (e.g. local
(SNAGAE) government units), necessity must be proven.
(a) standards used are Substantial and Not Arbitrary (3) For public use - Court has adopted a broad definition of
(b) if the classification is Germane to achieve the legislative “public use,” following the U.S. trend
purpose (4) Payment of just compensation
(c) if that classification Applies to both present and future (5) Due process [Manapat v. CA (2007)]
conditions, other circumstances being equal
(d) applies Equally to members of the same class. [Pepsi TAXATION
Cola v. City of Butuan (1968)]. Equal protection clause: taxes should be uniform (persons
or things belonging to the same class shall be taxed at the
(2) Tax Exemptions same rate) and equitable (taxes should be apportioned
No law granting any tax exemption shall be passed among the people according to their ability to pay)
without the concurrence of a majority of all the
Members of Congress [Sec. 28 (4), Art. VI] Progressive system of taxation: The rate increases as the
tax base increases, with basis as social justice.
A corollary power but must be for a public purpose, Taxation as an instrument for a more equitable distribution
uniform and equitable and in conformity with the equal of wealth
protection clause
Delegated tax legislation: Congress may delegate law-
Tax exemptions are granted gratuitously and may be making authority when the Constitution itself specifically
revoked at will, except when it was granted for valuable authorizes it.
consideration
SIMILARITIES AND DIFFERENCES
May either be constitutional or statutory. SIMILARITIES (NACHURA)
(1) Inherent in the State (Exercised even without need of
If statutory, it has to have been passed by majority of all the express constitutional grant)
members of Congress [Sec. 28 (4), Art. VI] (2) Necessary and indispensable (State cannot be effective
without them)
Constitutional exemptions [sec. 28(3), Art. VI] (3) Method by which state interferes with private property
Requisite: Exclusive Use (4) Presuppose equivalent compensation
(a) Educational institutions (both profit and non-profit used (5) Exercised primarily by the legislature
actually, directly and exclusively for educational
purposes): Benefits redound to students, but only DIFFERENCES
applied to property taxes and not excise taxes Police Power Eminent Domain Taxation
(b) Charitable institutions: Religious and charitable
institutions give considerable assistance to the State in Compensation
the improvement of the morality of the people and the None Just None
care of the indigent and the handicapped (The altruistic compensation (The protection
(c) Religious property:Charitable Institutions, churches, and feeling that one (Full and fair given and public
parsonages or convents appurtenant thereto, mosques, has contributed equivalent of the improvements
non-profit cemeteries, and all lands, buildings and to the public property taken) instituted by the
improvements, actually, directly and exclusively used good required. State because of
for religious, charitable or educational purposes [NACHURA]) these taxes
[NACHURA])
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which the courts have the right to inquire into. [City of (1) Civil rights– rights that belong to an individual by virtue
Manila v. Chinese Community of Manila (1919)] of his citizenship in a state or community (e.g. rights to
property, marriage, freedom to contract, equal
When a statute or charter or by general law has conferred protection, etc.)
the right of eminent domain upon a private entity. [Tenorio (2) Political rights– rights that pertain to an individual’s
v. Manila Railroad Co (1912)] citizenship vis-à-vis the management of the
government (e.g. right of suffrage, right to petition
As Exercised By Congress As Exercised By Delegates government for redress, right to hold public office, etc.)
(3) Social and economic rights – rights which are intended
Extent of Power to insure the well-being and economic security of the
Pervasive and all- Can only be as broad as individual
encompassing the enabling law and the (4) Rights of the accused – civil rights intended for the
conferring authorities want protection of a person accused of any crime
it to be
BASES AND PURPOSE
Question of Necessity Bases:
Political question Justiciable question. RTC (1) Importance accorded to the dignity andworth of the
has to determine whether individual.
there is a genuine necessity (2) Protection against arbitrary actions of government and
for its exercise, as well as other members of society
what the property’s value
is. Purpose:
(1) To preserve democratic ideals
If not justiciable, there’s (2) To safeguard fundamental rights
grant of special authority (3) To promote the happiness of an individual
for special purpose
The Bill of Rights is designed to preserve the ideals of liberty,
equality and security "against the assaults of opportunism,
Re: Private Property
the expediency of the passing hour, the erosion of small
Delegate cannot encroachments, and the scorn and derision of those who
expropriate private have no patience with general principles." (Justice
property already devoted Cardozo, Nature of Judicial Process, 90-93; Tanada and
to public use Fernando, Constitution of the Philippines, 1952 ed., 71.)
[Philippine Blooming Mills Employees Organization v.
TAXATION Philippine Blooming Mills Co., Inc. (1973)]
(1) legislature (primarily)
(2) local legislative bodies [Sec. 5, Art. X] In the pithy language of Mr. Justice Robert Jackson, the
(3) President (to a limited extent, when granted delegated purpose of the Bill of Rights is to withdraw "certain
tariff powers under Sec. 28 (2) Art. VI subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials,
and to establish them as legal principles to be applied by
the courts. One's rights to life, liberty and property, to free
speech, or free press, freedom of worship and assembly,
Private Acts and the Bill of and other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections." [West
Rights Virginia State Board of Education v. Barnette, 319 U.S. 624,
638]
IN GENERAL
It is a declaration and enumeration of a person's ACCOUNTABILITY
fundamental civil and political rights. It also Sec. 2, Art. III shall apply only against law officials or
imposessafeguards against violations by the government, people working as agents of government concerned about
by individuals, or by groups of individuals. being able to procure evidence. [People v. Marti (1991)]
“The Bill of Rights governs the relationship between the Sec. 3 of Art. XIII of the Constitution requires the State to
individual and the state. Its concern is not the relation give full protection to labor. We cannot be faithful to this
between individuals, between a private individual and duty if we give no protection to labor when the violator of
other individuals. What the Bill of Rights does is to declare its rights happens to be private parties like private
some forbidden zones in the private sphere inaccessible to employers. A private person does not have a better right
any power holder.” (Sponsorship Speech of Commissioner than the government to violate an employee's right to due
Bernas, Record of the Constitutional Commission, Vol. 1, p. process. To be sure, violation of the particular right of
674; July 17, 1986; Emphasis supplied) [People v. Marti employees to security of tenure comes almost always from
(1991)] their private employers. [Serrano v. NLRC (2000)]
It is generally self-executing.
Article III contains the chief protection for human rights but
the body of the Constitution guarantees other rights as
well.
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Equal Protection of the State. The rights and interests of the state in
these things are not simply political but also
proprietary in nature; and so the citizens may lawfully
CONCEPT be given preference over aliens in their use or
DEFINITION enjoyment.
Equal protection requires that all persons or things
similarly situated should be treated alike, both as to rights The Court upheld the Retail Trade Nationalization Law
conferred and responsibilities imposed. despite the objection that it violated the EP clause,
because there exists real and actual, positive and
Similar subjects, in other words, should not be treated fundamental differences between an alien and a national.
differently, so as to give undue favor to some and unjustly [Ichong v. Hernandez (1957)]
discriminate against others.
FILIPINO FEMALE DOMESTICS WORKING ABROAD
The guarantee means that no person or class of persons They are a class by themselves because of the special risks
shall be denied the same protection of laws which is to which their class was exposed. [Phil Association of
enjoyed by other persons or other classes in like Service Exporters v. Drilon (1988)]
circumstances. [City of Manila v. Laguio (2005) citing
Ichong v. Hernandez (1957)] LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS
There is dissimilarity as to work environment, safety,
Scope danger to life and limb, and accessibility to social, civil and
Natural and juridical persons (the equal protection clause spiritual activities. [Conference of Maritime Manning
extends to artificial persons but only insofar as their Agencies v. POEA (1995)]
property is concerned.)
(1) A corporation as an artificial person is protected under QUALIFICATION FOR ELECTIVE OFFICE
the Bill of Rights against denial of due process, and it Disqualification from running in the same elective office
enjoys the equal protection of the law. [Smith, Bell and from which he retired of a retired elective
Co., v. Natividad (1919)] provincial/municipal official who has received payment of
(2) A corporation is also protected against unreasonable retirement benefits and who shall have been 65 y.o. at the
searches and seizures. [Stonehill v. Diokno (1967)] commencement of the term of office to which he seeks to
(3) It can only be proceeded against by due process of law, be elected is valid. [Dumlao v. Comelec (1980)]
and is protected against unlawful discrimination.
[Bache and Co. v. Ruiz (1971)] ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS
RA 8189 (Voters’ Registration Act) prohibits election
REQUISITES FOR VALID CLASSIFICATION officers from holding office in a particular city or
(1) It must rest on substantial distinctions which make real municipality for more than four (4) years. The classification
differences; is germane to the law since the risk sought to be
(2) It must be germane to the purpose of the law; addressedis cheating during elections. [De Guzman v.
(3) It must not be limited to existing conditions only. COMELEC (2000)]
An ordinance was declared void because it taxes only
centrifugal sugar produced and exported by the Ormoc OFFICE OF THE OMBUDSMAN
Sugar Company and none other, such that if a new Allowing the Ombudsman to start an investigation based
sugar central is established in Ormoc, it would not be on an anonymous letter does not violate EP clause. The
subject to the ordinance. [Ormoc Sugar Co. v. Treasurer Office of the Ombudsman is different from other
of Ormoc City (1968)] investigatory and prosecutory agencies of government
(4) Apply equally to all members of the same class [People because those subject to its jurisdiction are public officials
v. Cayat (1939)] who, through official pressure and influence, can quash,
delay or dismiss investigations against them. [Almonte v.
EXAMPLES OF VALID CLASSIFICATION Vasquez (1995)]
All classifications made by law are generally presumed to
be valid unless shown otherwise by petitioner. [Lacson v. PRINT V. BROADCAST MEDIA
Executive Secretary (1999)] There are substantial distinctions between the two to
warrant their different treatment under BP 881
ALIENS [Telecommunications and Broadcast Attorneys of the Phil v.
General Rule: The general rule is that a legislative act may COMELEC (1998)]
not validly classify the citizens of the State on the basis of
their origin, race or parentage. STANDARDS FOR JUDICIAL REVIEW
Serrano v. Gallant Maritime introduced a modification in
Exceptions: equal protection jurisprudence by using the three-level
(1) In times of great and imminent danger, such as a review used in due process cases. In effect, the level of
threatened invasion or war, such a classification is review when it comes to equal protection challenges may
permitted by the Constitution when the facts so warrant follow the following format:
(e.g. discriminatory legislation against Japanese (1) Whether the State was justified in making a
citizens during WWII). classification at all. (three-level scrutiny)
(2) The political rights of aliens do not enjoy the same (a) Rational basis test – the classification should bear a
protection as that of citizens. reasonable relation to the government’s purpose
(3) Statutes may validly limit to citizens exclusively the
enjoyment of rights or privileges connected with the
public domain, the public works, or the natural resources
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Notes:
Important when there is no plausible difference Searches and Seizures
between the disadvantaged class and those not
disadvantaged. CONCEPT
The right of the people to be secure in their persons,
Also important when the government attaches a houses, papers, and effects against unreasonable searches
morally irrelevant and negative significance to a and seizures of whatever nature and for any purpose shall
difference between the advantaged and the be inviolable, and no search warrant or warrant of arrest
disadvantaged. shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
(b) Strict scrutiny test – in which a legislative affirmation of the complainant and the witnesses he may
classification which impermissibly interferes with produce, and particularly describing the place to be searched
the exercise of a fundamental right or operates to and the persons or things to be seized. [Art. III, Sec. 2]
the peculiar disadvantage of a suspect class is
presumed unconstitutional. The burden is upon
NATURE
the government to prove that the classification is Personal
necessary to achieve a compelling state interest
It may be invoked only by the person entitled to it.
and that it is the least restrictive means to protect
[Stonehill v. Diokno (1967)]
such interest. It is applied when the classification
has a “suspect basis”.
It may be waived expressly or impliedly only by the person
whose right is invaded, not by one who is not duly
Suspect classes – A classification that violates a authorized to effect such waiver. [People v. Damaso (1992)]
fundamental right, or prejudices a person accorded
special protection by the Constitution (Serrano v. Directed Against the Government and Its Agencies (State
Gallant). May therefore include a classification
Action Requirement)
based on income.
The right cannot be set up against acts committed by
private individuals.The right applies as a restraint directed
(Compare to the US definition: classes subject to
only against the government and its agencies tasked with
such a history of purposeful unequal treatment or the enforcement of the law. The protection cannot extend
relegated to such a position of political to acts committed by private individuals so as to bring
powerlessness as to command extraordinary
them within the ambit of alleged unlawful intrusion by the
protection from the majoritarian political process. government. [People v. Marti (1991); See also Yrasuegui v.
Income classification will not trigger strict scrutiny.)
Philippine Airlines (2008)]
(c) Intermediate scrutiny test – Court accepts the What constitutes a reasonable or unreasonable search and
articulated purpose of the legislation but it closely
seizure in any particular case is purely a judicial question,
scrutinizes the relationship between the determinable from a consideration of the circumstances
classification and the purpose based on a spectrum involved. [Valmonte v. De Villa (1989)]
of standards, by gauging the extent to which
constitutionally guaranteed rights depend upon the Objections to the warrant of arrest must be made before
affected individual interest. In which the
the accused enters his plea. [People v. Codilla (1993); People
government must show that the challenged
v. Robles (2000)]
classification serves an important state interest and
that the classification is at least substantially related
SCOPE
to serving that interest. Applicable to certain sensitive Natural Persons
but not suspect classes; certain important but not It protects all persons including aliens [Qua Chee Gan v.
fundamental interest.
Deportation Board (1963)]
(2) Whether the classification was valid. (4-pronged test of
Artificial Persons
valid classification in People v. Cayat)
Artificial persons are protected to a limited extent. [Bache
and Co. Inc v. Ruiz (1971)] The opening of their account
Alternative thought: BERNAS (and Prof. De Vera) opines that
books is not protected, by virtue of police and taxing
in Serrano v. Gallant Maritime, the Court seems to imply powers of the State.
that the Test of Valid Classification is to be applied
underthe Rational Basis standard. Note that in Serrano,
WARRANT REQUIREMENT
where the Court applied Strict Scrutiny, the Test of Valid PURPOSE
Classification was mentioned but not applied. Note
(1)Search Warrant- to gain evidence to convict
however that the Serrano levels of scrutiny have not been
(2) Warrant of Arrest- to acquire jurisdiction
reapplied as of this writing. This issue has not yet been
clarified.
Must refer to one specific offense. [Asian Surety v. Herrera,
(1973); Castro v. Pabalan (1976)]
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(c) Such written deposition is necessary in order that A John Doe search warrant is valid. There is nothing to
the Judge may be able to properly determine the prevent issue and service of warrant against a party whose
existence or non-existence of the probable cause, name is unknown. [People v. Veloso (1925)]
to hold liable for perjury the person giving it if it will
be found later that his declarations are false GENERAL WARRANT
One that:
(d) It is axiomatic that the examination must be (1) Does not describe with particularity the things subject
probing and exhaustive, not merely routine or pro- of the search and seizure; and
forma, if the claimed probable cause is to be (2) Where probable cause has not been properly
established. established. It is a void warrant. [Nolasco v. Paño
(1985)]
(e) The examining magistrate must not simply rehash
the contents of the affidavit but must make his own Exception to General Warrants: General descriptions will
inquiry on the intent and justification of the not invalidate the entire warrant if other items have been
application. [Roan v. Gonzales (1984)] particularly described. [Uy v. BIR (2000)]
(4) On the basis of their personal knowledge of the facts Conduct of the Search [Sec. 7, Rule 126, ROC]
they are testifying to. (1) In the presence of a lawful occupant thereof or any
member of his family, OR
(5) The warrant must describe particularly the place to be (2) If occupant or members of the family are absent, in the
searched and the persons or things to be seized. presence of 2 witnesses of
(a) sufficient age
Requirement is primarily meant to enable the law (b) discretion
enforcers serving the warrant to —(1) readily identify the (c) residing in the same locality
properties to be seized and thus prevent them from seizing (3) Force may be used in entering a dwelling if justified by
the wrong items; and (2) leave said peace officers with no Rule 126 ROC.
discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures. [People v. Tee Failure to comply with Sec. 7 Rule 126 invalidates the
(2003)] search. [People v. Gesmundo (1993)]
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What must be considered is the balancing of the Scope: Outer clothing for concealed weapon, etc.
individual’s right to privacy and the public’s interest in the
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Test: WON a reasonably prudent man in the circumstances search. On the other hand, when the vehicle is stopped
would be warranted in the belief that his safety of that of and subjected to an extensive search, it would be
others was in danger [Terry v. Ohio, 392 U.S.(1968)]. constitutionally permissible only If the officers conducting
the search had reasonable or probable cause to believe,
The police officer should properly introduce himself and before the search, that either the motorist is a law offender
make initial inquiries, approach and restrain a person who or they will find the instrumentality or evidence pertaining
manifests unusual and suspicious conduct, in order to to a crime in the vehicle to be searched[Caballes v. Court of
check the latter’s outer clothing for possibly concealed Appeals (2002); People v. Libnao (2003)].
weapons. The apprehending police officer must have a
genuine reason, in accordance with the police officer’s PROPERTIES SUBJECT TO SEIZURE
experience and the surrounding conditions, to warrant the General Rule: Only the articles particularly described in the
belief that the person to be held has weapons or contraband warrant may be seized.
concealed about him [People v. Sy Chua (2003)]. (1) Property subject of an offense
(2) Stolen or embezzled property and other proceeds or
VALID EXPRESS WAIVER MADE VOLUNTARILY AND INTELLIGENTLY fruits of an offense
Requisites: (3) Used or intended to be used as a means of committing
(1) Must appear that right exists; an offense [Sec. 2 Rule 126, ROC]
(2) Person involved had actual/ constructive knowledge of
the existence of such right; Where the warrant authorized only the seizure of shabu,
(3) Said person had an actual interest to relinquish the and not marijuana, the seizure of the latter was held
right; unlawful. [People v. Salanguit (2001)]
(4) Waiver is limited only to the arrest;
(5) Waiver does not extend to search made as an incident It is not necessary that the property to be searched or
thereto, or to any subsequent seizure of evidence found seized should be owned by the person against whom the
in the search. [People v. Peralta (2004)] warrant is issued; it is sufficient that the property is within
his control or possession [Burgos v. Chief of Staff (1984)].
It was ruled that the right to be secure from unreasonable
search may be waived. Waiver may be express or implied. COMPARISON OF PROCEDURES IN OBTAINING SEARCH WARRANTS
When one voluntarily submits to a search or consents to AND ARREST WARRANTS
have it made of his person / premises, he is precluded from When warrant of arrest may issue – (a) By the Regional Trial
later complaining [People v. Kagui Malasugui (1936)]. Court – Within ten (10) days from the filing of the
complaint or information, the judge shall personally
It is the State that has the burden of proving, by clear and evaluate the resolution of the prosecutor and its
convincing evidence, that the necessary consent was supporting evidence. He may immediately dismiss the case
obtained and that it was voluntarily and freely given if the evidence on record clearly fails to establish probable
[Caballes v. Court of Appeals (2002)]. cause. If he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused has already
When accused checked in his luggage as passenger of a been arrested pursuant to a warrant issued by the judge
plane, he agreed to the inspection of his luggage in who conducted the preliminary investigation or when the
accordance with customs laws and regulations, and thus complaint or information was filed pursuant to section 7 of
waived any objection to a warrantless search [People v. this Rule. In case of doubt on the existence of probable
Gatward (1997)]. cause, the judge may order the prosecutor to present
additional evidence [Note: This is not found in the procedure
CUSTOMS SEARCH for a search warrant.] within five (5) days from notice and
Searches of vessel and aircraft for violation of immigration the issue must be resolved by the court within thirty (30)
and smuggling laws [Papa v. Mago (1968)]. days from the filing of the complaint of information. [Rule
112, Sec. 6]
EXIGENT AND EMERGENCY CIRCUMSTANCES
The raid and seizure of firearms and ammunition at the
height of the 1989 coup-de-etat, was held valid, Requisites for issuing search warrant – A search warrant
considering the exigent and emergency situation. The shall not issue except upon probable cause in connection
military operatives had reasonable ground to believe that a with one specific offense to be determined personally by
crime was being committed, and they had no opportunity the judge after examination under oath or affirmation of
to apply for a search warrant from the courts because the the complainant and the witness he may produce, and
latter were closed. Under such urgency and exigency, a particularly describing the place to be searched and the
search warrant could be validly dispersed with [People v. de things to be seized which may be anywhere in the
Gracia (1994)]. Philippines. [Rule 126, Sec. 4]
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(1)Personally evaluate the report and the supporting of facts or circumstances that the person to be arrested
documents submitted by the fiscal regarding the has committed it;
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or Requisites:
(2)If he finds no probable cause, he may disregard the (1) Offense had JUST been committed;
fiscal's report and require the submission of supporting (2) Person making the arrest has probable cause to believe
affidavits of witnesses to aid him in arriving at a based on personal knowledge.
conclusion as to the existence of probable cause.
[Beltran v. Makasiar (1988)] Note: There must be a large measure of immediacy
between the time the offense is committed and the time of
Existence of Probable Cause: Such facts and circumstances the arrest. If there was an appreciable lapse of time
which would lead a reasonably discreet and prudent man between arrest and commission of crime, warrant of arrest
to believe that an offense has been committed by the must be secured. [Nachura]
person sought to be arrested. [Webb v. De Leon (1995)]
Warrantless arrest of accused for selling marijuana 2 days
Determination of probable cause personally by the judge after he escaped is invalid. [People v. Kimura (2004)]
as to warrant of arrest:
(1) On the basis of the witnesses’ personal knowledge of the The warrantless arrest only 3 hours after the killing was
facts they are testifying to. held valid since personal knowledge was established as to
(2) The arrest warrant must describe particularly the person the fact of death and facts indicating that the accused
to be seized. killed the victim. [People v. Gerente (1993)]
(a) By stating the name of the person to be arrested.
(b) If not known, then a “John Doe warrant” may be issued, Personal Knowledge: Experience of an officer which gives
with some descriptio persona that will enable the officer the idea that there is probable cause that the person
to identify the accused. caught is responsible. It has been ruled that “personal
knowledge of facts” in arrests without a warrant must be
John Doe Warrant: Warrants issued against 50 John Does, based on probable cause, which means an actual belief or
none of whom the witnesses could identify, were reasonable grounds of suspicion. [Cadua v. Court of
considered as “general warrants” and thus void. Appeals (1999)]
[Pangandaman v. Casar (1988)]
There is no personal knowledge when the commission of a
REQUISITES OF A VALID WARRANTLESS ARREST [RULE 113, SEC. 5, crime and identity of the accused were merely furnished by
RULES ON CRIMINAL PROCEDURE] an informant, or when the location of the firearm was given
by the wife of the accused. It is not enough that there is
(1) When in his presence, the person to be arrested has reasonable ground to believe that the person to be
committed, is actually committing, or is attempting to arrested has committed a crime. That a crime has actually
commit an offense; (in flagrante delicto) been committed is an essential precondition. [People v.
Burgos (1986)]
Rebellion is a continuing offense. Therefore a rebel may be
arrested without a warrant at any time of the day or the (3) When the person to be arrested is a prisoner who has
night as he is deemed to be in the act of committing escaped from a penal establishment or place where he
rebellion. [Umil v. Ramos (1991)] is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being
Though kidnapping with serious illegal detention is transferred from one confinement to another
deemed a continuing crime, it can be considered as such
only when the deprivation of liberty is persistent and Additional Exceptions (Not in the Rules):
continuing from one place to another. [Parulan v. Dir of (1) When the right is voluntarily waived (estoppel).
Prisons (1968)] (2) Violent insanity.
Hot Pursuit: The arrest of the accused inside his house Appellant is estopped from questioning the illegality of the
following hot pursuit of the person who committed the arrest when he voluntarily submitted himself to the
offense in flagrante was held valid. [People v. De Lara jurisdiction of the court by entering a plea of not guilty and
(1994)] by participating in the trial. [People v. Salvatierra (1997)]
Buy-Bust: A buy-bust operation is a valid in flagrante Failure to raise the question of admissibility during the trial
arrest. The subsequent search of the person arrested and is waiver of the right to assert inadmissibility on appeal.
the premises within his immediate control is valid as an [Manalili v. CA (1997)]
incident to a lawful arrest. [People v. Hindoy (2001)]
Scope of Waiver: Waiver is limited to the illegal arrest. It does
Exception to buy-bust: Instead of arresting the suspect not extend to the search made as an incident thereto, or
after the sale in a buy-bust op, the officer returned to the the subsequent seizure of evidence allegedly found during
police headquarters and filed his report. It was only in the the search [People v. Peralta (2004]]
evening that he, without warrant, arrested the suspect at
his house where dried marijuana leaves were found and ADMINISTRATIVE ARRESTS
seized. This is unlawful arrest. [People v. Rodrigueza (1992)] General Rule: Only the judge has the power to issue a
warrant after the proper procedure has been duly taken.
(2) When an offense has just been committed and he has
probable cause to believe based on personal knowledge
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The censor serves therefore as the political, moral, social SUBSEQUENT PUNISHMENT
and artistic arbiter for the people, usually applying only his Concept:
own subjective standards in determining what is good and Freedom of speech includes freedom after speech. Without
what isnot. this assurance, the citizen would hesitate to speak for fear
he might be provoking the vengeance of the officials he
General rules: has criticized (chilling effect).
(1) Any system of prior restraints of expression comes to
the Court bearing a heavy presumption against its If criticism is not to be conditioned on the government’s
constitutionality, giving the government a heavy burden consent, then neither should it be subject to the
to show justification for the imposition of such government’s subsequent chastisement.
restraint. [New York v. United States (1971)]
(2)There need not be total suppression. Even restriction of Examples of Valid Subsequent Restraints:
circulation constitutes censorship. [Grosjean v. (1) Libel. Every defamatory imputation is presumed to be
American Press Co., 297 US 233] malicious. [Alonzo v. CA (1995)]
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Report of official conduct is privileged and covered by press SC ruled that for his act to be contemptuous, the danger
freedom must cause a serious imminent threat to the
Where the defamation is alleged to have been directed at a administration of justice. Itcannot be inferred that such act
group/class, it is essential that the statement must be so has "a dangerous tendency" to belittle the court or
sweeping or all-embracing as to apply to every individual undermine the administration of justice for the writer
in that group or class, or sufficiently specific so that each merely exercised his constitutional right to petition the
individual in the class or group can prove that the government for redress of a legitimate grievance.
defamatory statement specifically pointed to him, so that [Cabansag v. Fernandez (1957)]
he can bring the action separately, if need be. [Newsweek v.
IAC (1986)] Freedom of Expression and Obscenity
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parade may pass or the meeting may be held. [Primicias v. association, or group of persons concerned, be declared as
Fugoso (1948)] a terrorist and outlawed organization, association, or
group of persons by the said Regional Trial Court. [Sec. 17,
Absent any clear and present danger of a substantive evil, Human Security Act]
peaceable assembly in public places like streets or parks
cannot be denied. [J.B.L. Reyes v. Bagatsing (1983)] The right to associate is not absolute. [People v. Ferrer
(1972)]
The Calibrated Pre-emptive Response (CPR), insofar as it
would purport to differ from or be in lieu of maximum The right to self-organization shall not be denied to
tolerance, is NULL and VOID.
government employees. [Art. IX-B, Sec. 2(5)]
CPR serves no valid purpose if it means the same thing as
maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if The right of the people, including those employed in the
it means something else. Accordingly, what is to be public and private sectors, to form unions, associations, or
followed is and should be that mandated by the law itself, societies for purposes not contrary to law shall not be
namely, maximum tolerance. abridged. [Art. III, Sec. 8]
B.P. 880 not unconstitutional It shall guarantee the rights of all workers to self-
B.P. No. 880 is not an absolute ban of public assemblies organization, collective bargaining and negotiations, and
but a restriction that simply regulates the time, place and peaceful concerted activities, including the right to strike in
manner of the assemblies. The law is not vague or accordance with law. They shall be entitled to security of
overbroad. There is, likewise, no prior restraint, since the tenure, humane conditions of work, and a living wage.
content of the speech is not relevant to the regulation. A They shall also participate in policy and decision-making
fair and impartial reading of B.P. No. 880 thus readily processes affecting their rights and benefits as may be
shows that it refers to all kinds of public assemblies that provided by law. [Art. XIII, Sec. 3(2), par. 2]
would use public places.
FACIAL CHALLENGES AND THE OVERBREADTH
Freedom Parks
DOCTRINE
B.P. 880 provides that every city and municipality must set
aside a freedom park within six months from the law’s
General Rule: A party can question the validity of a statute
effectivity in 1985. Section 15 of the law provides for an
only if, as applied to him, it is unconstitutional.
alternative forum through the creation of freedom parks
where no prior permit is needed for peaceful assembly and
Exception: Facial Challenges
petition at any time. Without such alternative forum, to
deny the permit would in effect be to deny the right to
FACIAL CHALLENGES
peaceably assemble.
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of possible
Permit Application
“chilling effect” upon protected speech. The theory is that
There is a need to address the situation adverted to by
“[w]hen statutes regulate or proscribe speech and no
petitioners where mayors do not act on applications for a
readily apparent construction suggests itself as a vehicle
permit and when the police demand a permit and the
for rehabilitating the statutes in a single prosecution, the
rallyists could not produce one, the rally is immediately
transcendent value to all society of constitutionally
dispersed.
protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the
In such a situation, as a necessary consequence and part of
person making the attack demonstrate that his own
maximum tolerance, rallyists who can show the police an
conduct could not be regulated by a statute drawn with
application duly filed on a given date can, after two (2)
narrow specificity.”
days from said date, rally in accordance with their
application without the need to show a permit, the grant of
The possible harm to society in permitting some
the permit being then presumed under the law, and it will
unprotected speech to go unpunished is outweighed by
be the burden of the authorities to show that there has
the possibility that the protected speech of others may be
been a denial of the application, in which case the rally
deterred and perceived grievances left to fester because of
may be peacefully dispersed following the procedure of
possible inhibitory effects of overly broad statutes.
maximum tolerance prescribed by the law. [Bayan v.
Ermita (2006)]
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
Freedom of Association and Self-Organization
their very existence, and, if facial challenge is allowed for
Proscription of Terrorist Organizations, Association, or Group this reason alone, the State may well be prevented from
of Persons. – Any organization, association, or group of enacting laws against socially harmful conduct. In the area
persons organized for the purpose of engaging in of criminal law, the law cannot take chances as in the area
terrorism, or which, although not organized for that of free speech.[Concurring Opinion of Justice Mendoza in
purpose, actually uses the acts to terrorize mentioned in Estrada v. Sandiganbayan (2001)]
this Act or to sow and create a condition of widespread and
extraordinary fear and panic among the populace in order OVERBREADTH DOCTRINE
to coerce the government to give in to an unlawful demand A governmental purpose may not be achieved by means
shall, upon application of the Department of Justice before which sweep unnecessarily broadly and thereby invade the
a competent Regional Trial Court, with due notice and area of protected freedoms.
opportunity to be heard given to the organization,
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A plain reading of PP 1017 shows that it is not primarily necessary to avoid the danger." In this case, an attempt to
directed to speech, rather it covers a spectrum of conduct. overthrow the Government by force is a sufficient evil for
It is a call upon the AFP to prevent or suppress all forms of Congress to prevent. It is the existence of the conspiracy
lawless violence. Facial challenge on the ground of which creates the danger. [Dennis v. US (1951)]
overbreadth is a very strong medicine. Petitioners did not
show that there is no instance when PP1017 may be valid. MILLER TEST (CCA-SL)
[David vs. Arroyo (2006)] To determine obscenity:
(1) Whether the average person, applying Contemporary
TESTS Community standards would find that the work, taken
DANGEROUS TENDENCY TEST as a whole, Appeals to prurient interest
If the words uttered create a dangerous tendency of an evil (2) Whether the work depicts or describes in a patently
which the State has the right to prevent, then such words offensive way, sexual conduct Specifically defined by
are punishable. [Cabansag v. Fernandez (1957)] the applicable state law
(3) Whether the work, taken as a whole, Lacks serious,
It is sufficient if the natural tendency and the probable literary, artistic, political, or scientific value [Miller v. CA
effect of the utterance were to bring about the substantive (1973) also applied in Fernando v. CA (2006)]
evil that the legislative body seeks to prevent. [People v.
Perez(1956)] O’ BRIEN TEST (C-GUN)
To determine whether Content- Based or Content-
CLEAR AND PRESENT DANGER TEST Neutral:
The question in every case is whether the words used are (1) If it is within the Constitutional power of the
used in such circumstances and are of such a nature as to Government
create a clear and present danger that they will bring (2) If it furthers an important or substantial Government
about the substantive evils that Congress has a right to interest
prevent. It is a question of proximity and degree. [Schenck (3) If the Government interest is Unrelated to the
v. United States (1919)] suppression of free expression
(4) If the incidental restriction is No greater than is
This rule requires that “the danger created must not only essential to the furtherance of that interest
be clear and present but also traceable to the ideas
expressed”. [Gonzales v. COMELEC (1969)] COMELEC banned the publication of surveys 15 and 7 days
prior to election concerning national and local candidates,
Note: This test has been adopted by the Philippine SC lock, respectively. The SC held that this regulation is content-
stock and barrel and is the test most applied to cases re: based because applying the 3rd prong of the O-Brien Test,
freedom of expression. it actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same
BALANCING OF INTEREST TEST subject matter by other opinion takers. The prohibition
When a particular conduct is regulated in the interest of may be for a limited time, but the curtailment of the right
public order, and the regulation results in an indirect, of expression is direct, absolute, and substantial. [SWS v.
conditional and partial abridgement of speech, the duty of COMELEC (2001)]
the courts is to determine which of the two conflicting
interests demands greater protection. [American STATE REGULATION OF DIFFERENT TYPES OF MASS
Communications Assoc. v. Douds, 339 US 282] MEDIA
(1) The ownership and management of mass media shall
The test is applied when two legitimate values not
be limited to citizens of the Philippines, or to corporations,
involving national security crimes compete.[Gonzales v.
cooperatives or associations, wholly-owned and managed
COMELEC (1969)]
by such citizens.
DIRECT INCITEMENT TEST
The Congress shall regulate or prohibit monopolies in
The constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy commercial mass media when the public interest so
requires. No combinations in restraint of trade or unfair
of the use of force or of law violation except where such
competition therein shall be allowed.
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.
(2) The advertising industry is impressed with public
[Brandenburg v. Ohio (395 U.S. 444)]
interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare.
Political discussion even among those opposed to the
present administration is within the protective clause of
freedom of speech and expression. The same cannot be Only Filipino citizens or corporations or associations at
least seventy per centum of the capital of which is owned
construed as subversive activities per se or as evidence of
by such citizens shall be allowed to engage in the
membership in a subversive organization. [Salonga v. Cruz
advertising industry.
Paño(1986)]
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The Court pronounced that the freedom of broadcast contract with these TV stations and radio stations at its
media is lesser in scope than the press because of their own expense. [UNIDO v. COMELEC (1981)]
pervasive presence in the lives of people and because of
their accessibility to children. The television camera is a powerful weapon which
intentionally or inadvertently can destroy an accused and
MOVIE CENSORSHIP his case in the eyes of the public.
When MTRCB rated the movie, “Kapit sa Patalim” as fit
“For Adults Only”, SC ruled that there was no grave abuse Considering the prejudice it poses to the defendant’s right
of discretion. to due process as well as to the fair and orderly
administration of justice, and considering further that the
Censorship is allowable only under the clearest proof of a freedom of the press and the right of the people to
clear and present danger of a substantive evil to public information may be served and satisfied by less distracting,
safety, morals, health or any other legitimate public degrading and prejudicial means, live radio and television
interest: coverage of the court proceedings shall not be allowed. No
(1) There should be no doubt what is feared may be traced video shots or photographs shall be permitted during the
to the expression complained of. trial proper.Video footages of court hearings for news
(2) Also, there must be reasonable apprehension about its purposes shall be limited and restricted. [Secretary of
imminence. It does not suffice that the danger is only Justice v. Sandiganbayan (2001)]
probable. [Gonzales v. Kalaw-Katigbak (1985)]
RADIO CENSORSHIP
Limited intrusion into a person’s privacy is permissible The SC does not uphold claim that Far Eastern had no
when that person is a public figure and the information right to require the submission of the manuscript. It is the
sought to be published is of a public character. duty of Far Eastern to require the submission of a
manuscript as a requirement in broadcasting speeches.
What is protected is the right to be free from unwarranted Besides, laws provide for such actions:
publicity, from the wrongful publicizing of the private
affairs of an individual which are outside the realm of Act 8130. Franchise for Far Eastern; radio to be open to the
public concern. [Ayer Productions v. Capulong, supra] general public but subject to regulations
TELEVISION CENSORSHIP Comm. Act 98. Sec. of Interior and/or the Radio Board is
P.D. 1986 gave MTRCB the power to screen, review and empowered to censor what is considered “neither moral,
examine all television programs. educational or entertaining, and prejudicial to public
interest.” The Board can forfeit the license of a
By the clear terms of the law, the Board has the power to broadcasting station.
“approve, delete, or prohibit the exhibition and/or
television broadcasts of television programs. The law also Sec. of the Interior, Dept. Order 13. Requires submission of
directs the Board to apply contemporary Filipino culture daily reports to Sec. of Interior/Radio Board re: programs
values as standard to determine those which are before airing. For speeches, a manuscript or short gist
objectionable for being immoral, indecent, contrary to law must be submitted. [Santiago v. Far Eastern Broadcasting
and/or good customs injurious to the prestige of the (1941)]
Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of a Strict rules have also been allowed for radio because of its
violence or of a wrong or a crime. pervasive quality and because of the interest in the
protection of children. [FCC v. Pacifica Foundation (1978)]
The law gives the Board the power to screen, review and
examine ALL “television programs” whether religious, COMMERCIAL SPEECH
public affairs, news documentary, etc. (Ubilex non Commercial speech is unprotected speech. Commercial
distinguit nec distinguere de bemos-when the law does not advertising in the U.S. has been accorded First
make any exception, courts may not except something Amendment protection but not in the same level of
therefrom). [Iglesia ni Cristo v. CA (1996)] protection given to political speech. One case set down the
requirements for protection of commercial speech:
Also, notwithstanding the fact that freedom of religion has (1) speech must not be false, misleading or proposing an
been accorded a preferred status, Iglesiani Cristo’s illegal activity;
program is still not exempt from MTRCB’s power to review. (2) government interest sought to be served by regulation
Freedom of expression and of the press has not been must be substantial;
declared of preferred status. [MTRCB v. ABS-CBN (2005)] (3) the regulation must advance government interest; and
(4) the regulation must not be overbroad. [Bernas]
On the program of Dating Daan, Soriano made crude
remarks like “lihitimong anak ng demonyo, sinungaling, PRIVATE V. GOVERNMENT SPEECH
etc.” MTRCB preventively suspended him and his show. Parliamentary immunity guarantees the members the
SC held that the State has a compelling interest to protect freedom of expression without fear of being made
the minds of the children who are exposed to such responsible in criminal or civil actions before courts or
materials. [Soriano v. Laguardia (2009)] forum outside of Congress. But this does not protect them
from responsibility from the legislative body. The members
The SC could not compel TV stations and radio stations, may nevertheless be questioned in Congress itself.
being indispensable parties, to give UNIDO free air time as
they were not impleaded in this case. UNIDO must seek a For unparliamentary conduct, members of the Congress
have been, or could be censured, committed to prison,
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even expelled by the votes of their colleagues. [Osmeña v. charitable, or educational purposes shall be exempt from
Pendatun (1960)] taxation. [Art. VI, Sec. 28 (3)]
Freedom of Religion The government promotes the full growth of the faculties
of every child. For this purpose, the government will
establish, whenever possible:
No law shall be made respecting an establishment of (1) Schools in every barrio, municipality and city where
religion; or prohibiting the free exercise thereof. The free optional religious instruction shall be taught as part of
exercise and enjoyment of religious profession and the curriculum at the option of the parent or guardian.
worship, without discrimination or preference, shall forever xxx [Art. 359, Civil Code]
be allowed. No religious test shall be required for the
exercise of civil or political rights. [Art. III, Sec. 5] (4) Public aid to religion
No public money or property shall be appropriated,
NON-ESTABLISHMENT CLAUSE applied, paid, or employed, directly or indirectly, for the
CONCEPT use, benefit, or support of any sect, church, denomination,
The clause prohibits excessive government entanglement sectarian institution, or system of religion, or of any priest,
with, endorsement or disapproval of religion [Victoriano v. preacher, minister, other religious teacher, or dignitary as
Elizalde Rope Workers Union (1974); Lynch v. Donnelly, 465 such, except when such priest, preacher, minister, or
US 668 (1984) O'Connor, J., concurring); Allegheny County v. dignitary is assigned to the armed forces, or to any penal
Greater Pittsburg ACLU (1989)] institution, or government orphanage or leprosarium.[Art. VI,
Sec. 29(2)]
BASIS
Rooted in the separation of Church and State [Sec. 2(5),
Jurisprudence
Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]
Religious activities with secular purpose/character.—
Postage stamps depicting Philippines as the site of a
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE
significant religious event – promotes Philippine tourism
(1) Prayer and Bible-reading in public schools [Engel v.
[Aglipay vs. Ruiz, (1937)]
Vitale (1967); Abington School District v. Schemp (1963)]
(2) Financial subsidy for parochial schools[Lemon vs.
Government sponsorship of town fiestas. – has secular
Kurtzman (1971)]
character [Garces vs. Estenzo (1981)]
(3) Religious displays in public spaces: Display of granite
monument of 10 commandments in front of a
Book lending program for students in parochial schools. –
courthouse is unconstitutional for being unmistakably
benefit to parents and students [Board of Education vs.
non-secular. [Glassroth vs. Moore, 335 F.3d 1282 (11th
Allen, 392 U.S. 236]
Cir. 2003)]
(4) Mandatory religious subjects or prohibition of secular
Display of crèche in a secular setting – depicts origins of
subjects (evolution) in schools [Epperson vs. Arkansas
the holiday [Lynch vs. Donnely (1984)]
(1968)]
(5) Mandatory bible reading in school (a form of preference
Financial support for secular academic facilities(i.e library
for belief over non-belief) [School District vs. Schempp
and science center) in parochial schools – has secular use
(1963)]
[Tilton vs. Richardson (403 U.S. 672)]
(6) Word “God” in the Pledge of Allegiance: religious vs
atheist students [Newdow vs. US (2003)]
Exemption from zoning requirements to accommodate
unique architectural features of religious buildings i.e
ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE
Mormon’s tall pointed steeple [Martin vs. Corporation of the
Constitutionally created
Presiding Bishop (434 Mass. 141)]
(1) Tax exemption
Charitable institutions, churches and personages or FREE EXERCISE CLAUSE
convents appurtenant thereto, mosques, non-profit DUAL ASPECT
cemeteries, and all lands, buildings, and improvements, (1) Freedom to believe - absolute
actually, directly, and exclusively used for religious, (2) Freedom to act on one’s belief – subject to regulation
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CONSCIENTIOUS OBJECTOR
Ground for exemption from compulsory military service;
LAWS AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE expanded version provides exemption even to those who
(1) Exemption from flag salute in school [Ebralinag vs. object war based on non-religious beliefs i.e. non-theist
Division Superintendent of Schools of Cebu (1993)]
(2) Freedom to propagate religious doctrines Criteria:
The power to tax the exercise of the privilege is the (1) There must be belief in God or a parallel belief
power to control or suppress its enjoyment [American occupying a central place in the believer’s life
Bible Society vs. City of Manila (1957)] (2) Religion must involve a moral code transcending
(3) Exemption from union shop individual belief; cannot be purely subjective
Congress acted merely to relieve persons of the burden (3) Demonstrable sincerity in belief must be shown, but
imposed by union security agreements. court cannot inquire into its truth or reasonableness
(4) Non-disqualification of religious leaders from local [United States v. Seeger, 380 U.S. 163 (1965)]
government office [Pamil v. Teleron (1978)] (4) There must be some associational ties. [Estrada v.
Escritor (2003)]
Dean Pangalangan: There should be no distinction
between ordinary believer and the Pope; if the former can
hold office, why not the latter.
(5) Working hours from 7:30am to 3:30pm without break Liberty of Abode and
during Ramadan [Re: Request of Muslim Employees in
the Different Courts of Iligan City (2005)] Freedom of Movement
(6) Exemption from administrative charge on immorality The liberty of abode and of changing the same within the
Cohabiting with a married man with church sanction limits prescribed by law shall not be impaired except upon
evidenced by a document of “Declaration of Pledging lawful order of the court. Neither shall the right to travel be
Faithfulness” [Estrada v. Escritor (2003)] impaired except in the interest of national security, public
safety or public health, as may be provided by law. [Art. III,
BENEVOLENT NEUTRALITY DOCTRINE Sec. 6]
Gives room for accommodating religion, holding that the
wall is instead meant to protect the church from the state.
"Liberty" as understood in democracies, is not license; it is
It allows interaction between the church and state, but is "Liberty regulated by law."
strict re: state action, which would threaten the integrity of
religious commitment.
LIMITATIONS
WHO MAY IMPAIR AND WHEN RIGHTS MAY BE CURTAILED
The breach in the wall between church and state is
Liberty of abode
allowed in order to uphold religious liberty, which is the Who: courts (lawful order)
integral purpose of the religion clauses. The purpose of When:within limits prescribed by law
accommodation is to remove the burden on a person’s
exercise of his religion. The executive of a municipality does not have the right to
force citizens of the Philippine Islands to change their
Although morality contemplated in laws is secular,
domicile from one locality to another. [Villavicencio vs.
benevolent neutrality could allow for accommodation of Lukban (1919)]
morality based on religion, provided it does not offend
compelling state interests. [Estrada v. Escritor (2003)] Right to travel
Who: courts (lawful order) or by the appropriate executive
TESTS
officer.
CLEAR AND PRESENT DANGER
Used for religious speech
When: in the interest of national security (Human Security
Act), public safety or public health (quarantine)
In orderto justify restraint the court must determine
whether the expression presets a clear and present danger
Relocation of Manguinaes, a nomadic people, is a proper
ofany substantive evil, which the state has a right restraint to their liberty. It is for their advancement in
toprevent. [American Bible Society v City of Manila (1957) civilization and so that material prosperity may be assured.
citing Tañada and Fernando on the Constitution of the
[Rubi vs. Provincial Board (1919)]
Philippines, Vol. 1, 4th ed., p. 297]
Restraint on right to travel of accused on bail is allowed to
BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST
avoid the possibility of losing jurisdiction if accused travels
Under the Benevolent Neutrality doctrine, this is the proper abroad. [Manotok vs. CA (1986)]
test where conduct arising from religious belief is involved.
(1) Has the gov’t action created a burden on the free RIGHT TO TRAVEL
exercise? Court must look into sincerity (but not truth) WATCH LIST ORDER
of belief.
Issued against accused in criminal cases (irrespective of
(2) Is there a compelling state interest to justify the nationality in RTC or below), any person with pending case
infringement?
in DOJ
(3) Are the means to achieve the legitimate state objective
the least intrusive? [Escritor, supra]
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Scope: All statutes [includes those of local application and The limitations recognized to the right of information are:
private laws], presidential decreesand executive orders by (1) National security matter including state secrets
President acting under power either directly conferred by regarding military and diplomatic matters, inter-
the Constitution or validly delegated by the legislature, government exchanges prior to the conclusion of
and administrative rules and regulations for implanting treaties and executive agreements.
existing laws, charter of a city, circulars by Monetary Board (2) Trade secrets and banking transactions
Internal regulations and letter of instructions concerning (3) Criminal Matters
guidelines for subordinates and not the public are not (4) Other confidential matters. [Neri v. Senate (2008) citing
included Chavez v. President Commission on Good Government]
Effectivity: Fifteen days after publication unless a different DIPLOMATIC NEGOTIATIONS
effectivity date is fixed by the legislature [Tañada v. Tuvera Diplomatic secrets (Diplomatic Negotiations Privilege):
(1986)] Secrecy of negotiations with foreign countries is not
violative of the right to information. Diplomacy has a
ACCESS TO COURT RECORDS confidential nature. While the full text [of the JPEPA] may
SECTION 1. Court personnel shall not disclose to any not be kept perpetually confidential, it is in line with the
unauthorized person any confidential information acquired public interest that the offers exchanged during
by them while employed in the judiciary, whether such negotiations continue to be privileged information.
information came from authorized or unauthorized Furthermore, the information sought includes docs
sources. produced and communicated by a party external to the
PHL gov’t. However, such privilege is merely presumptive,
Confidential information means information not yet made and will not apply to all cases. [Akbayan v. Aquino (2008)]
a matter of public record relating to pending cases, as well
as information not yet made public concerning the work of COURT HEARINGS
any justice or judge relating to pending cases, including Right of accused over right to public information:
notes, drafts, research papers, internal discussions, With the possibility of losing not only the precious liberty
internal memoranda, records of internal deliberations and but also the very life of an accused, it behooves all to make
similar papers. absolutely certain that an accused receives a verdict solely
on the basis of a just and dispassionate judgment, a verdict
The notes, drafts, research papers, internal discussions, that would come only after the presentation of credible
internal memoranda, records of internal deliberations and evidence testified to by unbiased witnesses unswayed by
similar papers that a justice or judge uses in preparing a any kind of pressure, whether open or subtle, in
decision, resolution or order shall remain confidential even proceedings that are devoid of histrionics that might
after the decision, resolution or order is made public. detract from its basic aim to ferret veritable facts free from
[Canon II Confidentiality Code of Conduct for Court improper influence, and decreed by a judge with an
Personnel (AM No. 03-06-13-SC)] unprejudiced mind unbridled by running emotions or
passions. [Re: Request for Live Radio-TV Coverage of the
Decisions are matters of public concern and interest. Trial in the Sandiganbayan of the Plunder Cases against
former President Joseph Ejercito Estrada, Secretary of Justice
Pleadings and other documents filed by parties to a case Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-
need not be matters of public concern or interest. They are 03-SC, June 29, 2001]
filed for the purpose of establishing the basis upon which
the court may issue an order or a judgment affecting their
rights and interest.
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expropriated per current tax declaration. [Biglang-Awa v. (4) Property must be devoted to public use or otherwise
Judge Bacalla (2000); Bardillon v. Barangay Masili of informally appropriated or injuriously affected
Calamba, Laguna (2003)] (5) Utilization of the property must be in such a way as to
oust the owner and deprive him of beneficial enjoyment
SCOPE AND LIMITATIONS of the property. [Republic v. Castellvi (1974)]
All Private Property capable of ownership may be
expropriated, except money and choses in action. Even DUE PROCESS
services may be subject to eminent domain. [Republic v. Hearing or procedure for determination of propriety of the
PLDT (1969)] expropriation or the reasonableness of the compensation
must be provided. [Belen v. CA (1991)]
Exercise of right to eminent domain is strictly construed
against the State or its agent because such right is EXPANSIVE CONCEPT OF “PUBLIC USE”
necessarily in derogation of private rights. [Jesus is Lord The idea that "public use" means "use by the public" has
Christian School Foundation v. Municipality of Pasig (2005)] been discarded. At present, whatever may be beneficially
employed for the general welfare satisfies the requirement
NECESSITY of public use. [Heirs of Juancho Ardona vs. Reyes (1983)]
The foundation of the right to exercise eminent domain is
genuine necessity and that necessity must be of public That only a few benefits from the expropriation does not
character. Government may not capriciously or arbitrarily diminish its public-use character, inasmuch as pubic use
choose which private property should be expropriated. now includes the broader notion of indirect public benefit or
[Lagcao v. Judge Labra (2004)] advantage [Filstream International vs. CA (1998)]
Congress - political question Private bus firms, taxicab fleets, roadside restaurants, and
other private businesses using public streets and highways
Delegate do not diminish in the least bit the public character of
(a) Grant of special authority for special purpose- political expropriations for roads and streets. The lease of store
question spaces in underpasses of streets built on expropriated land
(b) Grant of general authority- justiciable question [City of does not make the taking for a private purpose. Airports
Manila v. Chinese Community of Manila (1919)] and piers catering exclusively to private airlines and
shipping companies are still for public use. The
When the power is exercised by the legislature, the expropriation of private land for slum clearance and urban
question of necessity is generally a political question. development is for a public purpose even if the developed
[Municipality of Meycauyan, Bulacan v. Intermediate area is later sold to private homeowners, commercial firms,
Appellate Court (1988)] entertainment and service companies, and other private
concerns. [Heirs of Ardona vs. Reyes (1983)]
The RTC has the power to inquire into the legality of the
exercise of the right of eminent domain and to determine JUST COMPENSATION
whether there is a genuine necessity for it. [Bardillon v. It is the just and complete equivalent of the loss which the
Barangay Masili of Calamba, Laguna (2003)] owner of the thing expropriated has to suffer by reason of
the expropriation.
PRIVATE PROPERTY
Private property already devoted to public use cannot be Full and fair equivalent of the property taken; it is the fair
expropriated by a delegate of legislature acting under a market value of the property. [Province of Tayabas vs. Perez
general grant of authority. [City of Manila v. Chinese (1938)]
Community (1919)]
DETERMINATION
Generally, all private property capable of ownership may Basis:
be expropriated, except money and chooses in action. Fair Market Value
[Republic v. PLDT (1969)] Price fixed by a buyer desirous but not compelled to buy
and a seller willing but not compelled to sell.
A chose in action is a proprietary right in personam, such as
debts owned by another person, a share in a joint-stock Must includeconsequential damages (damages to other
company, or a claim for damages in tort; it is the right to interest of the owner attributable to the expropriation) and
bring an action to recover a debt, money or thing [Black’s deduct consequential benefits (increase of value of other
Law Dictionary] interests attributable to new use of the former property).
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Presidential Decrees merely serve as guide/factors for the beneficiary. [Sta. Rosa Realty & Development Corp. v. Court
courts in determining just compensation [EPZA vs. Dulay, of Appeals (2001)]
148 SCRA 305]
Private property shall not be taken for public use without
Findings of court appointed commissioners regarding the just compensation. [Art. III, Sec. 9]
determination of just compensation are not binding to
courts [Republic v. Santos (1986); Republic (MECS) v. IAC
(1990)] The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon
The court may substitute its own estimate of the value of payment of just compensation, transfer to public
the property only for valid reasons: (a) the commissioners ownership utilities and other private enterprises to be
have applied illegal principles to the evidence submitted to operated by the government. [Art. XII, Sec. 18]
them; (b) they have disregarded a clear preponderance of
evidence; or (c) where the amount allowed is either grossly The State shall, by law, undertake an agrarian reform
inadequate or excessive. [National Power Corporation v. De program founded on the right of farmers and regular
la Cruz (2007)] farmworkers who are landless, to own directly or collectively
the lands they till or, in the case of other farmworkers, to
When determined receive a just share of the fruits thereof.
General: At the time of the filing of the case
To this end, the State shall encourage and undertake the
Exception: If the value of the property increased because of just distribution of all agricultural lands, subject to such
the use to which the expropriator has put it, the value is priorities and reasonable retention limits as the Congress
that of the time of the taking. [NAPOCOR v. CA (1996)] may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the
Legal interest: 6%, time when payment is due to actual payment of just compensation.
payment
In determining retention limits, the State shall respect the
EFFECT OF DELAY right of small landowners. The State shall further provide
Just compensation means not only the correct amount to incentives for voluntary land-sharing. [Art. XIII, Sec. 4]
be paid to the owner of the land but also payment within a
reasonable time from its taking [Eslaban v. De Onorio
(2001)] The State shall, by law, and for the common good,
undertake, in cooperation with the private sector, a
General rule on delay of payment: continuing program of urban land reform and housing
For non-payement, the remedy is the demand of payment which will make available at affordable cost, decent housing
of the fair market value of the property and not the and basic services to under-privileged and homeless citizens
recovery of possession of the expropriated lots. [Republic of in urban centers and resettlement areas.
the Philippines v. Court of Appeals (2002); Reyes v. National
Housing Authority (2003)] It shall also promote adequate employment opportunities
to such citizens. In the implementation of such program
Exception: the State shall respect the rights of small property owners.
When the government fails to pay just compensation [Art. XIII, Sec. 9]
within five years from the finality of the judgment in the
expropriation proceedings, the owners concerned shall The National assembly may authorize, upon payment of
have the right to recover possession of their property. just compensation, the expropriation of private lands to be
[Republic of the Philippines v. Vicente Lim (2005)] subdivided into small lots and conveyed at cost to
deserving citizens. [Art. XIV, Sec. 13]
ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
If the expropriator (government) does not use the property
for a public purpose, the property reverts to the owner in fee
simple. [Heirs of Moreno vs. Mactan-Cebu International Contracts Clause
Airport (2005)]
No law impairing the obligation of contracts shall be
MISCELLANEOUS APPLICATION
passed. [Art. III, Sec. 10]
“TAKING” UNDER SOCIAL JUSTICE CLAUSE
Agrarian Reform (Art. XIII, Sec. 4):This provision is an
exercise of the police power of the State through eminent APPLICATION OF THE CONTRACT CLAUSE
domain (Association of Small Landowners vs. Secretary of Impairment is anything that diminishes the efficacy of the
Agrarian Reform) as it is a means to regulate private contract. [Clements v. Nolting (1922)]
property.
REQUISITES:
Retention limits prescribed by the Comprehensive (1) Substantial impairment
Agrarian Reform Law is also form of taking under the (a) change the terms of legal contract either in time or
power of eminent domain. The taking contemplated is not mode of performance
a mere limitation on the use of the land, but the surrender (b) impose new conditions
of the title to and physical possession of the excess and all (c) dispenses with expressed conditions
beneficial rights accruing to the owner in favor of the (d) authorizes for its satisfaction something different from
that provided in the terms
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(2) Affects rights of parties with reference to each other, and three thousand (P3,000.00) pesos a month if residing
and not with respect to non-parties. [Philippine Rural outside Metro Manila, and (b) who do not own real
Electric Cooperatives Association v. Secretary, DILG property with an assessed value of more than fifty
(2003)] thousand (P50,000.00) pesos shall be exempt from the
payment of legal fees.
CONTEMPORARY APPLICATION OF THE CONTRACT
CLAUSE The legal fees shall be a lien on any judgment rendered in
WHEN NON-IMPAIRMENT CLAUSE PREVAILS: the case favorably to the indigent litigant, unless the court
(1) against power of taxation otherwise provides.
(2) regulation on loans
To be entitled to the exemption herein provided, the
New regulations on loans making redemption of property litigant shall execute an affidavit that he and his
sold on foreclosure stricter are not allowed to apply immediate family do not earn a gross income
retroactively. [Co v. Philippine National Bank (1982)] abovementioned, nor they own any real property with the
assessed value aforementioned, supported by an affidavit
WHEN NON-IMPAIRMENT CLAUSE YIELDS: of a disinterested person attesting to the truth of the
(1) Invalid exercise of police power i.e zoning regulation litigant's affidavit.
[Presley v. Bel-Air Village Association (1991)], premature
campaign ban [Chavez v. COMELEC (2004)], liquidation Any falsity in the affidavit of a litigant or disinterested
of a chartered bank [Philippine Veterans Bank person shall be sufficient cause to strike out the pleading
Employees Union v. Philippine Veterans Bank (1990)] of that party, without prejudice to whatever criminal
(2) Statute that exempts a party from any one class of liability may have been incurred. [Rule 141, Sec. 18, Rules of
taxes Court]
(3) Against freedom of religion [Victoriano v. Elizalde Rope
Workers (1974)] Indigent party. — A party may be authorized to litigate his
(4) Judicial or quasi-judicial order action, claim or defense as an indigent if the court, upon an
ex parte application and hearing, is satisfied that the party
The non-impairment clause is a limit on legislative power, is one who has no money or property sufficient and
and not of judicial or quasi-judicial power. The approval of available for food, shelter and basic necessities for himself
the Rehabilitation Plan by the Securities and Exchange and his family.
Commission is an exercise of adjudicatory power by an
administrative agency and thus the non-impairment Such authority shall include an exemption from payment
clause does not apply. Neither does it impair the power to of docket and other lawful fees, and of transcripts of
contract. [BPI v. SEC (2007)] stenographic notes which the court may order to be
furnished him. The amount of the docket and other lawful
Note:Timber licenses, permits, and license agreements are fees which the indigent was exempted from paying shall
the principal instruments by which the State regulates the be a lien on any judgment rendered in the case favorable
utilization and disposition of forest resources to the end to the indigent, unless the court otherwise provides.
that public welfare is promoted. They are not deemed
contracts within the purview of the due process of law Any adverse party may contest the grant of such authority
clause. [Oposa v. Factoran (1993)]
at any time before judgment is rendered by the trial court.
If the court should determine after hearing that the party
LIMITATIONS declared as an indigent is in fact a person with sufficient
It is ingrained in jurisprudence that the constitutional
income or property, the proper docket and other lawful
prohibition does not prohibit every change in existing laws. fees shall be assessed and collected by the clerk of court.
To fall within the prohibition, the change must not only If the payment is not made within the time fixed by the
impair the obligation of the existing contract, but the
court, execution shall issue or the payment thereof,
impairment must be substantial. Moreover, the law must without prejudice to such other sanctions as the court may
effect a change in the rights of the parties with reference to
impose. [Rule 3, Sec. 21, Rules of Court]
each other, and not with respect to non-parties. [Philippine
Rural Electric Cooperatives Association v. Secretary, DILG
(2003)] RA NO. 9999
FREE LEGAL ASSISTANCE ACT OF 2010
Legal services- any activity which requires the application of
law, legal procedure, knowledge, training and experiences
which shall include, among others, legal advice and
Legal Assistance and Free counsel, and the preparation of instruments and contracts,
including appearance before the administrative and quasi-
Access to Courts judicial offices, bodies and tribunals handling cases in
court, and other similar services as may be defined by the
Supreme Court.
Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
person by reason of poverty. [Art. III, Sec. 11] Section 4. Requirements for Availment. - For purposes of
availing of the benefits and services as envisioned in this
Act, a lawyer or professional partnership shall secure a
SEC. 18. Indigent litigants exempt from payment of legal certification from the Public Attorney's Office (PAO), the
fees.—Indigent litigants (a) whose gross income and that of Department of Justice (DOJ) or accredited association of
their immediate family do not exceed four thousand the Supreme Court indicating that the said legal services
(P4,000.00) pesos a month if residing in Metro Manila, to be provided are within the services defined by the
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Supreme Court, and that the agencies cannot provide the (1) He has a right to remain silent;
legal services to be provided by the private counsel. (2) That any statement he makes may be used as evidence
against him; and
For purpose of determining the number of hours actually (3) That he has a right to the presence of an attorney,
provided by the lawyer and/or professional firm in the either retained or appointed.
provision of legal services, the association and/or
organization duly accredited by the Supreme Court shall RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL
issue the necessary certification that said legal services INVESTIGATION
were actually undertaken. Section 1. Statement of Policy. - It is the policy of the Senate
to value the dignity of every human being and guarantee
Section 5. Incentives to Lawyers. - For purposes of this Act, full respect for human rights
a lawyer or professional partnerships rendering actual free
legal services, as defined by the Supreme Court, shall be Section 2. Rights of Persons Arrested, Detained or Under
entitled to an allowable deduction from the gross income, Custodial Investigation; Duties of Public Officers. –
the amount that could have been collected for the actual free Any public officer or employee, or anyone acting under his
legal services rendered or up to ten percent (10%) of the gross order or his place, who arrests, detains or investigates any
income derived from the actual performance of the legal person for the commission of an offense:
profession, whichever is lower: Provided, That the actual (1) shall inform the latter, in a language known to and
free legal services herein contemplated shall be exclusive understood by him,
of the minimumsixty (60)-hour mandatory legal aid services (2) of his rights to remain silentand
rendered to indigent litigants as required under the Rule (3) to have competent and independent counsel,
on Mandatory Legal Aid Services for Practicing Lawyers, preferably of his own choice,
under BAR Matter No. 2012, issued by the Supreme Court. (4) who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial
Note: The significance of having an explicit “free access” investigation.
provisions in the Constitution may be gathered from the (5) If such person cannot afford the services of his own
rocky road which “free access” seems to have traveled in counsel, he must be provided with a competent and
American jurisprudence. The American constitution does independent counsel by the investigating officer.
not have an explicit free access provision and, hence, its
free access doctrine has been developed as implicit from AVAILABILITY
both the equal protection clause and the due process (1) When the person is already under custodial
clause. [Bernas] investigation
(2) Custodial investigation involves any questioning
initiated by law enforcement
(3) During “critical pre-trial stages” in the criminal process
Rights of Suspects CUSTODIAL INVESTIGATION
Involves any questioning initiated by law enforcement
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right When the investigation is no longer a general inquiry unto
to remain silent and to have competent and an unsolved crime but has begun to focus on a particular
independent counsel preferably of his own choice. If suspect, as when the suspect has been taken into police
the person cannot afford the services of counsel, he custody and the police carries out a process of
must be provided with one. These rights cannot be interrogation that lends itself to eliciting incriminating
waived except in writing and in the presence of statements. [People vs. Mara (1994)]
counsel.
(2) No torture, force, violence, threat, intimidation, or any Includes issuing an invitation to a person under
other means which vitiate the free will shall be used investigationin connection with an offense he is suspected
against him. Secret detention places, solitary, to have committed. [Sec. 2, RA 7438]
incommunicado, or other similar forms of detention are
prohibited. CRITICAL PRE-TRIAL STAGE
(3) Any confession or admission obtained in violation of Any critical confrontation by the prosecution at pretrial
this or Section 17 hereof shall be inadmissible in proceedingswhere the results might well determine his
evidence against him. fate andwhere the absence of counsel might derogate
(4) The law shall provide for penal and civil sanctions for from his right to a fair trial. [U.S. vs. Wade (1967)]
violations of this section as well as compensation to the
rehabilitation of victims of torture or similar practices, SHOW - UP AND POLICE LINE-UP
and their families. [Art. III, Sec. 12] General: No right to counsel
In Miranda v. Arizona: The Federal Supreme Court made it Out-of-court identification like a “show up” (accused is
clear that what is prohibited is the "incommunicado brought face to face with the witness for identification), or
interrogation of individuals in a police dominated “police line-up” (suspect is identified by witness from a
atmosphere, resulting in self- incriminating statements group of persons gathered for that purpose)
without full warnings of constitutional rights.”
Exception: Right to counsel if accusatory
MIRANDA RIGHTS
The person under custodial investigation must be warned The moment there is a move or even an urge of said
that: investigators to elicit admissions or confessions or even
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RIGHT AGAINST SELF-INCRIMINATION UNDER ART. III, SEC. 12 (1) Must be in writing
The warning of the right to remain silent must be (2) Made in the presence of counsel [Art. III, Sec. 12]
accompanied by the explanation that anything said can
and will be used against the individual in court. RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
Section 2. Rights of Persons Arrested, Detained or Under
This warning is needed in order to make him aware not Custodial Investigation; Duties of Public Officers. –
only of the privilege to remain silent, but also of the (e) Any waiver by a person arrested or detained under the
consequences of forgoing it. provisions of Article 125 of the Revised Penal Code, or
under custodial investigation, shall be in writing and
RIGHT TO COUNSEL signed by such person in the presence of his counsel;
Rights of Persons Arrested, Detained or Under Custodial otherwise the waiver shall be null and void and of no
Investigation; Duties of Public Officers. – effect.
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel; BURDEN OF PROVING VOLUNTARINESS OF WAIVER [PEOPLE V.
otherwise the waiver shall be null and void and of no JARA, 1986]
effect. [RA 7438, Rights of Persons under Custodial Presumption against the waiver
Investigation; Section 2.] Burden of proof: prosecution
prosecution must prove with strongly convincing evidence to
Essence: when a counsel is engaged by anyone acting on the satisfaction of this Court that indeed the accused:
behalf of the person under investigation, or appointed by (1) Willingly and voluntarily submitted his confession and
the court upon petition by said person or by someone on (2) Knowingly and deliberately manifested that he was not
his behalf. [People v. Espiritu (1999)] interested in having a lawyer assist him during the
taking of that confession.
Competent and independent counsel preferably of the
suspects own choice
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Rights of the Accused (h) To have speedy, impartial and public trial.
(d) To testify as a witness in his own behalf but subject to BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION
cross-examination on matters covered by direct Matter of right Matter of Discretion
examination. His silence shall not in any manner
prejudice him. Bail is a matter of (1) In case the evidence of guilt is
right in all cases not strong. In such a case,
(e) To be exempt from being compelled to be a witness punishable by according to People v. San
against himself. reclusion perpetua. Diego (1966), the court's
discretion to grant bail must be
(f) To confront and cross-examine the witnesses against exercised in the light of a
him at the trial. Either party may utilize as part of its summary of the evidence
evidence the testimony of a witness who is deceased, presented by the prosecution.
out of or cannot with due diligence be found in the Thus, the order granting or
Philippines, unavailable, or otherwise unable to testify, refusing bail must contain a
given in another case or proceeding, judicial or summary of the evidence for
administrative, involving the same parties and subject the prosecution followed by the
matter, the adverse party having the opportunity to conclusion on whether or not
cross-examine him. the evidence of guilt is strong
(Note: it is not the existence of
(g) To have compulsory process issued to secure the guilt itself which is concluded
attendance of witnesses and production of other but the strength of the
evidence in his behalf. probability that guilt exists).
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(2) In extradition proceedings. The accused cannot present evidence before the
Extradition courts do not prosecution does so, even if the accused pleads guilty. It
render judgments of conviction violates the presumption of innocence. [Alejandro vs.
or acquittal so it does not Pepito (1980)]
matter WON the crimes the
accused is being extradited for The presumption of regularity (in official duties) cannot by
is punishable by reclusion itself prevail over the presumption of innocence of the
perpetua[US Gov’t. v. Judge accused. But where it is not the sole basis for conviction,
Puruganan and Mark Jimenez the presumption of regularity of performance of official
(2002)] functions may prevail over the constitutional presumption
of innocence. [People vs. Acuram (2000)]
WHEN AVAILABLE
General rule:From the very moment of arrest (which may be Equipoise Rule
before or after the filing of formal charges in court) up to Where the evidence adduced by the parties is evenly
the time of conviction by final judgment (which means balanced, the constitutional presumption of innocence
after appeal). should tilt the balance in favor of the accused. [Corpuz vs.
People (1991)]
No charge need be filed formally before one can file for
bail, so long as one is under arrest. [Heras Teehankee v. In order that circumstantial evidence may warrant
Rovica (1945)] conviction, the following requisites must concur:
(1) There is more than one circumstance
Arraignment of the accused is not essential to the approval (2) The facts from which the inferences are derived are
of the bail bond. When bail is authorized, it should be proven
granted before arraignment. Otherwise the accused may (3) The combination of all the circumstances is such as to
be precluded from filing a motion to quash. Also, the court produce conviction beyond reasonable doubt. [People
will be assured of the presence of the accused at the v. Bato (1998)]
arraignment precisely by grating bail and ordering his
presence at any stage of the proceeding. [Lavides v. CA RIGHT TO BE HEARD
(2000)] Any person under investigation for the commission of an
offense shall have the right to be informed of his right to
Exceptions: remain silent and to have competent and independent
(1) When charged with an offense punishable by reclusion counsel preferably of his own choice. If the person cannot
perpetua. afford the services of counsel, he must be provided with
(2) Traditionally, the right to bail is not available to the one. These rights cannot be waived except in writing and in
military, as an exception to the bill of rights. [People v. the presence of counsel. [Art. III, Sec. 12]
Reyes (1992)]
It means the accused is amply accorded legal assistance
STANDARDS FOR FIXING BAIL extended by a counsel who commits himself to the cause
RULE 114. Sec. 9. Amount of bail; guidelines. – The judge of the defense and acts accordingly. It is an efficient and
who issued the warrant or granted the application shall fix truly decisive legal assistance, and not simply a
a reasonable amount of bail considering primarily, but not perfunctory representation. [People v. Bermas (1999)]
limited to, the following factors:
(a) Financial liability of the accused to give bail; ASSISTANCE OF COUNSEL
(b) Nature and circumstance of the offense; RA 7438. Rights of Persons under Custodial Investigation.
(c) Penalty for the offense charged; SEC. 2. Rights of Persons Arrested, Detained or Under
(d) Character and reputation of the accused; Custodial Investigation; Duties of Public Officers. – (a) Any
(e) Age and health of the accused; person arrested detained or under custodial investigation
(f) Weight of the evidence against the accused; shall at all times be assisted by counsel;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
Elements of the Right to Counsel
(i) The fact that the accused was a fugitive from justice (1) Court’s duty to inform the accused of right to counsel
when arrested; and
before being arraigned;
(j) Pendency of other cases where the accused is on bail. (2) It must ask him if he desires the services of counsel;
Excessive bail shall not be required. (3) If he does, and is unable to get one, the Court must
give him one; if the accused wishes to procure private
"Discretion is with the court called upon to rule on the counsel, the Court must give him time to obtain one.
question of bail. We must stress, however, that where (4) Where no lawyer is available, the Court may appoint
conditions imposed upon a defendant seeking bail would any person resident of the province and of good repute
amount to a refusal thereof and render nugatory the for probity and ability.
constitutional right to bail, we will not hesitate to exercise
our supervisory powers to provide the required remedy. RIGHT TO BE INFORMED
[Dela Camara v. Enage (1971)] Procedural due process requires that the accused must be
informed why he is being prosecuted and what charge he
PRESUMPTION OF INNOCENCE must meet. [Vera vs. People, supra]
The requirement of proof beyond reasonable doubt is a
necessary corollary of the constitutional right to be Note: Description, not designation of offense, is controlling
presumed innocent. [People vs. Dramavo (1971)]
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RIGHT OF CONFRONTATION An issue has been raised as to WON petitioner could waive
This is the basis of the right to cross-examination. his right to be present during trial.
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The privilege of the writ of habeas corpus shall not be RESTRAINT OF LIBERTY
suspended except in cases of invasion or rebellion when Not only physical restraint, any restraint on freedom of
the public safety requires it. [Art. III, Sec. 15] action is sufficient i.e (1) curtailed freedom of movement by
the condition that he must get approval of respondents for
any travel outside Metro Manila, (2) abridged liberty of
The President shall be the Commander-in-Chief of all abode because prior approval of respondent is required in
armed forces of the Philippines and whenever it becomes case petitioner wants to change place of residence, (3)
necessary, he may call out such armed forces to prevent or abridged freedom of speech due to prohibition from taking
suppress lawless violence, invasion or rebellion. any interviews inimical to national security, and (4)
petitioner is required to report regularly to respondents or
In case of invasion or rebellion, when the public safety their reps. [Moncupa v. Enrile (1986)]
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place Note: Even if the party to whom the writ is addressed has
the Philippines or any part thereof under martial law. illegally parted with the custody of a person before the
Within forty-eight hours from the proclamation of martial application for the writ is no reason why the writ should not
law or the suspension of the privilege of the writ of habeas issue. [Villavicencio v. Lukban (1919)]
corpus, the President shall submit a report in person or in
writing to the Congress. Test for valid suspension of the privilege of the writ:
arbitrariness, not correctness
The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke Conditions for valid suspension:
such proclamation or suspension, which revocation shall (1) Presence of invasion, insurrection or rebellion
not be set aside by the President. (2) Public safety requires it [Lansang v. Garcia (1971)]
Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or
suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety
requires it.
Writ of Amparo, Habeas Data
The Congress, if not in session, shall, within twenty-four
and Kalikasan
hours following such proclamation or suspension, convene WRIT OF AMPARO
in accordance with its rules without need of a call. The petition for a writ of amparo is a remedy available to
The Supreme Court may: 1) review, 2) in an appropriate any person whose right to life, liberty and security is
proceeding; 3) filed by any citizen, 4) the sufficiency of the violated or threatened with violation by an unlawful act or
factual basis of the proclamation of martial law or the omission of a public official or employee, or of a private
suspension of the privilege of the writ or the extension individual or entity. [Sec. 1, The Rule on the Writ of Amparo]
thereof, and 5) must promulgate its decision thereon
within thirty days from its filing. Basis
The Supreme Court shall have the following powers: xxx
A state of martial law does not suspend the operation of (5) Promulgate rules concerning the protection and
the Constitution, nor supplant the functioning of the civil
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enforcement of constitutional rights, xxx. Such rules shall Filing Enforceability Returnable
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts (3) Any RTC of
of the same grade, and shall not diminish, increase, or the place where
modify substantive rights. Xxx [Art. VIII, Sec. 5] the threat, act or
omission was
PETITION FOR WRIT committed or
Form any of its
The petition shall be signed and verified. [Sec. 5] elements
occurred
Contents
The petition shall allege the following: Docket fees: None [Sec. 4]
(1) The personal circumstances of the petitioner
(2) The name and personal circumstances of the Return
respondent responsible for the threat, act or omission, Within 72 hours after service of the writ, the respondent
or, if the name is unknown or uncertain, the respondent shall file a verified written return together with supporting
may be described by an assumed appellation affidavits which shall, among other things, contain his
(3) The right to life, liberty and security of the aggrieved defenses. A general denial is not allowed. [Sec. 9]
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how Hearing
such threat or violation is committed with the Summary or court may call for a preliminary conference;
attendant circumstances detailed in supporting given same priority as petition for habeas corpus [Sec. 13]
affidavits
(4) The investigation conducted, if any, specifying the Burden of proof
names, personal circumstances, and addresses of the Substantial evidence
investigating authority or individuals, as well as the
manner and conduct of the investigation, together with Defense:
any report Private individual – ordinary diligence; public official –
(5) The actions and recourses taken by the petitioner to extraordinary diligence, no presumption of regularity of
determine the fate or whereabouts of the aggrieved duties [Sec. 17]
party and the identity of the person responsible for the
threat, act or omission The Manalo brothers were abducted, detained, and
(6) The relief prayed for. tortured repeatedly by the military. After their escape, they
filed a petition for the privilege of the Writ of Amparo. The
The petition may include a general prayer for other just Supreme Court granted the petition and held that there
and equitable reliefs. [Sec. 5] was a continuing violation of the Manalos’ right to security.
Where to file
The petition may be filed on any day and at any time [Sec. As regards the relief granted, the Court held that the
3] production order under the Amparo rule is different from a
search warrant and may be likened to the production of
documents or things under Rule 27.1, ROC. [Secretary of
Filing Enforceability Returnable National Defense v. Manalo (2008)]
RTC of the place Before the
where the threat, issuing court or WRIT OF HABEAS DATA (SEE PREVIOUS DISCUSSION)
act or omission judge The writ of habeas data is an independent and summary
was committed remedy designed to protect the image, privacy, honor,
or any of its information, and freedom of information of an individual,
elements and to provide a forum to enforce one’s right to the truth
occurred and to informational privacy.
Sandiganbayan (1) Before the
or any of its issuing court or There must be a nexus between right to privacy and right
Anywhere in the
justices any justice to life, liberty and security.
Philippines
Court of Appeals thereof, OR
or any of its (2) Any RTC of RIGHT TO INFORMATIONAL PRIVACY V. LEGITIMATE STATE INTEREST
justices the place where The determination of whether the privilege of the writ
the threat, act or of habeas data, being an extraordinary remedy, may be
omission was granted in this case entails a delicate balancing of the
committed or alleged intrusion upon the private life of Gamboa and the
any of its relevant state interest involved. [Gamboa v. P/Ssupt.
elements Marlou C. Chan, et al., (2012)]
occurred
SC or any of its (1) Before the WRIT OF KALIKASAN
justices issuing court or Remedy against violation or threat of violation of
any justice constitutional right to a balanced and healthful ecology by
thereof an unlawful act or omission of a public official or
(2) Before the employee, or private individual or entity, involving
Sandiganbayan environmental damage of such magnitude as to prejudice
Anywhere in the
or CA or any of the life, health or property of inhabitants in two or more
Philippines
their justices, OR cities or provinces
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FOREIGN LAWS
WHO MAY FILE: The privilege which exists as to private papers, cannot be
Natural or juridical persons, NGO or public interest groups maintained in relation to “records required by law to be
in behalf of persons whose right is violated kept in order that there may be suitable information of
transactions which are the appropriate subjects of
WHO HAS JURISDICTION governmental regulation and the enforcement of
Supreme Court or Court of Appeals restrictions validly established. [Shapiro v. US (1948)]
DOCKET FEES: None In recent cases, the US Supreme Court has struck down
certain registration requirements that presented real and
WHEN IS WRIT ISSUED: appreciable risk of self-incrimination. These involved
Within three (3) days from the date of filing of the petition, statues directed at inherently suspect groups in areas
if the petition is sufficient in form and substance permeated by criminal statutes, a circumstance which laid
the subjects open to real risk of self-incrimination. [Bernas]
RETURN OF RESPONDENT
Within a non-extendible period of ten (10) days after The great majority of persons who file income tax returns
service of the writ, the respondent shall file a verified do not incriminate themselves by disclosing their
return which shall contain all defenses; all defenses not occupation. [US v. Sullivan (1927)]
raised are deemed waived
APPLICATION
HEARING General Rule: The privilege is available in any proceedings,
Preliminary conference; same prioprity as other writs [no even outside the court, for they may eventually lead to a
more than 60 days]; criminal prosecution.
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A private person who contracts obligations of this sort In this case the Court took into account, in lowering the
toward the Army cannot, by law that we know of, either penalty to reclusion perpetua of the accused most of whom
civil or military be compelled to fulfill them by were already death row convicts, the deplorable sub-
imprisonment and deportation from his place of residence, human conditions of the National Penitentiary where the
we deem it wholly improper to sustain such means of crime was committed. [People vs. dela Cruz (1953)]
compulsion which are not justified either by law or by the
contract. [In Re Brooks (1901)] What is Prohibited: Cruel and unusual punishment.
Unusual punishment is not prohibited especially if it makes
Domestic services are always to be remunerated, and no the penalty less severe.
agreement may subsist in law in which it is stipulated that
any domestic service shall be absolutely gratuitous, unless What is a cruel punishment?
it be admitted that slavery may be established in this (1) Involves torture or lingering death [Legarda v. Valdez
country through a covenant entered into between (1902)]
interested parties. [de los Reyes v. Alojado (1910)] (2) Not only severe, harsh or excessive but flagrantly and
plainly oppressive
A former court stenographer may be compelled under pain (3) Wholly disproportionate to the nature of the offense as
of contempt to transcribe stenographic notes he had failed to shock the moral sense of the community [People v.
to attend to while in service. x xx such compulsion is not Estoista (1953)]
the condition of enforced compulsory service referred to by
the Constitution. Note: The constitutional limit must be reckoned on the
basis of the nature and mode of punishment measured in
Fernando, J. concurring opinion: terms of physical pain
The matter could become tricky should a stenographer
stubbornly refuse to obey and the court insist on keeping RA 9346 (JUNE 24, 2006): AN ACT PROHIBITING THE
him in jail. The detention could then become punitive and IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES
give rise to the issue of involuntary servitude. [Aclaracion v. Sec. 1. The imposition of the penalty of death is hereby
Gatmaitan (1975)] prohibited. Accordingly, R.A. No. 8177, otherwise known as
the Act Designating Death by Lethal Injection is hereby
POLITICAL PRISONERS repealed. R.A. No. 7659, otherwise known as the Death
If the petitioners are political prisoners subject to the civil Penalty Law, and all other laws, executive orders and
jurisdiction of ordinary courts of justice if they are to be decrees, insofar as they impose the death penalty are
prosecuted at all, the army has no jurisdiction, nor power, hereby repealed or amended accordingly.
nor authority, from all legal standpoints, to continue
holding them in restraint. They are entitled, as a matter of The import of the grant of power to Congress to restore the
fundamental right, to be immediately released, any death penalty requires:
allegation as to whether the war was ended or not. (1) that Congress define or describe what is meant by
[Raquiza v. Bradford (1945)] heinous crimes
(2) that Congress specify and penalize by death, only crimes
Sec. 19 of CA No. 682 authorizes that the political that qualify as heinous in accordance with the definition
prisoners in question "may be released on bail, even prior or description set in the death penalty bill and/or
to the presentation of the corresponding information," and designate crimes punishable by reclusion perpetua to
this may be done "existing provisions of law to the contrary death in which latter case, death can only be imposed
notwithstanding." We must assume that the discretion upon the attendance of circumstances duly proven in
granted must be construed in the sense that the same may court that characterize the crime to be heinous in
be exercised in cases wherein it was not heretofore granted accordance with the definition or description set in the
by law. And it is reasonable to assume that the discretion death penalty bill
granted is to the effect that the People's Court may (3) that Congress, in enacting this death penalty bill be
exercise jurisdiction to order the release on bail of political singularly motivated by “compelling reasons involving
prisoners "even prior to the presentation of the heinous crimes.”
corresponding information." [Duran v. Abad Santos (1945)]
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For a death penalty bill to be valid, a positive manifestation ordinance, conviction or acquittal under either shall
in the form of higher incidence of crime should first be constitute a bar to another prosecution for the same act.
perceived and statistically proven following the suspension [Art. III, Sec. 21]
of the death penalty [is not required in Sec. 19 (1)]. Neither
does the said provision require that the death penalty be TERMINATION OF JEOPARDY
resorted to as a last recourse when all other criminal (1) By acquittal
reforms have failed to abate criminality in society. [People (2) By final conviction
v. Echegaray (1997)] (3) By dismissal without express consent of accused
(4) By “dismissal” on the merits
Sec 19 (2) as worded, already embodies constitutional
authorization for the Commission on Human Rights to take REQUISITES
action in accordance with Art XIII Sec 18. There is a (1) Court of competent jurisdiction;
command addressed to Congressed to pass whatever civil (2) A Complaint/Information sufficient in form and
or penal legislation might be required for the subject. substance to sustain a conviction;
[Bernas] (3) Arraignment and plea by the accused;
(4) Conviction, acquittal, or dismissal of the case without
the express consent, of the accused. [Rule 117, Sec. 7;
People vs. Obsania (1968)]
Non-Imprisonment for Debts WHEN SUBSEQUENT PROSECUTION IS BARRED
(1) Same offense
No person shall be imprisoned for debt or non-payment (2) Attempt of the same offense
of a poll tax. [Art. III, Sec. 20] (3) Frustration of the same offense
(4) Offense necessarily included in the 1st offense (All the
SCOPE elements of the 2nd constitute some of the elements of
(1) Debt – any civil obligation arising from a contract. It the 1st offense)
includes even debts obtained through fraud since no (5) Offense that necessarily includes the 1st offense (All
distinction is made in the Constitution. [Ganaway v. the elements of the 1st constitute some of the elements
Quillen (1922)] of the 2nd offense)
(2) Poll Tax – a specific sum levied upon any person
belonging to a certain class without regard to property EXCEPTIONS
or occupation (e.g. community tax). (1) The graver offense developed due to "supervening
facts" arising from the same act or omission
A tax is not a debt since it is an obligation arising from law. constituting the former charged.
Hence, its non-payment maybe validly punished with (2) The facts constituting the graver charge became
imprisonment. known or were discovered only after the filing of the
former complaint or information.
Santos refused to pay 16 pesos for Ramirez’s cedula as (3) The plea of guilty to the lesser offense was made
payment for what Santos owed Ramirez. Thus, Ramirez without the consent of the fiscal and the offended
was convicted and imprisoned for estafa. Upon demand for party.
release, the Court held that the imprisonment was correct
since it was for estafa and not involuntary servitude or WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE
imprisonment for debt. [Ramirez v. de Orozco (1916)] (1) Dismissal based on insufficiency of evidence;
(2) Dismissal because of denial of right to speedy trial;
The obligation incurred by the debtor, as shown by the (3) Accused is discharged to be a state witness.
receipt, was to pay an ordinary contractual obligation.
Since the guardianship proceeding was civil in nature, the MOTIONS FOR RECONSIDERATION AND APPEALS
Court did not allow enforcement of the civil obligation by The accused cannot be prosecuted a second time for the
an order of imprisonment. [In re Tamboco (1917)] same offense and the prosecution cannot appeal a
judgment of acquittal. [Kepner v. US (1904)]
No person may be imprisoned for debt in virtue of a civil
proceeding. [Makapagal v. Santamaria (1930)] Provided, that the judge considered the evidence, even if
the appreciation of the evidence leading to the acquittal is
A person may be imprisoned as a penalty for a crime erroneous, an appeal or motion for reconsideration by the
arising from a contractual debt and imposed in a proper prosecution will not be allowed. [People v. Judge Velasco
criminal proceeding. Thus, the conversion of a criminal fine (2000)]
into a prison term does not violate the provision because in
such a case, imprisonment is imposed for a monetary No error, however, flagrant, committed by the court
obligation arising from a crime. [Ajeno v. Judge Insero against the state, can be reserved by it for decision by the
(1976)] Supreme Court when the defendant has once been placed
in jeopardy and discharged even though the discharge was
the result of the error committed. [People v. Ang Cho (1945)
citing State v. Rook]
Double Jeopardy A mere verbal dismissal is not final until written and
signed by the judge. [Rivera, Jr. v. People (1990)]
No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an
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When an accused appeals his conviction, he waives his The prohibition applies only to criminal legislation which
right to the plea of double jeopardy. If the accused had affects the substantial rights of the accused. [Phil. National
been prosecuted for a higher offense but was convicted for Bank v. Ruperto (1960)]
a lower offense, he has technically been acquitted of the
higher offense. His appeal would give the Court the right to It applies to criminal procedural law prejudicial to the
impose a penalty higher than that of the original conviction accused. [US v. Gomez (1908)]
imposed on him. [Trono v. US (1905)]
It is improper to apply the prohibition to an executive
Double jeopardy provides three related protections: proclamation suspending the privilege of the writ of
(1) Against a second prosecution for the same offense after habeas corpus. [Montenegro v. Castañeda (1952)]
acquittal;
(2) Against a second prosecution for the same offense after BILLS OF ATTAINDER
conviction; and A bill of attainder is a legislative act which inflicts
(3) Against multiple punishments for the same offense. punishment without judicial trial. If the punishment be less
[People v. Dela Torre (2002)] than death, the act is termed a bill of pains and penalties.
Within the meaning of the Constitution, bills of attainder
DISMISSAL WITH CONSENT OF ACCUSED include bills of pains and penalties. [Cummings v. Missouri
Provisional dismissal.—A case shall not be provisionally (1867)]
dismissed except with the express consent of the accused
and with notice to the offended party. [Rule 117, Sec. 8 (1)] It is a general safeguard against legislative exercise of the
judicial function, or trial by legislature. [US v. Brown (1965)]
When the case is dismissed other than on the merits, upon
motion of the accused personally, or through counsel, such
dismissal is regarded as “with express consent of the
accused”, who is therefore deemed to have waived the
right to plea double jeopardy.
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APPOINTMENT
Nature of an Appointment – essentially discretionary
powerand cannot be delegated; it must be performed by Modes and Kinds of
the officer upon whom it is vested according to his best
lights, the only condition being that the appointee should Appointment
possess the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground that CLASSIFICATION OF APPOINTMENTS
there are others better qualified who should have been (1) Permanent:
preferred [Luego v. CSC (1986)] The permanent appointee:
(a) must be qualified
Definition (b) must be eligible
(c) is constitutionally guaranteed security of tenure
Designation Appointment
Duration: until lawful termination.
Definition Note: Conditional appointments are not permanent.
Imposition of additional Appointing authority selects (2) Temporary:
duties upon existing office an individual who will (a) an acting appointment;
occupy a certain public (b) cannot be validly confirmed by the Commission
office on Appointments because confirmation
Extent of Powers presupposes a valid nomination or ad interim
appointment
Limited Comprehensive (c) has no personality to bring a quo warranto action
Security of Tenure? against the permanent appointee to the position
(d) An unqualifiedperson cannot be appointed even
No Yes in an acting capacity [Ignacio v. Banate, Jr. (1987)]
Is prior/1st office abandoned when… (e) Has no fixed tenure of office - revocable at will:
nd just cause or valid investigation UNNECESSARY
…a 2nd designated position …a 2 appointive position is if based only on loss of confidence;
is assumed? assumed? Usually YES (i) an “acting” appointment is a temporary
NO appointment and revocable in character.
[Marohombsar v. Alonto (1991)]
Political. Appointment is generally a political question so (ii) A temporary appointee is like a designated
long as the appointee fulfills the minimum qualification officer – they:
requirements prescribed by law. (1) occupy a position in an acting capacity and
(2) do not enjoy security of tenure. [Sevilla v.
Vacancy for Validity. For the appointment to be valid, the CA (1992)]
position must be vacant [Castin v. Quimbo (1983)] (iii) Even a Career Service Officer unqualified for
the position is deemed temporarily-
Nature of Power to Appoint. appointed. Thus he does not enjoy security of
The power to appoint is intrinsically an executive act tenure – he is terminable at will.
involving the exercise of discretion. [Concepcion v. Paredes (iv) A public officer who later accepts a
(1921)] temporary appointment terminates his
relationship with his former office.
Must be unhindered and unlimited by Congress. Congress [Romualdez III v. CSC (1991)]
cannot either appoint a public officer or impose upon the (v) Except: Fixed-Period Temporary Appointments
President the duty to appoint any particular person to an – may be revoked ONLY at the period’s
office. The appointing power is the exclusive prerogative of expiration. Revocation before expiration must
the President, upon which no limitations may be imposed by be for a valid cause.
Congress, EXCEPT those: (vi) Duration: until a permanent appointment is
(1) requiring the concurrence of the Commission on issued.
Appointments; and
(2) resulting from the exercise of the limited legislative STEPS IN APPOINTMENT PROCESS
power to prescribe the qualifications to a given FOR APPOINTMENTS REQUIRING CONFIRMATION
appointive office. [Manalang v. Quitoriano (1954)] Regular Appointments (NCIA)
(1) President nominates.
The President’s power to appoint under the Constitution (2) Commission on Appointments confirms.
should necessarily have a reasonable measure of freedom, (3) Commission issues appointment.
latitude, or discretion in choosing appointees. [Cuyegkeng (4) Appointee accepts.
v. Cruz (1960)]
Ad-Interim Appointments (NIAC)
Where only one can qualify for the posts in question, the (1) President nominates.
President is precluded from exercising his discretion to (2) Commission issues appointment.
choose whom to appoint. Such supposed power of (3) Appointee accepts.
appointment, sans the essential element of choice, is no (4) Commission on Appointments confirms.
power at all and goes against the very nature of
appointment itself. [Flores v. Drilon (1993)] For Appointments Not Requiring Confirmation (AIA)
(1) Appointing authority appoints.
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(4) Promotion of “next-in-rank” career officer is not must be possessed at the time of appointment or
Mandatory. The appointing authority should be allowed election and continuously for as long as the official
the choice of men of his confidence, provided they are relationship continues
qualified and eligible.
(2) ACT –refers to the act of entering into the performance
(5) When abused, use Mandamus. of the functions of the office.
Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional Note: Failure to perform an act required by law could affect
appointment would lead to manifest injustice, the officer’s title to the given office. Under BP 881, the
mandamus will lie to compel the appointing authority office of any elected official who fails or refuses to take his
to issue said appointments. [Gesolgon v. Lacson (1961)] oath of office within six months from his proclamation
shall be considered vacant unless said failure is for cause
(6) “Upon recommendation” is not Merely Advisory. or causes beyond his control.
Sec. 9. Provincial/City Prosecution Offices. [par. 3] All
provincial and city prosecutors and their assistants shall be (1) An oath of office is a qualifying requirement for a public
appointed by the President upon the recommendation of office. Only when the public officer has satisfied this
the Secretary. prerequisite can his right to enter into the position be
considered plenary and complete. Until then, he has
The phrase “upon recommendation of the Sec. of Justice” none at all, and for as long as he has not qualified, the
should be interpreted to be a mere advice. It is persuasive holdover officer is the rightful occupant. [Lecaroz v.
in character, BUT is not binding or obligatory upon the Sandiganbayan (1999)]
person to whom it is made.
(2) Once proclaimed and duly sworn in office, a public
officer is entitled to assume office and to exercise the
EFFECTIVITY OF APPOINTMENT
Immediately upon appointing authority’s issuance [Rule V, functions thereof. The pendency of an election protest
is not sufficient basis to enjoin him from assuming
Sec. 10, Omnibus Rules]
office or from discharging his functions. [Mendoza v.
Laxina (2003)]
EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE
APPOINTMENT
POWER TO PRESCRIBE QUALIFICATIONS
General Rule
An appointment, once made, is irrevocable and not subject (1) Constitution – when the qualifications are prescribed by
the constitution, they are generally exclusive, except
to reconsideration.
where the Constitution itself provides otherwise
(1) It vests a legal right. It cannot be taken away EXCEPT
for cause, and with previous notice and hearing (due (2) Congress - In the absence of constitutional inhibition,
Congress has the same right to provide
process).
(2) It may be issued and deemed complete before disqualifications that it has to provide qualifications for
acquiring the needed assent, confirmation, or approval office. [De Leon, p. 23]
of some other officer or body.
RESTRICTIONS on the Power of Congress to Prescribe
Exceptions Qualifications:
(1) Appointment is an absolute nullity [Mitra v. Subido (1) Congress cannot exceed its constitutional powers;
(1967)]; (2) Congress cannot impose conditions of eligibility
(2) Appointee commits fraud [Mitra v. Subido, supra]; inconsistent with constitutional provisions;
(3) Midnight appointments (3) The qualification must be germane to the position
General Rule: A President or Acting President shall not ("reasonable relation" rule);
appoint 2 months immediately before the next (4) Where the Constitution establishes specific eligibility
presidential elections until his term ends. (Art. VII, Sec. requirements for a particular constitutional office, the
15, 1987 Const.) constitutional criteria are exclusive, and Congress
Exception: Temporary appointments to executive positions cannot add to them except if the Constitution expressly
when continued vacancies will prejudice public or impliedly gives the power to set qualifications.
service or will endanger public safety. (5) Congress cannot prescribe qualifications so detailed as
to practically amount to making a legislative
appointment: it is unconstitutional and therefore void
for being a usurpation of executive power – examples:
(a) Extensions of the terms of office of the incumbents;
Eligibility and Qualification (b) A proviso which limits the choices of the appointing
authority to only one eligible, e.g. the incumbent
Requirements Mayor of Olongapo City; [Flores v. Drilon (1993)]
(c) Designating an unqualified person. The People's
Court Act, which provided that the President could
DEFINITION
designate Judges of First Instance, Judges-at-large
Eligibility: The state or quality of being legally fitted or
of First Instance or Cadastral Judges to sit as
qualified to be chosen
substitute Justices of the Supreme Court in treason
cases without them necessarily having to possess
Qualification: endowment/act which a person must do
the required constitutional qualifications of a
before he can occupy a public office. May be understood in
regular Supreme Court Justice.; [Vargas v. Rilloraza
two senses:
(1948)]
(1) ENDOWMENT –refers to the qualities or attributes
which make an individual eligible for public office. It
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Notes: Exceptions
(1) “Practice of Law” defined. Practice of law means any (a) Membership in the electoral tribunals of either the
activity, in or out of court, which requires the application House of Representatives or Senate (Art. VI, Sec. 17,
of law, legal procedure, knowledge, training and 1987 Const.);
experience. Generally, to practice law is to give notice (b) Party-list representation;
or render any kind of service which requires the use in (c) Commission on Appointments;
any degree of legal knowledge or skill. [Cayetano v. (d) Vacancies in the Sanggunian (Sec. 45, Local
Monsod (1991)] Government Code)
(2) In the dissenting opinion of Justice Padilla in the case of (3) NO PROPERTY QUALIFICATIONS
Cayetano v. Monsod, citing Agpalo, he stated that Since sovereignty resides in the people, it is necessarily
engaging in the practice of law presupposes the implied that the right to vote and to be voted should not
existence of lawyer-client relationship. Hence, where a be dependent upon a candidate’s wealth. Poor people
lawyer undertakes an activity which requires should also be allowed to be elected to public office
knowledge of law but involves no attorney-client because social justice presupposes equal opportunity for
relationship, such as teaching law or writing law books both rich and poor. [Maguera v. Borra and Aurea v.
or articles, he cannot be said to be engaged in the COMELEC (1965)]
practice of his profession asa lawyer
(4) CITIZENSHIP
(3) “Residency” defined. In election law, residence refers to (a) Aliens not eligible for public office.
domicile, i.e. the place where a party actually or (b) The purpose of the citizenship requirement is to
constructively has his permanent home, where he ensure that no alien, i.e., no person owing
intends to return. To successfully effect a change of allegiance to another nation, shall govern our
domicile, the candidate must prove an actual removal people and country or a unit of territory thereof.
or an actual change of domicile. [Aquino v. COMELEC [Frivaldo v. COMELEC (1996)]
(1995)]
(5) EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM
(4) Presumption in favor of domicile of origin. Domicile Termination from office
requires the twin elements of actual habitual residence
and animus manendi (intent to permanently remain). (6)EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD
Domicile of origin is not easily lost; it is deemed to PUBLIC OFFICE (Asked in 1999)
continue absent a clear and positive proof of a General Rule
successful change of domicile. [Marcos v. COMELEC Pardon will not restore the right to hold public office. (Art.
(1995)] 36, Revised Penal Code)
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public office or position [Art. IX-B Sec. 7(1)] unless they relatives by consanguinity or during President’s tenure as
forfeit their seat affinity within the fourth civil Members of the
degree Constitutional Commissions,
(3) Appointive officials shall not hold any other or the Office of the
governmental position. Ombudsman, or as
Secretaries,
Unless otherwise allowed by law or his position’s primary Undersecretaries, chairmen
functions [Art. IX-B Sec 7 (2)] or heads of bureaus or
offices, including
Note: There is no violation when another office is held by a government-owned-or -
public officer in an ex officio capacity (where one can’t controlled corporations. (Art.
receive compensation or other honoraria anyway), as VIII, Sec. 13)
provided by law and as required by the primary functions
of his office. [National Amnesty Commission v. COA (2004)]
Other Disqualifications
(1) Mental or physical incapacity
Specific Constitutional Disqualifications
Public Officer Disqualifications (2) Misconduct or crime: persons convicted of crimes
involving moral turpitude are USUALLY disqualified
The President, Vice shall not hold any other from holding public office.
President, the Members of office or employment during
the Cabinet and their their tenure, UNLESS (3) Impeachment
deputies or assistants otherwise provided in the
Constitution, (Art. VII, Sec. 13) (4) Removal or suspension from office: not presumed
Senator or Member of the may not hold during his term non-imposable when such ineligibility is not
House of Representatives any other office or constitutional or statutory declared.
employment in the
Government, or any (5) Previous tenure of office: for example, an appointed
subdivision, agency or Ombudsman is absolutely disqualified for
instrumentality thereof, reappointment (Article XI, Constitution).
including government -
owned or -controlled (6) Consecutive terms limit:
corporations or their (a) Vice-President = 2 consecutive terms
subsidiaries (b) Senator = 2 consecutive terms
(c) Representative = 3 consecutive terms
Effect: or else he forfeits his (d) Elective local officials = 3 consecutive terms [Sec. 8,
seat Art. X, Constitution]
Shall also not be appointed Public officer’s voluntary renunciation of office for any
to any office when such was length of time = an interruption in the continuity of his
created or its emoluments service for the full term for which he was elected.
were increased during his
term. (Art. VI, Sec 13) (7) Holding more than one office: to prevent offices of public
trust from accumulating in a single person, and to
Members of the Supreme shall not be designated to prevent individuals from deriving, directly or indirectly,
Court and other courts any agency performing any pecuniary benefit by virtue of their holding of dual
established by law quasi-judicial or positions.
administrative functions.
(Art. VIII, Sec. 12) Civil Liberties Union v. Executive Secretary (1991):
Members of the shall not hold any other Section 7, Article IX-B of the Constitution generally prohibits
Constitutional Commission office or employment [during elective and appointive public officials from holding
their tenure]. (Art. IX-A, Sec. multiple offices or employment in the government unless
2) they are otherwise allowed by law or by the primary
Ombudsman and his (Art. XI, Sec. 8) functions of their position.
Deputies
This provision does NOT cover the President, Vice-
Members of Constitutional must not have been President and cabinet members – they are subject to a
Commissions, the candidates for any elective stricter prohibition under Section 13 of Article VII.
Ombudsman and his position in the elections
Deputies immediately preceding their To apply the exceptions found in Section 7, Article IX-B to
appointment (Art IX-B, Sec. 1; Section 13, Article VII would obliterate the distinction set by
Art. IX-C, Sec. 1; Art. IX-D, the framers of the Constitution as to the high-ranking
Sec. 1; Art XI, Sec. 8) officials of the Executive branch.
Members of Constitutional are appointed to 7-year term,
Commissions, the without reappointment (Sec. However, public officials holding positions without
Ombudsman and his 1(2) of Arts. IX-B, C, D; Art. XI, additional compensation in ex-officio capacities as
Deputies Sec. 11) provided by law and as required by their office’s primary
functions are not covered by the Section 13, Article VII
The President’s spouse and shall not be appointed prohibition.
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Right to office – The just and legal claim to exercise the The right to compensation grows out of the services
powers and the responsibilities of the public office rendered. After services have been rendered, the
compensation thus earned cannot be taken away by a
subsequent law.
Term Tenure
Period during which the Period during which the As a general proposition, a public official is not entitled to
officer may claim to hold the officer actually holds office any compensation if he has not rendered any service.
office as of right [Acosta v. CA, (2000)]
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(a) where such are indispensable in the proper conduct of (9) The right to be secure in one's person, house, papers,
the office, the officer may not take them as his own and effects against unreasonable searches and
property. seizures;
(b) if, not being required by law, they are prepared by the (10) The liberty of abode and of changing the same;
officer apart from his official duties and are not (11) The privacy of communication and correspondence;
indispensable in the proper conduct of the office, the (12) The right to become a member of associations or
officer may acquire a property right therein. societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the government for redress of grievances;
(14) The right to be free from involuntary servitude in any
form;
Liabilities of Public Officers (15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and
The liability of a public officer to an individual or the public counsel, to be informed of the nature and cause of the
is based upon and is co-extensive with his duty to the accusation against him, to have a speedy and public
individual or the public. (De Leon, 2008) trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
GENERAL RULE ON LIABILITY witness in his behalf;
Apublic officer is not liable for the injuries sustained by (17) Freedom from being compelled to be a witness
another as a consequence of official acts done within the against one's self, or from being forced to confess
scope of his authority, except as otherwise provided by law guilt, or from being induced by a promise of immunity
(Nachura, 2009) or reward to make such confession, except when the
person confessing becomes a State witness;
A public officer shall not be civilly liable for acts done in (18) Freedom from excessive fines, or cruel and unusual
the performance of his official duties, unless there is a clear punishment, unless the same is imposed or inflicted
showing of bad faith, malice or negligence [Sec. 38(1), in accordance with a statute which has not been
Administrative Code] judicially declared unconstitutional; and
(19) Freedom of access to the courts.
No subordinate officer or employee shall be civilly liable for
acts done by him in good faith in the performance of his In any of the cases referred to in this article, whether or not
duties. However, he shall be liable for wilful or negligent the defendant's act or omission constitutes a criminal
acts done by him which are contrary to law, morals, public offense, the aggrieved party has a right to commence an
policy and good customs even if he acted under orders or entirely separate and distinct civil action for damages, and
instructions of his superiors for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be
Under Sec. 24, LGC, local governments and their officials instituted), and mat be proved by a preponderance of
are not exempt from liability for death or injury to persons evidence.
or damage to property
The indemnity shall include moral damages. Exemplary
STATUTORY LIABILITY damages may also be adjudicated.
Art. 27. Any person suffering material or moral loss
because a public servant or employee refuses or neglects, The responsibility herein set forth is not demandable from
without just cause, to perform his official duty may file an a judge unless his act or omission constitutes a violation of
action for damages and other relief against he latter, the Penal Code or other penal statute. [Civil Code]
without prejudice to any disciplinary administrative action
that may be taken. [Civil Code] This provision renders a public officer civilly liable for
damages for directly or indirectly obstructing, defeating,
The provision contemplates a refusal or neglect without violating or in any manner impeding or impairing civil
just cause by a public servant or employee to perform his liberties guaranteed by the Constitution.
official duty. Where there is just cause, he may not be held
liable. Under this provision, it is not necessary that the public
officer acted with malice or bad faith. To be liable, it is
enough that there was a violation of the constitutional
Art. 32. Any public officer or employee, or any private rights of the aggrieved party, even on the pretext of
individual, who directly or indirectly obstructs, defeats, justifiable motives or good faith in the performance of
violates or in any manner impedes or impairs any of the one’s duties.
following rights and liberties of another person shall be
liable to the latter for damages: Good faith is not a defense.
(1) Freedom of religion;
(2) Freedom of speech;
CRIMINAL LIABILITY [DE LEON, 2008]
(3) Freedom to write for the press or to maintain a
The mere fact that an officer is acting in an official capacity
periodical publication;
will not relieve him from criminal liability.
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
Crimes peculiar to certain public officers:
(6) The right against deprivation of property without due
(1) Revised Penal Code
process of law;
(2) Anti-Graft and Corrupt Practices Act
(7) The right to a just compensation when private
(3) Code of Conduct and Ethical Standards
property is taken for public use;
(4) Forfeiture of Unexplained Wealth Act
(8) The right to the equal protection of the laws;
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(3) Administrative Liability: such violation may also lead to (b) Preventive suspension pending appeal if the penalty
imposition of fine, reprimand, suspension or removal imposed by the disciplining authority is suspension or
from office. This administrative liability is separate and dismissal and, after review, the respondent is
distinct from the penal and civil liabilities. (Agpalo, exonerated [Caniete v. Secretary of Education (2000)]
2005)
Employees are entitled to compensation for the period of
LIABILITY OF MINISTERIAL OFFICERS their suspension pending appeal if they are found
(1) Nonfeasance - Neglect or refusal to perform an act innocent. Such suspension is actually punitive so that a
which is the officer’s legal obligation to perform public officer should be reinstated with full pay for the
period of the suspension.
(2) Misfeasance – Failure to use that degree of care, skill,
and diligence required in the performance of official
duty Pending Investigation Pending Appeal
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suspension is unjustified
If reprimanded – cannot Where an officer was unlawfully removed and was
claim backwages. Penalty is prevented for a time by no fault of his own from
commuted performing the duties of his office, it was held that he
might recover, and that the amount that he had earned in
other employment during his unlawful removal should not
Rules on Preventive Suspension:
be deducted from his unpaid salary. He may recover the
Appointive Officials.
full amount notwithstanding that during the period of his
(1) Not a Presidential Appointee
removal, the salary has been paid to another appointed to
(a) By – the proper disciplining authority
fill the vacancy unlawfully created.
(b) Against – any subordinate officer or employee
under such authority
The “no work, no pay” principle does not apply where it has
(c) When – pending an investigation
been sufficiently shown that a public official was
(d) Grounds – Dishonesty, oppression or grave
wrongfully prevented from entering the office and carrying
misconduct, neglect in the performance of duty or if
out his duties
there are reasons to believe that respondent is
guilty of the charges which would warrant his
If the illegal dismissal is found to have been made in bad
removal from the service
faith by the superior officers then they will be held
(e) Period – administrative investigation must be
personally accountable for back salaries of the illegally
terminated within 90 days, otherwise the
dismissed employee.
respondent shall be automatically reinstated
unless the delay in the disposition of the case is due
The award of backwages is limited to a maximum period of
to the fault, negligence or petition of the
5 years and not to full back salaries from illegal
respondent, in which case the period of delay shall
termination up to reinstatement [David v. Gania, (2003)]
not be counted
(2) When – at any time after the issues are joined (2) Where the public official is clearly being sued not in his
official capacity but in his personal capacity, although
(3) Grounds the acts complained of may have been committed
while he occupied a public position [Lansang v. CA
(a) Reasonable ground to believe that the respondent
(2000)]
has committed the act or acts complained of
(b) Evidence of culpability is strong
(3) Suit to compel performance of official duy or restrain
(c) Gravity of the offense so warrants performance of an act
(d) Continuance in office of the respondent could
influence the witnesses or pose a threat to the safety DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES
and integrity of the records and other evidence FOR PUBLIC OFFICERS
Rationale: promotion of fearless, vigorous and effective
(4) Duration administration of policies of government.
(a) Single administrative case – not to exceed 60 days
(b) Several administrative cases – not more than 90 It is generally recognized that public officers and
days within a single year on the same ground or employees would be unduly hampered, deterred and
grounds existing and known at the time of the first intimidated in the discharge of their duties, if those who
suspension act improperly, or even exceed the authority given them,
were not protected to some reasonable degree by being
(5) Preventive suspension of an elective local official is not relieved from private liability. The threat of suit could also
an interruption of the 3-term limit rule [Aldovino v. deter competent people from accepting public office.
COMELEC (2009)]
OTHER PUBLIC POLICY CONSIDERATIONS:
(1) loss of valuable time caused by such actions
ILLEGAL DISMISSAL, REINSTATEMENT AND BACK
(2) unfairness of subjecting officials to personal liability for
SALARIES
the acts of their subordinates
Reinstatement and back salary or wages are separate and
distinct reliefs given to an illegally dismissed official or
employee.
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(3) a feeling that the ballot and removal procedures are DE FACTO OFFICER DEFINED
more appropriate methods of dealing with the One who has the reputation of being the officer that he
misconduct in public office. assumes to be, and yet is not a good officer in point of law.
[Torres v. Ribo (1948)]
OFFICIAL IMMUNITY DISTINGUISHED FROM STATE
IMMUNITY He must have:
The immunity of public officials is a more limited principle (1) acted as an officer for such length of time,
than governmental immunity since its purpose is not (2) under color of title and under such circumstances of
directly to protect the sovereign, but rather to do so only reputation or acquiescence by the public and public
collaterally, by protecting the public official in the authorities,
performance of his government function. (3) as to afford a presumption of election or appointment,
and
The doctrine of sovereign immunity principally rested upon (4) induce people, without inquiry, and relying on the
the tenuous ground that the king could do no wrong. It supposition that he is the officer he assumes to be, to
served to protect the impersonal body politic or submit to or invoke his action.
government itself from tort liability.
A person is a de facto officer when the duties of his office
Official Immunity serves as a protective aegis for public are exercised under ANY of the following circumstances:
officials from tort liability for damages arising from (1) There is no known appointment or election, but people
discretionary acts or functions in the performance of their are induced by circumstances of reputation or
official duties. acquiescence to suppose that he is the officer he
assumes to be. Consequently, people do not to inquire
OFFICIAL IMMUNITY NOT ABSOLUTE into his authority, and they submit to him or invoke his
A public officer enjoys only qualified, not absolute action;
immunity. The protection afforded by the doctrine
generally applies only to activities within the scope of office (2) He possessed public office under color of a known and
that are in good faith and are not reckless, malicious or valid appointment or election, but he failed to conform
corrupt. to some precedent requirement or condition (e.g., taking
an oath or giving a bond);
But acts of a public officer are protected by the
presumption of good faith. Even mistakes concededly (3) He possessed public office under color of a known
committed by such a public officer in the discharge of his election or appointment, but such is VOID because:
official duties are not actionable as long as it is not shown (a) He’s ineligible;
that they were motivated by malice or gross negligence (b) The electing or appointing body is not empowered
amounting to bad faith. to do such;
(c) His exercise of his function was defective or
IMMUNITY FROM SUIT OF THE PRESIDENT irregular;
General Rule: The President shall be immune from suit (d) Important: The public does NOT KNOW of such
during his tenure. ineligibility, want of power, or defect being.
Requisites
De facto Officers A de jure office exists; De jure office;
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FORM OF RESIGNATION:
Where by law a resignation is required to be made in any
particular form, that form must be substantially complied
with.
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Where no such form is prescribed no particular mode is to the other and in the nature of the functions and duties
required, but the resignation may be made by any method which attach to them
indicative of the purpose. It need not be in writing, unless
so required by law. It exists where:
(1) There is conflict in such duties and functions, so that the
A written resignation, delivered to the board or officer performance of the duties of one interferes with the
authorized to receive it and fill the vacancy thereby performance of the duties of the other as to render it
created, is prima facie, but not conclusive evidence of the improper from consideration of public policy for one
intention to relinquish the office. person to retain both.
(2) One is subordinate to the other and is subject in some
RESIGNATION REVOCABLE BEFORE NOTIFICATION OF ACCEPTANCE degree to its supervisory power for obviously in such a
In the case of Republic v. Singun (2008), the Court ruled situation, the design that one acts as a check on the
that since respondent was not finally notified of its other would be frustrated.
acceptance, respondent could validly be withdrawn. (3) The Constitution of the law itself declares the
(1) Art. 238 of the RPC makes it an offense for any public incompatibility even though there is no inconsistency in
officer who, before acceptanceof his resignation, abandons the nature and functions of the offices.
his office to the detriment of the public service
(2) Accepting Authority Exceptions:
(a) As provided by law (1) Where the public officer is authorized by law to accept
(b) If the law is silent on who shall accept and the the other office (ex officio capacity)
public officer is an appointive officer, tender to the (2) In case of the forbidden office, it is the second office
appointing authority. If elective, tender by those that is absolutely void
authorized by law
ABANDONMENT OF OFFICE
ABANDONMENT
Resigning Public Officer Accepting Authority
Abandonment is the voluntary relinquishment of an office
President and VP Congress by the holder of all right, title, or claim thereto with the
intention of not reclaiming it or terminating his possession
Members of Congress Respective Houses and control thereof.
Governor, Vice Gov, Mayor, President
Vice Mayor, of HUC and ICC REQUISITES
(1) Intention to abandon
City Mayors and Vice Mayors Governor (2) Overt act by which the intention is carried into effect
of CCs, Municipal Mayors
and Vice Mayors SPECIES OF RESIGNATION
Sanggunian Members Sanggunian concerned While resignation in general is a formal relinquishment,
abandonment is a voluntary relinquishment through non-
Elective Barangay Officials Municipal or City Mayors user. Non-user refers to a neglect to use a privilege or a
Appointive Public Officers Appointing Authority right or to exercise an easement or an ofice [Municipality of
San Andres, Catanduanes v. CA (1998)]
EFFECTIVE DATE OF RESIGNATION
The date specified in the tender; and if no such date is Abandonment may also result from acquiescence by the
specified, then resignation shall be effective when the officer in his wrongful removal [Canonizado v. Aguirre
public officer receives notice of the acceptance of his (2001)].
resignation, not the date of the letter or notice of
acceptance [Gamboa v. CA (1981)] Civil Service Rules – an officer or employee shall be
automatically separated from the service if he fails to
COURTESY RESIGNATION
return to the service after the expiration of one-year leave
Courtesy Resignation cannot properly be interpreted as a of absence without pay. Also, officers and employeees who
resignation in the legal sense for it is not necessarily a are absent for at least 30 days without approved leave
reflection of a public official’s intention to surrender his (AWOL) shall be dropped from the service after due notice
position. Rather, it manifests his submission to the will of
the political authority and the appointing power [Ortiz v. PRESCRIPTION OF RIGHT TO OFFICE
COMELEC (1988)] Under the Rules of Court, quo warranto is the proper
remedy against a public officer for is ouster from office
ACCEPTANCE OF AN INCOMPATIBLE OFFICE which should be commenced within one year after the
It is contrary to the policy of the law that the same cause of such ouster or the right of the plaintiff to hold
individual should undertake to perform inconsistent and such office or position arose; otherwise, the action will be
incompatible duties. barred.
General Rule: One who, while occupying one office, accepts Rationale for the one year period: Title to public office
another incompatible with the first, ipso facto, absolutely should not be subjected to uncertainties but should be
vacates the first office. determined as speedily as possible.
WHEN INCOMPATIBLE
Filing of an action for administrative remedy does not
Incompatibility is to be found in the character of the offices suspend the period for filing the appropriate judicial
and their relation to each other, in the subordination of one proceeding.
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Removal from office may be express or implied. The House of Representatives has the sole power to
(1) Appointment of another officer in the place of the initiate all cases of impeachment while the Senate sits as a
incumbent operates as a removal if the latter was court for the trial of impeachment cases. Judgment in
notified. [De Leon] cases of impeachment shall not extend further than
(2) The transfer of an officer or employee without his removal from office and disqualification to hold any office
consent from one office to another, whether it results in under the Republic of the Philippines, but the party
promotion or demotion, advancement or reduction in convicted shall nevertheless be liable and subject to
salary, is equivalent to his illegal removal or separation prosecution, trial, and punishment, according to law. (Sec.
from the first office. [Gloria v. Court of Appeals [2000]] 3, Art. XI, Constitution)
(3) Demotion to a lower position with a lower rate of
compensation is also equivalent to removal if no cause ABOLITION OF OFFICE
is shown for it. [De Guzman v. CSC (1994)] To consider an office abolished, there must have been an
intention to do away with it wholly and permanently.
It is the forcible and permanent separation of the
incumbent from office before the expiration of his term Except when restrained by the Constitution, the Congress
[Ingles v. Mutuc (1968)]. has the right to abolish an office, even during the term for
which an existing incumbent may have been elected.
Note: Constitutional guarantee of security of tenure – No
officer or employee of the civil service shall be removed or Valid abolition of office does not constitute removal of the
suspended except for cause provided by law [Sec. 2(3), Art incumbent.
IX-B, Constitution].
No law shall be passed reorganizing the Judiciary when it
Demotions and transfers without just cause are undermines the security of tenure of its members [Sec. 2,
tantamount to removal. Art. VIII, Constitution].
Removal or resignation from office is not a bar to a finding The fundamental principle afforded to civil service
of administrative liability [Office of the President v. Cataquiz employees against removal “except for cause as provided
(2011)]. by law” does not protect them against abolition of the
positions held by them in the absence of any other
Removal not for a just cause, or non-compliance with the provision expressly or impliedly prohibiting abolition
prescribed procedure constitutes a reversible error and thereof. [Castillo v. Pajo, (1958)]
entitles the officer or employee to reinstatementwith back
salaries and without loss of seniority rights REQUISITES [Mendoza v. Quisumbing (1990)]:
(1) Abolition must be done in good faith
Extent of the President’s removal power: (2) Clear intent to do away with the office
(1) With respect to non-career officers exercising purely (3) Not for personal or political reasons
executive functions whose tenure is not fixed by law (4) Cannot be implemented in a manner contrary to law
(i.e. members of the Cabinet), the President may
remove them with or without cause and Congress may Reorganization – reduction of personnel, consolidation of
not restrict such power. offices, or abolition thereof by reason of economy or
(2) With respect to officers exercising quasi-legislative or redundancy of functions. It could result in the loss of one’s
quasi-judicial functions (e.g. members of the SEC), they position through removal or abolition of an office.
may be removed only on grounds provided by law to However, for a reorganization for the purpose of economy
protet their independence. or to make the bureaucracy more efficient to be valid, it
(3) With respect to constitutional officers removable only must pass the test of good faith; otherwise, it is void ab
by means of impeachment, and judges of lower courts, initio [United Claimant Association of NEA v. NEA (2012)]
they are not subject to the removal of the President.
(4) With respect to civil service officers, the President may Reorganization is valid provided they are pursued in good
remove them at his pleasure with or without cause. faith
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PERSONNEL ACTIONS Who may be reinstated to a position in the same level for
which he is qualified:
OTHER PERSONNEL ACTIONS (1) Any permanent appointee of a career service position
Promotion is a movement from one position to another (2) No commission of delinquency or misconduct, and is
with increase in duties and responsibilities as authorized by not separated.
law and is usually accompanied by an increase in pay.
Same effect as Executive Clemency, which completely
Next-in-rank Rule obliterates the adverse effects of the administrative
The person next in rank shall be given PREFERENCE in decision which found him guilty of dishonesty. He is
promotion when the position immediately above his is restored ipso facto upon grant of such. Application for
vacated. reinstatement = unnecessary.
However, the affected persons are entitled to payment of It does not constitute removal without cause.
salaries for services actually rendered at a rate fixed in
their promotional appointments. (Sec. 13 of the Omnibus Requirements:
Rules Implementing Administrative Code) (1) NO reduction in rank, status or salary.
(2) Should have a definite date or duration (c.f. Detail).
Requisites. Otherwise, a floating assignment = a diminution in status
(a) series of promotions or rank.
(b) all promotional appointments are simultaneously
submitted to the Commission for approval
(c) the Commission disapproves the appointment of a Reemployment
person to a higher position. Names of persons who have been appointed permanently
to positions in the career service and who have been
Appointment through Certification is issued to a person who separated as a result of reduction in force and/or
is: reorganization, shall be entered in a list from which
(1) selected from a list of qualified persons certified by the selection for reemployment shall be made.
Civil Service Commission from an appropriate register of
eligibles
(2) qualified
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court, instituted by written accusation called ‘articles of (6) Publicize matters covered by its investigation when
impeachment.’” [Agpalo, 2005] circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
Its purpose is to protect the people from official mismanagement, fraud, and corruption in the
delinquencies or malfeasances. It is primarily intended for Government and make recommendations for their
the protection of the State, not for the punishment of the elimination and the observance of high standards of
offender. The penalties attached to impeachment are ethics and efficiency.
merely incidental to the primary intention of protecting the (8) Promulgate its rules of procedure and exercise such
people as a body politic. [De Leon, 2008] other powers or perform such functions or duties as
may be provided by law. [SEC. 13, ART. XI,
GROUNDS [Sec. 2, Art. XI, Constitution] CONSTITUTION]
(1) culpable violation of the Constitution
(2) treason
(3) bribery Sec. 15. Powers, Functions and Duties. – The Office of the
(4) graft and corruption Ombudsman shall have the following powers, functions
(5) other high crimes and duties
(6) betrayal of public trust
Paragraphs 1-7 is almost the same as in the Constitution
The acts which are impeachable grounds must be
committed in the performance of the official’s public office. (8) Administer oaths, issue subpoena and subpoena
[Agpalo, 2005] ducestecum, and take testimony in any investigation or
inquiry, including the power to examine and have
No impeachment proceedings shall be initiated against access to bank accounts and records;
the same official more than once within a period of one (9) Punish for contempt in accordance with the Rules of
year. [Sec. 3, Art. XI, Constitution] Court and under the same procedure and with the
same penalties provided therein;
“Having concluded that the initiation takes place by the act (10) Delegate to the Deputies, or its investigators or
of filing of the impeachment complaint and referral to the representatives such authority or duty as shall ensure
House Committee on Justice, the initial action taken the effective exercise or performance of the powers,
thereon, the meaning of Section 3 (5) of Article XI becomes functions, and duties herein or hereinafter provided;
clear. Once an impeachment complaint has been initiated (11) Investigate and initiate the proper action for the
in the foregoing manner, another may not be filed against recovery of ill-gotten and/or unexplained wealth
the same official within a one year period following Article amassed after February 25, 1986 and the prosecution
XI, Section 3(5) of the Constitution.” [Francisco, Jr. v. House of the parties involved therein [SEC. 15, RA 6770]
of Representatives, (2003)]
DISCIPLINARY POWER OVER PUBLIC OFFICERS
OMBUDSMAN [Agpalo, 2005] The Office of the Ombudsman has disciplinary authority
FUNCTIONS over all elective and appointive officials of the government
and its subdivisions, instrumentalities and agencies,
The Office of the Ombudsman shall have the following including Members of the Cabinet, local government,
powers, functions and duties: government-owned or controlled corporations and their
(1) Investigate on its own, or on complaint by any person, subsidiaries. (Sec. 21, RA 6770)
any act or omission of any public official, employee, The disciplinary power of the Ombudsman is not exclusive
office or agency, when such act or omission appears to but is shared with other disciplinary authorities of the
be illegal, unjust, improper, or inefficient. government.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any The disciplinary power of the Ombudsman over elective
subdivision, agency or instrumentality thereof, as well officials is concurrent with the power vested in the officials
as of any government-owned or controlled corporation specified in the Local Government Code of 1991. [Hagad v.
with original charter, to perform and expedite any act Dozo-Dadole, (1995)]
or duty required by law, or to stop, prevent, and correct
any abuse or impropriety in the performance of duties. Exceptions to Ombudsman’s Disciplinary Power
(3) Direct the officer concerned to take appropriate action The Ombudsman has no disciplinary power over the
against a public official or employee at fault, and following (Sec. 21, RA 6770). –
recommend his removal, suspension, demotion, fine, (1) Officials who may be removed only by impeachment
censure, or prosecution, and ensure compliance (2) Members of Congress
therewith. (3) Members of the Judiciary
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by However, the Office of the Ombudsman has the power to
law, to furnish it with copies of documents relating to investigate any serious misconduct in office committed by
contracts or transactions entered into by his office officials removable by impeachment, for the purpose of
involving the disbursement or use of public funds or filing a verified complaint for impeachment, if warranted.
properties, and report any irregularity to the (Sec. 22, RA 6770)
Commission on Audit for appropriate action.
(5) Request any government agency for assistance and Power to Preventively Suspend
information necessary in the discharge of its The Ombudsman or his Deputy may preventively suspend
responsibilities, and to examine, if necessary, pertinent any officer or employee under his authority pending an
records and documents. investigation, if in his judgment the evidence of guilt is
strong, and
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(1) the charge against such officer or employee involves In the absence of any allegation that the offense charged
dishonesty, oppression or grave misconduct or neglect was necessarily connected with the discharge of the duties
in the performance of duty; or functions of a public officer, the ordinary court, not the
(2) the charges would warrant removal from the service; or Sandiganbayan, has jurisdiction to hear and decide the
(3) the respondent's continued stay in office may prejudice case.
the case filed against him. (Sec. 24, RA 6770)
What is controlling is not whether the phrase "committed
The preventive suspension shall continue until the case is in relation to public office" appears in the Information.
terminated by the Office of the Ombudsman but not more What determines the jurisdiction of the Sandiganbayan is
than six (6) months, without pay, except when the delay in the specific factual allegation in the Information that
the disposition of the case by the Office of the would indicate close intimacy between the discharge of the
Ombudsman is due to the fault, negligence or petition of accused's official duties and the commission of the offense
the respondent, in which case the period of such delay charged in order to qualify the crime is having been
shall not be counted in computing the period of committed in relation to public office. The relation
suspension herein provided. (Sec. 24, RA 6770) between the crime and the office must be direct and not
accidental, that is, the relation has to be such that, in the
Prior notice and hearing is not required before suspension legal sense, the offense cannot exist without the office.
may be meted out. Suspension is not a punishment or
penalty but only a preventive measure to prevent the OFFICIALS AND PRIVATE INDIVIDUALS SUBJECT TO ITS JURISDICTION
respondent from using his position or office to influence or Under Section 4(a, b) of PD No. 1606, as amended, the
intimidate prospective witnesses or tamper with the Sandiganbayan shall exercise exclusive original jurisdiction
records which may be vital in the prosecution of the case over the cases mentioned in (a), (b), and (c) above where
against them. one or more of the accused are officials occupying
the following positions in the government, whether in a
JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS permanent, acting or interim capacity at the time of the
Decisions or resolutions of the Ombudsman in commission of the offense:
administrative cases absolving the respondent of the (1) Officials of the executive branch occupying the positions
charge or imposing upon him the penalty of public censure of regional director and higher, otherwise classified as
or reprimand, suspension of not more than one month, or a Grade '27' and higher, of the Compensation and
fine equivalent to one month salary, is final and Position Classification Act of 1989 (R.A. No. 6758),
unappealable. (Agpalo, 2005) specifically including:
(a) Provincial governors, vice-governors, members of
Appeals from decisions of the Office of the Ombudsman in the sangguniang panlalawigan, and provincial
administrative disciplinary cases should be taken to the treasurers, assessors, engineers, and other
Court of Appeals under the provisions of Rule 43. [Fabian provincial department heads;
v. Ombudsman, (1998)] (b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
JUDICIAL REVIEW IN PENAL PROCEEDINGS assessors, engineers, and other city department
In all other cases, the decision shall become final after the heads;
expiration of 10 days from receipt thereof by the (c) Officials of the diplomatic service occupying the
respondent, unless a motion for reconsideration or a position of consul and higher;
petition for review is file with the CA pursuant to Rule 43 of (d) Philippine army and air force colonels, naval
the Rules of Court. (Agpalo, 2005) captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
SANDIGANBAYAN occupying the position of provincial director and
COMPOSITION those holding the rank of senior superintendent or
Under PD 1606 as amended by RA 8249 - A special court, higher;
of the same level as the Court of Appeals and possessing (f) City and provincial prosecutors and their assistants,
all the inherent powers of a court ofjustice, to be known as and officials and prosecutors in the Office of the
the Sandiganbayan is hereby created composed of a Ombudsman and special prosecutor;
presiding justice and fourteen associate justices who shall
be appointed by the President (2) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
EXCLUSIVE ORIGINAL JURISDICTION OVER universities or educational institutions or foundations;
(1) violations of R.A. No. 3019 and No. 1379 (3) Members of Congress and officials thereof classified as
(2) crimes committed by public officers and employees Grade "27" and up under the Compensation and
embraced in Title VIII of the Revised Penal Code Position Classification Act of 1989;
(3) other offenses or felonies (whether simple or (4) Members of the judiciary without prejudice to the
complexed with other crimes) committed by public provisions of the Constitution;
officers and employees in relation to their office, where (5) Chairmen and members of Constitutional
the penalty prescribed by law is higher than prision Commissions, without prejudice to the provisions of the
correccional or imprisonment for six (6) years, or a fine Constitution; and
of P6,000; and (6) All other national and local officials classified as Grade
(4) Civil and criminal cases filed pursuant to and in "27" and higher under the Compensation and Position
connection with Executive Orders No. 1,2, 14, and 14-a Classificafion Act of 1989.
issued in 1986
In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
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Kind of Due process does not always entail notice and hearing
Administrative Judicial
Proceedings prior to the deprivation of a right. Hearing may occur after
parties deprivation, as in emergency cases, in which case, there
must be a chance to seek reconsideration. [UP Board of
The agency itself The parties are Regents v. CA (1999)]
may be a party to only the private
Parties
the proceedings litigants Presence of a party at a trial is not always the essence of
before it due process. All that the law requires is the element of
fairness; that the parties be given notice of trial and
Requisites for a Valid Exercise (1) an opportunity to be heard
(1) Jurisdiction (2) in administrative proceedings, an opportunity to seek
(2) Due process reconsideration
(3) an opportunity to explain one’s side
General Rule
A tribunal, board or officer exercising judicial functions acts The law, in prescribing a process of appeal to a higher
without jurisdiction if no authority has been conferred to it level, contemplates that the reviewing officer is a person
by law to hear and decide cases different from the one who issued the appealed decision.
(1) Jurisdiction to hear is explicitly or by necessary Otherwise, the review becomes a farce; it is rendered
implication, conferred through the terms of the meaningless. [Rivera v. CSC (1995)]
enabling statute.
(2) Effect of administrative acts outside jurisdiction—Void. Is a trial necessary? —NO. WON to hold an adversarial trial
is discretionary. Parties cannot demand it as a matter of
Powers included in Quasi-Judicial Function right. [Vinta Maritime v. NLRC (1978)].
(1) Subpoena Power – In any contested case, the agency
shall have the power to require the attendance of The right of a party to confront and cross-examine
witnesses or the production of books, papers, opposing witness is a fundamental right which is part of
documents and other pertinent data. [Sec. 13, 1987 due process. If without his fault, this right is violated, he is
Admin Code] entitled to have the direct examination stricken off the
(2) Contempt Power record. [Bachrach Motors v. CIR (1978)]
General Rule: Get the aid of RTC.
Exception: Law gives agency contempt power. [Sec. 13, Evidence on record must be fully disclosed to the parties.
1987 Admin Code] [American Inter-Fashion v. Office of the President (1991)] but
(3) Power to issue Search Warrant or Warrant of Arrest respondents in administrative cases are not entitled to be
General Rule: Only Judges may issue informed of findings of investigative committees but only
Exception: Deportation Proceedings [Harvey v. of the decision of the administrative body. [Pefianco v.
Defensor-Santiago (1988)] Moral (2000)]
Administrative Due Process Due process is violated when:
Due Process (1) There is failure to sufficiently explain the reason for the
Findings of facts by administrative bodies which observed decision rendered; or
procedural safeguards (e.g. notice and hearing parties, and (2) If not supported by substantial evidence;
a full consideration of evidence) are accorded the greatest (3) And imputation of a violation and imposition of a fine
respect by courts despite absence of due notice and hearing. [Globe
Telecom v. NTC (2004)].
Cardinal Primary Rights
Ang Tibay v CIR (1950) lays down the cardinal primary Self-incrimination
rights: The right against self-incrimination may be invoked by the
(1) Right to a hearing (Includes the right of a party to respondent at the time he is called by the complainant as
present his own case and submit evidence in support a witness. However, if he voluntarily takes the witness
thereof) stand, he can be cross examined; but he may still invoke
(2) The tribunal must consider the evidence presented the right when the question calls for an answer which
(3) Decision must be supported by evidence. incriminates him for an offense other than that charged.
(4) Evidence must be substantial. [People v. Ayson (1989)]
Quantum of Proof (Substantial Evidence) Notice and Hearing
The amount of relevant evidence which a reasonable When required:
mind might accept as adequate to justify a conclusion (1) When the law specifically requires it.
[Sec. 5 Rule 134 Rules of Court] (2) When it affects a person’s status and liberty.
(5) Decision must be rendered on the evidence presented When not required:
at the hearing or at least contained in the record and (1) Urgent reasons.
disclosed to the parties affected (2) Discretion is exercised by an officer vested with it upon
(6) Independent consideration of judge (Must not simply an undisputed fact.
accept the views of a subordinate) (3) If it involves the exercise of discretion and there is no
(7) Decision rendered in such a manner as to let the parties grave abuse.
know the various issues involved and the reasons for (4) When rules to govern future conduct of persons or
the decision rendered. enterprises, unless law provides otherwise.
(5) In the valid exercise of police power.
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When are notice and hearing required in licensing? Only if DOCTRINE OF PRIMARY ADMINISTRATIVE
it is a contested case. Otherwise, it can be dispensed JURISDICTION
with.(e.g. driver’s licenses). General Rule: Courts will not intervene if the question to be
resolved is one which requires the expertise of
No expiry date does not mean the license is perpetual. A administrative agencies and the legislative intent on the
license permit is a special privilege, a permission or matter is to have uniformity in the rulings.
authority to do what is within its terms. It is always
revocable. [Gonzalo Sy Trading v. Central bank (1976)] It can only occur where there is a concurrence of
jurisdiction between the court and the administrative
FIXING OF RATES, WAGES, PRICES agency.
“Rate” means any charge to the public for a service open
to all and upon the same terms, including individual or It is a question of the court yielding to the agency because
joint rates, tolls, classification or schedules thereof, as well of the latter’s expertise, and does not amount to ouster of
as communication, mileage, kilometrage and other special the court. [Texas & Pacific Railway v. Abilene (1907)]
rates which shall be imposed by law of regulation to be
observed and followed by any person. [Sec. 2(3), 1987 It is the recent jurisprudential trend to apply the doctrine of
Administrative Code] primary jurisdiction in many cases that demand the special
competence of administrative agencies. It may occur that
the Court has jurisdiction to take cognizance of a particular
Public Participation. – (2) In the fixing of rates, no rule or case, which means that the matter involved is also judicial
final order shall be valid unless the proposed rates shall in character. However, if the determination of the case
have been published in a newspaper of general circulation requires the expertise, specialized skills and knowledge of
at least 2 weeks before the first hearing thereon. [Sec. 9, the proper administrative bodies because technical
1987 Administrative Code] matters or intricate questions of facts are involved, then
relief must first be obtained in an administrative proceeding
Generally, the power to fix rates is a quasi-legislative before a remedy will be supplied by the courts even though
function. However, it becomes judicial when the rate is the matter is within the proper jurisdiction of a court.
applicable only to an individual. [Industrial Enterprises v. CA (1990)]
Can the power to fix rates be delegated to a common Well-entrenched is the rule that courts will not interfere in
carrier or other public service? NO. The latter may propose matters which are addressed to the sound discretion of the
new rates, but these will not be effective without the government agency entrusted with the regulation of
approval of the administrative agency. [KMU v. Garcia activities coming under the special and technical training
(1994)] and knowledge of such agency. Administrative agencies are
given a wide latitude in the evaluation of evidence and in the
What are considered in the fixing of rates? exercise of their adjudicative functions, latitude which
(1) The present valuation of all the property of a public includes the authority to take judicial notice of facts within
utility, and their special competence [Quiambao v. CA (2005)]
(2) The fixed assets.
The doctrine of primary jurisdiction applies where a claim is
The property is deemed taken and condemned by the originally cognizable in the courts, and comes into play
public at the time of filing the petition, and the rate should whenever enforcement of the claim requires the resolution
go up and down with the physical valuation of the of issues which, under a regulatory scheme, have been
property. [Ynchausti v. Public Utility Commissioner (1922)] placed within the special competence of an administrative
body; in such case, the judicial process is suspended
pending referral of such issues to the administrative body
for its view. And, in such cases, the court cannot arrogate
Judicial Recourse and Review into itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an
administrative body of special competence. [Sherwill v.
General Rule: Judicial review may be granted or withheld as Sitio Sto Nino (2005)]
Congress chooses. Thus, a law may provide that the
decision of an administrative agency shall be final and RATIONALE: In this era of clogged docket courts, the need
irreviewable and still not offend due process. for specialized administrative boards with the special
knowledge and capability to hear and determine promptly
Exception: Judicial Power vests in the Supreme Court the disputes on technical matters has become well nigh
power to determine whether or not there is grave abuse of indispensable. Between the power lodged in an
dicretion. [Nachura] administrative body and a court, the unmistakable trend
has been to refer it to the former. [GMA v. ABS CBN (2005)]
Rule 43 of the Rules of Court provides that the Court of
Appeals shall have appellate jurisdiction over judgments REQUISITES:
or final orders of the Court of Tax Appeals and from (1) Administrative body and the regular court have
awards, judgments, final orders or resolutions of or concurrent and original jurisdiction
authorized by any quasi-judicial agency in the exercise of (2) Question to be resolved requires expertise of
its quasi-judicial functions. administrative agency
(3) Legislative intent on the matter is to have uniformity in
rulings
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(4) Administrative agency is performing a quasi-judicial or (9) When it involves the rule-making or quasi-legislative
adjudicatory function (not rule-making or quasi- functions of an administrative agency. [Smart v. NTC
legislative function [Smart v. NTC (2003)] (2003)]
(10) Administrative agency is in estoppel. [Republic v.
Rationale: It is presumed that an administrative agency, if Sandiganbayan (1996)]
afforded an opportunity to pass upon a matter, would (11) Doctrine of qualified political agency
decide the same correctly, or correct any previous error (12) Subject of controversy is private land in land case
committed in its forum [Caballes v Sison (2004)] proceedings. [Paat v. CA (1997)]
(13) Blatant violation of due process. [Paat v. CA (1997);
WHEN THE DOCTRINE IS INAPPLICABLE: Pagara v. CA]
(1) If the agency has exclusive jurisdiction (14) Where there is unreasonable delay or official inaction.
(2) When the issue is not within the competence of the [Republic v. Sandiganbayan (1996)]
administrative body to act on. (15) Administrative action is patently illegal amounting to
(3) When the issue involved is clearly a factual question lack or excess of jurisdiction. [Paat v. CA (1997)]
that does not require specialized skills and knowledge (16) Resort to administrative remedy will amount to a
for resolution to justify the exercise of primary nullification of a claim. [DAR v. Apex Investment (2003);
jurisdiction. Paat v. CA (1997)]
(17) No administrative review provided for by law. [Estrada
EFFECT v. CA (2004)]
The case is not dismissed, but merely suspended until after (18) Issue of non-exhaustion of administrative remedies
the matters within the competence of the administrative rendered moot. [Estrada v. CA (2004)]
agency are threshed out and determined. [Vidad v. RTC (19) In quo warranto proceedings. [Corpus v. Cuaderno
(1993)] (1962)]
(20) Law expressly provides for a different review
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE procedure. [Samahang Magbubukid v. CA (1999)]
REMEDIES
General Rule: Where the law has delineated the procedure EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES:
by which administrative appeal or remedy could be It does not affect jurisdiction of the court.
effected, the same should be followed before recourse to
judicial action can be initiated. [Pascual v. Provincial Board The only effect of non-compliance is it that will deprive
(1959)] complainant of a cause of action, which is a ground for a
motion to dismiss.
REQUISITES:
(1) The administrative agency is performing a quasi-judicial But if not invoked at the proper time, this ground is
function. deemed waived. [Republic v. Sandiganbayan (1996)]
(2) Judicial review is available.
(3) The court acts in its appellate jurisdiction. Doctrine of Primary
Doctrine of Exhaustion of
Administrative
Administrative Remedies
RATIONALE: Jurisdiction
(1) Legal reason: The law prescribes a procedure.
Jurisdiction of Court
(2) Practical reason: To give the agency a chance to correct
its own errors [and prevent unnecessary and premature Concurrent Original
resort to the courts Appellate Jurisdiction with Admin
(3) Reasons of comity: Expedience, courtesy, convenience. Body
Ground for non-exercise of Jurisdiction
EXCEPTIONS TO THE DOCTRINE OF EXHAUSTION OF REMEDIES:
(1) Purely legal questions. [Castro v. Secretary (2001)] The court yields to the
(2) Steps to be taken are merely matters of form. [Pascual jurisdiction of the
Exhaustion of
v. Provincial Board (1959)] Administrative agency
Administrative Remedy a
(3) Administrative remedy not exclusive but merely because of its
condition precedent.
cumulative or concurrent to a judicial remedy. [Pascual specialized knowledge
v. Provincial Board (1959)] or expertise
(4) Validity and urgency of judicial action or intervention. Court Action
[Paat v. CA (1997)]
(5) No other plain, speedy, adequate remedy in the Dismiss Suspend Judicial Action
ordinary course of the law. [Paat v. CA (1997);
Information Technology Found’n v. COMELEC (2004)] DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION
(6) Resort to exhaustion will only be oppressive and No resort to the courts will be allowed unless the
patently unreasonable. [Paat v. CA (1997); Cipriano v. administrative action has been completed and there is
Marcelino (1972)] nothing left to be done in the administrative structure.
(7) Where the administrative remedy is only permissive or
voluntary and not a prerequisite to the institution of The Doctrine of Finality of Administrative Action is a
judicial proceedings. [Corpuz v. Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
(8) Application of the doctrine will only cause great and Exhaustion of Administrative Remedies. It is a prerequisite
irreparable damage which cannot be prevented except for judicial review.
by taking the appropriate court action. [Paat v. CA
(1997); Cipriano v. Marcelino (1972)]
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SCOPE
Election – the means by which the people choose their
officials for a definite and fixed period and to whom they
entrust for the time being the exercise of the powers of Qualification and
government.
Disqualification of Voters
KINDS OF ELECTION
Regular – one provided by law for the election of officers QUALIFICATIONS
either nation-wide or in certain subdivisions thereof, after [Art. V, Sec. 1, 1987 Const.]
the expiration of the full term of the former officers. (1) Citizenship: Filipino citizen by birth or naturalization
Incumbent upon one who claims Philippine
Note: The SK election is not a regular election because citizenship to prove to the satisfaction of the courth
the latter is participated in by youth with ages ranging that he is really Filipino. Any doubt regarding
from 15-21 (now 15-18 as per RA 9164), some of whom are
citizenship must be resolved in favor of the state. [Go
not qualified voters to elect local or national elective
officials [Paras v. COMELEC (1996)] v. Ramos (2009)]
Special – one held to fill a vacancy in office before the (2) Age: at least 18 at the time of the election
expiration of the full term for which the incumbent was
elected. (3) Residency:
(a) Resident of the Philippines for at least 1 year and
Plebiscite – election at which any proposed amendment (b) Resident of the place wherein they propose to
to, or revision of, the Constitution is submitted to the vote for at least 6 months immediately preceding
people for their ratification. It is also the means by which the election
the voter in affected areas consent or object to the
change in the form of local government Note: Any person who temporarily resides in another
city, municipality or country solely by reason of his:
Referendum – submission of a law passed by the national (1) employment in private or public service
or local legislative body to the registered voters at an (2) educational activities
election called for the purpose for their ratification or (3) work in the military or naval reservations within
rejection. the Philippines
(4) service in the AFP, PNP or
Initiative – the power of the people to propose (5) confinement or detention in government
amendments to the Constitution or to propose and enact institutions in accordance with law shall not be
legislation through an election called for the purpose. deemed to have lost his original residence [Sec. 9,
[Sec. 3(a), R.A. 6735, The Initiative and Referendum Act] R.A. 8189, Voter’s Registration Act of 1996]
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constituted government (e.g. rebellion, sedition, of the city or municipality wherein he resides and
violation of the firearms law) or any crime against including the same in the book of registered voters upon
national security (unless restored to full civil and approval by the Election Registration Board. [Sec. 3(a),
political rights in accordance with law) shall R.A. 8189]
automatically reacquire the right to vote upon the
expiration of 5 years after the service of sentence Registration does not confer the right to vote but it is a
(c) Insane or incompetent persons as declared by condition precedent to the exercise of the right [Yra v.
competent authority Abano (1928)]
Registered voter: In order that a qualified elector may vote SYSTEM OF CONTINUING REGISTRATION OF
in any election, plebiscite or referendum, he must be VOTERS
registered in the Permanent List of Voters for the city or The personal filing of application of registration of voters
municipality in which he resides. [Sec. 115, B.P. 881, shall be conducted daily in the office of the Election
Omnibus Election Code] Officer during regular office hours.
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(2) Members: the right to vote upon the expiration of 5 years after
(a) Public school official most senior in rank the service of sentence
(b) Local civil registrar, or in his absence, the city or
municipal treasurer. If neither are available, any (3) Insane or incompetent persons as declared by
other appointive civil service official from the competent authority
same locality as designated by the COMELEC.
(4) Did not vote in the 2 successive preceding regular
Disqualification: relation to each other or to any elections (excluding SK elections)
th
incumbent city or municipal elective official within the 4
civil degree of consanguinity or affinity. [Sec. 15, RA 8189] (5) Registration has been ordered excluded by the Court
and
CHANGE OF RESIDENCE OR ADDRESS
CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY (6) Lost his Filipino citizenship. [Sec. 27, RA 8189]
The registered voter may apply with the Election Officer
of his new residence for the transfer of his registration REACTIVATION OF REGISTRATION
records. [Sec. 12, RA 8189] Any voter whose registration has been deactivated may
file with the Election Officer a sworn application for
CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY reactivation of his registration in the form of an affidavit
Voter shall immediately notify the Election Officer in stating that the grounds for the deactivation no longer
writing. [Sec. 13, RA 8189] exist.
CHALLENGES TO RIGHT TO REGISTER When: Any time not later than 120 days before a regular
WHO MAY CHALLENGE APPLICATION FOR REGISTRATION election and 90 days before a special election. [Sec. 28,
Any voter, candidate or representative of a registered RA 8189]
political party.
Election Officer shall submit said application to the ERB
FORM and if approved, the Election Officer shall retrieve the
(1) In writing registration record from the inactive file and include the
(2) State the grounds therefor same in the corresponding precinct book of voters
(3) Under oath and
(4) Attached to the application, together with the proof Local heads or representatives of political parties shall be
of notice of hearing to the challenger and the properly notified on approved applications
applicant
CERTIFIED LIST OF VOTERS
WHEN FILED List of Voters – refers to an enumeration of names of
nd
Must be filed not later than the 2 Monday of the month registered voters in a precinct duly certified by the
in which the same is scheduled to be heard or processed Election Registration Board for use in the Election
by the ERB [Sec. 18, RA 8189]
Preparation - The ERB shall prepare and post a certified
HEARING list of voters 90 before a regular election and 60 days
rd
3 Monday of the month before a special election. [Sec. 30, RA 8189]
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POLITICAL PARTY
An organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct
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of government and which, as the most immediate means GROUPS WHICH CANNOT BE REGISTERED AS POLITICAL PARTIES
of securing their adoption, regularly nominates certain of (1) Religious denominations and sects
its leaders and members as candidates for public office. (2) Those which seek to achieve their goals through
[Sec. 60, BP 881 and Sec. 3(c) of RA 7941] violence or unlawful means
(3) Those which refuse to uphold and adhere to the
3 KINDS OF PARTIES: Constitution
(1) National party - constituency is spread over the (4) Those supported by foreign governments [Art. IX-C,
geographical territory of at least a majority of the Sec. 2 (5), Constitution]
regions.
(2) Regional party - constituency is spread over the PURPOSE OF REGISTRATION
geographical territory of at least a majority of the (1) To acquire juridical personality
cities and provinces comprising the region. (2) To entitle it to rights and privileges granted to
(3) Sectoral party – organized group of citizens belonging political parties
to any of the following sectors: labor, peasant, (3) To participate in the party-list system
fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION
veterans, overseas workers and professionals whose The COMELEC may, motu propio or upon verified
principal advocacy pertains to the special interests complaint of any interested party, refuse or cancel, after
and concerns of their sector. due notice and hearing, the registration of any national,
regional or sectoral party, organization or coalition on any
Sectoral organization: group of citizens or a coalition of of the following grounds:
groups of citizens who share similar physical attributes or (1) Religious sect or denomination, organization or
characteristics, employment, interests or concerns. association, organized for religious purposes
(2) Advocates violence or unlawful means to seek its goal
Coalition: an aggrupation of duly registered national, (3) Foreign party or organization
regional, sectoral parties or organizations for political (4) Receives support from any foreign government,
and/or election purposes. [Sec. 3, R.A. 7941, Party-List foreign political party, foundation, organization,
System Act] whether directly or through any of its officers or
members or indirectly through third parties for
PURPOSE partisan election purposes
To enable Filipino citizens belonging to marginalized and (5) Violates or fails to comply with laws, rules or
underrepresented sectors, organizations and parties, and regulations relating to elections
who lack well-defined political constituencies but who (6) Declares untruthful statements in its petition
could contribute to the formulation and enactment of (7) Ceased to exist for at least 1 year
appropriate legislation that will benefit the nation as a (8) Fails to participate in the last 2 preceding elections or
whole, to become members of the House of (9) Fails to obtain at least 2% of the votes cast under the
Representatives. [Sec. 2, R.A. 7941] party-list system in the 2 preceding elections for the
constituency in which it has registered [Sec. 6, RA
REGISTRATION 7941]
Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list CERTIFIED LIST OF REGISTERED PARTIES
sytem. COMELEC shall prepare a certified list of national,
regional, or sectoral parties, organizations or coalitions
PROCEDURE FOR REGISTRATION which have applied or who have manifested their desire
to participate under the party-list system
File with the COMELEC not later than 90 days before
the election a petition verified by its president or
Must prepare the list not later than 60 days before
secretary stating its desire to participate in the party-
election.
list system as a national, regional or sectoral party or
organization or a coalition of such parties or
Names of party-list nominees shall not be shown on the
organizations attaching thereto its constitution, by-
certified list [Sec. 7, RA 7941]
laws, platform or program of government, list of
officers, coalition agreement and other relevant
NOMINATION OF PARTY -LIST REPRESENTATIVES
information as the COMELEC may require
Each registered party, organization or coalition shall
submit to the COMELEC not later than 45 days before the
election a list of names, not less than 5, from which party-
COMELEC shall publish the petition in at least 2 list representatives shall be chose in case it obtains the
national newspapers of general circulation required number of votes.
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No change of names or alteration shall be allowed after There are 2 steps in the second round of seat allocation:
the same shall have been submitted to the COMELEC (1) The percentage of votes garnered by each party-list
except when: candidate is multiplied by the remaining available
(1) the nominee dies seats. The whole integer of the product corresponds
(2) withdraws his nomination to a party’s share in the remaining available seats
(3) becomes incapacitated
Formula for remaining available seats =
Incumbent sectoral representatives in the House of No. of seats available to party- x Guaranteed seats
Representatives who are nominated shall not be list representatives of the two-
considered resigned [Sec. 8, RA 7941] percenters
QUALIFICATIONS OF PARTY LIST REPRESENTATIVES Formula for percentage of votes garnered by each party-list
(1) Natural-born citizen of the Philippines candidate =
(2) Registered voter
(3) Resident of the Philippines for a period of not less
No. of votes garnered by each
party ÷ Total no. of votes
cast for party-list
than 1 year immediately preceding the day of the candidates
election
(4) Able to read and write (2) Assign one party-list seat to each of the parties next
(5) Bona fide member of the party or organization which in rank until all available seats are completely
he seeks to represent for at least 90 days preceding distributed.
the day of the election
(6) at least 25 years old on the day of the election BOC’s Note: Atong Paglaum v. COMELEC, G.R. No.
203766, April 3, 2013 is beyond the 2013 Bar Coverage
PARAMETERS IN ALLOCATION OF SEATS FOR cut-off date, but the decision reversed and significantly
PARTY-LIST REPRESENTATIVES modified previous Court rulings on the party-list system.
20% ALLOCATION
The combined number of all party-list congressmen shall EFFECT OF CHANGE OF AFFILIATION
not exceed 20% of the total membership of the House of Any elected party-list representative who changes his
Representatives, including those elected under the party- political party or sectoral affiliation:
list. (1) during his term of office shall forfeit his seat
(2) within 6 months before an election shall not be
Number available to x 20 = Number of seats eligible for nomination as party-list representative
party-list available to under his new party or organization [Sec. 15, R.A.
representatives actually party-list 7941]
obtained, is entitled to a representatives
maximum of 3 seats;
one qualifying and of
seats available to
legislative districts Candidacy
.80
QUALIFICATIONS OF CANDIDATES
2% THRESHOLD CANDIDATE, DEFINITION
Only those parties garnering a minimum of 2% of the Any person who files his certificate of candidacy within
total votes cast for the party-list system shall be entitled prescribed period shall only be considered as a candidate
to one guaranteed seat each. at the start of the campaign period for which he filed his
certificate of candidacy. [Sec. 15, R.A. 9369, Poll
PROPORTIONAL REPRESENTATION Automation Law]
The additional seats shall be computed in “proportion to
their total number of votes”. Unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid
3-SEAT LIMIT campaign period. [Sec. 15, R.A. 9369]
Each party, regardless of the number of votes it actually
obtained, is entitled to a maximum of 3 seats; one Any registered national, regional, or sectoral party,
qualifying and 2 additional seats. organization or coalition thereof that has filed a
manifestation to participate under the party-list system
Banat vs. Comelec GR No. 179271, July 8. 2009 which has not withdrawn or which has not been
Held: In computing the allocation of additional seats, the disqualified before the start of the campaign period.
continued operation of the 2% threshold for the [Comelec Res. 8758, Feb. 4, 2010]
distribution of the additional seats as found in the second
clause of Sec. 11(b) of R.A. 7941 which provides that QUALIFICATIONS
“those garnering more than 2% of the votes shall be Qualifications prescribed by law are continuing
entitled to additional seats in proportion to their total requirements and must be possessed for the duration of
number of votes” is unconstitutional. The 2% threshold the officer's active tenure [Frivaldo v. COMELEC (1989);
frustrates the attainment of the permissive ceiling that Labo v. COMELEC (1989)].
20% of the members of the HR shall consist of party-list
representatives.
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Requirements Pres/VP Senator District Rep Gov/ Vice Gov/ Mayor/ Vice
Mayor/ P.Brgy/Sanggunian
Member
Citizenship Natural -born Natural -born Natural -born Citizen of the Philippines
Registered Voter ✔ ✔ ✔ ✔
Read and Write ✔ ✔ ✔ ✔
Age At least 40 on At least 35 on election At least 25 on election On election day:
election day day day 23 – gov., vice gov., member of
sangguniang panlalawigan,
mayor, vice mayor, member of
the sangguniang panlungsod of
HUC
18 – member of the
sangguniang panlungsod, or
bayan or punong baranggay or
member of the sangguniang
baranggay
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When: any day from the commencement of the election If the death, withdrawal or disqualification should happen
period but not later than the day before the beginning of between the day before the election and mid-day of the
the campaign period. election day, certificate may be filed with:
(1) any Board of Election Inspectors in the political
In cases of postponement or failure of election, no subdivision where he is a candidate or
additional certificate of candidacy shall be accepted except (2) with the COMELEC if it is a national position [Sec. 77,
in cases of substitution of candidates. [Sec. 75, B.P. 881] B.P. 881]
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Proceeding: summary in nature Any candidate who has been declared by final judgment to
be disqualified –
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY (1) shall not be voted for and
Who may file: Any person (2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
When: Any time not later than 25 days from the time of the an election to be disqualified and he is voted for and
filing of the certificate of candidacy receives the winning number of votes in such election
Exclusive ground: any material representation contained in The Court or COMELEC shall continue with the trial and
the certificate of candidacy is false. Provided that hearing of the action, inquiry, or protest and
(1) the false representation pertains to material matter
affecting substantive rights of a candidate and Upon motion of the complainant or any intervenor, may
(2) the false representation must consist of deliberate during the pendency thereof, order the suspension of the
attempt to mislead, misinform, or hide a fact which proclamation of such candidate whenever the evidence of
would otherwise render a candidate ineligible [Salcedo his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
II v. COMELEC (1999)] Law of 1987]
Decision: Shall be decided, after due notice and hearing, Where a similar complaint/petition is filed:
not later than 15 days before the election. [Sec. 78, BP 881] (1) before the election and proclamation of the
respondent and the case is not resolved before the
The false representation must pertain to a material fact election - the trial and hearing of the case shall
that affects the right of the candidate to run for the continue and referred to the Law Department for
election for which he filed his COC. Such material fact preliminary investigation
refers to a candidate’s eligibility or qualification for elective (2) after the election and before the proclamation of the
office like citizenship, residence or status as a registered respondent - the trial and hearing of the case shall be
voter. Aside from the requirement of materiality, the false suspended and referred to the Law Department for
representation must consist of a deliberate attempt to preliminary investigation
mislead, misinform, or hide a fact that would otherwise
render a candidate ineligible. In other words, it must be Note: In either case, if the evidence of guilt is strong, the
made with the intention to deceive the electorate as to the COMELEC may order the suspension of the proclamation
would-be candidate’s qualifications for public office. [Salic of respondent, and if proclaimed, to suspend the effects of
Maruhom v. COMELEC (2009)] proclamation. [Sec. 4, Resolution No. 8678]
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Campaign (3) Members of the military [Art. XVI, Sec. 5 (3), Const.]
(4) Foreigners, whether juridical or natural persons.
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(2) is portrayed by an actor or media personality who is (2) includes the use of facilities personally owned by the
himself a candidate. [Sec. 6, RA 9006] candidate, the money value of the use of which can be
assessed based on the rates prevailing in the area.
ELECTION SURVEYS [Sec. 94, BP 881]
The measurement of opinions and perceptions of the
voters as regards a candidate's popularity, qualifications, PROHIBITED CONTRIBUTIONS
platforms or a matter of public discussion in relation to the (1) From Public or private financial institutions. Unless:
election, including voters' preference for candidates or (a) the financial institutions are legally in the business
publicly discussed issues during the campaign period. of lending money
(b) the loan is made in accordance with laws and
Surveys affecting national candidates shall not be regulations AND
published 15 days before an election and surveys affecting (c) the loan is made in the ordinary course of business
local candidates shall not be published 7 days before an (2) Natural and juridical persons operating a public utility
election. or in possession of or exploiting any natural resources
of the nation
Exit polls may only be taken subject to the following (3) Natural and juridical persons who hold contracts or
requirements: sub-contracts to supply the government or any of its
(1) Pollsters shall not conduct their surveys within 50m divisions, subdivisions or instrumentalities, with goods
from the polling place, whether said survey is taken in or services or to perform construction or other works
a home, dwelling place and other places (4) Grantees of franchises, incentives, exemptions,
(2) Pollsters shall wear distinctive clothing allocations or similar privileges or concessions by the
(3) Pollsters shall inform the voters that they may refuse government or any of its divisions, subdivisions or
to answer and instrumentalities, including GOCCs
(4) The result of the exit polls may be announced after the (5) Grantees, within 1 year prior to the date of the election,
closing of the polls on election day and must clearly of loans or other accommodations in excess of
identify the total number of respondents, and the P100,000 by the government or any of its divisions,
places where they were taken. Said announcement subdivisions or instrumentalities including GOCCs
shall state that the same is unofficial and does not (6) Educational institutions which have received grants of
represent a trend. [Sec. 5, RA 9006] public funds amounting to no less than P100,000
(7) Officials or employees in the Civil Service, or members
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL of the Armed Forces of the Philippines
ACTIVITY (8) Foreigners and foreign corporations, including foreign
(1) All applications for permits must immediately be governments. [Secs. 95 and 96, BP 881]
posted in a conspicuous place in the city or municipal
building, and the receipt thereof acknowledged in PROHIBITED FUND-RAISING ACTIVITIES
writing. The following are prohibited if held for raising campaign
(2) Applications must be acted upon in writing by local funds or for the support of any candidate from the start of
authorities concerned within 3 days after their filing. If the election period up to and including election day:
not acted upon within said period, deemed approved. (1) Dances
(3) The only justifiable ground for denial of the application (2) Lotteries
is when a prior written application by any candidate or (3) Cockfights
political party for the same purpose has been (4) Games
approved. (5) Boxing bouts
(4) Denial of any application for said permit is appealable (6) Bingo
to the provincial election supervisor or to the (7) Beauty contests
COMELEC whose decision shall be made within 48 (8) Entertainments, or cinematographic, theatrical or
hours and which shall be final and executory. [Sec. 87, other performances
BP 881]
For any person or organization, civic or religious, directly or
PROHIBITED CONTRIBUTIONS indirectly, to solicit and/or accept from any candidate or
DEFINITIONS from his campaign manager, agent or representative, or
Contribution: gift, donation, subscription, loan, advance or any person acting in their behalf, any gift, food,
deposit of money or anything of value, or a contract, transportation, contribution or donation in cash or in kind
promise or agreement to contribute from the start of the election period up to and including
(1) WON legally enforceable election day
(2) made for influencing the results of the elections
(3) excludes services rendered without compensation by Except: normal and customary religious stipends, tithes, or
individuals volunteering their time in behalf of a collections on Sundays and/or other designated collection
candidate or political party days [Sec. 97, BP 881]
(4) includes the use of facilities voluntarily donated by
other persons, the money value of which can be REQUISITES OF A PROHIBITED DONATION
assessed based on the rates prevailing in the area. Who: By candidate, spouse, relative within 2nd civil degree
[Sec. 94, BP 881] of consanguinity or affinity, campaign manager, agent or
representative; treasurers, agents or representatives of
Expenditures: payment of money or anything of value or a political party
contract, promise or agreement to make an expenditure
(1) for the purpose of influencing the results of the When: During campaign period, day before and day of the
election election
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Board of Election Inspectors its proceedings, the BEI may issue an order in writing
directing any peace officer to take said person into
(BEI) and Board of custody until the adjournment of the meeting, but such
order shall not be executed as to prevent said person
COMPOSITION OF BOARD OF ELECTION INSPECTORS (5) Furnish watchers Certificate of Votes (CEF No. A13)
COMPOSITION upon request
[Sec. 13, RA 6646 and Sec. 164, BP 881]
(1) Chairman – public school teacher (6) Perform such other functions as prescribed by the
(2) Poll Clerk – public school teacher Code or by the rules and regulations promulgated by
(3) Two members, each representing the two accredited the Commission
political parties
COMPOSITION OF BOARD OF CANVASSERS
QUALIFICATIONS [Sec. 20, RA 6646]
[Sec. 166, BP 881]
(1) Good moral character and irreproachable reputation
Province City Municipality
(2) Registered voter of the city or municipality
(3) Never been convicted of any election offense or any Chairman
other crime punishable by more than 6 months of
imprisonment, or if he has pending against him an Provincial election City election Election registrar
information for any election offense supervisor or registrar or a or COMELEC
(4) Speak , read and write English or the local dialect lawyer in the lawyer of representative
(5) At least 1 member of the BEI shall be an information COMELEC COMELEC;
technology-capable person who is trained and certified regional office
by the DOST to use the AES (where AES shall be In cities with more
adopted) [Sec. 3, RA 9369 Amended Automated than 1 election
Elections System Law] registrar,
COMELEC shall
DISQUALIFICATIONS designate
[Sec. 167, BP 881]
Vice Chairman
(1) Related within 4th degree of consanguinity or affinity
to any member of the BEI Provincial fiscal City fiscal Municipal
(2) Related within 4th degree of consanguinity or affinity treasurer
to any candidate to be voted for in the polling place or
his spouse Member
(3) Not engaged in any partisan political activity or take Provincial City Most senior district
part in the election except to discharge his duties as superintendent of superintendent of school supervisor
such and to vote [Sec. 173, BP 881] schools schools or in his absence, a
principal of the
POWERS OF BOARD OF ELECTION INSPECTORS school district or
[Sec. 10, COMELEC Resolution 9640, General Instructions elementary school
for BEI on Testing and Sealing, Voting, Counting and
Transmission of Election Results]
(1) Conduct the voting in the polling place and administer In case of non-availability, absence, disqualification due to
the electronic counting of votes, including the testing relationship, or incapacity for any cause of any of the
and sealing of the PCOS machine members, COMELEC may appoint the following as
substitutes, in the order named:
(2) Print the election returns and transmit electronically
the election results through the use of the PCOS Province City Municipality
machine to the
(a) City/Municipal Board of Canvassers Chairman
(b) Central Server
(c) Transparency Server (Dominant Majority Ranking lawyer of Ranking lawyer of Ranking lawyer of
Party/Dominant Minority Party/Accredited the COMELEC the COMELEC the COMELEC
Citizens’ Arm/ KBP Server Vice Chairman
(3) Act as deputies of the Commission in the conduct of -Provincial auditor -City auditor or -Municipal
the elections -Registrar of equivalent; Administrator;
Deeds -Registrar of -Municipal
(4) Maintain order within within the polling place and its -Clerk of Court Deeds; Assessor;
premises; keep access thereto open and unobstructed; nominated by the -Clerk of Court -Clerk of Court
enforce obedience to its lawful orders and prohibit the Executive Judge of nominated by the nominated by the
use of cellular phones and camera by the voters. If any the RTC; Executive Judge of Executive Judge of
person refuses to obey the lawful orders of the BEI, or -Any other the RTC; the MTC;
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(2) No member or substitute member shall be transferred, NATIONAL BOC FOR SENATORS AND PARTY -LIST
assigned or detailed outside of his official station, nor REPRESENTATIVES
shall he leave said station without prior authority of the Composition
COMELEC during the period beginning election day The chairman and members of the COMELEC sitting en
until the proclamation of the winning candidates. [Sec. banc
223, BP 881]
Function
(3) No member shall feign illness to be substituted on It shall canvass the results by consolidating the certificates
election day until the proclamation of the winning of canvass electronically transmitted. Thereafter, the
candidates. Feigning of illness constitutes an election national board shall proclaim the winning candidates for
offense. [Sec. 224, BP 881] senators and party-list representatives. [Sec. 23, RA 9369]
CANVASS BY THE BOC PROCLAMATION
Canvass - the process by which the results in the election Proclamation shall be after the canvass of election returns,
returns are tallied and totalled. in the absence of a perfected appeal to the COMELEC,
proclaim the candidates who obtained the highest number
Certificates of canvass - official tabulations of votes of votes cast in the province, city, municipality or barangay,
accomplished by district, municipal, city and provincial on the basis of the certificates of canvass.
canvassers based on the election returns, which are the
results of the ballot count at the precinct level. Failure to comply with this duty constitutes an election
- The BOC shall canvass the votes by consolidating the offense. [Sec. 231, BP 881]
electronically transmitted results or the results
contained in the data storage devices used in the WHEN PROCLAMATION VOID
printing of the election returns. [Sec. 20, RA 9369] (1) When it is based on incomplete returns [Castromayor v.
Comelec (1995)] or
CERTIFICATE OF CANVASS AND STATEMENT OF (2) When there is yet no complete canvass. [Jamil v.
VOTES Comelec (1997)]
(1) Within one hour after the canvassing, the Chairman of (3) A void proclamation is no proclamation at all, and the
the district or provincial BOC or the city BOC of those proclaimed candidate’s assumption into office cannot
cities which comprise one or more legislative districts deprive the COMELEC of its power to annul the
shall electronically transmit the certificates of canvass proclamation.
to:
(a) COMELEC sitting as the National BOC for senators PARTIAL PROCLAMATION
and party-list representatives and Notwithstanding pendency of any pre-proclamation
(b) Congress as the National BOC for the president controversy, COMELEC may summarily order proclamation
and vice president, directed to the President of the of other winning candidates whose election will not be
Senate. [Sec. 20, RA 9369] affected by the outcome of the controversy. [Sec. 21, RA
7166]
(2) The certificates of canvass transmitted electronically
and digitally signed shall be considered as official ELECTION RESULTING IN A TIE
election results and shall be used as the basis for the BOC, by resolution, upon 5 days notice to all tied
proclamation of a winning candidate. [Sec. 20, RA candidates, shall hold a special public meeting at which
9369] the board shall proceed to the drawing of lots of tied
candidates and shall proclaim as elected the candidates
(3) 30 copies shall be distributed in accordance to Sec. 21, who may be favored by luck. [Sec. 240, BP 881]
RA 9369.
There is a tie when:
(1) 2 or more candidates receive an equal and highest
number of votes; or
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(2) 2 or more candidates are to be elected for the same him shall not be counted. The fact that the candidate who
position and 2 or more candidates received the same obtained the highest number of votes is later declared to
number of votes for the LAST PLACE in the number to be disqualified or not eligible for the office to which he was
be elected. elected, does not necessarily entitle the candidate who
obtained the second highest number of votes to be
PROCLAMATION OF A LONE CANDIDATE declared the winner of the elective office.
Upon the expiration of the deadline for the filing of
certificates of candidacy in a special election called to fill a A possible exception is predicated on the concurrence of
vacancy in an elective position other than for President and two assumptions, namely: (1) the one who obtained the
VP, when there is only 1 qualified candidate, he shall be highest number of votes is disqualified; and (2) the
proclaimed elected without holding the special election electorate is fully aware in fact and in law of a candidate’s
upon certification by the COMELEC that he is the only disqualification so as to bring such awareness within the
candidate for the office and is therefore deemed elected. realm of notoriety but would nonetheless cast their votes
[Sec. 2, RA 8295, Law on Proclamation of Solo Candidates] in favor of the ineligible candidate [Grego v. COMELEC
(1997)]
Election Law (2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and
PETITION NOT TO GIVE DUE COURSE TO OR CANCEL receives the winning number of votes in such election
A CERTIFICATE OF CANDIDACY
CANCELLATION OF CERTIFICATE OF CANDIDACY The Court or COMELEC shall continue with the trial and
(1) Grounds hearing of the action, inquiry, or protest and
(a) False material representation in the certificate of
candidacy; Upon motion of the complainant or any intervenor, may
(b) If the certificate filed is a substitute Certificate of during the pendency thereof, order the suspension of the
Candidacy, when it is not a proper case of proclamation of such candidate whenever the evidence of
substitution under Sec. 77 of BP 881. his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
Law of 1987]
(2) Nature of Proceedings - Summary
Where a similar complaint/petition is filed:
(3) Procedure (1) before the election and proclamation of the
Who may file: any citizen of voting age, or a duly respondent and the case is not resolved before the
registered political party, organization, or coalition of election - the trial and hearing of the case shall
political parties continue and referred to the Law Department for
preliminary investigation
When filed: Within 5 days from the last day for the filing
of certificates of candidacy (2) after the election and before the proclamation of the
respondent - the trial and hearing of the case shall be
Where filed: With the Law Department of the COMELEC suspended and referred to the Law Department for
preliminary investigation
PETITION FOR DISQUALIFICATION
PROCEDURE Note: In either case, if the evidence of guilt is strong, the
Who may file: Any citizen of voting age, or any duly COMELEC may order the suspension of the proclamation
registered political party, organization or coalition of of respondent, and if proclaimed, to suspend the effects of
political parties proclamation. [Sec. 4, Resolution No. 8678]
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The postponement, declaration of failure of election and Note: COMELEC Resolution No. 8804 applies to election
the calling of special elections shall be decided by the disputes under the Automated Election System (AES)
COMELEC sitting en banc by a majority vote of its using the Precinct Count Optical Scan (PCOS) and shall
members. [Sec. 4, R.A. 7166] cover pre-proclamation controversies and election protests
[Rule 1, Sec. 2, COMELEC Resolution No. 8804]
The COMELEC shall call for the holding or continuation of
the election not held, suspended or which resulted in a Any question or matter pertaining to or affecting:
failure to elect: (1) the proceedings of the board of canvassers, or
(1) upon a verified petition by any interested party and (2) any matter raised under Sec. 233-236 of BP 881 (see
(2) after due notice and hearing [Sec. 6, B.P. 881] below) in relation to the preparation, transmission,
receipt, custody and appreciation of the election
When: on a date reasonably close to the date of the returns. [Sec. 241, BP 881]
election not held, suspended or which resulted in a failure
to elect BUT not later than 30 days after the cessation of JURISDICTION
the cause of such postponement or suspension of the COMELEC has exclusive jurisdiction over pre-proclamation
election or failure to elect. [Sec. 6, BP 881] cases. It may order, motu proprio or upon written petition,
the partial or total suspension of the proclamation of any
DECLARATION OF FAILURE OF ELECTION candidate-elect or annul partially or totally any
It is neither an election protest nor a pre-proclamation proclamation, if one has been made. [Sec. 242, BP 881]
controversy. [Borja v. Comelec, (1998)]
COMELEC has exclusive jurisdiction in pre-proclamation
Jurisdiction controversies arising from national, regional or local
COMELEC, sitting en banc, may declare a failure of election elections. [Rule 3, Sec. 2, COMELEC Resolution No. 8804]
by a majority vote of its members.
WHEN NOT ALLOWED
Requisites For the positions of President, VP, Senator, and Member of
The following conditions must concur: the House of Representatives [Sec. 15, RA 7166]
(1) No voting has taken place in the precincts concerned
on the date fixed by law, or even if there was voting, NATURE OF PROCEEDINGS
the election nonetheless resulted in a failure to elect; Heard summarily by the COMELEC after due notice and
and hearing. This is because canvass and proclamation should
(2) The votes cast would affect the results of the election. be delayed as little as possible.
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Note: In Rule 3, Sec. 1 of COMELEC Resolution No. 8804 (2) If the petition is for correction, it must be filed not later
(promulgated March 22, 2010) there are only 2 issues than 5 days following the date of proclamation, and
covered in a pre-proclamation controversy: must implead all candidates who may be adversely
(1) Illegal composition of the BOC [Sec. 1, Rule 4, affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of
COMELEC Resolution No. 8804] Procedure]
Exists when, among other circumstances, any of the Matters relating to the preparation, transmission, receipt,
members do not possess legal qualifications and custody and appreciation of the election returns and
appointments. The information technology capable certificates of canvass
person required to assist the BOC by RA 9369 shall be
included as among those whose lack of qualifications Where: Only with the Board of Canvassers
may be questioned
When: At the time the questioned return is presented for
(2) Illegal proceedings of the BOC [Sec. 2, Rule 4, inclusion in the canvass.
COMELEC Resolution No. 8804]
Who: Any candidate, political party or coalition of political
Exists when the canvassing is a sham or mere parties
ceremony, the results of which are predetermined and
manipulated as when any of the following Note: Non-compliance with any of the steps above is fatal
circumstances are present: to the pre-proclamation petition.
(1) Precipitate canvassing
(2) Terrorism Pre-proclamation controversies under COMELEC
(3) Lack of sufficient notice to the members of the Resolution No. 8804
BOC’s If filed before the BOC
(4) Improper venue (1) Upon receipt of the verified petition, the BOC shall
immediately announce the fact of the filing of said
ISSUES THAT CANNOT BE RAISED petition and the ground/s raised
(1) Appreciation of ballots, as this is performed by the BEI
at the precinct level and is not part of the proceedings (2) BOC shall immediately deliberate on the petition and
of the BOC [Sanchez v. Comelec, (1987)] make a prompt resolution within 24 hrs – reduced into
writing
(2) Technical examination of the signatures and thumb
marks of voters [Matalam v. Comelec (1997)] (3) If the decision is in favor of the petition, it shall
immediately inform the Commission of its resolution –
(3) Prayer for re-opening of ballot boxes [Alfonso v. the Commission shall make appropriate action
Comelec, (1997)]
In no case shall the receipt by the BOC of the
(4) Padding of the Registry List of Voters of a municipality, electronically transmitted precinct, municipal, city or
massive fraud and terrorism [Ututalum v. Comelec provincial results, be suspended by the filing of the
(1990)] said petition
(5) Challenges directed against the Board of Election Appeal an adverse resolution
Inspectors [Ututalum v. Comele (supra)] (1) The petitioner may appeal an adverse resolution by the
BOC to the COMELEC, by notifying the BOC of his or
(6) Fraud, terrorism and other illegal electoral practices. her intent to appeal, through a verbal and a written
These are properly within the office of election contests and verified notice of appeal
over which electoral tribunals have sole, exclusive
jurisdiction. [Loong v. Comelec, (1992)] (2) Notice on the BOC shall not suspend the formal
proclamation of the official results of the election until
PROCEDURE the final resolution of the appeal
Questions involving the composition or proceedings of the
board of canvassers, or correction of manifest errors (3) 48 hrs from such notice to the BOC, the petitioner shall
submit before the Board a Memorandum on appeal
Where: Either in the Board of Canvassers or directly with stating the reasons why the resolution being
the COMELEC. [Sec. 17, R.A. 7166] questioned is erroneous and should be reversed
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If filed directly with the Commission In an election protest, the protestee may be ousted and the
(1) Upon receipt of the petition by the COMELEC, the protestant seated in the office vacated.
Clerk of the Commission shall docket the same and
send summons to the VOC concerned with an order General Rule:
directing it to submit, through the fastest verifiable As a general rule, the filing of an election protest or a
means available, its answer within 48 hrs petition for quo warranto precludes the subsequent filing
of a pre-proclamation controversy, or amounts to the
(2) COMELEC en banc shall resolve the petition within 5 abandonment of one earlier filed, thus depriving the
days from the filing of the answer or upon the COMELEC of the authority to inquire into and pass upon
expiration of the period to file the same the title of the protestee or the validity of his proclamation.
The reason is that once the competent tribunal has
EFFECT OF FILING OF PRE-PROCLAMATION CONTROVERSY acquired jurisdiction of an election protest or a petition for
(1) The period to file an election contest shall be quo warranto, all questions relative thereto will have to be
suspended during the pendency of the pre- decided in the case itself and not in another proceeding.
proclamation contest in the COMELEC or the Supreme This procedure will prevent confusion and conflict of
Court. authority. Conformably, we have ruled in a number of
cases that after a proclamation has been made, a pre-
(2) The right of the prevailing party in the pre-proclamation proclamation case before the COMELEC is no longer
contest to the execution of COMELEC’s decision does viable. [Samad v. Comelec, (1993)]
not bar the losing party from filing an election contest.
Exceptions: The rule admits of exceptions, however, as
(3) Despite the pendency of a pre-proclamation contest, where:
the COMELEC may order the proclamation of other (1) the board of canvassers was improperly constituted;
winning candidates whose election will not be affected (2) quo warranto was not the proper remedy;
by the outcome of the controversy. (3) what was filed was not really a petition for quo
warranto or an election protest but a petition to annul
EFFECT OF PROCLAMATION OF WINNING CANDIDATE a proclamation;
General Rule: A pre-proclamation controversy shall no (4) the filing of a quo warranto petition or an election
longer be viable after the proclamation and assumption protest was expressly made without prejudice to the
into office by the candidate whose election is contested. pre-proclamation controversy or was made ad
The remedy is an election protest before the proper forum. cautelam; and
(5) the proclamation was null and void. [Samad v.
Exceptions: The prevailing candidate may still be unseated Comelec, (1993)]
even though he has been proclaimed and installed in office
if: NATURE
(1) The opponent is adjudged the true winner of the Summary proceeding of a political character
election by final judgment of court in an election
contest; PURPOSE
(2) The prevailing party is declared ineligible or To ascertain the candidate lawfully elected to office
disqualified by final judgment of a court in a quo
warranto case; or WHO MAY FILE
(3) The incumbent is removed from office for cause. A candidate who has duly filed a certificate of candidacy
and has been voted for.
PETITION TO ANNUL OR SUSPEND PROCLAMATION
The filing of the petition suspends the running of the WHEN
period to file an election protest. [Alangdeo v. Comelec, Within 10 after the proclamation of the results of the
(1989)] election.
(1) It is suspendeded during the pendency of a pre-
No law provides for a reglementary period within which to proclamation controversy
file a petition for the annulment of an election if there is as (2) It should be decided within 15 days from filing in case
yet no proclamation. [Loong v. Comelec (supra)] of barangay officials
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WHO MAY FILE The rule is strictly construed against the movant and only
Any voter when the reason is of such urgency will such execution
pending appeal be allowed, as it is an exception to the
WHEN general rule
Within 10 days after the proclamation of the results of the
election.
Strictly a contest between Refers to questions of In the event that the COMELEC fails to act on any
the defeated and winning disloyalty or ineligibility of complaint within 4 months from its filing, the complainant
candidates based on the winning candidate. It is a may file the complaint with the fiscal or the Department of
grounds of election frauds or proceeding to unseat the Justice, if warranted. [Sec. 265, BP 881]
irregularities as to who ineligible person from office,
actually obtained the but not to install the It is not the duty of the COMELEC, as investigator and
majority of the legal votes protestant in place prosecutor, to gather proof in support of a complaint filed
and therefore is entitled to before it [Kilosbayan v. COMELEC (1997)]
hold the office
TRIAL AND DECISION
Can only be filed by a Can be filed by any voter. It is
RTCs have exclusive original jurisdiction to try and decide
candidate who has duly filed not considered a contest
a certificate of candidacy and where the parties strive for any criminal actions or proceedings for violation of election
has been voted for supremacy laws. [Sec. 268, BP 881]
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MTCs, by way of exception, exercise jurisdiction only over of promoting the election of such candidate. [Sec. 28,
offenses relating to failure to register or to vote RA 6646]
PREFERENTIAL DISPOSITION OF ELECTION (3) Coercion of subordinates to vote for or against any
OFFENSES candidate [Sec. 261(d), BP 881]
(1) The investigating officer shall resolve the case within 5
days from submission. (4) Dismissal of employees, laborers, or tenants for refusing
(2) The courts shall give preference to election cases over or failing to vote for any candidate [Sec. 261(d(2)), BP
all other cases except petitions for writ of habeas 881]
corpus.
(5) Being a flying voter [Sec. 261z (2), B.P. 881]
ELECTION OFFENSES
REGISTRATION COUNTING OF VOTES
(1) Failure of the Board of Election Inspectors to post the (1) Tampering, increasing, decreasing votes, or refusal to
list of voters in each precinct. [Sec. 9, RA 7166]; correct tampered votes after proper verification and
hearing by any member of the board of election
(2) Change or alteration or transfer of a voter's precinct inspectors [Sec. 27(b), RA 6646]
assignment in the permanent list of voters without the
express written consent of the voter [Sec. 4, RA 8189] A special election offense to be known as electoral
sabotage and the penalty to be imposed shall be life
CERTIFICATE OF CANDIDACY imprisonment. [Sec. 42, RA 9369]
(1) Continued misrepresentation or holding out as a
candidate of a disqualified candidate or one declared by (2) Refusal to issue to duly accredited watchers the
final and executory judgment to be a nuisance certificate of votes cast and the announcement of the
candidate [Sec. 27(f), RA 6646] election, by any member of the board of election
inspectors [Sec. 27(c), RA 6646]
(2) Knowingly inducing or abetting such misrepresentation
of a disqualified or nuisance candidate [Sec. 27(f), RA CANVASSING
6646]; Any chairperson of the board of canvassers who fails to
give notice of meeting to other members of the board,
(3) Coercing, bribing, threatening, harassing, intimidating, candidate or political party as required [Sec. 27(e), RA
terrorizing, or actually causing, inflicting or producing 6646]
violence, injury, punishment, torture, damage, loss or
disadvantage to discourage any other person or ACTS OF GOVERNMENT OR PUBLIC OFFICERS
persons from filing a certificate of candidacy in order to (1) Appointment of new employees, creation of new
eliminate all other potential candidates from running positions, promotion, or giving salary increases within
in a special election [Sec. 5, RA 8295] the election period [Sec. 261(g), BP 881]
ELECTION CAMPAIGN (2) Transfer of officers and employees in the civil service
(1) Appointment or use of special policemen, special agents within the election period without the prior approval of
or the like during the campaign period [Sec. 261(m), BP the COMELEC [Sec. 261(h), BP 881]
881]
(3) Intervening of public officers and employees in the civil
(2) Use of armored land, water or aircraft during the service in any partisan political activity [Sec. 261(i), BP
campaign period [Sec. 261(r), BP 881] 881]
(3) Unlawful electioneering [Sec. 261(k), BP 881] (4) Use of public funds for an election campaign [Sec.
261(o), BP 881]
(4) Acting as bodyguards or security in the case of
policemen and provincial guards during the campaign (5) Illegal release of prisoners before and after election
period [Sec. 261(t), BP 881] [Sec. 261(n), BP 881]
(5) Removal, destruction, obliteration, or tampering of (6) Release, disbursement or expenditure of public funds
lawful election propaganda, or preventing the during the prohibited period [Sec. 261(v), BP 881]
distribution thereof [Sec. 83, BP 881 vis-à-vis Sec. 262,
BP 881] (7) Construction of public works, etc. during the prohibited
period [Sec. 261(w), BP 881]
VOTING
(1) Vote-buying and vote-selling [Sec. 261(a), BP 881] (8) Suspension of elective local officials during the
election period without prior approval of the COMELEC
(2) Conspiracy to bribe voters [Sec. 261(b), BP 881]: A [Sec. 261(x), BP 881]
disputable presumption of a conspiracy to bribe voters
is created when there is proof that at least 1 voter in COERCION, INTIMIDATION, VIOLENCE
different precincts representing at least 20% of the (1) Coercion of election officials and employees
total precincts in any municipality, city or province has
been offered, promised or given money, valuable (2) Threats, intimidation, terrorism, use of fraudulent
consideration or other expenditure by a candidate's devices or other forms of coercion [Sec. 261(e), BP 881]
relatives, leaders and/or sympathizers for the purpose
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(3) Use of undue influence [Sec. 261(j), BP 881] ARRESTS IN CONNECTION WITH ELECTION
CAMPAIGN
(4) Carrying deadly weapons within the prohibited area Only upon a warrant of arrest issued by a competent judge
[Sec. 261(p), BP 881] after all the requirements of the Constitution have been
strictly complied with
(5) Carrying firearms outside residence or place of
business [Sec. 261(q), BP 881] PRESCRIPTION
5 years from the date of their commission. If the discovery
(6) Organization or maintenance of reaction forces, strike of the offense be made in an election contest proceeding,
forces, or similar forces during the election period [Sec. the period of prescription shall commence on the date on
261(u), BP 881] which the judgment in such proceedings becomes final
and executory. [Sec. 267, BP 881]
OTHER PROHIBITIONS
(1) Unauthorized printing of official ballots and election PROHIBITED ACTS UNDER RA 9369
returns with printing establishments that are not under (1) Utilizing without authorization, tampering with,
contract with the COMELEC [Sec. 27(a), RA 6646] damaging, destroying or stealing:
(a) Official ballots, election returns, and certificates of
(2) Wagering upon the results of elections [Sec. 261(c), BP canvass of votes used in the system; and
881] (b) Electronic devices or their components, peripherals
or supplies used in the AES such as counting
(3) Sale, etc. of intoxicating liquor on the day fixed by law machine, memory pack/diskette, memory pack
for the registration of voters in the polling place, or the receiver and computer set
day before the election or on election day [Sec. 261(dd)
(1), BP 881] (2) Interfering with, impeding, absconding for purpose of
gain, preventing the installation or use of computer
(4) Opening booths or stalls within 30 meters of any counting devices and the processing, storage,
polling place [Sec, 261(dd) (2), BP 881] generation and transmission of election results, data or
information
(5) Holding fairs, cockfights, etc. on election day [Sec.
261(dd) (3), BP 881] (3) Gaining or causing access to using, altering, destroying
or disclosing any computer data, program, system
(6) Refusal to carry election mail during the election software, network, or any computer-related devices,
period [Sec. 261(dd) (4), BP 881]. In addition to the facilities, hardware or equipment, whether classified or
prescribed penalty, such refusal constitutes a ground declassified
for cancellation or revocation of certificate of public
convenience or franchise. (4) Refusal of the citizens' arm to present for perusal its
copy of election return to the board of canvassers
(7) Discrimination in the sale of air time [Sec. 261(dd) (5),
BP 881] In addition to the prescribed penalty, such (5) Presentation by the citizens' arm of tampered or
refusal constitutes a ground for cancellation or spurious election returns
revocation of the franchise.
(6) Refusal or failure to provide the dominant majority and
Note: Good faith is not a defense, as election offenses are dominant minority parties or the citizens'' arm their
generally mala prohibita. copy of election returns and
PENALTIES (7) The failure to post the voters' list within the specified
For individuals time, duration and in the designated location shall
(1) Imprisonment of not less than 1 year but not more than constitute an election offense on the part the election
6 years, without probation [Sec. 264, BP 881] officer concerned."
(2) Disqualification to hold public office
(3) Deprivation of the right of suffrage PENALTY
(1) imprisonment of 8 years and one day to 12 years
For a Foreigner without possibility of parole
(1) Imprisonment of not less than 1 year but not more than
6 years (without probation); (2) perpetual disqualification to hold public and any non-
(2) Deportation after service of sentence elective public office and
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and the tampering, increase and/ or decrease votes refusal BEIs or BOCs involved, shall be meted the same penalty of
to credit the correct votes or to deduct tampered votes, life imprisonment.
shall adversely affect the results of the election to the said
national office to the extent that losing candidate/s is /are
made to appear the winner/s;
PENALTY
Any and all other persons or individuals determined to be
in conspiracy or in connivance with the members of the
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(3) Said plebiscite shall be conducted by the COMELEC Province City Municipality Barangay
within 120 days from the date of effectivity of the law or
ordinance, unless said law or ordinance fixes another Population
date.
250,000 150,000 25,000 2,000
inhabitants inhabitants inhabitants inhabitants,
Only amendments to, or revisions of, the Organic Act
and 5,000
constitutionally-essential to the creation of autonomous
for
regions – those aspects specifically mentioned in the
barangays in
Constitution which Congress must provide for in the
cities and
Organic Act– require ratification through a plebiscite. If all
municipalitie
amendments to the Organic Act have to undergo the
s within
plebiscite requirement before becoming effective, this
Metro Manila
would hamper the ARMM’s progress by impeding
and highly-
Congress from enacting laws that timely address problems
urbanized
as they arise in the region, as well as weighing down the
cities
ARMM government with the costs that unavoidably follow
the holding of a plebiscite. [Abas Kida v. Senate of the Phil Territory
(2012)]
Contiguous Contiguous Contiguous No minimum
The phrase “in the political unit directly affected” refers to territory of at territory of at territory of at requirement
the residents of the political entity who would be least 2,000 least 100 least 50
economically dislocated by the separation of a portion square kms square kms square km
thereof who have the right to vote in said plebiscite.
[Padilla v. COMELEC (1992)] Creation of an LGU or its conversion from one level to
another level shall be based on verifiable indicators of
CREATION viability and projected capacity to provide services:
Nature of Power
The authority to create municipal corporations is (1) Income – must be sufficient to provide for all essential
essentially legislative in nature. [Pelaez v. Auditor General government facilities and services commensurate with
(1965)] the size of its population;
(2) Population – total number of inhabitants within the
The enactment of a LGC is not a sine qua non for the territorial jurisdiction of the local government unit
creation of a municipality, and before the enactment of concerned;
such, the power remains plenary except that creation (3) Land Area – must be:
should be approved in a plebiscite. [Torralba v. Sibagat (a) Contiguous, unless it comprises of two or more
(1987)] islands or is separated by an LGU independent of
the others;
Creations under Sec. 68, Admin. Code (b) Properly identified by metes and bounds with
The alleged power of the President to create municipalities technical descriptions;
under the Administrative Code amounts to an undue (c) Sufficient to provide for such basic services and
delegation of legislative power. The power of control of the facilities to meet the requirements of its populace;
President over executive departments does not include the
authority to abolish or create such. [Pelaez v. Auditor The income requirement covers the income accruing to the
General (1965)] general fund, exclusive of special funds, transfers, and
non-recurring income.
Beginning of Corporate Existence
Commences upon the election and qualification of its chief Provinces and Cities must satisfy the income requirement,
executive and a majority of the members of its sanggunian, and EITHER population or territory. Barangays have no
unless some other time is fixed therefor by the law or minimum requirement for area and income.
ordinance creating it. [Sec. 14, LGC]
Compliance with such requirements are attested to by:
Specific Requirements (1) Department of Finance
General Rule: (2) National Statistics Office (NSO)
Province City Municipality Barangay (3) Lands Management Bureau (LMB) of the Department
of Environment and Natural Resources (DENR)
Income
INTERNAL REVENUE ALLOTMENTS
Average Average Average No minimum
The IRA forms part of the income of the LGU. The funds
annual annual annual requirement
generated from local taxes, IRA, and national wealth
income of not income of not income of not
utilization proceeds accrue to the general fund of the LGU.
less than less than less than
[Alvares v. Guingona (1996)]
P20M, based P100M, P2.5M pesos,
on 1991 based on based on
Other LGUs
constant 2000 1991 constant
Special Metropolitan Political Subdivisions
prices constant prices
(a) created by Congress, subject to a plebiscite;
prices
(b) component cities/municipalities retain their basic
autonomy and entitled to create their own local
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executive and legislative assemblies; The Effects of Downgrading (from independent component
(c) metropolitan authority that will be created shall be city to component city) are: — (1) The city mayor will be
limited to basic services requiring coordination; [Sec. 11, placed under the administrative supervision of the
LGC] Governor; (2) Resolutions and ordinances will have to be
reviewed by the Provincial Board; (3) Taxes will have to be
Highly Urbanized Cities and Independent Component Cities shared with the province;
(a) independent of the province;
(b) for HUCs, as determined by law DIVISION AND MERGER
(c) for ICCs, as determined by their charter if prohibited Division and merger shall comply with the same
from voting for provincial officers; [Sec. 12, LGC] requirements prescribed for their creation:
government units shall be given more powers, (g) Maintenance of peace and order
authority, responsibilities, and resources. [Sec. 2, LGC] (h) Preservation of the comfort and convenience of its
inhabitants [Sec. 16, LGC]
The princple of local autonomy under the 1987 NATURE
Constitution simply means decentralization. [Basco v. The police power of a municipal corporation extends to all
PAGCOR (1991)] great public needs, and includes all legislation and
functions of the municipal government. The drift is towards
DECENTRALIZATION social welfare legislation geared towards state policies to
Refers to either (1) decentralization of administration or to provide adequate social services, the promotion of general
(2) decentralization of power. welfare, and social justice. [Binay v. Domingo (1991)]
guise of charges for wharfage, tolls for bridges or utilization of resources and to avoid duplication in the
otherwise, or other taxes, fees, or charges in any form use of fiscal and physical resources;
whatsoever upon such goods or merchandise (i) Local budgets shall operationalize approved local
(f) Taxes, fees or charges on agricultural and aquatic development plans;
products when sold by marginal farmers or fishermen (j) Local government units shall ensure that their
(g) Taxes on business enterprises certified to by the Board respective budgets incorporate the requirements of
of Investments as pioneer or non-pioneer for a period their component units and provide for equitable
of six (6) and four (4) years, respectively from the date allocation of resources among these component units;
of registration; (k) National planning shall be based on local planning to
(h) Excise taxes ensure that the needs and aspirations of the people as
(i) Percentage or value-added tax articulated by the local government units in their
(j) Taxes on the gross receipts of transportation contractors respective local development plans are considered in
and persons engaged in the transportation of the formulation of budgets of national line agencies or
passengers or freight by hire and common carriers by offices;
air, land or water, except as provided in this Code (l) Fiscal responsibility shall be shared by all those
(k) Taxes on premiums paid by way or reinsurance or exercising authority over the financial affairs,
retrocession; transactions, and operations of the local government
(l) Taxes, fees or charges for the registration of motor units; and
vehicles and for the issuance of all kinds of licenses or (m) The local government unit shall endeavor to have a
permits for the driving thereof, except tricycles balanced budget in each fiscal year of operation. [Sec.
(m) Taxes, fees, or other charges on Philippine products 305, LGC]
actually exported, except as otherwise provided herein
(n) Taxes, fees, or charges, on Countryside and Barangay CLOSURE AND OPENING OF ROADS [SEC. 21, LGC]
Business Enterprises and cooperatives duly registered SCOPE – WITHIN JURISDICTION OF THE LGU
under R.A. No. 6810 and the Cooperative Code, (1) Local roads
respectively (2) Alleys
(o) Taxes, fees or charges of any kind on the National (3) Parks
Government, its agencies and instrumentalities, and (4) Squares
local government units [Sec. 133, LGC]
FOR TEMPORARY CLOSURE
EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION (1) Via ordinance
Sec. 133 of the LGC provides a limitation on the power of (2) May be done due to:
an LGU to levy taxes, fees, or charges on the national (a) Actual emergency
government, its agencies and instrumentalities, unless (b) Fiesta celebrations
otherwise provided. Sec. 234 of the LGC on the other hand, (c) Public rallies
grants to LGUs the power to impose real property tax on (d) Agricultural or industrial fairs
properties of the Republic of the Philippines and its (e) Undertaking of public works and highways,
political subdivisions when its beneficial use is granted to a telecommunications, and waterworks projects
taxable person. (3) Duration of closure must be specifically stated in the
order of closure
FUNDAMENTAL PRINCIPLES ON THE FINANCIAL AFFAIRS OF AN LGU (4) If for the purpose for athletic, cultural, or civil activities;
(a) No money shall be paid out of the local treasury except these must be officially sponsored, recognized, or
in pursuance of an appropriations ordinance or law; approved by the local government
(b) Local government funds and monies shall be spent
solely for public purposes; FOR PERMANENT CLOSURE
(c) Local revenue is generated only from sources expressly (1) Via ordinance approved by at least 2/3 of all members
authorized by law or ordinance, and collection thereof of the Sanggunian
shall at all times be acknowledged properly; (2) Such ordinance must have provisions for the
(d) All monies officially received by a local government maintenance of public safety therein
officer in any capacity or on any occasion shall be (3) Such property withdrawn may be used or conveyed for
accounted for as local funds, unless otherwise provided any purpose for which other real property belonging to
by law; the local government may be lawfully used or conveyed
(e) Trust funds in the local treasury shall not be paid out (4) When necessary, an adequate substitute for the public
except in fulfillment of the purpose for which the trust facility that is subject to closure should be provided
was created or the funds received; (5) If a freedom park is permanently closed, there must be
(f) Every officer of the local government unit whose duties a provision for its transfer or relocation to a new site
permit or require the possession or custody of local
funds shall be properly bonded, and such officer shall FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS
be accountable and responsible for said funds and for (1) Via ordinance
the safekeeping thereof in conformity with the (2) May temporarily close and regulate the use of any local
provisions of law; street, road, or any other public place
(g) Local governments shall formulate sound financial (3) For shopping malls, Sunday, flea, or night markets, or
plans, and local budgets shall be based on functions, shopping areas for the sale of goods, merchandise,
activities, and projects, in terms of expected results; foodstuffs, and commodities
(h) Local budget plans and goals shall, as far as
practicable, be harmonized with national development Note: All LGUs may temporarily and permanently close
plans, goals, and strategies in order to optimize the their local roads, but the regulation and closure of local
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roads for the above purposes are limited to cities, Publication Effectivity
municipalities, and barangays.
Ordinance or Resolution on Local Development Plan and
A public road may not be the subject of lease or contract, Public Investment Programs
as public roads are properties for public use outside the
Follow general rule; Follow that stated in the
commerce of man. [Dacanay v. Asistio (1992)]
ordinance or resolution;
if none, follow general
The closure of public roads under police power is not
rule;
eminent domain. No grant of damages is awarded.
[Cabrera v. CA (1991)] All Ordinances with Penal Sanctions
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Review of Ordinances/ Resolutions (2) Open to the public, unless a closed-door session
Component Cities and Sangguniang Barangay ordered by majority of the members present;
Municipalities
Minimum Sessions
By Whom Once a week for the Sang. Panlalawigan, Panlungsod, and
Bayan; Twice a month for the Sangguniang Barangay;
Sangguniang Panlalawigan Sangguniang
Panlungsod/Bayan
Special Sessions:
When (1) May be called the local chief executive or by majority of
the Sanggunian;
Within 3 days from approval, Within 10 days from (2) Written notice to all the members personally at least 24
forwarded by Secretary of approval, forwarded by hours before the special session is held;
Sang; Sanggunian; (3) If matters not in the notice are to be discussed during
What the special session, a 2/3 vote of those present is
required;
Ordinances/Res. on local All barangay ordinances;
development plans and Full Disclosure of Financial and Business Interests of
public investment programs Sanggunian Members
How Reviewed When: Upon assumption of office, before participation in
the deiberations on an ordinance or resolution, and when
Sang. Panlalawigan shall The sanggunian concerned taking a position or priviledge speech that may affect his
examine and transmit to the shall review such; interests;
Prov. Atty. for comments
and recommendations How: In writing and submitted to the Secretary of the
sanggunian or the secretary of the committee of which he
Reasons for Rejection is a member;
If beyond the power Whether consistent with law
conferred upon the and the city and municipal What: Any business, financial, or professional relationship
th
Sanggunian concerned ordinances; or relation by affinity/consanguinity up to the 4 degree
affected by any ordinance or sanggunian which may result
Period to Review in a conflict of interest.
30 days; if no action after 30 30 days; if no action after 30
days, deemed consistent days, deemed approved “Conflict of Interest” refers in general to one where it ma y
with law and valid be reasonably deduced that a member of the sanggunian
may not act in the public interest due to some private,
pecuniary, or other personal considerations that may tend
Internal Rules to affect his judgment.
Internal Rules of Procedure
st
(1) Adopted/updated on the 1 regular session following LOCAL INITIATIVE AND REFERENDUM
the election of the members of the Sanggunian and Local Initiative
shall be within 90 days from such
(2) Provides for: Legal process whereby the registered voters
(a) Organization of the Sanggunian and the election of Defined of a LGU may directly propose, enact, or
its officers amend an ordinance.
(b) Creation of Standing Committees All registered voters of the provinces, cities,
(c) Order and calendar of business for each session Exercised by
municipalities, and barangays.
(d) Disciplinary rules for members
Petition proposing the adoption, enactment,
Quorum repeal, or amendment of an ordinance filed
The presence of a quorum is required to transact official with the sanggunian concerned by not less
business; a majority of all members of the Sanggunian Procedure than
who have been elected and qualified. [Sec. 53, LGC] 1,000 – in case of provinces and cities
100- in case of municipalities
Only qualification is material in the counting of a quorum. 50- in case of barangays
The filing of a leave of absence does not affect the 15 days after the Certification by the
member's material qualification or election, hence quorum Effectivity COMELEC that the proposition is approved
shall be based on the total number of members without by a majority of the votes cast
regard to the filing of a leave of absence. [Zamora v.
Caballero (2004)] (1) The power of local initiative shall not be
exercised more than once a year.
It is legally permissible, as exceptions to the general (2) Initiative shall extend only to subjects or
provisions covered by the city charters and the LGC, that matters which are within the legal powers of
the vote requirement be specifically provided for instead of Limitations the sanggunians to enact.
the usual majority vote. [Casiño v. CA (1991)] (3) If at any time before the initiative is held,
the sanggunian concerned adopts in toto
Sanggunian Sessions the proposition presented and the local chief
(1) First session following the election, the Sanggunian executive approves the same, the initiative
shall fix the day, time, and place of its regular sessions;
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shall be cancelled. However, those against Proponents shall have 90 days in case of provinces and
such action may, if they so desire, apply for cities, 60 days in case of municipalities, and 30 days in
initiative. case of barangays, from notice to collect the required
number of signatures
Any proposition or ordinance approved
through the system of initiative and
referendum shall not be repealed, modified,
or amended by the sanggunian concerned
Limitations within six (6) months from the date of the The petition shall be signed before the Election
upon approval thereof and may be amended, Registrar, or his designated representative, in the
Sanggunians modified, or repealed by the sanggunian presence of a representative of the proponent, and a
within three (3) years thereafter by a vote of representative of the regional assemblies and local
three-fourths (3/4) of all its members. legislative bodies concerned in a public place in the LGU
Provided that in case of barangays, the
period shall be eighteen months.
Local Referendum
Legal process whereby the registered voters of the local If the required number of signatures is obtained, the
government unit may approve, amend, or reject any COMELEC shall then set a date for the initiative for
ordinance enacted by the Sanggunian. approval of the proposition within 60 days from the date
of certification by the COMELEC in case of provinces and
Initiative is resorted to (or initiated) by the people directly cities, 45 days in case of municipalities, and 30 days in
either because the law-making body fails or refuses to case of barangays [Sec. 122, LGC]
enact the law ordinance, resolution, or act that they desire
or because they want to amend or modify one already
existing. CORPORATE POWERS
TO SUE AND BE SUED
In a local referendum, the law-making body submits to the As a general rule, local government unit, as a corporation,
registered voters of its territorial jurisdiction, for approval shall have the power to sue and be sued. This applies to all
or rejection, any ordinance or resolution which is duly acts of the LGU in its corporate and proprietary capacity.
enacted or approved by such lawmaking authority. Said [Sec. 22, LGC]
referendum shall be conducted under the control and
direction of the COMELEC.
Corporate (Proprietary)
Governmental Powers
While initiative is entirely the work of the electorate, Powers
referendum is begun and consented to by the law-making Exercised in administering Exercised for the special
body. Initiative is a process of law-making by the people the powers of the state and benefit and advantage of
themselves without the participation and against the
promoting public welfare the community
wishes of their elected representatives, while referendum
consists merely of the electorate approving or rejecting
what has been drawn up or enacted by a legislative body. Cannot be sued without Impliedly consents to
consent for injuries it being sued by entering into
Procedure
caused private contracts
Not less than 1,000 registered voters in case of
provinces and cities, 100 in case of municipalities, and
50 in case of barangays, may file a petition with the local Officers or agents acting Officers and agents are
legislative body, respectively, proposing the adoption, within official duties are not liable for negligence/ torts
enactment, repeal, or amendment, of any law, ordinance liable unless they acted while within scope of
or resolution willfully and maliciously employment.
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which it has the general power to contract [Cebu v. IAC ON VIOLATION OF LAW
(1987)] When the Mayor refused to abide by a TRO issued by the
court, he may be held in contempt. [Moday v. CA (1997)]
Exception: the LGU may not be estopped in order to
validate a contract which the LGU is not authorized to When the LGU does not pay the statutory minimum wage
make EVEN IF it has accepted the benefits thereunder [San (mandated by law) even if there is lack of funds. [Racho v.
Diego v. Mun. Of Naujan (1960)] Ilagan, Isabela (1968)]
A private individual who deals with a LGU is imputed with PERSONAL LIABILITY OF PUBLIC OFFICIAL
constructive knowledge of the extent of the power or General Rule: The public official is personally liable if he
authority of the LGU to enter into contracts. Thus, acts beyond the scope of his powers OR if he acts with bad
ordinarily, the doctrine of estoppel does not lie against the faith.
LGU.
Illustrations:
ON TORT Mayor exceeding authority in vetoing a resolution passed
If in the performance of a governmental function, the LGU by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol
is NOT liable (1984)]
The prosecution of crimes, even if injury occurs [Mendoza v.
- Note that under NCC27, a public servant is personally liable
de Leon (1916)]
for damages for his refusal or neglect to perform his official
If in the performance of a proprietary function, the LGU is duty.
liable
When the officials incorrectly ordered the construction of a
The improper grant of a ferry service franchise [Mendoza v. drug rehabilitation center [Angeles v. CA (1996)]
de Leon (1916)]
When officials illegally dismiss an employee [Rama v. CA
Note: Municipal corporations’ liability to private persons (1987)]
for the wrongful exercise of the corporate powers is the
same as that of a private corporation or individual When the official defies an order of reinstatement of an
[Mendoza v. de Leon (1916)] illegally dismissed employee [Correa v. CFI (1979)]
Deaths caused by a collapsed stage in a town fiesta [Torio The Mayor pays for the back salaries of an illegally
v. Fontanilla (1978)] dismissed employee [Nemenzo v. Sabillano (1968)]
Back pay or wages of employees illegally dismissed, The Governor pays for moral damages for refusing the
including those involving primary governmental functions reinstatement of an employee [San Luis v. CA (1989)]
(e.g. policemen) [Guillergan v. Ganzon (1966)]
A public officer, whether judicial, quasi-judicial or
BY EXPRESS PROVISIONS OF LAW executive, is not personally liable to one injured in
ARTICLE 2189, CC consequence of an act performed within the scope of his
official authority, and in line of his official duty. [Tuzon v.
When a person falls in an open manhole in the city streets. CA (1992)]
[Manila v. Teotico (1968)]
The holding of a town fiesta is a proprietary function,
When a person steps on a rusted nail in a flooded public though not for profit, for which a municipality is liable for
market. [Jimenez v. Manila (1987)] damages to 3rd persons ex contractu or ex delicto;
(a) that under the principle of respondeat superior the
When accidents are caused by defective roads even if the principal is liable for the negligence of its agents acting
road does not belong to the LGU as long as it exercises within the scope of their assigned tasks; and
control or supervision over said road. [Guilatco v. Dagupan (b) that the municipal councilors have a personality distinct
(1989)] and separate from the municipality [Torio v. Fontanilla
(1978)]
Damages suffered through accidents in national roads
under the control and supervision of an LGU (cause is Hence, as a rule they are not co-responsible in an action
unsafe road conditions, especially when there is gross for damages for tort or negligence unless they acted in bad
negligence). [Municipality of San Juan v. CA (2005)] faith or have directly participated in the commission of the
wrongful act.
Also exemplary damages may be granted when public
officials acted with gross negligence. [Quezon City v.
Dacara (2005)]
ARTICLE 2180, CC
When the State acts through a special agent [Merritt v.
Government (1916)]
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When the dispute between two LGUs do no fall under POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT
those enumerated in Sec. 118 of the LGC, BP 129 Sec. 19 is Vacant Position Successor
applicable: “Regional Trial Courts shall exercise exclusive
original jurisdiction in all cases not within the exclusive Permanent Vacancy
jurisdiction of any court, tribunal, person, or body Governor or Mayor Vice Governor ; Vice Mayor
exercising judicial or quasi-judicial functions.” The RTC
exercises original jurisdiction over the settlement of a Governor, Vice-Gov, Mayor, Highest-ranking
boundary dispute between a municipality and an Vice-Mayor Sangguinang member
independent component city. [Municipality of Kananga v. Permanent Inability
Madrona (2003)]
Highest-ranking Second highest-ranking
Sangguniang Member (as Sangguniang Member
APPEAL [SEC. 119, LGC]
the successor of the Gov, (subsequent vacancies
When: Within the time and manner prescribed by the Rules Vice-Gov, Mayor, Vice-M) filled according to their
of Court rank)
Where: Proper Regional Trial Court having jurisdiction over Permanent Vacancy
the area in dispute.
Punong Barangay Highest-ranking
Who: Any party
Sangguniang Barangay
Member
The Regional Trial Court shall decide the appeal within Tie between highest
one (1) year from the filing thereof. Pending final resolution ranking Sangguninan
of the disputed area prior to the dispute shall be Member then draw lots
maintained and continued for all legal purposes.
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Nomination and
Certification of the
Recommendation of political party of the
Sangguniang Panlungsod (of
Sangguniang Panglungsod member who caused the
component cities)
vacancy issued by the
Governor highest official of the
Recommendation of political party
Sangguniang Bayan
Sangguniang Bayan
SECTION 45 (b)
Recommendation of
Sangguniang Barangay City or Municipal
Sangguniang Barangay
Mayor
General Rule: The appointee under Sec. 45 must be a Exception: The power to appoint/suspend/dismiss
nominee of the political party under which the sanggunian employees can be exercised only if the period of incapacity
member (whose elevation to the position next higher in exceeds 30 working days; or if the successor is appointed
rank created the vacancy) had been elected. in writing, if the authorization specifies such powers to the
successor.
Conditions sine qua non: There must be a nomination and
certificate of membership from the highest official of the If the local chief executive is traveling within the country
political party or else the appointment is: but outside his territorial jurisdiction for a period not
(1) null and void ab initio; and exceeding 3 consecutive days, he may designate in writing
(2) a ground for administrative action against the the officer-in-charge.
responsible official.
General Rule: The local chief executive cannot authorize
If sanggunian member who caused vacancy does not any local official to assume the powers/duties/functions of
belong to any political party, the local chief executive shall his office, other than the vice-governor, city/municipal
appoint a qualified person, upon recommendation of the vice-mayor, or highest ranking sangguniang barangay
sanggunian. member.
The appointee under Sec. 45 serves the unexpired term of The authorization shall specify the powers and functions
the vacant office. that the officer-in-charge shall exercise.
Exception: Sangguniang barangay.
Exception: The power to appoint, suspend and dismiss
If the vacancy pertains to barangay or youth representation employees.
in the sanggunian, the vacancy is automatically filled by
the official next in rank of the organization concerned. General Rule: If the local chief executive fails/refuses to
issue the authorization, the vice-governor, city/municipal
TEMPORARY VACANCIES vice-mayor, or highest ranking sangguniang barangay
Temporary Vacancy Occurs when the local chief executive is member has right to assume the powers, duties, and
due to: functions of the office on the 4th day of absence.
(1) leave of absence
(2) traveling abroad Exception: The power to appoint/ suspend/dismiss
(3) suspension from office employees.
Extent of Duty exercised by Temporary Successor Office where Temporary Who Temporarily Succeeds
General Rule: The successor shall automatically exercise Vacancy Occurs into Office
the powers and perform the duties and functions of the
local chief executive. Governor Vice-Governor,
automatically
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If the application for LoA is not acted upon within 5 OMBUDSMAN JURISDICTION
working days after receipt, the application is deemed Primary Jurisdiction [Sec. 15, Acts or omissions of a public
approved. [Sec. 46, LGC] RA 6770] officer or employee in cases
cognizable by
the Sandiganbayan (Salary
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grade of 27 or higher) paid full salary that accrued during such suspension;
(2) Accorded full opportunity to appear and defend
himself, to confront witnesses, and require attendance
Concurrent Jurisdiction [Sec. Cases cognizable by regular
of witnesses and production of evidence; [Sec. 64-65,
61, LGC] courts and other
LGC]
investigative agencies of the
government;
UNDER THE OMBUDSMAN [SEC. 24, RA 6770]
Grounds for Preventive Suspension
The Ombudsman exercises concurrent jurisdiction over The Ombudsman or his Deputy may preventively suspend
administrative cases against elective officials occupying any officer or employee under his authority pending an
positions below salary grade 27. Even if filed in the investigation,
Ombudsman and the sanggunian concerned, identical (1) if in his judgment the evidence of guilt is strong, and
complaints will not violate the rule against forum shopping (2) any of the following are present:
because the complaints are in the nature of an (a) the charge against such officer or employee involves
administrative case. dishonesty, oppression or grave misconduct or
neglect in the performance of duty;
In administrative cases involving the concurrent jurisdiction (b) the charges would warrant removal from the
of two or more disciplining authorities, the body in which service; or
the complaint is filed first, and which opts to take (c) the respondent's continued stay in office may
cognizance of the case, acquires jurisdiction to the prejudice the case filed against him.
exclusion of other tribunals exercising concurrent
jurisdiction. [Office of the Ombudsman v. Rodriguez (2010)] Length of Preventive Suspension
Until the case is terminated by the Office of the Ombudsman
Who is salary grade 27 and above? [Sec. 443-486, LGC] but not more than six (6) months,
(1) without pay,
Municipalities Munipical Mayor (2) when the delay in the disposition of the case by the
Ombudsman is due to the fault, negligence or petition
City Mayor, Vice-Mayor, and Sanggunian of the respondent, the period of such delay shall not be
Cities Panglungsod members of highly- counted in computing the period of suspension herein
urbanized cities provided.
Governor, Vice-Governor, and Sanggunian The suspension issued by the Ombudsman is not limited
Provinces
Panlalawigan members. by the LGC. Unlike the Sandiganbayan and the Office of
the President/Sanggunians, the Ombudsman is endowed
PREVENTIVE SUSPENSION with unique safeguards to ensure immunity from political
UNDER THE LGC pressure. [Miranda v. Sandiganbayan (2005)]
By whom imposed: Upon an elective local official of: Preventive Suspension under Preventive Suspension
RA 6770 under the LGC
province, highly urbanized city, or
The President
independent component city;
(1) the evidence of guilt is (1) there is reasonable
The governor Component city, or municipality strong; AND ground to believe
(2) that any of the ff. are that the respondent
The Mayor Barangay; present: has committed the
(a) the charge against act or acts
the officer or complained of
When Imposed: Any time the issues are joined, when the employee should (2) the evidence of
evidence of the guilt is strong and that there is great involve dishonesty, culpability is strong
probability that the continuance in office of the respondent oppression or grave (3) the gravity of the
could influence the witnesses or threaten the misconduct or offense so warrants;
safety/integrity of the records or evidence; neglect in the or
performance of duty; (4) the continuance in
Rules on Length of Preventive Suspension (b) the charges should office of the
(1) Not longer than 60 days; warrant removal respondent could
(2) Cannot be imposed 90 before an election; if imposed from office; or influence the
before said period but extends to such, automatically (c) the respondent’s witnesses or pose a
lifted upon start of the 90 day period; continued stay in threat to the safety
(3) Cannot be suspended for more than 90 days within a office would and integrity of the
single year on the same grounds existing and known at prejudice the case records and other
the time of the first suspension; filed against him evidence
(4) Once lifted, official deemed reinstated without Maximum period: 6 mos. Maximum period: 60
prejudice to the continuance of the proceedings days
against him; [Sec. 62-63, LGC]
UNDER THE SANDIGANBAYAN
Effect/ Right of Pending Preventive Suspension The suspension pendente lite imposed by the
(1) No salary paid during period of suspension, but if Sandiganbayan is mandatory under RA 3019 upon the
subsequently exonerated and reinstated, he shall be filing of a valid information against the erring official. The
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[cf. effect of penalty of suspension] Office of the President Final and executory;
EFFECT OF APPEAL
Proper court order Shall not prevent a decision from being final and
Local legislative bodies and/or the Office of the President executory. Respondent is considered to have been placed
cannot validly impose the penalty of dismissal or removal under preventive suspension during the pendency of the
from service on erring local elective officials. It is clear from appeal in the event he wins, and shall be paid his salary
Sec. 60 of LGC that an elective local official may be that accrued during the pendency of the appeal.
removed from office on the grounds enumerated above
only by order of the proper court. The phrase “decision is final and executory” means that
the Sanggunian decision is immediately executory, but still
Art. 124 (b), Rule XIX of the Rules and Regulations subject to appeal to the Office of the President or the
Implementing the LGC, which states that “an elective local Sangguniang Panlalawigan respectively. [Don v. Lacsa
official may be removed from office by order of the proper (2007)]
court or the Disciplining Authority whichever first acquires
jurisdiction to the exclusion of the other” is void for being DOCTRINE OF CONDONATION
repugnant to Sec. 60, LGC. A public official cannot be removed for administrative
misconduct committed during a prior term, since his re-
But if it’s appointive, the OP may remove. [Pablico v. election to office operates as a condonation of the officer's
Villapando (2002)] previous misconduct to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
Petitioners contest the administrative action as being application to criminal cases, as these are violations
violative of Sec. 60, which mandates that an elective against the state itself. [Aguinaldo v. Santos (1992)]
local official may be removed from office only by order of
the court, since the duration of the suspension being 12- Subsequent re-election cannot be deemed a condonation
20 months exceeded their remaining terms. The if there was already a final determination of his guilt before
suspension was allegedly tantamount to a removal. the re-election. [Reyes v. COMELEC (1996)]
An administrative offense means every act or conduct or DISCIPLINE OF APPOINTIVE OFFICIALS
omission which amounts to, or constitutes, any of the The power to discipline is specifically granted by the
grounds for disciplinary action. The offenses for which Revised Administrative Code to heads of departments,
suspension may be imposed are enumerated in Section agencies, and instrumentalities, provinces, and cities. The
60. appointing authority is generally the disciplinary authority.
Assuming for the moment that the Office of the DISCIPLINARY JURISDICTION
President is correct in its decisions in each of the subject Except as otherwise provided, the local chief executive may
four administrative cases: impose:
(1) Removal from service
It committed no grave abuse of discretion in imposing (2) Demotion in rank
the penalty of suspension, although the aggregate (3) Suspension for not more than 1 year without pay
thereof exceeded six months and the unexpired portion (a) If less than 30 days, unappealable
of the petitioners’ term of office. (b) If 30 days or more, appealable to the CSC
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(4) Fine not exceeding 6 months pay Election on recall (1) Barangay, city, or municipal
(5) Reprimand officials: not later than 30 days
(6) Otherwise discipline subordinate official and employees from completion
under his jurisdiction. [Sec. 87, LGC] (2) Provincial officials: not later
than 45 days from completion
RESIGNATION OF APPOINTIVE OFFICIALS Effects to official Not allowed to resign while recall
Although a resignation is not complete without an sought to be process is in progress
acceptance thereof by the proper authority, an office may recalled Automatically considered as
still be deemed relinquished through voluntary
candidate and is entitled to be
abandonment which needs no acceptance.
voted upon.
On Resignation: Under established jurisprudence, Effectivity of recall Upon election and proclamation of
resignations, in the absence of statutory provisions as to a successor. If the official sought to
whom they should be submitted, should be tendered to be recalled receive the highest
the appointing person or body. (In the CAB, BP 337 did not number of votes, confidence in him
provide to whom Sangguniang Bayan members should
is affirmed and he shall continue in
submit their resignation letters). Private respondent,
therefor, should have submitted his letter of resignation to office.
the President or to his alter ego, the DILG Secretary. Limitations on Local elective official may be
Recall subject of a recall election only
On Abandonment: Abandonment is “voluntary once during his term of office for
relinquishment of an office by the holder, with the loss of confidence.
intention of terminating his possession and control No recall shall take place within
thereof.” It is a species of resignation. Two elements must
one year from the date of the
concur:
(1) Intention to abandon official’s assumption to office or
(2) Overt or external act by which the intention is carried one year immediately preceding a
into effect [Sangguniang Bayan of San Andres v. CA (1998)] regular local election.
(Asked in 2000)
The law states “upon petition of at least 25% of registered
Requisites to constitute Essential elements of voters” and not “signed by 25% of the registered voters.”
resignation: abandonment: The petition must be filed not by one person but at least by
25% of the total number of registered voters.
(1) Intention to relinquish a (1) Intent to abandon
part of the term (2) Overt act by which the While the initiatory recall petition may not yet contain the
(2) Act of relinquishment intention is to be carried signatures of at least 25% of the total number of registered
(3) Acceptance by the proper into effect voters, the petition must contain the names of at least 25%
authority of the total number of registered voters in whose behalf
only one person may sign the petition in the meantime.
RECALL [Angobung v. COMELEC (1997)]
REQUISITES [SECTION 69-75, LGC AND REPUBLIC ACT NO.
9244] PROCEDURE [SEC. 70, LGC]
Ground for recall: Loss of confidence Petition by a registered voted in the LGU concerned to
Right given to: Registered voters of a LGU to which the COMELEC, supported by the necessary amount of
the local elective official subject to registered voters.
recall belongs
Commencement of By a Petition of a registered voter
recall process: supported by
(1) 25% of registered voters if LGU Within 15 days from filing of the petition, the COMELEC
must certify the sufficiency of the required number of
has population not more than signatures. Failure to obtain the required number shall
20,000 result in the automatic nullification of the petition.
(2) 20% of registered voters if LGU
has voting population of
20,000 to 75,000. In no case
shall petitioners be less than
Within 3 days from certification of sufficiency, COMELEC
5,000.
shall
(3) 15% of registered voters if LGU
(1) provide the official subject of recall with a copy of the
has voting population of
petition
75,000 to 300,000. In no case
(2) cause its publication for 3 weeks in a national
shall petitioners be less than
newspaper and a local newspaper of general circulation
15,000.
(3) cause its posting for 10 to 20 days at conspicuous
(4) 10% of registered voters if LGU
places
has voting population of more
than 300,000. In no case shall
petitioners be less than
45,000.
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COMELEC verifies and authenticates the signatures. (1) Reckoned from the 1994 barangay elections
(2) Voluntary renunciation of office for any length of time
shall not be considered as an interruption [Sec. 2]
COMELEC announces the acceptance of candidates for RA 9006: FAIR ELECTION ACT (2001)
the recall election, the official subject of the recall being An elective official running for any office other than the one
automatically included in the list. which he is holding in a permanent capacity, is no longer
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy. [Sec. 14]
COMELEC shall set the election within 30 days upon Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP
completion of the above procedure, LGC in barangays, 881 or the Omnibus Election Code which states that “any
cities, and municipalities; or within 45 days in provinces. elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
LIMITATIONS ON RECALL
President, shall be considered ipso facto resigned from his
(1) Any elective official may be the subject of recall election office upon the filing of his certificate of candidacy.”
only once during his term of office for loss of Section 14 of RA 9006 did not repeal Section 66 of the
confidence. Omnibus election Code, leaving intact Section 66 thereof
(2) No recall election shall take place within 1 year from the which imposes a limitation to appointive officials and
assumption of office of the official concerned, nor considers them ipso facto resigned from office upon filing
within 1 year immediately preceding the date of a of their certificate of candidacy
regular election.
By the repeal of Section 67, an elective official who runs for
The phrase “regular local election” refers to an election office other than the one which he is holding is no longer
where the office held by the local elective official sought to considered ipso facto resigned therefrom upon filing his
be recalled will be contested and be filled by the certificate of candidacy. Elective officials continue in public
electorate. [Paras v. COMELEC (1996)] office even as they campaign for reelection or election for
another elective position. On the other hand, Section 66
Sec. 74 speaks of limitations on “recall” which, according has been retained; thus, the limitation on appointive
to Sec. 69 is a power which shall be exercised by the officials remains - they are still considered ipso
registered voters of a local government unit. Since the facto resigned from their offices upon the filing of their
voters do not exercise such right except in an election, it is certificates of candidacy.
clear that the initiation of recall proceedings is not
prohibited within the one-year period provided in Substantial distinctions clearly exist between elective
paragraph (b). officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are
The phrase “immediately preceding a regular local election” elected to an office for a definite term and may be removed
in Sec. 74(b) refers to the day of regular election not the therefrom only upon stringent conditions. On the other
election period which is normally at least 45 days hand, appointive officials hold their office by virtue of their
immediately preceding the day of the election. [Claudio v. designation thereto by an appointing authority. Some
COMELEC (2000)] appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
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the persons belonging under the same classification are for a term more than what is allowed by law [Latasa v.
similarly treated, the equal protection clause of the COMELEC (2003)]
Constitution is, thus, not infringed. [Fariñas v. Executive
Secretary (2003)] EFFECT OF PREVENTIVE SUSPENSION
Strict adherence to the intent of the three-term limit rule
LIMITATION OF CONSECUTIVE TERMS demands that preventive suspension should not be
No local elective official shall serve for more than three (3) considered an interruption that allows an elective official’s
consecutive terms in the same position. stay in office beyond three terms. A preventive suspension
cannot simply be a term interruption because the
WHAT CONSTITUTES A TERM OF OFFICE suspended official continues to stay in office although he is
To recapitulate, the term limit for elective officials must be barred from exercising the functions and prerogatives of
taken to refer to the right to be elected as well as the right the office within the suspension period. The best indicator
to serve in the same elective position. Consequently, it is of the suspended official’s continuity in office is the
not enough that an individual has served three consecutive absence of a permanent replacement and the lack of the
terms in an elective local office, he must also have been authority to appoint one since no vacancy exists.
elected to the same position for the same number of times
before the disqualification can apply. To allow a preventively suspended elective official to run
for a fourth and prohibited term is to close our eyes to this
2 Conditions for the application of the disqualification [Borja reality and to allow a constitutional violation through
v. COMELEC (1998)]: sophistry by equating the temporary inability to discharge
(1) Elected for three consecutive times the functions of office with the interruption of term that the
(2) Fully served three consecutive terms constitutional provision contemplates. [Aldovino v.
COMELEC (2008)]
RULES FOR “FULLY SERVED” TERM
(1) Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service.
(2) The conversion of a municipality to a city without
interruption of the term of an elective official is not
considered an interruption in the continuity of service.
[Latasa v. COMELEC (2003)]
(3) Election via a recall election does not satisfy a “fully-
served” term. [Lonzanida v. COMELEC (1999)]
(4) The imposition of preventive suspension should not be
considered an interruption that allows an elective
official to stay in office for more than 3 terms. [Aldovino
v. COMELEC (2008)]
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Towards the end of its Judgment of April 28, 2010, the parties to the dispute so agree. This means simply that the
Supreme Court expressed its great sympathy for court may reach a fair compromise in balancing the
Petitioners, saying its members “cannot begin to interests of the parties.
comprehend the unimaginable horror they underwent at Judgment will not be on the basis of the sources of
the hands of the Japanese soldiers.” And then it goes on to international law, as listed in Art. 38(1) of the ICJ Statute,
say that it is “deeply concerned” that – in “apparent but on the grounds of fairness and justice. The court may
contravention of fundamental principles of law” – the have to rely on its own understanding of the broader
Malaya Lolas “appear to be without a remedy to challenge context of equity and outside the accepted norms of law
those that have offended them before appropriate fora.” under Art. 38(1).
The High Court had rejected the Petitioner’s claim that
rape and other sexual crimes committed against them But in the North Sea Continental Shelf cases, the ICJ found
were already prohibited as violations of jus cogens norms a situation where the Parties were under an obligation to
during World War II. act in such a way that in the particular case, and taking all
the circumstances into account, equitable principles were
In their pending Motion for Reconsideration, the applied, which meant that its decision on the applicability
Petitioners argue that early on, there has developed as a of the equitadistance principle in the delimitations
binding customary norm in international law an absolute proceeding was not founded on ex aequo et bono. It said
prohibition on rape. Before San Francisco Peace Treaty in thus: “[i]t was precisely a rule of law that called for the
1951, it was already penalized as a war crime and as a application of equitable principles, and in such cases as
crime against humanity in the 1949 Geneva Conventions, the present ones the equidistance method could
as a crime against humanity in German Courts that tried unquestionably lead to inequity.”
war criminals of World War II and as a war crime in the
International Military Tribunal in the Far East that tried
Japanese war criminals of World War II. In fact, they assert
that right after World War I, a Preliminary Conference at
Versailles created a Commission on Responsibility of the International and National
Authors of War and on Enforcement of Penalties.
Law
Too, the 15-member Commission – of which Japan was
part – submitted a report to the Conference on the Municipal or National Law deals with the conduct or status
responsibility of belligerent states in which it included a list of individuals, corporations, and other ‘private’ entities
of punishable war crimes as violations of the laws and within states. Public International Law may be
customs of war. These included, among other crimes, (1) distinguished from it in that it prescribes rules and
rape, (2) abduction of girls and women for the purpose of processes that govern the relations of states with each
enforced prostitution, (3) deportation of civilians, (4) other, and the rights of other entities insofar as they
internment of civilians under inhuman conditions and and implicate the community of states.
(5) forced labor of civilians in connection with the military
operations. RELATIONSHIP OF PUBLIC INTERNATIONAL LAW
WITH MUNICIPAL LAW
The Philippine Supreme Court’s decision sparked a Although distinct, PIL and Municipal are interrelated:
massive controversy when significant portions of it were
discovered to have been lifted from various sources THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL
without proper attribution. In addition to the plagiarism – ORDER
which is a word for word lifting of pages from the three Norms or principles of international law may be
articles without the proper attribution – it appears that incorporated or transformed into national law and applied
these stolen passages were also twisted to support the or enforced within the territorial jurisdiction of a State as
court’s erroneous conclusion that the Filipina comfort part of “the law of the land.”
women of World War Two have no further legal remedies. (1) Incorporation – norms of international law are deemed
part of national law
All three plagiarized articles by foreign authors –an article (2) Transformation – defines the requisite act which must
published in 2009 in the Yale Law Journal of International be fulfilled before they become part of national law
Law, a book published by the Cambridge University Press
in 2005, and, an article published in 2006 in the Western THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL
Reserve Journal of International Law – argue otherwise. REGULATION
A State cannot invoke its own national law to resist an
A Motion for Reconsideration and a Supplemental Motion international claim or excuse itself from breach of duty
for Reconsideration subsequently filed by lawyers on under international law [Polish Nationals in Danzig Case;
behalf of the Malaya Lolas highlighting the alleged VICLOT; Draft Article on State Responsibility, Art. 6]
plagiarism and twisting of sources are pending with the
Court. The Malaya Lolas, in their Supplemental Motion for THEORETICAL VIEWS ON THE RELATIONSHIP
Reconsideration said the High Court’s ruling, penned by BETWEEN PIL AND MUNICIPAL LAW – [CARTER AND
Justice Mariano Del Castillo, "made it appear that these TRIMBLE]:
sources support the assailed judgment's arguments for MONIST VIEW: International and municipal legal systems are
dismissing instant petition when, in truth, the plagiarized fundamentally part of one legal order. This view considers
sources even make a strong case for the petition's claims." international law to be superior, with municipal law being
a mere subset of international law.
CONCEPT OF EX AEQUO ET BONO
Literally meaning “what is equitable and good”, it is a Thus, international norms are applicable within municipal
standard that a court may apply to decide a case when the system seven without some positive act of the State.
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ELEMENTS:
PRIMARY SOURCES [ARTICLE 38, ICJ STATUTE] (1) State Practice
(1) International Conventions, whether general or For custom to exist, the customary practice must be both
particular, establishing rules expressly recognized by consistent and general
the contracting states (Treaties); (a) Consistency requires substantial uniformity, and not
(2) International Custom, as evidence of a general custom necessarily complete uniformity in practice.
accepted as law; (b) Generality likewise does not require universality.
(3) General Principles of Law recognized by civilized nations;
The absence of protest could be considered evidence of the
SUBSIDIARY SOURCES binding nature of customary practice. [Akehurst]
(1) Judicial Decisions; and
(2) Teachings of the most highly qualified publicists of the Acts Evidencing State Practice:
various nations. [Art. 38, ICJ Statute] (1) Diplomatic correspondence
(a) Treaties, Customs and General Principles (Primary (2) Policy statements
Sources) create law; while court decisions publicists’ (3) Press releases
teachings constitute evidence of what is the law. (4) Opinions of official legal advisers
(b) With respect to the three primary sources, the order (5) Official manuals on legal decisions (executive decisions
the enumeration does not provide a hierarchy in all and practices; government comments on drafts by the
cases. ILC)
(6) International and national judicial decisions
NOTE: Although treaties are mentioned first, they are not (7) Recitals in treaties and international instruments
ipso facto superior to customs and general principles. (8) Practice of international organs [Harris]
Note: Philippine law makes a distinction between treaties Opinio juris means that general practice embodied in a
and executive agreements. Although they are equally rule must have been done out of a recognition that it is a
binding, only treaties require the concurrence of the legal norm and therefore obligatory. [North Sea
Senate to be effective. [Sec. 21, Art. VII, 1987 Constitution] Continental Shelf Case, ICJ Reports, 1969]
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Note: It is not a “maxim,” it is an element required in order formation, by such persistent objection the norm will not
for custom to crystallize into a binding norm in be applicable as against that State. [Magallona]
international law.
The ten-mile rule [in the delimitation of territorial waters
Scope: cross bays] would appear to be inapplicable as against
Custom may be: Norway, inasmuch as she has always opposed any attempt
(1) General binding upon all or most states or to apply it to the Norwegian coast. [Anglo-Norwegian
(2) Particular binding between only two or among a few Fisheries Case (1951)]
states.
DUALITY OF NORMS
In cases it has decided, the ICJ has indeed recognized the It is possible for a norm of international law to exist both as
possibility of regional custom (Asylum Case) and of bilateral a customary norm and a conventional norm (ex. The
custom. [Right of Passage over Indian Territory Case] Prohibition against the Use of Force). Such norms are said
to be of dual character.
No particular length of time is required for the formation of
customary norms. What becomes necessary is such length Norms of dual character come into being through any of
of time as to make manifest the existence of the two the following ways:
elements of custom. [North Sea Continental Cases (1969), (1) A treaty provision may simply restate a customary norm
Magallona] (as is true of many of the provisions in the VCLOT;
(2) A treaty provision may constitute evidence of custom;
NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS (3) A treaty provision may crystallize into a customary
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING norm.
PART OF PHILIPPINE LAW
(1) Rules and principles of land warfare and of For a treaty provision to crystallize into custom, the
humanitarian law under the Hague Convention and the provision must be norm-creating. The treaty must be law-
Geneva Convention [Kuroda v. Jalandoni (1949)] making, creating legal obligations which are not dissolved
(2) Pacta sunt servanda [La Chemise Lacoste v. Fernandez by their fulfillment.
(1984)]
(3) Human Rights as defined under the Universal The number of parties, the explicit acceptance of rules of
Declaration of Human Rights [Reyes v. Bagatsing law, and, in some cases, the declaratory nature of the
(1983)] provisions produces a strong law-creating effect at least as
(4) The principle of restrictive sovereign immunity [Sanders great as the general practice considered sufficient to
v. Veridiano (1988)] support a customary rule. [Brownlie]
(5) The principle in diplomatic law that the receiving State
has the special duty to protect the premises of the The customary norm retains a separate identity even if its
diplomatic mission of the sending State [Reyes v. content is identical with that of a treaty norm. Thus, a state
Bagatsing (1983)] that cannot hold a state responsibility for a breach of a
(6) The right of a citizen to return to his own country treaty obligation can still hold the erring state responsible
[Marcos v. Manglapus (1989)] for the breach of the identical customary norm. [Nicaragua
(7) The principle that “a foreign army allowed to march v. US Case (1984)]
through friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt GENERAL PRINCIPLES OF LAW
from criminal jurisdiction of the place”. [Raquiza v. Refer to those general principles in municipal law
Bradford (1945)] (particularly those of private law) that may be appropriated
(8) The principle that judicial acts not of a political to apply to the relations of states. [Oppenheim]
complexion of a de facto government established by
the military occupant in an enemy territory, is valid Unlike custom, it does not require to be supported by state
under international law. [Montebon v. Director of practice that is consistent and virtually uniform; it being
Prisons (1947)] sufficient that such principle is found in a number of legal
(9) The principle that private property seized and used by jurisdictions. [Roque]
the enemy in times of war under circumstances not
constituting valid requisition does not become enemy Illustrations:
property and its private ownership is retained, the Principles in Roman Law – estoppel, res judicata, res inter
enemy having acquired only its temporary use. [Noceda alios acta, prescription.
v. Escobar (1950)]
(10) The principle that a State has the right to protect itself When Thailand did not object to, and has in fact benefited
and its revenues, a right not limited to its own territory from, the Treaty of 1904 for 50 years, it is deemed to have
but extending to the high seas [Asaali v. Commissioner accepted said treaty. It is thereby precluded from
(1968)] questioning Annex I thereof, which showed that the
(11) Albeit an erroneous understanding of the elements Temple of Preah Vihear was within Cambodian territory
that make a customary norm of international law, the [Temple of Preah Vihear Case (1962)]
Supreme Court has held in Mijares v. Rañada (2005)– a
case involving claims against the Marcos estate – that Procedural Rules – the use of circumstantial evidence,
the enforcement of a foreign judgment is customary in hearsay evidence (press reports).
nature
Press reports can be used to corroborate the existence of a
PRINCIPLE OF PERSISTENT OBJECTOR fact; and, when they demonstrate matters of public
When a State has continuously objected to a new knowledge which have received extensive press coverage,
customary norm at the time when it is yet in the process of
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they can be used to prove a fact to the satisfaction of the Eastern Greenland case (1931-33): The ICJ held that
court. [Nicaragua v. US Case (62—63)] Denmark not only had a superior claim over the contested
territory, but that Norway was further bound by the Ihlen
Circumstantial evidence is admitted as indirect evidence in Declaration not to oppose Denmark’s claim. The Ihlen
all systems of law and its use is recognized by international Declaration is a statement made by the Norwegian Foreign
decisions. Such circumstantial evidence, however, must Minister, Nils Claus Ihlen, on the topic of Denmark's
consist of a series of facts or events that lead to a single sovereignty over Greenland, which Mr. Ihlen declared
conclusion. [Corfu Channel Case (1949)] verbally to the Danish Minister that “the plans of the Royal
[Danish] Government respecting Danish sovereignty over
Substantive – duty to make reparations, principle of the whole of Greenland would be met with no difficulties
reciprocity, pacta sunt servanda, separate corporate on the part of Norway.”
personality [Barcelona Traction Case (1970)]
Also in the Nuclear Test cases (1974), France declared that
The Standard of “Full” Reparations: Every breach of an it would cease atmospheric nuclear tests. This signaled
engagement (international obligation) entails the that there had ceased to be a dispute, since it had bound
obligation to make reparation. The amount of reparation itself to do what Australia and New Zealand wanted.
required is that amount which is necessary to bring the
injured party back to the situation had the wrong not
occurred. [Chorzow Factory Case (1927)]
There is no accepted definition of what the state is in The requisites for acquiring territorial soreveignty by
international law. The Montevideo Convention merely prescription are. — (1) Possession that must be exercised
enumerates what are the elements by which one may say titre de souverain; (2) Peaceful and uninterrupted; (3)
that a state exists. Public; and (4) Endure for a certain length of time
[Johnson]
States remain the most important actors in international
law. It possesses objective or erga omnes personality, not (4) Accession or accretion – the natural process of land
merely by virtue of recognition on the part of particular formation resulting in the increase of territory (original)
states.
Government
Objective (general) international personality – exists Government is the physical manifestation of a state.
wherever the rights and obligations of an entity are Government must be organized, exercising control over
conferred by general international law, e.g. states and capable of maintaining law and order within its
territory.
Special (particular) international personality – exists where
an entity is established by particular States for special Note: Under the Rules on Succession of States, even
purposes changes of entire governments do not affect the identity
and personality of the state. Once statehood is
REQUISITE ELEMENTS: established, neither invasion nor disorder alone can
People remove its character as a state. [Brownlie]
The term “people” refers to an aggregate of individuals of
both sexes who live together as a community despite racial “Effective” Government
or cultural differences. Although no minimum number is Although an effective government is the best evidence of
provided, they should be permanent, and sufficient to the existence of a State, an effective government is not
maintain and perpetuate themselves. always strictly necessary [Brownlie].
A state must exercise control over a certain area. It need Thus, with the collapse of their governments, Afghanistan
not be exactly defined by metes and bounds, so long as and Somalia were deemed failed states, but they remained
there exists a reasonable certainty of identifying it. No states.
minimum land area is required.
Further, some states were deemed states even before their
Modes of acquiring territorial sovereignty governments were "very well organized" (ex. Poland,
(1) Occupation of a territory not subject to the sovereignty Burundi, and Rwanda).
of any other state (original); this refers not to mere
discovery but effective exercise of sovereignty over a Governments de facto & de jure
territory which is terra nullius A government de jure is a government from law, that is, one
with a color of legitimacy.
Effective occupation means continued display of authority
which involves 2 elements each of which must be shown to A government de facto is one that governs without a
exist: (a) the intention and will to act as sovereign [animus mandate of law. So long as it is in place, it may command
occupandi], and (b) some actual exercise or display of such obedience from the inhabitants of the occupied area. The de
authority. [Eastern Greenland Case (1931-33)] facto ruler may suspend laws and enact new ones.
Animus occupandi must be demonstrated and evidenced Note: The establishment of a de facto government does not
by some administrative or political acts in relation to the by itself abolish all laws and structures established by the
territory in question and such acts must be under titre de deposed government. Only “laws of political nature
souverain (title of sovereignty). affecting political relations” are suspended ipso facto; laws
that enforce public order and regulate social and
To constitute effective occupation, exercise of sovereignty commercial life remain in effect unless they are changed
must be peaceful, actual, continuous and sufficient to by the de facto sovereign. Conversely, the re-
confer valid title to sovereignty. establishment of the de jure government does not void the
acts of the preceding de facto government.
(2) Cession – the transfer of territory from one state to
another by treaty (derivative); only bilateral mode of Three kinds of de facto government:
acquisition (1) Government de facto in the strict legal sense is that
which usurps – either by force or the will of the majority
The validity of cession depends on the valid title of the – the legal government and maintains and control
ceding state; the cessionary state cannot have more rights against it;
than what the ceding state possessed. [Magallona] (2) Government by paramount force is that which results
from the occupation of a state or a part thereof by
(3) Prescription – title is acquired by through continuous invading forces in time of war; and
and undisturbed exercise of sovereignty over a period
of time (derivative)
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(3) Government established as an independent government claims and feudal pre-colonial titles are mere relics of
by inhabitants of a country who rise in insurrection another international legal era, one that ended with the
against the parent state. setting of the sun on the age of colonial imperium.”
In other words, an entity endowed with statehood has The Manila Accord of 31 July 1963, signed by President
sovereignty, but sovereignty itself is not a precondition but Macapagal, President Sukarno and Prime Minister Tunku
only an attribute, or “an incident or consequence of Abdul Rahman, adopted in toto the report of the Foreign
statehood, namely the plenary competence that States Ministers earlier referred to.
prima facie possess.”
The Joint Statement of 5 August 1963 by the Three Heads
In its advisory opinion in Accordance with International of Government, especially its para. 8, which referred to the
Law of the Unilateral Declaration of Independence In Manila Accord, and reiterated their joint view that they
Respect of Kosovo, the ICJ dealt for the first time with the agreed to seek a just and expeditious solution to the
question of the legality of a unilateral declaration of dispute between the British government and the
independence brought to it by the General Assembly. This Philippines over Sabah through negotiations, conciliation,
case arose from the 2008 Kosovo declaration of arbiration or judicial settlement, or other peaceful means
independence amidst conflicting claims of resolving the issue. In addition, they affirmed that they
between Serbia and the Republic of Kosovo established by take cognizance of the Philippine claim to Sabah "after the
the said declaration. The ICJ, in an advisory opinion that establishment of the Federation of Malaysia as provided
received mixed reactions, declared that "the declaration of under para. 12 of the Manila Accord, that is, the inclusion
independence of the 17 February 2008 did not violate of Sabah in the Federation of Malaysia does not prejudice
general international law because international law either the claim or any right thereunder."
contains no 'prohibition on declarations of independence.'"
Yet it stopped short of saying what the legal implications In 1966, when relations between them normalized,
were of the same declaration. Malaysia and the Philippines, in a joint Communique of 3
June 1966, "agreed to abide by the Manila Accord of 31 July
Notes on Sabah and the question of self-determination: 1963 and with the Joint Statement accompanying it, for the
In his separate opinion to the Sovereignty over Pulau Ligitan peaceful settlement of the Philippine claim to Sabah." they
and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ further agreed that to the need to sit together to clarify the
in 2002, ad hoc judge Thomas Franck had this to say, in claim and reach a satisfactory resolution to the issue.
his rejection of the Philippine intervention:
And then, following the proclamation of the creation of the
Accordingly, in light of the clear exercise by the people of Federation of Malaysia on 16 September 1963, Manila and
North Borneo of their right to self-determination, it cannot Kuala Lumpur engaged in a series of exchages of Joint
matter whether this Court, in any interpretation it might Communiques, aides memoirs, Notes Verbale or
give to any historic instrument or efficacy, sustains or not diplomatic notes, all expressing the sense that both parties
the Philippines claim to historic title. Modern international have remained committed to the terms of the Manila
law does not recognize the survival of a right of sovereignty Accord of 1962. These exchanges ran from 1964 to 1968.
based solely on historic title; not, in any event, after an
exercise of self- determination conducted in accordance It is important to note that these are not mere unilateral
with the requisites of international law, the bona fides of declarations but are tripartite and bilateral documents
which has received international recognition by the that are binding upon the signatories under international
political organs of the United Nations. Against this, historic law. In the case of the Joint Statement, they all agreed that
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the Philippines will continue to pursue it claim even after Indeed, the Philippines is not claiming all of Sabah or
the inclusion of Sabah in the Malaysian Federation. In the contesting its political legitimacy. We are simply claiming a
case of the 1966 joint Communique, Malaysia without a piece of territory in North Borneo on the basis of a clear
doubt, by its consent to it, forfeited any advantage it might chain of title. At its heart is the claim that the1878 contract
have acquired through the UN ascertainment of 1963. entered into between the Sultan of Sulu and the
prospectors Dent and Overbeck is one of lease and not of
From the very beginning, the Philippines has demanded transfer of sovereignty.
that any referendum in Sabah on the question of its
inclusion in the Malaysian Federation be authentic and This lease contract was later passed on by the prospectors
bonafide, and under circumstances that ensured the free to the British North Borneo Company (BNBC), which in
and enlightened expression of the Sabahan's will. turn, sold its rights under the contract to the British
Crown. As in international law, sovereignty can only be
But the so-called Sabah referendum was anything but a ceded to sovereign entities or to inviduals acting for any
representative referendum. Only the election of local sovereign entity Overbeck and Dent did not have the power
officials was concerned in the proceedings. The question of to pass on to BNBC sovereignty over the properties of the
whether the people of Sabah wished to remain with Sultanate of Sulu over portions of North Borneo, they
Malaysia or to join the Philippines was not at all asked in being neither sovereign entities nor individuals acting for
the ballots issued to voters. any sovereign entity.
Moreover, much to the embarassment of UN officials, In fact, in 1903, the BNBC would sign with the Sultanate of
Malaysia announced the date of the creation of the Sulu a confirmatory Deed to the origina terms of the 1878
federation even before the results of the so-called lease. From 1878 to just before the1946 Cession, the British
referendum could be released, as if it had already been Crown has always recognized the 1878 contract as no more
predetermined. than a lease. The British Foreign Minister, Lord Granville,
assuring the Spaniards that the BNBC is not acquiring
In the wake of the Lahad Datu incident, the Malaysian dominion and sovereignty in North Borneo, stated thus:
government made the claim that two-thirds of the people
of Sabah agreed to be part of Malaysia in 1962. The Crown assumes no dominion or sovereignty over the
territories occupied by the company nor does it purport
Sabah opposition leaders like Jeffrey Kitingan however to grant to the Company any powers of government
dispute this, arguing that what actually took place was a thereover; it merely confers upon the persons associated
referendum of less than four percent of the people. If at all, the status and incidents of a body corporate and
Kitingan's statement confirms the Philippines' position recognize the grants of territory and the powers of
from the very beginning. government made and delegated by the Sultan in whom
the sovereignty remains vested.
Moreover, he also argues that all the relevant parties,
including the Sabahans, should find a peaceful solution to The British Foreign Minister would go on to say the BNBC
the dispute under the ambit of Great Britain and the was merely an administrator. To the same effect, the
United Nations. In any case, today's adamant refusal by Prime Minister, Mr. William Gladstone, in the debates in
Malaysian authorities to consider a joint submission with the House of Commons, gave an important speech. Thus
the Philippines on the Sabah question to an international Malaysia acquired no more than a derivative title from the
tribunal is a complete turnaround from its previous British crown, which could not be any better than what the
position on the matter. They cannot however, deny BNBC acquired from Overbeck and Dent.
documents to which Malaysia was a willing party and that
are binding under international law. And Malaysia's continuing payment of pajak to the heirs of
the Sultan of Sulu, on the basis of the 1939 probate of the
In the Sipadan and Ligitan case (2002), the ICJ denied the will of Sultan Jamalul Kiram by North Boreo Chief Justice
Philippine bid to be allowed to intervene, saying it did not Macaskie, in the amount of 5, 300 dollars annualy, further
show any specific legal interest in the dispute. However, affirm the Philippine position.
what proved important to the Philippines is the declaration
by the ICJ that it recognizes the existence of the Philippine The Chief Justice, in his decision dated 18 December 1939,
position on Sabah, as well as the positions taken by thus said:
Indonesia and Malaysia on it.
It is abundantly plain that the succesors in Sovereignty
This was the very first time the Philippines was able to of the Sulta of Sulu are the Goverment of the Philippine
articulate its claim to Sabah before an international islands, but Mr. De Leon contends that the decsion of
tribunal, although the Court ruled that its claim was not at the Philippine courts in the administration suit relating
issue in the proceedings. What exactly is this claim by the to the late Sulta's estate precludes that govenrment
Philippines? from assertingg any claim to the cession monies. In my
view, this is correct. The Philippine government allowed
As we argued in the Case Concerning Sovereignty Over Sultan Jamalul Kiram to enjoy cession monies as a
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ours private person sine 1915; they have made no claim on his
“is a territorial claim on a portion of Sabah which properly death and by a judgment of a Philippine court
belongs to the Philippines on the basis of a sound title jure recognized the right of the private heirs ofthe Sultan to
gentium and which Malaysia is improperly occupying on receive the cession monies. ( based on the Maxwell-
the basis of a faulty title which had been transferred to it Gibson translation of 1878)
by a prior faulty title holder."
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Justice Macaskie here has two aspects of the question in (1) The determination of statehood as a question of law
mind. First, he recognizes that there are rights to which may have evidential effect before a tribunal, and
sovereignty which now pertain to the Government of the (2) A condition of the establishment of formal, optional,
Philippines and there are proprietary rights that accrue to and bilateral relations, including diplomatic relations
the heirs of the Sultan of Sulu. This distinction may and the conclusion of treaties; also described by some
provide an alternative that could be most beneficial to all jurists as constitutive.
concerned, that is, given the difficulties of raising a full
sovereignty claim, it is perhaps more practical for the Declaratory View v. Constitutive View
Philippines to pursue the proprietary aspect to it. The Declaratory View (Prevailing View) posits that
In the MOA-AD case, the Philippine Supreme Court held recognition is a mere declaration or acknowledgement of
that the right to self-determination does not automatically an existing state of law and fact, legal personality having
mean the right of secession. been previously conferred by operation of law.
Referencing the Canadian Supreme Court’s holding in the The Constitutive View (Minority View) posits that the
Quebec case, the High Court discussed the distinction political act of recognition is a precondition to the
between Internal self-determination and External Self- existence of legal rights of a state. In its logical extreme,
Determination: this is to say that the very personality of a state depends on
(1) Through internal self-determination – the state the political decision of other states. [Brownlie]
recognizes a people's pursuit of its political, economic,
social and cultural development within the framework Important Doctrines:
of an existing state. Wilson/Tobar Doctrine (Asked 1 time in the Bar) – precludes
(2) A right to external self-determination (which in this case recognition of government established by revolution, civil
potentially takes the form of the assertion of a right to war, coup d’etat or other forms of internal violence until
unilateral secession) arises in only the most extreme of freely elected representatives of the people have organized a
cases and, even then, under carefully defined constitutional government [US President Woodrow Wilson,
circumstances. 1913 and Ecuadorian FM, 1907]
What are the exceptions that give rise to a right to external Stimson Doctrine – precludes recognition of any
self-determination? government established as a result of external aggression
(1) Vienna Declaration and UN Declaration of Friendly [US Sec. of State Henry Stimson (1932)]
Relation of states: massive violation of human rights
and deprivation of political representation can be a Estrada Doctrine (Asked 1 time in the Bar) – dealing or not
basis for right to secession. dealing with the government established through a political
(2) if a decision to secede is "freely determined by a upheaval is not a judgment on the legitimacy of the said
people;" that is to say, by a cross-section of the entire government [Mexican Minister Genaro Estrada (1930)]
population of the state to be divided and not only the
inhabitants of the region wishing to secede [Quebec Effects of recognition:
case (1998)]. (1) Diplomatic relations
(3) and if, following armed conflict, national boundaries are (2) Right to sue in courts of recognizing state
redrawn as part of the peace treaty. (3) Right to possession of properties of predecessor in the
recognizing state
Prof. Johan Van Der Vyver: (4) All acts of the recognized state or government are
“Self-determination of peoples is thus a matter of national validated retroactively, preventing the recognizing
independence in the case of peoples subject to colonial rule state from passing upon their legality in its own court.
or foreign domination, participation in the political
processes of a country in cases where the people concerned INTERNATIONAL ORGANIZATIONS
have been denied such participation on a discriminatory The status and powers of an IO is determined by
basis, and sphere sovereignty of peoples that uphold a agreement and not by general or customary international
strong (sectional) group identity within a political law.
community. Not one of these manifestations of self-
determination amounts to the disruption of national IO’s are considered subjects of international law “if their
borders of a territorially defined political community.” legal personality is established by their constituent
instrument (charter).”
In Quebec, the Canadian Supreme Court thus held that:
the decision rests with a cross-section of the entire Further, its constituent rights and duties, or capacities and
population of the state to be divided and not only the immunities, are limited to those set forth in the treaty
inhabitants of the region wishing to secede. creating the international organization. Thus, legal
personality in this context is a relative concept. [Magallona]
RECOGNITION
An act by which a state acknowledges the existence of PRECONDITIONS FOR INTERNATIONAL PERSONALITY
another state, government or belligerent community and (1) It must constitute a permanent association of states,
indicates willingness to deal with the entity as such under with lawful objects, equipped with organs;
international law. (2) There must be a distinction, in terms of legal powers
and purposes, between the organization [and] its
As a public act of state, recognition is an optional and member states; and
political act and there is no legal duty in this regard. (3) It must have legal powers that it may exercise on the
international plane and not solely within the national
Legal functions of recognition systems of one or more states.
The typical act of recognition has 2 legal functions:
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CAPACITY TO BRING A CLAIM FOR REPARATION He is immune from criminal and civil jurisdiction, except
An IO such as the United Nations (UN) must be deemed to when he himself is the plaintiff, and is not subject to tax or
have such powers which, though not expressly granted in exchange or currency restrictions.
its Charter, are conferred upon it by necessary implication as
being essential to the performance of its duties. THE FOREIGN OFFICE
The body entrusted with the conduct of actual day-to-day
Thus, though the UN Charter did not expressly clothe the foreign affairs.
UN with the capacity to bring an international claim for
reparations, the UN nevertheless possessed functional It is headed by a Secretary or a Minister who, in proper
personality. [Reparations for Injuries Advisory Opinion, ¶147] cases, may make binding declarations on behalf of his
government. [Legal Status of Eastern Greenland Case
IO’s are deemed to have powers not expressly granted in (1933)]
their charters where these unstated powers are either:
(1) implicitly bestowed in their charters or THE DIPLOMATIC CORPS
(2) necessary to effect powers expressly granted. Refers to the collectivity of all diplomatic envoys accredited
to a State.
INDIVIDUALS
While States have traditionally been deemed to be subject It is composed of:
of international law, individuals have likewise become in (1) Head of Mission – classified into:
some degree subjects of that law. However, individuals (a) Ambassadors or nuncios – accredited to Heads of
may assume the status of subjects of international law only State, and other heads of mission of equivalent
on the basis of agreement by states and in specific context, rank;
not in accordance with general or customary IL. (b) Envoys, Ministers and Internuncios – accredited to
Heads of State;
Illustrations: (c) Charges d’affaires – accredited to Ministers of
(1) Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the Foreign Affairs.
Sea-Bed Disputes Chamber of the ITLOS extends to (2) Diplomatic Staff – those engaged in diplomatic
disputes between parties to contracts relating to the activities and are accorded diplomatic rank.
exploitation of the Area. Parties to such contracts may (3) Administrative and Technical Staff – those employed in
be natural or juridical persons. the administrative and technical service of the mission.
(2) Claims Settlement Declaration of 1981 between US and (4) Service Staff – those engaged in the domestic service of
Iran: Direct access to the Iran-US Claims Tribunal is the mission [Nachura]
given to individuals for the settlement of their claims
involving more than $250,000 either against Iran or NOTE: In the Philippines, the President appoints (Sec. 16,
the US. Art.VII, Constitution), sends and instructs the diplomatic
(3) Mixed Claims Tribunals established in the Treaties of and consular representatives.
Peace concluded at the end of WWI: Individuals
enjoyed locus standi in actions against States relating Functions and Duties:
to contracts, debts, and property adversely affected by (1) Represent the sending State in the receiving State;
the war. (2) Protect in the receiving State the interests of the
(4) London Agreement of the International Military sending State and its nationals, within the limits
Tribunal at Nuremberg: In crimes against peace, war allowed by international law;
crimes and crimes against humanity, international law (3) Negotiate with the government of the receiving State;
imposes duties and liabilities upon individuals as well (4) Ascertain, by all lawful means, the conditions and
as upon States. developments in the receiving State and reporting the
(5) Art. VI of the Convention on the Prevention and same to the sending State;
Punishment of the Crime of Genocide: “Parties charged (5) Promote friendly relations between the sending State
with genocide” refers to individuals whose and receiving State, and developing their economic,
responsibility is thus under international law. cultural and scientific relations [Art. 3(1), VCDR]
(6) If diplomatic relation is severed, entrust the protection
of its nationals to the diplomatic mission of a third
State acceptable to the receiving State [Art. 45, VCDR]
Diplomatic and Consular Law (7) May protect the interest of a third State by agreement
with the receiving State, if there is no diplomatic
relations between the third State and the receiving
Diplomatic Intercourse, also referred to as the Right of State [Art. 46, VCDR]
Legation, is the right of the State to send and receive
diplomatic missions, which enables States to carry on DIPLOMATIC IMMUNITIES AND PRIVILEGES (ASKED 9
friendly intercourse. TIMES IN THE BAR)
THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES AND IMMUNITIES
AGENTS OF DIPLOMATIC INTERCOURSE (1) Extraterritoriality theory – the premises of the
HEAD OF STATE diplomatic mission represent a sort of extension of the
The head of State represents the sovereignty of the State, territory of the sending State
and enjoys the right to special protection for his physical (2) Representational theory – the diplomatic mission
safety and the preservation of his honor and reputation. personifies the sending State
(3) Functional necessity theory – privileges and immunities
Upon the principle of exterritoriality, his quarters, archives, are necessary to enable the diplomatic mission to
property and means of transportation are inviolate. perform its functions
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(3) As to criminal jurisdiction, members of the (3) Members of the service staff of the diplomatic mission,
administrative and technical staff of the diplomatic who are not nationals of or permanent residents in the
mission, as well as members of their families forming receiving state, with respect to ‘emoluments they
part of their respective households, who are not receive by reason of their employment’
nationals of or permanent residents in the receiving (4) Private servants of members of the mission if they are
state. But as to civil and administrative jurisdiction, not nationals or permanent residents of the receiving
immunity shall not extend to “acts performed outside state, with respect to ‘emoluments they receive by
the course of their duties’; and reason of their employment’. [Art. 37, VCDR]
(4) Members of the service staff of the diplomatic mission,
who are not nationals of or permanent residents in the Duration of Immunities and Privileges
receiving state, with respect to ‘acts performed in the These privileges are enjoyed by the envoy from the
course of their duties’. [Art. 37, VCDR] moment he enters the territory of the receiving State, and
shall cease when he leaves the country. With respect to
EXEMPTION FROM TAXES AND CUSTOMS DUTIES official acts, immunity shall continue indefinitely.
Exemption from taxation has 2 aspects, one, pertaining to
the sending state and another, pertaining to the Waiver of Immunities
diplomatic agent. Diplomatic privileges may be waived. Such waiver may be
made only by the government of the sending State if it
As to the sending state concerns the immunities of the head of the mission. In
Exemption applies to “premises of the mission” whether other cases, the waiver may be made either by the
owned or leased, with respect to “all national, regional or government or by the chief of the mission.
municipal dues and taxes”. [Art 23, VCDR]
CONSULAR RELATIONS
As to Diplomatic agents Consuls are State agents residing abroad for various
Are exempt from all dues and taxes, whether personal or purposes but mainly:
real, national, regional or municipal. [Art. 34, VCDR] (1) in the interest of commerce and navigation,
(2) issuance of visa (permit to visit his country), and
NOTE: He is also exempt from all customs duties of articles (3) such other functions as are designed to protect
for the official use of the mission and those for the nationals of the appointing State.
personal use of the envoy or members of the family
forming part of his household, including articles intended RANKS
for his establishment. Consul General: heads several consular districts, or one
exceptionally large consular district
Baggage and effects are entitled to free entry and are Consul: in charge of a small district or town or port
usually exempt from inspection. Vice Consul: assists the consul
Consular agent: one entrusted with the performance of
Exception to Tax Exemption: certain functions by the consul
As to sending state
Exemption does NOT include dues or taxes which FUNCTIONS
represent payment for specific services rendered. [Art. Consular functions include the following:
23(1), VCDR] (1) Protecting the interests of the sending state in the
territory of the receiving state;
As to diplomatic agents: (2) Protecting and assisting the nationals of the sending
(1) Indirect taxes incorporated in the price of goods state;
purchased or services availed (3) Furthering the development of commercial, economic,
(2) Dues and taxes on private immovable property situated cultural and scientific relations between the sending
in the receiving State state and the receiving state and promoting friendly
(3) Estate, succession or inheritance taxes levied by the relations between them;
receiving State (4) Ascertaining by all lawful means the conditions and
(4) Dues and taxes on private income sourced within the developments in the commercial, economic, and
receiving State cultural and scientific life of the receiving state,
(5) Capital taxes on investments in commercial ventures in reporting thereon to the government of the sending
the receiving State state, and giving information to persons interested;
(6) Charges levied for specific services rendered (5) Issuing passports and travel documents to nationals of
(7) Registration, court or record fees, mortgage dues and the sending state and visas and travel documents to
stamp duty, with respect to immovable property. [Art. persons wishing to travel to the sending state;
34, VCDR] (6) Acting as notary, civil registrar and similar
administrative capacities; and
Who are entitled to exemption from taxation in addition to (7) Exercising rights of supervision and inspection
the diplomatic agent? pertaining to the sending state as flag state and state
(1) Members of the family of the diplomatic agent forming of registry of aircraft.
part of his household, who are not nationals of the
receiving State According to the Swiss arbitrator Max Huber in the Las
(2) Members of the administrative and technical staff of Palmas case, one state's sovereignty over its territory
the diplomatic mission, as well as members of their comes with the concomitant obligations towards the rights
families forming part of their respective households, of other States:
who are not nationals of or permanent residents in the
receiving state.
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Territorial sovereignty, as has already been said, involves and (c) of the Convention, which give consular officers the
the exclusive right to display the activities of a State. This right to communicate with nationals of the sending state
right has as corollary a duty: the obligation to protect and to have access to them, and give consular officers the
within the territory the rights of other States, in particular right to visit a national of the sending state who is in
their right to integrity and inviolability in peace and in war, prison, custody or detention. The World Court also held
together with the rights which each State may claim for its that under the same article, the brothers had individual
nationals in foreign territory. Without manifesting its rights that may be invoked before it by Germany.
territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty. Territorial In the Avena case, Mexico sued the United States before
sovereignty cannot limit itself to its negative side, i.e. to the ICJ over the latter’s alleged failure to comply with the
excluding the activities of other States; for it serves to Vienna Convention in 54 different cases involving Mexican
divide between nations the space upon which human nationals who had been convicted and sentenced to death
activities are employed, in order to assure them at all by American courts. On March 31, 2004, the ICJ issued its
points the minimum of protection of which international ruling in the case, holding that the United States.
law is the guardian.
The ICJ held that the United States had breached its
In other words, the fact that one has sovereign claims over obligations under the Vienna Convention thus:
a piece of territory does not entitle it to wanton ill-
treatment of foreigners found within that territory, even
assuming for the sake of argument that these foreigners (1) by failing to inform, without delay, 51 Mexican nationals
are alleged to have committed acts inimical to the of their rights under the Vienna Convention;
interests of the state. (2) by failing to inform, without delay, the appropriate
Mexican consular post of the detention of 49 Mexican
nationals, thereby depriving Mexico of the right to
In both the La Grand (2001) and Avena (2004) Cases, the render assistance to its nationals;
International Court of Justice (ICJ) has laid down the (3) by depriving Mexico of the right to communicate with,
positive duty of states to accord consular privileges to and have access to, 49 Mexican nationals in a timely
sending states whose nationals have run into trouble in the manner;
jurisdiction of the receiving states, pursuant to Art. 36 of (4) by depriving Mexico of the right to arrange for legal
the Vienna Convention,. representation of 34 Mexican nationals in a timely
manner; and
The right of a state to claim rights for its nationals abroad (5) by not permitting the review and reconsideration, in
is referred to as “diplomatic protection”. Here, the duty of light of the rights set forth in the Vienna Convention, of
the state is to ensure that states treat their nationals the convictions and sentences of three Mexican
abroad in a manner that complies with human standards nationals currently awaiting execution.
recognized under the International Covenant on Civil and
Political rights, among others documents. Court held by way of providing a remedy to Mexico that the
United States must provide "by means of its own choosing,
Art. 36 (1)(b) states thus: review and reconsideration of the convictions and
If he so requests, the competent authorities of the sentences of the Mexican nationals." It added that to
receiving State shall, without delay, inform the consular satisfy the Court's judgment, the US must take into
post of the sending State if, within its consular district, a account the rights set forth in Article 36 as well as the
national of that State is arrested or committed to prison or relevant portions of the Court's opinion on this issue. The
to custody pending trial or is detained in any other manner. Court indicated that review and reconsideration must be
Any communication addressed to the consular post by the effective and must provide "a procedure which guarantees
person arrested, in prison, custody or detention shall also that full weight is given to the violation of the rights set
be forwarded by the said authorities without delay. The forth in the Vienna Convention, whatever may be the
said authorities shall inform the person concerned without actual outcome of such review and reconsideration." In the
delay of his rights under this subparagraph. end, the ICJ denied Mexico's request to hold that a Vienna
Convention violation must automatically result in the
In the La Grand case, the facts were: Walter La Grand and partial or total annulment of conviction or sentence.
his brother, who were German nationals residing in the
United States, were arrested and sentenced to death in NECESSARY DOCUMENTS
Arizona in 1982 in connection with armed robbery and The following documents are necessary for the assumption
murder. However, they were not informed of their rights of Consular functions:
under the Vienna Convention on Consular Relations, a (1) Letters Patent (letter de provision) – the letter of
multilateral treaty to which both Germany and the United appointment or commission which is transmitted by
States are states parties. the sending state to the Secretary of Foreign Affairs of
the country where the consul is to serve.
(2) Exequatur – the authorization given to the consul by the
Their court-appointed counsel did not raise the issue of sovereign of the receiving State, allowing him to
non-compliance with the Vienna Convention of the United exercise his function within the territory.
States in the brothers’ case, either at the court of origin or
on appeal. The matter was only raised in a federal habeas IMMUNITIES AND PRIVILEGES
corpus petition, by which time it was already too late. Freedom of communication;
(1) The receiving state shall permit and protect freedom of
On the merits, the ICJ ruled that the US had breached its information on the part of the consular post for all
obligations to Germany under article 36, paragraphs (1)(a) official purposes;
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(2) In communicating with the government, the diplomatic Scope of personal inviolability of consular officials
missions and other consular posts of the sending state, (a) They are not liable to arrest or detention pending trial,
the consular post may employ all appropriate means, except in case of a grave crime and pursuant to a
including diplomatic or consular bags and messages in decision of a competent judicial authority.
code or cipher; (b) They shall not be committed to prison nor be subject to
(3) The official correspondence of the consular post shall any other form of restriction to personal freedom,
be inviolable; except in the case of grave crime pursuant to a decision
(4) The consular bag shall neither be opened nor detained. of competent judicial authority, or in the execution of a
final judicial decision. [Sec. 41, VCCR]
But, may the receiving state request that the consular bag be Are consular officers and employees entitled to immunity
opened? from the jurisdiction of administrative and judicial
YES, if the authorities have serious reasons to believe that authorities in the receiving state?
the bag contains something other than correspondence, YES, but this immunity shall not apply to a civil action
documents or articles “intend exclusively for official use”. either:
(a) arising out of a contract by a consular officer or
If the request is accepted – the bag may be opened in the employee, which he did not conclude expressly or
presence of the authorized representative of the sending impliedly as an agent of the sending state; or
state. (b) by a third party for damage arising from an accident
caused by vehicle, vessel or aircraft in the receiving
If the request is refused – the bag shall be returned to its state. [Art. 43, VCCR]
place of origin. [Art. 35, VCCR]
Inviolability of archives;
Inviolability is unconditional. They shall be inviolable at all
times and wherever they may be. [Art. 33, VCCR] Treaties
Inviolability of premises; A 'treaty' is:
What is the scope of the inviolability of consular premises? (1) an international agreement
(1) Authorities of the receiving state shall not enter that (2) concluded between States
part of the consular premises exclusively used for (3) in written form and
consular work, except with the consent of the head of (4) governed by international law,
the consular post, his designee, or the head of the (5) whether embodied in a single instrument or in two or
diplomatic mission; but consent of the consular head more related instruments and
“may be assumed in case of fire or other disaster (6) whatever its particular designation [Art.2(1), Vienna
requiring prompt protective action; Convention on the Law of Treaties or VCLOT]
(2) The receiving state has the special duty to take all
appropriate steps to protect the consular premises Under the VCLOT, the term “treaty” includes all
against intrusion or damage and to prevent any agreements between states, regardless of how they are
disturbance of peace of the consular post or called. Thus, for purposes of international law, treaties,
impairment of its dignity executive agreements, exchanges of notes, etc. are all
(3) Consular premises, their furnishings, the property of the treaties. Note, however, that Philippine law makes a
consular post and its means of transport shall be distinction between treaties and executive agreements.
immune from any form of requisition “for purposes of Both are equally binding, but only treaties require the
national defense or public utility”. concurrence of the Senate to be effective.
(4) In case of consular premises, their furnishings, the
property of the consular post and its means of Treaty Executive Agreements
transport are expropriated for national defense or
public utility, “all possible steps shall be taken to avoid Subject Matter
impending the performance of consular functions, and (1) Political Issues (1) Transitory effectivity
prompt, adequate and effective compensation shall be (2) Changes in national (2) Adjusts details to carry
paid to the sending state. [Art. 31, VCCR] policy out well-established
(3) Involves international national policies and
Consular premises agreements of a traditions
“The buildings or parts of buildings and the land ancillary permanent character (3) Temporary
thereto, irrespective of ownership, used exclusively for the (4) Implements treaties,
purposes of consular post”. statutes, policies
Ratification
Consular Premises have: Requires ratification by Does not require
(1) Exemption from local jurisdiction for offenses the 2/3 of the Senate to concurrence by Senate to be
committed in the discharge of official functions, but not be valid and effective (Art. binding
for other offense except for minor infractions; VII, Sec. 21)
(2) Exemption from testifying on official communications
or on matters pertaining to consular functions; In the Northrail case, [China National Machinery &
(3) Exemption from taxes, customs duties, military or jury Equipment Corp. (Group) v. Sta. Maria, et al. (2012)] the
service. Supreme Court held that the Contract Agreement in
(4) Personal inviolability of consular officials question does not partake the nature of an executive
agreement on the following discussion:
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Article 2(1) of the Vienna Convention on the Law of Treaties departmental heads. The technique of exchange of notes
(Vienna Convention) defines a treaty as follows: is frequently resorted to, either because of its speedy
[A]n international agreement concluded between States procedure, or, sometimes, to avoid the process of
in written form and governed by international law, legislative approval.
whether embodied in a single instrument or in two or
more related instruments and whatever its particular The Supreme Court held that "treaties, agreements,
designation. conventions, charters, protocols, declarations, memoranda
In Bayan Muna v. Romulo (2011), this Court held that an of understanding, modus vivendi and exchange of notes"
executive agreement is similar to a treaty, except that all refer to "international instruments binding at
the former (a) does not require legislative concurrence; international law." Both the 1969 Vienna Convention and
(b) is usually less formal; and (c) deals with a narrower the 1986 Vienna Convention do not distinguish between
range of subject matters. the different designations of these instruments. Instead,
Despite these differences, to be considered an executive their rules apply to all of those instruments as long as they
agreement, the following three requisites provided meet the common requirements.
under the Vienna Convention must nevertheless concur: Agreements concluded by the President which fall short of
(a) the agreement must be between states; (b) it must treaties are commonly referred to as executive agreements
be written; and (c) it must governed by international law. and are no less common in our scheme of government
The first and the third requisites do not obtain in the than are the more formal instruments: treaties and
case at bar. conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents
First, the Supreme Court said that CNMEG, the Chinese denominated "agreements" or "protocols".
contractor, is neither a government nor a government
agency, noting that Contract Agreement was not REQUISITES FOR VALIDITY
concluded between the Philippines and China, but (1) Treaty Making Capacity
between Northrail and CNMEG. Indeed, By the terms of Possessed by all states as an attribute of sovereignty.
the Contract Agreement, Northrail is a government-owned International organizations also possess treaty-making
or -controlled corporation, while CNMEG is a corporation capacity, although limited by the organization’s
duly organized and created under the laws of the People’s purpose.
Republic of China. Thus, both Northrail and CNMEG (2) Competence of the Representative/Organ Making the
entered into the Contract Agreement as entities with Treaty
personalities distinct and separate from the Philippine and Generally exercised by the head of state.
Chinese governments, respectively. Full Powers
Refers to the authority of a person to sign a treaty or
Second, neither can it be said that CNMEG acted as agent convention on behalf of a state.
of the Chinese government. The fact that the Chinese Plenipotentiary
Ambassador to Manila, in his letter dated 1 October Persons other than the head of state, head of
2003, described CNMEG as a "state corporation" and government or foreign minister must produce such
declared its designation as the Primary Contractor in the instrument in order to sign a treaty binding their
Northrail Project, did not mean it was to perform government. Such a person is called a plenipotentiary.
sovereign functions on behalf of China. That label was only (3) Parties Must Freely Give Consent: If consent was given
descriptive of its nature as a state-owned corporation, and erroneously, or it was induced by fraud, the treaty shall
did not preclude it from engaging in purely commercial or be voidable.
proprietary ventures. (4) Object and Subject Matter Must be Lawful
(5) Ratification in Accordance with the Constitutional
Finally, the Contract Agreement itself expressly stated that Process of the Parties Concerned
is to be governed by Philippine law, while as defined in the
VCLOT, a treaty or an executive agreement is governed by THE TREATY-MAKING PROCESS
international law. NEGOTIATION
State representatives discuss the terms and provisions of
But contrast the holding of the Court in Northrail with its the treaty.
ruling in the earlier case of Abaya v. Ebdane (2007), where
the High Court ruled that a loan agreement, coupled with
an exchange of notes between two governments,
constitutes an Executive Agreement. The Exchange of ADOPTION [ART. 9, VCLOT]
Notes indicated that the two governments have reached It means that the form and content have been settled by
an understanding concerning Japanese loans to be the negotiating States. It is preparatory to the
extended to the Philippines and that these loans were authentication of the text of the treaty and to its
aimed at promoting our country’s economic stabilization signature.
and development efforts.
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EXPRESSION OF CONSENT TO THE BOUND BY THE TREATY [ART. 11, Pimentel v. Executive Secretary (2005) : The power to ratify
VCLOT] is vested in the President, subject to the concurrence of the
Senate. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification.
Although the refusal of a state to ratify a treaty which has
REGISTRATION WITH UN been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of
Consent to be bound by the terms of a treaty may be the President alone, which cannot be encroached by SC via
expressed through: a writ of mandamus. SC has no jurisdiction over actions
(1) Signature, when the negotiator is authorized to sign the seeking to enjoin the President in the performance of his
treaty; official duties.
Signature alone would be sufficient to bind the state to the AMENDMENT OR MODIFICATION OF TREATY
obligations under the treaty if: General Rule: Consent of all parties is required.
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States Exception: If the treaty itself so allows, two States may
agreed that signature should have that effect; or modify a provision only insofar as their relationship inter se.
(c) if the State can be shown to have had the intention to
be bound by the signature (look at full powers of its RESERVATIONS
representative). [Art. 12(1), VCLOT] A unilateral statement made by a state upon entering a
treaty whereby it purports to exclude or modify the legal
(2) Ratification, the formal consent to the treaty given by effect of certain provision/s of the treaty in their application
the Head of State, sometimes in conjunction with the to the reserving state [Art. 19, VCLOT].
legislature; or
Exceptions: A reservation shall not operate to modify or
Under international law, ratification is necessary when: exclude the provisions of a treaty:
(a) the treaty provides for such consent to be expressed by (1) Where the treaty expressly prohibits reservations in
means of ratification; general;
(b) it is otherwise established that the negotiating States (2) Where the treaty expressly prohibits that specific
agreed that ratification should be required; reservation being made; or
(c) The representative of the State has signed the treaty (3) Where the reservation is incompatible with treaty’s
subject to ratification [Art.14 (1), VCLOT], that is, when object and purpose [Reservation to the Genocide
the intent was to make it subject to ratification. Conventions Advisory Opinion]
(3) Exchange of instruments Constituting the Treaty INVALID TREATIES
(4) Acceptance (1) If the treaty violates a jus cogens norm of international
(5) Approval law (void);
(6) Accession - The method by which a State, under certain (2) If the conclusion of a treaty is procured by threat or use
conditions, becomes a party to a treaty of which it is not of force (void);
a signatory and in the negotiation of which it did not (3) Error of fact, provided that such fact formed an essential
take part basis of a state’s consent to be bound;
(7) By any other means agreed by the parties (4) If the representative of a state was corrupted to consent
by another negotiating state;
DOCTRINE OF TRANSFORMATION (5) If consent was obtained through fraudulent conduct of
In Philippine Law, treaties have to be transformed in order another negotiating state;
to be part of Philippine law. (6) If the representative consented in violation of specific
restrictions on authority, provided:
A treaty is “transformed” when a treaty is ratified after it (a) the restriction was notified to the other negotiating
has been concurred in by the Senate [Sec. 21, Art.VII, States
Constitution]. After ratification, a treaty shall be deemed as (b) prior to the representative expressing such consent;
if legislated by our Legislature. (7) If consent was given in violation of provisions of internal
law regarding competence to conclude treaties that is
La Chemise Lacoste v. Fernandez (1984): Lacoste, a French manifest and of fundamental importance.
corporation, sued local counterfeiters before Philippine
courts. When the counterfeiters challenged its legal GROUNDS FOR TERMINATION
personality to sue before Philippine courts, the Court held (1) Expiration of the term, or withdrawal of a party in
that the Philippines has ratified international conventions accordance with the treaty;
for the protection of intellectual property, and it would (2) Extinction of a party to the treaty, when the treaty rights
frustrate the object of these conventions if Lacoste is and obligations would not devolve upon the successor-
barred from filing its claims directly in Philippine courts. state;
(3) Mutual agreement of parties;
PHILIPPINE LAW (4) Denunciation or desistance by a party;
In the Philippines, the negotiation of treaties and their (5) Supervening impossibility of performance;
ratification are executive functions, subject to concurrence (6) Conclusion of a subsequent inconsistent treaty;
of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the (7) Loss of subject matter;
Constitution, treaties must receive the concurrence of the (8) Material breach or violation of treaty
Senate before they may be effective. (9) Fundamental Change of Circumstance (Rebus sic
stantibus)
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(2) No one shall be arbitrarily deprived of his nationality Note: Under Art. 32, the responsible State may not rely on
nor denied the right to change his nationality. the provisions of its internal law as justification for failure
to comply with its obligations to make reparations.
COVENANT RELATING TO THE STATUS OF STATELESS PERSONS
A stateless person is entitled to, among others, the right to Reparation for the taking of property requires
religion and religious instruction, access to courts, compensation. Reparation is due when there is a breach of
elementary education, public relief and assistance and an obligation.
rationing of products in short supply, as well as treatment
of no less favorable than that accorded to aliens. When an expropriation is legal, the amount of the
reparation is the logistical value of the property taken at
the time of the expropriation. However, when there is an
DOCTRINE OF STATE RESPONSIBILITY But a state may not be compelled to enforce a concession
It is a set of principles for when and how shall become agreement with a private entity through an action for
responsible for breaches of international obligation and specific performance:
who shall be held responsible for such.
“The impossibility of restitution and specific performance.
Every internationally wrongful act of a State entails the The claim would not even be realistic; such an action,
international responsibility of that State [Article 1, Draft which has the effect of turning back the clock would upset
Articles on the Responsibility of States for Internationally the current situation too profoundly and would have
Wrongful Acts or “Draft Articles”] unforeseeable practical consequences. Furthermore, if
awarded now and the contract would still be allowed to
ELEMENTS [ARTICLE 2, DRAFT ARTICLES]: exist indefinitely, the amount would be so great it would be
There is an internationally wrongful act of a State when absurd.
conduct consisting of an action or omission:
(1) Is attributable to the State under international law; and A rule of reason therefore dictates a result which conforms
(2) Constitutes a breach of an international obligation of a to international law, evidenced by state practice and the
State law of treaties, and to governing principles of English and
American contract law. The conclusion is thus: when by
Note: The characterization of an act of a State as exercise of sovereign power a State committed a
internationally wrongful is governed by international law. fundamental breach of a concession agreement by
Such characterization is not affected by the repudiating it through a nationalization of the enterprise
characterization of the same act as lawful by internal law. and its assets in a manner which implies finality, the
[Article 3, Draft Articles] concessionaire is not entitled to call for specific
performance by the Government of the agreement and
ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT reinstatement of his contractual rights, but his sole remedy
ARTICLES is an action for damages” [BP v. Libya (1973-74].
(1) Conducts of organs of a State [Art. 4]
(2) Conducts of persons or entities exercising elements of FORMS OF REPARATION
governmental authority [Art. 5] Restitution [Art. 35]
(3) Conducts of organs places at the disposal of a State by A State responsible for an internationally wrongful act is
another State [Art. 6] under an obligation to make restitution, that is, to re-
(4) Acts done in excess of authority or in contravention of establish the situation which existed before the wrongful
instructions [ultra vires acts] [Art. 7] act was committed, provided and to the extent that
(5) Conduct directed or controlled by a State [Art. 8] restitution:
(6) Conduct carried out in the absence or default of the (1) is not materially impossible;
official authorities [Art. 9] (2) does not involve a burden out of all proportion to the
(7) Conduct of an insurrectional or other movements [Art. benefit deriving from restitution instead of
10] compensation.
(8) Conduct acknowledged and adopted by a State as its
own [Art. 11] Compensation [Art. 36]
The State responsible for an internationally wrongful act is
CONSEQUENCES OF STATE RESPONSIBILITY under an obligation to compensate for the damage caused
The State responsible for the wrongful act is under the thereby, insofar as such damage is not made good by
obligation to: restitution.
(1) Cease the act if it is still continuing; and
(2) Offer appropriate assurances and guarantees of non- The compensation shall cover any financially assessable
repetition [Art. 30, Draft Articles] damage including loss of profits insofar as it is established.
DUTY TO MAKE REPARATIONS [ART. 31, DRAFT ARTICLES] Satisfaction [Art. 37]
(1) The responsible State is under an obligation to make The State responsible for an internationally wrongful act is
full reparation for the injury caused by the under an obligation to give satisfaction for the injury
internationally wrongful act. caused by that act insofar as it cannot be made good by
(2) Injury includes any damage, whether material or moral, restitution or compensation.
caused by the internationally wrongful act of a State.
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Satisfaction may consist in an acknowledgement of the law. It also ruled that state assets are also immune from
breach, an expression of regret, a formal apology or execution in connection with such claim.
another appropriate modality.
The case arose from a series of Italian domestic court
Satisfaction shall not be out of proportion to the injury and decisions awarding civil damages against Germany for
may not take a form humiliating to the responsible State. forced labor committed during World War II. While
Germany has acknowledged that it committed grave
breaches of international humanitarian law during the war,
it nonetheless insisted that claims against it should be
DOCTRINE OF STATE IMMUNITY This means that in the application of rules, the Court
It refers to a principle by which a State, its agents, and should have considered what is more beneficial to
property are immune from the jurisdiction of another State humanity: the cold application of the principle of sovereign
[Magallona]. This principle is premised on the juridical immunity or the primacy of protecting civilian and POWS in
equality of States, according to which a State may not times of armed conflict. While it is true that sovereign
impose its authority or extend its jurisdiction to another equality of states is a foundational principle of the law, the
State without the consent of the latter through a waiver of same is true also of the principle that that human rights
immunity. For example, domestic courts must thus decline have also ceased to be purely domestic issue.
to hear cases against foreign sovereigns out of deference
to their role as sovereigns. The fact that the ICJ gave primacy to the principle of
sovereign immunity from suits ignores why these rules
Absolute Sovereign Immunity- A Sate cannot be sued in a exist in the first place; that is, to protect the interests of
foreign court no matter what the act it is sued for individuals and not the interest of an artificial being that is
a state. As some have noted, international law protects for
Restrictive Sovereign Immunity- A State is immune from instance, the environment—not because the ocean or the
suits involving governmental actions (jure imperii), but not air should be protected as such. We do so ultimately
from those arising from commercial or non-governmental because human beings require clean water and air.
activity (jure gestionis).
True, the Court expressly said that its ruling does not affect
In its February 3, 2012 decision in the case of Germany v. the liability of state agents when they themselves commit
Italy, the International Court of Justice held that the egregious acts. But why should there be a distinction?
principle of sovereign immunity from suits is a customary Precisely because a state can only act only though its
norm of international law that holds, unless waived by the agent, there should be no distinction hence between suits
state concerned. The ICJ stressed that such immunity against the state itself and against its agents.”
applies even if the claim against the state is for violation of
a peremptory norm – a jus cogens norm – in international
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In the Northrail case [China National Machinery & Comment of the OSG is it manifested that the DFA has
Equipment Corp. (Group) v. Sta. Maria, et al. (2012)]: The endorsed GTZ’s claim, or that the OSG had solicited the
Supreme Court, on the question of which agency DFA’s views on the issue. The arguments raised by the
determines whether an entity is immune from suit in OSG are virtually the same as the arguments raised by
Philippine jurisdiction, held that: GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on
“The question now is whether any agency of the Executive the issue. The Comment filed by the OSG does not inspire
Branch can make a determination of immunity from suit, the same degree of confidence as a certification from the
which may be considered as conclusive upon the courts. DFA would have elicited.(Emphasis supplied.)
This Court, in Department of Foreign Affairs (DFA) v.
National Labor Relations Commission (NLRC), emphasized In the case at bar, CNMEG offers the Certification executed
the DFA’s competence and authority to provide such by the Economic and Commercial Office of the Embassy of
necessary determination, to wit: the People’s Republic of China, stating that the Northrail
Project is in pursuit of a sovereign activity. Surely, this is not
The DFA’s function includes, among its other mandates, the kind of certification that can establish CNMEG’s
the determination of persons and institutions covered by entitlement to immunity from suit, as Holy
diplomatic immunities, a determination which, when See unequivocally refers to the determination of the
challenge, (sic) entitles it to seek relief from the court so “Foreign Office of the state where it is sued.”
as not to seriously impair the conduct of the country's
foreign relations. The DFA must be allowed to plead its Further, CNMEG also claims that its immunity from suit
case whenever necessary or advisable to enable it to has the executive endorsement of both the OSG and the
help keep the credibility of the Philippine government Office of the Government Corporate Counsel (OGCC),
before the international community. When international which must be respected by the courts. However, as
agreements are concluded, the parties thereto are expressly enunciated in Deutsche Gesellschaft, this
deemed to have likewise accepted the responsibility of determination by the OSG, or by the OGCC for that matter,
seeing to it that their agreements are duly regarded. In does not inspire the same degree of confidence as a DFA
our country, this task falls principally of (sic) the DFA as certification. Even with a DFA certification, however, it
being the highest executive department with the must be remembered that this Court is not precluded from
competence and authority to so act in this aspect of the making an inquiry into the intrinsic correctness of such
international arena. (Emphasis supplied.) certification. “
Further, the fact that this authority is exclusive to the DFA In the same case, the High Court said that an agreement to
was also emphasized in this Court’s ruling in Deutsche arbitrate is an implied waiver of immunity:
Gesellschaft:
“In the United States, the Foreign Sovereign Immunities
It is to be recalled that the Labor Arbiter, in both of his Act of 1976 provides for a waiver by implication of state
immunity. In the said law, the agreement to submit
rulings, noted that it was imperative for petitioners to
disputes to arbitration in a foreign country is construed
secure from the Department of Foreign Affairs “a as an implicit waiver of immunity from suit. Although
certification of respondents’ diplomatic status and there is no similar law in the Philippines, there is reason
entitlement to diplomatic privileges including immunity to apply the legal reasoning behind the waiver in this
from suits.” The requirement might not necessarily be case….
imperative. However, had GTZ obtained such certification
from the DFA, it would have provided factual basis for its All disputes or controversies arising from this Contract
claim of immunity that would, at the very least, establish which cannot be settled between the Employer and the
a disputable evidentiary presumption that the foreign Contractor shall be submitted to arbitration in accordance
party is indeed immune which the opposing party will with the UNCITRAL Arbitration Rules at present in force
have to overcome with its own factual evidence. We do and as may be amended by the rest of this Clause. The
not see why GTZ could not have secured such certification appointing authority shall be Hong
Kong International Arbitration Center. The place of
or endorsement from the DFA for purposes of this
arbitration shall be in Hong Kong at Hong Kong
case. Certainly, it would have been highly prudential for International Arbitration Center (HKIAC).
GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this Under the above provisions, if any dispute arises between
juncture, we do not see any evidence that the DFA, the Northrail and CNMEG, both parties are bound to submit
office of the executive branch in charge of our diplomatic the matter to the HKIAC for arbitration. In case the HKIAC
relations, has indeed endorsed GTZ’s claim of immunity. It makes an arbitral award in favor of Northrail, its
may be possible that GTZ tried, but failed to secure such enforcement in the Philippines would be subject to the
certification, due to the same concerns that we have Special Rules on Alternative Dispute Resolution (Special
discussed herein. Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2
and 13.3 of the Special Rules, the party to arbitration
Would the fact that the Solicitor General has endorsed GTZ’s wishing to have an arbitral award recognized and enforced
claim of State’s immunity from suit before this Court in the Philippines must petition the proper regional trial
sufficiently substitute for the DFA certification? Note that court (a) where the assets to be attached or levied upon is
the rule in public international law quoted in Holy See located; (b) where the acts to be enjoined are being
referred to endorsement by the Foreign Office of the State performed; (c) in the principal place of business in the
where the suit is filed, such foreign office in the Philippines Philippines of any of the parties; (d) if any of the parties is
being the Department of Foreign Affairs. Nowhere in the
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The propriety of governmental acts should be put to the If there is a prima facie case, a warrant of surrender will be
test of international standards. The treatment of an alien, drawn and the fugitive will be delivered to the state of
in order to constitute an international delinquency, should origin.
amount to an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and
impartial man would readily recognize its insufficiency. The evaluation process partakes of the nature of a criminal
[Neer Claim (1926)] investigation, having consequences which will result in
deprivation of liberty of the prospective extradite. A favorable
EXTRADITION action in an extradition request exposes a person to
The surrender of a person by one state to another state eventual extradition to a foreign country, thus exhibiting the
where he is wanted for prosecution or, if already convicted, penal aspect of the process.
for punishment. [Cruz]
The evaluation process itself is like a preliminary
PD 1086: The removal of an accused from the Philippines investigation since both procedures may have the same
with the object of placing him at the disposal of foreign result – the arrest and imprisonment of the respondent.
authorities to enable the requesting state or government The basic rights of notice and hearing are applicable in
to hold him in connection with any criminal investigation criminal, civil and administrative proceedings. Non-
directed against him in connection with any criminal observance of these rights will invalidate the proceedings.
investigation directed against him or the execution of a Individuals are entitled to be notified of any pending case
penalty imposed on him under the penal or criminal law of affecting their interests, and upon notice, may claim the
the requesting state or government. right to appear therein and present their side. [Secretary of
Justice v. Lantion (2000)]
Basis: Treaty between the state of refuge and the state of
origin. AS DISTINGUISHED FROM DEPORTATION
Deportation – is the expulsion of an alien who is considered
FUNDAMENTAL PRINCIPLES undesirable by the local state, usually but not necessarily
Extradition is based on the consent of the state of the state to his own state. It is usually a unilateral act of the local
of asylum as expressed in a treaty or manifested as an act state and is made in its own interests.
of goodwill.
Principle of speciality – a fugitive who is extradited may be
tried only for the crime specified in the request for
extradition and included in the list of offenses in the
extradition. International Human Rights
Any person extradited, whether he be a national of the Law
requesting state, of the state of refuge or of another state.
Definition (asked 3 times in the bar): Human rights are
Political and religious offenders are generally not subject those fundamental and inalienable rights which are
to extradition. essential for life as a human being. They pertain to rights
of an individual as a human being which are recognized by
In the absence of special agreement, the offense must the international community as a whole through their
have been committed within the territory or against the protection and promotion under contemporary
interests of the demanding state. international law.
Rule of double criminality: The act for which the extradition CLASSIFICATION OF HUMAN RIGHTS
is sought must be punishable in both the requesting and (1) First generation – consists of civil and political rights;
requested states. (2) Second generation – consists of economic, social and
cultural rights;
Procedure (3) Third generation – refers to right to development, right
Surrender of refugee is sought: to peace, and right to environment.
Request for his extradition is presented through
diplomatic channels to the state of refuge, with the First generation Second generation
necessary papers for identification.
Obligatory Force under International Law
strictly (or objectively) relatively obligatory: States
obligatory, whatever the are required to
Receipt of the request economic or other progressively achieve the
conditions of the states full realization of these
obligated rights “to the maximum of
their available resources”
A judicial investigation will be conducted by the state of Derogation/ Restriction, when allowed
refuge to ascertain if the crime is covered by the
extradition treaty and if there is a prima facie case may only be derogated may be restricted for the
against the fugitive according to its own laws. in a public emergency general welfare, with or
without an “emergency
that threatens the
independence or security
of a State Party.”
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IHL has Two Branches: Article 3 is indifferent to the legal character of such group.
(1) Law of The Hague, which establishes the rights and
obligations of belligerents in the conduct of military It must be noted that Article 3 is to be applied as a
operations, and limits the means of harming the minimum.
enemy; and
(2) Law of Geneva, which is designed to safeguard military Common Article 3 and Protocol II
personnel who are no longer taking par in the fighting Protocol II develops and supplements common Article 3
and people not actively engaged in hostilities (i.e. [Art. 1, Protocol II]. It applies to:
civilians) (INTERNATIONAL COMMITTEE OF THE RED (1) all armed conflicts which take place in the territory of a
CROSS [“ICRC”]). State Party,
(2) between its armed forces and dissident armed forces or
Note: The two branches draw their names from the cities other organized groups
where each was initially codified. With the adoption of the (3) which, under responsible command, exercise such
Additional Protocols of 1977, which combine both control over a part of its territory
branches, that distinction is now of merely historical and (4) as to enable to carry out sustained and concerted
instructive value (ICRC). military operations and to implement the Protocol.
support in accordance with the purposes and principles of (6) Combatants and civilian who are captured by authority
the Charter (1970 Resolution 2625 [XXV]) of the party to a dispute are entitled to respect for their
right to life, dignity, conviction, and other personal
PRINCIPLES OF INTERNATIONAL HUMANITARIAN rights. They shall be protected against acts of violence
LAW or reprisals. [Legality of the Threat or Use of Nuclear
Combatants: Members of the armed forces of a Party to a Weapons, Advisory Opinion by the ICJ]
conflict [Art. 3(2), Protocol 1]. They have the right to
participate directly and indirectly in hostilities. [Art 43(2) PRISONERS OF WAR
Protocol 1] Article 4, Geneva Convention: Prisoners of war are persons
belonging to one of the following categories:
Note: Only combatants are allowed to engage in hostilities. (1) Members of the armed forces of a Party to the conflict,
including militias or volunteer corps
A combatant is allowed to use force, even to kill, and will (2) Militias or volunteer corps operating in or outside their
not be held personally responsible for his acts, as he would own territory, even if such territory is occupied
be where he to the same as a normal citizen [Gasser] provided:
(a) They are being commanded by a person responsible for
Hors de combat: Under Art. 41(2) of Protocol I, a person is his subordinates
hors de combat if he: (b) Have a fixed distinctive sign recognizable at a distance
(1) Is in the power of an adverse party to the conflict; (c) Carries arms openly
(2) He clearly expresses an intention to surrender; or (d) Conducts their operations in accordance with the laws
(3) He has been rendered unconscious or is otherwise and customs of war
incapacitated by wounds or sickness, and is therefore (3) Members of regular armed forces who profess
incapable of defending himself, provided that in any of allegiance to a government or authority not recognized
these cases, he abstains from any hostile act and does by the Detaining Power
not attempt to escape. (4) Civilians who accompany the armed forces, provided
that they have received authorization from the armed
Persons hors de combat shall be protected and treated forces which they accompany
humanely without any adverse distinction. Their right to (5) Members of crews of merchant marine and the crews of
life and physical and moral integrity shall be respected civil aircraft of the Parties to the conflict
(6) Inhabitants of a non-occupied territory who on the
Protected Persons: They are those who enjoy or are entitled approach of the enemy spontaneously take up arms to
to protection under the Geneva Conventions. Categories of resist the invading forces, without having had time to
protected persons include: form themselves into regular armed units, provided
(1) The wounded, the sick, and shipwrecked; they carry arms openly and respect the laws and
(2) Prisoners of War customs of war
(3) Civilians (7) Persons belonging to the armed forces of the occupied
territory
For purposes of protection, civilians are further classified
as: LAW ON NEUTRALITY
(1) Civilians who are victims of conflict in countries involved Neutrality is the legal status of a State in times of war, by
(2) Civilians in territories of the enemy; which it adopts impartiality in relation to the belligerents
(3) Civilians in occupied territories; with their recognition.
(4) Civilians internees
The Hague Convention Respecting the Rights and Duties of
TREATMENT OF CIVILIANS Neutral Powers (Oct. 18, 1907) governs the status of
Fundamental Principles of IHL neutrality by the following rules:
(1) Parties to an armed conflict, together with their armed (1) The territory of the neutral Power is inviolable;
forces, do not have unlimited choice of methods or (2) Belligerents are forbidden to move troops or munitions
means of warfare. They are prohibited from employing of war and supplies across the territory of a neutral
weapons or means of warfare that cause unnecessary Power;
damage or excessive suffering. (3) A neutral power is forbidden to allow belligerents to
(2) Parties to an armed conflict shall, at all times, use its territory for moving troops, establishing
distinguish between civilian population and the communication facilities, or forming corps of
combatants (Principle of Distinction). Civilians shall be combatants.
spared from military attacks which shall be directed (4) Troops of belligerent armies received by a neutral
only against military objectives. Power in its territory shall be interned by away from the
(3) Persons hors de combat are those who have been theatre of war;
injured in the course of hostile battle action and are no (5) The neutral Power may supply them with food, clothing
longer able to directly take part in hostilities. They shall or relief required by humanity;
be protected and treated humanely without any (6) If the neutral Power receives escaped prisoners of war,
adverse distinction. Their right to life and physical and it shall leave them at liberty. It may assign them a
moral integrity shall be respected. place of residence if it allows them to remain in its
(4) It is prohibited to kill or injure an enemy who is hors de territory;
combat or who surrenders. (7) The neutral power may authorize the passage into its
(5) The wounded and the sick shall be protected and cared territory of the sick and wounded if the means of
for by the party to the conflict which has them in its transport bringing them does not carry personnel or
power. Protection shall also apply to medical materials of war
personnel, establishments, transports and material.
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The Third Geneva Convention (Prisoners of War) allows Q: In an armed conflict, isn’t the use of nuclear weapons
neutral Powers to cooperate with the parties to the armed illegal, pursuant to Article 6, ICCPR, which safeguards the
conflict in making arrangements for the accommodation in right to life?
the former’s territory of the sick and wounded prisoners of A: While it is true that ICCPR protection does not cease in
war. times of war, except certain derogations allowed under Art.
4 in times of emergency, what applies in an armed conflict
Interned persons among the civilian population, in is the lex specialis, which is the law on armed conflict (IHL).
particular the children, the pregnant women, the mothers It determines whether the taking of life in times of war has
with infants and young children, wounded and sick, may be been arbitrary.
accommodated in a neutral state in the course of
hostilities, by agreement between the parties to the RA 9851 - PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL
conflict. HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST
HUMANITY (DEC. 11, 2009)
PROTECTING POWER (1) The Philippines renounces war as an instrument of
A protecting power is a State or an organization: national policy, adopts the generally accepted
(1) not taking part in the hostilities, principles of international law as a part of the law of
(2) which may be a neutral state, the land.
(3) designated by one party to an armed conflict with the (2) The state adopts the generally accepted principles of
consent of the other international law, including the Hague Conventions of
(4) to safeguard or protect its humanitarian interests in the 1907, the Geneva Conventions on the protection of
conflict, the performance of which IHL defines specific victims of war and international humanitarian law, as
rights and duties. part of the law our nation
.
Crimes and Penalties
Crime Definition/Category Specific Acts Punishable Penalty*
War Crimes or In case of an (1) Willful killing; Reclusion Temporal in
Crimes against international armed (2) Torture or inhuman treatment, including its medium to maximum
International conflict , grave breaches biological experiments; period and a fine
Humanitarian Law of the Geneva (3) Willfully causing great suffering , serious ranging from One
[Section 4] Conventions of 12 injury to body or health; hundred thousand pesos
August 1949, committed (4) Extensive destruction and appropriation of (Php 100,000.00) to
against persons or property not justified by military necessity Five hundred thousand
property protected by and carried out unlawfully and wantonly; pesos (Php
relevant Geneva (5) Willfully depriving a prisoner of war or other 500,000.00).
Convention protected person of the rights of fair and Reclusion Perpetua and
regular trial; a fine ranging from Five
(6) Arbitrary deportation or forcible transfer of hundred thousand pesos
population or unlawful confinement; (Php 500,000.00) to
(7) Taking of hostages; One million pesos (Php
(8) Compelling a prisoner a prisoner of war or 1,000,000.00) shall be
other protected person to serve in the forces imposed - When justified
of a hostile power; and by the extreme gravity of
(9) Unjustifiable delay in the repatriation of the crime (e.g., results in
prisoners of war or other protected persons, death or serious physical
against persons taking no active part in the injury, or constitutes
hostilities, including member of the armed rape)
forces who have laid down their arms and [Section 7]
those placed hors de combat by sickness,
wounds, detention or any other cause
In case of a non- (1) Violence to life and person, in particular, Reclusion Temporal in
international armed willful killings, mutilation, cruel treatment its medium to maximum
conflict, serious and torture; period and a fine
violations of common (2) Committing outrages upon personal dignity, ranging from One
Article 3 to the four (4) in particular, humiliating and degrading hundred thousand pesos
Geneva Conventions of treatment; (Php 100,000.00) to
12 August 1949 (3) Taking of hostages; and Five hundred thousand
(4) The passing of sentences and the carrying pesos (Php
out of executions without previous judgment 500,000.00).
pronounced by a regularly constituted court… Reclusion Perpetua and
a fine ranging from Five
hundred thousand pesos
(Php 500,000.00) to
One million pesos (Php
1,000,000.00) shall be
imposed - When justified
by the extreme gravity of
the crime (e.g., results in
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*Accessory Penalty: Forfeiture of proceeds, property and For the purposes of this section, orders to commit
assets derived, directly or indirectly, from that crime, genocide or other crimes against humanity are manifestly
without prejudice to the rights of bona fide third (3rd) unlawful. [Sec. 12]
parties. Plus, corresponding accessory penalties under the
RPC, especially where the offender is a public officer. Protection of Witnesses and Victims [Sec. 13 and 14]
The Philippine court shall take appropriate measures to
Criminal Responsibility protect the safety, physical and physiological well-being,
Principal – if he/she acts: dignity and privacy of victims and witnesses.
(1) Commits such a crime, whether as an individual, jointly
with another or through another person, regardless of As an exception to the general principle of public hearings,
whether that other person is criminally responsible; the court may, to protect the victims and witnesses or an
(2) Orders, solicits or induces the commission of such a accused, conduct any part of the proceedings in camera or
crime which in fact occurs or is attempted; allow the presentation of evidence by electronic or other
(3) In any other way contributes to the commission or special means.
attempted commission of such a crime by a group of
person acting with a common purpose. Such Where the disclosure of evidence or information pursuant
contribution shall be intentional and shall either: to this Act may lead to the grave endangerment of the
(a) be made with the aim of furthering the criminal activity security of a witness for his/her family, the prosecution
or criminal purpose of the group, where such activity or may, for the purposes of any proceedings conducted prior
purpose involves the commission of a crime defined in to the commencement of the trial, withhold such evidence
this Act; or or information and instead submit a summary thereof.
(b) be made in the knowledge of the intention of the group
to commit the crime. [Sec. 8(a)] The court shall follow the principles relating to the
reparations to, or in respect of, victims, including
Accomplice - facilitates the commission of a crime defined restitution, compensation and rehabilitation. The court
and penalized in this Act by aiding, abetting or otherwise may make an order directly against a convicted person
assisting in its commission or attempted commission, specifying appropriate reparations to, or in respect of,
including providing the means for its commission. [Sec. victims, including restitution, compensation and
8(b)] rehabilitation.
Attempt to commit the crimes specified (in attempted States Jurisdiction Over the Person of the Accused
stage) is also punishable. [Sec. 8(c)] Requirement (any of the following):
(1) The accused is a Filipino citizen;
This Act shall apply equally to all persons without any (2) The accused, regardless of citizenship or residence, is
distinction based on official capacity. [Sec. 9] present in the Philippines; or
(3) The accused has committed the said crime against a
A superior shall be criminally responsible as a principal for Filipino citizen.
such crimes committed by subordinates under his/her
effective authority and control as the case may be, as a Philippine authorities may dispense with the investigation
result of his/her failure to properly exercise control over or prosecution if another court or international tribunal is
such subordinates, where: already conducting the investigation or undertaking the
(1) That superior either knew… or should have known that prosecution of such crime. Instead, the authorities may
the subordinates were committing or about to commit surrender or extradite suspected or accused persons in the
such crimes; Philippines to the appropriate international court.
(2) That superior failed to take all necessary and
reasonable measures within his/her power to prevent No criminal proceedings shall be initiated against foreign
or repress their commission or to submit the matter to nationals if they have been tried by a competent court
the competent authorities for investigation and outside the Philippines in respect of the same offense and
prosecution. acquitted, or having been convicted, already served their
sentence. [Sec. 17]
Crimes defined and penalized under RA 9851 do not
prescribe. [Sec. 11] Where to file cases? RTC. The Supreme Court shall
designate special courts to try cases involving crimes
Orders from Superior - The fact that a crime defined and punishable under this Act. [Sec. 18]
penalized under this Act has been committed by a person
pursuant to an order of a government or a superior,
whether military or civilian, shall not relieve that person of
criminal responsibility unless the person was under a legal
obligation to obey orders of the government or the
Law of The Sea
superior in question, did not know that the order was
unlawful, and the order was not manifestly unlawful. The Convention on Law of the Sea (UNCLOS) is the body of
treaty rules and customary norms governing the use of the
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sea, the exploitation of its resources, and the exercise of (2) Within its archipelagic waters, the archipelagic state
jurisdiction over maritime regimes. [Magallona] shall recognize traditional fishing rights and other
legitimate activities of immediately adjacent
It is the branch of PIL which regulates the relations of neighboring states.
states with respect to the use of the oceans. (3) The archipelagic state shall respect existing submarine
cables laid by other states and “passing through its
BASELINES waters without making a landfall”.
The line from which a breadth of the territorial sea and (4) Right of archipelagic sea lanes passage: It is the right of
other maritime zones, such as the “contiguous zone” and foreign ships and aircraft to have continuous,
the “exclusive economic zone” is measured. Its purpose is expeditious, and unobstructed passage in sea lanes and
to determine the starting point to begin measuring air routes through or over archipelagic waters and the
maritime zones boundary of the coastal state. adjacent territorial sea of the archipelagic state.
NORMAL BASELINE – the territorial sea is the low-water line Note: the archipelagic state designates the sea lanes as
along the coast as marked on large-scale charts officially proposals to the “competent international organization”. It
recognized by the coastal state. [Art. 5, UN Convention on is the International Marine Organization (IMO) which
the Law of the Sea, or UNCLOS] adopts them through Art. 53(9) of the UNCLOS which
states that “the Organization may adopt only sea lanes
STRAIGHT BASELINE– where the coastline is deeply indented and traffic separation schemes as may be agreed with the
or cut into, or if there is a fringe of islands along the coast archipelagic state, after which such state may designate,
in its immediate vicinity, the method of straight lines prescribe or substitute them.”
joining the appropriate points may be employed in drawing
the baseline from which the breadth of the territorial sea is Special Issue: Under Art. 1 of the 1987 Constitution, the
measured [Art. 7, UNCLOS] archipelagic waters of the Philippines are characterized as
forming part of “the internal waters of the Philippines.”
ARCHIPELAGIC STATES However, under the UNCLOS, archipelagic waters consist
It is a state made up of wholly one or more archipelagos. It mainly of the “waters around, between, and connecting the
may include other islands. islands of the archipelago, regardless of breadth or
dimension.”
An archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural features Thus, conversion from internal waters under the
which are so closely related that such islands, waters and Constitution into archipelagic waters under the UNCLOS
natural features form an intrinsic geographical, economic gravely derogates the sovereignty of the Philippine state.
and political entity, or which historically have been Remember that sovereignty over internal waters precludes
regarded as such. the right of innocent passage and other rights pertaining
to archipelagic waters under the UNCLOS.
TWO KINDS OF ARCHIPELAGOS:
(1) Coastal — situated close to a mainland and may be Also, under Art. 47 of the UNCLOS, it is not mandatory
considered part thereof, i.e. Norway upon concerned states to declare themselves as
(2) Mid-Ocean — situated in the ocean at such distance archipelagic states; the Philippines did, under its new
from the coasts of firm land, i.e. Indonesia (note: The baselines law, RA 9522 – a legislative act upheld as
Archipelagic State provisions apply only to mid-ocean constitutional by the Supreme Court in Magallona v.
archipelagos composed of islands, and NOT to a partly Executive Secretary. The result could be disastrous, at
continental state.) least, in Dean Magallona’s view.
ARCHIPELAGIC SEA LANES PASSAGE Innocent passage: Navigation through the territorial sea
Other Rights with Respect to Archipelagic Waters w/o entering internal waters, going to internal waters, or
(1) Rights under existing agreement on the part of third coming from internal waters and making for the high seas.
states should be respected by the archipelagic state. It must:
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(1) involve only acts that are required by navigation or by Geographically disadvantaged states (those who have no
distress, and EEZ of their own or those coastal states whose
(2) not prejudice the peace, security, or good order of the geographical situations make them dependent on the
coastal state. exploitation of the living resources of the EEZ of other
states) and land-locked states have the right to participate,
Transit passage —The right to exercise freedom of on equitable basis, in the exploitation of the surplus of the
navigation and over flight solely for the purpose of living resources in the EEZ of coastal states of the same sub
continuous and expeditious transit through the straights region or region.
used for international navigation. The right cannot be
unilaterally suspended by the coastal state. Note: a coastal state whose economy is overwhelmingly
dependent on the exploitation of its EEZ is not required to
Innocent Passage Transit Passage share its resources.
Pertains to navigation of Includes the right of over JURISDICTION OF COASTAL STATE OVER EEZ:
ships only flight (1) establishment and use of artificial islands, installations
Requires submarines and Submarines are allowed to and structures,
other underwater vehicles navigate in “normal mode” (2) scientific research,
to navigate on the surface – i.e. submerged (3) the preservation and protection of marine environment.
and show their flag.
Can be suspended, but Cannot be suspended Under Art. 58 of the UNCLOS, all states enjoy the freedom
under the condition that it of navigation, over flight, and laying of submarine cables
does not discriminate and pipelines in the EEZ of coastal states.
among foreign ships, and
such suspension is The coastal state has the right to enforce all laws and
essential for the protection regulations enacted to conserve and manage the living
of its security, and resources in its EEZ. It may board and inspect a ship, arrest
suspension is effective only a ship and its crew and institute judicial proceedings
after having been duly against them.
published (Art. 25,
UNCLOS) Note: In detention of foreign vessels, the coastal state has
In the designation of sea Designation of sea lanes the duty to promptly notify the flag state of the action
lanes and traffic separation and traffic separation taken.
schemes, the coastal state schemes is subject to
shall only take into account adoption by competent Conflicts regarding the attribution of rights and jurisdiction
the recommendations of international organization in the EEZ must be resolved on the basis of equity and in
the competent upon the proposal and the light of all relevant circumstances, taking into account
international organization. agreement of states the respective importance of the interests involved to the
bordering the straits. parties as well as to the international community as a
whole. [Art. 59, UNCLOS]
EXCLUSIVE ECONOMIC ZONE (ASKED 1 TIME IN THE
BAR) CONTINENTAL SHELF
A stretch of area up to 200 miles from its baselines. EXTENDED CONTINENTAL SHELF
Within this zone, a State may regulate nonliving and living It is the seabed and subsoil of the submarine areas
resources, other economic resources, artificial installations, extending beyond the territorial sea of the coastal state
scientific research, and pollution control. throughout the natural prolongation of its lands territory up
to
NOTE: Under the UNCLOS, states have the sovereign right (1) the outer edge of the continental margin, or
to exploit the resources of this zone, but shall share that (2) a distance of 200 nautical miles from the baselines of
part of the catch that is beyond its capacity to harvest. the territorial sea where the outer edge of the
continental margin does not extend up to that
Resources covered by sovereign rights of coastal states in distance.
the EEZ include living and non-living resources in the
waters of the seabed and its subsoil. Continental margin the submerged prolongation of the
land mass of the continental state, consisting of the
Note: Coastal states have the primary responsibility to continental shelf proper, the continental slope, and the
utilize, manage and conserve the living resources within continental rise
their EEZ, i.e. ensuring that living resources are not
endangered by overexploitation, and the duty to promote LIMITS OF THE CONTINENTAL SHELF
optimum utilization of living resources by determining Juridical or Legal Continental Shelf: 0-200 nautical miles
allowable catch. from baselines.
If after determining the maximum allowable catch, the Extended Continental Shelf: 200-350 nautical miles from
coastal state does not have the capacity to harvest the baselines depending on geomorphologic or geological
entire catch, it shall give other states access to the surplus data and information
by means of arrangements allowable under the UNCLOS.
The UNLCOS, however, does not specify the method for When the continental shelf extends beyond 200 nautical
determining “allowable catch.” Hence, states may miles, the coastal state shall establish its outer limits.
establish illusory levels.
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At any rate, the continental shelf shall not extend beyond Compulsory Procedures that States Parties Can Choose
350 nautical miles from the baseline of the territorial sea, From:
*
or 100 nautical miles from the 2500-meter isobath (or the (1) International Tribunal for the Law of the Sea ;
point where the waters are 2500 meters deep). (2) International Court of Justice;
*
(3) Arbitral Tribunal ;
*
RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF (4) Special Arbitral Tribunal ;
The continental shelf does not form part of the territory of
the coastal state. The choice of the State Parties must be expressed in a
written declaration, which is revocable and replaceable.
It only has sovereign rights with respect to the exploration
and exploitation of its natural resources, including the Jurisdiction of Court or Tribunal
mineral and other non-living resources of the seabed and The court or Tribunal has jurisdiction over:
subsoil together with living organisms belonging to the (1) any dispute submitted to it concerning the application
sedentary species. or interpretation of UNCLOS
(2) any dispute concerning the interpretation or application
For example, the coastal state has the exclusive right to of an international agreement:
authorize and regulate oil-drilling on its continental shelf. (a) related to the purposes of the UNCLOS
(b) when such dispute is submitted to it in accordance with
These rights are exclusive in the sense that when the that agreement.
coastal state does not explore its continental shelf or
exploit its resources, no one may undertake these activities Composition of the International Tribunal for the Law of the
without the coastal state’s consent. Sea (ITLOS)
It is composed of 21 “independent members elected from
NOTE: In instances where the continental margin is more among persons enjoying the highest reputation for fairness
than 200 nautical miles from the baselines, and hence and integrity and of recognized competence in the field of
extends beyond the EEZ, the coastal state has the the law of the sea”.
exclusive right to exploit mineral and non-living resources
in the “excess area.” The composition shall also be representative of the world’s
principal legal systems and of equitable geographical
RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS. EEZ distribution.
Continental Shelf EEZ
Jurisdiction of ITLOS
Duty to No duty Coastal state is Its jurisdiction covers all disputes submitted to it in
manage obliged to manage accordance with the UNCLOS. It also includes matters
and and conserve living submitted to it under any other agreement.
conserve resources in the
living EEZ Applicable Laws in Settlement of Disputes by the ITLOS
resources The Tribunal shall apply the UNLCOS and other rules of
Rights of Relate to mineral Have to do with international law not incompatible with the UNCLOS. It
the coastal and other non- natural resources of may also decide a case ex aequo et bono (what is equitable
state as to living resources of both waters super and just) if the parties so agree.
natural the seabed and the adjacent to the
resources subsoil seabed and those Notes on the Philippine Arbitral Case Over the Chinese
of the seabed and Nine-Dash Claim
subsoil
Rights of Apply only to Do not pertain to CHINESE NINE-DASH LINE CLAIM
the coastal sedentary species sedentary species This declaration, first made known internationally in 1947,
state as to of such living features a map with a series of nine dashes or dotted lines
living resources forming a U-shaped enclosure and covering about 90
resources percent of the South China Sea. Included in the Chinese
claim are areas that, under the UNCLOS, would normally
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE pertain to the maritime entitlements of the other states in
SEA (ITLOS) the region, with the Philippines and Vietnam being its
most vocal critics.
SETTLEMENT OF DISPUTES
Peaceful Settlement of Disputes Practically all the coastal states – with the possible
Under par. 3, Art. 2 of the UN Charter, States have the duty exception of Indonesia – reject the Chinese Nine-Dash Line
to settle disputes by peaceful means. This obligation claim as a legally-definitive maritime boundary for China in
extends to State Parties of the UNCLOS, underscoring the the South China Sea. In 1995, Ali Alatas, then the
right of the parties to resort to peaceful means of their own Indonesian Foreign Minister obtained assurances from
choice on which they can agree any time. Beijing that it has no quarrel with Indonesia. This served as
basis for Indonesia’s exploitation of the Natuna gas fields
Compulsory Settlement of Disputes with nary a protest from the Chinese.
Where no successful settlement can be achieved, or if the
parties are unable to agree on the means of settlement of
a dispute concerning the application of UNCLOS, such
dispute may be governed by the principle of compulsory
settlement, where procedures entail binding decisions.
*
As established under the UNCLOS.
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In 2009, China formally submitted a map to the UN Philippines educational globes indicating
showing the areas in the area it claims under the China’s expansive territorial claims.
declaration.
PHILIPPINES TAKES CHINA TO ARBITRATION
One observer says the situation is compounded by the lack In late January this year, the Philippines brought matters
of clarity in the territorial and maritime assertions being to a head by bringing China to arbitration over the latter’s
made by China through its Nine-Dash Line Nine Dash Line claim.
claim, stressing that “China has chosen to leave the nine-
dash line ambiguous (with no map coordinates), because As expected, China while insisting on bilateral negotiations
the ambiguity gives greater room for manoeuvre.” immediately rejected the arbitration proceedings. This
raises questions over the viability of arbitration under the
Growing Chinese naval presence in SCS UNCLOS on the Law of the Sea as a binding procedure.
Since 2012 China has been stepping up its presence in the
area with new warships – including its very first aircraft Truth to tell, UNCLOS procedures for binding arbitrations
carrier – and expanded naval patrols and swarms are complicated and tricky. Membership means a state’s
of quasi-governmental fishing vessels. While, just a few acceptance of compulsory and binding dispute mechanism
months ago, amid much fanfare, China put up a new procedures provided in the treaty.
administrative structure to govern areas it has occupied
and those it claims, much to the protestations of the other However, the treaty also allows member-states to opt out
claimants. of these binding dispute mechanisms under Article
number 298 exceptions, which, among other things,
It has also engaged the Philippines in a standoff over the pertain to disputes concerning military activities, including
Scarborough Shoal (also known to Filipinos as Panatag military activities by government vessels and aircraft
Shoal and Bajo De Masinloc), a rock and coral reef engaged in non-commercial service, and disputes
formation about 220 kilometers off Masinloc town in the concerning law enforcement activities in regard to the
Philippine coastal province of Zambales and about 840 exercise of sovereign rights or jurisdiction as well as sea
kilometers from the nearest point of the Chinese coast. boundary delimitations, or those involving historic bays or
The shoal has been tacked to Philippine territory by a titles.
Treaty between London and Washington in the year 1900
and declared by the Philippines in a 2009 new baselines China has made such an exception in a formal declaration
law to be an island regime as defined under article on 25 August 2006.
number 121 of the UNCLOS.
For this reason, the Philippines was emphatic in
As early as 1913, Manila courts have heard cases of its Notification and Statement of Claims against China,
shipwrecks in the vicinity. With Philippine permission, the that its arbitral challenge does not cover any of the items
shoal was also used for live-fire exercises by the US Navy in the Chinese reservations.
while it ran its largest naval facility outside the US
mainland at Subic Bay until the early 1990s. The US and Among others things, the Philippines wants the arbitral
the Philippines still maintain a Mutual Defense tribunal to rule on the compatibility of the Nine-Dash Line
Treaty signed in 1951 and regularly hold joint training Claim with China’s internal waters, territorial sea, or
exercises under a Visiting Forces Agreement. exclusive economic zone under the UNCLOS.
Yet China designates the shoal Huangyan Island In other words, the Philippine submission asks whether
and asserts historic entitlements over it because it falls properly interpreted, the Chinese declaration complies
inside the Nine-Dash Line claim. with the maritime regimes set under the UNCLOS. In
addition, it also questions Chinese occupation of reefs
One expert observer argues that Scarborough shoal which are underwater – namely Mischief, McKeenan,
occupies a central place in the Chinese plans to enforce its Gaven and Subi – asking the tribunal to rule that since
sovereignty claims over what it calls the “Zhongsha these are neither “rocks” nor “islands”under the UNCLOS,
Qundao”‘, which consists of Macclesfield Bank, Truro these should be interpreted as part of the Philippine
Shoal, Saint Esprit Shoal, Dreyer Shoal and Scarborough continental shelf. As for Scarborough Shoal, which consists
Shoal. of six small rocks now conceded as uninhabitable islands,
the Philippines claims it as part of its EEZ.
Except for Scarborough, all banks and shoals of Zhongsha
Qunda are underwater for the most part. Without
Scarborough, it is said that the Chinese cannot assert
ownership over the entirety of Zhongsha Qundao, thus
making the Nine-Dash Line claim useless.
Purpose: It provides a cost-effective and efficient way for US v. Canada (Trail Smelter Case): No state has the right to
trademark holders -- individuals and businesses -- to use or permit the use of its territory in such a manner as to
ensure protection for their marks in multiple countries cause injury by fumes in or to the territory of another or the
through the filing of one application with a single office, in properties or persons therein, when the case is of serious
one language, with one set of fees, in one currency. consequence and the injury is established by clear and
convincing evidence
While an International Registration may be issued, it
remains the right of each country or contracting party PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
designated for protection to determine whether or not United Nations and the principles of international law, the
protection for a mark may be granted. Once the sovereign right to exploit their own resources pursuant to
trademark office in a designated country grants protection, their own environmental policies, and the responsibility to
the mark is protected in that country just as if that office ensure that activities within their jurisdiction or control do
had registered it. not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
The Madrid Protocol also simplifies the subsequent
management of the mark, since a simple, single BASIC PRINCIPLES:
procedural step serves to record subsequent changes in Principle of Common but Differentiated Responsibility
ownership or in the name or address of the holder with (Principle 7, Rio Declaration): States shall cooperate in a
World Intellectual Property Organization's International spirit of global partnership to conserve, protect and restore
Bureau. The International Bureau administers the the health and integrity of the Earth's ecosystem. In view of
Madrid System and coordinates the transmittal of the different contributions to global environmental
requests for protection, renewals and other relevant degradation, States have common but differentiated
documentation to all members. responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to
THE PARIS CONVENTION FOR THE PROTECTION OF sustainable development in view of the pressures their
INDUSTRIAL PROPERTY societies place on the global environment and of the
The treaty was signed in 1883 and it is one of the first technologies and financial resources they command.
treaties dealing with intellectual property and its
protection. Precautionary Principle (Principle 15, Rio Declaration): In
order to protect the environment, the precautionary
2
SUBSTANTIVE PROVISIONS : approach shall be widely applied by States according to
National Treatment: requires that each member state grant their capabilities. Where there are threats of serious or
the same quality and quantity of protection to eligible irreversible damage, lack of full scientific certainty shall
foreigners as it grants to its own nationals in respect to the not be used as a reason for postponing cost-effective
intellectual property enumerated in the Convention. measures to prevent environmental degradation.
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