Professional Documents
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College of Law
UCLASS Bar Operations
Political Law Society
POLITICAL LAW
BAR NOTES
2012
Chairperson: Paul Nejudne
Vice Chair: Lester Wee
Members:
Robie Quino, Gibran Abubakar,
Jhona Grace Alo, Leah Lara Bardoquillo,
Jennelyn Bilocura, Joy Bolivar,
Kristine Athena Nedamo,
Kristine Nejudne, Chelisa Roxas
References: Law Textbooks, Codes, Reviewers, Notes, Compilations, Articles and Internet Sources
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2. Negatively, it is an expression of
“DEMOCRATIC STATE” disapproval of military abuses.
This merely emphasize that the Philippines has
some aspects of direct democracy such as initiative SECTION 4. The prime duty of the Government is
and referendum. to serve and protect the people. The Government
may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be
SECTION 2. The Philippines renounces war as an required, under conditions provided by law, to
instrument of national policy, adopts the generally render personal military, or civil service.
accepted principles of international law as part of SECTION 5. The maintenance of peace and order,
the land and adheres to the policy of peace the protection of life, liberty and property, and the
equality, justice, freedom, cooperation, and amity promotion of the general welfare are essential for
with all nations the enjoyment by all the people of the blessings of
democracy.
Some “generally accepted principles of SECTION 6. The separation of Church and State
International law” recognized by the Court: shall be inviolable.
1. The right of an alien to be released on bail
while awaiting deportation when his failure to SECTION 7. The State shall pursue an
leave the country is due to the fact that no independent foreign policy. In its relations with
country will accept him (Mejoff v. Director of other states, the paramount consideration shall be
Prisons, 90 Phil. 70) national sovereignty, territorial integrity, national
2. The right of a country to establish military interest, and the right to self-determination.
commissions to try war criminals (Kuroda v.
Jalondoni, 83 Phil. 171) Paramount considerations in its relations
3. The Vienna Convention on Road Signs and with other states;
Signals (Agustin v. Edu, 88 SCRA 195) 1. National sovereignty
4. Duty to protect the premises of embassies and 2. Territorial integrity
legations (Reyes v. Bagatsing, G.R. 65366) 3. National interest
4. Right to self-determination
Amity with all nations
This does not mean automatic diplomatic SECTION 8. The Philippines, consistent with the
recognition of all nations. Diplomatic recognition
national interest, adopts and pursues a policy of
remains a matter of executive discretion.
freedom from nuclear weapons in its territory.
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SECTION 16. The State shall protect and advance 1. Police Power
the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of Concept
nature. - Power vested in the legislature by the
constitution to make, ordain, and
1. Policies and not under the Bill of Rights, it establish all manner of wholesome and
does not follow that it is less important reasonable laws, statutes, and all
than any of the civil and political rights ordinances either with penalties or
enumerated in the latter. (Oposa v. without not repugnant to the
Factoran, 224 SCRA 792) constitution as they shall judge to be
2. The right to balanced and healthful ecology for the good and welfare of the
carries with it the correlative duty to commonwealth and of the subjects of
refrain from impairing the environment. the same.
(Oposa v. Factoran)
– the power of the State authority to enact
SECTION 26. The State shall guarantee equal legislations that may interfere with personal
access to opportunities for public service, and liberty and property in order to promote the
prohibit political dynasties as may be defined by general welfare. (Agustin v. Edu)
law. - An inherent attribute of sovereignty.
Sec. 27. The State shall maintain honesty and (MMDA v. Bel-Air)
integrity in the public service and take positive and - Power vested in the legislature to make,
effective measures against graft and corruption. ordain, and establish all manner of wholesome and
Sec. 28. Subject to reasonable conditions reasonable laws, statutes and ordinances, either
prescribed by law, the State adopts and with penalties or without, not repugnant to the
implements a policy of full public disclosure of all Constitution, as they shall judge to be for the good
its transactions involving public interest. and welfare of the commonwealth. (MMDA v. Bel-
Air)
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mandated by R.A. 7924 to enforce traffic rules and retention limits as the Congress may prescribe,
regulations (MMDA v. Garin). taking into account ecological, developmental, or
equity considerations, and subject to the payment
Churchill vs. Rafferty of just compensation. In determining retention
“There can be no doubt that the exercise of limits, the State shall respect the right of small
the police power of the Philippine landowners. The State shall further provide
Government belongs to the Legislature and incentives for voluntary land-sharing.
that this power is limited only by the Acts of
Congress and those fundamentals principles Art. XIII, Sec. 9 The State shall, by law, and for
which lie at the foundation of all republican the common good, undertake, in cooperation with
forms of government. An Act of the Legislature the private sector, a continuing program of urban
which is obviously and undoubtedly foreign to any land reform and housing which will make available
of the purposes of the police power and interferes at affordable cost, decent housing and basic
with the ordinary enjoyment of property would, services to under-privileged and homeless citizens
without doubt, be held to be invalid. But where in urban centers and resettlement areas. It shall
the Act is reasonably within a proper also promote adequate employment opportunities
consideration of and care for the public to such citizens. In the implementation of such
health, safety, or comfort, it should not be program the State shall respect the rights of small
disturbed by the courts. The courts cannot property owners.
substitute their own views for what is proper
in the premises for those of the Legislature. In
Munn vs. Illinois (94 U.S., 113), the United States
Supreme Court states the rule thus: "If no state of
circumstances could exist to justify such statute, Art XIV, Sec. 13. The National assembly may
then we may declare this one void because in authorize, upon payment of just compensation, the
excess of the legislative power of this state; but if expropriation of private lands to be subdivided into
it could, we must presume it did. Of the propriety small lots and conveyed at cost to deserving
of legislative interference, within the scope of the citizens.
legislative power, a legislature is the exclusive
judge."
1. Concept
Article XII, Sec. 18. The State may, in the Being inherent, it need not be lodged or
interest of national welfare or defense, establish specifically conferred on government by the
and operate vital industries and, upon payment of Constitution.
just compensation, transfer to public ownership Art III sec. 9 of the Constitution merely imposes a
utilities and other private enterprises to be limit on the government’s exercise of power.
operated by the government.
CONST Note that eminent domain is different from
police power.
Art. XIII, Sec. 4 The State shall, by law,
undertake an agrarian reform program founded on Police power implies a “temporary taking” of a
the right of farmers and regular farm workers who private company’s operations and
are landless, to own directly or collectively the business;ownership is not transferred.
lands they till or, in the case of other farm
workers, to receive a just share of the fruits “Eminent domain, the power which the Municipality
thereof. To this end, the State shall encourage and of Bunawan exercised in the instant case, is a
undertake the just distribution of all agricultural fundamental State power that is inseparable from
lands, subject to such priorities and reasonable sovereignty. It is government's right to
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landowner to recover possession of the Extent: as broad as the purpose for which it is
expropriated lots; however, in cases where the given. Primarily vested in the national legislature.
government failed to pay the compensation within Also: local legislative bodies (Article 10, Section 5,
5 years from the finality of the judgment in the 1987 Constitution).
expropriation proceedings, the owner concerned
shall have the right to recover possession of their
property. This is in connection with the principle Taxes License Fees Special
that the government cannot keep the property and Assessments
dishonor the judgment. To be sure, the 5-year - Raise Imposed for Specific
period limitation will encourage the government to revenues regulatory benefits for
pay just compensation punctually. (Republic vs. for the purposes only specific
Lim, 2005) governmen persons
t Justification is
7. Agrarian Reform (Art. XIII, Sec. 4) police power Basis is cost of
Is an exercise of the police power of the State Levied construction
through eminent domain (Association of Small against Amount is
Landowners v. Secretary of Agrarian Reform) as it Revenues limited to cost
is a means to regulate private property. of regulation
Basis of
8. Urban Development and Housing Act (R.A. amount is
7279, mandated by Art. XIII, Sec. 9) higher
The power of eminent domain may be exercised
by LGUs for urban land reform purposes, but To a limited extent, the President may exercise
expropriation of privately-owned lands must be this power when granted delegated tariff powers
resorted to only after all other lands have been under Art.
exhausted. VI, sec. 28 (2)
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a. Importance accorded to the dignity and worth of a. A law which hears before it condemns,
the individual. proceeds upon inquiry and renders
b. Protection against arbitrary actions of judgment only after trial.
government and other members of society b. Due process of law contemplates notice
and opportunity to be heard before
Purpose: judgment is rendered affecting one’s
a. To preserve democratic ideals person or property (Lopez v. Dir. of Lands)
b. To safeguard fundamental rights c. Due process depends on circumstances; it
c. To promote the happiness of an individual varies with the subject matter and the
necessities of the situation.
Sales vs. Sandiganbayan, G.R No. 143802,
November 16, 2001
The purpose of the Bill of Rights is to protect the Requisites of PROCEDURAL due process:
people against arbitrary and discriminatory use of For JUDICIAL proceedings: CODE: I J H J
political power. This bundle of rights guarantees 1) An impartial court or tribunal clothed with
the preservation of our natural rights which include judicial power to hear and determine the
personal liberty and security against invasion by matter before it.
the government or any of its branches or 2) Jurisdiction must be lawfully acquired over
instrumentalities. Certainly, in the hierarchy of the person of the defendant or over the
rights, the Bill of Rights takes precedence over the property which is the subject of the
right of the State to prosecute, and when weighed proceedings.
against each other, the scales of justice tilt towards 3) The defendant must be given notice and an
the former opportunity to be heard. (notice and
hearing)
4) Judgment must be rendered upon a lawful
Philippine Blooming Mills Employees hearing.
Organization v. Philippine Blooming Mills Co.,
Inc 51 SCRA 189 (1973) primacy of human rights
over property rights is recognized. For ADMINISTRATIVE proceedings:
CODE: H E D S H I P
the rights of free expression and of assembly 1. The right to a hearing, which includes the
occupy a preferred position. right to present one’s case and submit
evidence in support thereof.
- Mere reasonable or rational relation between 2. The tribunal must consider the evidence
the means employed by the law and its object presented.
or purpose-that the law is neither arbitrary nor 3. The decision must have something to
discriminatory nor oppressive—would suffice to support itself.
validate a law which restricts or impairs property 4. Evidence supporting the conclusion must
rights. be substantial.
5. The decision must be based on the
- But a constitutional or valid infringement of evidence presented at the hearing or at
human rights require a more stringent least contained in the record and disclosed
criterion, namely existence of a grave and to the parties affected.
immediate danger of a substantive evil which the 6. The tribunal or body or any of its judges
State has the right to prevent. must act on its or his own independent
consideration of the law and facts of the
Aspects of “Due Process” controversy, and not simply accept the
a. Procedural due process – refers to the views of a subordinate in arriving at a
mode of procedure which government decision.
agencies must follow in the enforcement 7. The board or body should, in all
and application of laws controversial questions, render its decision
b. Substantive due process – prohibition in such a manner that the parties to the
against arbitrary laws. proceeding can know the various issues
involved and the reasons for the decision
rendered.
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NOTE:
For SCHOOL DISCIPLINARY proceedings: 1. The right to counsel is a very basic
CODE: W A In A D P requirement of substantive due process
1. The student must be informed in writing of and has to be observed even in
the nature and cause of any accusation administrative and quasi-judicial bodies.
against them. 2. The right to appeal is a statutory
2. The student shall have the right to answer privilege that may be exercised only in
the charges against him, with the the manner accordance with the law,
assistance of counsel if desired. except for the minimum appellate
3. The student has the right to be informed of jurisdiction of the Supreme Court provided
the evidence against him. in Article VIII Section 5 of the Constitution,
4. The student has the right to adduce which may not be increased or reduced by
evidence in his own behalf. law.
5. The evidence must be duly considered by
the investigating committee or official
designated by the school authorities to Requisites of SUBSTANTIVE due process:
hear by the school authorities to hear and CODE: I M
decide the case. 1. The INTERESTS of the public generally, as
6. The penalty imposed must be distinguished from those of a particular
proportionate to the offense. class, requires the interference by the
government and
NOTE: 2. The MEANS employed are reasonably
1. The school has a contractual obligation to necessary for the accomplishment of the
afford its students a fair opportunity to purpose and not unduly oppressive upon
complete the course a student has enrolled individuals.
for.
2. Exceptions:
a. Serious breach of discipline; or Requisites of a valid ordinance: CODE: Must
b. Failure to maintain the required NOT CUPPU, Must be GC
academic standard. 1. Must not contravene the Constitution or
3. Proceedings in student disciplinary cases any statute
may be summary; cross-examination is not 2. Must not be unfair or oppressive
essential 3. Must not be partial or discriminatory
4. Must not prohibit, but may regulate trade
5. Must not be unreasonable
Instances when hearings are NOT 6. Must be general and consistent with public
necessary: policy
1. When administrative agencies are
exercising their quasi-legislative functions.
2. Abatement of nuisance per se. Relative Constitutionality.
3. Granting y courts of provisional remedies.
4. Cases of preventive suspension.
The constitutionality of a statute cannot, in every
5. Removal of temporary employees in the
instance, be determined by a mere comparison of
government service.
its provisions with applicable provisions of the
6. Issuance of warrants of distraint and/or
Constitution, since the statute may be
levy by the BIR Commissioner.
constitutionally valid as applied to one set of facts
7. Cancellation of the passport of a person
and invalid in its application to another.
charged with a crime.
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A statute valid at one time may become void at (although see contrary ruling that
another time because of altered circumstances. vagueness does not apply to criminal
Thus, if a statute in its practical operation becomes cases, as held in Estrada v.
arbitrary or confiscatory, its validity, even though Sandiganbayan, G.R. No. 148560)
affirmed by a former adjudication, is open to 3. Overbreadth as an analytical tool is
inquiry and investigation in the light of changed applicable only to cases involving speech.
conditions.
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When issued by the Court of Appeals or the may issue the writ under his or her own hand, and
Sandiganbayan or any of its justices, it may be may deputize any officer or person to serve it.
returnable before such court or any justice thereof,
or to any Regional Trial Court of the place where The writ shall also set the date and time for
the petitioner or respondent resides, or that which summary hearing of the petition which shall not be
has jurisdiction over the place where the data or later than ten (10) work days from the date of its
information is gathered, collected or stored. issuance.
When issued by the Supreme Court or any of its SEC. 8. Penalty for Refusing to Issue or Serve the
justices, it may be returnable before such Court or Writ. – A clerk of court who refuses to issue the
any justice thereof, or before the Court of Appeals writ after its allowance, or a deputized person who
or the Sandiganbayan or any of its justices, or to refuses to serve the same, shall be punished by
any Regional Trial Court of the place where the the court, justice or judge for contempt without
petitioner or respondent resides, or that which has prejudice to other disciplinary actions.
jurisdiction over the place where the data or
information is gathered, collected or stored. SEC. 9. How the Writ Is Served. – The writ shall be
served upon the respondent by the officer or
The writ of habeas data shall be enforceable person deputized by the court, justice or judge
anywhere in the Philippines. who shall retain a copy on which to make a return
of service. In case the writ cannot be served
SEC. 5. Docket Fees. – No docket and other lawful personally on the respondent, the rules on
fees shall be required from an indigent petitioner. substituted service shall apply.
The petition of the indigent shall be docketed and
acted upon immediately, without prejudice to SEC. 10. Return; Contents. – The respondent shall
subsequent submission of proof of indigency not file a verified written return together with
later than fifteen (15) days from the filing of the supporting affidavits within five (5) work days from
petition. service of the writ, which period may be
reasonably extended by the Court for justifiable
SEC. 6. Petition. – A verified written petition for a reasons. The return shall, among other things,
writ of habeas data should contain: contain the following:
(a) The personal circumstances of the petitioner
and the respondent; (a) The lawful defenses such as national security,
(b) The manner the right to privacy is violated or state secrets, privileged communication,
threatened and how it affects the right to life, confidentiality of the source of information of
liberty or security of the aggrieved party; media and others;
(c) The actions and recourses taken by the (b) In case of respondent in charge, in possession
petitioner to secure the data or information; or in control of the data or information subject of
(d) The location of the files, registers or databases, the petition:
the government office, and the person in charge, (i) a disclosure of the data or information about
in possession or in control of the data or the petitioner, the nature of such data or
information, if known; information, and the purpose for its collection;
(e) The reliefs prayed for, which may include the (ii) the steps or actions taken by the respondent to
updating, rectification, suppression or destruction ensure the security and confidentiality of the data
of the database or information or files kept by the or information; and
respondent. (iii) the currency and accuracy of the data or
In case of threats, the relief may include a prayer information held; and
for an order enjoining the act complained of; and (c) Other allegations relevant to the resolution of
(f) Such other relevant reliefs as are just and the proceeding.
equitable. A general denial of the allegations in the petition
shall not be allowed.
SEC. 7. Issuance of the Writ. – Upon the filing of
the petition, the court, justice or judge shall SEC. 11. Contempt. – The court, justice or judge
immediately order the issuance of the writ if on its may punish with imprisonment or fine a
face it ought to issue. The clerk of court shall issue respondent who commits contempt by making a
the writ under the seal of the court and cause it to false return, or refusing to make a return; or any
be served within three (3) days from its issuance; person who otherwise disobeys or resists a lawful
or, in case of urgent necessity, the justice or judge process or order of the court.
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SEC. 12. When Defenses May Be Heard in to the court. The return shall contain a full
Chambers. – A hearing in chambers may be statement of the proceedings under the writ and a
conducted where the respondent invokes the complete inventory of the database or information,
defense that the release of the data or information or documents and articles inspected, updated,
in question shall compromise national security or rectified, or deleted, with copies served on the
state secrets, or when the data or information petitioner and the respondent.
cannot be divulged to the public due to its nature
or privileged character. The officer shall state in the return how the
judgment was enforced and complied with by the
SEC. 13. Prohibited Pleadings and Motions. – The respondent, as well as all objections of the parties
following pleadings and motions are prohibited: regarding the manner and regularity of the service
(a) Motion to dismiss; of the writ.
(b) Motion for extension of time to file opposition,
affidavit, position paper and other pleadings; SEC. 18. Hearing on Officer’s Return. – The court
(c) Dilatory motion for postponement; shall set the return for hearing with due notice to
(d) Motion for a bill of particulars; the parties and act accordingly.
(e) Counterclaim or cross-claim; SEC. 19. Appeal. – Any party may appeal from the
(f) Third-party complaint; judgment or final order to the Supreme Court
(g) Reply; under Rule 45. The appeal may raise questions of
(h) Motion to declare respondent in default; fact or law or both.
(i) Intervention;
(j) Memorandum; The period of appeal shall be five (5) work days
(k) Motion for reconsideration of interlocutory from the date of notice of the judgment or final
orders or interim relief orders; and order.
(l) Petition for certiorari, mandamus or prohibition
against any interlocutory order. The appeal shall be given the same priority as
habeas corpus and amparocases.
SEC. 14. Return; Filing. – In case the respondent
fails to file a return, the court, justice or judge SEC. 20. Institution of Separate Actions. – The
shall proceed to hear the petition ex parte, filing of a petition for the writ of habeas data shall
granting the petitioner such relief as the petition not preclude the filing of separate criminal, civil or
may warrant unless the court in its discretion administrative actions.
requires the petitioner to submit evidence.
SEC. 21. Consolidation. – When a criminal action is
SEC. 15. Summary Hearing. – The hearing on the filed subsequent to the filing of a petition for the
petition shall be summary. However, the court, writ, the latter shall be consolidated with the
justice or judge may call for a preliminary criminal action.
conference to simplify the issues and determine When a criminal action and a separate civil action
the possibility of obtaining stipulations and are filed subsequent to a petition for a writ of
admissions from the parties. habeas data, the petition shall be consolidated with
the criminal action.
SEC. 16. Judgment. – The court shall render
judgment within ten (10) days from the time the After consolidation, the procedure under this Rule
petition is submitted for decision. If the allegations shall continue to govern the disposition of the
in the petition are proven by substantial evidence, reliefs in the petition.
the court shall enjoin the act complained of, or
order the deletion, destruction, or rectification of SEC. 22. Effect of Filing of a Criminal Action. –
the erroneous data or information and grant other When a criminal action has been commenced, no
relevant reliefs as may be just and equitable; separate petition for the writ shall be filed. The
otherwise, the privilege of the writ shall be denied. reliefs under the writ shall be available to an
aggrieved party by motion in the criminal case.
Upon its finality, the judgment shall be enforced by The procedure under this Rule shall govern the
the sheriff or any lawful officer as may be disposition of the reliefs available under the writ
designated by the court, justice or judge within of habeas data.
five (5) work days. SEC. 23. Substantive Rights. – This Rule shall not
SEC. 17. Return of Service. – The officer who diminish, increase or modify substantive rights.
executed the final judgment shall, within three (3)
days from its enforcement, make a verified return
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SEC. 24. Suppletory Application of the Rules of 1. When the nation is at war. Ex: government
Court. – The Rules of Court shall apply suppletorily can prevent publication about the
insofar as it is not inconsistent with this Rule. number/location of its troops
2. Obscene publications
SEC. 25. Effectivity. – This Rule shall take effect on 3. Security of community life may be
February 2, 2008 following its publication in three protected against incitements to acts of
(3) newspapers of general circulation. violence or overthrow by force of orderly
government.
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iii. Whether the work, taken as a The Court in Chavez elucidated on the
whole, lacks serious literary, distinction between regulation or restriction
artistic, political or scientific value. of protected speech that is content-based
B. Procedure for seizure of allegedly obscene and that which is content-neutral. A
publications content-based restraint is aimed at the
i. Authorities must apply for issuance contents or idea of the expression,
of search warrant. whereas a content-neutral restraint
ii. Court must be convinced that the intends to regulate the time, place, and
materials are obscene. Apply clear manner of the expression under well-
and present danger test. defined standards tailored to serve a
iii. Judge will determine whether they compelling state interest, without restraint
are in fact “obscene” on the message of the expression. Courts
iv. Judge will issue a search warrant. subject content-based restraint to strict
v. Proper action should be filed under scrutiny. (Soriano vs. Laguardia, G.R No.
Art. 201 of the RPC. 164785, April 29, 2009)
vi. Conviction is subject to appeal.
- Expression not subject to prior restraint
is protected expression or high-value
expression. Any content-based prior
Right of Assembly and Petition restraint on protected expression is
unconstitutional without exception. A
1. The standards for allowable impairment of protected expression means what it says –
speech and press also apply to the right of it is absolutely protected from censorship.
assembly and petition. Thus, there can be no prior restraint on
2. Rules on assembly in PUBLIC places (Reyes public debates on the amendment or
v. Bagatsing G.R. No. L-65366): repeal of existing laws, on the ratification
A. Applicant should inform the licensing of treaties, on the imposition of new tax
authority of the date, the public place measures, or on proposed amendments to
where and the time when the assembly the Constitution.
will take place.
B. The application should be filed ahead
- Prior restraint on expression is content-based
of time to enable the public official
if the restraint is aimed at the message or idea
concerned to appraise whether there
of the expression. Courts will subject to strict
are valid objections to the grant of the
scrutiny content-based restraint. If the
permit or to its grant, but in another
content-based prior restraint is directed at
public place. The grant or refusal
protected expression, courts will strike down
should be based on the application of
the restraint as unconstitutional because there
the Clear and Present Danger Test.
can be no content-based prior restraint on
C. If the public authority is of the view
protected expression. The analysis thus turns
that there is an imminent and grave
on whether the prior restraint is content-
danger of a substantive evil, the
based, and if so, whether such restraint is
applicants must be heard on the
directed at protected expression, that is, those
matter.
not falling under any of the recognized
D. The decision of the public authority,
categories of unprotected expression.
whether favorable or adverse, must be
transmitted to the applicants at the
earliest opportunity so that they may, - If the prior restraint is not aimed at the
if they so desire, have resource to the message or idea of the expression, it is
proper judicial authority. content-neutral even if it burdens
3. Rules on assembly in PRIVATE properties: expression. A content-neutral restraint is a
Only the consent of the owner of the restraint which regulates the time, place or
property or person entitled to possession manner of the expression in public places
thereof is required. without any restraint on the content of the
expression. Courts will subject content-
Content-based and Content-neutral neutral restraints to intermediate scrutiny.
Regulations
- An example of a content-neutral restraint
is a permit specifying the date, time and
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prominent setting sends unmistakable message corporations or associations at least sixty per centum of
the capital of which is owned by such citizens.
that gov’t supports Christianity. Yes for menorah:
its setting (combined with a Christmas tree) has a
secular dimension, a recognized tradition. Foreign ownership of educational institutions
established by religious groups and mission boards
Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. (otherwise citizen or corporation whose capital is
2003) – WON Granite monument of 10 at least 60% citizen owned).
commandments in front of courthouse is
constitutional. HELD: No, display is unmistakably Administration must be in the hands of Filipinos
non-secular. Nothing in its setting de-emphasizes who may or may not be sectarian.
its religious nature, engenders in viewers a sense
that Christianity is endorsed by the government. 3. Religious instruction in public schools
Art. XIV, Sec. 3(3).
At the option expressed in writing by the parents or
3. Mandatory religious subjects or guardians, religion shall be allowed to be taught to their
prohibition on children or wards in public elementary and high schools
4. secular subjects within the regular class hours by instructors designated or
approved by the religious authorities of the religion to
Epperson vs. Arkansas, 393 U.S. 97 (1968) which the children or wards belong, without additional
– WON law prohibiting the teaching of evolution in cost to the Government.
schools is constitutional.
Civil Code, Art. 359. The government promotes the full
HELD: No, state may not require schools to tailor growth of the faculties of every child. For this purpose, the
their teaching in accordance with the principles or government will establish, whenever possible: (1) Schools
in every barrio, municipality and city where optional
prohibitions of any religious sects. religious instruction shall be taught as part of the
curriculum at the option of the parent or guardian.xxx
5. Mandatory bible reading in school
School District vs. Schempp, 374 U.S. 203 Religious instruction permitted during class
– WON bible reading at the opening of school day hours in elementary and high school
is constitutional. HELD: No, the exercise is if:
religious in character. May not prefer belief over
non-belief. With written parental/guardian request;
6. The word “God” in the Pledge of Allegiance By instructors approved by religious authority
Newdow vs. US, No.00-16423, 9th Cir. (opinion and;
amended Feb. 28, 2003) – WON
Pledge of Allegiance containing the word Without additional cost to government.
“God” is constitutional. HELD: No, mandatory
recitation in school would tend to discriminate 4. Public aid to religion
against students who are atheists. Art. VI, Sec. 29 (2). No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect,
b. What are permitted (i.e. EXCEPTIONS to church, denomination, sectarian institution, or system of
the Establishment Clause): religion, or of any priest, preacher, minister, other
1. Tax exemption religious teacher, or dignitary as such, except when such
Art. VI, Sec. 28 (3). Charitable institutions, churches and priest, preacher, minister, or dignitary is assigned to the
personages or convents appurtenant thereto, mosques, armed forces, or to any penal institution, or government
non-profit cemeteries, and all lands, buildings, and orphanage or leprosarium.
improvements, actually, directly, and exclusively used for
religious, charitable, or educational purposes shall be
Financial support permissible for priest,
exempt from taxation.
preacher, minister, or dignitary assigned
to:
The ruling in Bishop of Nueva Segovia v.
Provincial Board, 51 Phil. 352 (1927) is modified to
-Armed forces.
the extent now that the property must be
-Penal institution.
"actually, directly and exclusively" used for
- Government orphanage or
religious purposes to be exempt.
leprosarium.
2. Operation of sectarian schools
Art. XIV, Sec. 4(2). Educational institutions, other than
those established by religious groups and mission boards, 5. Postage stamps depicting Philippines as
shall be owned solely by citizens of the Philippines or the site of a significant religious event.
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Alipay vs. Ruiz, 64 Phil. 201 – WON Postage i. Statute must have a secular legislative
stamps which promote a Catholic event is purpose.
constitutional. HELD: Yes, benefit to religious sect ii. Primary effect must be one that neither
incidental to promotion of Philippines as a tourist advances nor inhibits religion.
destination. iii. Must not foster excessive entanglement
between government and religion.
6. Government sponsorship of town fiestas
Garces vs. Estenzo, 104 SCRA 510 – WON F. FREE EXERCISE OF RELIGION
Barangay resolutions regarding barrio fiesta Two aspects: (a) Right to believe, which is
honoring a patron saint is constitutional. Held: Yes, absolute; and (b) right to act according to one’s
traditions which used to be purely religious but beliefs, which may be regulated.
have now acquired secular character are 1. Right to believe
permissible. Freedom of religious belief is absolute, it may
not be curtailed.
LAW 2 “Men may believe what they cannot prove”. (US
7. Book lending program for students in vs. Ballard, 322 US 78). Courts may not inquire
parochial schools into the veracity of the subject of belief but only in
Board of Education vs. Allen, 392 U.S. 236 the sincerity of the belief.
– WON lending program of books to students in
parochial schools is constitutional. HELD: Yes, 2. Right to act according to one’s belief
benefit redounds to students and parents not to May be regulated by police power measures
any particular sect. (subject to Clear and Present Danger Test).
German vs. Barangan, 135 SCRA 514 – the
8. Display of crèche in a secular setting security of presidential family and their guests
Lynch vs. Donnely, 465 U.S. 668 (1984) – supersedes that of people’s religious freedom to
WON crèche is constitutional. HELD: Yes, it is attend a mass at St. Jude in Malacanang.
displayed in a secular manner, merely depicts the
origins of the holiday. The Constitution mandates 5. The following government laws and
accommodation and not merely tolerance. Instead policies were justified under free
of an absolutist approach, court inquires if the law exercise clause:
or conduct has a secular purpose.
a. Exemption from flag salute
9. Financial support for secular academic Conscientious Objectors cannot be
facilities compelled to salute the flag. The idea that one
Tilton vs. Richardson, 403 U.S. 672 –WON law may be compelled to salute the flag, sing the
granting financial support for expansion of national anthem, and recite the patriotic pledge,
educational facilities in parochial schools is during a flag ceremony on pain of being dismissed
constitutional. HELD: Yes, secular purpose – from one's job or of being expelled from school, is
facilities to be used for secular activities. Since no alien to the conscience of the present generation of
constant monitoring there is also no excessive Filipinos who cut their teeth on the Bill of Rights
entanglement (unlike Lemon). w/c guarantees their rights to free speech and the
free exercise of religious profession and worship.
[Ebralinag v. Division Superintendent of Schools of
10. Exemption from zoning requirements to Cebu, 219 SCRA 256 (1993)]
accommodate unique architectural features
of religious buildings b. Freedom to propagate religious doctrines
Martin vs. Corporation of the Presiding The power to tax the exercise of the privilege is
Bishop, 434 Mass. 141 – WON zoning law giving the power to control or suppress its enjoyment.
exemption to religious sect (Mormons building a Those who can tax the exercise of religious
tall pointed steeple) is constitutional. HELD: Yes, practice can make its exercise so costly as to
court may not determine whether architectural deprive it of the resources necessary for its
features are necessary for a particular religion, e.g. maintenance. [American Bible Society v. City of
steeple pointing upwards into heaven for Mormons. Manila, 101 P 386 (1957)]
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2. Intelligence information
3. Trade secrets
Requisites for government aid to be 4. Banking transactions
allowable: 5. Diplomatic correspondence
1. It must have a secular legislative purpose; 6. Executive sessions
2. It must have a primary effect that neither 7. Closed door cabinet meetings
advances nor inhibits religion; Supreme Court deliberations
3. It must not require excessive
entanglement with recipient institutions.
Sec. 7. The right of the people to information on
Sec. 6. The liberty of abode and of changing the matters of public concern shall be recognized.
same within the limits prescribed by law shall not
be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
RIGHT MANNER OF
in the interest of national security, public safety or
CURTAILMENT
public health, as may be provided by law.
1. Liberty of abode Lawful order of the court and
within the limits prescribed
Rights guaranteed under Section 6:
by law.
A. Freedom to choose and change one’s place
2. Right to travel May be curtailed even by
of abode.
administrative officer (ex.
B. Freedom to travel within the country and
passport officer) in the
outside.
interest of national security,
public safety, or public
NOTE: The right to travel and the liberty of abode
health, as may be provided
are distinct from the right to return to one’s
by law.
country, as shown by the fact that the Declaration
Rights guaranteed under Section 7
of Human Rights and the Covenant on Human
3. Right to information on matters of public
Rights have separate guarantees for these. Hence,
concern
the right to return to one’s country is not covered
4. Right to access to official records and
by the specific right to travel and liberty of abode.
documents
(Marcos v. Manglapus, 177 SCRA 668)
Persons entitled to the above rights: Only Recognized restrictions on the right of the
Filipino citizens. people to information:
8. National security matters
9. Intelligence information
Discretion of government 10. Trade secrets
The government has discretion with respect to the 11. Banking transactions
authority to determine what matters are of public 12. Diplomatic correspondence
concern and the authority to determine the 13. Executive sessions
manner of access to them. 14. Closed door cabinet meetings
15. Supreme Court deliberations
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unions, associations, or societies for purposes not 5. Utilization of the property must be in such
contrary to law, shall not be abridged. a way as to oust the owner and deprive
him of the beneficial enjoyment of his
The right to form associations shall not be impaired property.
without due process of law and is thus an aspect of B. Compensable taking does not need to involve
the right of liberty. It is also an aspect of the all the property interests which form part of
freedom of contract. In addition, insofar as the the right of ownership. When one or more of
associations may have for their object the the property rights are appropriated and
advancement of beliefs and ideas, the freedom of applied to a public purpose, there is already a
associations is an aspect of the freedom of speech compensable taking, even if bare title still
and expression, subject to the same limitation. remains with the owner.
“TAKING”
A. Elements: CODE: E P A P O
When municipal property is taken by the
1. The expropriator enters the property
State:
2. The entrance must not be for a momentary
period, i.e.., it must be permanent Compensation is required is the property is a
3. Entry is made under warrant or color of patrimonial property, that is, property acquired by
legal authority the municipality with its private funds in its
corporate or private capacity. However, if it is any
4. Property is devoted to Public use
other property such as public buildings or legua
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comunal held by the municipality for the State in 3. If it authorizes for its satisfaction
trust for the inhabitants, the State is free to something different from that provided
dispose of it will, without any compensation. in its terms.
Exception: When the filing of the case comes later A valid exercise of police power is superior to
than the time of taking and meanwhile the value of obligation of contracts.
the property has increased because of the use to
which the expropriator has put it, the value is that
REGULATION TAKING
Compensation is Just compensation
not required Title is transferred Sec. 11. Free access to the courts and quasi-
Title is not Property taken for public use judicial bodies and adequate legal assistance shall
transferred not be denied to any person by reason of poverty.
Property interest is
restricted or Sec. 12. Rights of person under investigation for
destroyed the commission of an offense.
An exercise of
police power, not
for public use
of the time of the earlier taking. BUT if the value Rights of person under investigation for the
increased independently of what the expropriator Commission of an offense (Miranda
did, then the value is that of the latter filing of the
case.
POST ARREST RIGHTS OF ACCUSED
NOTE:
1. Even before compensation is given, entry may Right of persons under custodial
be made upon the property condemned. The investigation: Right to silence, to counsel, and to
deposit of money or an equivalent form of warnings.
payment such as government bonds is
necessary and sufficient to satisfy the When rights are available:
requirement. 1. AFTER a person has been taken into
2. Any law fixing the amount of just custody or
compensation is not binding on the courts 2. When a person is otherwise deprived of his
because it is a question of fact which is always freedom of action in any significant way
subject to review by the courts. 3. When a person is merely “invited” for
questioning (R.A. No. 7438)
4. When the investigation is being conducted
REGULATION v. TAKING by the government (police, DOJ, NBI) with
respect to a criminal offense.
5. Signing of arrest reports and booking
Sec. 10. No law impairing the obligation of sheets.
contracts shall be passed.
When does a law impair the obligation of When rights are not available:
contracts: 1. During a police line-up. Exception: Once
1. If it is changes the terms and there is a move among the investigators to
conditions of a legal contract either as elicit admissions or confessions from the
to the time or mode of performance suspect.
2. If it imposes new conditions or 2. During administrative investigations.
dispenses with those expressed 3. Confessions made by an accused at the
time he voluntarily surrendered to the
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police or outside the context of a formal inadmissible, being the fruit of a poisonous
investigation. tree.
4. Statements made to a private person.
Rights end at the time of the filing of criminal iii. Exclusionary rule a.k.a. FRUIT OF THE
cases in court: POISONOUS TREE DOCTRINE
MIRANDA RIGHTS [Miranda v. Arizona, 384 U.S. Art. III, Sec. 12(3). Any confession or admission
436 (1966)] obtained in violation of this or section 17 hereof
shall be inadmissible in evidence against him.
Any person under custodial or police investigation
has the right to be informed of the following rights: Justice Frankfurter, in Nardone v. US: Once the
primary source is shown to have been unlawfully
1. Right to remain silent obtained, any secondary or derivative evidence is
2. Right to be reminded that if he waives his right also inadmissible.
to remain silent, anything he says can and will be InPeo. v. Urro, went back to the former rule that
used against him. involuntary or coerced confessions, regardless of
3. Right to counsel before and during interrogation their truth, are null and void
4. Right to be reminded that if he cannot afford This is not bec. such confessions are unlikely to
counsel, then one will be provided for him by the be true but bec. the methods used to extract them
state. offend an underlying principle in the enforcement
5. Even if the person consent to answer questions of our criminal
without the assistance of counsel, the moment he law: that ours is an accusatorial and not an
asks for a lawyer at any point in the investigation, inquisitorial system.
the interrogation must cease until an attorney is
present.
6. if the foregoing protections and warnings are
not demonstrated during the trial to have been
observed by the prosecution, no evidence obtained
as a result of the interrogation can be used against Exceptions to the Exclusionary rule:
him. 1. In Harris v. US, it was held that a confession
obtained w/o complying w/ the Miranda may
The reading of these rights is no less indispensable nevertheless be presented in evidence to impeach
even if the person arrested is a prominent his credit. Miranda
Constitutional lawyer, as to assure him that his shield cannot be perverted into a license to use
interrogators are willing to respect his rights perjury by way of a defense.
amidst the pressure of custodial investigation. 2. In New York v. Quarles, the SC created a "public
safety" exception to the Miranda rule. In such
The “Miranda rights” are available to avoid exigent circumstances, police officers must not be
involuntary extrajudicial confession made to choose bet. giving the warnings at the
risk that public
safety will be endangered.
Right to remain silent
1. Right to have competent and independent
counsel, preferably of his own choice 3. Miranda rule not applicable to confessions
2. Right to be provided with the services of executed before January 17, 1973. [Magtoto v.
counsel if he cannot afford the services of Manguera, 63 SCRA 4 (1975)], the date of
one. effectivity of the 1973 Constitution
3. Right to be informed of these rights. 4. Not applicable to res gestaestatements [People
v. Dy, 158 SCRA 111 (1988)]
5. Not applicable to statements given in
Exclusionary rule administrative investigations [People v. Ayson, 175
1. Any confession or admission obtained in SCRA 216 (1989)]
violation of this section shall be
inadmissible in evidence against him (the
accused). Privilege against self-incrimination
2. Therefore, any evidence obtained by virtue
of an illegally obtained confession in also
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The right is NOT to "be compelled to be a No person can be prosecuted twice for the same
witness against himself." offense.
It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of Requisites:
inquiry."
However, the right can be claimed only when (1) Valid complaint or information
the specific question, incriminatory in character, is (2) Filed before a competent court
actually put to the witness. It cannot be claimed at (3) To which the defendant had pleaded
any other time.
It does not give a witness the right to disregard
a subpoena, to decline to appear before the court (4) Defendant was previously acquitted or
at the time appointed. convicted, or the case was otherwise terminated
The right against self-incrimination is not self- without his express consent (People v. Judge
executing or automatically operational. It must be Pineda, G.R. 44205
claimed. )
When is 2nd prosecution allowed?
supervening death unjustified dismissal
Rights of Defendant in Criminal Case As dismissal on motion to quash absence of
Regards Giving of Testimony jurisdiction
A suspect has the following rights in the matter of When is 2nd prosecution prohibited:
his testifying or producing evidence, to wit: (1) dismissal on demurrer
(2) prosecution for the same act
1. BEFORE THE CASE IS FILED IN COURT but
after having been taken into custody the 1. Prosecution for supervening death even
continuing right to remain silent and to counsel, after earlier conviction for physical injuries
and to be informed thereof, not to
be subjected to force, violence, threat, intimidation When after the 1st prosecution a new fact
or any other means which vitiates the free will; supervenes for which the defendant is responsible,
and to have which changes the character of the offense, and,
evidence obtained in violation of these rights together with the facts existing at the time,
rejected; constitute a new and distinct offense, the accused
and could not be said to be in 2nd jeopardy in indicted
for the new offense [Melo v. People, 85 Phil 766
(1950)]
2. AFTER THE CASE IS FILED IN COURT
a) to refuse to be a witness; 2. Retrial after unjustified dismissal allowed
b) not to have any prejudice whatsoever result to
him by such refusal; If dismissal was void for having been issued
c) to testify in his own behalf, subject to cross- without legal basis, the acquittal bought about by
examination by the prosecution; the dismissal is also void. Hence, no jeopardy can
d) WHILE TESTIFYING, to refuse to answer a attach from such acquittal [People v. Jardin]
specific question which tends to incriminate him for
some crime other than that for which he is then
prosecuted.
Double jeopardy for same act
The constitutional protection against double
Signing receipts not self-incriminatory jeopardy is available although the prior offense
The receipts for seized items are mandatory on charged under an ordinance be different from the
the part of apprehending and seizing police offense charged subsequently under a national
officers. They are merely intended to show that the statute, provided that both offenses spring from
items were taken from the accused. [People v. the same set of acts. [People v. Relova]
Boholst 152 SCRA 263 (1987)]
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As the warnings are the means of insuring that Sec. 2.Rights of Persons Arrested, Detained, or
the suspect is apprised of his rights so that any under
subsequent waiver of his rights can be "voluntary,
knowing and intelligent," Custodial Investigation; Duties of Public Officers.--
Waiver must be in writing, and made in the -
presence of counsel (ruling effective only on April
26, 1983. Cannot apply retrospectively to waivers (a) Any person arrested, detained or under
before that date.) custodial investigation shall at all times be assisted
by counsel.
Requisites for a valid extra-judicial (b) Any public officer or employee, or anyone
confession: acting under his order or in his place, who arrests,
1. voluntary detains or investigates any person for the
2. made with the assistance of competent and commissionof an offense shall inform the latter, in
independent counsel a language known to and understood by him, of his
3. must be express rights to remain silent and to have competent and
4. made in writing independent counsel, preferably of his own choice,
5. signed, or if the confessant does not know who shall at all times be allowed to confer privately
how to read and write, thumbmarked by with the person arrested, detained or under
him (P.v. Olivares, G.R. No. 77865) custodial investigation. If such person cannot
afford the services of his own counsel, he must be
provided with
CUSTODIAL INVESTIGATION commerce when a a competent and independent counsel by the
person is taken into custody and signed out as a investigating officer.
suspect in the commission of a crime under (c) The custodial investigation report shall be
investigation. reduced to writing by the investigating officer,
provided that before such report is signed, or
thumbmarked if the person arrested or detained
Rights during custodial investigation apply does not know how to read and write, it shall be
only against testimonial compulsion and not when read and adequately explained to him by his
the body of the accused is proposed to be counsel or by the assisting counsel provided by the
examined (i.e. urine sample; photographs; investigating officer in the language or dialect
measurements; garments; shoes). known to such arrested or detained person,
otherwise, such investigation report
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shall be null and void and of no effect whatsoever. pay the fee: Provided, That the Municipal or City
(d) Any extrajudicial confession made by a person Treasurer must certify that no funds are available
arrested, detained or under custodial investigation to pay the fees of assisting counsel before the
shall be in writing and signed by such persons in province pays said fees. In the absence of any
the presence of his counsel or in the latter's lawyer, no custodial investigation shall be
absence, upon a valid waiver, and in the presence conducted and the suspected person can only be
of any of the parents, elder brothers and sisters, detained by the investigating officer in accordance
his spouse, the municipal mayor, the municipal with the provision of Art. 125 of the RPC.
judge, district school supervisor, or priest or Sec. 4.Penalty Clause.---
minister of the gospelas chosen by him; otherwise, (a) Any arresting public officer or employee, or any
such extrajudicial confessionshall be inadmissible investigating officer who fails to inform any person
in evidence in any proceeding. arrested, detained or under custodial investigation
of his right to remain silent and to have competent
(e) Any waiver by a person arrested or detained and
under the provisions of Art. 125 of the RPC, or independent counsel preferably of his own choice,
under custodial investigation, shall be in writing shall suffer a fine of P6,000.00 or a penalty of
and signed by such person in the presence of his imprisonment of not less than 8 years but not
counsel; otherwise such waiver shall be null and more than 10 years, or both. The penalty of
void and of no effect. perpetual absolute disqualification shall also be
imposed upon the investigating officer who has
(f) Any person arrested or detained or under been previously convicted of a similar offense.
custodial investigation shall be allowed visits by or
conferences with any member of his immediate The same penalties shall be imposed upon a public
family, or any medical doctor or priest or religious officer or employee, or anyone acting upon orders
minister chosen by him or by any member of his of such investigating officer or in his place, who
immediate family or by his counsel, or by any fails to provide a competent and independent
national NGO duly accredited by the CHR or by any counsel to a person arrested, detained or under
international NGO duly accredited by the Office of custodial investigation for the commission of an
the President. The person's "immediate family" offense if the latter cannot afford the services of
shall include his or her spouse, fiancé or fiancée, his own counsel.
parent or child, brother or sister, grandparent or (b) Any person who obstructs, prevents or
grandchild, uncle or aunt, nephew or niece, and prohibits any lawyer, any member of the
guardian or ward. immediate family of a person arrested, detained or
As used in this Act, "custodial investigation" shall under custodial investigation, or any medical
include the practice of issuing an "invitation" to a doctor or priest or religious minister or by
person who is under investigation in connection hiscounsel, from visiting and conferring privately
with an offense he is suspected to have chosen by him or by any member of his immediate
committed, without family with him, or from examining and treating
prejudice to the liability of the "inviting" officer for him, or from ministering to his spiritual needs, at
any violation of law. any hour of the day or, in urgent cases, of the
Sec. 3.Assisting Counsel.--- Assisting counsel is night shall suffer the penalty of imprisonment of
any lawyer, except those directly affected by the not less than 4 years nor more than 6 years, and a
case, those charged with conducting preliminary fine of P4,000.00.
investigation or those charged with the prosecution
of crimes. The assisting counsel other than the The provisions of the above Section
government lawyers shall be entitled to the notwithstanding, any security officer with custodial
following fees: responsibility over any detainee or prisoner may
(a) The amount of P150.00 if the suspected person undertake such reasonable measures as may be
is chargeable with light felonies; necessary to secure his safety and prevent his
(b) The amount of P250.00 if the suspected person escape.
is chargeable with less grave or grave felonies; Sec. 5.Repealing Clause.--- RA 857, as amended,
(c) The amount of P350.00 if the suspect is is hereby repealed.Other laws, PDs, EOs or rules
chargeable with a capital offense. The fee for the and regulations, or parts thereof inconsistent with
assisting counsel shall be paid by the the provisions of this Act are repealed or modified
city or municipality where the custodial accordingly.
investigation is conducted, provided that if the Sec. 6.Effectivity.--- This Act shall take effect 15
municipality or city cannot pay such fee, the days
province comprising such municipality or city shall
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followingits publication in the OG or in any daily 2. The constitutional right is available only in
newspaper of general circulation in the Philippines. criminal cases, not, e.g. in deportation
Approved, April 27, 1992. proceedings.
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present thereat; the trial may proceed in Note: The Constitutional right to bail ceases
absentia; and upon initial conviction. Pending appeal, the
right to bail is merely statutory.
bondsman shall surrender the accused to the
court for execution of the final judgment.
When bail not a matter of right
Note: Absence of the accused out on bail on a
hearing in which he is duly notified is not a 2. Before conviction by the RTC of an offense
ground to forfeit bail. It is merely a waiver of punishable by death, reclusion perpetua, or
the right to be present. life imprisonment (Sec. 13, Art. III, 1987
Accused is required to be present only upon Constitution, and Sec. 7, Rule 114, RoC) –
(where absence is ground to forfeit bail) see if evidence of guilt is strong
arraignment (Rule 116, Sec. 1 [b]) After conviction by the RTC of an offense
punishable by death, reclusion perpetua, or
identification by witnesses of the prosecution
life imprisonment (Sec. 7, Rule 114, RoC) –
(Rule 115, Sec. 1 [c])
no bail allowed, conviction means evidence
promulgation of judgment, unless promulgation of guilt is strong
allowed in absentia (in case of light offense)
After imposition by the RTC of a penalty
(Rule 120, Sec. 6)
exceeding 6 years, but not death, reclusion
The original papers shall state perpetua, or life imprisonment – bail
discretionary, but bail not allowed upon a
the full name and address of the accused
showing of the following or other similar
the amount of the undertaking and circumstances
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the original records have already been licensed as a surety and currently authorized to act
transmitted as such
bail bond subscribed jointly by the accused and an
officer of the corporation duly authorized by its
Trial court if
BoD.
the conviction did not change the nature of
Property bond – an undertaking constituted as
the offense, and
lien on the real property given as security for the
before transmittal of the original record to amount of the bail; within 10 days after the
the appellate court. approval of the bond, the accused shall
cause the annotation of the lien
Should the court grant the application, the accused
either
may be allowed to continue on provisional liberty
during the pendency of the appeal under the same on the certificate of title on file with the
bail subject to the consent of the bondsman. RoD if the land is registered, or
if unregistered, in the Registration Book on
Meaning of capital offense the space provided therefor, in the RoD
An offense which, under the law existing at the for the province or city where the land
time of its commission, and at the time of the lies, and
application to be admitted to bail, may be punished
by death (Sec. 5 Rule 114 of the
on the corresponding tax declaration in the
ROC)
office of the provincial, city and
The capital nature of an offense is determined
municipal assessor concerned.
by the penalty prescribed by law.
Generally, bail is a matter of right before submit to the court his compliance; his failure to
conviction, unless the accused is charged with a do so shall be sufficient cause for cancellation
capital offense and the evidence of guilt is strong. of the property bond and his re-arrest and
[Bravo, Jr. v. Bravo] detention.
Qualifications of sureties in property bond
At the hearing of an application for bail filed by a
person who is in custody for the commission of an Each must be a resident owner of real estate
offense punishable by death, reclusion perpetua, or within the Philippines;
life imprisonment Where there is only one surety, his real estate
the prosecution has the burden of showing that must be worth at least the amount of the
evidence of guilt is strong undertaking;
the evidence presented during the bail hearing If there are 2 or more sureties – the aggregate of
shall be considered automatically reproduced the justified sums must be equivalent to the
at the trial whole amount of the bail demanded.
but, upon motion of either party, the court may every surety must be worth the amount specified
recall any witness for additional examination in his own undertaking over and above all just
unless the latter debts, obligations and property exempt from
execution.
is dead
outside the Philippines or
Justification of sureties:
otherwise unable to testify.
Every surety shall justify by affidavit taken before
the judge
that he possesses the qualifications
Note: Excessive bail shall not be required.
describe the property given as security
Qualifications of Corporate surety: stating the
any domestic or foreign corporation nature of his title
its encumbrances
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Upon application of the bondsmen, with due notice strive to eliminate conditions inimical to the
to the prosecutor, detainees.
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Arraignment is a still waiver of the right to required is not a ground to forfeit the bond. The
preliminary investigation and objections on the accused is required to appear only in 3 instances
legality of his arrest.
arraignment (Rule 116, Sec. 1 [b])
Cases: promulgation of judgment, unless promulgation
Feliciano v. Pasicolan, 2 SCRA 888 (1961) allowed in absentia (in case of light offense)
Feliciano
Though it is v. not
Pasicolan,
necessary 2that SCRA 888 applying
a person (1961)
(Rule 120, Sec. 6)
Though it is not necessary that a person
for bail wait until an information is filed against applying
for
him,bailhewait until be
should an ininformation
the custody is filed
of against
law or identification by witnesses of the prosecution (Rule
him, he should be in the custody
otherwise deprived of liberty. Only persons of lawwho
or 115, Sec. 1 [c])
otherwise deprived of liberty. Only
have been either arrested, detained or otherwise persons who
have beenofeither
deprived their arrested,
liberty can detained
apply for or otherwise
bail. Bail
deprived
cannot beofapplied
their liberty
for by can applyoffor
the wife an bail. Bail
accused,
cannot be applied for by the
more so if the accused is in hiding. wife of an accused,
more so if the accused is in hiding.
Dinapol v. Baldado, 225 SCRA 110 (1993) .No
petition for bail can be validly entertained for as
long as the applicant is NOT in the custody of the
law. Since the accused were not yet arrested, and
did not voluntarily submit to the jurisdiction of the Sec. 14. Rights of an accused
trial court, they had no standing in court to file a
motion for bail. Nor did the court have any Rights of a person charged with a criminal
business setting the same for hearing. The offense
prosecution can not be required to prove that its 1. Rights to due process of law
evidence of the applicant’s guilt is strong if the 2. Right to be presumed innocent
court has not yet acquired jurisdiction over the 3. Right to be heard by himself and counsel
applicant. 4. Right to be informed of the nature and
cause of the accusation against him
5. Right to have a speedy, impartial and
public trial
6. Right to meet the witnesses face to face
7. Right to have compulsory process to
secure the attendance of witnesses and the
production of evidence in his behalf
Concerned Citizens
Concerned Citizens v. v. Judge
Judge Elma,
Elma,241 241SCRA
SCRA “DUE PROCESS”
8484 (1995)
(1995) Where bail is not a matter of right, a This means that the accused can only be convicted
Where for
petition bailbail
is not a matter
should be setofforright, a petition
hearing before for
it by a tribunal which is required to comply with the
isbail shouldAt
granted. bethe
sethearing,
for hearing beforeshould
the court it is granted.
assure stringent requirements of the rules of criminal
At the
that the hearing,
prosecutionthe iscourt should
afforded the assure that the
opportunity to procedure.
prosecution
adduce is afforded
evidence relevantthe opportunity
to the to adduce
factual issue, with
evidence
the relevant
applicant having to
thethe factual
right issue, with the
of cross-examination
applicant
and havinghis
to introduce theown
right of cross-examination
evidence in rebuttal. and “PRESUMPTION OF INNOCENCE”
to introduce his own evidence in rebuttal. The Constitution does not prohibit the legislature
from providing that the proof of certain facts leads
to a prima facie presumption of guilt, provided that
Tucay v. Domagas, 242 SCRA 110 (1995) Even the facts proved have a reasonable connection to
where there isCitizens
Concerned no objection
v. Judgeto theElma,
grant of 241bail, the
SCRA the ultimate fact presumed.
court should still set a hearing for the petition for
84 (1995)
bail to take
Tucay v. into account the
Domagas, 242guidelines
SCRA 110 in fixing
(1995)the Presumption of guilt should not be conclusive.
amount
Even whereof thethere
bail. is no objection to the grant of
People
bail, the v. court
CarlosThe
shouldoffended
still setparty has standing
a hearing for the “RIGHT TO BE HEARD BY HIMSELF AND
to question
petition the togrant
for bail of the
take into bail the
account even if the
guidelines COUNSEL”
accused was charged with
in fixing the amount of the bail. a capital offense.
Marcos
People v. v. Ruiz, 213 SCRA
CarlosThe offended 177party
(1992)has Absence
standing
of
tothe accusedthe
question at agrant
stage ofwhen thehisbail
presence
even is if not
the
accused was charged with a capital offense.
Marcos v. Ruiz, 213 SCRA 177 (1992) Absence
of the accused at a stagewhen his presence is not
required
Bar is not2012:
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accused is required to appear only in 3 instances
arraignment (Rule 116, Sec. 1 [b])
Political Law Bar Notes
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The right to be heard includes the following “RIGHT TO BE INFORMED OF THE NATURE
rights: AND CAUSE OF ACCUSATION AGAINST HIM”
Purpose of the right:
1. The right to be present at the trial 1. To furnish the accused with a description of
A. The right to be present covers the period the charge against him as will enable him
form ARRAIGNMENT to PROMULGATION of to make his defenses
sentence. 2. To avail himself of his conviction or
B. After arraignment, trial may proceed acquittal against a further prosecution for
notwithstanding absence of accused. the same cause.
Note: Trial in absentia is allowed only if 3. To inform the court of the facts alleged.
the accused has been validly arraigned
and the following 2 requisites are met: If the information fails to allege the material
i. Accused has been duly elements of the offense, the accused cannot be
notified; and convicted thereof even if the prosecution is able to
ii. His failure to appear is present evidence during the trial with respect to
unjustifiable. such elements.
C. The accused may waive the right to be
present at the trial by not showing up. The real nature of the crime charged is determined
However, the court can still compel the from the recital of facts in the information. It is not
attendance of the accused if necessary for determined based on the caption or preamble
identification purposes. EXEPTION: if the thereof or from the specification of the provision of
accused, after arraignment, has stipulated law allegedly violated.
that he is indeed the person charged with
the offense and named in the information
and that any time a witness refers to a
name by which he is known, the witness is “RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
to be understood as referring to him. TRIAL”
D. While the accused is entitled to be present Factors used in determining whether the right
during promulgation of judgment, the to a speedy trial has been violated
absence of his counsel during such 1. Time expired from the filling of the
promulgation does not affect its validity. information
2. Length of delay involved
2. Right to counsel 3. Reasons for the delay
A. Right to counsel means the right to 4. Assertion or non-assertion of the right by
EFFECTIVE REPRESENTATION. the accused
B. If the accused appears at arraignment 5. Prejudice caused to the defendant
without counsel, the judge must:
1. Inform the accused that he has a
right to a counsel before Effect of dismissal based on the ground of
arraignment violation of the accuser’s right to speedy trial
2. Ask the accused if he desires the If the dismissal is valid, it amounts to an acquittal
aid of counsel and can be used as basis to claim double jeopardy.
3. If the accused desires counsel, This would be the effect even if the dismissal was
but cannot afford one, a counsel made with the consent of the accused.
de oficio must be appointed
4. If the accused desires to obtain
his own counsel, the court must Remedy of the accused if his right to speedy
give him reasonable time to get trial has been violated
one. He can move for the dismissal of the
case
3. Right to an impartial judge If he distained, he can file a petition for
4. Right of confrontation and cross- the issuance of writ of habeas corpus.
examination
5. Right to compulsory process to secure the
attendance of witnesses Definition of Impartial trial
The accused is entitled to the “cold
neutrality of an impartial judge.”
It is an element of due process.
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2) The first jeopardy must have terminated. a. If dismissal is on motion of the accused.
3) The second jeopardy must be for the same Exception: If motion is based on violation
offense, one that includes or is necessarily of the right to a speedy trial or on a
included in the first offense, or is an demurrer to evidence.
attempt or frustration of the first, or is an b. If dismissal does NOT amount to an
element thereof. acquittal or dismissal on the merits.
c. If the question to be passed upon is purely
legal.
When does jeopardy ATTACH: 1st requisite) d. If the dismissal violates the right of due
CODE: CICAV process of the prosecution.
(1) A person is charged e. If the dismissal was made with grave
(2) Under a complaint or information sufficient abuse of discretion.
in form and substance to sustain a
conviction
(3) Before a court of competent jurisdiction What are considered to be the “SAME
(4) After the person is arraigned OFFENSE”: (under the 1st sentence of Sec. 21)
(5) Such person enters a valid plea. a. Exact identity between the offenses
charged in the first and second cases.
b. One offense is an attempt to commit or a
When does jeopardy NOT attach: frustration of the other offense.
1. If information does not charge any offense c. One offense is necessarily included or
2. If, upon pleading guilty, the accused necessary includes the other.
presents evidence of complete self-
defense, and the court thereafter acquits NOTE: Where a single act results in the violation
him without entering a new plea of not of different laws or different provisions of the same
guilty for accused. There is no valid plea law, the prosecution for one will not bar the other
here. so long as none of the exceptions apply.
3. If the information for an offense cognizable
by the RTC is filed with the MTC.
4. If a complaint filed for preliminary Definition of double jeopardy (2nd sentence of
investigation is dismissed. Sec. 21)
Double jeopardy will result if the act punishable
under the law and the ordinance are the same. For
When does first jeopardy TERMINATE: (2nd there to be double jeopardy, it is not necessary
REQUISITE) that the offense be the same.
(1) Acquittal
(2) Conviction
(3) Dismissal W/O the EXPRESS consent of the SUPERVENING FACTS
accused 1. Under the Rules of Court, a conviction for an
(4) Dismissal on the merits. offense will not bar a prosecution for an
offense which necessarily includes the offense
charged in the former information where:
Examples of termination of jeopardy: A. The graver offense developed due to a
1. Dismissal based on violation of the right to supervening fact arising from the same act
a speedy trial. This amounts to an or omission constituting the former charge.
acquittal. B. The facts constituting the graver offense
2. Dismissal based on a demurer to evidence. became known or were discovered only
This is a dismissal on the merits. after the filing of the former information.
3. Dismissal on motion of the prosecution, C. The plea of guilty to the lesser offense was
subsequent to a motion for reinvestigation made without the consent of the
filed by the accused. prosecutor and the offended party.
4. Discharge of an accused to be a state 2. Under (1)(b), if the facts could have been
witness. This amounts to an acquittal. discovered by the prosecution but were not
discovered because of the prosecution’s
incompetence, it would not be considered a
When can the PROSECUTION appeal from an supervening event.
order of dismissal:
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NOTE: The prohibition of ex post facto laws only Strict construction. Charters, franchises and
applies to retrospective PENAL laws. licenses granted by the Government are strictly
construed against the grantees.
Characteristic of an Ex Post Facto Law
1. Refers to criminal matters If a law is a proper exercise of the police power,
2. Retrospective it will prevail over the contract. This is because
3. Causes prejudice to the accused public welfare is superior to private rights (PNB v.
Remigio, G.R. 78508,
March 21, 1995). Into each contract are read the
provisions of existing law and, always, a
“BILL OF ATTAINDER” reservation of the police power as long as the
A. A bill of attainder is a LEGISLATIVE act agreement deals with a matter affecting the public
which inflicts punishment W/O JUDICIAL welfare.
trial.
B. The bill of attainder does not need to be Eminent domain and taxation may also validly
directed at a specifically named person. It limit the impairment clause.
may also refer to easily ascertainable
members of a group in such a way as to Effect of emergency legislation on
inflict punishment on them without judicial contracts
trial. In a national emergency, such as a protracted
economic depression, the police power may be
Elements of the bill of attainder: exercised to the extent of impairing some of the
1. There must be a LAW. rights of parties arising from contracts. However,
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such emergency laws are to remain in effect only (a) Any member of the immediate family, namely:
during the continuance of the emergency. the spouse, children and parents of the aggrieved
party;
Currency legislation and contracts (b) Any ascendant, descendant or collateral
relative of the aggrieved party within the fourth
The legislative department has complete civil degree of consanguinity or affinity, in default
authority to determine the currency of the state of those mentioned in the preceding paragraph; or
and to prescribe what articles shall be used and (c) Any concerned citizen, organization, association
accepted as legal tender in the payment of lawful or institution, if there is no known member of the
obligations. immediate family or relative of the aggrieved
party.
Private parties are bound to observe this The filing of a petition by the aggrieved party
governmental authority over the nation's currency suspends the right of all other authorized parties to
in the execution of their contracts. file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
Impairment aggrieved party suspends the right of all others,
In order to come within the meaning of the observing the order established herein.
constitutional provision, the obligation of contract
must be impaired by some legislative act (statute, SEC. 3. Where to File. The petition may be filed on
ordinance, etc.). The act need not be by a any day and at any time with the Regional Trial
legislative office; but it should be legislative in Court of the place where the threat, act or
nature. Furthermore, the impairment must be omission was committed or any of its elements
substantial (Philippine Rural Electric Cooperatives occurred, or with the Sandiganbayan, the Court of
Assoc. v. DILG Secretary, G.R. 143076, June 10, Appeals, the Supreme Court, or any justice of such
2003). courts. The writ shall be enforceable anywhere in
the Philippines.
A mere administrative order, not legislative in When issued by a Regional Trial Court or any judge
nature, may not be considered a cause of thereof, the writ shall be returnable before such
impairment within the scope of the constitutional court or judge.
guarantee. The guarantee is also not violated by When issued by the Sandiganbayan or the Court of
court decisions. Appeals or any of their justices, it may be
returnable before such court or any justice thereof,
The act of impairment is anything which or to any Regional Trial Court of the place where
diminishes the value of the contract. The the threat, act or omission was committed or any
legislature may, however, change the remedy or of its elements occurred.
may prescribe new modes of procedure. The When issued by the Supreme Court or any of its
change does not impair the obligation of contracts justices, it may be returnable before such Court or
so long as another remedy, just as efficacious, is any justice thereof, or before the Sandiganbayan
provided for the adequate enforcement of the or the Court of Appeals or any of their justices, or
rights under the contract. (Manila Trading Co v. to any Regional Trial Court of the place where the
Reyes, 1935) threat, act or omission was committed or any of its
elements occurred.
SEC. 4. No Docket Fees. The petitioner shall be
THE WRIT OF AMPARO exempted from the payment of the docket and
A.M. No. 07-9-12 SC other lawful fees when filing the petition. The
October 24, 2007 court, justice or judge shall docket the petition and
act upon it immediately.
SECTION 1. Petition. – The petition for a writ of
amparo is a remedy available to any person whose SEC. 5. Contents of Petition.– The petition shall
right to life, liberty and security is violated or be signed and verified and shall allege the
threatened with violation by an unlawful act or following:
omission of a public official or employee, or of a (a) The personal circumstances of the petitioner;
private individual or entity. The writ shall cover (b) The name and personal circumstances of the
extralegal killings and enforced disappearances or respondent responsible for the threat, act or
threats thereof. omission, or, if the name is unknown or uncertain,
SEC. 2. Who May File. – The petition may be the respondent may be described by an assumed
filed by the aggrieved party or by any qualified appellation;
person or entity in the following order:
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(c) The right to life, liberty and security of the (c) All relevant information in the possession of the
aggrieved party violated or threatened with respondent pertaining to the threat, act or
violation by an unlawful act or omission of the omission against the aggrieved party; and
respondent, and how such threat or violation is (d) If the respondent is a public official or
committed with the attendant circumstances employee, the return shall further state the actions
detailed in supporting affidavits; that have been or will still be taken:
(d) The investigation conducted, if any, specifying (i) to verify the identity of the aggrieved party;
the names, personal circumstances, and addresses (ii) to recover and preserve evidence related to the
of the investigating authority or individuals, as well death or disappearance of the person identified in
as the manner and conduct of the investigation, the petition which may aid in the prosecution of
together with any report; the person or persons responsible;
(e) The actions and recourses taken by the (iii) to identify witnesses and obtain statements
petitioner to determine the fate or whereabouts of from them concerning the death or disappearance;
the aggrieved party and the identity of the person (iv) to determine the cause, manner, location and
responsible for the threat, act or omission; and time of death or disappearance as well as any
(f) The relief prayed for the petition may include a pattern or practice that may have brought about
general prayer for other just and equitable reliefs. the death or disappearance;
SEC. 6. Issuance of the Writ.– Upon the filing of (v) to identify and apprehend the person or
the petition, the court, justice or judge shall persons involved in the death or disappearance;
immediately order the issuance of the writ if on its and
face it ought to issue. The clerk of court shall issue (vi) to bring the suspected offenders before a
the writ under the seal of the court; or in case of competent court.
urgent necessity, the justice or the judge may The return shall also state other matters relevant
issue the writ under his or her own hand, and may to the investigation, its resolution and the
deputize any officer or person to serve it. prosecution of the case.
The writ shall also set the date and time for A general denial of the allegations in the petition
summary hearing of the petition which shall not be shall not be allowed.
later than seven (7) days from the date of its SEC. 10. Defenses not Pleaded Deemed
issuance. Waived.— All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
SEC. 7. Penalty for Refusing to Issue or Serve the SEC. 11. Prohibited Pleadings and Motions.– The
Writ. – A clerk of court who refuses to issue the following pleadings and motions are prohibited:
writ after its allowance, or a deputized person who (a) Motion to dismiss;
refuses to serve the same, shall be punished by (b) Motion for extension of time to file return,
the court, justice or judge for contempt without opposition, affidavit, position paper and other
prejudice to other disciplinary actions. pleadings;
SEC. 8. How the Writ is Served. – The writ shall (c) Dilatory motion for postponement;
be served upon the respondent by a judicial officer (d) Motion for a bill of particulars;
or by a person deputized by the court, justice or (e) Counterclaim or cross-claim;
judge who shall retain a copy on which to make a (f) Third-party complaint;
return of service. In case the writ cannot be served (g) Reply;
personally on the respondent, the rules on (h) Motion to declare respondent in default;
substituted service shall apply. (i) Intervention;
SEC. 9. Return Contents. – Within seventy-two (j) Memorandum;
(72) hours after service of the writ, the respondent (k) Motion for reconsideration of interlocutory
shall file a verified written return together with orders or interim relief orders; and
supporting affidavits which shall, among other (l) Petition for certiorari, mandamus or prohibition
things, contain the following: against any interlocutory order.
(a) The lawful defenses to show that the
respondent did not violate or threaten with SEC. 12. Effect of Failure to File Return.— In case
violation the right to life, liberty and security of the the respondent fails to file a return, the court,
aggrieved party, through any act or omission; justice or judge shall proceed to hear the petition
(b) The steps or actions taken by the respondent ex parte.
to determine the fate or whereabouts of the SEC. 13. Summary Hearing.— The hearing on the
aggrieved party and the person or persons petition shall be summary. However, the court,
responsible for the threat, act or omission; justice or judge may call for a preliminary
conference to simplify the issues and determine
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the possibility of obtaining stipulations and control of any designated documents, papers,
admissions from the parties. books, accounts, letters, photographs, objects or
The hearing shall be from day to day until tangible things, or objects in digitized or electronic
completed and given the same priority as petitions form, which constitute or contain evidence relevant
for habeas corpus. to the petition or the return, to produce and permit
SEC. 14. Interim Reliefs.— Upon filing of the their inspection, copying or photographing by or on
petition or at anytime before final judgment, the behalf of the movant.
court, justice or judge may grant any of the The motion may be opposed on the ground of
following reliefs: national security or of the privileged nature of the
(a) Temporary Protection Order. – The court, information, in which case the court, justice or
justice or judge, upon motion or motuproprio, may judge may conduct a hearing in chambers to
order that the petitioner or the aggrieved party determine the merit of the opposition.
and any member of the immediate family be The court, justice or judge shall prescribe other
protected in a government agency or by an conditions to protect the constitutional rights of all
accredited person or private institution capable of the parties.
keeping and securing their safety. If the petitioner (d) Witness Protection Order. – The court, justice
is an organization, association or institution or judge, upon motion or motuproprio, may refer
referred to in Section 3(c) of this Rule, the the witnesses to the Department of Justice for
protection may be extended to the officers admission to the Witness Protection, Security and
involved. Benefit Program, pursuant to Republic Act No.
The Supreme Court shall accredit the persons and 6981. The court, justice or judge may also refer
private institutions that shall extend temporary the witnesses to other government agencies, or to
protection to the petitioner or the aggrieved party accredited persons or private institutions capable
and any member of the immediate family, in of keeping and securing their safety.
accordance with guidelines which it shall issue. SEC. 15. Availability of Interim Reliefs to
The accredited persons and private institutions Respondent.– Upon verified motion of the
shall comply with the rules and conditions that respondent and after due hearing, the court,
may be imposed by the court, justice or judge. justice or judge may issue an inspection order or
(b) Inspection Order. — The court, justice or production order under paragraphs (b) and (c) of
judge, upon verified motion and after due hearing, the preceding section.
may order any person in possession or control of a A motion for inspection order under this section
designated land or other property, to permit entry shall be supported by affidavits or testimonies of
for the purpose of inspecting, measuring, witnesses having personal knowledge of the
surveying, or photographing the property or any defenses of the respondent.
relevant object or operation thereon. SEC. 16. Contempt. – The court, justice or judge
The motion shall state in detail the place or places may order the respondent who refuses to make a
to be inspected. It shall be supported by affidavits return, or who makes a false return, or any person
or testimonies of witnesses having personal who otherwise disobeys or resists a lawful process
knowledge of the enforced disappearance or or order of the court to be punished for contempt.
whereabouts of the aggrieved party. The contemnor may be imprisoned or imposed a
If the motion is opposed on the ground of national fine.
security or of the privileged nature of the SEC. 17. Burden of Proof and Standard of Diligence
information, the court, justice or judge may Required. – The parties shall establish their
conduct a hearing in chambers to determine the claims by substantial evidence. The respondent
merit of the opposition. who is a private individual or entity must prove
The movant must show that the inspection order is that ordinary diligence as required by applicable
necessary to establish the right of the aggrieved laws, rules and regulations was observed in the
party alleged to be threatened or violated. performance of duty. The respondent who is a
The inspection order shall specify the person or public official or employee must prove that
persons authorized to make the inspection and the extraordinary diligence as required by applicable
date, time, place and manner of making the laws, rules and regulations was observed in the
inspection and may prescribe other conditions to performance of duty. The respondent public official
protect the constitutional rights of all parties. The or employee cannot invoke the presumption that
order shall expire five (5) days after the date of its official duty has been
issuance, unless extended for justifiable reasons. SEC. 18. Judgment.— The court shall render
(c) Production Order. – The court, justice or judgment within ten (10) days from the time the
judge, upon verified motion and after due hearing, petition is submitted for decision. If the allegations
may order any person in possession, custody or in the petition are proven by substantial evidence,
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the court shall grant the privilege of the writ and and enforced disappearances or threats thereof
such reliefs as may be proper and appropriate; pending in the trial and appellate courts.
otherwise, the privilege shall be denied. SEC. 27. Effectivity. – This Rule shall take effect on
SEC. 19. Appeal.– Any party may appeal from October 24, 2007, following its publication in three
the final judgment or order to the Supreme Court (3) newspapers of general circulation.
under Rule 45. The appeal may raise questions of
fact or law or both. The period of appeal shall be
five (5) working days from the date of notice of the RULE 102: Special Proceedings
adverse judgment. The appeal shall be given the HABEAS CORPUS
same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The Sec. 1. To what habeas corpus extends. - Except
court shall not dismiss the petition, but shall as otherwise expressly provided by law, the writ of
archive it, if upon its determination it cannot habeas corpus shall extend to all cases of illegal
proceed for a valid cause such as the failure of confinement or detention by which any person is
petitioner or witnesses to appear due to threats on deprived of his liberty, or by which the rightful
their lives. custody of any person is withheld from the person
A periodic review of the archived cases shall be entitled thereto.
made by the amparo court that shall, motuproprio Sec. 2. Who may grant the writ. - The writ of
or upon motion by any party, order their revival habeas corpus may be granted by the Supreme
when ready for further proceedings. The petition Court, or any member thereof, on any day and at
shall be dismissed with prejudice upon failure to any time, or by the Court of Appeals or any
prosecute the case after the lapse of two (2) years member thereof in the instances authorized by
from notice to the petitioner of the order archiving law, and if so granted it shall be enforceable
the case. anywhere in the Philippines, and may be made
The clerks of court shall submit to the Office of the returnable before the court or any member
Court Administrator a consolidated list of archived thereof, or before the Court of First Instance, or
cases under this Rule not later than the first week any judge thereof for the hearing and decision on
of January of every year. the merits. It may also be granted by a Court of
SEC. 21. Institution of Separate Actions.— This First Instance, or a judge thereof, on any day and
Rule shall not preclude the filing of separate at any time, and returnable before himself,
criminal, civil or administrative actions. enforceable only within his judicial district.
SEC. 22. Effect of Filing of a Criminal Action.– Sec. 3. Requisites of application therefor. -
When a criminal action has been commenced, no Application for the writ shall be by petition signed
separate petition for the writ shall be filed. The and verified either by the party for whose relief it
reliefs under the writ shall be available by motion is intended, or by some person on his behalf, and
in the criminal case. shall set forth:
The procedure under this Rule shall govern the (a) That the person in whose behalf the application
disposition of the reliefs available under the writ of is made is imprisoned or restrained of his liberty;
amparo. (b) The officer or name of the person by whom he
SEC. 23. Consolidation.– When a criminal action is so imprisoned or restrained; or, if both are
is filed subsequent to the filing of a petition for the unknown or uncertain, such officer or person may
writ, the latter shall be consolidated with the be described by an assumed appellation, and the
criminal action. person who is served with the writ shall be deemed
When a criminal action and a separate civil action the person intended;
are filed subsequent to a petition for a writ of (c) The place where he is so imprisoned or
amparo, the latter shall be consolidated with the restrained, if known;
criminal action. After consolidation, the procedure (d) A copy of the commitment or cause of
under this Rule shall continue to apply to the detention of such person, if it can be procured
disposition of the reliefs in the petition. without impairing the efficiency of the remedy; or,
SEC. 24. Substantive Rights.— This Rule shall not if the imprisonment or restraint is without any
diminish, increase or modify substantive rights legal authority, such fact shall appear.
recognized and protected by the Constitution. Sec. 4. When writ not allowed or discharge
SEC. 25. Suppletory Application of the Rules of authorized. - If it appears that the person alleged
Court. – The Rules of Court shall apply suppletorily to be restrained of his liberty is in the custody of
insofar as it is not inconsistent with this Rule. an officer under process issued by a court or judge
SEC. 26. Applicability to Pending Cases. – This or by virtue of a judgment or order of a court of
Rule shall govern cases involving extralegal killings record, and that the court or judge had jurisdiction
to issue the process, render the judgment, or
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make the order, the writ shall not be allowed; or if cause of the caption and restraint of such person
the jurisdiction appears after the writ is allowed, according to the command thereof.
the person shall not be discharged by reason of Sec. 9. Defect of form. - No writ of habeas corpus
any informality or defect in the process, judgment, can be disobeyed for defect of form, if it
or order. Nor shall anything in this rule be held to sufficiently appears therefrom in whose custody or
authorize the discharge of a person charged with under whose restraint the party imprisoned or
or convicted of an offense in the Philippines, or of a restrained is held and the court or judge before
person suffering imprisonment under lawful whom he is to be brought.
judgment. Sec. 10. Contents of return. - When the person to
Sec. 5. When the writ must be granted and issued. be produced is imprisoned or restrained by an
- A court or judge authorized to grant the writ officer, the person who makes the return shall
must, when a petition therefor is presented and it state therein, and in other cases the person in
appears that the writ ought to issue, grant the whose custody the prisoner is found shall state, in
same forthwith, and immediately thereupon the writing to the court or judge before whom the writ
clerk of the court shall issue the writ under the seal is returnable, plainly and unequivocably:
of the court; or in case of emergency, the judge (a) Whether he has or has not the party in his
may issue the writ under his own hand, and may custody or power, or under restraint;
depute any officer or person to serve it. (b) If he has the party in his custody or power, or
Sec. 6. To whom writ directed, and what to under restraint, the authority and the true and
require. - In case of imprisonment or restraint by whole cause thereof, set forth at large, with a copy
an officer, the writ shall be directed to him, and of the writ, order, execution, or other process, if
shall command him to have the body of the person any, upon which the party is held;
restrained of his liberty before the court or judge (c) If the party is in his custody or power or is
designated in the writ at the time and place therein restrained by him, and is not produced, particularly
specified. In case of imprisonment or restraint by a the nature and gravity of the sickness or infirmity
person not an officer, the writ shall be directed to of such party by reason of which he cannot,
an officer, and shall command him to take and without danger, be brought before the court or
have the body of the person restrained of his judge;
liberty before the court or judge designated in the (d) If he has had the party in his custody or power,
writ at the time and place therein specified, and to or under restraint, and has transferred such
summon the person by whom he is restrained then custody or restraint to another, particularly to
and there to appear before said court or judge to whom, at what time, for what cause, and by what
show the cause of the imprisonment or restraint. authority such transfer was made.
Sec. 7. How prisoner designated and writ served. - Sec. 11. Return to be signed and sworn to. - The
The person to be produced should be designated in return or statement shall be signed by the person
the writ by his name, if known, but if his name is who makes it; and shall also be sworn to by him if
not known he may be otherwise described or the prisoner is not produced, and in all other cases
identified. The writ may be served in any province unless the return is made and signed by a sworn
by the sheriff or other proper officer, or by a public officer in his official capacity.
person deputed by the court or judge. Service of Sec. 12. Hearing on return; Adjournments. - When
the writ shall be made by leaving the original with the writ is returned before one judge, at a time
the person to whom it is directed and preserving a when the court is in session, he may forthwith
copy on which to make return of service. If that adjourn the case into the court, there to be heard
person cannot be found, or has not the prisoner in and determined. The court or judge before whom
his custody, then the service shall be made on any the writ is returned or adjourned must immediately
other person having or exercising such custody. proceed to hear and examine the return, and such
Sec. 8. How writ executed and returned. - The other matters as are properly submitted for
officer to whom the writ is directed shall convey consideration, unless for good cause shown the
the person so imprisoned or restrained, and named hearing is adjourned, in which event the court or
in the writ, before the judge allowing the writ, or, judge shall make such order for the safekeeping of
in case of his absence or disability, before some the person imprisoned or restrained as the nature
other judge of the same court, on the day specified of the case requires. If the person imprisoned or
in the writ, unless, from sickness or infirmity of the restrained is not produced because of his alleged
person directed to be produced, such person sickness or infirmity, the court or judge must be
cannot, without danger, be brought before the satisfied that it is so grave that such person cannot
court or judge; and the officer shall make due be produced without danger, before proceeding to
return of the writ, together with the day and the hear and dispose of the matter. On the hearing the
court or judge shall disregard matters of form and
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technicalities in respect to any warrant or order of a proper action, and may also be punished by the
commitment of a court or officer authorized to court or judge as for contempt.
commit by law. Sec. 17. Person discharged not to be again
Sec. 13. When the return evidence, and when only imprisoned. - A person who is set at liberty upon a
a plea. - If it appears that the prisoner is in writ of habeas corpus shall not be again
custody under a warrant of commitment in imprisoned for the same offense unless by the
pursuance of law, the return shall be considered lawful order or process of a court having
prima facie evidence of the cause of restraint; but jurisdiction of the cause or offense; and a person
if he is restrained of his liberty by any alleged who knowingly, contrary to the provisions of this
private authority, the return shall be considered rule, recommits or imprisons, or causes to be
only as a plea of the facts therein set forth, and committed or imprisoned, for the same offense, or
the party claiming the custody must prove such pretended offense, any person so set at liberty, or
facts. knowingly aids or assists therein, shall forfeit to
Sec. 14. When person lawfully imprisoned the party aggrieved the sum of one thousand
recommitted, and when let to bail. - If it appears pesos, to be recovered in a proper action,
that the prisoner was lawfully committed, and is notwithstanding any colorablepretense or variation
plainly and specifically charged in the warrant of in the warrant of commitment, and may also be
commitment with an offense punishable by death, punished by the court or judge granting writ as for
he shall not be released, discharged, or bailed. If contempt.
he is lawfully imprisoned or restrained on a charge Sec. 18. When prisoner may be removed from one
of having committed an offense not so punishable, custody to another. - A person committed to
he may be recommitted to imprisonment or prison, or in custody of an officer, for any criminal
admitted to bail in the discretion of the court or matter, shall not be removed therefrom into the
judge. If he be admitted to bail, he shall forthwith custody of another officer unless by legal process,
file a bond in such sum as the court or judge or the prisoner be delivered to an inferior officer to
deems reasonable, considering the circumstances carry to jail, or, by order of the proper court or
of the prisoner and the nature of the offense judge, be removed from one place to another
charged, conditioned for his appearance before the within the Philippines for trial, or in case of fire,
court where the offense is properly cognizable to epidemic, insurrection, or other necessity or public
abide its order or judgment; and the court or judge calamity; and a person who, after such
shall certify the proceedings, together with the commitment, makes, signs, or countersigns any
bond, forthwith to the proper court. If such bond is order for such removal contrary to this section,
not so filed, the prisoner shall be recommitted to shall forfeit to the party aggrieved the sum of one
confinement. thousand pesos, to be recovered in a proper
Sec. 15. When prisoner discharged if no appeal. - action.
When the court or judge has examined into the Sec. 19. Record of writ, fees and costs. - The
cause of caption and restraint of the prisoner, and proceedings upon a writ of habeas corpus shall be
is satisfied that he is unlawfully imprisoned or recorded by the clerk of the court, and upon the
restrained, he shall forthwith order his discharge final disposition of such proceedings the court or
from confinement, but such discharge shall not be judge shall make such order as to costs as the
effective until a copy of the order has been served case requires. The fees of officers and witnesses
on the officer or person detaining the prisoner. If shall be included in the costs taxed, but no officer
the officer or person detaining the prisoner does or person shall have the right to demand payment
not desire to appeal, the prisoner shall be forthwith in advance of any fees to which he is entitled by
released. virtue of the proceedings. When a person confined
Sec. 16. Penalty for refusing to issue writ, or for under color of proceedings in a criminal case is
disobeying the same. -A clerk of a court who discharged, the costs shall be taxed against the
refuses to issue the writ after allowance thereof Republic of the Philippines, and paid out of its
and demand therefor, or a person to whom a writ Treasury; when a person in custody by virtue or
is directed, who neglects or refuses to obey or under color of proceedings in a civil case is
make return of the same according to the discharged, the costs shall be taxed against him,
command thereof, or makes false return thereof, or against the person who signed the application
or who, upon demand made by or on behalf of the for the writ, or both, as the court shall direct.
prisoner, refuses to deliver to the person
demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recovered in
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Re-acquisition of citizenship act or omission they are deemed, under the law, to
Natural-born Filipinos who are deemed to have lost have renounced it.
their citizenship may re-acquire the same via
repatriation proceedings. This involves taking an Section 5. Dual allegiance of citizens is inimical to
oath of allegiance and filling the same with the civil the national interest and shall be dealt with by law.
registry. (1987 Constitution)
RA 9225 – Citizen Retention and Re- Any natural-born citizen who has lost his Philippine
acquisition Act citizenship may acquire a private land up to a
maximum area of five thousand (5,000) square
a. Natural born citizens, who lost their meters in the case of urban land or three (3)
citizenship by reason of their naturalization as hectares in the case of rural land to be used by
citizens of a foreign country, are deemed to have him/her for business or other purposes. In the
reacquired their Philippine citizenship upon taking case of married couples, one of them may avail of
the oath of allegiance to the Republic. the privilege herein granted (please see Republic.
b. Derivative citizenship-the unmarried child Act 8179, Sec 10)
below 18 yrs. Old of those who re-acquired the
citizenship shall likewise be deemed as citizens of RA 9225
the Philippines. Section 3. Retention of Philippine Citizenship - Any
provision of law to the contrary notwithstanding,
natural-born citizenship by reason of their
Distinguish dual citizenship from dual naturalization as citizens of a foreign country are
allegiance hereby deemed to have re-acquired Philippine
Dual citizenship arises when, as a result of the citizenship upon taking the following oath of
concurrent application of the laws of two or more allegiance to the Republic:
states, a person is simultaneously considered a
citizen of those states. Dual allegiance refers to the "I _____________________, solemny swear (or
situation in which a person simultaneously owes, affrim) that I will support and defend the
by some positive act, loyalty to two or more Constitution of the Republic of the Philippines and
states. Dual nationality is involuntary and legal, obey the laws and legal orders promulgated by the
while dual allegiance is voluntary and illegal duly constituted authorities of the Philippines; and
(Mercado v. Manzano) I hereby declare that I recognize and accept the
supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that
Citizenship I imposed this obligation upon myself voluntarily
Section 1. The following are citizens of the without mental reservation or purpose of evasion."
Philippines:
Those who are citizens of the Philippines at the Natural born citizens of the Philippines who, after
time of the adoption of this Constitution; the effectivity of this Act, become citizens of a
Those whose fathers or mothers are citizens of the foreign country shall retain their Philippine
Philippines; citizenship upon taking the aforesaid oath.
Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon Section 4. Derivative Citizenship - The unmarried
reaching the age of majority; and child, whether legitimate, illegitimate or adopted,
Those who are naturalized in accordance with law. below eighteen (18) years of age, of those who re-
Section 2. Natural-born citizens are those who are acquire Philippine citizenship upon effectivity of
citizens of the Philippines from birth without having this Act shall be deemed citizenship of the
to perform any act to acquire or perfect their Philippines.
Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section 5. Civil and Political Rights and Liabilities -
Section 1 hereof shall be deemed natural-born Those who retain or re-acquire Philippine
citizens. citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant
Section 3. Philippine citizenship may be lost or liabilities and responsibilities under existing laws of
reacquired in the manner provided by law. the Philippines and the following conditions:
Section 4. Citizens of the Philippines who marry (1) Those intending to exercise their right of
aliens shall retain their citizenship, unless by their surffrage must Meet the requirements under
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Section 1, Article V of the Constitution, Republic NOTE: No literacy, property or other substantive
Act No. 9189, otherwise known as "The Overseas requirement can be imposed on the exercises of
Absentee Voting Act of 2003" and other existing suffrage.
laws;
ARTICLE V- SUFFRAGE
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NOTE: Provided that these two limitations are not Qualifications of senators
exceeded, Congress’ legislative power is plenary. 1.) Natural-born citizen;
2.) At least 35 years old on the day of
Corollaries of legislative power: election;
1. Congress cannot pass irrepealable laws. 3.) Able to read and write;
Since, Congress’ powers are plenary, and 4.) A registered voter; and
limited only by the Constitution, any 5.) Philippine resident for at least 2 years
attempt to limit the powers of future immediately proceeding the day of the
Congresses via an irrepealable law is not election.
allowed.
2. Congress, as a general rule, cannot NOTE: The qualifications of both Senators and
delegate its legislative power. Since the Members of the House are limited to those
people have already delegated legislative provided by the Constitution. Congress cannot, by
power to Congress, the latter cannot law, add or subtract from these qualifications.
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Term of Office
Term of Office: 1. Each member of the House shall be elected for
a. No Senator shall serve for more than 2 a term of 3 years which shall commence
consecutive terms (unless otherwise provided for by law) at noon
b. Voluntary renunciation of office for any on 30 June next following their election.
length of time shall not be considered as 2. Voluntary renunciation of office for any length
an interruption in the continuity of his of time shall not be considered as an
service for the full term for which he was interruption in the continuity of his service for
elected. the full term for which he was elected.
HOUSE OF REPRESENTATIVES
Terms Limitations
Composition: No members of the House of Representatives shall
A. Not more than 250 members, serve for more than 3 consecutive terms.
unless otherwise fixed by law;
including
B. Party-list Representatives Distinctions between TERM and TENURE
A. Definition
a) Term: the period during which the elected
District Representatives: officer is legally authorized to assume his
1.) They shall be elected from legislative office and exercise the powers thereof.
districts apportioned among the provinces, b) Tenure: the period during which such
cities and the Metropolitan Manila Area. officer actually holds his position.
2.) Legislative districts are apportioned in
accordance with the number of inhabitants B. Limitation/Possible Reduction
of each area an on the basis of a uniform 1. Term CANNOT be reduced.
and progressive ratio. 2. Tenure MAY, by law, limited. Thus, a
3.) Each district shall comprise, as far as provision which considers an elective office
practicable, contiguous, compact and automatically vacated when the holder
adjacent territory; thereof files a certificate of candidacy for
4.) Each city with at least 250,000 inhabitants another elective office (except President
will be entitled to at least one and Vice President) is valid, as it only
representative. affects the officer’s tenure and NOT his
5.) Each province will have at least one constitutional term. (This is no longer true
representative. under the Fair Election Act)
6.) Legislative districts shall be re-
apportioned by Congress within 3 years
after the return of each census. PARTY-LIST REPRESENTATIVES
7.) The standards used to determine the a. Constitute 20% of the total number of
apportionment of legislative districts is representatives, including those under the
meant to prevent ‘gerrymandering’, which party-list system (thus a maximum of 50
is the formation of a legislative district out party-list members of the House)
of separated territories so as to favor a b. However, for 3 consecutive terms from 2
particular candidate or party. February 1987 (i.e., the 1987-92, 92-95
and 95-98 terms), 25 seats shall be
allotted to sectoral representatives. Under
Qualifications Art. XVIII, Sec. 7, the sectoral
1.) Natural born citizen of the Philippines; representatives are to be appointed by the
2.) At least 25 years old on the day of the President until legislation otherwise
election; provides.
3.) Able to read and write;
4.) Registered voter in the district he seeks to
represent; and Mechanics of the party-list system
5.) A resident of such district for at least one year 1) The sectors shall include labor, peasant,
immediately preceding fisher-folk, urban poor, indigenous cultural
the day of the election. communities, elderly, handicapped,
women, youth, veterans, overseas
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Internal Rules:
1.) Each House shall determine its own NOTE: The congressional members of the ET’s
procedural rules. shall be chosen on the basis of proportional
2.) Since this is a power vested in Congress as representation from the political parties and party-
part of its inherent powers, under the list organizations.
principle of separation of powers, the
courts cannot intervene in the
implementation of these rules insofar as Jurisdiction:
they affect the members of Congress. 1. Each ET shall be the sole judge of all
3.) Also, since Congress has the power to COTESTS relating to the election, returns,
make these rules, it also has the power to and qualifications of their respective
ignore them when circumstances so members. This includes determining the
require. validity or invalidity of a proclamation
declaring a particular candidate as the
winner.
Discipline:
1. Suspension 2. An ‘election contest’ is one where a
a) Concurrence of 2/3 of ALL its members and defeated candidate challenges the
b) Shall not exceed 60 days. qualification and claims for himself the seat
2. Expulsion of a proclaimed winner.
a) Concurrence of 2/3 of ALL its members.
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that the ET must act with both members Appointments extended by the President
from the SC and from the Senate or the to the above-mentioned positions while
House. If all the legislator-members of the Congress is not in session shall only be
ET were to be disqualified, the ET would effective until disapproval by the CA or
not be able to fulfill its constitutional until the next adjournment of Congress.
functions.
Jurisdiction Enforcement:
1. CA shall confirm the appointments by the a. Since experience has shown that the mere
President with respect to the following request for information do not usually
positions: (CODE: HAPCOO) work, Congress has the inherent power to
2. Heads of Executive Departments (except if punish recalcitrant witnesses for contempt,
it is the Vice-President who is appointed to and may have them incarcerated until such
the post). time that they agree to testify.
3. Ambassadors, other public ministers or b. The continuance of such incarceration only
consuls. subsists for the lifetime, or term, of such
4. Other officer whose appointments are body. Once the body ceases to exist after
vested in him by the Constitution (e.g. its final adjournment, the power to
COMELEC members). incarcerate ceases to exist as well. Thus,
Congress CANNOT by law prescribe each ‘Congress’ of the House lasts for only
that the appointment of a person to an 3 years. But if one is incarcerated by the
office created by such law shall be Senate it is indefinite because the Senate,
subject to confirmation by the CA. with its staggered terms, is a continuing
body.
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Limitations:
1. The inquiry must in aid of legislation.
Vote requirement: (to declare the existence
2. The inquiry must be conducted in
of a state of war)
accordance with the ‘duly published rules
3. 2/3 of both Houses, in joint session
of procedure’ of the House conducting the
4. Voting separately
inquiry; and
3. The rights of persons appearing in or
Emergency powers:
affected by such inquiries shall be
1. During times of war or other national
respected. Ex. The right against self-
emergency, Congress may, BY LAW,
incrimination.
authorize the President to exercise powers
necessary and proper to carry out a
Question Hour – Appearance of department
declared national policy.
heads before Congress:
2. Limitations:
A. Since members of the executive
a. Powers will be exercised for a limited
department are co-equals with those of the
period only; and
legislative department, under the principle
b. Powers will be subject to restrictions
of separation of powers, department heads
prescribed by Congress
cannot be compelled to appear before
3. Expiration of emergency powers
Congress. Neither may the department
1. By resolution of Congress or
heads impose their appearance upon
2. Upon the next adjournment of
Congress.
Congress
B. Department heads may appear before
ECTION 24-27, 30-31: Legislation
Congress in the following instances:
1. Upon their own initiative, with the
consent of the President (and of the
House concerned); or Bills that must originate from the House of
2. Upon the request of either House Representatives (Sec. 24) (CODE: A R T Pu Lo
(which cannot compel them to attend) P)
1. Appropriation bills
C. The appearance will be conducted in 2. Revenue bills
EXECUTIVE SESSION when: 3. Tariff bills
1. Required by the security of state or 4. Bills authorizing the increase of public debt
required by public interest; and 5. Bills of local application
2. When the President so states in writing 6. Private bills
NOTE: The Senate may, however, propose or
concur with amendments.
Question Legislative
Hour (Sec. Investigation Appropriation bills
22, Article (Sec. 21, 1) The primary and specific aim of an
VI) Article VI) appropriation bills is to appropriate a sum of
As to persons Only a Any person money from the public treasury.
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Petitioners contend, citing Section 5(3), Article VI 1. The President, upon whom executive power is
of the 1987 Constitution, that the reapportionment vested, has unstated residual powers which are
introduced by Republic Act No. 9716, runs afoul of implied from the grant of executive power and
the explicit constitutional standard that requires a which are necessary for her to comply with her
minimum population of two hundred fifty thousand duties under the Constitution. The powers of the
(250,000) for the creation of a legislative district. President are not limited to what are expressly
The petitioners claim that the reconfiguration by enumerated in the article on the Executive
Republic Act No. 9716 of the first and second Department and in scattered provisions of the
districts of Camarines Sur is unconstitutional, Constitution. This is so, notwithstanding the
because the proposed first district will end up with avowed intent of the members of the
a population of less than 250,000 or only 176,383. Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses
The second sentence of Section 5(3), Article VI of under the regime of Mr. Marcos, for the result was
the Constitution, succinctly provides: “Each city a limitation of specific power of the President,
with a population of at least two hundred fifty particularly those relating to the commander-in-
thousand, or each province, shall have at least one chief clause, but not a diminution of the general
representative.” The provision draws a plain and grant of executive power.
clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a 2. A recognition of the President's implied or
province to a district on the other. For while a residual powers is tantamount to setting the stage
province is entitled to at least a representative, for another dictatorship. Despite petitioners'
with nothing mentioned about population, a city strained analogy, the residual powers of the
must first meet a population minimum of 250,000 President under the Constitution should not be
in order to be similarly entitled. Plainly read, confused with the power of the President under the
Section 5(3) of the Constitution requires a 250,000 1973 Constitution to legislate pursuant to
minimum population only for a city to be entitled Amendment No. 6 which provides:
to a representative, but not so for a
province. Senator Benigno Simeon C. Aquino III “Whenever in the judgment of the President (Prime
and Mayor Jesse Robredo vs. Commission on Minister), there exists a grave emergency or a
Elections, G.R. No. 189793, April 7, 2010. threat or imminence thereof, or whenever the
interim Batasang Pambansa or the regular National
ARTICLE VII. THE EXECUTIVE DEPARTMENT Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment
SECTION 1: Executive Power requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees,
orders, or letters of instruction, which shall form
Scope: part of the law of the land.”
1) Executive power is vested in the President of
the Philippines. 3. There is no similarity between the residual
2) The scope of this power is set forth in Art. VII powers of the President under the 1987
of the Constitution. But this power is not Constitution and the power of the President under
limited to those set forth therein. The SC, in the 1973 Constitution pursuant to Amendment No.
Marcos v. Manglapus, referred to the 6. First of all, Amendment No. 6 refers to an
RESIDUAL powers of the President as the Chief express grant of power. It is not implied. Then,
Executive of the country, which powers include Amendment No. 6 refers to a grant to the
others not set forth in the Constitution. President of the specific power of legislation.
EXAMPLE: The President is immune from suit
and criminal prosecution while he is in office. 4. Among the duties of the President under the
3) Privileged of immunity from suit is personal to Constitution, in compliance with his (or her) oath
the President and may be invoked by him of office, is to protect and promote the interest and
alone. It may also be waived by the President, welfare of the people. Her decision to bar the
as when he himself files suit. return of the Marcoses and subsequently, the
4) BUT the President CANNOT dispose of state remains of Mr. Marcos at the present time and
property unless authorized by law.
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Manner of Election
a) Official salaries are determined by law.
a) The President and Vice-President shall be
b) Salaries cannot be decreased during the
elected by direct vote of the people.
TENURE of the President and the Vice-
b) Elections return for President and Vice-
President.
President, as duly certified by the proper
c) Increases take effect only after the
Board of Canvassers shall be forwarded to
expiration of the TERM of the incumbent
Congress, directed to the Senate President.
during which the increase was approved.
c) Not later than 30 days after the day of the
d) Prohibited from receiving any other
election, the certificates shall be opened in
emolument from the government or any
the presence of both houses of Congress,
other source during their TENURE.
assembled in joint public session.
d) The Congress, after determining the
authenticity and due execution of the
certificates, shall canvass the votes.
SECTION 7-12: Presidential Succession
e) The person receiving the highest number
of votes shall be proclaimed elected.
f) In case of a tie between 2 or more
candidates, one shall be chosen by a 1. Vacancies at the beginning of the term
majority of ALL the members of both VACANCY SUCCESSOR
Houses, voting separately. In case this President-elect VP-elect will be Acting
results in a deadlock, the Senate fails to qualify or President until someone is
President shall be the acting President to be chosen qualified/chosen as
until the deadlock is broken. President
g) The Supreme Court en banc shall act the President-elect VP becomes President
sole judge over all contests relating to the dies or is
election, returns, and qualifications of the permanently
President or Vice-President and may disabled.
promulgate its rules for the purpose.
TERM OF OFFICE
A. President
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Both President 1) Senate President or c) The special election shall be held not
and VP-elect are 2) In case of his inability, earlier than 45 days not later than 60 days
not chosen or do the Speaker of the from the time of the enactment of the law.
not qualify or House shall act as d) The 3 readings for the special law need not
both die, or both President until a be held on separate days.
become President or a VP shall e) The law shall be deemed enacted upon its
permanently have been chosen and approval on third reading.
disabled. qualified.
In case of death or disability BUT: No special election shall be called if the
of (1) and (2), Congress vacancy occurs within 18 months before the date
shall determine, by law, of the next presidential election.
who will be the acting 5. TEMPORARY DISABILITY of the President: The
President. temporary inability of the President to
discharge his duties may be raised in either of
two ways:
2. Vacancies after the office is initially filled: a) By the President himself, when he sends a
written declaration to the Senate President
VACANCY SUCCESSOR and the Speaker of the House. In this case,
President dies, is Vice-President becomes the Vice-President will be Acting President
permanently disabled, President for the until the President transmits a written
is impeached, or unexpired term. declaration to the contrary.
resigns. b) When a majority of the Cabinet members
Both President and 1. Senate President or transmit to the Senate President and the
Vice-President die, 2. In case of his Speaker their written declaration.
become permanently inability, the i. The VP will immediately be Acting
disabled, are Speaker of the President.
impeached, or resign. House shall act as ii. BUT: If the President transmits a
President until the written declaration that he is not
President or VP disabled, he reassumes his position
shall have been iii. If within 5 days after the President
elected and re-assumes his position, the
qualified. majority of the Cabinet retransmits
their written declaration, Congress
shall decide the issue. In this
event, Congress shall reconvene
3. Vacancy in office of Vice-President during the within 48 hours if it is not in
term for which he was elected: session, without need of a call.
a) President will nominate new VP from any iv. Within 10 days after Congress is
member of either House of Congress. required to assemble, or 12 days if
b) Nominee shall assume office upon Congress is not in session, a 2/3
confirmation by majority vote of ALL majority of both Houses, voting
members of both Houses, voting separately, is needed to find the
separately. (Nominee forfeits seat in President temporarily disabled, in
Congress) which case, the VP will be Acting
4. Election of President and Vice-President after President.
vacancy during term 6. Presidential Illness:
a) Congress shall convene 3 days after the a) If the President is seriously ill, the public
vacancy in the office of both the President must be informed thereof.
and the VP, without need of a call. The b) Even during such illness, the National
convening of Congress cannot be Security Adviser, the Secretary of Foreign
suspended. Affairs, and the Chief of Staff of the AFP
b) Within 7 days after convening, Congress are entitled to access to the President.
shall enact a law calling for a special
election to elect a President and VP. The
special election cannot be postponed.
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N.B.
1) If the spouse, etc., was already in any of the above offices at the
time before his/her spouse became President, he/she may continue
in office. What is prohibited is appointment and reappointment,
NOT continuation in office.
2) Spouses, etc., can be appointed to the judiciary and as
ambassadors and consuls.
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1.) When Congress is in recess, the President course of business, are presumptively the
may still appoint officers to positions acts of the President.
subject to CA confirmation. 3.) Exception: If the acts are disapproved or
2.) These appointments are effective reprobated by the President.
immediately, but are only effective until 4.) Under Administrative Law, decisions of
they are disapproved by the CA or until Department Secretaries need not be
the next adjournment of Congress. appealed to the President in order to
3.) Appointments to fill an office in an ‘acting’ comply with the requirement of
capacity are NOT ad-interim in nature and exhaustion of administrative remedies.
need no CA approval. 5.) Qualified political agency does NOT apply
if the President is required to act in
person by law or by the Constitution.
Appointments by an Acting President: Example: The power to grant pardons
These shall remain effective UNLESS revoked by must be exercised personally by the
the elected President within 90 days from his President.
assumption or re-assumption of office.
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3.) The President may also: g) Suspension of privilege of the writ of
a) Suspend the privilege of the writ of habeas corpus:
habeas corpus; and i. Applies ONLY to persons
b) Proclaim a state of martial law. judicially charged for
rebellion or offenses
inherent in or directly
Suspension of the privilege of the writ of connected with invasion.
habeas corpus and declaring martial law; ii. Anyone arrested or
1.) Grounds detained during
a) Invasion or suspension must be
b) Rebellion; and charged within 3 days.
c) Public safety requires it. Otherwise he should be
2.) The invasion or rebellion must be ACTUAL and released.
not merely imminent.
3.) Limitations:
a) Suspension or proclamation is NOTE: While the suspension of the privilege of
effective for only 60 days. writ and the proclamation of martial law is subject
b) Within 48 hours from the declaration to judicial review, the actual use by the President
or suspension, the President must of the armed forces is not. Thus, troop
submit a report to Congress. deployments in times of war are subject to the
c) Congress, by majority vote and voting President’s judgment and discretion.
jointly, may revoke the same, and the
President cannot set aside the
revocation.
d) In the same manner, at the
President’s initiative. Declaration of State of Rebellion
Congress can extend the same for a The factual necessity of calling out the armed
period determined by Congress if: forces is something that is for the President to
i. Invasion or rebellion decide, but the Court may look into the factual
persist and basis of the declaration to determine if it was
ii. Public safety requires it. done with grave abuse of discretion amounting to
lack of jurisdiction. (IBP v. Zamora, G.R. 141284)
NOTE: Congress CANNOT extend the period motu
propio. SECTION 19: Executive Clemency
e) Supreme Court review:
i. The appropriate Scope:
proceeding can be filed 1) The President may grant the following: [ Pa R
by any citizen. C Re]
ii. The SC can review the a. Pardons (conditional or plenary)
FACTUAL BASIS of the b. Reprieves
proclamation or c. Commutations
suspension. d. Remittance of fines and forfeitures
iii. Decision in promulgated 2) These may only be granted AFTER conviction
within 30 days from by final judgment.
filing. 3) ALSO: The power to grant clemency includes
f) Martial Law does NOT: cases involving administrative penalties.
i. Suspend the operation 4) Where a conditional pardon is granted, the
of the Constitution. determination of whether it has been violated
ii. Supplant the functioning rests with the President.
of the civil courts of
legislative assembles.
iii. Authorize conferment of
jurisdiction on military Limitations:
courts over civilians 1) As to scope:
where civil courts are Cannot be granted:
able to function and a. Before conviction
iv. Automatically suspend b. In cases of impeachment
the privilege of the writ
of habeas corpus.
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c. For violations of elections law, rules, Senators in order to be valid and effective in
and regulations without the favorable our country.
recommendation of the COMELEC.
d. In cases of civil or legislative (b) Options of Senate when a treaty is submitted
contempt for its approval:
2) As to effect: i. Approve with 2/3 majority;
a. Does not absolve civil liabilities for an ii. Disapprove outright; or
offense. iii. Approve conditionally, with
b. Does not restore public offices already suggested amendments.
forfeited, although eligibility for the
same may be restored. (c) If treaty is not re-negotiated, no treaty
Amnesty:
1) An act of grace concurred in by Congress, (d) If treaty is re-negotiated and the Senate’s
usually extended to groups of persons who suggestions are incorporate, the treaty will go
commit political offenses, which puts into into effect without need of further Senate
oblivion the offense itself. approval.
2) President alone CANNOT grant amnesty.
Amnesty needs concurrence by a majority of NOTE: While our municipal law makes a
all the members of Congress. distinction between international agreements and
3) When a person applies for amnesty, he must executive agreements, with the former requiring
admit his guilt of the offense which is subject Senate approval and the latter not needing the
to such amnesty. If his application is denies, same, under international law, there is no such
he can be convicted based on this admission distinction.
of guilt. NOTE: The President cannot, by executive
4) Amnesty V. Pardon agreement, undertake an obligation which
indirectly circumvents a legal prohibition.
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3. The power to deport aliens is limited by authorizes the President (a) to restructure the
the requirements of due process, which internal organization of the Office of the President
entitles the alien to a full and fair hearing. Proper, including the immediate Offices, the
BUT: The alien is not entitled to bail as a President Special Assistants/Advisers System and
matter of right. the Common Staff Support System, by abolishing,
consolidating or merging units thereof or
transferring functions from one unit to another,
PRESIDENT; EXECUTIVE PREROGATIVE. and (b) to transfer functions or offices from the
Office of the President to any other Department or
Agency in the Executive Branch, and vice versa.
The Executive Department did not commit grave
abuse of discretion in not espousing petitioners’
claims for official apology and other forms of There is a view that the reorganization actions
reparations against Japan. From a domestic law that the President may take with respect to
perspective, the Executive Department has the agencies in the Office of the President are strictly
exclusive prerogative to determine whether to limited to transfer of functions and offices as
espouse petitioners’ claims against Japan. seemingly provided in Section 31 of the
Isabelita C. Vinuya, et al. vs. Hon. Executive Administrative Code of 1987.
Secretary, et al., G.R. No. 162230, April 28, 2010.
However, Section 20, Chapter 7, Title I, Book III
PRESIDENT; POWER OF APPOINTMENT. of the same Code significantly provides: ”Sec.
20. Residual Powers. – Unless Congress provides
otherwise, the President shall exercise such other
The incumbent President can appoint the
powers and functions vested in the President
successor of Chief Justice Puno upon his
which are provided for under the laws and which
retirement on May 17, 2010 as the prohibition
are not specifically enumerated above, or which
against presidential appointments under Section
are not delegated by the President in accordance
15, Article VII does not extend to appointments in
with law. “
the Judiciary. Arturo M. De Castro vs. Judicial and
Bar Council, et al., G.R. No. 191002, April 20,
2010. Pursuant to Section 20, the power of the President
to reorganize the Executive Branch under Section
31 includes such powers and functions that may
PRESIDENT; POWER TO REORGANIZE.
be provided for under other laws. To be sure, an
inclusive and broad interpretation of the
It is a well-settled principle in jurisprudence that President’s power to reorganize executive offices
the President has the power to reorganize the has been consistently supported by specific
offices and agencies in the executive department provisions in general appropriations laws. Atty.
in line with the President’s constitutionally granted Sylvia Banda, et al. vs.. Eduardo R. Ermita etc., et
power of control over executive offices and by al. G.R. No. 166620, April 20, 2010.
virtue of previous delegation of the legislative
power to reorganize executive offices under
existing statutes.
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before the courts of justice or the redress of 2. Determining the court with jurisdiction to hear
wrongs for violations of such rights. and decide controversies or disputes arising
2. Vested in the Supreme Court and such lower from legal rights.
courts as may be established by law. 3. Thus, Congress has the power to define,
3. Since the courts are given ‘judicial power’ and prescribe and apportion the jurisdiction of
nothing more, courts may neither attempt to various courts.
assume or be compelled to perform non- 4. BUT, Congress cannot deprive the Supreme
judicial functions. They may not be charged Court of its jurisdiction over cases provided
with administrative functions except when for in the Constitution.
reasonably incidental to the fulfillment of their 5. Creation and abolition of courts:
duties. a. The power to create courts implies the
4. In order that the courts may exercise this power to abolish and even re-organize
power, there must exist the following: courts.
a) An actual controversy with legally b. BUT this power cannot be exercised in a
demandable and enforceable rights; manner which would undermine the
b) Involving real parties in interest; security of tenure of the judiciary.
c) The exercise of such power will bind the c. If the abolition/re-organization is done in
parties by virtue of the court’s application good faith and not for political or personal
of existing laws. reasons, then it is VALID. (same rule
5. Judicial power cannot be exercised in vacuum. applies for civil servants)
Without any laws from which rights arise and
which are violated, there can be no resource De la Llana vs. Alba
to the courts. Sec. 144 of BP 129 replaced the existing court
6. The courts cannot be asked for advisory system, with the exception of the SC and the SB,
opinions. with a new one and provided that upon the
7. Judicial power includes: completion of the reorganization by the President,
a) The duty of the courts to settle actual the courts affected "shall be deemed automatically
controversies involving rights which are abolished and the
legally demandable and enforceable; and incumbents thereof shall cease to hold office." The
b) To determine whether or not there has validity of the Act was questioned on the grounds
been a grave abuse of discretion that it contravened the security of tenure of
amounting to lack or excess of jurisdiction judges and that there was lack of good faith. The
on the part of any branch or abolition of an office is within the competence of a
instrumentality of the government. legislative body if done in good faith. In this case
there was good faith in that the Act was the
product of careful study and deliberation not only
by the BP but also by a Presidential study
Political Questions: committee (where CJ and
1.) A ‘POLITICAL QUESTION’ is one the justices were members). As that element is
resolution of which has been vested by the present in the enactment of BP 129, the lack of
Constitution exclusively in either the people, merit of the petition becomes apparent.
in the exercise of their sovereign capacity, or
in which full discretionary authority has been
delegated to a co-equal branch of the While the jurisdiction of lower courts is a matter
Government. of legislative apportionment, the Constitution sets
2.) Thus, while the courts can determine question certain limitations on this prerogative when it
of legality with respect to governmental involves the SC:
action, they cannot review government policy 1. It cannot decrease the constitutionally set
and the wisdom thereof, for these question jurisdiction of the Supreme Court. (It may not
have been vested by the Constitution in the deprive the Supreme Court of its jurisdiction over
Executive and Legislative Departments. cases enumerated in Section 5 hereof.)
2. It cannot increase the constitutionally set
appellate jurisdiction of the Supreme Court. (Art.
Sec. 2. Roles of Congress VI, Sec. 30).
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Ombudsman in administrative disciplinary cases, Qualifications of members of lower collegiate
was declared unconstitutional because the courts (CA, CTA, Sandiganbayan)
provision was passed without the advice and 1. Natural born citizen of the Philippines
consent of the Supreme Court.
2. Member of the Philippine bar
3. Possesses other qualifications prescribed by
Congress
However, Congress can:
increase the original jurisdiction of the SC 4. Person of proven competence, Integrity,
(pursuant to its general power). probity and independence.
It can make the jurisdiction of the SC
concurrent with lower courts (pursuant to its
general power). Qualifications of judges of lower non-
collegiate courts:
Thus, under the Rules of Court, the original 1.) Citizen of the Philippines (may be naturalized
jurisdiction of the SC is concurrent with the RTC citizen)
and in the case of the special civil actions, with 2.) Member of the Philippine Bar
the CA. 3.) Possesses other qualifications prescribed by
Congress
4.) Person of proven competence, integrity,
probity and independence.
Noblejas v Teehankee,
The Commissioner of Land Registration is given
Sec. 3. Fiscal Autonomy the rank of judge of the CFI but he is still an
administrative official. Hence he is outside
the jurisdiction of the SC and cannot be
1) The entire judiciary shall enjoy fiscal investigated by it as if he were a lower court
autonomy. judge. Otherwise, the SC would be performing a
2) Annual appropriations for the judiciary cannot non-judicial work.
be reduced below the amount appropriated for
the previous year. Sec. 8. Judicial and Bar Council
3) Once approved, appropriations shall be
automatically and regularly released.
1. The Judicial and Bar Council is under the
Sec. 4-7; 12 JUDICIARY supervision of the SC.
A. Composition
1) Chief Justice, as ex-officio chairman
Composition of the Supreme Court: 2) Secretary of Justice, as an ex-officio
1) Chief Justice and member
2) 14 Associate Justices 3) Representative of Congress, as an ex-
NOTE: Members of the Supreme Court and of officio member
other courts established by law shall not be 4) Representative of the Integrated Bar
designated to any agency performing quasi- 5) A professor of law
judicial or administrative functions. 6) A retired member of the SC
7) A representative of the private sector.
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2) Exercise such other functions as the SC Is the imposition of income tax on the salary of
may assign to it. the Justices and Judges a diminution of their
salary as prohibited by the Constitution?
C. Appointments to the Judiciary
1. President shall appoint from a list of at NO. In the Nifatan v CIR case, the SC, based on
least 3 nominees for each vacancy, as the deliberation of the Constitutional Commission
prepared by the JBC. which ultimately deleted the tax
2. No CA confirmation is needed for exemption original included in the draft Art. VIII,
appointments to the Judiciary. Sec 10, ruled that salaries of members of the
3. acancies in SC should be filled within 90 judiciary are not exempt from taxes.
days from the occurrence of the vacancy.
4. Vacancies in lower courts should be filled Sec. 11. Tenure / Disciplinary Powers of SC
within 90 days from submission to the
President of the JBC list.
1. Members of the SC and judges of the lower
courts hold office during good behavior until
Vargas v Rilloraza a. The age of 70 years old; or
-Grounds to disqualify a justice of the SC cannot b. They become incapacitated to discharge
be legislated. To allow this would in effect deprive their duties.
the SC of jurisdiction as established by the 2. Disciplinary action against judges of lower
Constitution. courts:
- Only the President can appoint justices to the a. Only the SC en banc has jurisdiction to
SC. discipline or dismiss judges of lower
In this case, the designation of the CFI judges courts.
was made by Congress and therefore b. Disciplinary action/dismissal: Majority
constitutionally repugnant. vote of SC Justices who took part in the
- The designated judge, even if his action or deliberations and voted therein.
participation is temporary, would be acting as a 3. Removal of SC Justices:
SC justice and his vote will be counted as that of a a. Only by IMPEACHMENT
regular justice b. Cannot be disbarred while they hold
office.
Sec. 10. Salaries
Members of the SC cannot be removed
except by impeachment.
1.) Salaries of SC Justices and judges of lower Thus, a SC justice cannot be charged in a criminal
courts shall be fixed by law. case or a disbarment proceeding, because the
2.) Cannot be decreased during their continuance ultimate effect of either is to
in office, but can be increased. remove him from office, and thus circumvent the
3.) Members of the Judiciary are NOT exempt provision on removal by impeachment thus
from payment of income tax. violating his security of tenure
(In Re: First Indorsement from Hon. Raul M.
Art. XVIII, Sec. 17. Gonzalez, A.M. No. 88-4-
Unless the Congress provides otherwise, xxx;the 5433).
annual salary of
- the Chief Justice shall receive an annual salary
of P240,000 and xxx;
- the Associate Justices shall receive P204,000
each; xxx. Sec. 4-6, 13. The Supreme Court
Although the salaries may not be decreased, they
may be increased by law, to take effect at once.
Reasons:
(1) the Constitution does not prohibit it; Hearing of cases:
(2) the Judiciary plays no part in the passage of 1.) En banc; or
the law increasing their salary unlike the Congress 2.) Division of 3, 5, or 7.
and the Executive, and so there can
be no conflict of interest; and One Supreme Court
(3) this will promote the independence of the
Judiciary.
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The SC remains and functions as “one Supreme The first case (ambassadors, etc.) is made
Court” even when it sits in divisions (US v concurrent with RTCs by law (Judiciary Act of
Limsiongco). 1948). The second case (special civil actions) is
concurrent with the CA and the RTC, with respect
Cases required to be heard en banc: to inferior bodies.
1. All cases involving constitutionally of a/an:
(CODE: T I L)
a. Treaty 2. SC has APPELLATE jurisdiction over final
b. International or exclusive agreement or judgments and orders in the following:
c. Law. a. All cases involving the constitutionality
2. All cases required to be heard en banc under or validity of any (CODE: TILP-
the Rules of Court: POIRO)
a. Appeals from Sandiganbayan; and 1. treaty
b. From the Constitutional Commissions 2. International or executive
3. All cases involving the constitutionality, agreement
application or operation of: 3. law
(CODE: PPOIRO) 4. presidential decree
a. Presidential decrees 5. proclamation
b. Proclamations 6. order
c. Orders 7. instruction
d. Instructions 8. ordinance, or
e. Ordinances; and 9. regulation;
f. Other regulations. b. All cases involving the legality of any:
4. Cases heard by a division where required (CODE: TITA P)
majority of 3 was not obtained. 1. tax
5. Cases where SC modifies or reverses a 2. impost
doctrine or principle of law laid down by the 3. toll
SC en banc or by a division. 4. assessment or
6. Administrative cases to discipline or dismiss 5. any penalty imposed in relation
judges or lower courts; and thereto;
7. Election contests for President and Vice- c. All cases in which the jurisdiction of
President. any lower court is in issue
d. Criminal cases where the penalty
imposed is reclusion perpetua or
Cases heard by division higher; and
1. Must be decided with the concurrence of a e. All cases where ONLY errors or
majority of the members who took part in the questions of law are involved.
deliberations and voted thereon. f. Orders of the Constitutional
2. Majority vote in a division should be at least 3 Commissions.
members. g. Jurisdiction over proclamation of
Martial law or suspension of the
writ of Habeas Corpus.
Powers of the SC h. Jurisdiction over Presidential and Vice
1. SC has ORIGINAL jurisdiction over Presidential election contests
a. Cases affecting ambassadors, other
public ministers and consuls. Jurisdiction over criminal cases where
NOTE: This refers to foreign penalty imposed is reclusion perpetua.
ambassadors, etc., stationed in the
Philippines. People v Daniel; People v Ramos
b. Petitions for certiorari, prohibition, Both are rape cases where the trial court imposed
mandamus, quo warranto, and habeas lesser penalties because of misappreciation of the
corpus. aggravating and qualifying circumstances and on
c. Sufficiency of factual basis of appeal the penalty was increased. Chief Justice
proclamation of martial law and Castro, for the majority, explained: Art. X, Sec. 5
suspension of privilege of writ of HC. (2) (d)
Note: The SC does not have jurisdiction over [now Art. VIII, Sec. 5 (2) (d)] provides that the
declaratory relief cases, which must be filed with SC shall have appellate jurisdiction over "final
the RTC (In Re Bermudez said so too, and yet judgments and decrees of inferior courts" in
gave due course to the petition.) criminal cases in w/c the "penalty imposed is
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death or life imprisonment." Unless the CA c. Admission to the practice of law;
renders judgment and imposes the penalty of d. The Integrated Bar; and
death or reclusion perpetua, there would be no e. Legal assistance to the
judgment for SC to review. Indeed, Section 34 of underprivileged.
the Judiciary Act of
1948 and the present Rule 124, Sec. 13 provide
that, whenever the CA should be of the opinion Limitations on Rule Making Power
that the penalty of death or life imprisonment a. It should provide a simplified and
should be imposed, "the said court shall refrain inexpensive procedure for the speedy
from entering judgment thereon, and shall disposition of cases.
forthwith certify the case b. It should be uniform for all courts of
brought before it on appeal," which that it is not the same grade.
prohibited from rendering judgment. In other c. It should not diminish, increase, or
words, the CA is not prohibited from rendering modify substantive rights.
judgment but from "entering judgment." The
distinction between the two is well established. 6. Appoint ALL officials and employees of the
The phrase "entering judgment" is not to be Judiciary, in accordance with Civil Service
equated w/ an "entry of judgment" as the latter is Law.
understood in R36 in relation to Sec. 8, R 121 and
Sec. 16, R 124, ROC. "Entry of judgment" 7. Exercise administrative supervision over ALL
presupposes a final judgment-- final in the sense courts and the personnel thereof.
that no appeal was taken from
the decision of the trial court or appellate court
w/in the reglamentary period. A judgment in a
criminal case becomes final after the lapse of the
period for perfecting an appeal, or when the Noblejas v Teehankee,
sentence has been partially or totally satisfied or The Commissioner of Land Registration is given
served, or the defendant has expressly waived in the rank of judge of the CFI but he is still an
writing his right to appeal. It is only then that administrative official. Hence he is outside
there is a judgment which is to be entered or the jurisdiction of the SC and cannot be
recorded in the book of entries of judgments. investigated by it as if he were a lower court
judge. Otherwise, the SC would be performing a
Rule 124, Sec. 13. non-judicial work.
xxx Whenever the Court of Appeals should be of
the opinion that the penalty of reclusion perpetua
or higher should be imposed in a Decisions of the Supreme Court:
case, the Court after discussion of the evidence 1.) Reached in consultation before being assigned
and the law involved, shall render judgment to a member for the writing of the opinion.
imposing the penalty of reclusion perpetua or 2.) A certification to this effect must be signed by
higher as the circumstances warrant, refrain from the Chief Justice and attached to the record of
entering judgment and forthwith certify the case the case and served upon the parties.
and elevate the entire record thereof to the 3.) Members of the SC who took no part, or who
Supreme Court for review. dissented or abstained must state the reasons
therefore.
3. Temporarily assign lower court judges to other
stations in the public interest. NOTE: This procedure shall also be observed by
all lower collegiate courts (CA, CTA, and the
NOTE: Temporary assignment shall not exceed 6 Sandiganbayan).
months without the consent of the judge
concerned.
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3.) Only SC decisions are precedent, and thus, - lack of the statement of facts and conclusion in
only SC decisions are binding on all. this case is not covered by the constitutional
requirement for decisions of a court of record as
this is an administrative case.
Requisites: Code: [A R S E L] - the Ministry of Labor being an administrative
1.) An ACTUAL CASE calling for the exercise of agency with quasi-judicial functions, with rules of
judicial power procedure mandated to be non-litigious,
2.) The question involved must be RIPE FOR summary and non-technical.
ADJUDICATION, i.e. a personal and
substantial interest in the case such that he Section 14, Chapter 3, Book VII,
has sustained, or will sustain, direct injury as Administrative Code of 1987.
a result of its enforcement. Decision.-- Every decision rendered by the agency
3.) The person challenging the governmental act in a contested case shall be in writing and shall
must have ‘STANDING’, i.e. a personal and state clearly and distinctly the facts
substantial interest in the case such that he and the law on which it is based. xxx
has sustained, or will sustain, direct, injury as
a result of its enforcement. Bacolod Murcia Milling Co. v Henares,
4.) The question of Constitutionality must be The SC ruled that orders of a court on an
raised in the first instance, or at the earliest incidental matter (in this case, the order imposing
opportunity. the payment of attorney's fees) need not state the
5.) Resolution of the issue of constitutionality is legal basis of the ruling.
unavoidable or is the very lis mota
Valladolid v Inciong
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the court shall be refused due course or denied, may not be increased without its advice or
without stating the legal basis therefor. (Art. concurrence;
VIII, Sec. 14, par. 2.) 4. SC has administrative supervision over all
inferior courts and personnel;
The past practice used to be that when the 5. SC had exclusive power to discipline judges/
appellate court denied a petition for review, or justices of inferior courts;
denied a MFR, it simply did so in a Minute 6. Members of the judiciary enjoy security of
Resolution, stating that the case was dismissed tenure;
for lack of basis. 7. Members of judiciary may not be designated
This aggrieved many a lawyer, specially those to any agency performing quasi-judicial or
who would spend days preparing pages of briefs, administrative functions;
only to find out that all their effort was answered 8. Salaries of judges may not be reduced;
by a one-liner "Dismissed for lack of basis". judiciary enjoys fiscal autonomy;
This prompted the framers of the 1987 9. SC alone may initiate Rules of Court;
Constitution to force the Court to at least write 10. SC alone may order temporary detail of
down the legal basis for the denial. This means judges; and
that while a fully detailed decision is not required, 11. SC can appoint all officials and employees of
neither is a skimpy one-liner is allowed. The legal the Judiciary (Nachura, Reviewer in Political
reason for the dismissal must be written. This rule Law, p. 199-200.)
applies to a dismissal of a motion for
reconsideration of a
"decision on the merits", said the SC in Mendoza ARTICLE IX-
v CFI. It does not apply, as in this case, to a THE CONSTITUTIONAL COMMISSIONS
dismissal of a motion for reconsideration of a
previous dismissal of a petition for habeas corpus. SECTION 1: Constitutional Commissions
(The dismissal of the petition for habeas corpus is
not a decision on the merits, but is similar to a
dismissal of a petition for review, which is a
decision not to give due course to the petition.) Independent Constitutional Commissions:
1) Civil Service Commission (CSC)
Dissenters and Abstainers 2) Commission on Elections (COMELEC)
In the case of a decision on the merits, ia member 3) Commissions on Audit (COA)
must state his reason if
(a) took no part, or Why Independent?
(b) dissented, or They perform vital functions of government.
(c) abstained from a decision or resolution. (Art.
VIII, Sec. 13.)
Safeguards that guarantee Independence of
Even those who took no part in the deliberations Commissions:
but were present and those who abstained are 1. They are constitutionally created; may not be
required to write their reasons for these are really abolished by statute;
forms of casting their vote. Those who inhibited 2. Each is expressly described as “independent”
themselves are, of course, not required to vote, 3. Each is conferred certain powers and functions
since they did not really participate. Procedurally, which cannot be reduced by statute;
the purpose is to enable the party to find out the 4. The Chairmen and members cannot be
reason for the action taken. For courts lower than removed except by impeachment;
the SC, and even the SC itself, this is important 5. The chairmen and the members are given
for appeal or motion for reconsideration purposes, fairly a long term of office of 7 years;
as the basis for the assignment of error. 6. The Chairmen and members may not be re-
appointed or appointed in an acting capacity
(Brillantes v. Yorac, 192 SCRA 358);
Safeguards that guarantee Independence of 7. The salaries of the Chairmen and members
the Judiciary: are relatively high and may not be decreased
1. SC is a Constitutional body; may not be during continuance in office;
abolished by law; 8. The Commissions enjoy fiscal autonomy;
2. Members are only removable by 9. Each Commission may promulgate its own
impeachment; procedural rules, provided they do not
3. SC may not be deprived of minimum and diminish, increase or modify substantive
appellate jurisdiction; appellate jurisdiction
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rights (though subject to disapproval by the Barrozo v. CSC
SC.); - The CSC has no power of appointment except
10. The Chairmen and members are subject to over its own personnel. Neither does it have the
certain disqualifications calculated to authority to review the appointments made by
strengthen their integrity; other officers except only to ascertain if the
11. The Commissions may appoint their own appointee possesses the required qualifications.
officials and employees in accordance with The determination of who among aspirants with
Civil Service Law (Nachura, Reviewer in the minimum statutory qualifications should be
Political Law, p. 209) preferred belongs to the appointing authority and
not the
SECTION 2: Disqualifications CSC.
Disqualifications:
Members cannot, during their tenure:
1) Hold any other office or employment; Section 5 Fiscal Autonomy
2) Engage in the practice of any
profession; Art. IX, A, Sec. 5.
3) Engage in the active management or The Commissions shall enjoy fiscal autonomy.
control of any business, which, in any Their approved annual appropriations shall be
way, may be affected by the functions automatically and regularly released.
of their office; and CSC vs. DBM
4) Be financially interested, directly or - The “no report, no release” policy may not be
indirectly, in any contract, franchise, validly enforced against offices vested with fiscal
privilege granted by the government, autonomy without violating Sec. 5,
any of its subdivisions, agencies, Art. IX-A. The “automatic release” of approved
instrumentalities, including GOCC’s and annual appropriations to a constitutional
their subsidiaries. commission vested with fiscal autonomy, should
be construed to mean that no condition to fund
NOTE: The Ombudsman and his deputies are releases to it may be imposed.
subject to the same qualifications.
SECTION 6: Rules of Procedure
Impeachment
Art. XI, Sec. 2.
The members of the Constitutional Commissions Procedures:
may be removed 1) Rules: The Commissions may promulgate
from office their own rules EN BANC.
(1) on impeachment for, AND 2) Limitation: The rules shall not:
(2) conviction of, a) Diminish
a. culpable violation of the Constitution b) Increase, or
b. treason c) Modify substantive rights.
c. bribery 3) Power of SC
d. graft and corruption a.) The SC may not, under Art. VIII Sec.
e. other high crimes, or betrayal of public trust. 5(5), exercise the power to disapprove
rules of “special courts and quasi-judicial
SECTION 3: Salaries bodies.”
b.) In proceedings before the Commissions,
the rules of the Commission prevail.
1. Salaries are fixed by law and shall not be c.) In proceedings before a court, the Rules
decreased during their TENURE. of Court prevail.
2. Decreases in salaries only affect those d.) The SC may, however, in appropriate
members appointed AFTER increase. cases, exercise JUDICIAL REVIEW
3. Incumbent take effect IMMEDIATELY.
SECTION 7: Decision Making / Appeal
Section 4
the Constitutional Commissions shall appoint their
officials & employees in accordance with law. Decision-Making:
Approval of appointments by the CSC
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1) Each commission shall decide matter or cases 2) Commissioners – 2 commissioners
by a majority vote of all the members within
60 days from submission.
a. COMELEC may sit en banc or in 2 Qualifications:
divisions. 1) Natural-born citizens of the Philippines;
b. Election cases, including pre- 2) At least 35 years old at the time of their
proclamation controversies are appointments;
decided in division, with motions for 3) With proven capacity for public
reconsideration filed to the COMELEC administration; and
en banc. 4) NOT candidates for any elective position in the
c. The SC has held that a majority elections immediately preceding their
decision decided by a division of the appointment.
COMELEC is a valid decision. 5) Appointees by the President to the CSC need
2) As COLLEGIAL BODIES, each commission Commission on Appointments (CA)
must act as one, and no one member can confirmation
decide a case for the entire commission. (i.e.
The Chairman cannot ratify a decision which Art. VII, sec. 13.
would otherwise have been void). “xxx The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not during his tenure be appointed
Appeals: as Members of the Constitutional Commissions, or
1. Decisions, orders or rulings of the the Office of the Ombudsman, or as Secretaries,
COMELEC/COA may be brought on certiorari Undersecretaries, chairmen or heads of bureaus
to the SC under Rule 65. or offices, including governmentowned or
2. Decisions, orders or ruling of the CSC should controlled corporations and their subsidiaries.”
be appealed to the CA under Rule 43.
Enforcement: Term:
It has been held that the CSC can issue a writ of 1) 7 years (except for the 1st appointees where
execution to enforce judgments which are final. the Chairman has 7 years, 1 Commissioner
has 5 years while another has 3 years)
THE CIVIL SERVICE COMMISSION 2) Limitation: single term only, no reappointment
3) Appointment to vacancy: only for unexpired
Functions of the CSC term of predecessor
Art. IX, B, Sec. 3. 4) No temporary appointments or appointments
“The Civil Service Commission, as the central in acting capacity.
personnel agency of
the Government, shall SECTION 2: Scope
- establish a career service
- adopt measures to promote
= morale The Civil Service embraces all:
= efficiency 1. branches,
= integrity 2. subdivisions,
= responsiveness 3. instrumentalities,
= progressiveness 4. agencies of the government,
= courtesy 5. including GOCCs with original charters.
- strengthen the merit and reward system a) “With Original Charter” means
- integrate all human resources development that the GOCC was created by
programs for all levels and ranks special law/by Congress
- institutionalize a management climate conducive b) If incorporated under the
to public accountability Corporation, Code it does not fall
- submit to the President and Congress an annual within the Civil Service, and is not
report on its personnel program subject to the CSC jurisdiction.
c) If previously government-
SECTION 1: controlled, but is later privatized,
Composition/Qualifications/Term it ceases to fall under CSC.
d) Jurisdiction is determined as of
Composition: the time of filing the complaint.
1) Chairman
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National Service Corp. v. NLRC
In the matter of coverage by the civil service of c) Highly technical - requires technical
GOCC, the 1987 Consti starkly differs from the skill to a superior degree.
1973 constitution. It provides that the "civil
service embraces all branches, subdivisions, C. The TEST to determine whether non-
instrumentalities, and agencies of the competitive is the nature of the
Government, including government owned or responsibilities, NOT the administrative or
controlled corporation with original charter." legislative description given to it.
Therefore by clear implication, the civil service
does not include GOCC which are organized as D. Both types of positions are entitled to
subsidiaries of GOCC under the general security of tenure. They only differ in the
corporation law. manner in which they are filled.
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higher career (b) Not for political or personal reasons; and
positions. (c) Not in violation of law.
Security of Tenure:
1) Officers or employees of the Civil Service Temporary employees are covered by the
cannot be removed or suspended EXCEPT for following rules:
cause provided by law. It guarantees both 1. Not protected by security of tenure – can be
procedural and substantive due process. removed anytime even without cause
2. If they are separated, this is considered an
2) For “LEGAL CAUSE” – Cause is: expiration of his term.
a. related to and affects the 3. BUT: They can only be removed by the one
administration of office; and who appointed them.
b. must be substantial (directly affects 4. Entitled only to such protection as may be
the rights & interests of the public) provided by law.
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NLRC, the PSLM Council has not been granted by
law authority to issue writs of injunction in labor
TUPAS v NHA disputes within its jurisdiction. Thus, since it is the
- The right to unionize is now explicitly recognized Council and the NLRC that has jurisdiction over
and granted to both employees in both the instant labor dispute, resort to general courts
governmental and the private sectors. of law for the issuance of a writ of injunction to
There is no impediment to the holding of a enjoin the strike is appropriate.
certificate of election among the workers of NHC
for it is clear that they are covered by
the Labor Code, for NHC is a GOCC without an
original charter. Statutory implementation of the
Consti (par 5 sec 2 art IX-B) is found in Art 244 of
the Labor Code. SECTION 6-7: Disqualifications
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employment in the Government, or any
subdivision, agency or instrumentality thereof, 2) EXCEPTION: Unless specifically authorized by
including government-owned or controlled law
corporations or their subsidiaries, during his term A. “SPECIFICALLY AUTHORIZED” means a
without forfeiting his seat. Neither shall he be specific authority particularly directed to
appointed to any office which may have been the officer or employee concerned.
created or the emoluments thereof increased B. BUT: per diems and allowances given as
during the term for which he was elected.” REIMBURSEMENT for expenses actually
incurred are not prohibited
c) To be eligible to hold any other office, the
elected official must first resign form his 3) Cannot accept any present, emolument,
office office, title of any kind from foreign
d) Even Congress cannot, by law, authorize governments UNLESS with the consent of
the appointment of an elective official. Congress.
4) Pensions and gratuities are NOT considered as
Flores v. Drilon additional double, or indirect compensation.
- The congressional act of mandating the
Preisdent ot appoint the mayor of Olongapo City THE COMMISSION ON ELECTIONS
as chairman of SMBA is unconstitutional on two
counts SECTION 1:
- it is in conflict with the constitutional prohibition Composition/Qualifications/Term
regarding the ineligibility of elective officials for
appointment or designation in any capacity to any Composition: (7)
public office or position (Sec. 7, 1st par of Art 1) Chairman and
IX-B). 2) Commissioners (6)
- it is an encroachment on the President”s
prerogative by limiting the choice to only the
Mayor of Olongapo Qualifications:
1) Natural-born citizens of the Philippines;
3) Appointive officials 2) At least 35 years old at the time of
a) Cannot hold any other office or appointment
employment in the government any 3) Holders of college degrees; and
subdivision, agency, 4) Not candidates for any elective position in the
instrumentality, including GOCC’s immediately preceding elections.
and their subsidiaries. 5) Majority of the Commissions, including the
b) EXCEPTION: Unless otherwise Chairman must be:
allowed by law, or by the primary a) Members of the Philippines Bar
functions of his position. b) Engaged in the practice of law for at least
c) This exception DOES NOT APPLY to 10 years; “any activity in or out of court,
Cabinet members, and those which requires the application of law, legal
officers mentioned in Art. VII, Sec. procedure, knowledge, training and
13. They are governed by the experience.”
stricter prohibitions contained 6) Appointments subject to CA approval
therein.
Cayetano v. Monsod
SECTION 8: Compensation
The practice of law is not limited to the conduct of
cases or litigation in court. It embraces:
1) Prohibitions: apply to elected or appointed (1) preparation of pleadings and other papers
officers and employees cannot receive: incident to actions and special proceedings
A. Additional compensation: an extra (2) management of such actions and proceedings
reward given for the same office i.e. on behalf of clients
bonus (3) other works where the work done involves the
B. Double compensation: when an officer determination ofthe trained legal mind of the legal
is given 2 sets of compensation for 2 effect of facts and conditions.
different offices held concurrently by 1
officer Term:
C. Indirect Compensation
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1) 7 years (1st appointed: Chairman -7 yrs; 3 election, plebiscite, initiative, referendum, and
Members -7 yrs; recall.
2) Members -5 yrs; 1 Member -3 yrs ;) Ex. COMELEC can enjoin construction of public
3) Appointment to a vacancy: only for unexpired works within 45 days of an election.
portion of predecessor’s term 2) Exercise:
4) No temporary appointments, or appointments A. Exclusive original jurisdiction over all
in acting capacity contests relating to the elections, returns,
a) Thus, the President cannot designate an and qualifications of all elective
incumbent commissioner as acting 1. Regional
Chairman. 2. Provincial, and
b) The choice of temporary chairman falls 3. City officials
under the COMELEC’s discretion. B. Appellate jurisdiction over all contests
involving:
Nacionalista Party v. Angelo Bautista 1. Elective municipal officials decided by
- The designation of the SolGen as acting member trial courts of general jurisdiction
of the Comelec was not valid. By the nature of the 2. Elective barangay officials decided by
Comelec's functions, the Comelec must be trial courts of limited jurisdiction.
independent. Members are not allowed to perform
other functions, powers and duties to preserve its C. Decisions, final orders, or rulings of the
impartiality. Commission on election contest involving
- When there is a vacancy, appointment is elective municipal and barangay offices
preferred to designation. shall be final, executory, and not
Brillantes v. Yorac appealable. Exception: Appealable to the
- Doctrine: The President may not appoint the SC on question of law.
Acting Chairman of the Comelec in the absence of D. Contempt powers
the Regular Chairman. 1. COMELEC can exercise this power only
- Reasoning: Art. IX-A, Section 1, of the in relation to its adjudicatory or quasi-
Constitution expressly describes all the judicial functions. It CANNOT exercise
Constitutional Commissions as "independent". this in connection with its purely
Although essentially executive in nature, they are executive or ministerial functions.
not under the control of the President in the 2. If it is a pre-proclamation controversy,
discharge of their respective functions. Each of the COMELEC exercises quasi-
these Commissions conducts its own proceedings judicial/administrative powers.
under the applicable laws and its own rules and in 3. Its jurisdiction over ‘contest’ (after
the exercise of its own discretion. Its decisions, proclamation), is in exercise of its
orders and rulings are subject only to review on judicial functions.
certiorari by the SC as provided in Art. IX-A, Sec E. The COMELEC may issue writs of
7. The choice of a temporary chairman in the certiorari, prohibition and mandamus in
absence of the regular chairman comes under that exercise of its appellate jurisdiction. This
discretion. That discretion cannot be exercised for is not an inherent power.
it, even with its consent, by the President.
RA 7166, Sec. 22
Nacionalista Party v. Vera Election Contests for Municipal Offices.
- The prohibition in Art. X, Sec. 1 of the 1935 - must be decided expeditiously by the RTC.
Constitution which provides that the members of - decision may be appealed to the Commission
the COMELEC shall hold office for 9 years without within 5 days from promulgation or receipt of a
reappointment, comes as a continuation of the copy thereof by the aggrieved party.
requirement that the Commission shall hold office - the Commission shall decide the appeal within
for a term of 9 years. Reappointment is not 60 days after it is submitted for decision, but not
prohibited provided his term will not exceed 9 later than 6 months after the filing
years in all. of the appeal, which decision shall be final,
unappealable, and executory.
SECTION 2: Powers and Functions Municipal - original with the RTC; appeal to the
COMELEC
Barangay - original with inferior court; appeal to
Powers: COMELEC
1) Enforce and administer all laws and
regulations relative to the conduct of an Javier v. Comelec
Definitions discussed in the case:
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Contests.-- It should not be given a restrictive
meaning, but should receive the widest possible
scope conformably to the rule that the words used
in the Constitution should be interpreted liberally. Veloria v. Comelec
Veloria v. Comelec
As employed in the 1973 Constitution, the term - An original special civil action of certiorari,
- An original special civil action of certiorari,
refers to any matter involving the title or claim of prohibition or mandamus against a RTC in an
prohibition or mandamus against a RTC in an
title to an elective office, made before or after election contest may be filed in the CA or in the
election contest may be filed in the CA or in the SC
proclamation of the winner, whether or not the SC being the only courts given such original
being the only courts given such original
contestant jurisdiction under the Constitution and the law
jurisdiction under the Constitution and the law
is claiming the office in dispute.
Elections, returns and qualifications.-- It should be
interpreted in its totality as referring to all matters
affecting the validity of the
contestee's title. But if it is necessary to specify, Sanchez v.
Sanchez v. Comelec
Comelec
“election” refers to the conduct of the polls, - The Comelec,
- The Comelec, as as the
the sole
sole judge
judgeofofall allcontests
contests
including the listing of voters, holding of electoral relating to the elections, returns and
relating to the elections, returns and qualificationsqualifications
campaign, and casting and counting of votes; of all
of all members
members of of the
the Batasang
Batasang
"returns" to the canvass of the returns and the Pambansa, elective
Pambansa, elective provincial
provincialand andcity officials,
city has
officials,
proclamation of the winners, including questions the following powers:
has the following powers:
concerning the composition of the board of (1) power
(1) power to to nullify
nullify the
theelections
electionswhere
wherethe thewill
willofof
canvassers and the authenticity of the election the voters
the voters has
has been
been defeated
defeated and and the the purity
purityofof
returns; and elections sullied
elections sullied
"qualifications" to matters that could be raised in (2) power
(2) power to to call
call special
special elections
elections- -The TheComelec
Comelec
a quo warranto proceeding against the proclaimed has the duty to take necessary steps
has the duty to take necessary steps to complete to complete
winner, such as his disloyalty, or ineligibility, or the elections,
the elections, that
that is,
is, to
to see
see toto itit that
thatthe thereal
real
the inadequacy of his certificate of candidacy. winners are proclaimed. But when
winners are proclaimed. But when the winners the winners
cannot be
cannot be determined
determined from from thethe elections,
elections,which which
Garcia was marred by massive and pervasive terrorism,
Garcia v. v. de
de Jesus
Jesus was marred by massive and pervasive terrorism,
-- COMELEC’s the Comelec
Comelec must must call
call for
for aa special
special election
election inin
COMELEC’s Jurisdiction:
Jurisdiction: In In the
theabsence
absenceofofany any the
specific order to proclaim the real winners.
specific conferment
conferment upon uponthe theCOMELEC,
COMELEC,either eitherbyby order to proclaim the real winners.
the
the Constitution
Constitution or orbybylaw,
law,the theCOMELEC
COMELECisisbereftbereft
of
of jurisdiction
jurisdiction to to issue
issue Writs Writs ofof Certiorari,
Certiorari,
Prohibition
Prohibition and and Mandamus
Mandamus inin electoralelectoralcontests.
contests.
What
What thethe Constitution
Constitutiongranted
grantedthe theCOMELEC
COMELECwas was Flores v. Comelec
appellate
appellate jurisdiction.
jurisdiction. The The Constitution
Constitutionmakes makesnono - Declared as unconstitutional Sec. 9 of RA 6679
mention
mention of of any
any power
power givengiven the the COMELEC
COMELEC toto Flores v. Comelec
(Local Govt Code) insofar as it provides that the
exercise
exercise original jurisdiction over Petitions for
original jurisdiction over Petitions for -decision
Declared
of as
theunconstitutional Sec. 9 of RA
municipal or metropolitan 6679
court in a
Certiorari,
Certiorari, Prohibition
Prohibitionand andMandamus
Mandamusunlike unlikeininthethe (Local
barangay case should be appealed to the RTC. the
Govt Code) insofar as it provides that
case
case ofof the
the SCSC which
which was wasspecifically
specificallyconferred
conferred decision of the municipal or metropolitan court in
such
such authority.
authority. The The immutable
immutable doctrinedoctrine isisthatthat a- barangay
Decisions case should
of the be appealed
COMELEC to the RTC.
on election contests
jurisdiction
jurisdiction is fixed
fixed by bylaw,law,the the power
power to issue
to issue such involving municipal and barangay officer shall be
such
Writs Writs
can notcan not from
implied implied the from the mereof
mere existence -final
Decisions of the COMELEC
and unappealable on election
with respect contestsof
to questions
existence
appellate of appellate jurisdiction.
jurisdiction. involving municipal and barangay officer
fact and not of law. Art IX-6 Sec 2(2) of the shall be
Consti
-- The
The COMELEC
COMELEC isis bereft
bereftofofauthority
authoritytotodeprive
deprive final andintended
was not unappealable with
to divert therespect to authority
SC of its questionsto
RTCs
RTCs of of thethe competence
competence toto order order execution
execution of fact and
resolve not of oflaw.
questions lawArt IX-6 Sec in2(2)
as inherent the of the
judicial
pending
pending appeal.
appeal. For Forone,
one,ititisisessentially
essentiallya ajudicial
judicial Consti was not intended
power conferred upon it by the to divert the SC of its
prerogative.
prerogative. For For another,
another,ititisisaapronouncement
pronouncementofof authority
Consti. to resolve questions of law as inherent
the COMELEC alone
the COMELEC alone in procedural
in its its procedural rules,
rules, without in the judicial power conferred upon it by the
without
benefit of benefit of unlike
statute, statute, in unlike
the past.in There
the past.
is no Consti.
There
expressis no expressofprovision
provision of law disauthorizing
law disauthorizing executions
executions
pending appeal,pending appeal,
and the and COMELEC,
the COMELEC, in inits
its procedural
procedural rules
rules alone,
alone, should
should notnotbebeallowed
allowedto Galido
Galido v.v. Comelec
Comelec
to divestRTCs
divest RTCsofof that
that authority.
authority. It It deprives
deprives the the -- The
The fact
fact that
that decisions,
decisions,final
finalorders
ordersororrulings
rulingsofof
prevailing
prevailing party
party ofofaasubstantive
substantiveright righttotomove
movefor for the
the COMELEC
COMELEC in in contests
contestsinvolving
involvingexecutory
executoryand and
such
such relief
relief contrary
contrarytotothe theconstitutional
constitutionalmandate
mandate not
not appealable doesdoes not
notpreclude
precludea a recourse
recourse to to
the
that
that those
those RulesRules cannot
cannot diminishdiminish nor nor modify
modify the SC way
SC by by way
of aof a special
special civilcivil action
action of certiorari.
of certiorari.
substantive
substantive rights.
rights.
of this governmental power.” legislative power, a
legislature is the exclusive judge."
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3) Decide, except those involving the right to d) BUT: Political parties with religious
vote, all questions affecting elections, affiliation or which derive their principles
including determination of the number and from religious beliefs are registrable.
location of polling places, appointment of e) Financial contributions from foreign
election officials and inspectors, and governments and their agencies to
registration of voters. political parties, organizations,
NOTE: Questions involving the right to vote coalitions, or candidates related to
fall within the jurisdiction of the ordinary elections constitute interference in
courts. national affairs. If accepted, it is an
4) Deputize, with the concurrence of the additional ground for the cancellation of
President, law enforcement agencies and their registration with the Commission,
instrumentalities of the Government, including in addition to other penalties that may
the Armed Forces of the Philippines, for the be prescribed by law.
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections. 6) File, upon a verified complaint, or on its own
i. This power is NOT limited to the initiative, petitions in court for inclusion of
election period. exclusion of voters; investigate and, where
ii. Applies to both criminal and appropriate, prosecute cases of violations of
administrative cases. election laws, including acts or omissions
constituting election frauds, offenses and
malpractices.
People v. Inting A. COMELEC has exclusive jurisdiction to
-Gen. Rule: The power to conduct preliminary investigate and prosecute cases for
investigations in cases involving election offenses violations of election laws.
for the purpose of helping the judge determine B. COMELEC can deputize prosecutors for
probable cause and for filing an information in this purpose. The actions of the
court is exclusive with the COMELEC. Exception: prosecutors are the actions of the
The Fiscal may file an information charging an COMELEC
election offense or prosecute a violation of C. Preliminary investigation conducted by
election law, when he has been deputized by the COMELEC is valid
COMELEC.
- It is only after a preliminary examination If the Board of Registration cancels the name of a
conducted by the COMELEC through its officials or voter, the voter can
its deputies that Sec. 2, Art. III of the 1987 - file in the MTC a petition for an order to include
Constitution comes in. This is so, because, when his name in the list of voters or to reinstate him
the application for a warrant of arrest is made and - within 20 days form the last day of registration
the information is filed with the court, the judge - appeal can be made to the RTC within 5 days,
will then determine whether or not a probable and the decision shall be final and unappealable
cause exists for the issuance of a warrant of and no motion for reconsideration shall be allowed
arrest. Exclusion Proceedings (Articles 138, 139, 142)
A petition for exclusion must be filed with the MTC
5) Registration of political parties, within 20 days from the last day of registration.
organizations, or coalitions/accreditation of
citizens’ arms of the Commission on Elections.
a) The political parties etc. must present
their platform or program of
government. Prosecute election law violators
b) There should be sufficient publication 1. COMELEC has exclusive jurisdiction to
c) Groups which cannot be registered: investigate and prosecute cases for violations of
i. Religious denominations/sects election laws.
ii. Groups which seek to achieve 2. COMELEC can deputize prosecutors for this
their goals through violence or purpose. The actions of the prosecutors are the
unlawful means actions of the COMELEC. (BP 881 sec. 265; EO
iii. Group which refuse to uphold 134, Sec. 11, Feb 27, 1987)
and adhere to the Constitution 3. In the event that the Commission fails to act on
iv. Groups which are supported by any complaint,
any foreign government. a. within 4 months from the filing of the
complaint, complainant may file complaint with
the office of the fiscal or with the Ministry of
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Justice for proper investigation and prosecution, if 9) Submit to the President and the congress a
warranted. (BP 881 sec. 265) comprehensive report on the conduct of each
b. within 2 months from filing, the complainant election, plebiscite, initiative, referendum, or
may file the complaint with the Office of the Fiscal recall.
or with the Department of Justice for proper 10) Other functions
investigations and prosecution, if warranted. (EO
134, Sec. 11, Feb 27, 1987) Art. IX, A, Sec. 8.
Each Commission shall perform such other
De Jesus v. People functions as may be provided by law.
- A govt official who violated the election law must
be prosecuted by the COMELEC before the RTC, l. Act as National Board of Canvassers for
not the Sandiganbayan. The 1978 Election Code is senators
clear that the COMELEC shall have the power to EO 144, Sec. 2, March 2, 1987
conduct preliminary investigations of all election National Board of Canvassers for the election of
offenses, and that the RTC has exclusive original Senators
jurisdiction to try and decide such ncases. It is not - composed of the Chairman and Members of the
the character or personality of the offender (public COMELEC sitting en banc
official) but the crime committed (violation of - shall canvass all certificates of canvass coming
election law) that determines jurisdiction. from and prepared by the district, provincial, and
People v. Delgado city boards of canvassers (of those cities which
- The Comelec has the following functions: (1) comprise one or more legislative districts.)
enforcement of election laws; (2) decision of - There shall be a board of canvassers for each
election contests; (3) decision of administrative province, city, municipality and district of
questions; (4) deputizing law enforcement Metropolitan Manila
agencies; (5) registration of political parties; and
(6) improvement of elections. 8. Review of COMELEC decisions, orders and
resolutions
- What are reviewable on certiorari by the SC are
those orders, decisions, etc., rendered in actions CONSTITUTIONAL LAW 1
or proceedings before the Art. IX, C, Sec. 2.
Comelec in the exercise of its adjudicatory or The COMELEC has:
quasi-judicial powers. Decisions of the Comelec on (1) exclusive original jurisdiction over all contests
election contests or on administrative questions relating to the elections, returns, and
are subject to judicial review only by the SC. qualifications of all elective regional, provincial,
ONSTITUTIONAL LAW 1 and city officials
- As a public prosecutor, the Comelec has the (2) appellate jurisdiction over all contests
exclusive authority to involving elective municipal officials decided by
conduct preliminary investigation and prosecute trial courts of general jurisdiction, or involving
offenses punishable under the election code elective barangay officials decided by courts of
before the competent court. limited jurisdiction.
But when the Comelec files the information, the - Decisions, final orders, or rulings of the
subsequent disposition of the case is subject to Commission on election contests involving elective
the court's approval. The municipal and barangay offices shall be final,
Comelec can't conduct reinvestigation unless so executory, and not appealable.
ordered by that court nor refuse its order of
reinvestigation. Art. IX, A, Sec. 7.
- COMELEC decision: (1) decided by a majority
7) Recommend to the Congress effective vote of all its
measures to minimize election spending, Members, (2) within 60 days from the date of its
including limitation of places where submission for decision or resolution, that is upon
propaganda materials shall be posted, and to the filing of the last pleading, brief, or
prevent and penalize all forms of election memorandum required by the rules of the
frauds, offenses, malpractices, and nuisance Commission or by the Commission itself
candidates. - Review: by the SC on certiorari brought by the
8) Recommend to the President the removal of aggrieved party within 30 days from receipt of a
any officer or employee it has deputized, or copy the decision, order or ruling
the imposition of any other disciplinary action, - Exception: unless otherwise provided by the
for violation or disregard of, or disobedience Constitution or by law
to its directive, order, or decision.
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Organized group of persons pursuing the - shall constitute 20% of the total number of
same political ideals in a government and includes representatives including those under the party
its branches, and divisions list.
- For 3 consecutive terms after the ratification of
Importance of registration of a political party this Constitution, one-half of the seats allocated to
1. Registration confers juridical personality on the partylist representatives shall be filled, as
the party. provided by law, by selection or election from
2. It informs the public of the party’s existence labor, peasant, urban poor, indigenous cultural
and ideals. communities, women, youth, and such other
3. It identifies the party and its officers for sectors as may be provided by law, EXCEPT the
purposes of regulation by the COMELEC. religious sector.
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measures, including temporary or special pre-
Qualifications: audit, as may be necessary.
A. Natural-born citizens of the Philippines 4) Keep the general accounts of the government,
B. At least 35 years old at the time of their preserving vouchers and other supporting
appointment; papers pertaining thereto.
C. Either: 5) Exclusive authority to define the scope of
1. CPA’s with at least 10 years auditing COA’s audit and examination and to establish
experience; or the techniques and methods required
2. Members of Phil. Bar with 10 years of therefore.
practice. 6) Promulgate accounting and auditing rules and
D. Members cannot all belong to the same regulations.
profession. a) Including those for the prevention or
E. Subject to confirmation of the CA. disallowance of irregular,
F. Must not have been candidates for any unnecessary, excessive,
elective position in the elections immediately extravagant, or unconscionable
preceding their appointment. expenditures or uses of government
funds and properties.
b) Failure to comply with these rules
Term: can be a ground for disapproving
1) 7 years (1st appointees) Chairman-7yrs; the payment of a proposed
Commissioner1-5yrs; Commissioner2-3yrs) expenditure.
2) LIMITATION: Single terms only; no re-
appointment allowed NOTE:
3) Appointments to any vacancy shall only be 1) The functions of COA can be classified as:
for the unexpired portion of predecessor’s A. Examine and audit all forms of
term government revenues;
B. Examine and audit all forms of gov’t
SECTION 2: Powers expenditures
C. Settle gov’t accounts
D. Promulgate accounting and auditing rules
1) Examine, audit, and settle accounts pertaining (including those for the prevention of
to: irregular…expenditures).
a) Revenue and receipts of funds or E. To decide administrative cases involving
property; or expenditures of public funds.
b) Expenditures and uses of funds or 2) COA can settle only LIQUIDATED ACCOUNTS
property or those accounts which may be adjusted
Owned or held in trust by, or pertain to: simply by arithmetic process.
1) The Government; 3) COA has authority not just over accountable
2) Any of its subdivisions, agencies or officers but also over other officers who
instrumentalities; perform functions related to accounting such
3) Including GOCC’s with original as verification of evaluations and computation
charters. of fees, collectible, and the adoption of
internal rules of control.
2) Conduct post-audit with respect to the 4) COA does not have the power to fix the
following: amount of an unfixed or undetermined debt.
a) Constitutional bodies, commissions, and 5) Where the following requirements are
offices granted fiscal autonomy; complied with, it becomes the ministerial duty
b) Autonomous state colleges and of the COA to approve and pass in audit
universities; vouchers for payment:
c) GOCC’s and their subsidiaries incorporated a) There is a law appropriating funds for a
under the Corporation Code. particular purpose;
d) Non-governmental entities receiving b) There is a contract, made by the proper
subsidies or equity, directly or indirectly, officer, entered into in conformity with the
from or through the government, which above-mentioned law;
are required by law of the granting of c) he goods or services covered by such
institution to submit to such audit. contract have been delivered or rendered
3) If COA finds internal control system of audited in pursuance to such contract, as attested
agencies as inadequate, COA may adopt by the proper officer; and
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d) Payment has been authorized by officials - WHEN: within the time fixed by law
of the corresponding department or - WHAT: (1) annual report covering the financial
bureau. condition and operation of the Government, its
6) Prosecutors may still review accounts already subdivisions, agencies, and instrumentalities,
settled and approved by COA for the purpose including GOCCs, and non-governmental entities
of determining possible criminal liability. This subject to its audit, and recommend measures
is because COA’s nterest in such accounts is necessary to improve their effectiveness and
merely administrative. efficiency, (2) such other reports as may be
7) COA has the power to determine the meaning required by law
of ‘public bidding’ and what constitutes failure
when regulations require public bidding for the
sale of government property.
8) Rule-making LOCAL GOVERNMENT
9)
Art. IX, A, sec. 6 SECTION 1:. TERRITORIAL/POLITICAL
Each Commission en banc may promulgate its SUBDIVISIONS OF THE REPUBLIC OF THE
own rules concerning pleadings and practice PHILIPPINES ARE:
before it or before any of its offices. Such rules, Composition:
however, shall not diminish, increase, or modify 1) Provinces
substantive rights. 2) Cities;
3) Municipalities; and
9. Other Functions 4) Barangays
Art. IX, A, sec. 8
Each Commission shall perform such other
functions as may be provided by law. There shall be Autonomous regions in:
1) Muslim Mindanao, and
10. Review of Decisions of COA 2) Cordilleras [At present, it is only the
Art. IX, A, sec. 7 Cordillera ADMINISTRATIVE region]
- COA decision: (1) decided by a majority vote of
all its Members, (2) within 60 days from the date NOTE: 1) A third autonomous region would
of its submission for decision or resolution, that is require a constitutional amendment.
upon the filing of the last pleading, brief, or 2) These political subdivisions, created
memorandum required by the rules of the by the Constitution can be replaced by
Commission or by the AMENDMENT, and not by law.
Commission itself 3) While Congress can be abolish or
- Review: by the Supreme Court on certiorari eradicate individual units, it cannot abolish an
brought by the aggrieved party within 30 days entire class of LGUs
from receipt of a copy the decision, order or
ruling- Exception: unless otherwise provided by SECTION 2:. Local Autonomy
the Constitution or by law
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treasurer. Release is made on a quarterly
basis within 5 days after the end of each
SECTION 4:. PRESIDENTIAL SUPERVISION quarter.
OF LGU’S 3) The share of each LGU should not be subject
to any lien or holdback that may be imposed
Supervision of President by the national government for whatever
A. The President exercises GENERAL purpose.
supervision over all LGUs 4) Each LGU should appropriate in its annual
B. The President exercises DIRECT budget at least 20% of its annual IRA for
supervision over development or infrastructure projects in
C. Provinces accordance with local development plan
D. Autonomous regions and 5) Adjustments in IRA
E. Independent cities. A. Ground: Unmanageable public section
F. This power is limited to ensuring that deficit
lower officers exercise their functions in B. President can make the necessary
accordance with law. adjustments in the IRA upon the
G. The President cannot substitute his recommendation of the following:
judgment for that of an LGU official unless a) Department of Finance Secretary
the latter is acting contrary to law. b) DILG Secretary
H. The President may, however, impose c) DBM Secretary
administrative sanctions against LGU 6) IRA is included as part of the income of an
officials, such as suspension for 120 days, LGU for purposes of compliance with the
and may even remove them from their income requirement for conversion from one
posts, in accordance with law. political subdivision to the next (Alvarez v.
I. Provinces exercise DIRECT supervision Guingona)
over component cities and municipalities.
J. Cities and municipalities exercise DIRECT
supervision over component Barangays. SECTION 7: Share of LGUs in National
Wealth
SECTION 5: Each local government shall
have the power to create own sources of Share of LGUs in national wealth
revenue/levy taxes, fees and charges etc. 1. LGUs are entitled to an equitable share in the
proceeds of the utilization and development of
Limitations on Power the national wealth within their respective
A. It is subject to such guidelines and areas in the manner provided by law.
limitations as Congress may provide. See 2. This includes sharing the same with the
Local Government Code for examples. inhabitants by way of direct benefits.
B. The guidelines set by Congress should be
consistent with the basic policy of local
autonomy. Under the LGC: CODE: MR.-FOS
1. LGUs have a share of 40% of the gross
collection derived by the national government
Accrual of taxes, fees, charges from the preceding fiscal year from
The taxes, fees and charges shall accrue a. Mining taxes
exclusively to the local governments. b. Royalties
c. Forestry and fishery charges
d. Other taxes, fees and charges
SECTION 6: LGUs shall have a just share in e. Share in any co-production, joint venture
or production sharing agreement in the
national taxes, as determined by law, which
utilization and development of the
shall be automatically released to them.
national wealth w/in their territorial
jurisdiction
Internal Revenue Allotment (IRA)
SECTION 3:Term of Office
1) Share of LGUs in national taxes is limited to
the internal revenue taxes.
2) The share of each LGU should be released,
without need of any further action, directly to Term of Office
the provincial, city, municipal or barangay
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Elective local officials, now including barangay SECTION 11: Special Metropolitan Political
officials, have a term of 3 years. Subdivisions
Limitations
1. No elective official shall serve for more Creation:
than 3 consecutive terms A. Congress may create special metropolitan
2. Voluntary renunciation of office for any political subdivision by law.
length of time shall not be considered as B. It is subject to a plebiscite
an interruption in the continuity of his
service for the full for which he was Jurisdiction of Metropolitan authority
elected. It is limited to basic services requiring
coordination.
SECTION 9: SECTORAL REPRESENTATION IN
LGUS Basic Autonomy of Component Cities and
Municipalities
The component cities and municipalities retain
Legislative bodies of the local governments their basic autonomy
shall have Sectoral Representation (under They shall be entitled to their own local executive
the LGC) as may be provided by law and legislative assembles.
There should be representatives from:
a. The women’s sector
b. The workers SECTION 12: CITIES
c. Third sector (can choose form any of the
following)
a. Urban poor Classification of Cities:
b. Indigenous cultural communities 1. Highly urbanized (as determined by law)
c. Disabled persons 2. Component cities (cities still under provincial
d. Any other sector as may be determined by control); and
the Sanggunian 3. Independent component cities (non-highly
urbanized cities whose voters are prohibited
by the city charter from voting in provincial
Election of Sector Representatives elections)
LGC, Section 33
Section 14. REGIONAL DEVELOPMENT COUNCILS
Consolidation and coordination may
be done through appropriate
ORDINANCE.
A PUBLIC HEARING should be
conducted and the approval of the
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obtained.
An LGU can:
Contribute funds, real estate,
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b) National sovereignty
c) Territorial integrity.
Creation:
1. Provided BY LAW.
2. EFFECTIVITY of such creation occurs only
when it is approved by a majority of the votes
cast in a plebiscite held among the constituent
units.
3. Only those Provinces, Cities, and Geographical
Areas voting favorably in such plebiscite shall
from part of the autonomous region.
4. If only 1 province approved the law, NO
AUTONOMOUS REGION is created, since the
Section 14. REGIONAL DEVELOPMENT constitution requires more than one province
COUNCILS to constitute one (like what happened in the
Cordillera plebiscite)
Who can provide for RDC 5. The question of which LGUs shall constitute an
The President shall provide for RDC or other autonomous region is one which is exclusively
similar bodies composed of: for Congress to decide.
Composition
(i) Local government officials Section 16. GENERAL SUPERVISION OVER
(ii) Regional heads of AUTONOMOUS REGIONS
departments and other
government offices By Whom: The President
(iii) Representatives of NGOS Purpose: To ensure that the laws
within the regions are faithfully executed.
For Purpose of
1) Administrative decentralization
2) To strengthen local autonomy Sec.17. All powers, functions and
3) To accelerate the economic and social responsibilities not granted by this
growth and development of the units in Constitution or by law to the autonomous
the region region shall be vested in the National
Government.
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6. Economic, social, and tourism development; b) Treason
7. Educational policies; i. graft and corruption
8. Preservation and development of the cultural ii. other high crimes or
heritage; and iii. betrayal of public trust
9. Such other matters as may be authorized by iv. bribery
law for the promotion of the general welfare
of the people of the region. NOTE: It is an exclusive list. Congress cannot, by
law, add to the list of impeachable offense.
1) These officers cannot be charged in court with
Limitations: offenses that have removal from office as
1. Subject to the provisions of the Constitution penalty.
and national laws 2) SC Justice cannot be disbarred because this
2. To be exercised within its territorial would disqualify him from his position.
jurisdiction 3) BUT AFTER an official has been impeached, he
can be charged with the appropriate offense.
4) Resignation by an impeachable official does
not place him beyond the reach of
Section 21. PRESERVATION OF PEACE AND impeachment proceedings; he can still be
ORDER/DEFENSE AND SECURITY impeached.
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5. Calendaring of resolution for consideration d) Deputy for military establishment may be
by the House appointed
Should be done within 10 session days
from receipt thereof
6. Vote of at least 1/3 of all Members of the Qualifications: (Ombudsman and his
House necessary to: deputies)
7. Affirm a favorable resolution with the a) Natural born citizen of the Philippines
Articles of Impeachment of the Committee b) At least 40 years old at a time of
or appointment
8. To override its contrary resolution c) Of recognized probity and independence
d) Member of the Philippine bar
NOTE: If the verified complaint or resolution of e) Must not have been candidate for any
impeachment was filed by at least 1/3 of all the elective office in the immediately
Members of the House, it shall constitute the preceding election
Articles of Impeachment. Trial in the Senate shall For Ombudsman: He must have been for ten
proceed. years or more
f) A judge or
g) Engaged in the practice of law in the
Trial in the Senate Philippines
1. Senate has the sole power to try and decide
all cases of impeachment
2. For this purpose, the Senators shall be under Disqualifications/Prohibitions (under Article
oath or affirmation IX, Section 2)
3. When the President of the Philippines is on a) Cannot hold any other office or employment
trial, the CJ of the Supreme Court presides. during his tenure
However, he/she will not vote. b) Cannot engage in the practice of any
profession or in the active management or
control of any business which may be affected
Judgment of Conviction by the functions of his office
This requires the concurrence of 2/3 of all the c) Cannot be financially interested, directly or
Members of the Senate indirectly, in any contract with or in any
franchise or privilege granted by the
Government, any of its subdivisions, agencies
Effect of the Impeachment or instrumentalities, including GOCCs or their
1. Removal from office of the official concerned subsidiaries
2. Disqualification to hold any office under the
Republic of the Philippines Appointment Of Ombudsman and deputies
3. Officer still liable to prosecution, trial, and 1) By the president from a list of at least 6
punishment if the impeachable offense nominees prepared by the Judicial and Bar
committed also constitutes a felony or crime. Council. Vacancies will be filled from a list of 3
nominees
2) Appointments do NOT require confirmation
3) All vacancies shall be filled within 3 months
Section 4: SANDIGANBAYAN after they occur.
Of other officials and employees of the Office of
Sandiganbayan = the anti-graft court the Ombudsman
1. By the Ombudsman
2. In accordance with Civil Service Law
Sections 5-6, 8-14: OFFICE OF THE
OMBUDSMAN
Term: (Ombudsman and deputies)
1. 7 years with reappointment
Composition:
2. They are NOT qualified to run for any office in
a) Ombudsman/Tanodbayan
the election immediately succeeding their
b) Overall deputy
cessation from office
c) At least one Deputy each for Luzon,
Visayas and Mindanao
Rank/Salaries:
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1. The Ombudsman has the rank of Chairman of iii. GOCC’s with original
a Constitutional Commission charters
2. The Members have the rank of members of a c.) The SC has held that the SP may
Constitutional Commission prosecute before the Sandiganbayan
3. Their salaries cannot be decreased during judges accused of graft and
their term of office. corruption, even if they are under
the Supreme Court.
Powers, Functions and Duties of the Office of the
Ombudsman 3. Direct the officer concerned to take the
1. Investigate on its own, or on complaint by any appropriate action against a public official or
person, any act or omission of any public employee at fault, and recommend his
official, employee, office or agency, when such removal, suspension, demotion, fine, censure,
act or omission appears to be illegal, unjust, or prosecution, and ensure compliance
improper, or inefficient. therewith.
a. The SC held that the power to a. The Ombudsman does NOT himself
investigate and prosecute cases prosecute cases against public
involving public officers and officers or employees
employees has been transferred to b. Final say to prosecute still rest in
the Ombudsman. the executive department.
b. The Ombudsman may always c. The Ombudsman of Tanodbayan
delegate his power to investigate. may use mandamus to compel the
c. The power to investigate includes fiscal to prosecute.
the power to impose preventive
suspension. 4. Direct the officer concerned, in any
d. This preventive suspension is not a appropriate case, and subject to such
penalty. limitations as may be provided by law to
e. “INVESTIGATE” does not mean furnish it with copies of documents relating to
preliminary investigation contracts or disbursement or use of public
f. The complaint need not be drawn up funds or properties, and report any
in the usual form irregularity to COA for appropriate action.
g. The “ILLEGAL” act or omission need
not be in connection with the duties 5. Request any government agency for
of the public officer or employee assistance and information necessary in the
concerned. discharge of its responsibilities, and to
h. ANY illegal act may be investigated examine, if necessary, pertinent records and
by the Ombudsman. In this regard, documents.
the Ombudsman’s jurisdiction is
CONCURRENT with that of the 6. Public matters covered by its investigation
regular prosecutors. when circumstances so warrant and with due
process
2. Direct, upon complaint or at its own instance,
any public official or employee of the 7. Determine the cause of inefficiency, red tape,
government, or any subdivision, agency or mismanagement, fraud and corruption in the
instrumentality thereof, as well as of any government and make recommendations for
government-owned or controlled corporation their elimination and the observance of high
with original charter, to perform and expedite standards of ethics and efficiency
any act of duty required by law, or to stop,
prevent, and correct any abuse or impropriety 8. Promulgate its rules of procedure and exercise
in the performance of duties. such other powers or perform such functions
a.) The Ombudsman has PERSUASIVE or duties as may be provided by law
POWER, and may require that
proper legal steps are taken by the
officers concerned. NOTE: The Office of the Ombudsman also has the
b.) The public official or employee must duty to act promptly on complaints filed in any
be employed in: form or manner against public officials or
i. The Government employees of the government, or any subdivision,
ii. Any subdivision, agency, or agency or instrumentality including GOCCs and
instrumentality thereof; or their subsidiaries. In appropriate cases, it should
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notify the complainants of the action taken and Coverage:
the result thereof. This prohibition applies to:
1. President
2. Vice-President
3. Members of the Cabinet
Fiscal Autonomy: 4. Members of Congress
The Office of the Ombudsman enjoys fiscal 5. Members of Supreme Court
autonomy. Its approved annual appropriations 6. Members of Constitutional Commissions
should be automatically and regularly released. 7. Ombudsman
8. Any firm or entity in which they have
controlling interest
Section 7: OFFICE OF THE SPECIAL When prohibition applies: during their TENURE.
PROSECUTOR
Scope of prohibition:
1. Under the 1987 Constitution, the existing 1. The above mentioned officials cannot obtain,
Tanodbayan became the Office of the Special directly or indirectly for BUSINESS
Prosecutor PURPOSES:
2. Powers a. Loans
a. It will continue to function and exercise its b. Guarantees
powers as now or hereafter may be c. Other forms of financial
provided by law accommodation From:
b. Exception: Powers conferred on the Office i. Government owned or
of the Ombudsman controlled banks; or
3. The Office of the Special Prosecutor is ii. Government owned or
subordinate to and acts under the orders of controlled financial
the Ombudsman institutions.
2. If the loan, etc, is NOT for business purpose,
NOTE: According to Jack, the SC was e.g. housing loan, the prohibition does not
wrong because the ConCom intended apply.
that the SP was to prosecute anti-graft
cases.
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8. Officers of the armed forces with general authorization by Sanggunian
or flag rank concerned is needed
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province shall be referred for Governor, Mayor, Vice election day
settlement to the sangguniang Mayor, member of
panlalawigan concerned. Sangguniang
c. Boundary disputes involving Panlungsod in highly
municipalities or component cities of urbanized cities
different provinces shall be jointly Mayor, Vice Mayor of At least 21 years old
referred for settlement to the independent
sanggunians of the provinces component cities or
concerned. municipalities
d. Boundary disputes involving a Member of At least 18 years old
component city or municipality on Sangguniang
the one hand and a highly urbanized Panglungsod, Member
city on the other, or two or more of Sangguniang
highly urbanized cities, shall be Bayan, Punong
jointly referred for settlement to the Barangay, Member of
respective sanggunians of the Sangguniang
parties. Barangay
Procedure:
In the event the sanggunian fails to effect
an amicable settlement within 60 days from the Disqualifications for Local Elective Officials
date the dispute was referred thereto, it shall (§ 40)
issue a certification to that effect. Thereafter, the 1. Those sentenced by final judgment for an
dispute shall be formally tried by the sanggunian offense involving moral turpitude, or for an
concerned which shall decide the issue within 60 offense punishable by 1 year or more or
days from the date of the certification referred to imprisonment within 2 years after serving
above. sentence
Within the time and manner prescribed by 2. Those removed from office as a result of an
the Rules of Court, any party may elevate the administrative case.
decision of the sanggunian concerned, any party 3. Those convicted by final judgment for
may elevate the decision of the sanggunian violating the oath or allegiance to the Republic
concerned to the proper Regional Trial Court 4. Those with dual citizenship
having jurisdiction over the area in dispute. The 5. Fugitives from justice in criminal or non-
Regional Trial Court shall decide the appeal within political cases here or abroad
one (1) year from the filing thereof. Pending final 6. Permanent residents in a foreign country or
resolution of the case, the disputed area prior to those who have acquired the right to reside
the dispute shall be maintained and continued for abroad and continue to avail of the same right
all legal purposes. (§119, LGC) after the effectivity of this Code
7. The insane of feeble minded
9. Succession of Elective Officers
Vacancies
Qualifications of Elective Local Officials (§ Permanent vacancy
39) a. Grounds
1. Filipino citizen 1. Elective local official fills a higher
2. Registered voter in the barangay, vacant office
municipality, city or province where he intends 2. Refuses to assume office
to be elected/Registered voter in the district 3. Fails to qualify
where he intends to be elected in case of a 4. Dies
member of the Sangguniang panlalawigan, 5. Removed from office
Sangguniang panlungsod or Sangguniang 6. Voluntarily resigns
bayan. 7. Permanently incapacitated to
3. Resident therein for at least 1 year discharge the functions of his office
immediately preceding the day of the election. b. Filling of vacancy
4. Able to read and write Filipino/ any other local
language or dialect 1. Automatic succession
Age requirement
POSITION AGE REQUIREMENT VACANCY SUCCESSOR
Governor, Vice At least 23 years old on 1. In the office of the Vice-Governor, Vice-
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governor, mayor Mayor 2. Travel abroad
2. In the office of the Highest ranking 3. Suspension from office
governor, vice- Sanggunian member
governor, mayor or If the positions of governor, mayor or
vice-mayor punong barangay become temporarily
3. In the office of the Second highest ranking vacant, the vice-governor, vice-mayor or
highest ranking Sanggunian member highest ranking Sanggunian member will
Sangguniang automatically exercise the powers and
member (who was perform the duties and functions of the
supposed to fill the local chief executive concerned.
vacant position of Exception: He/she cannot exercise the
governor etc. power to appoint, suspend or dismiss
4. In the office of the Highest ranking employees. Exception to exception: If
punong barangay sangguniang barangay the period of temporary incapacity
member/2nd highest exceeds 30 working days.
ranking sanggunian
member Termination of temporary incapacity
Upon submission to the
2. By appointment appropriate Sanggunian of a written
declaration by the local chief that he has
VACANCY APPOINTMENT BY reported back to office
WHOM If the temporary incapacity was due to
1. Sanggunian President, through legal reasons, the local chief executive
Panlalawigan or Executive Secretary should also submit necessary documents
Panlungsod of showing that the legal cause no longer
highly urbanized exist.
cities and
independent Appointment of OIC:
component cities The local chief executive can designate
2. Sangguniang Governor in writing an OIC if he is traveling within
Panlungsod of the country but outside his territorial
Component Cities, jurisdiction for a period not exceeding 3
Sangguniang consecutive days.
Bayan The OIC cannot exercise the power to
3. Sangguniang City/Municipal Mayor appoint, suspend or dismiss employees.
Barangay upon Recommendation
of the Sangunian
barangay concerned
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1. Disloyalty to the Republic of the for more than 90 days within a
Philippines single year on the same ground/s
2. Culpable violation of the Constitution existing and known at the time of
3. Dishonesty, oppression, misconduct in the first suspension.
office, gross negligence, dereliction of
duty Suspension
4. Commission of any offense involving It should not exceed the
moral turpitude or an offense unexpired term of the respondent
punishable by at least prison mayor or a period of 6 months for every
5. Abuse authority administrative offense.
6. Unauthorized absence for 15 Penalty is NOT a bar to the
consecutive working days, except in candidacy of the respondent
the case of members of the suspended as long as he meets
Sanggunian panlalawigan, the qualifications for the office.
Sangguniang panlungsod,
Sangguniang bayan, Sangguniang
barangay. iv. Removal as result of
7. Application for acquisition of foreign Administrative Investigation
citizenship or residence or the status It serves as a BAR to the
of an immigrant of another country. candidacy of the respondent for any
8. Such other ground as may be elective position.
provided by the Code/other laws.
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Office of the President to stay the Consistently, the Court has reiterated the doctrine
execution of a decision pending appeal. in a string of recent jurisprudence including two
A.O. No. 18 was not repealed by the Local cases involving a Senator and a Member of the
Government Code. House of Representatives.
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electorate. The people cannot be charged with e. Budget Officer
the presumption of full knowledge of the life and f. Planning and Development
character of each and every probable appointee of Coordinator
the elective official ahead of the latter’s actual g. Engineer
reelection. h. Health Officer
i. Civil Registrar
Moreover, the unwarranted expansion of j. Administrator
the Pascual doctrine would set a dangerous k. Legal Officer
precedent as it would, as respondents posit, l. Agriculturist
provide civil servants, particularly local m. Social Welfare and Development
government employees, with blanket immunity Officer
from administrative liability that would spawn and n. Environment and Natural
breed abuse in the bureaucracy. Atty. Vicente E. Resources Officer
Salumbides, Jr., et al. vs. Office of the o. Architect
Ombudsman, et al., G.R. No. 180917, April 23, p. Information Officer
2010 q. Cooperatives Officer
r. Population Officer
B. Appointive Officials s. Veterinarian
t. General Services Officer
NOTE:
1. Responsibility for human resources and ●In the barangay, the mandated
development- The local chief executive appointive officials are the Barangay Secretary
shall be responsible for human resources and the Barangay Treasurer, although other
and development in his unit and shall officials of the barangay may be appointed by the
take all personnel actions in accordance punong barangay.
with the Constitution, pertinent laws,
including such policies, guidelines and
standards as the Civil Service 3. Administrative discipline
Commission may establish; Provided Investigation and adjudication of
that the local chief executive may employ administrative complaints against
emergency or casual employees or appointive local officials and
laborers paid on a daily wage or employees as well as their suspension
piecework basis and hired through job and removal shall be in accordance
orders for local projects authorized by the with the civil service law and rules
sanggunian concerned, without need of and other pertinent laws.
approval or attestation by the CSC as
long as the said employment shall not a. Preventive suspension- The local
exceed 6 months. chief executive may preventively
suspend for a period not
exceeding 60 days any
Case: subordinate official or employee
But the Provincial Governor is without under his authority pending
authority to designate the petitioner as Assistant investigation if the charge against
Provincial Treasurer for Administration, because such official or employee involves
under §471 of the Local Government Code, it is dishonesty, oppression or grave
the Secretary of Finance who has the power to misconduct or neglect in the
appoint Assistant Provincial Treasurers from a list performance of duty, or if there is
of recommendees of the Provincial Governor reason to believe that the
(Dimaandal vs. Commission on Audit, 291 respondent is guilty of the
SCRA 322). charges which would warrant his
removal from the service.
2. Officials common to all
Municipalities, Cities and Provinces (§469- b. Disciplinary Action- Except as
490, R.A. 7160) otherwise provided by law, the
a. Secretary to the Sanggunian local chief executive may impose
b. Treasurer the penalty of removal from
c. Assessor service, demotion in rank,
d. Accountant
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suspension for not more than 1
year without pay, fine in an (2). Procedure
amount not exceeding 6 months’ Session in a public place to initiate recall
salary or reprimand. If the proceeding
penalty imposed is suspension Resolution adopted by a majority of all the
without pay for not more than 30 members of the PRA during the session called for
days, his decision shall be final; if the purpose of initiating recall proceedings
the penalty imposed is heavier,
the decision shall be appealable to
the Civil Service Commission b. By Petition of Registered Voters
which shall decide the appeal 1. Petition of at least 25% of the total number of
within 30 days from receipt registered voters in the LGU concerned during
thereof. the election in which the local official sought
to be recalled was elected.
2. The written petition for recall should be dully
11. RECALL (§§ 69-75) signed before the election registrar or his
Recall is the power of the electorate (registered representative and in the presence of the
voters) to remove a local elected official for loss of representatives of the petitioner and the
confidence through the holding of a special/recall official sought to be recalled.
election. 3. It should be signed in a public place
4. Petition should be filed with COMELEC through
Two modes of initiating a recall: its office in the LGU concerned
1. adoption of a resolution by the Preparatory 5. Publication of petition for 10-20 days in order
Recall Assembly (composed of local officials of to verify the authenticity and genuineness of
the lower/supervised local government unit) the petition and the required % of voters.
2. petition by at least 25% of the registered
voters. Conduct of Recall Election
GROUND = Loss of confidence The official/s sought to be recalled are
automatically considered as duly registered
candidates.
Process of Initiating Recall The date set for the recall election should not be
a. By Preparatory Recall Assembly (PRA) less than 30 days after filing of resolution/petition
(1). Composition of PRA in the case of barangay, city or municipal officials
and 45 days in the case or provincial officials
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No local elective officer shall serve for express or implied, from the Spanish
more than 3 consecutive terms in the Crown or its successors, the American
same position Colonial Government, and thereafter, the
Voluntary renunciation of the office for Philippine Republic.
any length of time shall be considered
an interruption in the continuity of In a broad sense, the term refers to royal
service for the full term for which the rights, or those rights to which the King
elective official concerned was elected. has by virtue of his prerogatives. The
theory of jure regalia was therefore
nothing more than a natural fruit of
conquest
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minerals without permission from the state to
which such minerals belong. Large-Scale Exploration, Development and
Utilization of Minerals/Petroleum/Other
Scope: Mineral Oils
The following are owned by the State: 1. The President may enter into agreements with
1. Lands of the public domain: foreign owned corporations involving technical
Waters or financial assistance for large-scale
Minerals, coals, petroleum, and other exploration etc. of minerals, petroleum, and
mineral oils; other mineral oils. These agreements should
All sources of potential energy; be in accordance with the general terms and
Fisheries; conditions provided by law.
Forests or timber; 2. They should be based on the real
Wildlife; contributions to economic growth and general
Flora and fauna; and welfare of the country.
Other natural resources. 3. In the agreements, the State should promote
the development and use of local scientific
and technical resources.
Alienation of Natural Resources 4. The President should notify Congress of every
1. General Rule: All natural resources CANNOT contract under this provision within 30 days
be alienated from its execution.
2. Exception: Agricultural lands 5. Management and service contracts are not
allowed under this rule.
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water supply, fisheries, or industrial uses other
The abovementioned provision provides that than development of water power, in which cases,
except for agricultural lands for public domain beneficial use may by the measure and the limit
which alone may be alienated, forest or timber, of the grant.
and mineral lands, as well as all other natural
resources must remain with the State, the
exploration, development and utilization of which (THE REGALIAN DOCTRINE DOESN'T NEGATE
shall be subject to its full control and supervision NATIVE TITLE)
albeit ing it to enter into coproduction, joint
venture or production-sharing agreements, or into
agreements with foreign-owned corporations Regalian theory doesn’t negate the native title to
involving technical or financial assistance for lands held in private ownership since time
large-scale exploration, development, and immemorial, adverting to the landmark case of
utilization. CARINO V. LOCAL GOVERNMENT, where the US
SC through Holmes held: “xxx the land has been
THE 1987 PROVISION HAD ITS ROOTS IN THE held by individuals under a claim of private
1935 CONSTITUTION ownership, it will be presumed to have been held
WHICH PROVIDES— in the same way from before the Spanish
conquest, and never to have been public land.”
Section 1. All agricultural timber, and mineral
lands of the public domain, waters, minerals, coal, Existence of native titie to land, or ownership of
petroleum, and other mineral oils, all forces of land by Filipinos by virtue of possession under a
potential energy and other natural resources of claim of ownership since time immemorial and
the Philippines belong to the State, and their independent of any grant from the Spanish crown
disposition, exploitation, development, or as an exception to the theory of jure regalia
utilization shall be limited to citizens of the
Philippines or to corporations or associations at (Justice Puno): Carino case firmly established a
least sixty per centum of the capital of which is concept of private land title that existed
owned by such citizens, subject to any existing irrespective of any royal grant from the State and
right, grant, lease, or concession at the time of was based on the strong mandate extended to the
the inauguration of the Government established Islands via the Philippine Bill of 1902. The IPRA
under this Constitution. Natural resources, with recognizes the existence of ICCs/IPs as a distinct
the exception of public agricultural land, shall not sector in the society. It grants this people the
be alienated, and no license, concession, or lease ownership and possession of their ancestral
for the exploitation, development, or utilization of domains and ancestral lands and defines the
any of the natural resources shall be granted for a extent of these lands and domains.
period exceeding twenty-five years, renewable for
another twenty-five years, except as to water (Justice Vitug): Carino cannot override the
rights for irrigation, water supply, fisheries, or collective will of the people expressed in the
industrial uses other than the development of Constitution.
water power, in which cases beneficial use may be
the measure and limit of the grant. (Justice Panganiban): All Filipinos, whether
indigenous or not, are subject to the Constitution,
THE 1973 CONSTITUTION REITERATED THE and that no one is exempt from its all
REGALIAN DOCTRINE encompassing provisions. (Cruz vs. Secretary of
AS FOLLOWS— Environment and Natural Resources, G.R No.
Section 8. All lands of public domain, waters, 135385, December 06, 2000)
minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, wildlife,
and other natural resources of the Philippines
belong to the State. With the exception of Section 3. LANDS OF THE PUBLIC DOMAIN
agricultural, industrial or commercial, residential, ARE CLASSIFIED INTO:
or resettlement lands of the public domain,
natural resources shall not be alienated, and no
license, concession, or lease for the exploration, 1. Agricultural;
or utilization of any of the natural resources shall 2. Forest/timber;
be granted for a period exceeding twentyfive 3. Mineral lands; and
years, except as to water rights for irrigation, 4. National Parks.
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3. Open, exclusive, and undisputed possession of
NOTE: ALIENABLE (agricultural) public land for a
Reclassification of PUBLIC (MINERAL AND period of 30 years.
AGRICULTURAL) lands is an exclusive Upon completion of the requisite period,
prerogative of the Executive Department the land becomes private property ipso
through the Office of the President, upon jure without need of any judicial or other
recommendation by the DENR. sanction.
But as to FOREST AND NATIONAL PARKS, Possession since time immemorial leads to
it is the Congress which has the sole the presumption that the land was never
power to reclassify. part of public domain.
Classification is descriptive of the legal In computing 30 years, start from when
nature of the land and NOT what it looks land was converted to alienable land, not
like. Thus, the fact that the forest land is when it was still forest land
denuded does not mean it is no longer Presumption is always that land belongs
forest land. to the State.
3. “ANCESTRAL DOMAIN”
Means by Which Lands of the Public Domain
It refers to lands which are considered as
Become Private Land
pertaining to a cultural region
1. Acquired from government by purchase or
This includes lands not yet occupied, such
grant;
as deep forests.
2. Uninterrupted possession by the occupant and
his predecessors-in-interest since time
immemorial; and
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B. Alien still has the title (didn’t pass it
on to one who is qualified)
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3. Franchise is granted under the condition that
it is subject to amendment, alteration, or
repeal by Congress when the common goods 1. Temporary takeover or direction of
so requires. operations:
a. of vital industries, or
Participation of Foreign Investors b. Transfer to public ownership
1. The participation of foreign investors in the upon payment of just compensation
governing body of any public utility enterprise
shall be limited to their proportionate share in A. Conditions
its capital. i. National emergency and
2. Foreigners cannot be appointed as the ii. When the public interest requires
executive and managing officers because B. May be used against privately owned
these positions are reserved for Filipino public utilities or businesses affected with
citizens. public interest.
Section 16. C.
FORMATION/ORGANIZATION/REGULATION D. Duration of the takeover: period of
OF CORPORATIONS emergency
E. Takeover is subject to reasonable terms
1. Private corporations and conditions
Congress can only provide for the formation, F. No need for just compensation because it
etc of private corporations through a general is only temporary.
law.
2. Nationalization of vital industries:
2. GOCC’s A. Exercised in the interest of national
They may be created by: welfare or defense
B. Involves either:
1. Special charters in the interest of the i. Establishment and operation
common good and subject to the test of
economic viability. NOTE:
2. By incorporation under the general
corporation law. 1. The Constitution does NOT prohibit the
existence of monopolies.
Sections 18-19. SPECIAL ECONOMIC 2. The State may either regulate or prohibit
monopolies, when public interest so requires.
POWERS OF THE GOVERNMENT
Combinations in restraint of trade or unfair
competition are prohibited.
Section 19. MONOPOLIES
domain 60% Filipino ownership
3. Former natural-born
Filipino citizenship or equity requirements: citizens of RP, as
transferees, with certain
ACTIVITY CITIZENSHIP AND/OR legal restrictions; and
EQUITY REQUIREMENTS 4. Alien heirs as transferees
Exploitation of a. Filipino citizens; or in case of intestate
natural resources i. Corporations succession.
incorporated in RP,
with 60% Filipino Practice of ALL Filipino citizens only (natural
ownership professions persons)
*But Congress may, by law,
Operation of 1. Filipino citizens; or otherwise prescribe
Public Utilities 2. Corporations Mass media 1. Filipino citizens; or
incorporated in RP, with 2. Corporations
60% Filipino ownership incorporated in RP, and
100% Filipino owned
Acquisition of 1. Filipino citizens; or
alienable lands of 2. Corporations Advertising 1. Filipino citizens; or
the public incorporated in RP, with 2. Corporations
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incorporated in RP, and The right to organize is given to all kinds of
70% Filipino owned workers BOTH in the PRIVATE and PUBLIC
sectors.
Educational 1. Filipino citizens; or The workers have a right to hold peaceful
Institution 2. Corporations concerted activities except the right to strike,
incorporated in RP, and which is subject to limitation by law.
60% Filipino owned
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The UDHR is the first international statement to The covenant permits governments to temporarily
use the term "human rights", and has been suspend some of these rights in cases of civil
adopted by the Human Rights movement as a emergency only, and lists those rights which
charter. It is short, and worth reading in its cannot be suspended for any reason. It also
entirety -- a summary would be about as long as establishes the UN Human Rights Commission.
the document itself.
After almost two decades of negotiations and
Covenant on Civil and Political Rights rewriting, the text of the Universal Covenant on
This covenant details the basic civil and political Civil and Political Rights was agreed upon in 1966.
rights of individuals and nations. Among the rights In 1976, after being ratified by the required 35
of nations are: states, it became international law.
the right to self determination; Optional Protocol to the Covenant on Civil and
the right to own, trade, and dispose of Political Rights
their property freely, and not be deprived
of their means of subsistence The protocol adds legal force to the Covenant on
Civil and Political Rights by allowing the Human
Among the rights of individuals are: Rights Commission to investigate and judge
the right to legal recourse when their complaints of human rights violations from
rights have been violated, even if the individuals from signatory countries.
violator was acting in an official capacity Covenant on Economic, Social, and Cultural
the right to life Rights
the right to liberty and freedom of This covenant describes the basic economic,
movement social, and cultural rights of individuals and
the right to equality before the law nations, including the right to:
the right to presumption of innocence til 1. self-determination
proven guilty 2. wages sufficient to support a minimum
the right to appeal a conviction standard of living
the right to be recognized as a person 3. equal pay for equal work
before the law 4. equal opportunity for advancement
the right to privacy and protection of that 5. form trade unions
privacy by law 6. strike
freedom of thought, conscience, and 7. paid or otherwise compensated maternity
religion leave
freedom of opinion and expression 8. free primary education, and accessible
freedom of assembly and association education at all levels
The covenant forbids torture and inhuman or In addition, this convention forbids exploitation of
degrading treatment, slavery or involuntary children, and requires all nations to cooperate to
servitude, arbitrary arrest and detention, and end world hunger. Each nation which has ratified
debtor's prisons. It forbids propaganda advocating this covenant is required to submit annual reports
either war or hatred based on race, religion, on its progress in providing for these rights to the
national origin, or language. Secretary General, who is to transmit them to the
Economic and Social Council.
It provides for the right of people to choose freely
whom they will marry and to found a family, and UN Convention on the Condition of the
requires that the duties and obligations of Wounded and Sick in Armed Forces (Also
marriage and family be shared equally between called the first Geneva Convention)
partners. It guarantees the rights of children and The first Geneva Convention focuses on the rights
prohibits discrimination based on race, sex, color, of individuals, combatants and non-combatants,
national origin, or language. during war. It is lengthy and detailed, perhaps
because human rights are rarely at such risk as
It also restricts the death penalty to the most during war and, in particular, involving prisoners
serious of crimes, guarantees condemned people of war or enemy captives.
the right to appeal for commutation to a lesser
penalty, and forbids the death penalty entirely for Convention against Genocide
people under 18 years of age. This convention bans acts committed with the
intent to destroy, in whole or in part, a national,
ethnic, racial or religious group. It declares
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genocide a crime under international law whether of the person's native country in making this
committed during war or peacetime, and binds all decision.
signatories of the convention to take measures to
prevent and punish any acts of genocide The CAT requires states to make torture illegal
committed within their jurisdiction. The act bans and provide appropriate punishment for those
killing of members of any racial, ethnic, national who commit torture. It requires states to assert
or religious group because of their membership in jurisdiction when torture is committed within their
that group, causing serious bodily or mental harm jurisdiction, either investigate and prosecute
to members of the group, inflicting on members of themselves, or upon proper request extradite
the group conditions of life intended to destroy suspects to face trial before another competent
them, imposing measures intended to prevent court. It also requires states to cooperate with
births within the group, and taking group any civil proceedings against accused torturers.
members' children away from them and giving
them to members of another group. Each state is obliged to provide training to law
enforcement and military on torture prevention,
It declares genocide itself, conspiracy or keep its interrogation methods under review, and
incitement to commit genocide, attempts to promptly investigate any allegations that its
commit or complicity in the commission of officials have committed torture in the course of
genocide all to be illegal. Individuals are to be their official duties. It must ensure that individuals
held responsible for these acts whether they were who allege that someone has committed torture
acting in their official capacities or as private against them are permitted to make and official
individuals. Signatories to the convention are complaint and have it investigated, and, if the
bound to enact appropriate legislation to make the complaint is proven, receive compensation,
acts named in Article 3 illegal under their national including full medical treatment and payments to
law and provide appropriate penalties for survivors if the victim dies as a result of torture. It
violators. forbids states to admit into evidence during a trial
any confession or statement made during or as a
People suspected of acts of genocide may be tried result of torture. It also forbids activities which do
by a national tribunal in the territory where the not rise to the level of torture, but which
acts were committed or by a properly constituted constitute cruel or degrading treatment.
international tribunal whose jurisdiction is
recognized by the state or states involved. For The second part of the Convention establishes the
purposes of extradition, an allegation of genocide Committee Against Torture, and sets out the rules
is not to be considered a political crime, and on its membership and activities.
states are bound to extradite suspects in
accordance with national laws and treaties. Any The Convention was passed and opened for
state party to the Convention may also call upon ratification in February, 1985. At that time twenty
the United Nations to act to prevent or punish acts nations signed, and five more signed within the
of genocide. month. At present sixty five nations have ratified
the Convention against torture and sixteen more
The remainder of the Convention specifies have signed but not yet ratified it.
procedures for resolving disputes between nations
about whether a specific act or acts constitute(s) Convention on Elimination of Discrimination
genocide, and gives procedures for ratification of Against Women
the convention. This convention bans discrimination against
women. The copy of the Convention on Women
Convention against Torture presently accessible through this page is a fully-
This convention bans torture under all indexed HTML document. A linked summary of the
circumstances and establishes the UN Committee document will be written in the next few weeks.
against Torture. In particular, it defines torture,
requires states to take effective legal and other
measures to prevent torture, declares that no
state of emergency, other external threats, nor Convention on the Rights of the Child
orders from a superior officer or authority may be This convention bans discrimination against
invoked to justify torture. It forbids countries to children and provides for special protection and
return a refugee to his country if there is reason rights appropriate to minors. The copy of the
to believe he/she will be tortured, and requires Convention on the Rights of the Child presently
host countries to consider the human rights record accessible through this page is a fully-indexed
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HTML document. A linked summary of the 3) Term of office, other qualifications and
document will be written in the next few weeks. disabilities shall be provided by law;
4) The appointment of the CHR members is NOT
subject to CA confirmation; and
5) The CHR is not of the same level as the
JURISPRUDENCE: COMELEC, CSC, or COA.
SOCIAL JUSTICE- while the pursuit of
social justice can have revolutionary
Powers:
effect, it cannot justify breaking the law.
1) INVESTIGATE all forms of human rights
(Astudillo v. Board of Directors, PHHC, 73
violations involving civil or political rights
SCRA 15).
A. Violations may be committed by public
HUMAN RIGHTS- read EPZA VS, HR, 208 officers, or by civilians or rebels.
SCRA; Simon vs. Com. on Human Rights, B. CHR cannot investigate violations of social
229 SCRA 1170- limited to violations of rights.
civil and political rights only either by C. They cannot investigate cases where no
government official or private individual. rights are violated.
D. Example: There is no right to occupy
Human Security Act- granting government land, i.e. squat thereon.
adjudicatory and prosecutorial powers to Therefore, eviction therefrom is NOT a
the CHR re violations of human rights.- human rights violation.
refer to Section 5- perform such other 2) ADOPT operational guidelines and rules of
functions and duties as may be provided procedure.
by law. 3) CITE FOR CONTEMPT for violations of its rules,
CHREA vs. CHR, November 25, 2004- in accordance with the Rules of Court.
The CHR, although admittedly a 4) PROVIDE APPROPRIATE LEGAL MEASURES for
constitutional creation is, nonetheless, not the protection of the human rights of all
included in the genus of offices persons, within the Philippines, as well as
accorded fiscal autonomy by Filipinos residing abroad, and provide for
constitutional or legislative fiat. preventive measures and legal aid services to
the underprivileged whose human rights have
People vs. Leachon, 1998- The been violated or need protection.
constitutional requirement that the A. CHR can INITIATE COURT PROCEEDINGS
eviction and demolition be in accordance on behalf of victims of human rights
with law and conducted in a just and violations.
humane manner does not mean validity or B. They can RECOMMEND THE
legality of the demolition or eviction is PROSECUTION of human rights violators,
hinged on the existence of resettlement but it cannot itself prosecute these cases.
area designated or earmarked by the C. BUT: The CHR CANNOT ISSUE
government. RESTRAINING ORDERS OR INJUNCTIONS
against alleged human rights violators.
The Commission on Human Rights These must be obtained from the regular
courts.
The Commission on Human Rights is an 5) EXERCISE VISITORIAL POWERS over jails,
independent office created by the Constitution of prisons and other detention facilities.
the Philippines, with the primary function of 6) ESTABLISH CONTINUING PROGRAMS FOR
investigating all forms of human rights violations RESEARCH, education and information in
involving civil and political rights in the order to enhance respect for the primacy of
Philippines. human rights.
7) RECOMMEND TO CONGRESS EFFECTIVE
Composition: MEASURES to promote human rights and to
1) Chairman; and provide compensation to victims of human
2) 4 members rights violations or their families.
8) MONITOR COMPLIANCE BY THE GOVERNMENT
Qualifications: with international treaty obligations on human
1) Natural-born citizens of the Philippines; rights.
2) Majority of the Commission must be members 9) GRANT IMMUNITY FROM PROSECUTION to
of the Philippine Bar; any person whose testimony or whose
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possession of documents or other evidence is humane conditions of work, and a living wage.
necessary or convenient to determine the They shall also participate in policy and decision-
truth in any CHR investigation. making processes affecting their rights and
10) REQUEST ASSISTANCE from any department, benefits as may be provided by law. The State
bureau, office, or agency in the performance shall promote the principle of shared responsibility
of its functions. between workers and employers and the
11) APPOINT ITS OFFICERS and employees in preferential use of voluntary modes in settling
accordance with law. disputes, including conciliation, and shall enforce
12) Perform such OTHER FUNCTIONS AND DUTIES their mutual compliance therewith to foster
as may be provided for by law. industrial peace. The State shall regulate the
relations between workers and employers,
At present: President Benigno Aquino III have recognizing the right of labor to its just share in
called former Akbayan Party-list representative the fruits of production and the right of
Etta Rosales to head the commission. Despite to enterprises to reasonable returns on investments,
resistance from some sectors, she is appointed as and to expansion and growth.
chairperson of the human rights.
Women
The Commission originated from the Presidential SECTION 14. The State shall protect working
Committee on Human Rights established in 1986 women by providing safe and healthful working
by President Corazon Aquino, which was chaired conditions, taking into account their maternal
by former Senator Jose Diokno and former functions, and such facilities and opportunities
Supreme Court Associate Justice J.B.L. Reyes. A that will enhance their welfare and enable them to
separate Commission on Human Rights was realize their full potential in the service of the
established upon the promulgation of the 1987 nation.
Constitution. ARTICLE II
Indigenous People
Cariño v. Commission on Human Rights, 204 SECTION 22. The State recognizes and promotes
SCRA 483 (1991) - The Supreme Court of the the rights of indigenous cultural communities
Philippines declared that the Commission did not within the framework of national unity and
possess the power of adjudication, and development.
emphasized that its functions were primarily ARTICLE XV
investigatory. Children
SECTION 3. The State shall defend the right of
ARTICLE XIII (Social Justice and Human children to assistance, including proper care and
Rights) nutrition, and special protection from all forms of
SECTION 1. The Congress shall give highest neglect, abuse, cruelty, exploitation and other
priority to the enactment of measures that protect conditions prejudicial to their development.
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by ARTICLE XIV – EDUCATION, SCIENCE AND
equitably diffusing wealth and political power for TECHNOLOGY, ARTS, CULTURE, AND SPORTS
the common good. To this end, the State shall
regulate the acquisition, ownership, use, and Education
disposition of property and its increments.
SECTION 2. The promotion of social justice shall Goals of the State:
include the commitment to create economic The State shall promote and protect:
opportunities based on freedom of initiative and 1) The right to quality education at all levels;
self-reliance. 2) The right to affordable and accessible
education; and
Labor 3) Education that is relevant to the needs of
SECTION 3. The State shall afford full protection people and society.
to labor, local and overseas, organized and
unorganized, and promote full employment and Right to Education and Academic Freedom
equality of employment opportunities for all. It The right to education must be read in conjunction
shall guarantee the rights of all workers to self- with the academic freedom of schools to require
organizations, and peaceful concerted activities, “fair, reasonable, and equitable admission
including the right to strike in accordance with requirements.”
law. They shall be entitled to security of tenure,
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Power to Dismiss Student A. Non-stock, non-profit educational
1) Schools have the power to dismiss students, institutions:
after due process, for disciplinary reasons. 1) All revenues and assets actually,
2) Acts committed outside the school may also directly and exclusively (ADE) used
be a ground for disciplinary action if: for educational purposes are exempt
a) It involves violations of school policies from taxes and duties.
connected to school-sponsored activities; 2) This is self-executory.
or B. Proprietary educational institutions,
b) The misconduct affects the student’s including cooperative:
status, or the good name or reputation of 1) Entitled to exemptions as may be
the school. provided by law, including restrictions
on dividends and re-investment
Regulation of Right to Education 2) Requires an enabling statute
The right to education in particular fields may be 3) Grants, endowments, donations and
regulated by the State in the exercise of its police contributions actually, directly and
power, e.g. the State may limit the right to enter exclusively used for educational
medical school by requiring the applicants to take purposes are exempt from taxes,
the NMAT. subject to conditions prescribed by
law.
Free Education
1) The State shall maintain a system of free
education in: III. Academic Freedom
a) Elementary level; and A. Educational Institutions
b) High school level. Schools have the freedom to determine:
2) Elementary education is compulsory for all 1) Who may teach;,
children of school age. However, this is a 2) What may be taught;,
moral right rather than a legal compulsion. 3) How it shall be taught;, and
4) Who may be admitted to study.
B. Faculty members
Educational Institutions 1) Full freedom in research and in the
I. Filipinization publication of the results, subject to
A. Ownership: the adequate performance of their
1) Filipino citizens,; or other academic duties.
2) Corporations incorporated in RP and 2) Freedom in the classroom in
60% Filipino-owned. discussing their subjects, but they
EXCEPT: Schools established by should be careful not to introduce into
religious groups and missions boards. their teaching controversial matter
3) Congress may increase Filipino equity which has no relation to their
requirements in ALL educational subjects.
institutions. 3) When faculty members speak or write
B. Control and Administration: in their capacity as citizens, then they
1) Must be vested in Filipino citizens are free from institutional censorship
2) Refers to line positions, such as or discipline.
President, Dean, Principal, and C. Students
Trustees They have the right to enjoy in school the
3) Faculty members may be foreigners. guarantees of the Bill of Rights.
C. Student Population: D. Limitations
1) GENERAL RULE: Cannot establish 1) Dominant police power of the State
school exclusively for aliens. Aliens 2) State interest of the community
can only comprise up to 1/3 of total E. Budgetary Priority:
enrollment. 1) Education must be assigned the
2) EXCEPTIONS: Schools established for highest budgetary priority.
foreign diplomatic personnel and their 2) BUT: This command is not absolute.
dependents, and unless otherwise Congress is free to determine what
provided for by law for other foreign should be given budgetary priority in
temporary residents. order to enable it to respond to the
imperatives of national interest and
II. Tax Exemptions
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for the attainment of other state (4) Encourage non-formal, informal, and
policies or objectives. indigenous learning systems, as well as self-
learning, independent, and out-of-school study
programs particularly those that respond to
Religious Education in Public Schools: community needs; and
Religion may be taught in public schools subject
to the following requisites: (5) Provide adult citizens, the disabled, and out-
1) Express written option by parents and of-school youth with training in civics, vocational
guardians; efficiency, and other skills.
2) Taught within regular class hours;
3) Instructors are designated and approved Section 3. (1) All educational institutions shall
by the proper religious authorities; and include the study of the Constitution as part of the
4) WITHOUT ADDITIONAL COST TO THE curricula.
GOVERNMENT.
(2) They shall inculcate patriotism and
Section 6. Language nationalism, foster lover of humanity, respect for
human rights, appreciation of the role of national
heroes in the historical development of the
1) National language: Filipino country, teach the rights and duties of citizenship,
2) Official Languages: Filipino and, unless strengthen ethical and spiritual values, develop
otherwise provided by law, English. moral character and personal discipline,
3) Regional languages are auxiliary to the official encourage critical and creative thinking, broaden
languages. scientific and technological knowledge, and
4) Spanish and Arabic are promoted only on an promote vocational efficiency.
optional and voluntary basis.
(3) At the option expressed in writing by the
parents or guardians, religion shall be allowed to
1. Academic Freedom be taught to their children or wards in public
ARTICLE XIV elementary and high schools within the regular
EDUCATION, SCIENCE AND TECHNOLOGY, class hours by instructors designated or approved
ARTS, CULTURE AND SPORTS by the religious authorities of the religion to which
(1987 Philippine Constitution) the children or wards belong, without additional
Education cost to the Government.
Section 1. The State shall protect and promote Section 4.(1) The State recognizes the
the right of all citizens to quality education at all complementary roles of public and private
levels and shall take appropriate steps to make institutions in the educational system and shall
such education accessible to all. exercise reasonable supervision and regulation of
Section 2. The State shall: all educational institutions.
(1) Establish, maintain, and support a complete, (2) Educational institutions, other than those
adequate, and integrated system of education established by religious groups and mission
relevant to the needs of the people and society; boards, shall be owned solely by citizens of the
Philippines or corporations or associations at least
(2) Establish and maintain, a system of free public sixty per centum of the capital of which is owned
education in the elementary and high school by such citizens. The Congress may, however,
levels. Without limiting the natural rights of require increased Filipino equity participation in all
parents to rear their children, elementary educational institutions.
education is compulsory for all children of school
age; The control and administration of educational
institutions shall be vested in citizens of the
(3) Establish and maintain a system of scholarship Philippines.
grants, student loan programs, subsidies, and
other incentives which shall be available to No educational institution shall be established
deserving students in both public and private exclusively for aliens and no group of aliens shall
schools, especially to the underprivileged; comprise more than one-third of the enrollment in
any school. The provisions of this subsection shall
not apply to schools established for foreign
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diplomatic personnel and their dependents and,
unless otherwise provided by law, for other Section 7. For purposes of communication and
foreign temporary residents. instruction, the official languages of the
Philippines are Filipino and, until otherwise
(3) All revenues and assets of non-stock, non- provided by law, English.
profit educational institutions used actually,
directly, and exclusively for educational purposes The regional languages are the auxiliary official
shall be exempt from taxes and duties. Upon the languages in the regions and shall serve as
dissolution or cessation of the corporate existence auxiliary media of instruction therein.
of such institutions, their assets shall be disposed
of in the manner provided by law. Spanish and Arabic shall be promoted on a
voluntary and optional basis.
Proprietary educational institutions, including
those cooperatively owned, may likewise be Section 8. This Constitution shall be promulgated
entitled to such exemptions subject to the in Filipino and English and shall be translated into
limitations provided by law including restrictions major regional languages, Arabic, and Spanish.
on dividends and provisions for reinvestment.
Section 9. The Congress shall establish a national
(4) Subject to conditions prescribed by law, all language commission composed of
grants, endowments, donations, or contributions representatives of various regions and disciplines
used actually, directly, and exclusively for which shall undertake, coordinate, and promote
educational purposes shall be exempt from tax. researches for the development, propagation, and
preservation of Filipino and other languages.
Section 5. (1) the State shall take into account
regional and sectoral needs and conditions and Science and Technology
shall encourage local planning in the development Section 10. Science and technology are essential
of educational policies and programs. for national development and progress. The State
shall give priority to research and development,
(2) Academic freedom shall be enjoyed in all invention, innovation, and their utilization; and to
institutions of higher learning. science and technology education, training, and
services. It shall support indigenous, appropriate,
(3) Every citizen has a right to select a profession and self- reliant scientific and technological
or course of study, subject to fair, reasonable, and capabilities, and their application to the country’s
equitable admission and academic requirements. productive systems and national life.
(4) The State shall enhance the right of teachers Section 11. The Congress may provide for
to professional advancement. Non-teaching incentives, including tax deductions, to encourage
academic and non-academic personnel shall enjoy private participation in programs of basic and
the protection of the State. applied scientific research. Scholarships, grants-
in-aid, or other forms of incentives shall be
(5) The State shall assign the highest budgetary provided to deserving science students,
priority to education and ensure that teaching will researchers, scientists, inventors, technologists,
attract and retain its rightful share of the best and specially gifted citizens.
available talents through adequate remuneration
and other means of job satisfaction and Section 12. The State shall regulate the transfer
fulfillment. and promote the adaptation of technology from all
sources for the national benefit. It shall encourage
Language the widest participation of private groups, local
Section 6. The national language of the Philippines governments, and community-based
is Filipino. As it evolves, it shall be further organizations in the generation and utilization of
developed and enriched on the basis of existing science and technology.
Philippine and other languages.
Section 13. The State shall protect and secure the
Subject to provisions of law and as the Congress exclusive rights of scientists, inventors, artists,
may deem appropriate, the Government shall take and other gifted citizens to their intellectual
steps to initiate and sustain the use of Filipino as property and creations, particularly when
a medium of official communication and as beneficial to the people, for such period as may be
language of instruction in the educational system. provided by law.
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exercising its freedom to choose who may
Arts and Culture teach or who may continue to teach its
Section 14. The State shall foster the faculty (UP, et al. vs. CSC, April 3, 2001).
preservation, enrichment, and dynamic evolution
Morales vs. UP Board of Regents,
of a Filipino national culture based on the principle
December 13, 2004- As enunciated by
of unity in diversity in a climate of free artistic and
this Court in the case of University of San
intellectual expression.
Carlos v. Court of Appeals, the discretion
of schools of learning to formulate rules
Section 15. Arts and letters shall enjoy the
and guidelines in the granting of honors
patronage of the State. The State shall conserve,
for purposes of graduation forms part of
promote, and popularize the nation’s historical
academic freedom. And such discretion
and cultural heritage and resources, as well as
may not be disturbed much less controlled
artistic creations.
by the courts, unless there is grave abuse
of discretion in its exercise. Therefore,
Section 16. All the country’s artistic and historic
absent any showing of grave abuse of
wealth constitutes the cultural treasure of the
discretion, the courts may not disturb the
nation and shall be under the protection of the
University’s decision not to confer honors
State which may regulate its disposition.
to petitioner.
Section 17. The State shall recognize, respect, Lacuesta vs. Ateneo, December 9,
and protect the rights of indigenous cultural 2005- Consistent with academic freedom
communities to preserve and develop their and constitutional autonomy, an
cultures, traditions, and institutions. It shall institution of higher learning has the
consider these rights in the formulation of national prerogative to provide standards for its
plans and policies. teachers and determine whether these
standards have been met. At the end of
Section 18. (1) The State shall ensure equal the probation period, the decision to re-
access to cultural opportunities through the hire an employee on probation, belongs to
educational system, public or private cultural the university as the employer alone.
entities, scholarships, grants and other incentives,
and community cultural centers, and other public UP vs. CSC, April 3, 2001- the
venues. University has the academic freedom to
determine for itself on academic grounds
(2) The State shall encourage and support who may teach, what may be taught, how
researches and studies on the arts and culture. it shall be taught, and who may be
admitted to study.” Clearly, this freedom
Sports encompasses the autonomy to choose
Section 19. (1) The State shall promote physical who should teach and, concomitant
education and encourage sports programs, league therewith, who should be retained in its
competitions, and amateur sports, including rolls of professors and other academic
training for international competitions, to foster personnel. This Court declared in Ateneo
self-discipline, teamwork, and excellence for the de Manila University v. Capulong: “As
development of a healthy and alert citizenry. corporate entities, educational institutions
of higher learning are inherently endowed
(2) All educational institutions shall undertake with the right to establish their policies,
regular sports activities throughout the country in academic and otherwise, unhampered by
cooperation with athletic clubs and other sectors. external controls or pressure.”
JURISPRUDENCE:
ACADEMIC FREEDOM- from standpoint ARTICLE XVI –
of the educational institution and the GENERAL PROVISIONS
members of the academe. The Supreme
Court sustained the primacy of academic
freedom over Civil service rules on AWOL, Section 1-2. Symbols of Nationality
stressing when UP opted to retain private
petitioner and even promoted him
despite his absence, the University was 1) FLAG
Red, white, and blue.
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With a sun and 3 stars a) The contract must be entered into
The design may be charged by by the proper officer and within the
constitutional amendment. scope of his authority.
b) UNLESS: The contract is merely
2) Congress may, by law, adopt a new: incidental to the performance of a
(a) NAME FOR THE COUNTRY, governmental function.
(b) NATIONAL ANTHEM, or 2) The State enters into an operation that is
(c) NATIONAL SEAL. essentially a business operation.
a) UNLESS: The operation is incidental
NOTE: Law will take effect upon ratification by the to the performance of a
people in a NATIONAL REFERENDUM. governmental function (e.g. arrastre
services)
Section 3. State Immunity b) Thus, when the State conduct
business operations through a
Suability of State GOCC, the latter can generally be
1) The State cannot be sued without its consent. sued, even if its charter contains no
2) When considered a suit against the State express “sue or be used” clause.
a) The Republic is sued by name;
b) Suits against an un-incorporated
government agency; NOTE: difference between:
c) Suit is against a government official, i. Jure Gestionis – by right of
but is such that ultimate liability economic or business relation =
shall devolve on the government may be sued
i. When a public officer acts in ii. Jure Imperil – by the sovereign
bad faith, or beyond the scope power, in the exercise of
of his authority, he can be sovereign functions. = no
held personally liable for implied consent; cannot be
damages. sued.
ii. BUT: If he acted pursuant to
his official duties, without 3) Suit against an incorporated government
malice, negligence, or bad agency.
faith, he is not personally a) This is because they generally
liable, and the suit is really conduct proprietary business
one against the State. operations and have charters which
3) This rule applies not only in favor of the grant them a separate juridical
Philippines but also in favor of foreign states. personality.
4) The rule likewise prohibits a person from filing 4) The State files suit against a private party.
for interpleader, with the State as one of the UNLESS: The suit is entered into
defendants being compelled to interplead. only to resist a claim.
Consent to be sued
A. Express consent: Garnishment of government funds:
1) The law expressly grants the authority to 1. GENERAL RULE: Not allowed. Whether the
sue the State or any of its agencies. money is deposited by way of general or
2) Examples: a) A law creating a special deposit, they remain government
government body expressly providing funds and are not subject to garnishment.
that such body “may sue 2. EXCEPTION: Where a law or ordinance has
or be sued” been enacted appropriating a specific amount
b) Art. 2180 of the Civil to pay a valid government obligation, then the
Code, which creates money can be garnished.
liability against the State
when it acts through a
special agent. Consent to be sued is not equivalent to
B. Implied consent: consent to liability:
1) The State enters into a private contract. 1) The Fact that the State consented to being
sued does not mean that the State will
ultimately be held liable.
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2) Even if the case is decided against the State,
an award cannot be satisfied by writs 2) REVISION: An examination of the entire
execution or garnishment against public Constitution to determine how and what
funds. Reasons: No money shall be paid out of extent it should be altered. A revision implies
the public treasury unless pursuant to an substantive change, affecting the Constitution
appropriation made by law. as whole.
ARTICLE XVII –
AMENDMENTS OR REVISIONS Proposal of amendments:
Amendments may be proposed by:
A. Congress, acting as a constituent assembly,
DEFINITIONS: by a ¾ vote of all its members.
1) The power of Congress to propose
1) AMENDMENT: an alteration of one or a few amendments is NOT part of its ordinary
specific provisions of the Constitution. Its legislative power.
main purpose is to improve specific provisions 2) The only reason Congress can exercise
of the Constitution. The changes brought such power is that the Constitution has
about by amendments will not affect the other granted it such power.
provisions of the Constitution.
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B. Constitutional Convention: determine whether the assembly has acted in
1) How a Constitutional Convention may be accordance with the Constitution.
called 3) Examples of judiciable issues:
a) Congress may call a ConCon by a 2/3 a) Whether a proposal was approved by the
vote of all its members; or required number of votes in Congress
b) By a majority vote of all its members, (acting as a constituent assembly).
Congress may submit to the electorate b) Whether the approved proposals were
the question of whether to call a properly submitted to the people for
ConCon or not. ratification.
2) Choice of which constituent assembly
(either Congress or ConCon) should
initiate amendments and revisions is left Proposal of Revisions
to the discretion of Congress. In other A. By Congress, upon a vote of 3/4 of its
words, it is a political question. members
3) BUT: The manner of calling a ConCon is B. By a constitutional convention
subject to judicial review, because the
Constitution has provided for voting Ratification
requirements. 1. Amendments and revisions proposed by
4) If Congress, acting as a constituent Congress and/or by a ConCon:
assembly, calls for a ConCon but does not 1) Valid when ratified by a MAJORITY of
provide the details for the calling of such votes cast in a plebiscite.
ConCon, Congress – exercising its 2) Plebiscite is held not earlier than 60
ordinary legislative power – may supply days not later than 90 days from the
such details. But in so doing, Congress (as approval of such amendments or
legislature should not transgress the revisions.
resolution of Congress acting as a 2. Amendments proposed by the people via
constituent assembly. initiative:
5) Congress, as a constituent assembly and Valid when ratified by a MAJORITY of
the ConCon has no power to appropriate votes cast in plebiscite.
money for their expenses. Money may be 1) Plebiscite is held not earlier than 60
spent from the treasury only pursuant to days nor later than 90 days after the
an appropriation made by law. certification by COMELEC of the
petition’s sufficiency.
C. People’s Initiative 3. Requisites of a valid ratification:
1) Petition to propose such amendments A. Held in a plebiscite conducted under
must be signed be at least 12% of ALL the election law;
registered voters. B. Supervised by the COMELEC; and
2) Every legislative district represented by at C. Where only franchised voters
least 3% of the registered voters therein. (registered) voters take part.
3) Limitation: It cannot be exercised more 4. Issues regarding ratification:
often than once every 5 years. 1) The Constitutions does not require
4) Requires implementing legislation: The that amendments and revisions be
Supreme Court held that RA 6735, the submitted to the people in a special
initiative and Referendum law is election. Thus, they may be submitted
insufficient. Therefore, amendment by for ratification simultaneously with a
initiative and referendum must still await general election.
a valid law. (Defensor- Santiago v. 2) The determination of the conditions
COMELEC, G.R. 127325) under which proposed
amendments/revisions are submitted
NOTE: to the people falls within the
1) While the substance of the proposals made by legislative sphere. That Congress
each type of constituent assembly is not could have done better does not make
subject to judicial review, the manner of the the steps taken unconstitutional.
proposals are made is subject to judicial 3) All the proposed
review. amendments/revisions made by the
2) Since these constituent assemblies owe their constituent assembles must be
existence to the Constitution, the courts may submitted for ratification in one single
plebiscite. There cannot be a piece-
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meal ratification of Relation to Sexual Orientation and Gender
amendments/revisions. Identity), which petitioner declares to reflect
4) Presidential proclamation is NOT binding principles of international law.
required for effectivity of
amendments/revisions, UNLESS the At this time, we are not prepared to declare that
proposed amendments/revisions so these Yogyakarta Principles contain norms that
provide. are obligatory on the Philippines. There are
declarations and obligations outlined in said
Principles which are not reflective of the current
state of international law, and do not find basis in
any of the sources of international law
enumerated under Article 38(1) of the Statute of
ARTICLE XVIII – the International Court of Justice. Petitioner has
TRANSITORY PROVISIONS not undertaken any objective and rigorous
analysis of these alleged principles of international
Effectivity of the 1987 Constitution law to ascertain their true status. Ang Ladlad
1. The 1987 Constitution took effect immediately LGBT Party vs. Commission on Elections, G.R. No.
upon its ratification. 190582, April 8, 2010.
2. According to the SC, this took place on
February 2, 1987, which was the day the
people cast their votes ratifying the
Constitution. Distinction between a subject and object of
international law
A SUBJECT is an entity that has rights
Military bases agreements and responsibilities under international law; it can
A) Renewals of military bases agreements be a proper party in transactions involving the
must be through a strict treaty. application of international law among members
B) Ratification of the agreement in a of the international community. Subject include:
plebiscite is necessary only when states, colonies, the Holy See, the United Nations.
Congress so requires.
C) Section 25 of Article XVIII allows possible An OBJECT is a person or thing in respect of
local deployment of only AMERICAN which rights are held and obligations assumed by
forces. the subject; it is not directly governed by the
rules of international law; its rights are received,
and its responsibilities imposed, indirectly through
PUBLIC INTERNATIONAL LAW the instrumentality of an international agency.
Traditionally, individuals have been considered
merely as objects, not primarily through treaties,
I. THE NATURE OF INTERNATIONAL LAW a certain degree of international personality to
individuals (e.g. individuals are granted by treaty
INTERNATIONAL LAW is that branch of public the power to sue before the European Court of
law which regulates the relations of States and of Human Rights).
other entities which have been granted
international personality (e.g. the UN). Modern
international law after World War II, however, Divisions of International Law
now deals not only with the relations between 1) LAWS OF PEACE – governs the normal
states, but also their relations with persons, relations of States
natural or juridical (e.g. int’l human rights law). 2) LAWS OF WAR –rules during periods of
hostility
3) LAWS OF NEUTRALITY – rules governing
States not involved in the hostilities
Although this Court stands willing to assume the
responsibility of giving effect to the Philippines’
international law obligations, the blanket
invocation of international law is not the panacea II. SOURCES OF INTERNATIONAL LAW
for all social ills. We refer now to the petitioner’s
invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In
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Article 38 of the Statute of the that is acceptable so long as they correctly
International Court of Justice (ICJ) is interpret and apply int’l law.
considered the authoritative enumeration of the NOTE: Even decisions of national courts,
sources of International Law. when applying int’l law, are acceptable. Ex.
Principles on diplomatic immunity have been
A) PRIMARY SOURCES developed by judgments of national courts.
1. TREATY / INTERNATIONAL CONVENTION
Generally, a treaty only binds the parties. 2) TEACHINGS OF PUBLICISTS – The world
However, treaties may be considered a direct ‘Publicist’ means ‘learned writer.’ Learned
source of int’l law when concluded by a sizable writings, like judicial decisions, can be
no. of States, and is reflective of the will of evidence of customary law, and can also play
the family of nations (in which case, a treaty a subsidiary role in developing new rules of
is evidence of custom). law.
2 Requisites:
2. CUSTOM – General and consistent practice of 1. Fair and impartial representation of
states followed by them from a sense of legal law.
obligation. 2 Elements: 2. By an acknowledged authority in the
1. STATE PRACTICE – a consistent field.
and uniform external conduct of
States. Generally, both what states
say and what they do so by int’l law,
and not through mere courtesy or III. TREATIES
comity, or because of humanitarian
considerations. 1) DEFINITION (Art. 2, Vienna Convention
2. OPINO JURIS – State practice on the Law of Treaties)
must be accompanied with the A. TREATY is: 1) an international agreement
conviction that the State is legally 2) conduct between States
obligated to do so by int’l law, and 3) in written form
not through mere courtesy or 4) governed by international
comity, or because of humanitarian law
considerations. 5) embodied in a single
instrument or in 2 or
more related
Q: What is ‘INSTANT’ CUSTOM? instruments.
A. Customary law may emerge even within a
relatively short passage of time, if within that
period, State Practice has been uniform and Q: If not in writing, is it still considered a
extensive. It is not the product of constant treaty?
and prolonged practice but comes about as a A: Yes, Oral agreements between States are
spontaneous activity of a great number of recognized as treaties under customary
states supporting a specific line of action (ex. International law (but are extremely rare
Law on the Continental Shelf, aftermath of nowadays).
attack on WTC: coalition of forces arose
supportive of the US). Thus, int’l law does
NOT always require a long period of time to
elapse before conduct is considered
customary.
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MATTER issues Transitory 2) justifies the non-performance of a treaty
2. Changes in effectivity obligation if the subsequent condition in
National Policy b. Adjustment of relation to which the parties contracted
3. Involve details carrying has changed so materially and
international out-well unexpectedly as to create a situation in
arrangements established which the exaction of performance would
of a permanent national policies be unreasonable.
character and traditions 3) Rebus sic stantibus may not be invoked as
c. Arrangements a ground for terminating or withdrawing
of temporary from a treaty:
nature a. if the treaty established a boundary
d. b. if the ‘fundamental change’ is the
Implementation result of a breach by the party
of treaties, invoking it of an obligation under
the treaty or of any other obligation
statutes, well-
owed to any other party to the
established treaty.
policies
C. JUS COGENS – a rule which has the status of
RATIF. While the Do not need to be a preemptory (i.e., absolute,
BY Constitution ratified by the uncompromising) norm of international law
SENATE vest the power Senate where no derogation may be permitted.
to NEGOTIATE Elements:
treaties with the 1. a norm accepted and recognized
President, such 2. by the int’l community of States as a
must be whole
RATIFIED by 3. as a norm from which no derogation is
the 2/3 of the permitted.
Senate to 4. it can only be modified by a subsequent
become valid norm having the same character.
and effective a. If a treaty, at the time of its
(Art.7, Sec 21) conclusion, conflicts with jus cogens,
it is
void.
Examples:
(1) prohibition against the unlawful use of
3) PRINCIPAL RULES OF INTERNATIONAL force;
LAW IN CONNECTION WITH TREATIES (2) prohibition against piracy, genocide, and
A. PACTA SUNT SERVANDA – Every treaty in slavery
force is binding upon the parties and must be
performed by them in good faith. 4) STEPS IN TREATY-MAKING PROCESS:
- this applies despite hardships on the 1. Negotiation;
contracting State such as conflicts 2. Signature;
between the treaty and its 3. Ratification;
Constitution. NOTE: A state can avoid 4. Exchange of Instruments of Ratification;
PERFORMANCE if the treaty obligation and
collides with its Constitution, but it 5. Registration with UN.
CANNOT escape whatever LIABILITY it
may incur as a result of such non-
performance. RESERVATIONS
This is a unilateral statement made by a State
when signing, ratifying, accepting, approving or
B. REBUS SIC STANTIBUS – A party is not acceding to a treaty, whereby it purports to
bound to perform a treaty if there has been a exclude or to modify the legal effects of certain
fundamental change of circumstances since provisions of the treaty in their application to that
the treaty was concluded. State.
1) it has been described as the exception to
the rule of pacta sunt servanda.
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Invalidity of treaties: Grounds 1) DUALISM – domestic and international law
1) Error of fact are independent of each other, as they
2) Fraud regulate different subject matters. IL
3) Corruption regulates the relations of sovereign states,
4) Duress while municipal law regulates the internal
5) Jus cogens affairs of a state. Thus, no conflict can ever
arise between international and municipal law,
because the two systems are mutually
5) TERMINATION OF TREATY exclusive. If IL is applied within a state, it is
1. Expiration of term; only because it has been expressly
2. Accomplishment of purpose; incorporated by municipal law. The Philippines
3. Impossibility of performance; is a dualist state.
4. Loss of subject matter; 2) MONISM – Monists have a unitary concept of
5. Novation; law and see all law – including both
6. Desistance of parties; international and municipal law – as an
7. Extinction of one of parties, if treaty is integral part of the same system. If conflict
bipartite; exists between international law and
8. Occurrence of vital change of municipal law, international law must prevail.
circumstances; Germany is a monist state.
9. Outbreak of war; and
10. Voidance of treaty.
Effect of International Law on Municipal Law
Succession to treaties: the “Clean State” rule 2 VIEWS:
When one state ceases to exist and is succeeded 1) DOCTINE OF INCORPORATION – rules of
by another on the same territory, the international law form part of the law of the
Newly independent state is not bound to maintain land and no further legislative action is
in force, or become a party to, any treaty needed to make such rules applicable in the
although it may agree to be bound by treaties domestic sphere.
made by its predecessor. a) Such recognized in art.2, sec.2, as the
Philippines “adopts the generally
accepted principles of international
IV. INTERNATIONAL LAW AND MUNICIPAL law as part of the law of the land.”
LAW b) Rules of international law are given,
equal standing with, but are not
Q: When there is conflict between superior to, national legislative
International law and domestic law, which is enactments. Thus, the Constitution, as
to prevail? the highest law of the land, may
A: invalidate a treaty in conflict with it.
1. International rule: Before an international (Secretary of Justice v. Hon. Lantion
tribunal, a state may not pleads its own law as and Mark Jimenez, Jan. 18, 2000)
an excuse for failure to comply with
international law. The state must modify it 2) DOCTRINE OF TRANSFORMATION – the
laws to ensure fulfillment of its obligations generally accepted rules of int’l law are not
under the treaty, unless the constitutional per se binding upon the State must first be
violation is manifest and concerns a rule of embodied in legislation enacted by Only when
internal law of fundamental importance. so transformed will they become binding upon
2. Municipal rule: When the conflict comes the State as part of its municipal law.
before a domestic court, domestic courts are
bound to apply the local law. Should a conflict
arise between an international agreement and In case of conflict between international law
the Constitution, the treaty would not be valid and domestic law:
and operative as domestic law. It does not, 3. International rule: Before an international
however, lose its character as international tribunal, a state may not pleads its own law as
law. an excuse for failure to comply with
international law. The state must modify it
laws to ensure fulfillment of its obligations
Effect of Municipal Law in International Law under the treaty, unless the constitutional
2 THEORIES:
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violation is manifest and concerns a rule of confederation or becoming a
internal law of fundamental importance. protectorate or suzerainty.
4. Municipal rule: When the conflict comes
before a domestic court, domestic courts are
bound to apply the local law. Should a conflict C. EFFECTS OF STATE SUCCESSION
arise between an international agreement and 1. The allegiance of the inhabitants of
the Constitution, the treaty would not be valid the predecessor State is transferred to
and operative as domestic law. It does not, the successor State.
however, lose its character as international 2. The political laws of the predecessor
law. State are automatically abrogated but
the non-political laws are deemed
continued unless expressly repealed
V. SUBJECTS OF INTERNATIONAL LAW or contrary to the institutions of the
new sovereign.
3. The public property of the predecessor
STATE State is acquired by the successor
A) ELEMENTS OF A STATE: State but not the tort liability of the
A State should possess the following qualifications former.
(Art.1, Montevideo Convention): 4. Treaties entered into by the
1) a permanent population; predecessor State are not considered
2) a defined territory; binding on the successor State except
3) government; those dealing with local rights and
4) capacity to enter into relations with other duties such as servitudes and
States boundaries.
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and curvatures but excluding the developing their economic, cultural, and
internal waters in bays and gulfs. scientific relations;
ascertaining by all lawful means
b. Straight baseline method conditions and developments in
Straight lines are made to connect receiving state and reporting thereon to
appropriate points on the coast government of sending state; and
without departing radically from in some cases, representing friendly
its general direction. The waters governments at their request.
inside the lines are considered
internal. d. Diplomatic and Consular immunity
1. personal inviolability
2. Some modes of acquisition: 2. immunity of embassy and legation
a. Cession buildings
It is a derivative mode of 3. right of protection
acquisition by which territory 4. extraterritoriality – exemption from local
belonging to one state is jurisdiction on the basis of international
transferred to the sovereignty of custom
another state in accordance with 5. exemption from taxes and personal
an agreement between them. services
b. Subjugation 6. inviolability of means of communication
It is a derivative mode of 7. Diplomatic bag – immune from search
acquisition by which the territory
of one state is conquered in the
course of war and thereafter
annexed and placed under PRINCIPLES OF JURISDICTION OF STATES
sovereignty of the conquering i. Territoriality principle: The fundamental
state. source of jurisdiction is sovereignty over
c. Prescription territory. A state has absolute, though not
It is a derivative mode of necessarily exclusive, power to prescribe,
acquisition by which territory adjudicate, and enforce rules for conduct
belonging to one state is within its territory.
transferred to the sovereignty of ii. Nationality principle: Every state has
another state by reason of the jurisdiction over its nationals even when
adverse and uninterrupted those nationals are outside the state.
possession thereof by the latter iii. Protective principle: A state may
for a sufficiently long period of exercise jurisdiction over conduct outside
time. its territory that threatens its security, as
long as that conduct is generally
F) RIGHT OF LEGATION recognized as criminal by the states in the
international community.
a. It is the right of a state to maintain diplomatic iv. Universality principle: Recognizes that
relations with other states. certain offenses are also heinous and so
b. Types: widely condemned that any state, if it
1. Active – right to send diplomatic captures the offender, may prosecute and
representatives punish that person on behalf of the
2. Passive – right to receive diplomatic offender or victim or where the crime was
representatives committed.
c. Functions of Diplomatic Missions:
representing sending state in receiving 5. Passive personality principle: A state may
state; apply law – particularly criminal law – to an
protecting in receiving state interests of act committed outside its territory by a person
sending state and its nationals; not its national where the victim of the act
negotiating with government of was its national.
receiving state; This principle has not been ordinarily
accepted for ordinary torts or crimes, but
promoting friendly relations between
is increasingly accepted as applied to
sending and receiving states and
terrorist and other organized attacks on a
state’s national by reason of their
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nationality, or to assassination of a state’s individuals have no standing to bring a
diplomatic representatives of other claim before international law).
officials.
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3. Reprisals may be used only when other v. Hearing (provide counsel de officio if
means of redress (e.g. protests and warnings) necessary)
have failed. vi. Appeal to CA within 10 days whose
4. SEVERANCE (OF DIPLOMATIC decision shall be final and executory;
RELATIONS) – One country cuts of all vii. Decision forwarded to DFA through
diplomatic ties with another, as a sign of the DOJ;
protest/hostility. viii. Individual placed at the disposal of the
5. NAVAL BLOCKADE – Blocking the ports of a authorities of requesting state-costs
country with naval forces. and expenses to be shouldered by
6. EMBARGO – Preventing the ingress to and requesting state.
egress from a country of commercial
transactions with another state. Q: The Philippines entered into an
extradition treaty with another country
which provided that it would apply crimes
committed before its effectivity. The country
asked the Philippines to extradite X for a
VIII. SPECIAL TOPICS crime committed before the effectivity of the
treaty. X argued the extradition would
violate the prohibition against ex post facto
A. EXTRADITION laws. Is he right?
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3. TRUSTEESHIP COUNCIL – organ charged
Dissent (original decision): Under the with administration of int’l Trusteeship
extradition treaty, the prospective extradites may System.
be provisionally arrested pending the submission 4. INTERNATIONAL COURT OF JUSTICE –
of the request. Because of this possible judicial organ of the UN.
consequence, the evaluation process is akin to an
administrative agency conducting an investigate
proceeding, and partakes of the nature of a
criminal investigation. Thus, the basic due process
rights of notice and hearing are indispensable. C. USE OF FORCE
Assuming that the extradition treaty does
not allow for such rights, the Constitutional right 1. Under Article 2(4) of the UN Charter, all
to procedural due process must override treaty members States are bound to refrain from the
obligations. When there is a conflict between treat or use of force against the territorial
international law obligations and the Constitution, integrity or political independence of a State.
the Constitution must prevail. Recognized exceptions:
a) self-defense
b) military action taken or authorized by
the UN or competent Regional
B. UNITED NATIONS ORGANS organizations (such as NATO). –
collective self-defense
1. GENERAL ASSEMBLY 2. Requirement of proportionality in the use of
Composition: All members of the UN (as force
of 1996: 185 member States) 3. Aggression – as used in international law
Function: The GA may discuss any means the use of armed force by a state
question or matter within the scope of the Charter against the sovereignty, territorial integrity or
or relating to the powers and functions of any political independence of another state, or in
other organ. It is also vested with jurisdiction over army other manner inconsistent with the
matters concerning internal machinery and charter of the UN.
operations of the UN. Types:
2. SECURITY COUNCIL direct
Composition: 15 members: indirect-ideological aggression
a) 5 Permanent Members (China,
France, UK, US, Russia)
b) 10 non-permanent: elected for 2
year terms by the General D. CALVO CLAUSE
Assembly.
Function: the maintenance of international 1. It is a provision inserted in contracts, in which
peace and security. the foreigner agrees in advance not to seek
the diplomatic protection of his national State.
2. In general, International Courts have
Q: What is the “double veto”? disregarded such clauses, as the right to
A: In all non-procedural matters, each permanent diplomatic protection is a right which belongs
member is given a ‘veto’ – a Security Council to a State, and waiver from an individual does
decision is ineffective if even one permanent not bind his State.
member votes against it. The veto does not
ordinarily apply to Procedural matters. However, a
permanent member may exercise a ‘double veto’
when it vetoes any attempt to treat a question as E. STATE IMMUNITY (JURE IMPERI and JURE
procedural, and then proceed to veto any draft GESTIONIS)
resolution dealing with that question. a. Originally, under customary international law
the doctrine of absolute state immunity
1. SECRETARIAT – CHIEF ADMINISTRATIVE applied, covering all areas of State activity
ORGAN OF THE UN and recognizing only very narrows exceptions.
2. ECONOMIC AND SOCIAL COUNCIL – organ b. Nowadays, the rule is to adopt a doctrine of
charged with promoting social progress and qualified immunity – that is, immunity is
better standards of life in larger freedom granted to foreign States only in respect of
their governmental acts (acts jure imperil),
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not in respect of their commercial acts (acts c. existence of any fact which, if established,
jure gestionis). would constitute breach of international
obligation; and
d. nature or extent or reparation to be made
F. DIPLOMATIC IMMUNITY for breach of international obligation.
1. Diplomatic immunity is a principle of 2) STARE DICISIS does not apply to the ICJ.
customary international law that grants Under the statute of the Court, previous
immunity to diplomatic representatives, in decisions have no binding force; in practice,
order to uphold their dignity as however, the Court always takes past
representatives of their respective states and decisions into account.
to allow them free and unhampered exercise
of their functions. In the Philippines, immunity Q: What does it mean to decide a case EX
is claimed by request of the foreign state for AEQUO ET BONO?
endorsement by the Department of Foreign A: Only States may be parties in contentious
Affairs. The determination by the executive proceedings before the ICJ (art 34, ICJ Statute).
department is considered a political question
that is conclusive upon Philippine Courts.
I. OUTER SPACE
1. The exploration and use of outer space,
G. INTERNATIONAL CONTRACTS including the moon and other celestial bodies,
2. Usually, agreements between States and shall be carried out for the benefit and in the
foreign corporations contain stipulations as to interest of all countries, irrespective of their
which national legal system governs the degree of economic or scientific development,
contract. Occasionally, however, in case of and shall be the province of all mankind.
powerful multinational companies, such 2. Outer space, including the moon and other
contracts are placed not under any single celestial bodies, shall be free from exploration
system of municipal law, but under and use by all States without discrimination of
international law, general principles of law, or any kind, on a basis of equality and in
the provisions of the contrast itself. accordance with international law, and there
3. The reason for concluding these so-called shall be free access to all areas of celestial
internationalized contracts is to establish a bodies.
balance between the parties and prevent the 3. Outer space, including the moon and other
State party from evading its obligations under celestial bodies, is not subject to national
the contract by changing its own internal law. appropriation by claim of sovereignty, by
This is mostly secured by an arbitration clause means of use or occupation, or by any other
referring disputes under the agreement to an means.
international body. 4. Astronauts are envoys of mankind in outer
space, and states party to the Treaty on the
Exploration and Use of Outer Space shall
render to them all possible assistance in the
G. THE INTERNATIONAL COURT OF JUSTICE event of accident, distress, or emergency
landing on the territory of another State party
1) “Optional Clause” of the ICJ: or on the high seas. When astronauts make
As a rule, the ICJ can operate only on the such a landing, they shall be safely and
basis of the consent of States to jurisdiction. Such promptly returned to the State of registry on
may take the form of a special agreement their space vehicle.
between States to submit an existing dispute
before the Court (i.e. compromise).
However, under the ‘optional clause’ J. WAR
(art.36(2), ICJ Statute), a State may declare in a. armed contention between public forces of
advance that they recognize the jurisdiction of states or other belligerent communities
the Court as compulsory ipso facto and without implying employment o force between parties
need of special agreement, in relation to any of force between parties for purpose of
other State accepting the same obligation, in all imposing their respective demands upon each
legal disputes concerning: other.
a. the interpretation of a treaty; b. BASIC PRINCIPLE OF WAR:
b. any question of international law 1. Principle of Military Necessity –
belligerents may employ any amount and
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kind of force to compel complete What are the rights guaranteed by the
submission or enemy with least possible Covenant?
loss of lives, time, and money. 1. Right of self-determination (Art. 1)
2. Principle of Humanity – prohibits use of 2. Right to work and accompanying rights
any measure that is not absolutely thereto (Arts.6, 7, 8)
necessary for purposes of war; and 3. Right to Social Security and other social
3. principle of Chivalry – basis of such rules rights (Arts. 9& 10)
as those that require belligerents to give 4. Adequate standard of living (Art. 11 (1))
proper warning before launching a including: (a) right to adequate housing
bombardment or prohibit use of perfidy (Art. 11 (1)); (b) right to adequate
(treachery) in conduct of hostilities. clothing (Art. 11 (1)
c. RIGHTS OF PRISONERS OF WAR 5. Right to health (Art. 12)
a. to be treated humanely; 6. Right to education (Arts. 13 & 14)
b. not subject to torture; 7. Cultural rights (Art. 15)
c. allowed to communicate with their families
d. receive food, clothing religious articles, What are the States-parties’ obligations
medicine; under the Covenant?
e. bare minimum of information; 1. Specific Obligations under Article 2
f. keep personal belongings a. To take steps it the maximum
g. proper burial; available resources, towards the
h. group according to nationality; progressive realization of the
i. establishment of an informed bureau; rights in the covenant;
j. repatriation for sick and wounded (1949 b. Non-discrimination- states
Geneva Convention) guarantee the exercise of the
rights without discrimination (Art.
2 [2]).
2. Three General duties/obligations of states:
LAW ON HUMAN RIGHTS Just like the ICCPR and other human
rights conventions, ESCR imposes three
UNIVERSAL DECLARATION OF HUMAN different types of obligations:
RIGHTS a. To respect- requires to refrain from
interfering with enjoyment of rights.
What is the Universal Declaration of Human Thus, there is violation if it engages in
Rights (UDHR)? forced eviction;
The UDHR is the basic international statement of b. To protect- requires states to prevent
the inalienable and inviolable rights of human violations by third parties. Thus, there
beings. It is the first comprehensive international is violation if it engages in forced
rights instrument. eviction;
c. To fulfill- requires states to take
What are the rights covered by the UDHR? appropriate measures (legislative,
The UDHR proclaims two broad category of rights: judicial etc.) towards the full
(a) civil and political rights: and (b) economic, realization of the rights. Thus, the
social, and cultural rights. states’ failure to provide essential
primary health care to the needy
Are these rights subject to limitations? amounts to a violation.
Yes, the exercise of these rights and freedoms
may be subject to certain limitations, which must
be determined by law, only for the purpose of International Covenant on Civil and Political
securing due recognition and respect for the rights Rights (ICCPR)
of others and of the meeting the just
requirements of morality, public order and the What are some of the civil and political rights
general welfare in a democratic society. Rights recognized under the ICCPR?
may not be exercised contrary to the purposes Right of the peoples to self-
and principles of the UN. (Article 29 of the UDHR) determination (art. 1)
Right to an effective remedy (art. 2)
International Covenant on Economic, Social,
and Cultural Rights (ICESCR)
Equal rights of men and women in the
enjoyment of civil and political rights/
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non-discrimination on the basis of sex Even in times of national emergency, no
(Art.3) derogation can be made from the following:
Right to life (art.6) 1. Right to life (art. 6)
Freedom from torture or cruel, inhuman 2. Freedom from torture or cruel, inhuman
or degrading punishment (art. 7) or degrading punishment (art.7)
3. Freedom from slavery (art. 8)
Freedom from slavery (art.8)
4. Freedom from imprisonment for failure to
Right to liberty and security of person fulfill a contractual obligation (art.11)
(art.9) 5. Freedom from ex post facts laws (art. 15)
Right to be treated with humanity in 6. Right of recognition everywhere as a
cases of deprivation of liberty (art.10) person before the law (art. 16)
Freedom from imprisonment for failure 7. Freedom of thought, conscience, and
to fulfill a contractual obligation (art.11) religion (art.18) (Art. 4(2), ICCPR)
Freedom of movement and the right to
travel (art.12)
Right to a fair, impartial and public trial Convention on the Elimination of All Forms of
(art.14) Discrimination against Women (CEDAW)
Freedom from ex post fact laws (art.15)
What does discrimination against women
Right of recognition everywhere as a
cover?
person before the law (art.16) Art. 1 defines Discrimination against
Right to privacy 9art.17) Women as “any distinction, exclusion, or
Freedom of thought, conscience, and restriction made of the basis of sex which
religion (art.18) has the effect or purpose or impairing or
Freedom of expression (art.19) nullifying the recognition, enjoyment or
Freedom of peaceful assembly (art.21) exercise by women, irrespective or their
Freedom of association (art.22) marital status, on a basis of equality of
men and women, of human rights and
Right to marry and found a family
fundamental freedoms in the political,
(art.23)
economic, social cultural, civil, or any
Right of a child to protection, a name other field.
and nationality (art.24)
Right to participation, suffrage, and
access to public service (art.25) What are the State Obligations of State-
Right to equal protection before the law Parties under CEDAW?
(art.260 Arts. 2-16 enumerate the Obligations of
Right of minorities to enjoy their own State-Parties
culture, to profess and practice their I. Legal Measures (de jure)
religion and to use their own language. a. embody principle of equality of
men and women in the national
constitution and other
When can a State Party derogate from the appropriate laws (art. 2[a])
ICCPR? b. adopt appropriate legislative and
A state party to the ICCPR may derogate from the other measures prohibiting all
treaty “in time of public emergency which discrimination against women,
threatens the life of the nation and the existence which includes legislation to
of which is officially proclaimed, the States Parties modify, abolish or repeal
to the present Covenant to the extent strictly discriminatory laws, regulations,
required by the exigencies of the situation, customs, and practices (art.2
provided that such measures are not inconsistent [b]. [f] and [g])
with their obligations under international law and c. adopt appropriate legislation to
do not involve discrimination solely on the ground ensure full development and
of race, colour, sex, language, religion of social advancement of women, for the
origin.” (Art. 4(1), ICCPR) purpose of guaranteeing
exercise and enjoyment of
Human Rights on the basis of
What are the Non-derogable rights under the equality with men (art.3)
ICCPR?
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d. adopt appropriate legislation to - promotion of child-care facilities;
suppress all forms of traffic in special protection to pregnant women
women exploitation and as regards type of work.
prostitution of women. (Art. 6) c. equal access with men as regards health
II. Administrative Measures 9de facto) services, right to services in connection
a. refrain from any act or practice with pregnancy, adequate nutrition during
which is discriminatory against pregnancy and lactation and confinement
women (includes public and the post natal period (art. 12)
authorities and institutions) - right to enter into marriage, to freely
(art.2 [d[) choose a spouse and to enter into
b. adopt temporary special marriage only with free and full
measures to address de fact consent;
inequality of men and women - equal rights and responsibilities as
(art. 4[1]) parents, to freely decide number of
c. modify the social and cultural children and access to information and
patterns of conduct of men and education to be able to exercise these
women to eliminate practices rights.
based on the idea or inferiority.
Superiority of either men or 1. Concepts
women (art.5 [a]) Definition of Public Internation law-defined as the
d. educate family as to proper rules, based on the natural moral law and on
social function of maternity and common consent, which governethe relations of
common responsibility in rearing sovereign states and other intnernational persons.
children (art.5 [b]) It is a body of legal principles, norms and other
international persons and governs their conduct
affecting the interests of the internation
What are some Civil and Political Rights community as a whole.
under CEDAW, which are unique to women? 1) Natural Moral law principles
Guarantee of civil and political rights 2) A set of generally agreed upon norms of
a. right to acquire, change, and retain conduct
nationality- not prejudiced by marriage to 3) Certain authoritative processes for
a foreigner (art. 9[1]) enacting and changing aforementioned
b. equal rights with men as regard norms.
nationality of children (art.9 [2]) Basis of PIL:
c. equal rights with men as regards freedom 1) Natural Law School-natural moral law
of movement and choice of 2) Positivist-Common consent of states
domicile/residence (art. 15[4]) 3) Eclectic-premised on both the natural
moral law and on common consent.
What are some Economic, Social and Cultural Competent authority-refers to equal states which
Rights under CEDAW which are unique to observe expressly or implicitly common standards
women? of conduct in their mutual relations.
Guarantee of Economic, Social and Cultural rights
a. equal rights with men as regards Transnational law-is an emerging body based
education (Art. 10) upon universally accepted general principles of
- elimination of stereotyped concept of law supplemented by that portion of municipal law
roles of man and women through co- of disputants applicable in an attempt to resolve
education, revision of textbooks, conflict.
programmes and teaching methods;
reduction of female student drop-outs; Jus Civile
and access to information on health Foundation of legal systems of Europe and other
and well-being of families, including parts of the world, contributing to many concepts
advice of family planning. and principle now embodied in internation law.
b. equal rights with men as regards
employment (art. 11) a. Obligations ErgaOmnes
- prohibition against dismissal due to Erga omnes (in relation to everyone) is frequently
marriage, pregnancy or maternity used in legal terminology describing obligations or
leave; rights toward all. For instance a property right is
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an erga omnes right, and therefore enforceable the parties agree thereto. Through 2007, ICJ has
against anybody infringing that right. An erga never decided such a case. It reads as Article
omnes right (a statutory right) can here be 38(2) This provision shall not prejudice the power
distinguished from a right based on contract, of the Court to decide a case ex aequo et bono, if
which is only enforceable against the contracting the parties agree thereto.[1]
party. Article 33 of the United Nations Commission on
In international law it has been used as a legal International Trade Law's Arbitration Rules
term describing obligations owed by states (1976)[2] provides that the arbitrators shall
towards the community of states as a whole. An consider only the applicable law, unless the
erga omnes obligation exists because of the arbitral agreement allows the arbitrators to
universal and undeniable interest in the consider ex aequo et bono, or amiable
perpetuation of critical rights (and the prevention compositeur, instead.[3] This rule is also
of their breach). Consequently, any state has the expressed in many national and subnational
right to complain of a breach. Examples of erga arbitration laws, for example s. 22 of the
omnes norms include piracy, genocide, slavery, Commercial Arbitration Act 1984 (NSW).
torture, and racial discrimination. The concept was On the other hand, the constituent treaty of the
recognized in the International Court of Justice's Eritrea-Ethiopia Claims Commission explicitly
decision in the Barcelona Traction case [(Belgium forbids this body to interpret ex aequo et bono.
v Spain) (Second Phase) ICJ Rep 1970 3 at
paragraph 33]: 2. International and National Law
""… an essential distinction should be drawn PIL distinguished from municipal law
between the obligations of a State towards the
international community as a whole, and those Sanctions PIL
arising vis-à-vis another State in the field of Mun. Law
diplomatic protection. By their very nature, the a) Reprisal a) Civil execution
former are the concern of all States. In view of b) War
the importance of the rights involved, all States b) Criminal Punishment
can be held to have a legal interest in their Responsibility Collective
protection; they are obligations erga omnes. [at Individual
34] Such obligations derive, for example, in Centralized/decentralized Relatively decentralized
contemporary international law, from the Relatively a centralized coercive order
outlawing of acts of aggression, and of genocide, Enforcement comparatively harder
as also from the principles and rules concerning comparatively easier
the basic rights of the human person, including
protection from slavery and racial discrimination. 3. Sources
Some of the corresponding rights of protection Direct Sources:
have entered into the body of general 1) International conventions
international law . . . others are conferred by 2) International customers
international instruments of a universal or quasi- Indirect/secondary sources
universal character." 1) Decisions of Intl. Tribunals
2) Writings and teachings of the most
b. Jus Cogens qualified publicists
For a norm to be considered as such, it must be Hans Kelsen: PIL has its source principally in the
accepted and ecognised by the international decision of an internation tribunal, said decision is
community of states as a whole. a valid norm of IL only if the tribunal has been
properly constituted by an international treaty;
c. Concept of AeguoEt Bono the treaty itself is valid if the maxim of pacta sun
Ex aequo et bono (Latin for "according to the right servanda is adhered to, and the reason for such
and good" or "from equity and conscience") is a maxim is because of Internationa Custom. In
legal term of art. In the context of arbitration, it short, the ultimate SOURCE is the international
refers to the power of the arbitrators to dispense custom which gives rise to pacta sunt servanda,
with consideration of the law and consider solely which in turn justifies the existence of
what they consider to be fair and equitable in the international conventions; treaties make it
case at hand. possible the formation of internation courts,
Article 38(2) of the Statute of the International precise prupose being is to lay down decisions
Court of Justice provides that the court may upon the matter. Decisions rendered cosntitue the
decide cases ex aequo et bono, but only where sources of international law.
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prosecution of persons responsible for serious
The generally accepted principles of international violations of international humanitarian law
law: committed in the territory of the former
1) acquisition of territory by prescription Yugoslavia since 1991: this involves transferring
2) doctrine of res judicata to the Tribunal a person who was initially being
3) rule that an accuser state cannot, at the tried by a national court, in application of the
same time, be the judge principle of the primacy of the Tribunal over
4) the principle of “prior exhaustion of national courts for the prosecution of crimes for
national remedies before resort to be had which it is competent.
in international tribunals surrender as understood by the European Union
5) the rule that all persons guilty of waging within the framework of the European arrest
aggressive wars should be held warrant, which is intended to abolish formal
accountable extradition procedures by accepting the principle
of mutual recognition of judicial decisions.
Theories regarding the incorporation of IL into the Extradition presupposes that the individual is to
municipal law of the RP” be prosecuted: if he is merely wanted to give
1) Transformation doctrine evidence as a witness, the matter must be settled
2) Adoption doctrine by a letter rogatory and not by extradition.
3) Harmonization doctrine
4) Restricted automatic doctrine 2. Sources of extradition law
In addition to international courtesy based on the
4. Subjects principle of reciprocity, there are two legal
a. States sources: international law and national legislation.
b. International Organizations
c. Individuals The content of national extradition laws varies
considerably: they may for example lay down the
5. Diplomatic and Consular Law procedural rules, or define the conditions to be
incorporated in future extradition treaties.
6. Treaties
There are various types of international legal text.
7. Nationality and Statelessness They may be bilateral extradition treaties (it is
worth noting that in 1990, the United Nations
8. Treatment of Aliens drew up a model extradition treaty providing a
a. Extradition framework to assist those Member States wishing
(1) Fundamental Principles to negotiate and conclude bilateral extradition
agreements); or multilateral extradition
Definition conventions, such as the European Convention on
Extradition, the Commonwealth Scheme for the
Extradition is the process by which one State (the Rendition of Fugitive Offenders, the Arab League
requested State) surrenders an individual found Extradition Convention, the Interamerican
on its territory to another State (the requesting Extradition Convention and the Economic
State) where he is wanted either to stand trial for Community of West African States Extradition
an offence he is alleged to have committed, or to Convention, or again, international conventions
serve a penal sentence already pronounced which, without being extradition conventions as
against him. such, incorporate provisions relating to extradition
law.
A distinction should be drawn between extradition
and:
3. Principles of extradition law
deportation, which takes place for reasons (often
administrative) which are specific to the deporting Since there are numerous provisions which deal
State; with extradition, each case has to be considered
refusing a person entry into a country at the individually and according to the applicable
border; provisions. However, there are six basic principles
repatriation, which does not come within the which are common to most extradition laws.
scope of a penal procedure;
transfer, which is a notion deriving from the 3.1 Influence of nationality on extradition
Statute of the International Tribunal set up for the
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Many States apply the principle of not extraditing judgment, only the penalty imposed by the
their own nationals. In such cases, a State may decision for
undertake to place its nationals on trial under the which extradition was granted may be enforced.
conditions laid down in its own laws, in application The principle of speciality means that an individual
of the principle 'Aut tradere, aut judicare' (either may only be tried for the offences cited in the
extradite or judge). extradition request, on the basis of the definition
of the offences applicable at that time. If the
3.2 Nature of the extraditable offence requesting State discovers, subsequent to
extradition, that offences had been committed
It is an accepted principle in international prior to that date and those offences should give
extradition law that political offences may not give rise to prosecution, it may ask the requested
rise to extradition. Since no precise definition of a State for authorization to prosecute the extradited
political offence exists in international law, it is up person for the new offences (this constitutes a
to the requested country to determine whether a request for extension of extradition).
given offence is political. In the case of more
complex offences (offences which are ordinary law 3.6 Capital punishment
crimes by nature but inspired by political
motives), the current tendency is to restrict the If the requested State does not apply the death
definition of a political offence and to allow penalty to its own nationals who are to stand trial,
extradition (see, for example, the European or if it does not carry out the death penalty even
Convention on the suppression of terrorism, which though it is one of the penalties that may be
includes a list of offences that, for extradition applicable, the requested State may refuse
purposes, are not to be considered as political extradition if the person whose extradition is
offences). In addition, whereas earlier treaties requested is likely to be sentenced to death in the
contained lists of extraditable offences, more requesting State. However, extradition may be
recent treaties define extraditable offences in granted if the requesting State provides sufficient
general terms, according to their gravity and to assurance that the death penalty will not be
the penalty which may be incurred (for example, carried out.
minimum duration of a prison sentence).
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'reasonable and probable cause' (this is the Human rights law does not deal with the conduct
system in common-law countries). of hostilities.
(2) Procedure
(3) Distinguished from Deportation The duty to implement IHL and human rights lies
1) The following are the differences between first and foremost with States. Humanitarian law
extradition and deportation: obliges States to take practical and legal
EXTRADITION is effected for the benefit of the measures, such as enacting penal legislation and
state to which the person being extradited will be disseminating IHL. Similarly, States are bound by
surrendered because he is a fugitive criminal in human rights law to accord national law with
that state, while DEPORTATION is effected for the international obligations. IHL provides for several
protection of the State expelling an alien because specific mechanisms that help its implementation.
his presence is not conducive to the public good. Notably, States are required to ensure respect
EXTRADITION is effected on the basis of an also by other States. Provision is also made for an
extradition treaty or upon the request of another enquiry procedure, a Protecting Power
state, while DEPORTATION is the unilateral act of mechanism, and the International Fact-Finding
the state expelling an alien. Commission. In addition, the ICRC is given a key
In EXTRADITION, the alien will be surrendered to role in ensuring respect for the humanitarian
the state asking for his extradition, while in rules.
DEPORTATION the undesirable alien may be sent
to any state willing to accept him. Human rights implementing mechanisms are
9. International Human Rights Law complex and, contrary to IHL, include regional
a. Universal Declaration of Human Rights systems. Supervisory bodies, such as the UN
b. International Covenant on Civil and Political Commission on Human Rights, are either based
Rights (ICCPR) on the UN Charter or provided for in specific
c. International Covenant on Economic, Social and treaties (for example the Human Rights
Cultural Rights (ICESCR) Committee, which is rooted in the International
10. International Humanitarian Law (IHL) and Covenant on Civil and Political Rights of 1966).
Neutrality The Human Rights Commission and its
a. Categories of Armed Conflicts Subcommissions have developed a mechanism of
(1) International Armed Conflicts special rapporteurs and working groups, whose
(2) Internal or Non-International Armed Conflict task is to monitor and report on human rights
(3) War of National Liberation situations either by country or by topic. Six of the
b. Core International Obligations of States in IHL main human rights treaties also provide for the
International humanitarian law and international establishment of committees (e.g. the Human
human rights law (hereafter referred to as human Rights Committee) of independent experts
rights) are complementary. Both strive to protect charged with monitoring their implementation.
the lives, health and dignity of individuals, albeit Certain regional treaties (European and American)
from a different angle. also establish human rights courts. The Office of
the UN High Commissioner for Human Rights
Humanitarian law applies in situations of armed (UNHCHR) plays a key part in the overall
conflict (see Q7), whereas human rights, or at protection and promotion of human rights. Its role
least some of them, protect the individual at all is to enhance the effectiveness of the UN human
times, in war and peace alike. However, some rights machinery and to build up national, regional
human rights treaties permit governments to and international capacity to promote and protect
derogate from certain rights in situations of public human rights and to disseminate human rights
emergency. No derogations are permitted under texts and information.
IHL because it was
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the Convention on the Prevention and Punishment International law is a combination of rules and
of the Crime of Genocide of 1948 customs governing the relations between states in
different fields,
the International Covenant on Civil and Political such as the law of the sea, space law, trade law,
Rights of 19 66 o the International Covenant on territorial boundaries of states, and diplomatic
Social and Economic Rights of 1966 relations.
the Convention on the Elimination of All Forms of The sources of international law are treaty law
Discrimination against Women of 1981 and international customary law.
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expected of them by international jurisprudence. international community as a whole, and
States' actions are manifested through their consequently all states in the world have an
official statements obligation to take action
and actual actions. against the perpetrators of such crimes.
International customary law is based on prolonged For example, states should search for and
and consistent actions by most states in the prosecute the perpetrators. This obligation follows
world. When states from what is called
act constintently in their international and internal the principle of universal jurisdiction - all national
relations during a long period of time these courts in the world can put perpetrators of erga
actions/practices omnes
become accepted by the international community crimes to trial.
as applicable law.
(1) Treatment of Civilians
Examples of international customary law are the Persons hors de combat and those not taking part
right to life, the prohibition of torture, and that in hostilities shall be protected and treated
civilians should not be the object of an attack. humanely.
It is forbidden to kill or injure an enemy who
surrenders or who is hors de combat.
A number of rules of international law are part of The wounded and sick shall be cared for and
the Latin concept of "jus cogens", also referred to protected by the party to the conflict which has
as them in its power. The emblem of the "Red
peremptory norms, and meaning "the compelling Cross," or of the "Red Crescent," shall be required
law". Jus cogens status is the highest status that to be respected as the sign of protection.
can be attained Captured combatants and civilians must be
by any principles or norms in international law. protected against acts of violence and reprisals.
They shall have the right to correspond with their
Jus cogens status is given only to the most families and to receive relief.
fundamental rules of international law, which are No one shall be subjected to torture, corporal
recognized and punishment or cruel or degrading treatment.
accepted by the international community as rules Parties to a conflict and members of their armed
from which no exceptions can be made (article 53 forces do not have an unlimited choice of methods
of the Vienna and means of warfare.
Convention on the Law of Treaties). Parties to a conflict shall at all times distinguish
between the civilian population and combatants.
All states are obliged to follow jus cogens rules at Attacks shall be directed solely against military
all times. Crimes which have attained the status objectives.
of jus cogens
are particularly outrageous crimes, which are seen (2) Prisoners of War
as affecting the international community as a UN Secretary-General's Bulletin on Applicability of
whole, such as IHL to UN Forces
genocide, slavery and torture. 6 August 1999
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1.1 The fundamental principles and rules of military objectives. Military operations shall be
international humanitarian law set out in the directed only against combatants and military
present bulletin are applicable to United Nations objectives. Attacks on civilians or civilian objects
forces when in situations of armed conflict they are prohibited.
are actively engaged therein as combatants, to 5.2 Civilians shall enjoy the protection afforded by
the extent and for the duration of their this section, unless and for such time as they take
engagement. They are accordingly applicable in a direct part in hostilities.
enforcement actions, or in peacekeeping
operations when the use of force is permitted in 5.3 The United Nations force shall take all feasible
self-defence. precautions to avoid, and in any event to
1.2 The promulgation of this bulletin does not minimize, incidental loss of civilian life, injury to
affect the protected status of members of civilians or damage to civilian property.
peacekeeping operations under the 1994
Convention on the Safety of United Nations and 5.4 In its area of operation, the United Nations
Associated Personnel or their status as non- force shall avoid, to the extent feasible, locating
combatants, as long as they are entitled to the military objectives within or near densely
protection given to civilians under the populated areas, and take all necessary
international law of armed conflict. precautions to protect the civilian population,
individual civilians and civilian objects against the
Section 2 dangers resulting from military operations.
Application of national law Military installations and equipment of
peacekeeping operations, as such, shall not be
The present provisions do not constitute an considered military objectives.
exhaustive list of principles and rules of
international humanitarian law binding upon 5.5 The United Nations force is prohibited from
military personnel, and do not prejudice the launching operations of a nature likely to strike
application thereof, nor do they replace the military objectives and civilians in an
national laws by which military personnel remain indiscriminate manner, as well as operations that
bound throughout the operation. may be expected to cause incidental loss of life
Section 3 among the civilian population or damage to
Status-of-forces agreement civilian objects that would be excessive in relation
to the concrete and direct military advantage
In the status-of-forces agreement concluded anticipated.
between the United Nations and a State in whose
territory a United Nations force is deployed, the 5.6 The United Nations force shall not engage in
United Nations undertakes to ensure that the reprisals against civilians or civilian objects.
force shall conduct its operations with full respect
for the principles and rules of the general Section 6
conventions applicable to the conduct of military Means and methods of combat
personnel. The United Nations also undertakes to
ensure that members of the military personnel of 6.1 The right of the United Nations force to choose
the force are fully acquainted with the principles methods and means of combat is not unlimited.
and rules of those international instruments. The 6.2 The United Nations force shall respect the
obligation to respect the said principles and rules rules prohibiting or restricting the use of certain
is applicable to United Nations forces even in the weapons and methods of combat under the
absence of a status-of-forces agreement. relevant instruments of international humanitarian
Section 4 law. These include, in particular, the prohibition
Violations of international humanitarian law on the use of asphyxiating, poisonous or other
gases and biological methods of warfare; bullets
In case of violations of international humanitarian which explode, expand or flatten easily in the
law, members of the military personnel of a human body; and certain explosive projectiles.
United Nations force are subject to prosecution in The use of certain conventional weapons, such as
their national courts. non-detectable fragments, anti-personnel mines,
Section 5 booby traps and incendiary weapons, is
Protection of the civilian population prohibited.
5.1 The United Nations force shall make a clear
distinction at all times between civilians and 6.3 The United Nations force is prohibited from
combatants and between civilian objects and employing methods of warfare which may cause
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superfluous injury or unnecessary suffering, or 7.2 The following acts against any of the persons
which are intended, or may be expected to cause, mentioned in section 7.1 are prohibited at any
widespread, long-term and severe damage to the time and in any place: violence to life or physical
natural environment. integrity; murder as well as cruel treatment such
as torture, mutilation or any form of corporal
6.4 The United Nations force is prohibited from punishment; collective punishment; reprisals; the
using weapons or methods of combat of a nature taking of hostages; rape; enforced prostitution;
to cause unnecessary suffering. any form of sexual assault and humiliation and
degrading treatment; enslavement; and pillage.
6.5 It is forbidden to order that there shall be no
survivors. 7.3 Women shall be especially protected against
any attack, in particular against rape, enforced
6.6 The United Nations force is prohibited from prostitution or any other form of indecent assault.
attacking monuments of art, architecture or
history, archaeological sites, works of art, places 7.4 Children shall be the object of special respect
of worship and museums and libraries which and shall be protected against any form of
constitute the cultural or spiritual heritage of indecent assault.
peoples. In its area of operation, the United
Nations force shall not use such cultural property Section 8
or their immediate surroundings for purposes Treatment of detained persons
which might expose them to destruction or
damage. Theft, pillage, misappropriation and any The United Nations force shall treat with humanity
act of vandalism directed against cultural property and respect for their dignity detained members of
is strictly prohibited. the armed forces and other persons who no longer
take part in military operations by reason of
6.7 The United Nations force is prohibited from detention. Without prejudice to their legal status,
attacking, destroying, removing or rendering they shall be treated in accordance with the
useless objects indispensable to the survival of relevant provisions of the Third Geneva
the civilian population, such as foodstuff, crops, Convention of 1949, as may be applicable to them
livestock and drinking-water installations and mutatis mutandis. In particular:
supplies. (a) Their capture and detention shall be notified
without delay to the party on which they depend
6.8 The United Nations force shall not make and to the Central Tracing Agency of the
installations containing dangerous forces, namely International Committee of the Red Cross (ICRC),
dams, dikes and nuclear electrical generating in particular in order to inform their families;
stations, the object of military operations if such
operations may cause the release of dangerous (b) They shall be held in secure and safe premises
forces and consequent severe losses among the which provide all possible safeguards of hygiene
civilian population. and health, and shall not be detained in areas
exposed to the dangers of the combat zone;
6.9 The United Nations force shall not engage in
reprisals against objects and installations (c) They shall be entitled to receive food and
protected under this section. clothing, hygiene and medical attention;
7.1 Persons not, or no longer, taking part in (e) Women whose liberty has been restricted shall
military operations, including civilians, members be held in quarters separated from men's
of armed forces who have laid down their quarters, and shall be under the immediate
weapons and persons placed hors de combat by supervision of women;
reason of sickness, wounds or detention, shall, in
all circumstances, be treated humanely and (f) In cases where children who have not attained
without any adverse distinction based on race, the age of sixteen years take a direct part in
sex, religious convictions or any other ground. hostilities and are arrested, detained or interned
They shall be accorded full respect for their by the United Nations force, they shall continue to
person, honour and religious and other benefit from special protection. In particular, they
convictions. shall be held in quarters separate from the
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quarters of adults, except when accommodated 9.8 The United Nations force shall respect the
with their families; right of the families to know about the fate of
their sick, wounded and deceased relatives. To
(g) ICRC's right to visit prisoners and detained this end, the force shall facilitate the work of the
persons shall be respected and guaranteed. ICRC Central Tracing Agency.
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through waters in an expeditious and continuous mineral and non-living material in the subsoil of
manner, which is not “prejudicial to the peace, its continental shelf, to the exclusion of others.
good order or the security” of the coastal state. Coastal states also have exclusive control over
Fishing, polluting, weapons practice, and spying living resources "attached" to the continental
are not “innocent", and submarines and other shelf, but not to creatures living in the water
underwater vehicles are required to navigate on column beyond the exclusive economic zone.
the surface and to show their flag. Nations can Aside from its provisions defining ocean
also temporarily suspend innocent passage in boundaries, the convention establishes general
specific areas of their territorial seas, if doing so is obligations for safeguarding the marine
essential for the protection of its security. environment and protecting freedom of scientific
Archipelagic waters research on the high seas, and also creates an
The convention set the definition of Archipelagic innovative legal regime for controlling mineral
States in Part IV, which also defines how the state resource exploitation in deep seabed areas
can draw its territorial borders. A baseline is beyond national jurisdiction, through an
drawn between the outermost points of the International Seabed Authority and the Common
outermost islands, subject to these points being heritage of mankind principle.[4]
sufficiently close to one another. All waters inside Landlocked states are given a right of access to
this baseline are designated Archipelagic Waters. and from the sea, without taxation of traffic
The state has full sovereignty over these waters through transit states.
(like internal waters), but foreign vessels have
right of innocent passage through archipelagic c. Internal Waters
waters (like territorial waters). d. Territorial Sea
Contiguous zone e. Exclusive Economic Zone
Beyond the 12 nautical mile limit there was a f. Continental Shelf
further 12 nautical miles or 24 nautical miles from
the territorial sea baselines limit, the contiguous The United Nations Convention on the Law of the
zone, in which a state could continue to enforce Sea (UNCLOS), also called the Law of the Sea
laws in four specific areas: pollution, taxation, Convention or the Law of the Sea treaty, is the
customs, and immigration. international agreement that resulted from the
Exclusive economic zones (EEZs) Extends from third United Nations Conference on the Law of the
the edge of the territorial sea out to 200 nautical Sea (UNCLOS III), which took place from 1973
miles from the baseline. Within this area, the through 1982. The Law of the Sea Convention
coastal nation has sole exploitation rights over all defines the rights and responsibilities of nations in
natural resources. In casual use, the term may their use of the world's oceans, establishing
include the territorial sea and even the continental guidelines for businesses, the environment, and
shelf. The EEZs were introduced to halt the the management of marine natural resources. The
increasingly heated clashes over fishing rights, Convention, concluded in 1982, replaced four
although oil was also becoming important. The 1958 treaties. UNCLOS came into force in 1994, a
success of an offshore oil platform in the Gulf of year after Guyana became the 60th state to sign
Mexico in 1947 was soon repeated elsewhere in the treaty.[1] To date, 161 countries and the
the world, and by 1970 it was technically feasible European Community have joined in the
to operate in waters 4000 metres deep. Foreign Convention. However, it is uncertain as to what
nations have the freedom of navigation and extent the Convention codifies customary
overflight, subject to the regulation of the coastal international law.
states. Foreign states may also lay submarine While the Secretary General of the United Nations
pipes and cables. receives instruments of ratification and accession
Continental shelf and the UN provides support for meetings of
The continental shelf is defined as the natural states party to the Convention, the UN has no
prolongation of the land territory to the direct operational role in the implementation of
continental margin’s outer edge, or 200 nautical the Convention. There is, however, a role played
miles from the coastal state’s baseline, whichever by organizations such as the International
is greater. A state’s continental shelf may exceed Maritime Organization, the International Whaling
200 nautical miles until the natural prolongation Commission, and the International Seabed
ends. However, it may never exceed 350 nautical Authority (the latter being established by the UN
miles from the baseline; or it may never exceed Convention).
100 nautical miles beyond the 2,500 meter
isobath (the line connecting the depth of 2,500 (1) Extended Continental Shelf
meters). Coastal states have the right to harvest g. Tribunal of the Law of the Sea
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12. International Environment Law Agreements or treaties among different nations
are
Environmental Laws in General generally referred to as public international law.
Environmental laws are the standards that Contracts between private parties (corporations or
governments establish to manage citizens) residing in different nations are generally
naturalresources and environmental quality. The referred to as private international law. Because
broadcategories of “natural resources” and the field of international environmental law
“environmental quality” include such areas as air focuses on
and water pollution, forests and wildlife, the relations and agreements among nations, it is
hazardous waste, agricultural practices, wetlands, part of public international law.
and landuse planning. In the United States, some
of the more widely known environmental laws are Distinguishing between Hard and Soft
the Clean Air Act, the Clean Water Act, the International Law
National Environmental Policy Act, and the
Endangered Species Act. The body of A distinction is often made between hard and soft
environmental law includes not only the text of international law. Hard international law generally
these laws but also the regulations that refers to agreements or principles that are directly
implement and the judicial decisions that interpret enforceable by a national or international body.
this legislation. In general, the standards set forth Soft international law refers to agreements or
in environmental laws can apply to either private principles that are meant to influence individual
parties or the government. The Clean Air and nations to respect certain norms or incorporate
Clean Water Acts, for example, are frequently them into national law Soft international law by
used to regulate the polluting activities of private itself is not enforceable. It serves to articulate
enterprises. These laws mandate certain pollution- standards widely shared, or aspired to, by
reducing technology or limit the levels of pollution nations. Similar parallels can be found at the
for power plants and factories. The National national level. Often an official, a legislative body,
Environmental Policy Act (NEPA) applies only to or an agency will announce a new public policy or
the actions of the U.S. government. NEPA priority. In this announcement, or proclamation,
requires that the federal government undertake a there are often pledges to incorporate this new
comprehensive environmental impact assessment policy or priority into specific legal provisions.
before it can proceed with projects that are likely While the announcement itself is not enforceable
to harm the environment. Distinguishing National in court, it nonetheless can have a powerful
Law from International Law influence on the development and implementation
To understand the nature of international of specific legal provisions. Private international
environmental law, one must first understand the law generally concerns business transactions
difference between national and international law. between citizens or corporations of different
National law is law that is adopted by the countries. Because most of the rules governing
government of an individual country. In the these private transactions are enforceable in the
United States, the most common examples of courts of the concerned countries, these rules are
national usually deemed hard international law. Most of
law are federal and state legislation and judicial international environmental law, however,
decisions. Agency regulations and executive concerns general principles agreed upon among
orders would also fall within this category. nations. Although these principles sometimes
Although these national laws are adopted by an oblige countries to adopt implementing legislation,
individual country, they may have international they are not usually enforceable on their own in
impacts. A foreign manufacturer whose defective court.
product injures a person living in the United
States may be held liable for resulting damages The soft status of international environmental law,
under U.S. law. The U.S. Corrupt Practices Act and most international law, is a result of concerns
prevents a U.S. corporate executive from bribing over sovereignty. Nations are generally reluctant
a foreign government official. While these laws to surrender control over their territory, peoples,
affect international activities and non-national and affairs to external international authorities.
parties, they are generally not considered Even when nations have joined in international
international law. Rather, they are considered agreements, many of them have added
extraterritorial applications of national law. reservations to preserve their right to decline to
International law, on the other hand, concerns be bound by particular parts of the agreement.
agreements among different nations, or between The exercise of this power weakens the total
citizens or corporations of different nations. effectiveness of many international
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agreements. forbids the export of hazardous wastes to
countries that lack “adequate means to dispose of
Means of Implementing and Enforcing them.” Under the terms of the convention,
International Environmental Law signatory nations are called upon to draft their
There are forums where international own more specific national laws to implement this
environmental disputes can be adjudicated, such pledge.
as national courts, the International Court of
Justice, and international arbitration panels. Although international institutions are generally
These forums, however, generally require that the not responsible for directly implementing and
disputing parties voluntarily submit to the enforcing international environmental law, they
jurisdiction of the court or panel. Additionally, often play important monitoring, informational,
even when these forums obtain jurisdiction over and diplomatic roles. For example agendas
an international environmental dispute, they must adopted at the 1992 Convention on Environment
rely on the cooperation of national governments and Development at Rio de Janeiro created a new
to enforce rulings. For economic and political international body, the Commission on
reasons, this cooperation is often withheld. A Sustainable Development (CSD).
small number of environmental agreements have
established international institutions that can The CSD meets yearly at the United Nations in
directly impose trade sanctions (such as the New York to review and advance the
Montreal Protocol, discussed on p. 20) or have implementation of Agenda 21—an enormous and
authorized member states to impose trade complex mandate. Most global agreements, such
sanctions against violating parties (such as the as the Biodiversity Convention and the Framework
International Convention for the Regulation of Convention on Climate Change, are implemented
Whaling, discussed on p. 29). For instance, in by an annual or biennial Conference of Parties
response to Japan’s violation of the International (COP). These COPs lack the power to bring
Whaling Commission’s whaling moratorium, the enforcement actions against either governments
United States threatened to restrict Japanese or private parties. They help monitor national
fishing vessel activity in U.S. territorial waters. compliance by requiring member nations to
Japan elected to accede to the whaling submit annual reports. Through meetings and
moratorium rather than suffer any such publications, COPs also provide a forum to discuss
restrictions. and debate issues associated with the
implementation of the agreement.
The type of sanctions envisioned under the
Montreal Protocol and International Whaling There are other institutions similar in function to
Commission are procedurally very difficult to the CSDs and the COPs. The North American
impose. In general, there is no international body Commission on Environmental Cooperation
authorized to directly enforce international (NACEC), based in Montreal, Canada, monitors
environmental law. The task of direct compliance with the North American Agreement
enforcement is left to the member nations, whose on Environmental Cooperation, one of the side
governments propose and adopt implementing agreements under the North American Free Trade
policies. Agreement (NAFTA). The European
Environmental Agency, based in Copenhagen,
Sometimes the implementing national legislation Denmark, monitors the compliance of individual
is identical to the international agreement. For European countries with environmental directives
example, Canada implemented the Migratory adopted by the European Union. Although the
Birds Treaty (with the United States) by adopting CSD, COPs, NACEC, and the European
the Migratory Birds Treaty Act. Because the Environmental Agency indicate that the
language of this act is identical to language in the international community is trying to improve
treaty, the law is basically a legislative codification compliance with environmental agreements, there
of the international agreement. is still a lack of effective implementation and
enforcement. A 1992 study by the U. S. General
Other times, however, the international Accounting Office concluded that international
environmental agreement is of a general nature environmental agreements lack adequate
and national governments must draft and procedures to monitor and ensure compliance.
implement more specific laws. For instance, in Countries have become skilled in negotiating
1989 the International Convention on international environmental agreements, but they
Transboundary Movement of Hazardous Waste are much less skilled at making the agreement
was signed in Basel, Switzerland. This convention operate effectively. In the past two decades,
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states have also used economic incentives and Often, only countries may sue countries, not
trade bans to encourage compliance with individual citizens and not nongovernmental
international environmental agreements. For organizations. This has huge repercussions in that
example, the Montreal Protocol, the Framework the environmental harm must be large and
Convention on Climate Change, and the notorious for a country to even notice it. Second,
Biodiversity Convention provide economic for a country to have a stake in the outcome of
incentives in the form of technical assistance, the subject matter, some harm may have to cross
technology transfers, and money to build the the borders of the violating country into the
administrative capacity of national environmental country that is suing. Finally, even if trans-
agencies. These incentives have been of boundary harm does exist, the issue of causation,
particular value in promoting the involvement and especially in the environmental field, is often
compliance of developing countries—part of the impossible to demonstrate with any certainty. In
Rio bargain between northern (developed) and addition, in all fields of international law no
southern (developing) countries. The Global country is ever in perfect compliance with every
Environmental Facility (GEF), a new international international obligation. Moreover, some
funding institution, also provides money for countries are substantially more powerful than
training, equipment, and enforcement related to others. This may seem self-evident and
environmental protection measures. Some recent unimportant, until one considers that suing
international environmental agreements, such as another country may expose the plaintiff country
the Biodiversity Convention, have designated the to retaliatory actions. In spite of this political
GEF as their exclusive funding mechanism. reality, however, Mexico successfully challenged
Jurisdiction for Disputes: Courts, Parties, and the United States in the World Trade Organization
Enforcement Roughly speaking, jurisdiction may in the Tuna Dolphin Case, and several Asian
be defined as a court’s legal ability to hear a countries successfully challenged the United
complaint. If the subject matter of the case is not States over U.S. efforts to compel shrimp-
within the scope of a court’s jurisdiction, or if one exporting countries to harvest shrimp without
of the parties, either the one bringing the case harming turtles.
(plaintiff) or the one against whom it is brought
(defendant) is not within a court’s jurisdiction, the The enforcement issue is one where advocates for
court will not hear the dispute. This is particularly a safer environment often find themselves
relevant to international environmental law for a stymied. The entirety of international law, beyond
number of reasons. First and foremost, if a treaty the environmental field, remains largely
or convention does not specify an international unenforceable, even if a treaty or convention
forum that has subject-matter jurisdiction, often provides for specific substantive measures to be
the only place to bring a suit with respect to that taken by a country (which is not always the case,
treaty is in the member state’s domestic court since many treaties merely provide frameworks),
system. This then presents at least two additional and even if a forum for litigation or dispute
hurdles. If the member state being sued does not resolution is specified or sanctions by member
have domestic implementing legislation in place to states for noncompliance are authorized. A
hear the dispute, there will be no forum available. country cannot be forced to do what it is not
Even in the event that the domestic legislation willing to do. One can sanction the country, order
provides for suits of this nature, the judges who damages, restrict trade, or, most frequently,
decide the case are residents of the country declare noncompliance, but beyond that, if a
against which it is brought, and the resulting country will not comply, there is very little to be
potential conflicts of interest are apparent. With done. Countries usually accept or avoid
respect to parties, only nations are bound by international environmental obligations because it
treaties and conventions. In international forums, is in their economic self-interest to do so. Nations
such as the International Court of Justice, rarely take actions that may harm their domestic
countries must consent to being sued in order to economy or their international trade for altruistic
preserve their sovereignty. Thus, it is often reasons. They take these actions expecting some
impossible to sue a country. In any case, it is economic or political benefit sooner or later.
often a transnational corporation (TNC), not a
country, that has violated an international a. Principle 21 of Stockholm Declaration
agreement. It is nearly impossible to sue a Principle 21 of the Stockholm declaration clearly
country for not enforcing its laws against a TNC or states, "States have in accordance with the
for not enacting sufficient implementing Charter of the United Nations and the principles of
legislation. The final difficulty in the jurisdictional international law, the sovereign right to exploit
arena is the question of who may bring a suit. their own resources pursuant to their own
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environmental policies, and the responsibility to Earthquakes, floods, volcanoes, landslides and
ensure that activities within their jurisdiction or hurricanes can also bring tremendous destruction
control do not cause damage to the environment to human life and property. For such "acts of
of other States or of areas beyond the limits of God", liability rules do not apply. In principle,
national jurisdiction." transboundary damage should have "some
reasonably proximate casual relation to human
The practices of States can be affected conduct."
consciously by various international actions and
conventions are adopted in the hope that they Environmental damage thus poses a menace not
follow and act in the particular way stated and just to one nation but also to the environments of
may even suggest that they are legally obliged to States as a whole. "All states parties to such
do so. Principle 21 has now become a customary instruments have the responsibility to protect the
law, which generally applies to all states and not natural environment and the common areas, and
only to the parties to a particular instrument. correlative rights to see that others do so."
Principle 21 focuses on transboundary harm or
State responsibility. Some Digested Public International Law Cases
1) COMPAGNIE DE COMMERCE ET DE
NAVIGATION D’EXTREME ORIENT VS. THE
HAMBURG AMERIKA
Transboundary Damage PACKETFACHT ACTIEN GESELLSCHAFT -
Large-scale industrial, agricultural and technical -The Court held that after examining the terms
activities of one country can cause damage to the and conditions of the convention that at the
environment of another nation or simply cause outbreak of the present war, there was no such
detrimental effects to its people at large. Such general recognition of the duty of a belligerent to
damage can be caused through water, soil, and grant "days of grace" and "safe-conducts" to
air and to one or more nations or quite possibly to enemy ships in his harbors, as would sustain a
the global commons. Such transboundary damage ruling that such alleged duty was prescribed by
gives rise to the question of State responsibility any imperative and well settled rule of public
and compensation for damage caused. international law, of such binding force that it
was the duty of the master of the Sambia to rely
State responsibility and international liability for confidently upon a compliance with its terms by
injurious consequences have been two of the the French authorities in Saigon.
major issues on the agenda of the International
Law Commission. International treaties of various -It was nothing but a *pious wish* at least,
numbers have come into existence, pollution of adherence to the practice by any belligerent could
international waters, long-range air pollution, land not be demanded by virtue of any convention,
source damage to the ocean and oil pollution to tacit or express, universally recognized by the
give a few examples. Most treaties only lay down members of the society of nations; and that it
preventive methods and norms to be followed by may be expected only when the belligerent is
states and very few lay down firm rules regarding convinced that the demand for adherence to the
liability and compensation. Another challenge practice inspired by his own commercial and
posed before Nations is how State liability for political interests outweighs any advantage he
environmental damage caused accidentally and can hope to gain by a refusal to recognize the
non accidentally should differ, and, what liability practice as binding upon him.
can be imposed; who decides such liability
compensation; whether or not such liability can be -The Court concluded that under the
imposed for damage arising from acts which are circumstances surrounding the flight of the
legal and what can make such decisions binding Sambia from the port of Saigon, her master had
on States and whether or not such mechanisms no such assurances, under any well-settled and
will be of use in the future. What may be effective universally accepted rule of public international
in theory may not be effective in practice. Some law, as to the immunity of his vessel from seizure
believe that more emphasis should be laid on the by the French authorities, as would justify us in
preventative factor rather than focusing on who holding that it was his duty to remain in the port
will take up responsibility. of Saigon in the hope that he would be allowed to
sail for the port of destination designated in the
Such damage may, however, be caused not just contract of affreightment with a laissez-passer or
by human activities but also by natural factors.
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safe- conduct which would secure the safety of his months’ notice against the US, not on the basis of
vessel and cargo en route. reciprocity, but because it is an undertaking which
is an integral part of the instrument that contains
-The Court also held that it was the duty of the it. The 1984 notification cannot override the
ship-owner to sell, and not to just transship the obligation of the US to submit to the jurisdiction of
cargo, due to the fact of the perishable nature of the Court vis-à-vis Nicaragua.
the cargo (rice) and that he was justified in the
delay of acting, so as to ascertain reasonably The evidence is insufficient to demonstrate the
what course of action to take. total dependence of the contras on US aid. A
partial dependency may be inferred from the fact
-RE: jurisdiction. It cannot be raised on appeal for that the leaders were selected by the US, and
the first time. from other factors such as the organization,
training and equipping of the force, planning of
2) COLUMBIA VS. PERU - Beron operations, the choosing of targets, and the
operational support provided. There is, however,
The Colombian government must prove that the no clear evidence that the US actually exercised
rule (American international law more particularly such a degree of control as to justify treating the
regional or local custom peculiar to Latin- contras as acting on its behalf. Therefore, the
American States...) invoked by it is accordance contras, remain responsible for their own acts, in
with a constant and uniform usage practiced by particular for alleged violations by them of
the States in question, and that this usage is the humanitarian law.
expression of a right appertaining to the State
granting asylum and a duty incumbent on the For the US to be legally responsible, it would have
territorial state (in this case, Peru..). to be proved that the State had effective control
of the operations in the course of which the
Colombia claims that this regional customs has alleged violations were committed.
been codified by the Monteviedo Convention, but
this argumen must fail. The limited number of 4) CORFU CHANNEL (UK V ALBANIA) – Fernandez
States which ratified this Convention reveals the
weakness of this argument. The Colombian Albania is responsible under international law for
Government failed to prove the existence of such the damage and loss of lives, and that it owned a
customs as invoked by it. Even if such customs duty to pay compensation to Great Britain. Before
exist, it could not be invoked against Peru which and after the incident, the Albanian Government’s
has repudiated it by refraining from ratifying the attitude showed its intention to keep a jealous
Montevideo Conventions. watch on its territorial waters. And when the
Albania came to know of the minefield, it
protested strongly against the minesweeping
The court further stated in its decision that the conducted by Britain but not to the laying of
only solution to a dispute between states adhering mines. It is but showing that Albania desired the
to different set of customs is to go back in history presence of such mines. Moreover, the layout of
to a time when a rule accepted by both groups of the minefield shows that this could only be
States exist and continue to apply that rule. accomplished by stationing a look-out post near
the coasts (that is in Albania). The inevitable
conclusion is that the laying of the minefield could
3) NICARAGUA VS. US - Calinisan c/o SC notes not have been done without the knowledge of
Tanquilit Albania. It is then its duty to notify and warn
The ICJ has jurisdiction. The 1946 declaration is ships proceeding through the Strait. Its failure to
still binding on the US. undertake such constitutes neglect of its
international, responsibility.
The US cannot derogate from the time-limit
proviso included in its 1946 declaration. The
notion of reciprocity is concerned with the scope As to the argument on passage through territorial
and substance of the commitments entered into, waters, the ICJ ruled that the North Corfu Channel
including reservations, and not with formal constituted a frontier between Albania and
conditions of their creation, duration, or Greece, that a part of it is wholly within the
extinction. Reciprocity cannot be invoked in order territorial waters of these 2 States, and that the
to excuse departure from the terms of a State’s Strait is of special importance to Greece. Hence,
own declaration. Nicaragua can invoke the six the Channel belongs to a class of international
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highways through which passage cannot be Thus, the Temple of Preah Vihear belongs to
prohibited by a coastal State in time of peace. Cambodia.
Moreover, the passage of the British warships -
through the Channel was carried out in such
manner that is consistent with the principle of 6) GABCÍKOVO-NAGYMAROS (HUNGARY VS.
innocent passage—the guns were in a normal SLOVAKIA) (1993) – Lopez
position and not targeted to the shores.
Held:
(a)
5) TEMPLE OF PREAH VIHEAR (CAMBODIA V. The Court says No. Hungary rests the validity of
THAILAND) – Gana its action upon the principle of a state of
necessity. The state says that they had to
-The Court said yes. The Court held that the 1959 abandon the treaty because of economic and
decision is only applicable to the parties thereto ecological concerns. The Court enumerated the
(which were Israel and Bulgaria). Furthermore, requirements for the application of such a
the Court held that Thailand’s 1950 declaration principle, to wit:
made its situation different from that of Bulgaria. a. it must have been occasioned by an "essential
Thailand’s being a party to the statute expired on interest" of the State which is the author of the
May 6, 1950. Thus, it’s declaration on May 20, act conflicting with one of its international
1950 was a new declaration made outside the obligations
operation of the Statute of the Court b. that interest must have been threatened by a
and consequently outside the application of Art. "grave and imminent peril"
36. c. the act being challenged must have been the
"only means" of safeguarding that interest
Second Objection: d. that act must not have "seriously impair[ed] an
-Cambodia bases its claim on the Temple of Preah essential interest" of the State towards which the
on a map (Annex 1) made by a group of people. obligation existed
On the other hand, Thailand bases its claim on a e. the State which is the author of that act must
treaty signed by France (who was then conducting not have "contributed to the occurrence of the
the foreign relations of Indo-China) and Siam. state of necessity" In this case, the Court held
-Thailand argues that Annex 1 was never that there was an essential interest, which is the
accepted by the parties to the treaty. Also, environment. But, the court held that the peril to
Thailand reiterates that the treaty says that the be caused is not imminent. The future problems
boundary between Thailand and Cambodia is being pointed out by Hungary were not impending
based on the watershed and the boundary enough to justify their abandonment of the treaty
delineated by Annex 1 does not conform to this (ie, problem regarding drinking water was a long-
agreement. term problem). The Court also pointed out that
: there were other means by which Hungary could
-The Court held that Annex 1 should be followed. have avoided the alleged perils attached to the
Even if it was not accepted by France, there was continuation of the Gabcíkovo-Nagymaros System
an implied acceptance of such map. This can be of Locks
seen through the acts of France and Thailand. In (ie, lessening of the river bed could have been
1934-1935 a survey had established a divergence solved by constant refilling of the bed with
between the map line and the true line of the gravel). The
watershed, and other maps had been produced Court also pointed out that Hungary helped in
showing the Temple as being in Thailand: bringing about the state of necessity by rushing
Thailand had nevertheless continued also to use the projects without fully understanding the
and indeed to publish maps showing Preah Vihear effects it would have in the environment.
as lying in Cambodia. Moreover, in the course of
the negotiations for the 1925 and 1937 Franco- (b) The Court says no.
Siamese Treaties, which confirmed the existing Czechoslovakia rests its claim on what it calls the
frontiers, and in 1947 in Washington before the "principle of approximate application" to justify
Franco-Siamese Conciliation Commission, it would the construction and operation of Variant C. The
have been natural for Thailand to raise the principle states that whenever a legal instrument
matter: she did not do so. of continuing validity cannot be applied literally
-In effect, Cambodia and Thailand are now owing to the conduct of one of the parties, it
estopped from questioning the validity of Annex 1. must, without allowing that party to take
advantage of its own conduct, be applied in a way
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approximating most closely to its primary object. 7) ADVISORY OPINION ON THE LEGAL
The Court took note that the basic characteristic CONSEQUENCES OF THE PALESTINIAN WALL –
of the treaty is to provide for the construction of Mendiola
the Gabcíkovo-Nagymaros System of Locks as a
joint investment constituting a single and The Court has already indicated that the subject
indivisible operational system of works. Clearly, of the present request for an advisory opinion falls
through Variant C, Czechoslovakia violated such within the competence of the General Assembly
main objective of the treaty. Through Variant C, under the Charter.
the Czechs wanted to create their own system of
works on the Gabcikovo side of the Danube. This Even if Article 12, paragraph 1, of the Charter
is obviously an internationally wrong act for it provides that: “While the Security Council is
violated the treaty agreed upon between the exercising in respect of any dispute or situation
parties. The Court considers that the functions assigned to it in the present Charter,
Czechoslovakia, by unilaterally assuming control the General Assembly shall not make any
of a shared resource, and thereby depriving recommendation with regard to that dispute or
Hungary of its right to an equitable and situation unless the
reasonable share of the natural resources of the Security Council so requests.” a request for an
Danube — with the continuing effects of the advisory opinion is not in itself a
diversion of these waters on the ecology of the “recommendation” by the General Assembly “with
riparian area of the Szigetköz — failed to respect regard to [a] dispute or situation”.
the proportionality which is required by
international law. As regards the practice of the United Nations,
(c) The 19 May 1992 declaration of Hungary did both the General Assembly and the Security
not have any legal effect. It did not terminate the Council initially interpreted and applied Article 12
treaty between the two states. When Hungary to the effect that the Assembly could not make a
made such a declaration, it did not have any basis recommendation on a question concerning the
to terminate the treaty. It was actually the one maintenance of international peace and security
which violated the treaty by abandoning their while the matter remained on the Security
obligations. There was no fault committed by the Council’s agenda. However, this interpretation of
Czechs to justify what Hungary did. In the Court's Article 12 has evolved subsequently. Thus the
view, therefore, the notification of termination by General Assembly deemed itself entitled in 1961
Hungary on 19 May 1992 was premature. No to adopt recommendations in the matter of the
breach of the Treaty by Czechoslovakia had yet Congo (resolutions 1955 (XV) and 1600 (XVI))
taken place and consequently Hungary was not and in 1963 in respect of the Portuguese colonies
entitled to invoke any such breach of the Treaty (resolution 1913 (XVIII)) while those cases still
as a ground for terminating it when it did. appeared on the Council’s agenda, without the
(d) The Court finds that Hungary and Slovakia Council having adopted any recent resolution
must negotiate in good faith in the light of the concerning them.
prevailing situation, and must take all necessary
measures to ensure the achievement of the The Court can exercise its jurisdiction.
objectives of the Treaty.
Unless the Parties otherwise agree, a joint One of the arguments is to the effect that the
operational régime must be established in Court should not exercise its jurisdiction in the
accordance with the present case because the request concerns a
contentious matter between Israel and Palestine,
Treaty. Also, unless the Parties otherwise agree, in respect of which Israel has not consented to the
Hungary shall compensate Slovakia for the exercise of that jurisdiction. According to this
damage sustained by Czechoslovakia and by view, the subject-matter of the question posed by
Slovakia on account of the suspension and the General Assembly “is an integral part of the
abandonment by Hungary of works for which it wider Israeli-Palestinian dispute concerning
was responsible; and Slovakia shall compensate questions
Hungary for the damage it has sustained on of terrorism, security, borders, settlements,
account of the putting into operation of the Jerusalem and other related matters”. Israel has
"provisional solution" by Czechoslovakia and its emphasized that it
maintenance in service by Slovakia. has never consented to the settlement of this
wider dispute by the Court or by any other means
of compulsory
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adjudication; on the contrary, it contends that the the international field, international arbitrators or
parties repeatedly agreed that these issues are to the Courts of third States which are called upon to
be settled by negotiation, with the possibility of an deal with this situation would allow the
agreement that recourse could be had to contradiction to subsist if they confined
arbitration. themselves to the view that nationality is
exclusively within the domestic jurisdiction of the
The Court observes that the lack of consent to the State.
Court’s contentious jurisdiction by interested -In order to resolve the conflict they have, on the
States has no bearing on the Court’s jurisdiction contrary, sought to ascertain whether nationality
to give an advisory opinion. In an Advisory has been conferred in circumstances such as to
Opinion of 1950, the Court explained that: give rise to an obligation on the part of the
respondent State to recognize the effect of that
“The consent of States, parties to a dispute, is the nationality.
basis of the Court’s jurisdiction in contentious -In determining his nationality, different factors
cases. The situation is different in regard to are taken into consideration, and their importance
advisory proceedings. The Court’s reply is only of will vary from one case to the next:
an advisory character: as such, it has no binding habitual residence of the individual concerned
force. It follows that no State, whether a Member the centre of his interests, his family ties, his
of the United Nations or not, can prevent the participation in public life, attachment shown by
giving of an Advisory Opinion which the United him for a given country and inculcated in his
Nations considers to be desirable in order to children, etc.
obtain enlightenment as to the course of action it
should take. -According to the practice of States, nationality
constitutes the juridical expression of the fact that
As regards the principle of the right of peoples to an individual is more closely connected with the
self-determination, the Court observes that the population of a particular State.
existence of a “Palestinian people” is no longer in -At the time of his naturalization, does Nottebohm
issue. Such existence has moreover been appear to have been more closely attached by his
recognized by Israel in the exchange of letters of tradition, his establishment, his interests, his
9 September 1993 between Mr. Yasser Arafat, activities, his family ties, his intentions for the
President of the Palestine Liberation Organization near future, to Liechtenstein than to any other
(PLO) and Mr. YitzhakRabin, Israeli Prime Minister. State?
In that correspondence, the President of the PLO
recognized “the right of the State of Israel to exist -Nottebohm always retained his family and
in peace and security” and made various other business connections with Germany and that
commitments. In reply, the Israeli Prime Minister there is nothing to indicate that his application for
informed him that, in the light of those naturalization in Liechtenstein was motivated by
commitments, “the Government of Israel has any desire to dissociate
decided to recognize the PLO as the himself from the Government of his country.
representative of the Palestinian people”.
-Also, Nottebohm had been settled for 34 years in
8) ADVISORY OPINION ON THE USE OF NUCLEAR Guatemala, which was the centre of his interests
WEAPONS – Morada and his business activities. He stayed there until
his removal as a result of war measures in 1943
The General Assembly only meant to lend its (remember that he became a citizen of
political support to the action taken by WHO, not Liechtenstein in 1979), and complains of
to pass upon WHO’s competence to request an Guatemala's refusal to readmit him. Members of
opinion on the question raised Nottebohm's family had, moreover, asserted his
desire to spend his old age in Guatemala.
9) NOTTEBOHM (LIECHTENSTEIN VS.
GUATEMALA) – Rivas - There is thus the absence of any bond of
attachment with Liechtenstein, but there is a long-
Nottebohm is still considered a citizen of standing and close connection between him and
Guatemala. Guatemala, a link which his naturalization in no
-When two States have conferred their nationality way weakened.
upon the same individual and this situation is no
longer confined within the limits of the domestic 10) OPOSA VS. FACTORAN – Sarenas
jurisdiction of one of these States but extends to
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Petitioners indeed have locus standi to file the to rule on the case, its decision would affect, but
case. They can file the case for themselves aswell would not be binding on, Indonesia because of its
as for the succeeding generations. lack of consent to the court’s jurisdiction;
Issue:
c) while it is true that the right of peoples to self-
Petitioners have successfully showed that they determination, as it evolved from the Charter and
have a specific legal right. The right to a balanced from United Nations practice, has an erga omnes
and healthful ecology (Sec 16, Art II of the 1987 character, the Court nonetheless considers that
Constitution) the erga omnes character of a norm and the rule
• of consent to jurisdiction are two different things.
The right to a balanced and healthful ecology Whatever the nature of the obligations invoked,
carries with it the correlative duty to refrain from the Court could not rule on the lawfulness of the
impairing conduct of a State when its judgment would imply
the environment. It is the DENR’s duty to protect an evaluation of the lawfulness of the conduct of
such right. another State which is not a party to the case;
•
A denial or violation of that right by the other who d) if the court were to exercise jurisdiction over
has the correlative duty to respect or protect the the case and render judgment thereon
same notwithstanding the lack of Indonesia’s consent,
gives right to a cause of action. such a judgment would run directly counter to the
Issue: "well-established principle of international law
embodied in the Court's Statute, namely, that the
No. What is principally involved is the Court can only exercise jurisdiction over a State
enforcement of a right vis-à-vis policies already with its consent" (Monetary Gold Removed from
formulated and Rome in 1943, I.C.J. Reports 1954, p. 32).
expressed in legislation.
The non-impairment clause must yield to the Re the separate opinion of Judge Oda:
police power of the state. All licenses may be
revoked or rescinded by executive action. Judge Oda, while agreeing that Portugal's
Decision: Order of dismissal set aside (I Application should be dismissed as the Court lacks
guessremanded yung case) jurisdiction to entertain it, considers that its
dismissal should not have been based upon the
11) EAST TIMOR – Anastacio absence of Indonesia's consent, as in the Court's
Judgment, but upon the sole consideration that
Court cannot exercise jurisdiction over the case Portugal lacked locus standi. His reasoning
because Indonesia is not a party thereto. The appears to be based on his view that the central
court held that in order to rule on the proceedings issue in the case is whether Portugal or Indonesia,
instituted by Portugal against Australia concerning as a State lying opposite to Australia, was entitled
"certain activities of Australia with respect to East to the continental shelf in the "Timor Gap"(maybe,
Timor", it would be necessary for the court to this is what is referred to in the Treaty of
determine the rights and obligations of Indonesia. 11 December 1989 between Australia and
Specifically, the court held that the very subject- Indonesia as an area between the Indonesian
matter of its decision would necessarily be a Province of East Timor and
determination whether, having regard to the Northern Australia).
circumstances in which Indonesia entered and
remained in East Timor, it could or could not have . He notes that on the matter of the delimitation
acquired the power to enter into treaties on behalf of the continental shelf in the relevant areas, it
of East Timor relating to the resources of its appears that since the seventies, Indonesia
continental shelf. The Court could not make such claimed the status of a coastal State for East
a determination in the absence of the consent of Timor and, as such, negotiated with Australia
Indonesia; while, on the other hand, Portugal did not. Had
Portugal also claimed that status, it could and
b) regarding the contention that Portugal and should have initiated a dispute over the
Australia have accepted the compulsory corresponding title to the continental shelf with
jurisdiction of the Court under Article 36, Indonesia, but not with Australia. Not
paragraph 2, of its Statute, the court noted that unless and until such time as Portugal had been
Indonesia did not do so. This, in effect, precludes established as having the status of the coastal
the court from exercising jurisdiction since were it State entitled to the corresponding continental
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shelf could any issue concerning the seabed area Australia leading to the conclusion of the Treaty. A
of the "Timor Gap" have been the subject matter decision thereon does not imply any adjudication
of a dispute between Portugal and Australia Since on Indonesia,
Portugal does not have such status as yet, it has nor does it involve any finding on the validity of
no locus standi and hence, its complaint should be the Treaty. The conduct of Australia can be
dismissed on such ground. assessed in the light of
United Nations law and resolutions. Such
Re the dissenting opinion of Judge Weeramantry: assessment is not linked to any passing upon
Indonesia's activities.
Judge Weeramantry disagrees with the majority
view on the question as to whether or not the Further, it is his view that Portugal has the
Court lacks jurisdiction on the ground that a capacity to act before the Court in this case on
decision against Australia would involve a decision behalf of East
concerning the rights of Indonesia, a third State, Timor and to vindicate the respect for its position
not before the Court. as administering Power. The position of Portugal
as administering
Judge Weeramantry, after analyzing the Monetary Power was questioned by Australia; the Court
Gold decision and the prior and subsequent should have clarified this issue. It is within its
jurisprudence on the matter, concludes that, jurisdiction.
having regard to the facts of this case, the
Monetary Gold decision is not relevant inasmuch 12) ISLAND OF PALMAS – Beron
as the Court could determine the matter before it
entirely on the basis of the obligations and actions It is recognized that the US communicated the
of Australia alone, without any need to make an Treaty of Paris to the Netherlands, and that no
adjudication on the conduct of Indonesia. He reservations or protests were made by the
bases this on the view that a central principle of Netherlands in respect of the delimitation of the
State responsibility in international law is the Philippines which included the Palmas. However
individual responsibility of a State for its actions, the territorial sovereignty (which as stated above
quite apart from the complicity of another State in serves as good title...) which Netherlands
those actions. Accordingly, he believes that exercised over the Palmas could not be affected
Australia’s actions, in negotiating, concluding and by the mere silence as regards a treaty which has
initiating performance of the Timor Gap Treaty, been notified.
and taking internal legislative measures for its
application, are thus justiciable on the basis of its
unilateral conduct. Discovery alone without subsequent act cannot at
the present time suffice to prove sovereignty over
Re the dissenting opinion of Judge Skubiszewski: the Palmas. Even considering that the US
possesses an imperfect title over the Palmas by
In his view, the court has jurisdiction because virtue of the Treaty of Paris, this title cannot
even it finds itself without jurisdiction to prevail over the continuous display of authority of
adjudicate on any another state.
issue relating to the Timor Gap Treaty, it can still
rule on Portugal’s first submission, i.e., with the
status of East The principle of contiguity as contention should
Timor, the applicability to that territory of the also fail. This principle itself is by its very nature
principle of self-determination and some other so uncertain and contested that even
basic principles of governments of the same state have on different
international law, and the position of Portugal as occasions maintained contradictory opinions. If
administering Power. This is so because the first this principle alone is to be used as basis for
submission can be acquiring sovereignty over a territory, this
separated from the other submissions which principle would be in conflict with what has been
concern exclusively the specific issues of the said about territorial sovereignty
treaty.
13) VFA CASE (LIM VS. EXEC. SEC.) – Calinisan
Judge Skubiszewski believes that the Court can
decide on the lawfulness of some unilateral acts of After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In our
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view, it was deliberately made that way to give It contains provisions relative to entry and
both parties a certain leeway in negotiation. In departure of American personnel,
this manner, visiting US forces may sojourn in driving and vehicle registration, criminal
Philippine territory for purposes other than jurisdiction, claims, importation and exportation,
military. As conceived, the joint exercises may movement of vessels and aircraft, as well as the
include training on new techniques of patrol and duration of the agreement and its termination. Its
surveillance to protect the nation's marine primary goal is to facilitate the promotion of
resources, sea search-and-rescue operations to optimal cooperation between American and
assist vessels in distress, disaster relief Philippine military forces in the event of an attack
operations, civic action projects such as the by a common foe.
building of school houses, medical and Public International Law (Dean Roy): Case Digests
humanitarian missions, and the like. nastacio, Beron, Calinisan, Fernandez, Gana,
• Lopez, Mendiola, Morada, Rivas, Sarenas
The Terms of Reference are explicit enough.
Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat
"except in self-defense." We wryly note that this 14) WTO CASE (TAÑADA VS. ANGARA) –
sentiment is admirable in the abstract but difficult Fernandez
in implementation. The target of "Balikatan 02-1
I" the Abu Sayyaf, cannot reasonably be expected An initial question was posed regarding
to sit idly while the battle is brought to their very jurisdiction. The SC ruled that it has jurisdiction
doorstep. They cannot be expected to pick and over the matter since it has the power to
choose their targets for they will not have the determine whether there was GADLEJ on the part
luxury of doing so. We state this point if only to of the Senate and President. However, the SC will
signify our awareness that the parties straddle a not review the wisdom of their decisions.
fine line, observing the honored legal maxim
"Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is The WTO Agreement is not violative of the
actually petitioners' worry, that in reality, Constitution. The reliance on the priniciple of
"Balikatan 02-1 " is actually a war principally economic nationalism espoused in Articles 2(sec
conducted by the United States government, and 19) and 12(secs 10 and 12) of the Constitution is
that the provision on self-defense serves only as misplaced as these are not self-executing
camouflage to conceal the true nature of the provisions. They do not embody judicially
exercise. A clear pronouncement on this matter enforceable constitutional rights but are guidelines
thereby becomes crucial. for legislation. These are broad constitutional
Notes: principles that need legislative enactments to
implement them. Moreover, while the Constitution
• indeed mandates a bias in favor of Filipino goods,
The entry of American troops into Philippine soil is services, labor and enterprises, at the same time,
proximately rooted in the international anti- it recognizes the need for business exchange with
terrorism campaign declared by President George the rest of the world on the bases of equality and
W. Bush in reaction to the tragic events that reciprocity and limits protection of Filipino
occurred on September enterprises only against foreign competition and
11, 2001 trade practices that are unfair. The Constitution
• did not intend to promote an isolationist policy. In
Mutual Defense Treaty—as the "core" of the addition, the GATT itself has provided built-in
defense relationship between the Philippines and protection from such unfair foreign competition
its traditional ally, the United States. Its aim is to and trade practices.
enhance the strategic and technological
capabilities of our armed forces through joint
training with its American counterparts; in re: (the important part)
VFA. Participating in the WTO Agreement did limit or
• restrict, to some extent, the absoluteness of our
Visiting Forces Agreement—provides the sovereignty, but is not necessarily reprehensible.
"regulatory mechanism" by which "United States While sovereignty has traditionally been deemed
military and civilian personnel [may visit] absolute and all-encompassing on the domestic
temporarily in the Philippines in connection with level, it is however subject to restrictions and
activities approved by the Philippine Government." limitations voluntarily agreed to by the
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Philippines, expressly or impliedly, as a member a median line formed equidistant from the coasts
of the family of nations. Through the incorporation of the states involved. This medial line, though,
clause in the Constitution, the Philippines is bound can be adjusted as stated in the Article and
by generally accepted principles of law as they affirmed by several decisions of the International
automatically form part of the laws of the land. Of Court. The adjustment would be based on special
great importance is the principle of pacta sunt circumstances, at the discretion of the
servanda, which means that international Court.
agreements must be performed in good faith. A
state which has contracted valid international -In this case, the Court found that the respective
obligations is bound to make in its legislation such coastal lengths of Greenland and Jan Mayen can
modifications as may be necessary to ensure the be considered as a special circumstance which
fulfillment of the obligations undertaken. So by calls for the adjustment of the median line. This is
their voluntary act, nations may surrender some considered a special circumstance because the
aspects of their state power in exchange for difference is substantial. Greenland possesses a
greater benefits granted by or derived from a much longer coastline, thus it should be afforded
convention or pact. For instance, when the a wider claim over the disputed area based on the
Philippines joined the UN and other bilateral principle of proportionality.
relations with other States, it effectively limits its
sovereign powers of taxation, eminent domain 16) CASE CONCERNING THE MILITARY AND
and police power. It can then be inferred that a PARAMILITARY ACTIVITIES
portion of sovereignty may be waived without IN AND AGAINST NICARAGUA (NICARAGUA VS.
violating the Constitution by virtue of the US) – Lopez
Philippines being bound by generally accepted
principles of law. The ICJ has jurisdiction. The 1946 declaration is
still binding on the US.
A Final Act is not the treaty itself. It is just a The US cannot derogate from the time-limit
summary of the proceedings that took place proviso included in its 1946 declaration. The
during the negotiation stage. In fact, the Senate notion of reciprocity is concerned with the scope
did what the Final Act required—the concurrence and substance of the commitments entered into,
tot the WTO Agreement. By the ratification of the including reservations, and not with formal
Agreement, the other documents in question conditions of their creation, duration, or
(Ministerial Declarations etc) were deemed extinction. Reciprocity cannot be invoked in order
adopted. to excuse departure from the terms of a State’s
own declaration. Nicaragua can invoke the six
Plus, the WTO Agreement itself stipulated what months’ notice against the US, not on the basis of
multilateral agreements are deemed included. reciprocity, but because it is an undertaking which
is an integral part of the instrument that contains
In sum, there was no GADLEJ on the part of the it. The 1984 notification cannot override the
Senate and the President. When the WTO obligation of the US to submit to the jurisdiction of
Agreement was ratified and made part of the law the Court vis-à-vis Nicaragua.
of the land, the Senate and the President was
exercising, legitimately, its sovereign duty and The evidence is insufficient to demonstrate the
power. Notwithstanding objections against total dependence of the contras on US aid. A
possible limitations on national sovereignty, the partial dependency may be inferred from the fact
WTO remains as the only viable structure for that the leaders were selected by the US, and
multilateral trading and development of from other factors such as the organization,
international trade law. training and equipping of the force, planning of
operations, the choosing of targets, and the
15) CASE CONCERNING MARITIME DELIMITATION operational support provided. There is, however,
IN THE AREA BETWEEN GREENLAND AND no clear evidence that the US actually exercised
JAN MAYEN (DENMARK VS. NORWAY) – Gana such a degree of control as to justify treating the
contras as acting on its behalf. Therefore, the
-The Court held that Art. 6 of the 1958 Geneva contras, remain responsible for their own acts, in
Convention on the Continental Shelf should be particular for alleged violations by them of
followed. The said article states that in cases humanitarian law.
where two or more states have disputes of the
same sort as the one in this case, there should be
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For the US to be legally responsible, it would have Principality of Sealand, the U.K. government does
to be proved that the State had effective control not regard Sealand as a state."
of the operations in the course of which the 8) Has external recognition. A State has been
alleged violations were committed. "voted into the club" by other States. No. No
other country recognizes Sealand. An official from
17) Treaty of Antarctica – Mendiola the United States Department of State was quoted
in Wired, "There are no independent principalities
18) Principality of Sealand – Morada in the North Sea. As far as we are concerned, they
are just Crown dependencies of Britain." The
There are eight accepted criteria used to British Home Office was quoted by the BBC that
determine whether an entity is an independent the United Kingdom does not recognize Sealand
country or not. and, "We've no reason to believe that anyone else
1) Has space or territory which has internationally recognizes it either."
recognized boundaries. No. Sealand has no land
or boundaries at all, it's a tower built by the
British as an anti-aircraft platform during World 19) Western Sahara Case – Rivas
War II. Certainly, the government of the U.K. can
assert that it owns this platform. Sealand also lies
within the United Kingdom's proclaimed 12 Territories inhabited by tribes or people having a
nautical mile territorial water limit. Sealand claims social and political organization were not regarded
that since it asserted its sovereignty before the as terra nullius The court concludes that the
U.K. extended its territorial waters, it concept of material and information presented to it do not
being "grandfathered in" applies. Sealand also establish any tie of territorial sovereignty over the
claims its own 12.5 nautical mile territorial water. Western Sahara. Discovery of terra nullius is not
2) Has people who live there on an ongoing basis. enough to establish sovereignty. It must be
Not really. As of 2000, only one person lives at accompanied by effective control
Sealand and he's going to move out, to be
replaced by temporary residents working for
Haven Co. Prince Roy maintains his U.K. 20) Holy See vs. Del Rosario – Sarenas
citizenship and passport, lest he end up
somewhere where Sealand's passport isn't
recognized. In PIL, when a state or international agency
3) Has economic activity and an organized wishes to plead sovereign or diplomatic immunity,
economy. A State regulates foreign and domestic it requests
trade and issues money. No. Haven Co represents the Foreign office of the state where it is to
Sealand's only economic activity up to now. While convey to the court that it is entitled to immunity.
Sealand issued money, there's no use for it In the Philippines, the practice is to first secure an
beyond collectors. Likewise, Sealand's stamps executive endorsement of its claim of sovereign or
only have value to a philatelist (stamp collector) diplomatic immunity. See the case for history of
as Sealand is not a member of the Universal the sovereignty of the Vatican (The Lateran Treaty
Postal Union, mail from Sealand can't be sent established the statehood of the Vatican City) The
elsewhere (nor is there much sense in mailing a Philippines has accorded the Holy See the status
letter across the tower itself). of foreign sovereign. It had diplomatic
4) Has the power of social engineering, such as representations with the country since 1957. Sec
education. Perhaps. If it had any citizens. 2 of Article 2 of the 1987 Constitution adopts
5) Has a transportation system for moving goods principles of International Law. Principles of Intl.
and people. No. Law are deemed incorporated as part of the law of
6) Has a government which provides public the land. Where the plea of immunity is
services and police power. Yes, but that police recognized and affirmed by the executive branch,
power is certainly not absolute. The United it is the duty of the courts to accept this claim so
Kingdom can assert its authority over Sealand as not to embarrass the executive arm of the
quite easily with a few police officers. government.
7) Has sovereignty. No other State should have
power over the State's territory. No. The United
Kingdom has power over Sealand's territory. The 21) Expenses of the UN – Anastacio
British government was quoted in Wired,
"Although Mr. Bates styles the platform as the
22) Tinoco Arbitration – Beron
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ratifications and accessions to the treaty was
hardly sufficient to constitute a general rule of
Under the Principle of Continuity of States, the international law; Third, state practice was neither
sate is bound by the engagements entered into by extensive enough nor virtually uniform to show a
governments that have ceased to exist. The general recognition of an evolving norm; And
restores government is generally liable for the fourth, the treaty itself allows for reservations (in
acts of the usurper Also changes in the effect, contracting States may practice or not
government or the internal policy do not, as a practice the equidistance principle)
rule, affect its position in the International Law.
Though the government changes, the nation
remains, with rights and obligations unimpaired (On the argument of treaty)
Non-recognition by other nations of a government Germany was not legally bound by Article 6.
claiming to be a national personality, is usually Though it signed the Geneva Convention, it has
appropriate evidence that it has not attained the not ratified said treaty.
independence and control entitling it by
International Law to be classified as such. But
when recognition of a government is determined Why is this case important on the topic of territory
by inquiry, not into its de facto sovereignty but of States?
into its illegitimacy or irregularity of origin, their The case illustrates a mode of settling disputes on
non-recognition loses evidential weight – it cannot overlapping maritime areas. It has been observed
outweigh evidence of the de facto character if a that
government.
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Article III, 1987 Constitution). They are, the practice of nations with regard to extradition
therefore, inadmissible as evidence for any treaties that formed the basis for this Court's
admission wrung from the accused in violation of decision in Rauscher, supra, to imply a term in the
their constitutional rights is inadmissible against extradition treaty between the United States and
them. The fact that all accused are foreign England.Respondent's argument, however, would
nationals does not preclude application of the require a much larger inferential leap with only
“exclusionary rule” because the constitutional the most general of international law principles to
guarantees embodied in the Bill of Rights are support it. While respondent may be correct that
given and extend to all persons, both aliens and his abduction was "shocking" and in violation of
citizens. general international law principles, the decision
whether he should be returned to Mexico, as a
Lotus Case (Turkey vs. France) – Morada matter outside the Treaty, is a matter for the
Executive Branch.
Achille Lauro Incident – Rivas
Adolf Eichman – Anastacio The Republic of Indonesia did not waive its
immunity. The provision in the contract is not
Tuscanino Case – Beron necessarily a waiver of sovereign immunity from
suit. Submission by a foreign state to local
Alvarez-Machain – Calinisan jurisdiction must be clear and unequivocal. It
must be given explicitly or by necessary
The fact of respondent's forcible abduction does implication. There is no such waiver in this case.
not prohibit his trial in a United States court for
violations of this country's criminal laws. A State may not be sued without its consent.
When a State enters into purely commercial
(a) A defendant may not be prosecuted in activities the nature of the act should be
violation of the terms of an extradition treaty. determined as to whether it is jure imperii (public)
United States v. Rauscher. However, when a or jure gestionis (private). If the act is in pursuit
treaty has not been invoked, a court may properly of a sovereign activity, oran incident thereof, then
exercise jurisdiction even though the defendant's it is an act jure imperii. Consequently, it is
presence is procured by means of a forcible covered by sovereign immunity.
abduction. Ker v. Illinois. Thus, if the
Extradition Treaty does not prohibit respondent's The establishment of a diplomatic mission is an
abduction, the rule of Ker applies and jurisdiction act jure imperii. And a State may enter into
was proper. contracts with private entities to maintain the
(b) Neither the Treaty's language nor the history premises, furnishings and equipment of the
of negotiations and practice under it supports the embassy and the living quarters of its diplomatic
proposition that it prohibits abductions outside of agents and officials. Applying it in this case, the
its terms. Republic of Indonesia was acting in pursuit of a
The Treaty says nothing about either country sovereign activity when it entered into a contract
refraining from forcibly abducting people from the with Vinzon.
other's territory or the consequences if
anabduction occurs. Inaddition, although the As to whether or not Ambassador Soeratmin and
Mexican government was made aware of the Ker Minister Kasim may be sued in their private
doctrine as early as 1906, and language to curtail capacities, Article 31 of the Vienna Convention on
Ker was drafted as early as 1935, theTreaty's Diplomatic Relations is clear that a diplomatic
current version contains no such clause. agent enjoys immunity from the criminal
(c) General principles of international law provide jurisdiction of the receiving State. Though there
no basis for interpreting the Treaty t include an are exceptions (i.e. real action relating to private
implied term prohibiting international abductions. immovable property; action relating to
It would go beyond established succession; action relating to any professional or
precedent and practice to draw such an inference commercial activity outside official functions), the
from the Treaty based on respondent's argument case does not fall under any of them. The acts of
that abductions are so clearly prohibited in the 2 diplomats were incidental to the exercise of
international law that there was no reason to an official function.
include the prohibition in the Treaty itself. It was
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Esher, Master of the Rolls, and Lords Justices
Jeffrey Liang vs. People – Gana Lopes and Kay.
SLANDER CANNOT BE SAID TO BE COVERED BY Apparently Miss Mighell knew already that her
THE fiancé was not Albert Baker: this was a not very
imaginative pseudonym for Abu Bakr, His Serene
IMMUNITY GRANTED TO ADB EMPLOYEES Highness the Sultan of Johore. The case revealed
REGARDING ACTS his secret life in the high society of London, a long
way absent from his kingdom in the Malay Straits.
PERFORMED BY THEM IN THEIR OFFICIAL The status of the defendant was important. Miss
CAPACITY Mighell.s argument was that he had originally
presented himself as a private individual and a
RATIO subject of the Queen. This pointed up of course
the duality of a sovereign.s status- that they are
• both public and private personalities. A distinction
Nowhere in the assailed decision is diplomatic was drawn between private transactions and
immunity denied matters of sovereign authority. Had Abu Bakr,
• (who declined to appear in court) lost this
However, the issue in this case is not really about privilege of diplomatic immunity by his deceit? An
diplomatic immunity but whether or not the independent sovereign is entitled to immunity
statements allegedly made by LIANG were uttered from jurisdiction, unless he waives this privilege,
while in the performance of his official functions, which Abu Bakr was not going to do. Did his
in order for this case to fall squarely under the conduct amount to waiver? Persisted the lawyers
provisions of Section 45 (a) of the "Agreement for Miss Mighell. No, it must be an active waiver
Between the Asian Development Bank and the was the uncompromising answer.
Government of the Republic of the Philippines
Regarding the Headquarters of the Asian Ultimately, political considerations and agendas
Development Bank ," to wit: often decide the day. In 1894 the British
Officers and staff of the Bank, including for the Government was unwilling to offend a friendly
purpose of this Article experts and consultants foreign potentate to appease a private individual.
performing missions for the Bank, shall enjoy the In this sense, Miss Mighell was a victim of state
following privileges and immunities: policy, but the peculiar nature of breach of
promise also meant she was a victim because she
(a) Immunity from legal process with respect to was a woman.
acts performed by them in their official capacity
except when the Bank waives the immunity. Minucher vs. CA – Mendiola
•
After careful consideration, the Court held that it The main yardstick in ascertaining whether a
had no cogent reason to disturb its Decision of person is a diplomat entitled to immunity is the
January 28, 2000. As the Court has stated determination of whether or not he performs
therein, the slander of a person, by any stretch, duties of diplomatic nature. Also, vesting a person
cannot be considered as falling within the purview with diplomatic immunity is a prerogative of the
of the immunity granted to ADB officers and executive branch of
personnel Mighell vs. Sultan of Johore – Lopez the government.
The fifth case, that of Mighell v Sultan of Johore in The consent or imprimatur of the Philippine
1894 deals with a woman who fell under another government to the activities of the United States
kind of spell, for which there was no legal redress. Drug Enforcement Agency, can be gleaned from
A man she had met in high society, who appeared the facts mentioned. The official exchanges of
gentlemanly, wealthy and plausible, and who communication between agencies of the
called himself Albert Baker, promised her government of the two countries, certifications
marriage. He promised marriage to her and then from officials of both the Philippine Department of
reneged on the promise, so she sued him, like Foreign Affairs and the United States Embassy, as
Polly Frost in a rather different social milieu, for well as the participation of members of the
breach of promise. The case came on for hearing Philippine
in the Court of Appeal on November 27, 1893. The Narcotics Command in the “buy-bust operation”
case again attracted a wealth of legal talent: Lord conducted at the residence ofMinucher at the
behest of Scalzo, may be inadequate to support
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the "diplomatic status" of the latter but they give HELD: The essential principle contained in the
enough indication that the Philippine government notion of an illegal act is that reparation must, as
has given its imprimatur, if not consent, to the far as possible, wipe out all the consequences of
activities within Philippine territory of agent Scalzo the illegal act and re-establish the situation which
of the United States Drug Enforcement Agency. would, in all probability, have existed if that act
The job description of Scalzo has tasked him to had not been committed. Restitution in kind, or if
conduct surveillance on suspected drug suppliers this is not possible, payment of a sum
and, after having ascertained the target, to inform corresponding to the value which a restitution in
local law enforcers who would then be expected to kind would bear; the award, if need be, of
make the arrest. In conducting surveillance damages for loss sustained which would not be
activities on Minucher, later acting as the poseur- covered by restitution in kind or payment in place
buyer during the buy-bust operation, and then of it – such are the principles which should serve
becoming a principal witness in the criminal case to determine the amount of compensation due for
against Minucher, Scalzo hardly can be said to an act contrary to international law.
have acted beyond the scope of his official
function or duties. In this case, the obligation of Poland is to restore
the factory and, if this be not possible, to pay its
All told, this Court is constrained to rule that value at the time of the indemnification, which
respondent Arthur Scalzo, an agent of the United value is designed to take the place of restitution
States Drug Enforcement Agency allowed by the which has become impossible. In addition, Poland
Philippine government to conduct activities in the must pay the compensating loss sustained as a
country to help contain the problem on the drug result of the seizure.
traffic, is entitled to the defense of state immunity
from suit. N.B. It might be recalled that the Mavrommatis Palestine Concessions – Fernandez
privilege is not an immunity from the observance
of the law of the territorial sovereign or from It is true that the dispute was at first between a
ensuing legal liability; it is, rather, an immunity private person (Mavrommatis) and a State
from the exercise of territorial jurisdiction (Britain). But the Greek Government subsequently
took up the case. The case, then, entered into a
Fisheries Case – Morada new phase: it became a dispute between two
States and is covered by international law.
Nuclear Tests Case (Australia/New Zealand vs.
France) – Rivas
Referring to the Mandate of Palestine, the case is
Callado vs. International Rice Research Institute – undoubtedly between a Mandatory (Britain) and
Sarenas another member of the League of Nations
(Greece). When Greece took the case of one of its
·Under PD 1620 (Act Granting to IRRI the subjects and resorted to diplomatic action or
privileges of an international organization), the international judicial proceedings on that person’s
Institute shall enjoy immunity from any penal, behalf, a State is in reality asserting its own
civil and administrative proceedings. rights. Though the present dispute originated in
·The grant of immunity to IRRI is clear and an injury to a private interest, such is irrelevant
unequivocal and an express waiver by its Director- now. The fact that the opposing parties are States
General is the only way which it may relinquish or is sufficient to comply with the Palestinian
abandon this immunity. Mandate. Being signatory to his Mandate, Britain
·Though there is a memo regarding guidelines to has given consent to the PCIJ’s jurisdiction.
implementation of PD 1620, the memo cannot be
considered as the express waiver by the Director The Court’s decision dismissed Britain’s objection
General. It is merely an internal memo. with respect to the claims in Jerusalem. But
·According to the Memo: in cases involving upheld the objection as to the claims in Jaffa. The
dismissal of employees, the Institute may waive court said that the claims in Jaffa were not subject
its immunity, signifying that such waiver is of the Mandate of Palestine with which Britain
discretionary on its part. submitted jurisdiction.
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Ex. Issuance of licenses to engage in a Those that pertain to the power to determine
particular business the law upon a particular state of facts. It
2. DIRECTING powers refers to the right to, and must, consider and
Those that involve the corrective powers of make proper application of the rules of equity.
public utility commissions, powers of Ex. Power to appoint a receiver, power to
assessment under the revenue laws, issue injunctions
reparations under public utility laws, and
awards under workmen’s compensation laws,
and powers of abstract determination such as
definition-valuation, classification and fact Definition of “INVESTIGATORY POWER”
finding The power to inspect, secure, or require the
3. DISPENSING powers disclosure of information by means of accounts,
Exemplified by the authority to exempt from records, reports, statements and testimony of
or relax a general prohibition, or authority to witnesses.
relieve from an affirmative duty. Its difference Administrative agencies do not have the inherent
from licensing power is that dispensing power power to require the attendance of witnesses but
sanctions a deviation from a standard. has the power to require the production of books,
4. SUMMARY powers etc. The exertion if not expressly provided for by
Those that apply compulsion or force against law must be done thru judicial process.
person or property to effectuate a legal Neither do they have the inherent power to punish
purpose without a judicial warrant authorizing a person who fails to appear before them for
such action; usually without notice and contempt in the absence of any statutory
hearing. provision granting the same.
Ex. Abatement of nuisance, summary
restraint, levy of property of delinquent
taxpayers
5. EQUITABLE powers
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1. The law itself must impose and specify the
penalty for the violation of the regulation.
2. The regulation must be published.
Need for Previous Notice and Hearing
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5. Padlocking of filthy restaurants/theaters exercised, and there can usually be no irreparable
showing obscene movies harm.
6. Cancellation of a passport of a person sought
for criminal prosecution EXCEPTIONS: Interlocutory order affecting the
7. Summary distraint and levy of properties of a merits of a controversy; Preserve status quo
delinquent taxpayer pending further action by the administrative
8. Replacement of a temporary or acting agency; Essential to the protection of the rights
appointee asserted from the injury threatened; Officer
assumes to act in violation of the Constitution and
other laws; Order not reviewable in any other
way; Order made in excess of power
Doctrine of ripeness for judicial review Doctrine of Primary Jurisdiction
1. This determines the point at which courts may 1. This doctrine states that courts cannot or will
review admin action. not determine a controversy which requires
2. application: the expertise, specialized skills and knowledge
a. when the interest of the plaintiff is of the proper administrative bodies because
subjected to or imminently threatened technical matters of intricate questions of fact
with substantial injury are involved.
b. if the statute is self-executory 2. Relief must first be obtained in an
c. when a party is immediately confronted administrative proceeding before a remedy
with the problem of complying or violating will be supplied by the court even though the
a statute and there is a risk of criminal matter is within the proper jurisdiction of a
penalties court.
d. when plaintiff is harmed by the vagueness
of the statute
Doctrino of Prior Resort
When a claim originally cognizable in the courts
Questions Reviewable on Judicial Review: involves issues which, under a regulatory scheme
1. Questions of FACT are within the special competence of an
The general rule is that courts will not disturb the administrative agency, judicial proceedings will be
findings of administrative agencies acting within suspended pending the referral of these issues to
the parameters of their own competence so long the administrative body for its view.
as such findings are supported by substantial
evidence. By reason of their special knowledge, NOTE: The doctrines of primary jurisdiction and
expertise, and experience, the courts ordinarily prior resort have been considered to be
accord respect if not finality to factual findings of interchangeable.
administrative tribunals.
2. Question of LAW
Administrative decision may be appealed to the Doctrine of Exhaustion of Administrative
courts independently of legislative permission. Remedies
It may be appealed even against legislative Under this doctrine, an administrative
prohibition because the judiciary cannot be decision must first be appealed to the
deprived of its inherent power to review all administrative superiors up to the
decisions on questions of law. highest level before it may be elevated
to a court of justice for review.
Enforcement of admin determinations/
decisions NOTE: the premature invocation of a court’s
0. in accordance with the manner prescribed by intervention if fatal to one’s cause of action
the statute Reasons:
1. if there is no provision, resort to the court is 1. to enable the administrative superiors to
necessary for enforcement. correct the errors committed by their
subordinates.
2. courts should refrain from disturbing the
Doctrine of Finality findings of administrative, bodies in deference
Courts are reluctant to interfere with an action of to the doctrine of separation of powers.
an administrative agency prior to its completion of 3. courts should not be saddled with the review
finality, the reason being that absent a final order of administrative cases
or decision, power has not been fully and finally
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4. judicial review of administrative cases is controversy at hand. What is frowned upon is
usually effected through special civil actions absolute lack of notice and hearing x x x. We
which are available only if there is no other find it obvious under the attendant circumstances
plain, speedy and adequate remedy that PGBI was not denied due process. In any
case, given the result of this Resolution, PGBI has
Exceptions no longer any cause for complaint on due process
1. when the question raised is purely legal, grounds. Philippine Guardians Brotherhood, Inc.
involves constitutional questions (PGBI), etc. vs. Commission on Elections, G.R.
2. when the administrative body is in estoppel No. 190529. April 29, 2010
3. when act complained of is patently illegal
4. when there is urgent need for judicial PROCEDURAL DUE PROCESS;
intervention REQUIREMENTS.
5. when claim involved is small
6. when irreparable damage is involved
The Ang Tibay formulation was overlapping and
7. when there is no other plain, speedy,
repetitious. Hence, in Air Manila, Inc. v. Balatbat,
adequate remedy
the formulation was simplified into four basic
8. when strong public interest is involved
rights, as follows:
9. when the subject of controversy is private
land
10. in quo warranto proceedings 1. The right to notice, be it actual or
11. when the administrative remedy is permissive, constructive, of the institution of the proceedings
concurrent that may affect a person’s legal right;
12. utter disregard of due process
13. long continued and unreasonable delay 2. The right to a reasonable opportunity to
14. amount involved is relatively small appear and defend his rights and to introduce
15. when no administrative review is provided witnesses and relevant evidence in his favor;
16. respondent is a department secretary
(DOCTRINE OF QUALIFIED POLITICAL 3. The right to a tribunal so constituted as to
AGENCY – ALTER EGO DOCTRINE) give him reasonable assurance of honesty and
impartiality, and one of competent
jurisdiction; and
Substantial evidence – defined to mean not
necessarily preponderant proof as required in
ordinary civil cases but such kind of relevant 4. The right to a finding or decision of that
evidence which a reasonable mind might accept tribunal supported by substantial evidence
as adequate to support a conclusion. presented at the hearing or at least ascertained in
the records or disclosed to the parties.
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al., G.R. Nos. 187958, G.R. No. 187961 & 1. Private/proprietary
187962/G.R. No. 187966, G.R. No. 187967 & a. It acts in a similar category as a business
187968. April 7, 2010. corporation, performing functions not
strictly governmental or political
REORGANIZATION; GOOD FAITH. b. Those exercised for the special benefit and
advantage of the community.
The presidential power to reorganize agencies
NOTE: Local Government Code §15. Every LGU
and offices in the executive branch of government
created or recognized under this Code is a body
is subject to the condition that such
politic and corporate endowed with powers to be
reorganization is carried out in good faith.
exercised by it in conformity with law. As such, it
shall exercise powers as a POLITICAL
If the reorganization is done in good faith, the SUBDIVISION of the national government and as
abolition of positions, which results in loss of a CORPORATE ENTITY representing the
security of tenure of affected government inhabitants of its territory.
employees, would be valid. In Buklod ng
Kawaning EIIB v. Zamora, we even observed that
there was no such thing as an absolute right to Requisites for the Incorporation of a
hold office. Except those who hold constitutional Municipal Corporation
offices, which provide for special immunity as CODE: Te Po C
regards salary and tenure, no one can be said to 1. Territory
have any vested right to an office or salary. Atty. 2. Population
Sylvia Banda, et al. vs.. Eduardo R. Ermita etc., et 3. Charter
al. G.R. No. 166620, April 20, 2010.
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constituency, not to the central
It applies to the creation, division, merger, government.
abolition or substantial alteration of boundaries of
LGU.
Creation etc. should be approved by a majority of Devolution
the votes cast in a plebiscite called for the It refers to the act by which the national
purpose in the political unit or units directly government confers power and authority upon the
affected. various LGUs to perform specific functions and
responsibilities. (§17, LGC). It is considered
mandatory under the LGC.
Beginning of Corporate Existence (§14, LGC)
Corporate existence commences upon the election
and qualification of its chief executive and a Distinction between Supervision and Control
majority of members of the Sanggunian unless Supervision
some other time is fixed by the law or ordinance It means the overseeing or the power or
creating it. authority of an officer to see that the
subordinate officers perform their
duties.
Local Autonomy In relation to LGUS, the President only
Local autonomy can be considered a measure of has the power of supervision over LGUS.
decentralization of the functions of government. Thus, he cannot interfere with the local
Under the principle of local autonomy and governments along as they act within
decentralization, LGUs have more powers, the scope of their authority.
authority, responsibilities and resources.
Under the LGC (§25), the President
exercises direct supervision over
provinces, highly urbanized cities and
Decentralization
independent component cities. He
It is the devolution of national administration, not
exercises indirect supervision over
power, to the local levels, in which local official
component cities and municipalities
remain accountable to the central government in
through the provinces. He also exercises
the manner the law may provide.
indirect supervision over barangays
through the city or municipality
concerned.
Levels of Decentralization
Control
1. Administrative Autonomy
a. The central government delegates It means the power of an officer to alter
administrative powers to the political or modify or nullify or set aside what a
subdivisions. subordinate officer has done in the
b. Purposes performance of his/her duties and to
1. To broaden the local power base substitute the judgment of the former
2. To make the units more responsive for that of the latter.
and accountable In relation to LGUs, it is Congress which
3. To ensure the full development of exercises control over them.
LGUs into self-reliant communities
4. To break the monopoly of the national
government over managing local
affairs Police Power
5. To relieve the national government Police power is not inherent in municipal
from the burden of managing local corporations. Under the LGC, LGUs exercise police
affairs power under the general welfare clause (See §
2. Political Autonomy 16)
a. Involves the abdication of political power Branches of the general welfare clause
in favor of LGUs declared to be 1. One branch relates to such ordinances and
autonomous regulations as may be necessary to carry into
b. It would amount to self-immolation effect and discharge the powers and duties
because the autonomous government conferred upon the municipal council by law.
would become accountable to its 2. The second branch is more independent of the
specific functions of the council. It authorizes
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ordinances as are necessary and proper to
provide for the health and safety promote
prosperity, improve moral, peace, good order Taxation
etc. Power to tax of LGUs is now pursuant to
direct authority conferred by the 1987
Constitution.
Since LGUs have no inherent power to
tax, their power must yield to a
Eminent Domain and Reclassification of Land legislative act.
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Panlungsod in highly
urbanized cities
Requisites of valid municipal contracts: Mayor, Vice Mayor of At least 21 years old
6. LGU has express, implied or inherent power to independent
enter into a particular contract; component cities or
7. Entered into by proper department, board, municipalities
committee, or agent; Member of At least 18 years old
8. must comply with substantive requirements; Sangguniang
9. must comply with formal requirements; Panglungsod, Member
10. in case entered into by local chief executive of Sangguniang
on behalf of LGU, prior authorization by Bayan, Punong
Sanggunian concerned is needed Barangay, Member of
Sangguniang
Barangay
Municipal Liability
Disqualifications for Local Elective Officials
Rule: Local Government units and their officials (§ 40)
are not exempt from liability for death or injury to 8. Those sentenced by final judgment for an
persons or damage to property (Sec 24 R.A. offense involving moral turpitude, or for an
7160) offense punishable by 1 year or more or
imprisonment within 2 years after serving
Doctrine of Implied Municipal Liability sentence
A municipality may become obligated upon an 9. Those removed from office as a result of an
implied contract to pay the reasonable value of administrative case.
the benefits accepted or appropriated by it as to 10. Those convicted by final judgment for
which it has the general power to contract; the violating the oath or allegiance to the Republic
doctrine applies to all cases where money or other 11. Those with dual citizenship
property of a party is received under such 12. Fugitives from justice in criminal or non-
circumstances that the general law, independent political cases here or abroad
or an express contract, implies an obligation to do 13. Permanent residents in a foreign country or
justice with respect to the same (Nachura, those who have acquired the right to reside
Reviewer in Political Law, p. 499) abroad and continue to avail of the same right
after the effectivity of this Code
14. The insane of feeble minded
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12. Removed from office voters in each district in the immediately
13. Voluntarily resigns preceding local election
14. Permanently incapacitated to h. The general rule is that the successor (by
discharge the functions of his office appointment) should come from the same
f. Filling of vacancy political party as the Sanggunian member
3. Automatic succession whose position has become vacant. The
exception would be in the case of vacancy in
the Sangguniang barangay.
VACANCY SUCCESSOR
4. In the office of the Vice-Governor, Vice-
governor, mayor Mayor Temporary Vacancy
5. In the office of the Highest ranking Grounds (not exclusive list)
governor, vice- Sanggunian member 4. Leave of absence
governor, mayor or 5. Travel abroad
vice-mayor 6. Suspension from office
6. In the office of the Second highest ranking If the positions of governor, mayor or
highest ranking Sanggunian member punong barangay become temporarily
Sangguniang vacant, the vice-governor, vice-mayor
member (who was or highest ranking Sanggunian member
supposed to fill the will automatically exercise the powers
vacant position of and perform the duties and functions of
governor etc. the local chief executive concerned.
4. In the office of the Highest ranking Exception: He/she cannot exercise the
punong barangay sangguniang barangay power to appoint, suspend or dismiss
member/2nd highest employees. Exception to exception: If
ranking sanggunian the period of temporary incapacity
member exceeds 30 working days.
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Grounds for Disciplinary Actions (§ 60) ground/s existing and known at the time
CODE: DCDCAUAS of the first suspension.
An elective local official may be disciplined,
suspended or removed from office on any of the Suspension
following grounds: It should not exceed the unexpired term
9. Disloyalty to the Republic of the Philippines of the respondent or a period of 6
10. Culpable violation of the Constitution months for every administrative offense.
11. Dishonesty, oppression, misconduct in office, Penalty is NOT a bar to the candidacy of
gross negligence, dereliction of duty the respondent suspended as long as he
12. Commission of any offense involving moral meets the qualifications for the office.
turpitude or an offense punishable by at least
prison mayor
13. Abuse authority Removal as result of Administrative
14. Unauthorized absence for 15 consecutive Investigation
working days, except in the case of members It serves as a BAR to the candidacy of the
of the Sanggunian panlalawigan, Sangguniang respondent for any elective position.
panlungsod, Sangguniang bayan,
Sangguniang barangay.
15. Application for acquisition of foreign
citizenship or residence or the status of an RECALL (§§ 69-75)
immigrant of another country. Recall is the power of the electorate (registered
16. Such other ground as may be provided by the voters) to remove a local elected official for loss of
Code/other laws. confidence through the holding of a special/recall
election.
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members in the city Elective local official can be the subject of a recall
3. Legislative Elective municipal/barangay election only once during his term of office
District officials No recall shall take place within 1 year from the
4. Municipal Punong barangay and date of the official’s assumption to office or 1 year
sangguniang barangay immediately preceding a regular local election.
members in the municipality
The date set for the recall election should not be Effectivity of Proposition
less than 30 days after filing of resolution/petition If proposition is approved by majority of the votes
in the case of barangay, city or municipal officials cast, it will take effect 15 days after certification
and 45 days in the case or provincial officials by the COMELEC as if the Sanggunian and the
local chief executive had taken affirmative action.
If it fails to obtain required number of votes, it is
considered defeated
Effectivity of Recall
Recall with only be effective upon the election and
proclamation of a successor. Limitations
If the official sought to be recalled receives the 1. It should not be exercised more than once a
highest number of votes, confidence in him is year.
affirmed and he shall continue in office. 2. It can only extend to subjects or matters
which are within the legal powers of the
Limitations on Recall Sanggunians to enact.
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3. If the Sanggunian adopts in toto the processes to raise easy money. Respondent’s hold
proposition presented and the local chief on his item at the Mandaue City revenue office,
executive approves the same, the initiative which, like our customs offices, is a common situs
shall be cancelled. for corrupt activities, is no more lasting than his
fidelity to his trust. Although no criminal verdict
deprives respondent of his liberty, adequate
Limitations upon Sanggunians evidence justifies his removal from the
1. The Sanggunian cannot repeal, modify or bureaucracy for forfeiting the public trust. Hon.
amend any proposition or ordinance approved Primo C. Miro, etc. vs. Reynaldo M. Dosono, G.R.
through system of initiative/referendum within No. 170697, April 30, 2010.
6 months from the date of approval thereof.
2. The Sanggunian can amend, modify or repeal
the proposition/ordinance w/in 3 years
thereafter by a vote of ¾ of all its members. Essential elements
3. For baranggays, the applicable period is 18 1. Created by Constitution or by law or by some
months. body or agency which the power to create the
office has been delegated (enabling law)
2. Invested with authority to exercise some
REFERENDUM (§§ 126-127) portion of the sovereign power of the State
It is the legal process whereby the registered 3. Powers/Functions defined by the Constitution,
voters of the local government units may approve, law, or through legislative authority
amend or reject any ordinance enacted by the 4. Duties are performed independently without
Sanggunian. control unless those of a subordinate
5. Continuing / permanent in nature
Authority of Courts
The proper courts can still declare void any
proposition adopted pursuant to an Distinctions
initiative/referendum on the following grounds Public Official is an officer of the Government
itself, as distinguished from the officers and
a. Violation of the Constitution employees of instrumentalities of government.
b. Want of capacity of the Sanggunian concerned Officer is dignity from an employee in the greater
to enact the measure. importance, dignity and independence of his
position, being required to take an official oath,
and perhaps give an official bond and in the
LAW ON PUBLIC OFFICERS liability to be called to account as a public
offender for misfeasance or nonfeasance in office.
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2. Formal qualifications: A) Appointment
1. citizenship, Appointment is the act of designation by
2. age, the executive officer, board, or body to
3. suffrage, whom that power has been delegated,
4. residence, of the individual who is to exercise the
5. education, powers and functions of a given office.
6. ability to read and write, It is to be distinguished from the
7. political affiliation, selection or designation by a popular
8. civil service examination vote.
Power to appoint is generally regarded
3. Disqualifications as an executive function. But it is not
The following are grounds for disqualifications to limited to the executive department.
hold public office:
1. mental or physical incapacity,
Power of appointment is absolute when
the choice of the appointing authority is
2. misconduct or crime,
conclusive. It is conditional where
3. impeachment,
assent or approval by some other officer
4. removal or suspension from office,
or body is necessary to complete the
5. previous tenure of office,
appointment.
6. consecutive terms,
7. holding more than one office, Acceptance of appointment is not
8. relationship with the appointing power, necessary for the completion or validity
9. office newly created or the emoluments of of appointment. However, acceptance is
which have been increased, necessary to possession of office, and to
10. being an elective official, enable appointee to the enjoyment and
11. having been a candidate for any elective responsibility of an office. Acceptance
position, and may be express when it is done verbally
12. grounds under the local government code. or in writing. Acceptance is implied
when without formal acceptance, the
appointee enters upon the exercise of
In the absence of constitutional
the duties and functions of an office.
inhibition, Congress has the same right
to provide disqualifications that it has to The general rule is than an appointment
provide qualifications for office. to an office, once made and complete, is
not subject to reconsideration or
When the constitution has attached a
revocation. The exception is where an
disqualification to the holding of any
officer is removable at will of the
office, Congress cannot remove it under
appointing power.
power to prescribe qualifications as to
such offices as it may create.
Steps in the Appointing Process:
Presumption is in favor of eligibility. 1. Nomination – exclusive prerogative of the
The qualifications are continuing President
requirements and must be possessed 2. Confirmation – belongs to Congress i.e.
not only at the time of appointment or Commission on Appointments
election or assumption of office but 3. Issuance of commission – a commission is a
during the officer’s entire tenure. written authority from a competent source
given to the officer as his warrant for the
Limitations on the power of the legislature to exercise of the powers and duties of the office
prescribe qualifications: to which he is commissioned.
1. The legislature may not reduce or increase
the qualifications prescribed in an Confirmation on the part of the Civil Service
exclusive manner by the Constitution. Commission is called “Attestation”.
2. The legislature may prescribe only general
qualifications. B) Designation
3. The qualifications must be relevant to the Designation is simply the mere
office for which they are prescribed. imposition of new or additional duties
upon an officer to be performed by him
4. Selection for Public Office in a special manner. It presupposes that
A public officer is chosen either by appointment or the officer is already in the service by
election.
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virtue of an earlier appointment, been duly reelected, is no longer amenable to
performing other functions. administrative sanctions.”
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expressed through the ballot. In other words,
there is neither subversion of the sovereign will Usurper is one who takes possession of
nor disenfranchisement of the electorate to speak the office and undertakes to act officially without
of, in the case of reappointed coterminous any color of right or authority, either actual or
employees. apparent.
It is the will of the populace, not the whim of one 3. Effects of Acts of De Facto Officers
person who happens to be the appointing 1. The lawful acts of an officer de facto, so
authority, that could extinguish an administrative far as the rights of third persons are
liability. Since petitioners hold appointive concerned are, if done within the scope
positions, they cannot claim the mandate of the and by the apparent authority of the
electorate. The people cannot be charged with office, considered valid and binding as if
the presumption of full knowledge of the life and he were the officer legally elected and
character of each and every probable appointee of qualified for the office and in full
the elective official ahead of the latter’s actual possession thereof.
reelection. 2. The de facto officer cannot benefit from
his own status because public policy
demands that unlawful assumption of
Moreover, the unwarranted expansion of
public office be discouraged. Thus, as a
the Pascual doctrine would set a dangerous
general rule, the de facto officer cannot
precedent as it would, as respondents posit,
claim a salary and other compensations
provide civil servants, particularly local
for services rendered by him as such.
government employees, with blanket immunity
However, there is authority to the effect
from administrative liability that would spawn and
that the de facto officer may retain
breed abuse in the bureaucracy. Atty. Vicente E.
salaries collected by him for services
Salumbides, Jr., et al. vs. Office of the
rendered in good faith where there is no
Ombudsman, et al., G.R. No. 180917, April 23,
de jure officer claiming the office.
2010.
3. The de facto officer is subject to the
same liabilities imposed on the de jure
officer in the discharge of official duties,
in addition to whatever special damages
may be due from him because of his
DE FACTO AND DE JURE OFFICERS unlawful assumption of office.
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subsidiaries of government-owned or controlled subject to his pleasure, or which is limited
corporations under the general corporation law. to the duration of a particular project for
which purpose employment was made.
The Non-Career Service includes:
2. Positions in the Civil Service 1. Elective officials and their personal or
Positions in the Civil Service are classified into: confidential staff;
1. career service 2. Department Heads and other officials of
2. non-career service Cabinet rank who holds the positions at
the pleasure of the President and their
personal or confidential staff;
Career Service 3. Chairman and members of
The Career Service is characterized by: commissions and boards with fixed
1. entrance based on merit and fitness to terms of office and their personal or
be determined, as far as practicable, by confidential staff;
competitive examinations, or based on 4. Contractual personnel or those whose
highly technical qualifications; employment in the government is in
2. opportunity for advancement to higher accordance with a special contract to
career positions; and undertake a specific work or job, requiring
3. security of tenure special or technical skills not available in
the employing agency, to be accomplished
within a specific period, which in no case
The Career Service includes: shall exceed one year, and performs or
1. Open career positions for which prior accomplishes the specific work or job,
qualification in an appropriate examination under his own responsibility with
is required; minimum of direction and supervision
2. Closed career positions which are from the hiring agency; and
scientific or highly technical in nature; 5. Emergency and seasonal personnel.
3. Positions in the Career Executive
Service – Undersecretary, Asst.
Secretary, Bureau Director, Asst. Bureau 3. Appointments
Director, Regional Director, Asst. Regional Appointments in the Civil Service may either be
Director, Chief of Dept. Service, and other permanent or temporary;
officers of equivalent rank as may be 1. Permanent – issued to a person who meets
identified by the Career Executive Service all the requirements for the position to which
Board, all of whom are appointed by the he is being appointed, including the
President; appropriate eligibility prescribed, in
4. Career officers, other than those in accordance with the provisions of the laws,
the Career Executive Service, who are rules, and standards promulgated in
appointed by the President, such as the pursuance thereof.
Foreign Service Officers in the DFA; 2. Temporary – issued in the absence of
5. Commissioned officers and enlisted appropriate eligible when necessary in the
men in the Armed Forces, which shall public interest to fill a vacancy to a person
maintain a separate merit system; who meets all the requirements for the
6. Personnel of GOCCs, whether position to which he is being appointed,
performing governmental or proprietary except the appropriate civil service eligibility.
functions, who do not fall under the non- Temporary appointments shall not exceed 12
career service; and months, but the appointee may be replaced
7. Permanent laborers, whether skilled, sooner if a qualified civil service eligible
semi-skilled, or unskilled. becomes available.
NOTE: Where a temporary appointee acquires
Non-Career Service civil service eligibility during his tenure as
The Non-Career Service is characterized by: such, his temporary appointment does not
1. Entrance on bases other than those of thereby automatically become permanent.
usual tests of merit and fitness utilized for What is required is a new appointment.
the career service; and (Maturan v. Magalona)
2. Tenure which is limited to a period
specified by law, or which is co-terminous Provincial Appointment – one which may
with that of the appointing authority or be issued, upon the prior authorization of the
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Commissioner of the Civil Service Commission rank rule or by any other method authorized by
in accordance with the provisions of the Civil law, e.g., by transfer.
Service Law and the rules and standards
promulgated thereunder, to a person who has
not qualified in an appropriate examination 6. Discipline
but who has not regular position in the
requirements for appointment to a regular Grounds for the discipline of members of the
position in the competitive service, whenever Civil Service:
a vacancy occurs and the filling thereof is 1. dishonesty
necessary in the interest of the service and 2. oppression
there is no appropriate register of eligibles at 3. neglect of duty
the time of appointment. 4. misconduct
5. disgraceful and immoral conduct
Distinguished from a Temporary 6. being notoriously undesirable
appointment – temporary appointment given 7. discourtesy in the course of official
to a non-civil service eligible is without a duties
definite tenure and is dependent upon the 8. inefficiency and incompetence in the
pleasure of the appointing power. performance of official duties
9. conviction of a crime involving moral
turpitude
4. Exception from Requirement of 10. falsification of official documents
Competitive Examinations 11. habitual drunkenness
The following positions are excepted from the 12. gambling
requirement of competitive examinations: 13. refusal to perform official duty or
1. policy determining – charged with render overtime service
laying down of principal and 14. physical or mental incapacity due to
fundamental guidelines or rules, such immoral or vicious habits
as that of a head of a department. 15. willful refusal to pay just debts or
2. primarily confidential – denotes willful failure to pay taxes due to the
close intimacy which ensures freedom government
of intercourse without embarrassment
or freedom from misgivings or Preventive Suspension
betrayals of personal trust or Two Kinds
confidential matters of state; or one 1. Preventive Suspension Pending Investigation
declared to be so by the President 2. Preventive Suspension Pending Appeal
upon recommendation of the Civil The duration of preventive suspension is
Service Commission. Their tenure coextensive with the period prescribed for
ends upon loss of confidence. deciding administrative disciplinary cases. If
3. highly technical – requires in the the case is decided before ninety (90) days
appointee to possess technical skill or then the suspension will last less than ninety
training in the supreme or superior (90) days, but if the case is not decided with
degree. ninety (90) days, then the suspension may
not exceed the maximum period of ninety
5. Promotion (90) days.
The movement from one position to another with
increase in duties and responsibilities as
authorized by law and usually accompanied by an SCOPE OF POWER OF A PUBLIC OFFICER
increase in pay.
Scope of power of a public officer consists of those
Next-in-Rank Rule – The person next in rank shall powers which are:
be given preference in promotion when the 1. expressly conferred upon him by the
position immediately above his vacated. However, law under which he has been
the concept of next-in-rank does not import any appointed or elected;
mandatory or peremptory requirement that the 2. expressly annexed to the office by the
person next in rank must be appointed to the law which created it or some other law
vacancy. The appointing authority has the referring to it; or
discretion to fill the vacancy under the next-in- 3. attached to the office as incidents to
it.
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Acts of the Government or People
Doctrine of Necessary Implication: 1. Removal
The fact that a particular power has not been 2. Impeachment
expressly conferred does not necessarily mean 3. Abolition of Office
that it is not possessed by the official claiming it. 4. Conviction of a crime
Such a power may still be sustained under the 5. Recall
doctrine of necessary implication pursuant to
which all powers necessary to the exercise of the
power expressly granted are deemed impliedly
granted. OTHER IMPORTANT CONCEPTS
Natural Causes
1. Expiration of the term or tenure of office
2. Reaching the age limit (retirement)
3. Death or permanent disability ELECTION LAW
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Components: A. Election in any polling place was not held
Choice or selection of candidates to on the date fixed;
public office by popular vote B. Election was suspended before the hour
Conduct of the polls fixed by law for the closing of the voting
C. Elections results in a failure to elect (after
Listing of votes
the voting and during the preparation and
Holding of Electoral campaign transmission of the election returns or in
Act of casting and receiving the ballots the custody or canvass thereof)
from the voters
Counting the ballots Remedy:
Making the election returns COMELEC can, on the basis of a verified petition
Proclaiming the winning candidates by any interested party, and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended, or which resulted in
REGULAR ELECTION – an election participated a failure to elect. This is decided by the COMELEC,
in by those who possess the right of suffrage and by a majority vote of its members, sitting en
not disqualified by law and who are registered banc.
voters
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Criteria to Determine the Type of Political Nomination of party-list reps should not include
Party any candidate for any elective office or a person
a. Established Record of the said parties, who has lost his bid for an elective office in the
showing in past elections immediately preceding election
b. Number of Incumbent Elective Officials
c. Identifiable political organizations and Incumbent sectoral representatives in the House
strengths of Representatives who are nominated in the
d. Ability to fill a complete slate of party-list system shall not be considered resigned
candidates
e. Other analogous circumstances Party-list Reps constitute 20% of the total number
of the members of the House of Reps including
those under the party-list
Acquisition of Juridical Personality
It is acquired upon registration with the COMELEC.
Q: How do we determine the number of
NOTE: No religious sect shall be registered as a party-list seats in the House of Reps?
political party. (# of District Reps / o.80) x 0.20 = # of party list
No political party which seeks to achieve its goal reps
through violence shall be entitled to accreditation. There are presently 208 legislative
districts, according to the Veterans
Federation Case
Forfeiture of Status as Registered Political The 5 major political parties are now
Party entitled to participate in the party-list
The status shall be deemed forfeiture if the system
political party, singly or in coalition with others,
fails to obtain at least 10% of the votes cast in
Parties receiving at least 2% of the total
votes cast for the party-list system shall
cast in the constituency in which it nominated and
be entitled to one seat each
supported a candidate/s in the election next
following its registration. There shall be notice and No party shall be entitled to more than
hearing. 3 seats
Currently, there are 260 (208/0.80)
seats. So 20% of 260 us 52 seats. But
RA 7941 – Party-List System Act this is only a ceiling.
A. Seeks to promote proportional A list with 5 names should be submitted
to COMELEC as to who will represent the
representation party in the Congress. Ranking in the
B. Any party already registered need list submitted determines who shall
not register anew. File manifestation represent party or organization.
not later than 90 days before
election. Q: May political parties participate in the
party-list elections?
Grounds for refusing or canceling A: Yes, provided that the political parties
registration of Party-Lists groups themselves represent the marginalized and
a. Religious sect or denomination, organization under represented sectors, parties and
b. Advocates violence organizations. (Ang Bagong Bayani-OFW Labor
c. Foreign party of organization Party v. COMELEC, G.R. No. 147589 26 June
d. Receives foreign support 2001).
e. Violates election law
f. Untruthful statements in its petition
g. Ceased to exist for at least one year
h. Failed to participate in the last two preceding
elections or fails to obtain at least 2% of the
votes cast under the party-list system in the 2
preceding elections for the constituency in
which it has registered
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QUALIFICATIONS
Elective Citizenship Age Literacy Voter Presidency
officials
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c. spending in his election campaign an
amount in excess of that allowed
d. soliciting, receiving, making prohibited
Rules on Substitution and Withdrawal of contributions; or
Candidacy e. committing prohibited acts under Sections
1. Any candidate may withdraw his/her 80, 83, 85, 86, and 261 pars. D, e, k, v,
candidacy anytime before election day. and cc, sub-par. 6
2. Substitution is only allowed in the 3. Not possessing qualifications and possessing
following instances: disqualifications under the Local Government
a. death Code
b. withdrawal a. Sentenced by final judgment for an
c. disqualification offense involving moral turpitude or for an
3. No substitution is allowed for an offense punishable by one year or more of
independent candidate. Only candidates imprisonment within two years after
who are members of and are nominated serving sentence
by a party can be substituted. b. Removed from office as a result of an
4. Substitute candidate may file his/her administrative case
certificate of candidacy not later than mid- c. Convicted by final judgment for violating
day of election day. the oath of allegiance to the Republic
5. No person who has withdrawn his/her d. Dual citizenship (more specifically, dual
candidacy for a position shall be eligible as allegiance)
a substituted candidate for any other e. Fugitives from justice in criminal or non-
position. political cases here or abroad
6. The filing of the withdrawal shall not affect f. Permanent residents in a foreign country
the civil, criminal, or administrative or those who have acquired the right to
liabilities the substituted candidate may reside abroad and continue to avail of the
have already incurred. same right
7. In case of valid substitutions, votes cast g. Insane or feeble-minded
for substituted candidates are considered 4. Nuisance candidate
stray, except if the substitute candidate 5. Violation of sec 73 of OEC with regard to
has the same surname. Official ballots certificate of candidacy (filing a certificate of
shall provide spaces where voters may candidacy for more than one office)
write the names of the substitute 6. Violation of sec. 78: material
candidates. (Fair Election Act) misrepresentation in the certificate of
candidacy
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Nuisance candidates votes and/or undertaking any campaign or
A. The term refers to candidates who have no propaganda for or against candidate.
bona fide intention to run for the office for C. Making speeches, announcements or
which the certificate of candidacy has been commentaries or holding interviews for or
filed and would thus prevent a faithful against the election of any candidate for
determination of the true will of the people. public office.
D. Publishing or distributing campaign
literature or materials designed to support
B. Power of COMELEC or oppose the election of any candidate.
E. Directly or indirectly soliciting votes,
1. May refuse to give due course to or pledges or support for or against a
cancel a certificate of candidacy of a candidate.
nuisance candidate. This can be done F. Advertisements
motu proprio or upon verified petition of 3) When the acts enumerated above are NOT
an interested party. considered an election campaign/partisan
2. There should be a showing that: political activity – if the acts are performed for
A. Certificate of candidacy has the purpose of enhancing the chances of
been filed to put the election aspirants for nomination for candidacy to a
process in mockery/disrepute or public office by a political party, agroupment,
B. To cause confusion among the or coalition of parties.
voters by the similarity of the
names of the registered BALLOTS; REVISION.
candidates
C. Other circumstances which
The COMELEC did not commit grave abuse of
clearly demonstrate that the
discretion when it order the revision of 44 ballots
candidate has no bona fide
with the Senate Electoral Tribunal without first
intention to run for the office...
reolsivng whether 16 of those 44 ballots should be
included in the revision.
Petition to deny due course to or to cancel a In regular election contests, the general averment
certificate of candidacy of fraud or irregularities in the counting of votes
A. Exclusive ground: A material representation in justifies the examination of the ballots and
the certificate of candidacy is false. recounting of votes. This process of examination
B. The petition should be filed not later than 25 is the revision of the ballots pursuant to Section 6,
days from the filling of the certificate of Rule 20 of the 1993 COMELEC Rules of Procedure.
candidacy.
C. It should be decided not later than 15 days The protests involved herein assailed the
before the election, after due notice and authenticity of the election returns and the
hearing. veracity of the counting of the ballots. In that
regard, the ballots themselves are the best
evidence. The only means to overcome the
presumption of legitimacy of the election returns
Election Campaign/Partisan Political Activity is to examine and determine first whether the
ballot boxes have been substantially preserved in
Definitions the manner mandated by law. Hence, the
1) It refers to an act designed to promote the necessity to issue the order of revision.
election or defeat of a particular candidates to
a public office No ruling could be handed down against the
2) It includes: integrity of the ballot boxes that would effectively
A. Forming organizations, associations, render naught the evidentiary value of the ballots
clubs, committees or other groups of they contained unless a full blown trial on the
persons for the purpose of soliciting votes merits was first conducted. Tolentino should
and/or undertaking any campaign for accept the legal impossibility for the Division to
against a candidate. rule on the issue of inclusion or exclusion of the
B. Holding political caucuses, conferences, set-aside ballot boxes except after the revision
meetings, rallies, parades or other similar process. Mayor Abraham N. Tolentino vs.
assemblies for the purpose of soliciting Commission on Elections, et al./Vice-Mayor Celso
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P. De Castro vs. Commission on Elections, et What we say here should of course take into
al., G.R. Nos. 187958, G.R. No. 187961 & account our ruling in Barangay Association for
187962/G.R. No. 187966, G.R. No. 187967 & Advancement and National Transparency v.
187968. April 7, 2010. COMELEC (Banat) where we partly invalidated the
2% party-list vote requirement provided in RA
PARTY LIST; DELISTING. 7941 as follows: ”We rule that, in computing the
allocation of additional seats, the continued
operation of the two percent threshold for the
Our Minero ruling is an erroneous application of
distribution of the additional seats as found in the
Section 6(8) of RA 7941; hence, it cannot sustain
second clause of Section 11(b) of R.A. No. 7941 is
PGBI’s delisting from the roster of registered
unconstitutional. This Court finds that the two
national, regional or sectoral parties,
percent threshold makes it mathematically
organizations or coalitions under the party-list
impossible to achieve the maximum number of
system.
available party list seats when the number of
available party list seats exceeds 50. The
First, the law is clear – the COMELEC may motu continued operation of the two percent threshold
proprio or upon verified complaint of any in the distribution of the additional seats
interested party, remove or cancel, after due frustrates the attainment of the permissive ceiling
notice and hearing, the registration of any that 20% of the members of the House of
national, regional or sectoral party, organization Representatives shall consist of party-list
or coalition if it: (a) fails to participate in the last representatives.”
two (2) preceding elections; or (b) fails to obtain
at least two per centum (2%) of the votes cast
The disqualification for failure to get 2% party-list
under the party-list system in the two (2)
votes in two (2) preceding elections should
preceding elections for the constituency in which it
therefore be understood in light of the Banat
has registered. The word “or” is a disjunctive
ruling that party-list groups or organizations
term signifying disassociation and independence
garnering less than 2% of the party-list votes may
of one thing from the other things enumerated; it
yet qualify for a seat in the allocation of additional
should, as a rule, be construed in the sense in
seats.
which it ordinarily implies, as a disjunctive
word. Thus, the plain, clear and unmistakable
language of the law provides for two (2) separate We need not extensively discuss Banat’s
reasons for delisting. significance, except to state that a party-list group
or organization which qualified in the second
round of seat allocation cannot now validly be
Second, Minero is diametrically opposed to the
delisted for the reason alone that it garnered less
legislative intent of Section 6(8) of RA 7941, as
than 2% in the last two elections. In other words,
PGBI’s cited congressional deliberations clearly
the application of this disqualification should
show.
henceforth be contingent on the percentage of
party-list votes garnered by the last party-list
Minero therefore simply cannot stand. Its basic organization that qualified for a seat in the House
defect lies in its characterization of the non- of Representatives, a percentage that is less than
participation of a party-list organization in an the 2% threshold invalidated in Banat. The
election as similar to a failure to garner the 2% disqualification should now necessarily be read to
threshold party-list vote. What Minero effectively apply to party-list groups or organizations that did
holds is that a party list organization that does not not qualify for a seat in the two preceding
participate in an election necessarily gets, by elections for the constituency in which it
default, less than 2% of the party-list votes. To registered.
be sure, this is a confused interpretation of the
law, given the law’s clear and categorical
To reiterate, (a) Section 6(8) of RA 7941 provides
language and the legislative intent to treat the
for two separate grounds for delisting; these
two scenarios differently. A delisting based on a
grounds cannot be mixed or combined to support
mixture or fusion of these two different and
delisting; and (b) the disqualification for failure to
separate grounds for delisting is therefore a
garner 2% party-list votes in two preceding
strained application of the law – in jurisdictional
elections should now be understood, in light of the
terms, it is an interpretation not within the
Banat ruling, to mean failure to qualify for a
contemplation of the framers of the law and hence
party-list seat in two preceding elections for the
is a gravely abusive interpretation of the law.
constituency in which it has registered. This, we
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declare, is how Section 6(8) of RA 7941 should be above enunciated, it cannot be denied that Asistio
understood and applied. We do so under our has qualified, and continues to qualify, as a voter
authority to state what the law is, and as an of Caloocan City. There is no showing that he has
exception to the application of the principle of established domicile elsewhere, or that he had
stare decisis. Philippine Guardians Brotherhood, consciously and voluntarily abandoned his
Inc. (PGBI), etc. vs. Commission on residence in Caloocan City. He should, therefore,
Elections, G.R. No. 190529. April 29, 2010. remain in the list of permanent registered voters
of Precinct No. 1811A, Barangay 15, Caloocan
VOTER; RESIDENCY REQUIREMENT. City.
The the residency requirement of a voter is at That Asistio allegedly indicated in his Certificate of
least one (1) year residence in the Philippines and Candidacy for Mayor, both for the 2007 and 2010
at least six (6) months in the place where the elections, a non-existent or false address, or that
person proposes or intends to vote. “Residence,” he could not be physically found in the address he
as used in the law prescribing the qualifications indicated when he registered as a voter, should
for suffrage and for elective office, is doctrinally not operate to exclude him as a voter of Caloocan
settled to mean “domicile,” importing not only an City. These purported misrepresentations in
intention to reside in a fixed place but also Asistio’s COC, if true, might serve as basis for an
personal presence in that place, coupled with election offense under the Omnibus Election Code
conduct indicative of such intention inferable from (OEC), or an action to deny due course to the
a person’s acts, activities, and utterances. COC. But to our mind, they do not serve as proof
“Domicile” denotes a fixed permanent residence that Asistio has abandoned his domicile in
where, when absent for business or pleasure, or Caloocan City, or that he has established
for like reasons, one intends to return. In the residence outside of Caloocan City. Luis A. Asistio
consideration of circumstances obtaining in each vs. Hon. Thelma Canlas Trinidad-Pe Aguirre, etc.
particular case, three rules must be borne in et al., G.R. No. 191124. April 27, 2010.
mind, namely: (1) that a person must have a
residence or domicile somewhere; (2) once
established, it remains until a new one is
acquired; and (3) that a person can have but one FAIR ELECTION ACT
residence or domicile at a time.
Important Features:
Domicile is not easily lost. To successfully effect a 1) Repeal of Sec. 67 of the OEC – Now, any
transfer thereof, one must demonstrate: (1) an ELECTIVE official, whether national or local,
actual removal or change of domicile; (2) a bona running for any office other than the one
fide intention of abandoning the former place of which he is holding in a permanent capacity
residence and establishing a new one; and (3) shall not be considered ipso facto
acts which correspond with that purpose. There resigned from his office upon the filling of his
must be animus manendi coupled with animus certificate of candidacy.
non revertendi. The purpose to remain in or at the 2) Lifting of the Political Ad Ban – The
domicile of choice must be for an indefinite period following are now considered lawful election
of time; the change of residence must be propaganda:
voluntary; and the residence at the place chosen a. Written and Printed Materials (8.5” W x
for the new domicile must be actual. 14L”)
b. Letter
c. Posters (2’ x 3’) in common-private poster
Asistio has always been a resident of Caloocan
areas (not more than 10 public places per
City since his birth or for more than 72 years. His
political party or independent candidate,
family is known to be among the prominent
12’ 16’), private places and public places
political families in Caloocan City. In fact, Asistio
(allocated equitably and impartially)
served in public office as Caloocan City Second
d. Rally streamers (3’ x 8’)
District representative in the House of
e. Paid advertisements at discounted rates:
Representatives, having been elected as such in
1. Print: 1/4th page in broadsheet
the 1992, 1995, 1998, and 2004 elections. In
and ½ page in tabloid 3x a week
2007, he also sought election as City Mayor. In all
2. TV: 120 mins. for candidate for
of these occasions, Asistio cast his vote in the
national office and 60 minutes for
same city. Taking these circumstances into
local office
consideration, gauged in the light of the doctrines
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3. Radio: 180 mins. for candidate for
national office and 90 minutes for
local office Prohibited Contributions:
f. Comelec free space (3 national Those made directly or indirectly by any of the
newspapers for national offices and 1 following:
national newspaper for local offices) and 1. public or private financial
airtime (3 national television networks for institutions (except loans to a
national offices an 1 station for local candidate or political party)
offices): equal allocation for all candidates 2. public utilities or those exploiting
for 3 calendar days. natural resources of the nation
3. persons with contracts to supply
the government with goods or
Authorized Expenses (multiplied with the total services or to perform
number of registered voters) construction or other works
P 10 for president / vice president 4. grantees of franchises, incentives,
P 3 for other candidates for every voter exemptions, allocations or similar
currently registered in the constituency privileges or concessions by the
government
P 5 for independent candidates and
5. persons who, within one year prior
political parties
to the date of the election, have
been granted loans or other
accommodations in excess of
P100,000 by the government
Electoral Contributions and Expenditures
6. educational institutions which
have received grants of public
CONTRIBUTION (under Sec 94, Omnibus
funds not less than P100,000
Election Code) – includes:
7. officials or employees in the Civil
1. a gift,
Service or members of the Armed
2. donation,
Forces of the Philippines; and
3. subscription,
8. foreigners and foreign
4. loan,
corporations.
5. advance or deposit of money or
anything of value,
6. a contract, promise or agreement
Prohibited means of arising of funds (Sec. 97
of contribution, whether or not
Omnibus Election Code):
legally enforceable
1. Holding any of the following activities:
7. use of facilities voluntarily donated
a. dances
by other persons, the money
b. lotteries
value of which can be assessed
c. cockfights
based on the rates prevailing in
d. games
the area.
e. boxing bouts
Made for the purpose of influencing
f. bingo
the results of the elections.
g. beauty contest
DOES NOT INCLUDE services rendered
h. entertainments
without compensation by individuals
i. cinematographic, theatrical, or other
volunteering a portion or all of their
performances
time in behalf of a candidate or
political party.
for the purpose of raising funds for an election
campaign or for the support of any candidate from
the commencement of the election period up to an
including election day.
EXPENDITURE – includes the payment or
2. It shall also be unlawful for any person or
delivery of money or anything of value, or a
organization to solicit and/or accept from any
contract, promise or agreement to make an
candidate for public office any gift, food,
expenditure, for the purpose of influencing the
transportation, contribution or donation in
results of the election. It shall also include the use
cash or in kind from the commencement of
of facilities personally owned by the candidate,
the election period up to and including
the money value of the use of which can be
assessed on the rates prevailing in the area.
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election day, EXCEPT normal and customary NOTE: Residence is equal to domicile. Hence, a
religious stipends, tithes or collections. person may be physically absent from his
residence for a short, or even long period of time,
due to work, studies, etc., but as long as he has
Lawful Expenditures: the INTENT TO RETURN to his place of residence,
1. For traveling expenses and corollary to this, NO INTENT TO SETTLE in the
2. Compensation of campaigners, clerks, place where he is physically present, he/she is still
stenographers, messengers, and other a resident in his original domicile (see Imelda
persons actually employed in the campaign Marcos case).
3. Telegraph and telephone tolls, postage,
freight and express delivery charges
4. Stationary, printing and distribution of printed
matters relative to candidacy
5. Employment of watchers at the polls
6. Rent, maintenance and furnishing of campaign
headquarters, office, or place of meetings REPUBLIC ACT NO. 9189 – THE OVERSEAS
7. Political meetings and rallies ABSENTEE
8. Advertisements VOTING ACT OF 2003
9. Employment of counsel, the cost of which
shall not be taken into account in determining
the amount of expenses which a candidate or
political party may have incurred
10. Copying and classifying list of voters,
investigating and challenging the right to vote
of persons registered in the lists, the cost of
which shall not be taken into account in The Overseas Absentee Voting Act of 2003, also
determining the amount of expenses which a known as ‘Absentee Voting Law’, is the law that
candidate or political party may have incurred ‘ensures equal opportunity to all qualified citizens
11. Printing sample ballots, the cost of which shall of the Philippines abroad’ to exercise their right to
not be taken into account in determining the vote (suffrage) in the election of President, Vice
amount of expenses which a candidate or President, Senators and Party-List
political party may have incurred Representatives.
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disqualified to vote under this subsection shall 2. The embassies, consulates and other
automatically acquire the right to vote upon foreign service establishments shall
expiration of five (5) years after service of transmit within (5) days from receipt the
sentence; Provided, further, That the accomplished registration forms to the
Commission may take cognizance of final Commission, after which the Commission
judgments issued by foreign courts or shall coordinate with the Election Officer
tribunals only on the basis of reciprocity and of the city or municipality of the
subject to the formalities and processes applicant’s stated residence for
prescribed by the Rules of Court on execution verification, hearing and annotation in the
of judgments; permanent list of voters.
4. An immigrant or a permanent resident who is 3. Upon receipt of the application for
recognized as such in the host country, unless registration, the Election Official shall
he/she executes, upon registration, an immediately set the application for
affidavit prepared for the purpose by the hearing, the notice of which shall be
Commission declaring that he/she shall posted in a conspicuous place in the
resume actual physical permanent residence premises of the city or municipal building
in the Philippines not later than three (3) of the applicant’s stated residence for at
years from approval of his/her registration least (1) week before the date of the
under this Act. Such affidavit shall also state hearing. The Election Officer shall
that he/she has not applied for citizenship in immediately furnish a copy of the
another country. Failure to return shall be the application to the designated
cause for the removal of the name of the representatives of political parties and
immigrant or permanent resident from the other accredited groups.
National Registry of Absentee Voters and 4. If no verified objection to the application
his/her permanent disqualification to vote in is filed the Election Officer shall
absentia. immediately forward the application to the
5. Any citizen of the Philippines abroad Election Registration Board, which shall
previously declared insane or incompetent by decide on the application within one (1)
competent authority in the Philippines or week from the date of hearing without
abroad, as verified by the Philippine waiting for the quarterly meeting of the
embassies, consulates or foreign service Board. The applicant shall be notified of
establishments concerned, unless such the approval or disapproval of his/her
competent authority subsequently certifies application by registered mail.
that such person is no longer insane or 5. In the event that an objection to the
incompetent. (Section 5. R.A. 9189) application is filed prior to or on the date
of hearing, the Election Officer shall notify
How shall registration be done? the applicant of said objection by
Registration as an overseas absentee voter shall registered mail, enclosing therein copies
be done in person. (Section 6, RA 9189) of affidavits or documents submitted in
support of the objection filed with the
right to file his counter-affidavit by
What is the procedure of registration? registered mail, clearly stating therein
A. For Qualified citizens of the Philippines abroad facts and defenses sworn before any
who failed to register under Republic Act. No. officer in the host country authorized to
8189, otherwise known as the “The Voters administer oaths
Registration Act of 1996”. 6. The applications shall be approved or
1. They may personally apply for registration disapproved based on the merits of the
with the Election Registration Board of the objection, counter-affidavit and
city or municipality where they were documents submitted by the party
domiciled immediately prior to their objecting and those of the applicant
departure from the Philippines, or with the 7. A certificate of Registration as an overseas
representatives of the Philippines, or with absentee voter shall be issued by the
the representatives of the Commission at Commission to all applicants whose
the Philippine embassies, consulates and applications have been approved,
other foreign service establishment that including those certified as registered
have jurisdiction over the locality where voters. The Commission shall include the
they temporarily reside. approved applications in the National
Registry of Absentee Voters.
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8. In the application has been approved, any 1. Where the mailing system is fairly well-
interested party may file a petition for developed and secure to prevent the
exclusion not later than two hundred ten occasion of fraud;
(210) days before the day of elections 2. Where there exist a technically established
with the proper municipal or metropolitan identification system that would preclude
trial court. The petition shall be decided multiple or proxy voting; and
within fifteen (15) days after its filling on 3. Where the system of reception and
the basis of the documents submitted in custody of mailed ballots in the
connection therewith. Should the court fail embassies, consulates and other foreign
to render a decision within the prescribed service establishments concerned are
period, the ruling of the Election adequate and well-secured.
Registration Board shall be considered
affirmed. Thereafter, voting by mail in any country shall
9. If the application has been disapproved, be allowed only upon review and approval of the
the applicant or his authorized Joint Congressional Oversight Committee.
representative shall, within a period of five (Section 17.1, RA 9189)
(5) days from receipt of the notice of
disapproval, have the right to file a
petition for inclusion with the proper How will the constituting and canvassing of
municipal or metropolitan trial court. The the votes be done?
petition shall be decided within five (5) The counting and canvassing of votes
days after its filling on the basis of shall be conducted on site in the country
documents submitted in connection where the votes were actually cast. The
therewith. opening of the specially-marked
envelopes containing the ballots and the
B. For Qualified citizens of the Philippines counting and canvassing of votes shall
abroad, who have previously registered as be conducted within the premises of the
voters pursuant to Republic Act No. 8189 embassies, consulates and other foreign
service establishments or in such other
They shall apply for certification as places as may be designated by the
absentee voters and for inclusion in the National Commission pursuant to the
Registry of Overseas Absentee Voters, with a implementing Rules and Regulations.
corresponding annotation in the Certified Voters’ The Commission shall ensure that the
List. (Section 6 of RA 9189) start of counting in all polling places
abroad shall be synchronized with the
start of counting in the Philippines.
How shall voting be done? The Commission shall constitutes as
1. The overseas absentee voter shall personally many Special Boards of Election
accomplish his/her ballot at the embassy, inspectors as may be necessary to
consulate or other foreign service conduct and supervise the counting of
establishment that has jurisdiction over the votes.
country where he/she temporarily resides or
at any polling place designated and accredited
Immediately upon the completion of the
counting, the Special Boards of Election
by the Commission. (section 16, RA 9189)
Inspectors shall transmit via facsimile
2. The overseas absentee voter may also vote
and/or electronic mail the results to the
by mail. (Section 17, RA 9189)
Commission in Manila and the
accredited major political parties.
(Section 18, RA 9189)
When may voting by mail be allowed?
For the May, 2004 elections, the Commission shall
Can the canvass of the overseas absentee
authorize voting by mail in not more than three
votes delay the proclamation of winners?
(3) countries, subject to the approval of the
No. The canvass of votes shall not cause the delay
Congressional Oversight Committee. Voting by
of the proclamation of a winning candidate if the
mail may be allowed in countries that satisfy the
outcome of the election will not be affected by the
following conditions:
results thereof. Notwithstanding the foregoing,
the Commission is empowered to order the
proclamation of winning candidates despite the
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fact that the scheduled election has not taken C. RTC will decide the appeal within 10 days.
place in a particular country or countries, if the Decision is final and executory.
holding of elections therein has been rendered D. NOTE: Relate this to Article IX of the
impossible by events, factors and circumstances Constitution which provides that the COMELEC
are beyond the control or influence of the has no jurisdiction over questions involving
Commission. (Section 18, RA 9189) the right to vote.
E. Exclusion is through sworn petition and not
later than 100 days before regular election;
65 days before special election
Disqualifications
A. If sentenced by final judgment to suffer
imprisonment for not less than 1 year and How is challenge to right to register
such disability was not removed by plenary effected?
pardon or has not been granted amnesty. Who – any voter, candidate, political party
However, any person disqualified to vote shall representatives
automatically reacquire the right to vote upon How – in writing, stating grounds, under oath,
expiration of 5 years after service of sentence. proof of notice of hearing
B. Any person who has been adjudged by final
judgment by competent court or tribunal of
having committed any crime involving
disloyalty to the duly constituted government DEACTIVATION means removing the registration
such as rebellion or any crime against national records of persons from the precinct book of
security: voters and places the same, properly marked and
1. UNLESS restored to his full civil and dated in indelible ink, in the inactive file after
political rights in accordance with law. entering the cause of deactivation.
2. However, he shall regain his right to
vote automatically upon expiration of 5
years after service of sentence How is reactivation of registration effected?
C. Insane or incompetent person as declared by 1. Sworn application for reactivation
competent authority. 2. Affidavit
3. Not later than 120 days before regular
election and 90 days before special
election
Jurisdiction in Inclusion/Exclusion cases
A. The municipal and metropolitan trial courts
shall have original and exclusive jurisdiction Annulment of Book of Voters is through
over all matters of inclusion and exclusion of verified petition; notice and hearing; not prepared
voters from the list in their respective in accordance with law or prepared through fraud,
municipalities or cities. Petition filed at any bribery, forgery, impersonation, intimidation,
time except 105 days before regular election force, any similar irregularity or which contains
or 75 days before special election data that are statistically improbable; Cannot be
B. Decisions may be appealed to the RTC within done within 90 days before election
5 days from receipt of notice of decision.
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C. The election returns were prepared under
duress, threats, coercion, or intimidation, or
they are obviously manufactured, or not
authentic.
Pre-Proclamation Controversies D. When substitute or fraudulent returns in
controverted polling places were canvassed,
A. A pre-proclamation controversy refers to any the results of which materially affected the
question pertaining to or affecting the standing of the aggrieved candidate/s.
proceedings of the board of canvassers which
may be raised by any candidate or by any
registered political party or coalition of Procedure
political parties before the board or directly A. Contested composition or proceedings of the
with the COMELEC. board (under RA 7166)
B. It would also refer to any matter raised under It may be initiated in the board or directly
Sections 233, 234, 235, and 236 of the with COMELEC.
Omnibus Election Code in relation to the B. Contested election returns (under RA 7166)
preparation, transmission, receipt, custody, Matters relating to the
and appreciation of the election returns. preparation, transmission, receipt, custody
(Board of canvassers has original jurisdiction and appreciation of the election returns, and
while COMELEC has appellate jurisdiction) certificate of canvass, should be brought in
1. When election returns are delayed, lost the first instance before the board of
or destroyed (Sec.233) canvassers only.
2. Material defects in the election returns
(Sec. 234)
3. When election returns appear to be Summary nature or pre-proclamation
tampered with or falsified. (Sec. 235) controversy
4. Discrepancies in election returns (Sec. A. Pre-proclamation controversies shall be
236) heard summarily by the COMELEC.
B. Its decision shall be executory after the lapse
C. Those that can be filed with COMELEC directly of 5 days from receipt by the losing party of
are the ff: the decision, unless restrained by the SC.
Issue involves the illegal composition or
proceedings of the board of the
canvassers, as when a majority or all of Effect of filling petition to annual or suspend
the members do not hold legal proclamation
appointments or are in fact usurpers It suspends the running of the period within which
Issue involves the correction of manifest to file an election protest or quo warranto
errors in the tabulation or tallying of the proceeding.
results during the canvassing
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BUT: Questions affecting the composition or The defeated candidate seeks to oust the
proceedings of the board of canvassers may be proclaimed winner and claims the seat.
initiated in the board or directly with COMELEC.
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2. Quo warranto may be filed by an voter. An municipality, city or province has been
election protest may be filed only by a offered, promised or given money,
candidate who has duly filed a certificate valuable consideration or other
of candidacy to the same office and has expenditure by a candidate relatives,
been voted for. leaders and/or sympathizers for the
3. Grounds for quo warranto are disloyalty or purpose of promoting the election of
ineligibility of the winning candidate. such candidate.
Grounds for election contest are election 3. Disputable presumption of
fraud and irregularities in the counting involvement
and casting of voters or in the preparation Proof affects at least 20% of the
of the returns. precincts of the municipality, city or
4. In quo warranto, the respondent may be province to which the public office
unseated, but the petitioner may not be aspired for by the favored candidate
installed into the office vacated. In relate. This will constitute a disputable
election contest, the protestee may be presumption of the involvement of
unseated and the protestant may be such candidate and of his principal
installed into the office vacated. campaign managers in each of the
municipalities concerned in the
conspiracy
Election Offenses (Selected Offenses)
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2. Creating or filling any new position
3. Promoting/giving an increase in salary,
remuneration or privilege to any government Suspension of elective, provincial, city,
official or employee. municipal or barangay officer
C. Period when acts are prohibited A. General rule: public official CANNOT suspend
1. 45 days before a regular election any of the officers enumerated above during
2. 30 days before a special election the election period.
D. Exceptions B. Exceptions
1. Upon prior authority of COMELEC if it 1. With prior approval of COMELEC
is satisfied that the position to be 2. Suspension is for the purpose of
filled is essential to the proper applying the Anti-Graft and Corrupt
functioning of the office/agency Practices Act
concerned AND that the position is not
filled in a manner that may influence
the election
2. In case of urgent need, a new
employee may be appointed. Notice of In relation to registration of voters/voting
appointment should be given to
COMELEC within 3 days from Unjustifiable refusal to register and vote-
appointment. NOTE THAT FAILURE TO REGISTER
AND/OR VOTE IS NO LONGER A CRIME.
Voting more than once in the same
election/voting when not a registered
Prohibition against release, disbursement or
voter
expenditure of public funds
Voting in substitution for another with or
A. Who can be held liable: Any public official or without the latter’s knowledge and/or
employee including barangay officials and consent etc.
those of GOCCs/subsidiaries Other election offenses under RA 6646
A. Causing the printing of official ballots and
B. Prohibited acts election returns by printing establishment not
The release, disbursement or expenditure of on contract with COMELEC and printing
public funds for any other kinds of public works establishments which undertakes
unauthorized printing
C. Period when acts are prohibited: B. Tampering increasing or decreasing the votes
1. 45 days before a regular election received by a candidate or refusing after
2. 30 days before a special election proper verification and hearing to credit the
D. Exception correct votes or deduct the tampered votes
1. maintenance of existing/completed (committed by a member of the board of
public works project. election inspectors)
2. work undertaken by contract through C. Refusing to issue the certificate of voters to
public bidding, or by negotiated the duly accredited watchers (committed by a
contract awarded before the 45 day member of the BEI)
period before election D. Person who violated provisions against
3. payment for the usual cooperation for prohibited forms of election propaganda
working drawings, specifications and E. Failure to give notice of meetings to other
other procedures preparatory to actual members of the board, candidate or political
construction including the purchase of party (committed by the Chairman of the
material and equipment and incidental board of canvassers)
expenses for wages. F. A person who has been declared a nuisance
4. Emergency work necessitated by the candidate or is otherwise disqualified who
occurrence of a public calamity but continues to misrepresent himself as a
such work shall be limited to the candidate (Ex. by continuing to campaign)
restoration of the damaged facility. and any public officer or private individual
5. Ongoing public work projects who knowingly induces or abets such
commenced before the campaign misrepresentation by commission or omission.
period or similar projects under G. If the chairman of the BEI fails to affix his
foreign agreements. signature at the back of the official ballot, in
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the presence of the voter, before delivering
the ballot to the voter. (under RA 7166)
Jurisdiction of courts
A. RTC has exclusive original jurisdiction to
try and decide any criminal action or
proceedings for violation of the Code.
B. MTC/MCTC have jurisdiction over offense
relating to failure to register or vote.
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Electoral Representative
Tribunal s: House of
Rep. Electoral
Tribunal
Regional/
Provincial/City:
Comelec Regional/Provi
ncial/City:
Comelec
Municipal: RTC
Municipal RTC
PERIOD Within 10 days Within 10 days Upon convening of Within 10 days Within 5
from from Board When from years from
proclamation proclamation election return proclamation commission
presented
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Trial rule proceedings
(oral and written
)
attributes or characteristics, or by
employment, interests or concerns.
3. Political Party – an organized group of
qualified voters pursuing the same
ideology, political ideas and principles for
OTHER LAWS IN ELECTION the general conduct of the government; it
may be:
a. A national party when its constituency
REPUBLIC ACT No. 7941 : AN ACT is spread over the geographical
PROVIDING FOR THE ELECTION OF PARTY- territory of at least a majority of the
LIST REPRESENTATIVES THROUGH THE regions; and
PARTY-LIST SYSTEM AND APPROPRIATING b. A regional party when its constituency
FUNDS THEREFOR is spread over the geographical
territory of at least a majority of the
cities and provinces comprising a
What is the party-list system of election? region.
It is a mechanism of proportional representation in
the election of representatives to the House of
Representatives from marginalized or COALITION - an aggrupation of duly-registered
underrepresented national, regional and sectoral national, regional, sectoral parties or organizations
parties, or organizations or coalitions thereof for political and/or election purposes.
registered with the Commission on Elections
(Comelec). It is part of the electoral process that
enables small political parties and marginalized May the Comelec remove and/or cancel
and underrepresented sectors to obtain possible registration of any entity?
representation in the House of Representatives, The Comelec may, motu proprio or upon verified
which traditionally is dominated by parties with big complaint of any interested party, remove or
political machinery. cancel after due notice and hearing, the
registration of any national, regional or sectoral
party, organization or coalition on any of the
Who may participate? following grounds:
Instead of individual candidates, only registered
organized groups may participate and these are: [a] It is religious sect of denomination,
1. Sectoral Party – an organized group of organization or association organized for religious
citizens whose principal advocacy pertains purposes;
to the special interests and concerns of the [b] It advocates violence or unlawful means to
following sectors: labor, fisherfolk, achieve its goal;
peasant, women, urban poor, youth, [c] It is a foreign party or organization;
indigenous, overseas workers, veterans, [d] It is receiving support from any foreign
cultural communities, professionals, government, foreign political party, foundation,
handicapped, elderly organization, whether directly or indirectly or
2. Sectoral Organization – a group of qualified through its officers or members or indirectly third
voters bound together by similar physical parties for partisan election purposes;
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[e] It violates or fails to comply with laws, rules or How shall party-list seats be allocated? [See
regulations relating to elections; Veterans Federation Party, et al. vs.
[f] It has made untruthful statements in its Commission on Elections, et al. (G.R. no.
petition; and 136781, 06 October 2000)].
[g] It has ceased to exist for at least one (1) year Party-list seats shall be allocated as follows:
from the time the petition is filed. [1] The parties shall be ranked from highest to
lowest based on the number and percentage of
votes garnered during the elections;
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existence and apply separately, even when • Thus, the Court held that the attitude of the
both deal with the same subject matter. parties and States towards certains
• Court states “. . . Even if the customary norm General Assembly Resolutions could be
and the treaty norm were to have exactly the indicative of opinio juris. As regards the US
same content, this would not be a reason in particular, the weight of an expression of
for the Court to hold that the opinio juris can similarly be attached to its
incorporation of the customary norm into support of the resolution of the Sixth
treaty-law must deprive the customary International Conference of American States
norm of its applicability as distinct from condemning aggressio and ratification of the
that of the treaty norm . . . . More Montevideo Convention on Rights and Duties of
generally, there are no grounds for holding States.
that when customary international law is • If there is enough evidence of state practice,
comprised of rules identical to those of treaty opinio juris is not always necessary, and
law, the latter “supervenes” the former, so that usually if it does exist, courts use it only to
the customary law has no further existence of confirm the existence of state practice as
its own.” indicative of customary law.
• But, where there is little evidence of state
Rules of CIR addressed: practice, court will make up for that with
• Not to intervene in the affairs of another State; greater evidence of opinio juris and vice versa.
• Not to use force against another State;
• Right to self-defence; How Opinio Juris and State Practice addressed:
• Not to violate sovereignty of States; and 1. Use of Force
• Collective counter-measures in response to • Party Agreement;
conduct not amounting to armed attack. • General Assembly Resolution 2625 (XXV);
• Resolution of The Sixth International
Opinio Juris and State Practice: Conference of American States Concerning
• Once the Court had decided to apply Aggression 18 Feb 1928;
customary law, it had to ascertain which rules • Montevideo Convention on the Rights and
of customary law were relevant to this case. Duties of States 26 December 1933.
Therefore, the Court considered whether a
customary rule exists in the opinio juris of 2. Self Defence
States, and satisfy itself that it is confirmed by • Party Agreement;
practice. • UN Charter Article 51;
• It is important to really check the material of • General Assembly Resolution 2625 (XXV);
CIL in the actual practice and opinio juris of • General Assembly Resolution 3314 (XXIX);
States. It doesn’t matter if these rules have • Charter of Organisations of American
already been collected by several treaties or States;
any other intruments. • International Treaty of Reciprocal
• The Court also noted that both Nicaragua and Assistance 1947.
US had a considerable degree of agreement as
to the content of the CIL related to the non- 3. Non-intervention
• Numerous declarations and resolutions;
use of force and non-intervention.
• Corfu Channel (Merits) United Kingdom v
• But, the fact that States declare their
Albania 1949 ICJ Reports 4.
recognition of certain rules is not
sufficient for the Court to consider these 4. Collective counter-measures in response to
as being part of CIL and as applicable as conduct not amounting to armed attack
such to those States. The Court must not • Counter-measures is an exemption of non-
disregard the role played by “general practice”. intervention principle;
The Court must satisfy itself that the existence • Counter-measures is analogous to the right
of the rule in the opinio juris of States is of self-defence in the case of armed
confirm by practice. attack;
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ARCHIPELAGIC DOCTRINE/THEORY: a
K. LAW OF THE SEA doctrine/theory which considers groups of islands
which are so closely interrelated and their
DEFINITION: a body of treaty rules and interconnecting waters as one geographical unit. It
customary norms governing the uses of the sea, allows an archipelagic State to draw straight
the exploitation of its resources, and the exercise archipelagic baselines joining the outermost points
of jurisdiction over maritime regimes; the branch of the outermost islands and drying reefs of the
of public international law which regulates the archipelago. The waters enclosed by the
relations of states with respect to the uses of the archipelagic baselines shall become archipelagic
oceans. waters regardless of their depth or distance from
the coast, and within these archipelagic waters,
a. BASELINES the archipelagic State may draw closing lines for
the delimitation of its internal waters. (Arts. 46-47,
DEFINITION: a line from which the breadth of the 50, UNCLOS)
territorial sea and other maritime zones
(contiguous zone and exclusive economic zone) are The doctrine is reflected in the Article I of
measured. It may either be normal or straight. the 1987 Philippine Constitution; thus, "the
national territory comprises the Philippine
NORMAL BASELINE: the low-water line along the archipelago, with all the islands and waters
coast as marked on the large-scale charts officially embraced therein, and the waters around,
recognized by the coastal state. (Art. 5, UNCLOS; between, and connecting the islands of the
Art. 3, Convention on the Territorial Sea) archipelago, regardless of their breadth and
dimension, from part of the internal waters of the
STRAIGHT BASELINE: Where the coastline is Philippines."
deeply indented and cut into, or if there is a fringe
of islands along the coast in its immediate vicinity, STRAIGHT ARCHIPELAGIC BASELINES:
the method of straight baselines joining the baselines which join the outermost points of the
appropriate points may be employed in drawing outermost islands and drying reefs of the
the baseline from which the breadth of the archipelago, provided that within such baselines
territorial sea is measured. (Art. 7, UNCLOS; are included the main islands and an area in which
Anglo-Norwegian Fisheries Case [UK v. Norway, the ratio of the area of the water to the area of the
1951]) land, including atolls in between 1 to 1 and 9 to 1.
These baselines shall not exceed 100 nautical
LIMITATIONS ON THE USE OF STRAIGHT miles. As an exception, an archipelagic state is
BASELINES: allowed to have 3% of its total number of baselines
the drawing of straight baselines must not in excess of that length, but only up to a maximum
depart to any appreciable extent from the of 125 nautical miles.
general direction of the coast;
the sea areas lying within the straight ARCHIPELAGIC WATERS: waters which are
baselines must be sufficiently close to the enclosed by the archipelagic baselines, regardless
land domain to be subject to the regime of of their depth or distance from the coast.
the internal waters;
straight baselines should not be drawn to RIGHT OF INNOCENT PASSAGE THROUGH
and from low-tide elevations, unless ARCHIPELAGIC WATERS: Ships of all States
lighthouses or similar installations which enjoy the right of innocent passage through
are permanently above sea level have archipelagic waters. However, this right is not
been built on them and unless the available inside the closing lines within the
baselines to and from the low0tide archipelagic waters which had been drawn for the
elevations have received general delimitation of internal waters. The State may
recognition; and suspend the right of innocent passage, subject to
the straight baseline method may not be the following conditions:
applied by a state in such manner as to cut the suspension is made without
off the territorial sea of another state from discrimination in form or in fact among
the high sea or an exclusive economic foreign ships;
zone. (Art. 7, UNCLOS) the suspension is only temporary;
b. ARCHIPELAGIC STATES
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it must specify the areas of its archipelagic ships calling at a port facility outside
waters where innocent passage shall not internal waters;
be allowed; Suspend temporarily, without
such suspension is essential for the discrimination, in specified areas of the
protection of its security; and territorial sea the innocent passage of
such suspension shall take effect only after ships if suspension is essential for the
having been duly published. protection of its security, including
weapons exercises, provided that
ARCHIPELAGIC SEA LANES PASSAGE: the right suspension may take effect only after due
of foreign ships and aircrafts to have continuous, publication; and
expeditious and unobstructed passage in sea lanes
Adopt laws and regulations relating to the
and air routes through or over the archipelagic
waters and the adjacent territorial sea of the innocent passage, provided that they deal
archipelagic state, in transit between one part of only with the following matters:
the high seas or an exclusive economic zone and - safety of navigation and the
another part of the high seas or an exclusive regulation of maritime traffic;
economic zone. - protection of navigational aids and
facilities;
c. INTERNAL WATERS
- protection of cables and pipelines;
DEFINITION: waters of lakes, rivers and bays - conservation of living resources of
landward of the baseline of the territorial sea. the sea;
Generally, there is no right of innocent passage in - prevention of infringement of
these waters. Such right exists only on the fisheries laws and regulations of
territorial sea and the archipelagic waters. the coastal state;
- preservation of the environment of
d. TERRITORIAL WATERS
the coastal state and prevention,
BREADTH: States have the right to determine the reduction, and control of
breadth of their territorial sea up to a limit not population;
exceeding 12 nautical miles from the baselines, - marine scientific research and
established in accordance with the UNCLOS. hydrographic surveys; and
- prevention of infringement of the
RIGHT OF INNOCENT PASSAGE THROUGH
customs, fiscal, immigration or
TERRITORIAL WATERS: Coastal States shall not
sanitary laws and regulations of
hamper the innocent passage of the foreign ships,
except in accordance with the UNCLOS. In the coastal state.
particular, it shall not:
impose requirements on foreign ships, e. CONTIGUOUS ZONE
which have the effects of denying or
impairing the right of innocent passage; or DEFINITION/BREADTH: a maritime zone
adjacent to the territorial sea, which extends
discriminate against the ships of any state,
beyond 24 nautical miles from the same baseline
or against ships carrying cargoes to and which the breath of territorial sea is measured,
from or on behalf of the state. where the coastal state may exercise certain
protective jurisdiction. A state could continue to
RIGHTS OF COASTAL STATES RELATING TO enforce laws in four specific areas: pollution,
INNOCENT PASSAGE: taxation, customs, and immigration.
Take the necessary steps in the territorial
sea to prevent passage which is not f. EXCLUSIVE ECONOMIC ZONE (EEZ)
innocent;
DEFINITION/BREADTH: an area beyond and
Take measures to prevent any breach of
adjacent to the territorial sea and the contiguous
the conditions for the admission of ships to zone, not extending beyond 200 nautical miles
internal waters, with respect to ships from the same baselines from which the territorial
proceeding to internal waters or ports or to sea and the contiguous zone is measured, in which
the costal state has sovereign rights for the
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JURISDICTION OF THE TRIBUNAL: covers all the coastal state by fishing in the Norwegian
disputes submitted to it in accordance with the territorial sea.
UNCLOS, as when both State Parties sign, ratify or • 1949 – Britain brought the dispute before the
accede to the UNCLOS for the compulsory
ICJ, on the contention that seizure occurred
settlement of dispute. It also includes matters
submitted to it under any other agreement. more than four miles off the Norwegian
Coast. Both parties agreed that four miles
APPLICABLE LAWS IN DECIDING A DISPUTE: could be used as the breadth of the territorial
UNCLOS and other rules of international law not waters, in view of the historic Norwegian
incompatible with the UNCLOS. It may decide a claim to four miles.
case ex aequo et bono, if the parties so agree.
Judgment:
VOTE REQUIREMENT FOR DECISION: majority • Upholding Norway’s claim to use straight
of the members of the Tribunal who are present.
baselines, the Court rejected Britain's
The President, or the acting President, casts a vote
in case of a tie. contentions - (1) that the outer limits of
Norwegian territorial waters must not be more
JURISDICTION OF THE SEABED DISPUTES than four miles from some point of the shore;
CHAMBER: and (2) that with the exception of bays, the
1. disputes between State Parties as to baseline must be the actual low water mark.
interpretation or application of the provisions • Taking cognizance of the extraordinary
of the UNCLOS and its Annexes pertaining to geographic peculiarities of the Norwegian
the Area; coastline of about 120,000 islands, rocks and
2. disputes between a State Party and the reefs, the court in part ruled – "Some
International Seabed Authority involving reference must be made to the close
violation on their part of the UNCLOS dependence of the territorial sea upon the land
pertaining to the Area as well as rules and domain. It is the land which confers upon the
regulations of the International Seabed coastal State a right to the waters off its
Authority, or acts ultra vires or misuse of coasts. It follows that while such a State must
power on the part of the International Seabed be allowed the latitude necessary in order to
Authority; or be able to adapt its delimitation to practical
3. disputes between parties to a contract needs and local requirements, the drawing of
concerning its interpretation or application, or baselines must not depart to any
with respect to a plan of work, or concerning appreciable extent from the general
acts of party to a contract relating to activities direction of the coast."
in the Area. • The real question raised in the choice of
baselines is in effect whether certain sea areas
CASES: living within these lines are sufficiently
UK v. Norway
closely linked to the land domain to be
(Anglo-Norwegian Fisheries Case)
(December 18, 1951, ICJ) subject to the regime of internal waters.
This idea, which is at the basis of the
Facts: determination of the rules relating to bays,
• Under a 1935 decree, Norway delimited its should be liberally applied in the case of a
territorial waters by drawing baselines from coast, the geographical configuration of which
point to point on the islands off its coast. is as unusual as that of Norway.
• Since 1911, British fishing vessels had • Finally, there is one consideration not be
operated within the Norwegian Coast, overlooked, the scope of the which extends
disregarding the decree claiming the beyond purely geographical factors; that of
waters as high seas as not of the islands certain economic interests peculiar to a
were more than 3 miles from each others. region the reality and importance of which
• Eventually, the British fishing vessels were are clearly evidenced by a long usage.
seized and condemned by Norwegian
authorities for violation of the regulations of FEDERAL REPUBLIC OF GERMANY v.
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British officers and crew members and injury of proceeding through the Strait. Its failure
42 others. to undertake such constitutes neglect of
• By a Special Agreement, the British its international responsibility.
government instituted this action against
Albania in the ICJ, demanding compensation As to argument of innocent passage:
for damage to its ships and for the loss of The Court ruled that the North Corfu
Channel constituted a frontier between Albania and
lives.
Greece; that a part of it is wholly within the
territorial waters of these 2 States, and that the
Arguments - Britain: Strait is of special importance to Greece. Hence,
• The minefield was laid by or with the the Channel belongs to a class of
connivance or knowledge of the Albanian international highways through which
Government and that the latter did not notify passage cannot be prohibited by a coastal
them of the existence of the minefield which State in time of peace. Moreover, the passage of
might endanger the voyage; thus, Albania the British warships through the Channel was
failed to comply with its obligation under carried out in such manner that is consistent
with the principle of innocent passage — the
international law.
guns were in a normal position and not targeted to
• They have the right of innocent passage the shores.
through the Corfu Channel.
Arguments - Albania:
• There was no proof that the damaged the ships L. INTERNATIONAL
were really caused by their mines. ENVIRONMENTAL LAW
• It has a right to regulate the passage of
foreign ships through its territorial waters, and DEFINITION: the branch of public international
law comprising "those substantive, procedural and
that prior authorization to pass should be
institutional rules which have as their primary
acquired. Since Britain did not obtain prior objective the protection of the environment", the
authorization, its passage was not innocent. term environment being understood as
• For this breach of international law, it counter- encompassing "both the features and the products
demands compensation from Britain. of the natural world and those of human
civilization".
Issue:
Should Albania be held responsible for the damage PRINCIPLE 21 OF THE 1972 STOCKHOLM
and injury suffered by the British warships? DECLARATION: declares that – "States have, in
accordance with the Charter of the United Nations
Judgment: and the principles of international law, the
• Albania is responsible under international sovereign right to exploit their own resources
pursuant to their own environmental policies, and
law for the damage and loss of lives, and
the responsibility to ensure that activities within
that it owned a duty to pay compensation to
their jurisdiction or control do not cause
Britain. damage to the environment of other States or
• Before and after the incident, the Albanian of areas beyond limits of national
Government’s attitude showed its intention to jurisdiction".
keep a jealous watch on its territorial waters.
And when Albania came to know of the Principle 21 is otherwise known as the
GOOD NEIGHBORLINESS PRINCIPLE. Stated
minefield, it protested strongly against the
differently, it prohibits States from using or
minesweeping conducted by Britain but not to permitting the use of its territory in a manner that
the laying of mines. It is but showing that is injurious to another State, or that other State's
Albania desired the presence of such persons or property. It underlies in the Roman law
mines. principle "Sic utere tuo ut alienum non laedas"
• The inevitable conclusion is that the laying of (So use your own as not to injure the rights of
the minefield could not have been done others.
without the knowledge of Albania. It is then
its duty to notify and warn ships
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CBDS
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