Professional Documents
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Political Law Bar Notes 2012
Political Law Bar Notes 2012
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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It is the one wherein all government authority of the integrity of the national territory and
emanates from the people and is exercised by therefore ultimately of the majesty of the
representatives chosen by the people. law.
2. Negatively, it is an expression of
disapproval of military abuses.
“DEMOCRATIC STATE”
This merely emphasize that the Philippines has SECTION 4. The prime duty of the Government is
some aspects of direct democracy such as initiative to serve and protect the people. The Government
and referendum. may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to
SECTION 2. The Philippines renounces war as an render personal military, or civil service.
instrument of national policy, adopts the generally SECTION 5. The maintenance of peace and order,
accepted principles of international law as part of the protection of life, liberty and property, and the
the land and adheres to the policy of peace promotion of the general welfare are essential for
equality, justice, freedom, cooperation, and amity the enjoyment by all the people of the blessings of
with all nations democracy.
SECTION 6. The separation of Church and State
Some “generally accepted principles of shall be inviolable.
International law” recognized by the Court:
1. The right of an alien to be released on bail
SECTION 7. The State shall pursue an
while awaiting deportation when his failure to
independent foreign policy. In its relations with
leave the country is due to the fact that no
other states, the paramount consideration shall be
country will accept him (Mejoff v. Director of
national sovereignty, territorial integrity, national
Prisons, 90 Phil. 70)
interest, and the right to self-determination.
2. The right of a country to establish military
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.
SECTION 3. Civilian authority is, at all times, Policy of freedom from nuclear weapons
supreme over the military. The Armed Forces of
the Philippines is the protector of the people and
the State. Its goal is to secure the sovereignty of 1. The policy PROHIBITS
the State and the integrity of the national territory a. The possession, control and
manufacture of nuclear weapons
Civilian authority/supremacy clause (1st b. Nuclear arms tests.
sentence) 2. The policy does NIT prohibit the peaceful
1. Civilian authority simply means the uses of nuclear energy.
supremacy of the law because authority,
under our constitutional system, can only
come from law. SECTION 12. The State recognizes the sanctity of
2. Under this clause, the soldier renounces family life and shall protect and strengthen the
political ambition. family as a basic autonomous social institution. It
shall equally protect the life of the mother and the
life or the unborn from conception. Xxx
Mark of sovereignty (2nd and 3rd sentences)
1. Positively, this clause singles out the
military as the guardian of the people and
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Similarities Basis
- Inherent in the state; no need for - Salus populi suprema est lex (the welfare
express constitutional grant of the people is the supreme law)
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Scope of Application
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mandated by R.A. 7924 to enforce traffic rules and lands, subject to such priorities and reasonable
regulations (MMDA v. Garin). retention limits as the Congress may prescribe,
taking into account ecological, developmental, or
Churchill vs. Rafferty equity considerations, and subject to the payment
“There can be no doubt that the exercise of of just compensation. In determining retention
the police power of the Philippine Government limits, the State shall respect the right of small
belongs to the Legislature and that this power landowners. The State shall further provide
is limited only by the Acts of Congress and incentives for voluntary land-sharing.
those fundamentals principles which lie at the
foundation of all republican forms of Art. XIII, Sec. 9 The State shall, by law, and for
government. An Act of the Legislature which is the common good, undertake, in cooperation with
obviously and undoubtedly foreign to any of the the private sector, a continuing program of urban
purposes of the police power and interferes with land reform and housing which will make available
the ordinary enjoyment of property would, without at affordable cost, decent housing and basic
doubt, be held to be invalid. But where the Act is services to under-privileged and homeless citizens
reasonably within a proper consideration of in urban centers and resettlement areas. It shall
and care for the public health, safety, or also promote adequate employment opportunities
comfort, it should not be disturbed by the to such citizens. In the implementation of such
courts. The courts cannot substitute their own program the State shall respect the rights of small
views for what is proper in the premises for property owners.
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, then we may declare
this one void because in excess of the legislative
power of this state; but if it could, we must Art XIV, Sec. 13. The National assembly may
presume it did. Of the propriety of legislative authorize, upon payment of just compensation, the
interference, within the scope of the legislative expropriation of private lands to be subdivided into
power, a legislature is the exclusive judge." small lots and conveyed at cost to deserving
citizens.
1. Concept
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(2) For public use, purpose or welfare or That only a few benefit from the expropriation
for the benefit of the poor and of the does not diminish its public-use character,
landless, inasmuch as pubic use now includes the broader
(3) Payment of just compensation, notion of indirect public benefit or advantage
(4) Valid and definite offer has been (Filstream International v. CA, 284 SCRA 716)
previously made to owner of the property
sought to be expropriated but such offer 6. Just Compensation
was not accepted (Municipality of Fair and full equivalent of the loss which the
Parañaque v VM Realty, 1998) owner has to suffer by reason of the expropriation;
c. Subject to Judicial Review: usually the fair market value of the property
(1) Adequacy of compensation,
(2) Necessity of taking, Fair Market Value:
(3) “Public use” character of the purpose of Price fixed by a buyer (desirous but not
taking compelled to buy) and a seller (willing but not
4. Taking compelled to sell).
A physical dispossession of the owner of However, the determination of what counts as
his actual property, or its use “just compensation” is a judicial(RTC)
May include trespass without actual prerogative; thus, executive determinations of
eviction of owner, such as the material just compensation in eminent domain cases are
impairment of value of property, or unconstitutional.
preventions of ordinary uses for which the Must include consequential
property was intended. damages(damages to other interest of the owner
What may be taken: All private property attribute to the expropriation) and deduct
capable of ownership, including services. consequential benefits (increase of value of
other interests attribute to new use of the former
What cannot be taken: money and choses in property)
action Compensation has to be paid in money, and
has to be paid within a reasonable time from its
Requisites for taking (Republic v. Castelvi) taking
a. The expropriator must enter a private
property General Rule: the value of the property will be
b. Entry must be for more than a determined at the date of the filing of the
momentary period complaint for eminent domain, which normally
c. Entry must be under warrant or color of coincides with the taking
legal authority
d. Property must be devoted to public use Exception: when the taking precedes the filing
or otherwise informally appropriated or of the complaint, and the owner would be given
injuriously affected undue incremental advantage arising from the
e. Utilization of the property must be in government’s use of the property, the value will be
such a way as to oust the owner and determined at the time of the taking
deprive him of beneficial enjoyment of So in effect: the value of the property must be
the property determined either at the time of taking or filing of
the complaint, whichever comes first (Eslaban v.
5. Public Use De Onorio, G.R. 146062)
Public use = public purpose / public interest /
public welfare / public benefit. Non-payment of just compensation
General rule: non-payment by government
It is enough that it serves a public purpose, does not entitle private owners to recover
even if it benefits a large group of people short of possession of the expropriated property (because
the public in general (e.g. expropriating property expropriation is an in rem proceeding, not an
for the relocation of squatters). ordinary sale), but only to demand payment of
the fair market value of the property (Republic
The idea that "public use" means "use by the v. CA, G.R. 146587; Reyes v. National Housing
public" has been discarded. At present, whatever Authority, G.R. 147511)
may be beneficially employed for the general
welfare satisfies the requirement of public use. Exception: deliberate refusal to pay just
(Heirs of Juancho Ardona v. Reyes, 123 SCRA 220) compensation entitles the owners to recover the
property
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8. Urban Development and Housing Act (R.A. Also: local legislative bodies (Article 10, Section 5,
7279, mandated by Art. XIII, Sec. 9) 1987 Constitution).
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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involved and the reasons for the decision 6. Issuance of warrants of distraint and/or
rendered. levy by the BIR Commissioner.
7. Cancellation of the passport of a person
NOTE: charged with a crime.
1. What is required is not actual hearing, but 8. Issuance of sequestration orders
a real opportunity to be heard. (considered a provisional remedy).
2. The requirement of due process can be 9. Judicial order which prevents an accused
satisfied by subsequent due hearing. from traveling abroad in order to
3. Violation of due process: when the same maintain the effectivity of the court’s
person reviews his own decision on appeal. jurisdiction.
4. Notice and hearing are required in judicial 10. Suspension of a bank’s operations by the
and quasi-judicial proceedings, but not in Monetary Board upon a prima finding of
the promulgation of general rule. liquidity problems in such bank.
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.
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its provisions with applicable provisions of the 1. Vagueness and overbreadth are distinct
Constitution, since the statute may be from each other; a vague maw must lack
constitutionally valid as applied to one set of facts charity and precision, while an overbroad
and invalid in its application to another. law need not.
2. Vagueness may be applied to cases
A statute valid at one time may become void at involving speech and also criminal cases
another time because of altered circumstances. (although see contrary ruling that
Thus, if a statute in its practical operation becomes vagueness does not apply to criminal
arbitrary or confiscatory, its validity, even though cases, as held in Estrada v.
affirmed by a former adjudication, is open to Sandiganbayan, G.R. No. 148560)
inquiry and investigation in the light of changed 3. Overbreadth as an analytical tool is
conditions. applicable only to cases involving speech.
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A general warrant is one that does not allege any Searches in these areas do not require
specific acts or omissions constituting the offense the existence of probable cause.
charged in the application for the issuance of the 4) Seizure of evidence in Plain view
warrant. It contravenes the explicit demand of the A. There was a prior valid intrusion;
Bill of Rights that the things to be seized be B. The evidence was inadvertently
particularly described. discovered;
C. The evidence is immediately apparent;
D. Plan view is justified seizure without
VALID WARRANTLESS SEARCH further search. (People v. Valdez, 341
(IM CWAPO) SCRA 25)
1) Search made as an Incident to lawful arrest 5) Waiver of right or Consented Warrantless
A. An officer making an arrest may take Arrest
from the person arrested: A. Requisites of a valid waiver:
i. Any money or property found i. The right exists.
upon his person which was ii. The person had actual or
used in the commission of constructive knowledge of
the offense or the existence of such right.
ii. Was the fruit thereof or iii. There is an actual intention
iii. Which might furnish the to relinquish such right
prisoner with the means of B. The right against unreasonable searches
committing violence or and seizures is a personal right. Thus,
escaping or only the person being searched can
iv. Which may be used in waive the same.
evidence in the trial of the C. Waiver requires a positive act from the
case person. Mere absence of opposition is not
B. The search must be made simultaneously a waiver.
with the arrest and it may only be made D. The search made pursuant to the waiver
in the area within the immediate control must be made within the scope of the
of the person arrested. waiver.
6) Armed Conflict (wartime)
2) Search of Moving vehicles 7) Others
A. This exception is based on exigency.
Thus, if there is time to obtain a warrant A. Conduct of “Areal Target Zone” and
in order to search the vehicle, a warrant Saturation Drives” in the exercise of
must first be obtained. military powers of the President (Guazon
B. The search of a moving vehicle must be vs. De Villa, 181 SCRA 623)
based on probable cause. B. Checkpoints (Valmonte vs. De Villa, 178
SCRA 211)
-Highly regulated by the government, REQUISITES:
the vehicle’s inherent mobility reduces 1. Abnormal times
expectation of privacy. But there must be 2. Limited to visual search
a highly reasonable suspicion amounting 3. Vehicle not searched
to probable cause that the occupant 4. Passengers not subjected to body
committed a criminal activity. search
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Exclusionary rule: The petition may also be filed with the Supreme
Court or the Court of Appeals or the
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Sandiganbayan when the action concerns public SEC. 7. Issuance of the Writ. – Upon the filing of
data files of government offices. the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its
SEC. 4. Where Returnable; Enforceable. – When face it ought to issue. The clerk of court shall issue
the writ is issued by a Regional Trial Court or any the writ under the seal of the court and cause it to
judge thereof, it shall be returnable before such be served within three (3) days from its issuance;
court or judge. or, in case of urgent necessity, the justice or judge
may issue the writ under his or her own hand, and
When issued by the Court of Appeals or the may deputize any officer or person to serve it.
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof, The writ shall also set the date and time for
or to any Regional Trial Court of the place where summary hearing of the petition which shall not be
the petitioner or respondent resides, or that which later than ten (10) work days from the date of its
has jurisdiction over the place where the data or issuance.
information is gathered, collected or stored.
SEC. 8. Penalty for Refusing to Issue or Serve the
When issued by the Supreme Court or any of its Writ. – A clerk of court who refuses to issue the
justices, it may be returnable before such Court or writ after its allowance, or a deputized person who
any justice thereof, or before the Court of Appeals refuses to serve the same, shall be punished by
or the Sandiganbayan or any of its justices, or to the court, justice or judge for contempt without
any Regional Trial Court of the place where the prejudice to other disciplinary actions.
petitioner or respondent resides, or that which has
jurisdiction over the place where the data or SEC. 9. How the Writ Is Served. – The writ shall be
information is gathered, collected or stored. served upon the respondent by the officer or
person deputized by the court, justice or judge
The writ of habeas data shall be enforceable who shall retain a copy on which to make a return
anywhere in the Philippines. of service. In case the writ cannot be served
personally on the respondent, the rules on
SEC. 5. Docket Fees. – No docket and other lawful substituted service shall apply.
fees shall be required from an indigent petitioner.
The petition of the indigent shall be docketed and SEC. 10. Return; Contents. – The respondent shall
acted upon immediately, without prejudice to file a verified written return together with
subsequent submission of proof of indigency not supporting affidavits within five (5) work days from
later than fifteen (15) days from the filing of the service of the writ, which period may be
petition. reasonably extended by the Court for justifiable
reasons. The return shall, among other things,
SEC. 6. Petition. – A verified written petition for a contain the following:
writ of habeas data should contain:
(a) The personal circumstances of the petitioner (a) The lawful defenses such as national security,
and the respondent; state secrets, privileged communication,
(b) The manner the right to privacy is violated or confidentiality of the source of information of
threatened and how it affects the right to life, media and others;
liberty or security of the aggrieved party; (b) In case of respondent in charge, in possession
(c) The actions and recourses taken by the or in control of the data or information subject of
petitioner to secure the data or information; the petition:
(d) The location of the files, registers or databases, (i) a disclosure of the data or information about
the government office, and the person in charge, the petitioner, the nature of such data or
in possession or in control of the data or information, and the purpose for its collection;
information, if known; (ii) the steps or actions taken by the respondent to
(e) The reliefs prayed for, which may include the ensure the security and confidentiality of the data
updating, rectification, suppression or destruction or information; and
of the database or information or files kept by the (iii) the currency and accuracy of the data or
respondent. information held; and
In case of threats, the relief may include a prayer (c) Other allegations relevant to the resolution of
for an order enjoining the act complained of; and the proceeding.
(f) Such other relevant reliefs as are just and A general denial of the allegations in the petition
equitable. shall not be allowed.
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SEC. 11. Contempt. – The court, justice or judge Upon its finality, the judgment shall be enforced by
may punish with imprisonment or fine a the sheriff or any lawful officer as may be
respondent who commits contempt by making a designated by the court, justice or judge within
false return, or refusing to make a return; or any five (5) work days.
person who otherwise disobeys or resists a lawful SEC. 17. Return of Service. – The officer who
process or order of the court. executed the final judgment shall, within three (3)
days from its enforcement, make a verified return
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.
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The procedure under this Rule shall govern the 3. Security of community life may be
disposition of the reliefs available under the writ protected against incitements to acts of
of habeas data. violence or overthrow by force of orderly
SEC. 23. Substantive Rights. – This Rule shall not government.
diminish, increase or modify substantive rights.
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- Occurs when an acting party's right to freedom of 2. Financial subsidy for parochial schools
speech is curtailed or restricted by the government Lemon vs. Kurtzman, 403 U.S. 602 – WON
in order to prevent a reacting party's behavior. financial aid subsidizing parochial schools is
constitutional. HELD: No, it creates excessive
Sec. 5. No law shall be made respecting an entanglement because program will require
establishment of religion, on prohibiting the free continuous monitoring of schools to ensure they
exercise thereof. The free exercise and enjoyment meet the requirement that only secular programs
of religious profession and worship, without are subsidized. Enunciates the Lemon
discrimination of preference, shall forever be Test (see above).
allowed. No religious test shall be required for the
exercise of civil or political rights. 3. Religious displays in public spaces
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County of Allegheny vs. ACLU, 57 L.W. 5045 – Art. XIV, Sec. 4(2). Educational institutions, other than
WON display of crèche and menorah in public those established by religious groups and mission boards,
shall be owned solely by citizens of the Philippines or
building is constitutional. HELD: No for crèche: corporations or associations at least sixty per centum of
prominent setting sends unmistakable message 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 Foreign ownership of educational institutions
secular dimension, a recognized tradition. established by religious groups and mission boards
(otherwise citizen or corporation whose capital is
Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. at least 60% citizen owned).
2003) – WON Granite monument of 10
commandments in front of courthouse is Administration must be in the hands of Filipinos
constitutional. HELD: No, display is unmistakably who may or may not be sectarian.
non-secular. Nothing in its setting de-emphasizes
its religious nature, engenders in viewers a sense 3. Religious instruction in public schools
that Christianity is endorsed by the government. 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
children or wards in public elementary and high schools
prohibition on within the regular class hours by instructors designated or
4. secular subjects 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
cost to the Government.
– WON law prohibiting the teaching of evolution in
schools is constitutional.
Civil Code, Art. 359. The government promotes the full
growth of the faculties of every child. For this purpose, the
HELD: No, state may not require schools to tailor government will establish, whenever possible: (1) Schools
their teaching in accordance with the principles or 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
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
Art. VI, Sec. 29 (2). No public money or property shall be
against students who are atheists.
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
religious teacher, or dignitary as such, except when such
1. Tax exemption
priest, preacher, minister, or dignitary is assigned to the
Art. VI, Sec. 28 (3). Charitable institutions, churches and armed forces, or to any penal institution, or government
personages or convents appurtenant thereto, mosques, orphanage or leprosarium.
non-profit cemeteries, and all lands, buildings, and
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.
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Neither does the law constitute an ii. Compelling state interest to override religious
establishment of religion. It has been held that in belief and practice.
order to withstand objections based on this iii. The means adopted in pursuing its interest is
ground, the statute must have a secular purpose the least restrictive to religious freedom.
and that purpose must not directly advance or
diminish the interest of any religion. Congress c. Conscientious Objector Test
acted merely to relieve persons of the burden Deployed in granting exemption from mandatory
imposed by union security agreements. [Victoriano exercises, e.g. military service in Cassius Clay vs.
v. Elizalde Rope Workers Union, 59 SCRA 54 US, 403 US 698 (1971) and flag salute in Ebralinag
(1974)] vs. Division Superintendent, 219 SCRA 256.
In the same year (1978), in McDaniel v. Patty, 1. The non-establishment clause does not
435 US 618, the US Supreme Court declared a depend upon any showing of direct
similar law to be violative of the free exercise governmental compulsion. It
clause. is violated by the enactment of laws which
establish an official religion whether those
4. Tests laws operate directly to coerce non-
a. Clear and Present Danger Test observing individuals or not. The test of
The existence of a grave and present danger of compliance with the non-establishment
a characterboth grave and imminent, of a serious clause can be stated as follows: What are
evil to public safety, public morals, public health or the purposes and primary effect of the
any other legitimate interest, that the state has a enactment? If either is the advancement or
right to prevent. (Ebralinag vs. Div. inhibition of religion, the law violates the
Superintendent, 219 SCRA 256). non-establishment clause. Thus, in order
for a law to comply with the non-
b. Compelling State Interest Test (from a establishment clause, two requisites must
benevolent neutrality stance) be met:
Although the morality contemplated by laws is A. It has a secular legislative
secular, benevolent neutrality purpose.
could allow for accommodation of morality based B. Its primary effect neither
on religion, provided it does not offend compelling advances nor inhibits religion.
state interests. [Estrada v Escritor 408 SCRA 1 2. The free exercise of religion clause
(2003)] withdraws from legislative power the
exertion of any restraint on the free
exercise of religion. In order to show a
To apply the test: violation of this clause, the person affected
must show the coercive effect of the
i. Determine sincerity and centrality of claimed legislation as it operates against him in the
religious belief and practice. practice of his religion. While the freedom
to believe (non-establishment) is absolute,
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Sec. 7. The right of the people to information on Persons entitled to the above rights: Only
matters of public concern shall be recognized. Filipino citizens.
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14. Closed door cabinet meetings 2. The entrance must not be for a momentary
15. Supreme Court deliberations period, i.e.., it must be permanent
3. Entry is made under warrant or color of
Sec. 8. The right of the people, including those legal authority
employed in the public and private sectors, to form 4. Property is devoted to Public use
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:
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When does a law impair the obligation of When rights are not available:
contracts: 1. During a police line-up. Exception: Once
there is a move among the investigators to
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5. Not applicable to statements given in items were taken from the accused. [People v.
administrative investigations [People v. Ayson, 175 Boholst 152 SCRA 263 (1987)]
SCRA 216 (1989)]
1. BEFORE THE CASE IS FILED IN COURT but 1. Prosecution for supervening death even
after having been taken into custody the after earlier conviction for physical injuries
continuing right to remain silent and to counsel,
and to be informed thereof, not to When after the 1st prosecution a new fact
be subjected to force, violence, threat, intimidation supervenes for which the defendant is responsible,
or any other means which vitiates the free will; which changes the character of the offense, and,
and to have together with the facts existing at the time,
evidence obtained in violation of these rights constitute a new and distinct offense, the accused
rejected; could not be said to be in 2nd jeopardy in indicted
and for the new offense [Melo v. People, 85 Phil 766
(1950)]
2. AFTER THE CASE IS FILED IN COURT 2. Retrial after unjustified dismissal allowed
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to If dismissal was void for having been issued
him by such refusal; without legal basis, the acquittal bought about by
c) to testify in his own behalf, subject to cross- the dismissal is also void. Hence, no jeopardy can
examination by the prosecution; attach from such acquittal [People v. Jardin]
d) WHILE TESTIFYING, to refuse to answer a
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
jeopardy is available although the prior offense
Signing receipts not self-incriminatory charged under an ordinance be different from the
The receipts for seized items are mandatory on offense charged subsequently under a national
the part of apprehending and seizing police statute, provided that both offenses spring from
officers. They are merely intended to show that the the same set of acts. [People v. Relova]
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provided that before such report is signed, or (a) The amount of P150.00 if the suspected person
thumbmarked if the person arrested or detained is chargeable with light felonies;
does not know how to read and write, it shall be (b) The amount of P250.00 if the suspected person
read and adequately explained to him by his is chargeable with less grave or grave felonies;
counsel or by the assisting counsel provided by the (c) The amount of P350.00 if the suspect is
investigating officer in the language or dialect chargeable with a capital offense. The fee for the
known to such arrested or detained person, assisting counsel shall be paid by the
otherwise, such investigation report city or municipality where the custodial
shall be null and void and of no effect whatsoever. investigation is conducted, provided that if the
(d) Any extrajudicial confession made by a person municipality or city cannot pay such fee, the
arrested, detained or under custodial investigation province comprising such municipality or city shall
shall be in writing and signed by such persons in pay the fee: Provided, That the Municipal or City
the presence of his counsel or in the latter's Treasurer must certify that no funds are available
absence, upon a valid waiver, and in the presence to pay the fees of assisting counsel before the
of any of the parents, elder brothers and sisters, province pays said fees. In the absence of any
his spouse, the municipal mayor, the municipal lawyer, no custodial investigation shall be
judge, district school supervisor, or priest or conducted and the suspected person can only be
minister of the gospelas chosen by him; otherwise, detained by the investigating officer in accordance
such extrajudicial confessionshall be inadmissible with the provision of Art. 125 of the RPC.
in evidence in any proceeding. Sec. 4.Penalty Clause.---
(a) Any arresting public officer or employee, or any
(e) Any waiver by a person arrested or detained investigating officer who fails to inform any person
under the provisions of Art. 125 of the RPC, or arrested, detained or under custodial investigation
under custodial investigation, shall be in writing of his right to remain silent and to have competent
and signed by such person in the presence of his and
counsel; otherwise such waiver shall be null and independent counsel preferably of his own choice,
void and of no effect. shall suffer a fine of P6,000.00 or a penalty of
imprisonment of not less than 8 years but not
(f) Any person arrested or detained or under more than 10 years, or both. The penalty of
custodial investigation shall be allowed visits by or perpetual absolute disqualification shall also be
conferences with any member of his immediate imposed upon the investigating officer who has
family, or any medical doctor or priest or religious been previously convicted of a similar offense.
minister chosen by him or by any member of his
immediate family or by his counsel, or by any The same penalties shall be imposed upon a public
national NGO duly accredited by the CHR or by any officer or employee, or anyone acting upon orders
international NGO duly accredited by the Office of of such investigating officer or in his place, who
the President. The person's "immediate family" fails to provide a competent and independent
shall include his or her spouse, fiancé or fiancée, counsel to a person arrested, detained or under
parent or child, brother or sister, grandparent or custodial investigation for the commission of an
grandchild, uncle or aunt, nephew or niece, and offense if the latter cannot afford the services of
guardian or ward. his own counsel.
As used in this Act, "custodial investigation" shall (b) Any person who obstructs, prevents or
include the practice of issuing an "invitation" to a prohibits any lawyer, any member of the
person who is under investigation in connection immediate family of a person arrested, detained or
with an offense he is suspected to have under custodial investigation, or any medical
committed, without doctor or priest or religious minister or by
prejudice to the liability of the "inviting" officer for hiscounsel, from visiting and conferring privately
any violation of law. chosen by him or by any member of his immediate
Sec. 3.Assisting Counsel.--- Assisting counsel is family with him, or from examining and treating
any lawyer, except those directly affected by the him, or from ministering to his spiritual needs, at
case, those charged with conducting preliminary any hour of the day or, in urgent cases, of the
investigation or those charged with the prosecution night shall suffer the penalty of imprisonment of
of crimes. The assisting counsel other than the not less than 4 years nor more than 6 years, and a
government lawyers shall be entitled to the fine of P4,000.00.
following fees:
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The provisions of the above Section 4. Character and reputation of the accused
notwithstanding, any security officer with custodial 5. Health of the accused
responsibility over any detainee or prisoner may 6. Strength of the evidence
undertake such reasonable measures as may be 7. Probability of appearing at the trial
necessary to secure his safety and prevent his 8. Forfeiture of previous bail bonds
escape. 9. Whether accused was a fugitive from
Sec. 5.Repealing Clause.--- RA 857, as amended, justice when arrested
is hereby repealed.Other laws, PDs, EOs or rules 10. If accused is under bond in other cases
and regulations, or parts thereof inconsistent with
the provisions of this Act are repealed or modified
accordingly. Implicit limitations on the right to bail:
Sec. 6.Effectivity.--- This Act shall take effect 15 1. The person claiming the right must be in
days actual detention or custody of the law.
2. The constitutional right is available only in
followingits publication in the OG or in any daily
criminal cases, not, e.g. in deportation
newspaper of general circulation in the Philippines.
proceedings.
Approved, April 27, 1992.
NOTE:
Who are entitled to bail: 1. Persons charged with offenses punishable
1. All persons ACTUALLY DETAINED by LIFE IMPRISONMENT, when evidence of
2. shall, BEFORE CONVICTION guilt is strong, are likewise not entitled to
3. Be entitled to bail. bail.
2. Right to bail is not available in the military.
Who are not entitled to bail: 3. Apart from bail, a person may attain
1. Persons charged with offenses provisional liberty through recognize,
PUNISHABLE by RECLUSION PERPETUA or which is an obligation of record entered
DEATH, when evidence of guilt is strong into by a third person a court,
2. Persons CONVICTED by the trial court. Bail guaranteeing the appearance of the
is only discretionary pending appeal. accused for trial. It is in the nature of a
3. Persons who are members of the AFP contract between the surety and the state.
facing a court martial.
Bail – the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before
Other rights in relation to bail. any court
1. The right to bail shall NOT be impaired Bail may be given in the form of
even when the privilege of the writ of
habeas corpus is suspended. corporate surety
2. Excessive bail shall not be required. property bond
cash deposit, or
recognizance
Factors considered in setting the amount of
bail:
1. Ability to post bail Conditions of all kinds of bail :
2. Nature of the offense
3. Penalty imposed by law
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1. effective upon approval shall remain in force life imprisonment (Sec. 4, Rule 114; Sec. 13,
at all stages of the case until Art. III, 1987 Constitution)
cancellation, or
Section 13. All persons, except those charged
promulgation of any judgment of the RTC,
with offenses punishable by reclusion perpetua
whether original or appellate
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
accused shall appear before the proper courts released on recognizance as may be provided by
whenever required by the court or these law. xxx
Rules;
failure of the accused to appear at the trial
without justification and despite due notice
Note: The Constitutional right to bail ceases
shall be deemed a waiver of his right to be
upon initial conviction. Pending appeal, the
present thereat; the trial may proceed in
right to bail is merely statutory.
absentia; and
bondsman shall surrender the accused to the
When bail not a matter of right
court for execution of the final judgment.
Note: Absence of the accused out on bail on a 2. Before conviction by the RTC of an offense
hearing in which he is duly notified is not a punishable by death, reclusion perpetua, or
ground to forfeit bail. It is merely a waiver of life imprisonment (Sec. 13, Art. III, 1987
the right to be present. Constitution, and Sec. 7, Rule 114, RoC) –
Accused is required to be present only upon see if evidence of guilt is strong
(where absence is ground to forfeit bail) After conviction by the RTC of an offense
arraignment (Rule 116, Sec. 1 [b]) punishable by death, reclusion perpetua, or
life imprisonment (Sec. 7, Rule 114, RoC) –
identification by witnesses of the prosecution no bail allowed, conviction means evidence
(Rule 115, Sec. 1 [c]) of guilt is strong
promulgation of judgment, unless promulgation After imposition by the RTC of a penalty
allowed in absentia (in case of light offense) exceeding 6 years, but not death, reclusion
(Rule 120, Sec. 6) perpetua, or life imprisonment – bail
discretionary, but bail not allowed upon a
The original papers shall state
showing of the following or other similar
the full name and address of the accused circumstances
the amount of the undertaking and That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed
the required conditions
the crime aggravated by the
passport size photographs taken within the last 6 circumstance of reiteration;
months showing the face, left and right
profiles of the accused
That he has previously escaped from legal
No person under detention by legal process shall confinement, evaded sentence, or
be released or transferred, except upon violated the conditions of his bail
without valid justification;
order of the court or
That he committed the offense while under
when he is admitted to bail. probation, parole, or under conditional
When bail a matter of right pardon;
before or after conviction by the inferior courts That the circumstances of his case indicate
(Sec. 4, Rule 114; Sec. 13, Art. III, 1987 the probability of flight if released on
Constitution) bail; or
That there is undue risk that he may
before conviction by the RTC of an offense not commit another crime during the
punishable by death, reclusion perpetua, or pendency of the appeal.
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Note: This does not violate the constitutional Note: An accused released on bail may be re-
right of the accused to bail before conviction arrested without the necessity of a warrant if
because this section applies only to the he attempts to depart from the Philippines
accused who is out without bail. There is no without permission of the court where the
such thing as a constitutional right of the case in pending.
accused to be out without bail. GR: No bail shall be allowed after a judgment of
conviction has become final.
Forfeiture of Bail: Exception: If before such finality, the accused
When the presence of the accused is required by applies for probation, he may be allowed
the court, his bondsmen shall be notified to temporary liberty under his bail or recognizance.
produce him before the court on a given date and Exception to the Exception: In no case shall bail be
time. If the accused fails to appear in person as allowed after the accused has commenced to serve
required, his bail shall be declared forfeited and sentence.
the bondsmen given 30 days within which to Court supervision of detainees:
produce their principal and to show cause why no The court shall exercise supervision over all
judgment should be rendered against them for the persons in custody for the purpose of eliminating
amount of their bail. unnecessary detention.
The executive judges of the RTCs shall
Where an accused out on surety bail fails to appear
when required, the bondsman, to avoid liability on conduct monthly personal inspections of
the bond, within 30 days must provincial, city and
produce the accused or give the reason for his municipal jails and the prisoners within their
non-production; and respective jurisdictions.
explain why the accused did not appear before the ascertain the number of detainees
court when first required to do so.
inquire on their proper accommodation and
GR: The court cannot reduce or mitigate the health and
liability of the bondsmen
Exceptions: The accused has been examine the condition of the jail facilities
surrendered or is acquitted. order the segregation of sexes and of minors
Cancellation of Bail: from adults
Cancellation of bail – without prejudice to any
liability on the bail ensure the observance of the right of detainees
to confer privately with counsel, and
Upon application of the bondsmen, with due notice strive to eliminate conditions inimical to the
to the prosecutor, detainees.
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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
Political Law Bar Notes law. Since the accused were not yet arrested, and
did not voluntarily submit to the jurisdiction of the
University of Cebu College of Law UCLASS Bar Operations: Political Law Society
trial court, they had no standing in court to file a
motion for bail. Nor did the court have any
other pertinent information. business setting the same for hearing. The
Concerned can
prosecution Citizens
not bev. required
Judge Elma, to prove 241thatSCRAits
Before arraignment, an application for or 84 (1995)
Tucay v. Domagas, 242 SCRA 110 (1995) if
evidence of the applicant’s guilt is strong the
Even
admission to bail shall not bar the accused from Tucay hasv.not
court
where there isDomagas,
yet
no objection242
acquired SCRA
to the grant 110
jurisdiction (1995)
of over
bail, the
the
Even should
where still
applicant.
court theresetisano objection
hearing for to the
the grantfor
petition of
challenging the validity of his arrest or the legality
bail,tothe
bail takecourt should still
into account set a hearing
the guidelines for the
in fixing the
of the warrant issued therefor, or
petition of
amount forthebail to take into account the guidelines
bail.
assailing the regularity or questioning the absence People v. CarlosTheofoffended
in fixing the amount the bail. party has standing
of a preliminary investigation of the charge toPeople v. CarlosThe
question the grantoffended
of the party has standing
bail even if the
against him, to question
accused the grant
was charged with of the bail
a capital even if the
offense.
accusedv.
Marcos was charged
Ruiz, 213 with
SCRA a capital
177 (1992)offense. Absence
The court shall resolve the matter not later than
the start of the trial of the case. of the accused at a stage when his presenceAbsence
Marcos v. Ruiz, 213 SCRA 177 (1992) is not
of the accused
required is not a at ground
a stagewhen his presence
to forfeit the bond.isThe not
Arraignment is a still waiver of the right to
required is not a ground to forfeit
accused is required to appear only in 3 instances 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])
arraignment (Rule 116, Sec. 1 [b])
Cases: promulgation of judgment, unless promulgation
promulgation
allowed in of judgment,
absentia (in case unless promulgation
of light offense)
Feliciano v. Pasicolan, 2 SCRA 888 (1961)
Feliciano v. Pasicolan, 2 SCRA 888 (1961) allowed in
(Rule 120, Sec. 6)absentia (in case of light offense)
Though it is not necessary that a person applying
Though it is not necessary that a person applying (Rule 120, Sec. 6)
for bail wait until an information is filed against
for identification by witnesses of the prosecution (Rule
him,bailhewait until be
an ininformation is filed
should the custody of against
law or identification by[c])
witnesses of the prosecution (Rule
him, he should be in the custody of law or 115, Sec. 1
otherwise deprived of liberty. Only persons who 115, Sec. 1 [c])
otherwise
have beendeprived of liberty. Only persons who
either arrested, detained or otherwise
have been either arrested, detained or
deprived of their liberty can apply for bail. Bail otherwise
deprived
cannot beofapplied
their liberty
for by can applyoffor
an bail. Bail
the wife accused,
cannot
more sobe applied
if the for by
accused is inthe wife of an accused,
hiding.
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
Concerned Citizens v. Judge Elma, 241 SCRA production of evidence in his behalf
84 (1995)
Where bail Citizens
Concerned is not a matter
v. Judge of right,
Elma,a241petition
SCRAfor
bail(1995)
should Where
be set for “DUE PROCESS”
84 bail hearing
is not abefore
matterit of
is right,
granted.
a This means that the accused can only be convicted
At the for
petition hearing, the court
bail should be setshould assurebefore
for hearing that the
it by a tribunal which is required to comply with the
isprosecution
granted. Atisthe
afforded
hearing,thetheopportunity
court should to assure
adduce
stringent requirements of the rules of criminal
evidence
that relevant to
the prosecution is the factual
afforded the issue, with the
opportunity to
applicant having relevant
the rightto ofthe
cross-examination and procedure.
adduce evidence factual issue, with
to introduce
the applicant his own the
having evidence in cross-examination
right of rebuttal.
and to introduce his own evidence in rebuttal. “PRESUMPTION OF INNOCENCE”
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The Constitution does not prohibit the legislature 4. If the accused desires to obtain
from providing that the proof of certain facts leads his own counsel, the court must
to a prima facie presumption of guilt, provided that give him reasonable time to get
the facts proved have a reasonable connection to one.
the ultimate fact presumed.
3. Right to an impartial judge
Presumption of guilt should not be conclusive. 4. Right of confrontation and cross-
examination
“RIGHT TO BE HEARD BY HIMSELF AND 5. Right to compulsory process to secure the
COUNSEL” attendance of witnesses
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Sec. 18. Right against involuntary servitude NOTE: Fr. Bernas says that the accused cannot be
convicted of the crime to which the punishment is
attached if the court finds that the punishment is
cruel, degrading or inhuman.
“INVOLUNTARY SERVITUDE” Reason: Without a valid penalty, the law is mot a
It is every condition of enforced or compulsory penal law.
service of one to another no matter under what
form such servitude may be disguised. Sec. 20. No person shall be imprisoned for debt or
non-payment of a poll tax.
Exception:
A. Punishment for a crime for which the party Definition of “DEBT” under Section 20
has been duly convicted 1. Debt refers to a CONTRACTUAL obligation,
B. Personal military or civil service in the whether express or implied, resulting in any
interest of national defense liability to pay money. Thus, all other types
C. In naval enlistment: a person who enlists of obligations are not within the scope of this
in a merchant ship may be compelled to prohibition.
remain in service until the end of the 2. Thus, if an accused fails to pay the fine
voyage imposed upon him, this may result in his
D. Posse comitatus for the apprehension of subsidiary imprisonment because his liability
criminals is ex delicto and not ex contractu.
E. Return to work order issued by the DOLE
Secretary or the President
F. Minors under patria potestas are obliged to
obey their parents. A FRAUDULENT debt may result in the
imprisonment of the debtor if:
Sec. 19. Prohibition against cruel, degrading and
inhuman punishment 1) The fraudulent debt constitutes a crime such
as estafa; and
When is a penalty “cruel, degrading and 2) The accused has been duly convicted.
inhuman”?
A. A penalty is cruel and inhuman if it Sec. 21. No person shall be twice put in jeopardy
involves torture or lingering suffering. Ex. of punishment for the same offense. If an act is
Being drawn and quartered. punished by a law and an ordinance, conviction or
B. A penalty is degrading if it exposes a acquittal under either shall constitute a bar to
person to public humiliation. Ex. Being another prosecution for the same act.
tarred and feathered, then paraded
throughout town. What are the TWO KINDS OF JEOPARDY?
1. First Sentence of Sec. 21: No person shall
be twice put in jeopardy of punishment for
the same offense.
Standard used: 2. Second Sentence: When an act is
i. The punishment must not be so severe punished by a law and an ordinance,
as to be degrading to the dignity of conviction or acquittal under either shall
human beings. constitute a bar to another prosecution for
ii. It must not be applied arbitrarily. the same act.
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to any Regional Trial Court of the place where the or by a person deputized by the court, justice or
threat, act or omission was committed or any of its judge who shall retain a copy on which to make a
elements occurred. return of service. In case the writ cannot be served
SEC. 4. No Docket Fees. The petitioner shall be personally on the respondent, the rules on
exempted from the payment of the docket and substituted service shall apply.
other lawful fees when filing the petition. The SEC. 9. Return Contents. – Within seventy-two
court, justice or judge shall docket the petition and (72) hours after service of the writ, the respondent
act upon it immediately. shall file a verified written return together with
supporting affidavits which shall, among other
SEC. 5. Contents of Petition.– The petition shall things, contain the following:
be signed and verified and shall allege the (a) The lawful defenses to show that the
following: respondent did not violate or threaten with
(a) The personal circumstances of the petitioner; violation the right to life, liberty and security of the
(b) The name and personal circumstances of the aggrieved party, through any act or omission;
respondent responsible for the threat, act or (b) The steps or actions taken by the respondent
omission, or, if the name is unknown or uncertain, to determine the fate or whereabouts of the
the respondent may be described by an assumed aggrieved party and the person or persons
appellation; responsible for the threat, act or omission;
(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
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(d) Motion for a bill of particulars; The motion shall state in detail the place or places
(e) Counterclaim or cross-claim; to be inspected. It shall be supported by affidavits
(f) Third-party complaint; or testimonies of witnesses having personal
(g) Reply; knowledge of the enforced disappearance or
(h) Motion to declare respondent in default; whereabouts of the aggrieved party.
(i) Intervention; If the motion is opposed on the ground of national
security or of the privileged nature of the
(j) Memorandum;
information, the court, justice or judge may
(k) Motion for reconsideration of interlocutory
conduct a hearing in chambers to determine the
orders or interim relief orders; and
merit of the opposition.
(l) Petition for certiorari, mandamus or prohibition
The movant must show that the inspection order is
against any interlocutory order.
necessary to establish the right of the aggrieved
party alleged to be threatened or violated.
SEC. 12. Effect of Failure to File Return.— In case The inspection order shall specify the person or
the respondent fails to file a return, the court, persons authorized to make the inspection and the
justice or judge shall proceed to hear the petition date, time, place and manner of making the
ex parte. inspection and may prescribe other conditions to
SEC. 13. Summary Hearing.— The hearing on the protect the constitutional rights of all parties. The
petition shall be summary. However, the court, order shall expire five (5) days after the date of its
justice or judge may call for a preliminary issuance, unless extended for justifiable reasons.
conference to simplify the issues and determine (c) Production Order. – The court, justice or
the possibility of obtaining stipulations and judge, upon verified motion and after due hearing,
admissions from the parties. may order any person in possession, custody or
The hearing shall be from day to day until control of any designated documents, papers,
completed and given the same priority as petitions books, accounts, letters, photographs, objects or
for habeas corpus. tangible things, or objects in digitized or electronic
SEC. 14. Interim Reliefs.— Upon filing of the form, which constitute or contain evidence relevant
petition or at anytime before final judgment, the to the petition or the return, to produce and permit
court, justice or judge may grant any of the their inspection, copying or photographing by or on
following reliefs: behalf of the movant.
(a) Temporary Protection Order. – The court, The motion may be opposed on the ground of
justice or judge, upon motion or motuproprio, may national security or of the privileged nature of the
order that the petitioner or the aggrieved party information, in which case the court, justice or
and any member of the immediate family be judge may conduct a hearing in chambers to
protected in a government agency or by an determine the merit of the opposition.
accredited person or private institution capable of The court, justice or judge shall prescribe other
keeping and securing their safety. If the petitioner conditions to protect the constitutional rights of all
is an organization, association or institution the parties.
referred to in Section 3(c) of this Rule, the (d) Witness Protection Order. – The court, justice
protection may be extended to the officers or judge, upon motion or motuproprio, may refer
involved. the witnesses to the Department of Justice for
The Supreme Court shall accredit the persons and admission to the Witness Protection, Security and
private institutions that shall extend temporary Benefit Program, pursuant to Republic Act No.
protection to the petitioner or the aggrieved party 6981. The court, justice or judge may also refer
and any member of the immediate family, in the witnesses to other government agencies, or to
accordance with guidelines which it shall issue. accredited persons or private institutions capable
The accredited persons and private institutions of keeping and securing their safety.
shall comply with the rules and conditions that SEC. 15. Availability of Interim Reliefs to
may be imposed by the court, justice or judge. Respondent.– Upon verified motion of the
(b) Inspection Order. — The court, justice or respondent and after due hearing, the court,
judge, upon verified motion and after due hearing, justice or judge may issue an inspection order or
may order any person in possession or control of a production order under paragraphs (b) and (c) of
designated land or other property, to permit entry the preceding section.
for the purpose of inspecting, measuring, A motion for inspection order under this section
surveying, or photographing the property or any shall be supported by affidavits or testimonies of
relevant object or operation thereon.
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witnesses having personal knowledge of the SEC. 21. Institution of Separate Actions.— This
defenses of the respondent. Rule shall not preclude the filing of separate
SEC. 16. Contempt. – The court, justice or judge criminal, civil or administrative actions.
may order the respondent who refuses to make a SEC. 22. Effect of Filing of a Criminal Action.–
return, or who makes a false return, or any person When a criminal action has been commenced, no
who otherwise disobeys or resists a lawful process separate petition for the writ shall be filed. The
or order of the court to be punished for contempt. reliefs under the writ shall be available by motion
The contemnor may be imprisoned or imposed a in the criminal case.
fine. The procedure under this Rule shall govern the
SEC. 17. Burden of Proof and Standard of Diligence disposition of the reliefs available under the writ of
Required. – The parties shall establish their amparo.
claims by substantial evidence. The respondent SEC. 23. Consolidation.– When a criminal action
who is a private individual or entity must prove is filed subsequent to the filing of a petition for the
that ordinary diligence as required by applicable writ, the latter shall be consolidated with the
laws, rules and regulations was observed in the criminal action.
performance of duty. The respondent who is a When a criminal action and a separate civil action
public official or employee must prove that are filed subsequent to a petition for a writ of
extraordinary diligence as required by applicable amparo, the latter shall be consolidated with the
laws, rules and regulations was observed in the criminal action. After consolidation, the procedure
performance of duty. The respondent public official under this Rule shall continue to apply to the
or employee cannot invoke the presumption that disposition of the reliefs in the petition.
official duty has been SEC. 24. Substantive Rights.— This Rule shall not
SEC. 18. Judgment.— The court shall render diminish, increase or modify substantive rights
judgment within ten (10) days from the time the recognized and protected by the Constitution.
petition is submitted for decision. If the allegations SEC. 25. Suppletory Application of the Rules of
in the petition are proven by substantial evidence, Court. – The Rules of Court shall apply suppletorily
the court shall grant the privilege of the writ and insofar as it is not inconsistent with this Rule.
such reliefs as may be proper and appropriate; SEC. 26. Applicability to Pending Cases. – This
otherwise, the privilege shall be denied. Rule shall govern cases involving extralegal killings
SEC. 19. Appeal.– Any party may appeal from and enforced disappearances or threats thereof
the final judgment or order to the Supreme Court pending in the trial and appellate courts.
under Rule 45. The appeal may raise questions of SEC. 27. Effectivity. – This Rule shall take effect on
fact or law or both. The period of appeal shall be October 24, 2007, following its publication in three
five (5) working days from the date of notice of the (3) newspapers of general circulation.
adverse judgment. The appeal shall be given the
same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The
RULE 102: Special Proceedings
court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot HABEAS CORPUS
proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on Sec. 1. To what habeas corpus extends. - Except
their lives. as otherwise expressly provided by law, the writ of
A periodic review of the archived cases shall be habeas corpus shall extend to all cases of illegal
made by the amparo court that shall, motuproprio confinement or detention by which any person is
or upon motion by any party, order their revival deprived of his liberty, or by which the rightful
when ready for further proceedings. The petition custody of any person is withheld from the person
shall be dismissed with prejudice upon failure to entitled thereto.
prosecute the case after the lapse of two (2) years Sec. 2. Who may grant the writ. - The writ of
from notice to the petitioner of the order archiving habeas corpus may be granted by the Supreme
the case. Court, or any member thereof, on any day and at
The clerks of court shall submit to the Office of the any time, or by the Court of Appeals or any
Court Administrator a consolidated list of archived member thereof in the instances authorized by
cases under this Rule not later than the first week law, and if so granted it shall be enforceable
of January of every year. anywhere in the Philippines, and may be made
returnable before the court or any member
thereof, or before the Court of First Instance, or
any judge thereof for the hearing and decision on
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the merits. It may also be granted by a Court of person not an officer, the writ shall be directed to
First Instance, or a judge thereof, on any day and an officer, and shall command him to take and
at any time, and returnable before himself, have the body of the person restrained of his
enforceable only within his judicial district. liberty before the court or judge designated in the
Sec. 3. Requisites of application therefor. - writ at the time and place therein specified, and to
Application for the writ shall be by petition signed summon the person by whom he is restrained then
and verified either by the party for whose relief it and there to appear before said court or judge to
is intended, or by some person on his behalf, and show the cause of the imprisonment or restraint.
shall set forth: Sec. 7. How prisoner designated and writ served. -
(a) That the person in whose behalf the application The person to be produced should be designated in
is made is imprisoned or restrained of his liberty; the writ by his name, if known, but if his name is
(b) The officer or name of the person by whom he not known he may be otherwise described or
is so imprisoned or restrained; or, if both are identified. The writ may be served in any province
unknown or uncertain, such officer or person may by the sheriff or other proper officer, or by a
be described by an assumed appellation, and the person deputed by the court or judge. Service of
person who is served with the writ shall be deemed the writ shall be made by leaving the original with
the person intended; the person to whom it is directed and preserving a
(c) The place where he is so imprisoned or copy on which to make return of service. If that
restrained, if known; person cannot be found, or has not the prisoner in
(d) A copy of the commitment or cause of his custody, then the service shall be made on any
detention of such person, if it can be procured other person having or exercising such custody.
without impairing the efficiency of the remedy; or, Sec. 8. How writ executed and returned. - The
if the imprisonment or restraint is without any officer to whom the writ is directed shall convey
legal authority, such fact shall appear. the person so imprisoned or restrained, and named
Sec. 4. When writ not allowed or discharge in the writ, before the judge allowing the writ, or,
authorized. - If it appears that the person alleged in case of his absence or disability, before some
to be restrained of his liberty is in the custody of other judge of the same court, on the day specified
an officer under process issued by a court or judge in the writ, unless, from sickness or infirmity of the
or by virtue of a judgment or order of a court of person directed to be produced, such person
record, and that the court or judge had jurisdiction cannot, without danger, be brought before the
to issue the process, render the judgment, or court or judge; and the officer shall make due
make the order, the writ shall not be allowed; or if return of the writ, together with the day and the
the jurisdiction appears after the writ is allowed, cause of the caption and restraint of such person
the person shall not be discharged by reason of according to the command thereof.
any informality or defect in the process, judgment, Sec. 9. Defect of form. - No writ of habeas corpus
or order. Nor shall anything in this rule be held to can be disobeyed for defect of form, if it
authorize the discharge of a person charged with sufficiently appears therefrom in whose custody or
or convicted of an offense in the Philippines, or of a under whose restraint the party imprisoned or
person suffering imprisonment under lawful restrained is held and the court or judge before
judgment. whom he is to be brought.
Sec. 5. When the writ must be granted and issued. Sec. 10. Contents of return. - When the person to
- A court or judge authorized to grant the writ be produced is imprisoned or restrained by an
must, when a petition therefor is presented and it officer, the person who makes the return shall
appears that the writ ought to issue, grant the state therein, and in other cases the person in
same forthwith, and immediately thereupon the whose custody the prisoner is found shall state, in
clerk of the court shall issue the writ under the seal writing to the court or judge before whom the writ
of the court; or in case of emergency, the judge is returnable, plainly and unequivocably:
may issue the writ under his own hand, and may (a) Whether he has or has not the party in his
depute any officer or person to serve it. custody or power, or under restraint;
Sec. 6. To whom writ directed, and what to (b) If he has the party in his custody or power, or
require. - In case of imprisonment or restraint by under restraint, the authority and the true and
an officer, the writ shall be directed to him, and whole cause thereof, set forth at large, with a copy
shall command him to have the body of the person of the writ, order, execution, or other process, if
restrained of his liberty before the court or judge any, upon which the party is held;
designated in the writ at the time and place therein (c) If the party is in his custody or power or is
specified. In case of imprisonment or restraint by a restrained by him, and is not produced, particularly
the nature and gravity of the sickness or infirmity
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of such party by reason of which he cannot, file a bond in such sum as the court or judge
without danger, be brought before the court or deems reasonable, considering the circumstances
judge; of the prisoner and the nature of the offense
(d) If he has had the party in his custody or power, charged, conditioned for his appearance before the
or under restraint, and has transferred such court where the offense is properly cognizable to
custody or restraint to another, particularly to abide its order or judgment; and the court or judge
whom, at what time, for what cause, and by what shall certify the proceedings, together with the
authority such transfer was made. bond, forthwith to the proper court. If such bond is
Sec. 11. Return to be signed and sworn to. - The not so filed, the prisoner shall be recommitted to
return or statement shall be signed by the person confinement.
who makes it; and shall also be sworn to by him if Sec. 15. When prisoner discharged if no appeal. -
the prisoner is not produced, and in all other cases When the court or judge has examined into the
unless the return is made and signed by a sworn cause of caption and restraint of the prisoner, and
public officer in his official capacity. is satisfied that he is unlawfully imprisoned or
Sec. 12. Hearing on return; Adjournments. - When restrained, he shall forthwith order his discharge
the writ is returned before one judge, at a time from confinement, but such discharge shall not be
when the court is in session, he may forthwith effective until a copy of the order has been served
adjourn the case into the court, there to be heard on the officer or person detaining the prisoner. If
and determined. The court or judge before whom the officer or person detaining the prisoner does
the writ is returned or adjourned must immediately not desire to appeal, the prisoner shall be forthwith
proceed to hear and examine the return, and such released.
other matters as are properly submitted for Sec. 16. Penalty for refusing to issue writ, or for
consideration, unless for good cause shown the disobeying the same. -A clerk of a court who
hearing is adjourned, in which event the court or refuses to issue the writ after allowance thereof
judge shall make such order for the safekeeping of and demand therefor, or a person to whom a writ
the person imprisoned or restrained as the nature is directed, who neglects or refuses to obey or
of the case requires. If the person imprisoned or make return of the same according to the
restrained is not produced because of his alleged command thereof, or makes false return thereof,
sickness or infirmity, the court or judge must be or who, upon demand made by or on behalf of the
satisfied that it is so grave that such person cannot prisoner, refuses to deliver to the person
be produced without danger, before proceeding to demanding, within six (6) hours after the demand
hear and dispose of the matter. On the hearing the therefor, a true copy of the warrant or order of
court or judge shall disregard matters of form and commitment, shall forfeit to the party aggrieved
technicalities in respect to any warrant or order of the sum of one thousand pesos, to be recovered in
commitment of a court or officer authorized to a proper action, and may also be punished by the
commit by law. court or judge as for contempt.
Sec. 13. When the return evidence, and when only Sec. 17. Person discharged not to be again
a plea. - If it appears that the prisoner is in imprisoned. - A person who is set at liberty upon a
custody under a warrant of commitment in writ of habeas corpus shall not be again
pursuance of law, the return shall be considered imprisoned for the same offense unless by the
prima facie evidence of the cause of restraint; but lawful order or process of a court having
if he is restrained of his liberty by any alleged jurisdiction of the cause or offense; and a person
private authority, the return shall be considered who knowingly, contrary to the provisions of this
only as a plea of the facts therein set forth, and rule, recommits or imprisons, or causes to be
the party claiming the custody must prove such committed or imprisoned, for the same offense, or
facts. pretended offense, any person so set at liberty, or
Sec. 14. When person lawfully imprisoned knowingly aids or assists therein, shall forfeit to
recommitted, and when let to bail. - If it appears the party aggrieved the sum of one thousand
that the prisoner was lawfully committed, and is pesos, to be recovered in a proper action,
plainly and specifically charged in the warrant of notwithstanding any colorablepretense or variation
commitment with an offense punishable by death, in the warrant of commitment, and may also be
he shall not be released, discharged, or bailed. If punished by the court or judge granting writ as for
he is lawfully imprisoned or restrained on a charge contempt.
of having committed an offense not so punishable, Sec. 18. When prisoner may be removed from one
he may be recommitted to imprisonment or custody to another. - A person committed to
admitted to bail in the discretion of the court or prison, or in custody of an officer, for any criminal
judge. If he be admitted to bail, he shall forthwith matter, shall not be removed therefrom into the
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Natural-born citizens:
1. Citizens of the Philippines from birth who Distinguish dual citizenship from dual
do not need to perform any act to acquire allegiance
or perfect their Philippine citizenship. Dual citizenship arises when, as a result of the
2. Those who elect Philippine citizenship concurrent application of the laws of two or more
under Art. IV, Sec. 1(3) of 1987 states, a person is simultaneously considered a
Constitution. citizen of those states. Dual allegiance refers to the
situation in which a person simultaneously owes,
Marriage of Filipino with an alien: by some positive act, loyalty to two or more
1. General Rule: The Filipino RETAINS Philippine states. Dual nationality is involuntary and legal,
citizenship while dual allegiance is voluntary and illegal
2. Exception: If, by their act or omission they (Mercado v. Manzano)
are deemed, under the law, to have renounced
it.
Citizenship
Section 1. The following are citizens of the
Philippines:
How may one lose citizenship (C.A. No. 63): Those who are citizens of the Philippines at the
1. By naturalization in a foreign country time of the adoption of this Constitution;
2. By express renunciation of citizenship Those whose fathers or mothers are citizens of the
3. By subscribing to an oath of allegiance to Philippines;
the laws or constitution of a foreign Those born before January 17, 1973, of Filipino
country mothers, who elect Philippine citizenship upon
4. By serving in the armed forces of an reaching the age of majority; and
enemy country Those who are naturalized in accordance with law.
5. By cancellation of certificates of Section 2. Natural-born citizens are those who are
naturalization citizens of the Philippines from birth without having
6. By being a deserter of the armed forces of to perform any act to acquire or perfect their
one’s country Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3),
How many one reacquire citizenship: Section 1 hereof shall be deemed natural-born
1. By direct act of Congress citizens.
2. By naturalization
3. By repatriation Section 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
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natural-born citizenship by reason of their allegiance to the country where they took that
naturalization as citizens of a foreign country are oath;
hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of (4) Those intending to practice their profession in
allegiance to the Republic: the Philippines shall apply with the proper
authority for a license or permit to engage in such
"I _____________________, solemny swear (or practice; and
affrim) that I will support and defend the
Constitution of the Republic of the Philippines and (5) That right to vote or be elected or appointed to
obey the laws and legal orders promulgated by the any public office in the Philippines cannot be
duly constituted authorities of the Philippines; and exercised by, or extended to, those who:
I hereby declare that I recognize and accept the
supreme authority of the Philippines and will (a) are candidates for or are occupying any public
maintain true faith and allegiance thereto; and that office in the country of which they are naturalized
I imposed this obligation upon myself voluntarily citizens; and/or
without mental reservation or purpose of evasion."
(b) are in active service as commissioned or non-
Natural born citizens of the Philippines who, after commissioned officers in the armed forces of the
the effectivity of this Act, become citizens of a country which they are naturalized citizens.
foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath. 3. Exploration, Development and Utilization of
Natural Resources
Section 4. Derivative Citizenship - The unmarried
child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-
acquire Philippine citizenship upon effectivity of ARTICLE V- SUFFRAGE
this Act shall be deemed citizenship of the
Philippines.
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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
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Moral disapproval, without more, is not a sufficient enumerated, but whether a particular organization
governmental interest to justify exclusion of complies with the requirements of the Constitution
homosexuals from participation in the party-list and RA 7941. Ang Ladlad LGBT Party vs.
system. The denial of Ang Ladlad’s registration on Commission on Elections, G.R. No. 190582, April
purely moral grounds amounts more to a 8, 2010.
statement of dislike and disapproval of
homosexuals, rather than a tool to further any
Sec. 9. In case of vacancy in the Senate or in the
substantial public interest. Respondent’s blanket
House of Representatives, a special election may
justifications give rise to the inevitable conclusion
be called to fill such vacancy in the manner
that the COMELEC targets homosexuals
prescribed by law, but the Senator or Member of
themselves as a class, not because of any
the House of Representatives thus elected shall
particular morally reprehensible act. It is this
serve only for the unexpired term.
selective targeting that implicates our equal
protection clause.
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B. Legislative privilege:
1. No member shall be questioned or held
liable in any forum other than his/her respective
Congressional body for any debate or speech in the
Congress or in any Committee thereof
2. Limitation on the privilege:
a) Protection is only against prosecution in
any forum other than Congress itself. Thus, for
inflammatory remarks which are otherwise
privileged, a member may be sanctioned by either
the Senate or the House as the case may be.
b) The ‘speech or debate’ must be made in
performance of their duties as members of
Congress. This includes speeches delivered,
statements made, votes cast, as well as bills
introduced, and other activities done in
performance of their official duties.
c) Congress need NOT be in session when the
utterance is made, as long as it forms part of
‘legislative action.’ i.e. part of the deliberative and
communicative process used to participate in
legislative proceedings in consideration of
proposed legislation or with respect to other
matters with Congress’ jurisdiction
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1. Suspension
SECTION 15: Regular and Special Sessions a) Concurrence of 2/3 of ALL its members and
b) Shall not exceed 60 days.
2. Expulsion
a) Concurrence of 2/3 of ALL its members.
Difference of Special Session from a Regular
Session DISQUALIFICATION WHEN APPLICABLE
(1) Regular Sessions
Convenes once every year on the 4th 1. Senator/Member of During his term. If he
Monday of July. the House cannot hold does so, he forfeits his
Continues to be in session until 30 days any other office or seat
before the start of its next regular session, employment in the
exclusive of Saturdays, Sundays, and legal Government or any
holidays. subdivision, agency or
(2) Special Sessions instrumentality thereof,
Called by the President at any time when including GOCCS or their
Congress is not in session subsidiaries.
2. Legislators cannot be If the office was
SECTION 16: Officers and Rules appointed to any office created or the
emoluments thereof
1.) Senate President; increased during the
2.) Speaker of the House; and term for which he was
3.) Each House may choose such other officers as elected.
it may deem necessary. 3. Legislators cannot During his term of
personally appear as office.
counsel before any court
Election of Officers of justice, electoral
By a majority vote of all respective members. tribunal, quasi-judicial
and administrative
bodies.
Quorum to do business: 4. Legislators cannot be During his term of
a. Majority of each House shall constitute a financially interested office
quorum. directly or indirectly in
b. A smaller number may adjourn from day to any contract with or in
day and may compel the attendance of any franchise, or special
absent members. privilege granted by the
c. In computing a quorum, members who are Government, or any
outside the country and thus outside of subdivision, agency or
each House’s coercive jurisdiction are not instrumentality thereof,
included. including any GOCCS or
its subsidiary.
5. Legislators cannot When it is for his
Internal Rules: intervene in any matter pecuniary benefit or
1.) Each House shall determine its own before any office of the where he may be
procedural rules. government. called upon to act on
2.) Since this is a power vested in Congress as account of his office.
part of its inherent powers, under the
principle of separation of powers, the
courts cannot intervene in the
implementation of these rules insofar as Congressional Journals and Records:
they affect the members of Congress. 1. The Journal is conclusive upon the courts.
3.) Also, since Congress has the power to 2. BUT an enrolled bill prevails over the
make these rules, it also has the power to contents of the Journal.
ignore them when circumstances so 3. An enrolled bill is the official copy of
require. approved legislation and bears the
certifications of the presiding officers of
each House. Thus, where the certifications
Discipline: are valid and are not withdrawn, the
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contents of the enrolled bill are conclusive 1. Since the ET’s are independent
upon the courts as regards the provision of constitutional bodies, independent even of
that particular bill. the House from which the members are
respectively taken, neither Congress nor
the Courts may interfere with procedural
Adjournments: matters relating to the functions of the
a. Neither House can adjourn for more than 3 ET’s, such as the setting of deadlines or
days during the time Congress is in session filing their election contests with the
without the consent of the other House. respective ETs.
b. Neither can they adjourn to any other
place than that where the two houses are 2. The ETs being independent bodies, its
sitting, without the consent of the other. members may not be arbitrarily removed
from their positions in the tribunal by the
c. SECTION 17: Electoral Tribunals parties which they represent. Neither may
they be removed for not voting according
The Senate and the House shall each have an to party lines, since they are acting
Electoral Tribunal which shall be composed independently of Congress.
of:
a. 3 Supreme Court Justices to be designated
by the Chief Justice; & 3. The mere fact that the members of either
b. 6 Members of the Senate or House, as the the Senate or the House sitting on the ET
case may be. are those which are sought to be
The senior may Justice in the Electoral Tribunal disqualified due to the filling of an election
shall be its Chairman. contest against them does not warrant all
of them from being disqualified from sitting
NOTE: The congressional members of the ET’s in the ER. The Constitution is quite clear
shall be chosen on the basis of proportional that the ET must act with both members
representation from the political parties and party- from the SC and from the Senate or the
list organizations. House. If all the legislator-members of the
ET were to be disqualified, the ET would
not be able to fulfill its constitutional
Jurisdiction: functions.
1. Each ET shall be the sole judge of all
COTESTS relating to the election, returns, 4. Judicial review of decisions of the ETs may
and qualifications of their respective be had with the SC only insofar as the
members. This includes determining the decision or resolution was rendered
validity or invalidity of a proclamation without or in excess of jurisdiction or with
declaring a particular candidate as the grave abuse of discretion constituting
winner. denial of due process.
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a. The chairman shall only vote in case of a 3. If the stated purpose of the investigation is
tie. to determine the existence of violations of
b. The CA shall act on all appointments within the law, the investigation is no longer ‘in
30 session days from their submission to aid of legislation’ but ‘in aid of
Congress. prosecution.’ This violates the principle of
c. The Commission shall rule by a majority separation of powers and is beyond the
vote of all the Members. scope of congressional powers.
Enforcement:
Jurisdiction a. Since experience has shown that the mere
1. CA shall confirm the appointments by the request for information do not usually
President with respect to the following work, Congress has the inherent power to
positions: (CODE: HAPCOO) punish recalcitrant witnesses for contempt,
2. Heads of Executive Departments (except if and may have them incarcerated until such
it is the Vice-President who is appointed to time that they agree to testify.
the post). b. The continuance of such incarceration only
3. Ambassadors, other public ministers or subsists for the lifetime, or term, of such
consuls. body. Once the body ceases to exist after
4. Other officer whose appointments are its final adjournment, the power to
vested in him by the Constitution (e.g. incarcerate ceases to exist as well. Thus,
COMELEC members). each ‘Congress’ of the House lasts for only
Congress CANNOT by law prescribe 3 years. But if one is incarcerated by the
that the appointment of a person to an Senate it is indefinite because the Senate,
office created by such law shall be with its staggered terms, is a continuing
subject to confirmation by the CA. body.
Appointments extended by the President c. BUT, in order for a witness to be subject to
to the above-mentioned positions while this incarceration, the primary requirement
Congress is not in session shall only be is that the inquiry is within the scope of the
effective until disapproval by the CA or powers of Congress. i.e. it is an aid of
until the next adjournment of Congress. legislation.
d. The materiality of a question is determined
not by its connection to any actually
Meetings of the CA pending legislation, but by its connection
1. CA meets only while Congress is in session. to the general scope of the inquiry.
2. Meetings are held either at the call of the e. The power to punish for contempt is
Chairman or a majority of all its members. inherent in Congress and this power is sui
3. Since the CA is also an independent generic. It cannot be exercised by local
constitutional body, its rules of procedure government units unless they are
are also outside the scope of congressional expressly authorized to do so.
powers as well as that of the judiciary.
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2) Each provision or enactment in the General stated in the bill. It is sufficient if the
Appropriations Bill must relate specifically title expresses the general subject of
to some particular appropriation therein the bill and all the provisions of the
and any such provision or enactment must statute are germane to that general
be limited in its operation to the subject.
appropriation to which it relates. c) A bill which repeals legislation
3) The procedure in approving appropriations regarding the subject matter need not
for Congress shall strictly follow the state in the title that it is repealing the
procedure for approving appropriation for latter. Thus, a repealing clause in the
other departments and agencies. bill is considered germane to the
4) A special appropriations bill must specify subject matter of the bill.
the purpose for which it is intended and
must be supported by funds actually 2. Readings
available as certified by the National a) In order to become a law, each bill
Treasurer or to be raised by corresponding must pass three (3) readings in both
revenue proposal therein. Houses.
5) Transfer or appropriations: b) General rule: Each reading shall be
a) Rule: No law shall be passed held on separate days & printed copies
authorizing any transfer of thereof in its final form shall be
appropriations distributed to its Members three (3)
b) BUT the following may, BY LAW, be days before its passage.
authorized to AUGMENT any item in c) Exception: If a bill is certified as urgent
the general appropriations law for their by the President as to the necessity of
respective offices from savings in other its immediate enactment to meet a
items of their respective appropriations public calamity or emergency, the 3
1. President readings can be held on the same day.
2. President of the Senate d) First reading – only the title is read;
3. Speaker of the House the bill is passed to the proper
Representatives committee
4. Chief Justice of the Supreme Second reading – Entire text is read
Court and debates are held, and
5. Heads of the Constitutional amendments introduced.
Commissions Third reading – only the title is read,
6) Discretionary funds appropriated for no amendments are allowed. Vote shall
particular officials shall be: be taken immediately thereafter and
a) Disbursed only for public purposes; the yeas and nays entered in the
b) Should be supported by appropriate journal.
vouchers; and
c) Subject to guidelines as may be
prescribed by law. Vote power of President:
7) If Congress fails to pass General 1. Every bill, in order to become a law, must be
Appropriations Bill (GAB) by the end of any presented to and signed by the President.
fiscal year: 2. If the President does not approve of the bill, he
a) The GAB for the previous year is shall veto the same and return it with his
deemed reenacted objections to the House from which is
b) It will remain in full force and effect originated. The House shall enter the
until the GAB is passed by Congress objections in the Journal and proceed to
reconsider it.
B. For law granting tax exemption: 3. The President must communicate his decision
It should be passed with the concurrence of a to veto within 30 days from the date of receipt
MAJORITY of ALL the members of Congress. thereof. If he fails to do so, the bill shall
become a law as if he signed it.
C. For bills in general 4. This rule eliminates the ‘pocket veto’ whereby
1. Every bill shall embrace only one (1) subject, the President would simply refuse to act on the
as expressed in the title thereof bill.
a) As a mandatory requirement 5. To OVERIDE the veto, at least 2/3 of ALL the
b) The title does not have to be a members of each House must agree to pass
complete catalogue of everything the bill. In such case, the veto is overridden
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1) No money shall be paid out of the National Initiative: The power of the people to propose
Treasury EXCEPT in pursuance of an amendments to the Constitution or to propose and
appropriation made by law. enact legislation called for the purpose.
a) This places the control of public funds in
the hands of Congress. Referendum: Power of the electorate to approve
b) BUT: This rule does not prohibit continuing or reject legislation through an election called for
appropriations. e.g. for debt servicing. This the purpose.
is because the rule does not require yearly,
or annual appropriation. Required Petition
a) Should be signed by at least 10% of the
total number of registered voters
2) Limitations. b) Every legislative district should be
a) Appropriations must be for a PUBLIC represented by at least 3% of the
PURPOSE registered voters
b) Cannot appropriate public funds or c) Petition should be registered
property, directly or indirectly, in favor of
i. Any sect, church, denomination, or
sectarian institution or system of
religion or
ii. Any priest, preacher, minister, or LEGISLATIVE DISTRICT; POPULATION
other religious teacher or dignitary REQUIREMENT.
as such. EXCEPT if the priest, etc is
assigned to:
Petitioners Senator Benigno Simeon C. Aquino III
1. the Armed Forces; or
and Mayor Jesse Robredo seek the nullification as
2. any penal institution; or
unconstitutional of Republic Act No. 9716, entitled
3. government orphanage; or
“An Act Reapportioning the Composition of the
4. leprosarium
First (1st) and Second (2nd) Legislative Districts in
c) BUT the government is not prohibited from
the Province of Camarines Sur and Thereby
appropriating money for a valid secular
Creating a New Legislative District From Such
purpose, even if it incidentally benefits a
Reapportionment.”
religion, e.g. appropriations for a national
police force is valid even if the police also
protects the safety of clergymen. Petitioners contend, citing Section 5(3), Article VI
d) ALSO, the temporary use of public property of the 1987 Constitution, that the reapportionment
for religious purposes is valid, as long as introduced by Republic Act No. 9716, runs afoul of
the property is available for all religions the explicit constitutional standard that requires a
minimum population of two hundred fifty thousand
3) Special Funds (250,000) for the creation of a legislative district.
a) Money collected on a tax levied for a The petitioners claim that the reconfiguration by
special purpose shall be treated as a Republic Act No. 9716 of the first and second
special fund and paid out of such districts of Camarines Sur is unconstitutional,
purpose only. because the proposed first district will end up with
b) Once the special purpose is fulfilled or a population of less than 250,000 or only 176,383.
abandoned, any balance shall be
transferred to the general funds of the The second sentence of Section 5(3), Article VI of
Government the Constitution, succinctly provides: “Each city
with a population of at least two hundred fifty
thousand, or each province, shall have at least one
representative.” The provision draws a plain and
clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a
province to a district on the other. For while a
province is entitled to at least a representative,
SECTION 32: Initiative and Referendum with nothing mentioned about population, a city
must first meet a population minimum of 250,000
in order to be similarly entitled. Plainly read,
Section 5(3) of the Constitution requires a 250,000
minimum population only for a city to be entitled
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a) The President and Vice-President shall be a) Official salaries are determined by law.
elected by direct vote of the people. b) Salaries cannot be decreased during the
b) Elections return for President and Vice- TENURE of the President and the Vice-
President, as duly certified by the proper President.
Board of Canvassers shall be forwarded to c) Increases take effect only after the
Congress, directed to the Senate President. expiration of the TERM of the incumbent
c) Not later than 30 days after the day of the during which the increase was approved.
election, the certificates shall be opened in d) Prohibited from receiving any other
the presence of both houses of Congress, emolument from the government or any
assembled in joint public session. other source during their TENURE.
d) The Congress, after determining the
authenticity and due execution of the
certificates, shall canvass the votes.
e) The person receiving the highest number SECTION 7-12: Presidential Succession
of votes shall be proclaimed elected.
f) In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of ALL the members of both 1. Vacancies at the beginning of the term
Houses, voting separately. In case this VACANCY SUCCESSOR
results in a deadlock, the Senate President-elect VP-elect will be Acting
President shall be the acting President fails to qualify or President until someone is
until the deadlock is broken. to be chosen qualified/chosen as
g) The Supreme Court en banc shall act the President
sole judge over all contests relating to the President-elect VP becomes President
election, returns, and qualifications of the dies or is
President or Vice-President and may permanently
promulgate its rules for the purpose. disabled.
Both President 1) Senate President or
TERM OF OFFICE and VP-elect are 2) In case of his inability,
not chosen or do the Speaker of the
A. President not qualify or House shall act as
1) 6 years beginning at noon on 30 June both die, or both President until a
immediately following the election and become President or a VP shall
ending at noon on the same day 6 years permanently have been chosen and
later. disabled. qualified.
2) Term limitation: Single term only; not In case of death or disability
eligible for any reelection. of (1) and (2), Congress
3) Any person who has succeeded as shall determine, by law, who
President, and served as such for more will be the acting President.
than 4 years shall NOT be qualified for
election to the same office at any rime.
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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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SECTION 14-16: Power to Appoint d. ALSO: Voluntary submission by the
President to the CA for confirmation of
an appointment which is not required
to be confirmed does not vest the CA
Principles:
with jurisdiction. The President cannot
1) Since the power to appoint is executive in
extend the scope of the CA’s power as
nature, Congress cannot usurp this
provided for in the Constitution.
function.
2) While Congress (and the Constitution in
certain cases) may prescribe the
Procedure:
qualifications for particular offices, the
1. CA confirmation needed:
determination of who among those who
a) Nomination by President
are qualified will be appointed is the
b) Confirmation by CA
President’s prerogative.
c) Appointment by President; and
d) Acceptance by appointee.
Scope:
NOTE: At any time before all four steps
The President shall appoint the following:
have been complied with, the President
1. Heads of executive departments (CA
can withdraw the
confirmation needed);
nomination/appointment.
2. Ambassadors, other public ministers, and
consuls (CA confirmation needed).
2. No CA confirmation:
3. Officers of AFP from rank of colonel or naval
a) Appointment; and
captain (CA confirmation needed).
b) Acceptance.
4. Other officers whose appointment is vested in
NOTE: Once appointee accepts, President
him by the Constitution (CA confirmation
can no longer withdraw the appointment.
needed), such as:
a) Chairmen and members of the
COMELEC, COA and CSC.
b) Regular members of the Judicial and
Bar Council.
c) The Ombudsman and his deputies;
d) Sectoral representatives in Congress.
Ad-interim appointments:
NOTE: President also appoints members
1.) When Congress is in recess, the President
of the Supreme Court and judges of the lower
may still appoint officers to positions
courts, but these appointments do not need CA
subject to CA confirmation.
confirmation.
2.) These appointments are effective
5. All other officers whose appointments are not
immediately, but are only effective until
otherwise provided for by law; and those
they are disapproved by the CA or until
whom he may be authorized by law to
the next adjournment of Congress.
appoint.
3.) Appointments to fill an office in an ‘acting’
a. This includes the Chairman and
capacity are NOT ad-interim in nature and
members of the Commission on
need no CA approval.
Human Rights, whose appointments
are provided for by law NOT by the
Constitution.
Appointments by an Acting President:
b. Congress may, by law, vest the
These shall remain effective UNLESS revoked by
appointment of other officers lower in
the elected President within 90 days from his
rank in the President alone or in the
assumption or re-assumption of office.
courts, or in the heads of
departments, agencies, boards or
Limitation
commissions.
1.) 2 months immediately before the next
c. BUT: Congress cannot, by law, require
President elections, and up to the end of
CA confirmation of the appointment of
his term, the President or Acting President
other officers for offices created
SHALL NOT makes appointments.
subsequent to the 1987 Constitution
This is to prevent the practice of ‘midnight
(e.g. NLRC Commissioners, Bangko
appointments.”
Sentral Governor).
2.) EXCEPTION:
a) Can make TEMPORARY Heads, the officers, and employees
APPOINTMENTS entitled to security of tenure cannot be
b) To fill EXECUTIVE POSITIONS; summarily removed from office.
c) If continued vacancies therein will Power of Supervision:
prejudice public service or endanger 1.) This is the power of a superior officer to
public safety. ensure that the laws are faithfully
executed by subordinates.
SECTION 17: Power of Control 2.) The power of the president over local
government units in only of general
POWER OF CONTROL: supervision. Thus, he can only interfere
The power of an officer to alter, modify, or set with the actions of their executive heads if
aside what a subordinate officer has done in the these are contrary to law.
performance of his duties, and to substitute the 3.) The execution of laws is an OBLIGATION
judgment of the officer for that of his subordinate. of the President. He cannot suspend the
Thus, the President exercises control over all the operation of laws.
executive departments, bureaus, and offices. 4.) The power of supervision does not include
the power of control; but the power of
The President’s power over government-owned control necessarily includes the power of
corporations comes not from the Constitution but supervision.
from statute. Hence, it may be taken away by
statute. SECTION 18: Commander-in-Chief Powers
1. Defining enforceable and demandable rights Thus, in the case of Fabian vs. Desierto, Sec.
and prescribing remedies for violations of such 27, RA 6770, which authorizes an appeal to the
rights; and Supreme Court from decisions of the
2. Determining the court with jurisdiction to hear Ombudsman in administrative disciplinary cases,
and decide controversies or disputes arising was declared unconstitutional because the
from legal rights. provision was passed without the advice and
3. Thus, Congress has the power to define, consent of the Supreme Court.
prescribe and apportion the jurisdiction of
various courts.
4. BUT, Congress cannot deprive the Supreme However, Congress can:
Court of its jurisdiction over cases provided increase the original jurisdiction of the SC
for in the Constitution. (pursuant to its general power).
5. Creation and abolition of courts: It can make the jurisdiction of the SC
a. The power to create courts implies the concurrent with lower courts (pursuant to its
power to abolish and even re-organize general power).
courts.
b. BUT this power cannot be exercised in a Thus, under the Rules of Court, the original
manner which would undermine the jurisdiction of the SC is concurrent with the RTC
security of tenure of the judiciary. and in the case of the special civil actions, with
c. If the abolition/re-organization is done in the CA.
good faith and not for political or personal
reasons, then it is VALID. (same rule
applies for civil servants)
Sec. 4-7; 12 JUDICIARY 1. The Judicial and Bar Council is under the
supervision of the SC.
A. Composition
Composition of the Supreme Court: 1) Chief Justice, as ex-officio chairman
1) Chief Justice and 2) Secretary of Justice, as an ex-officio
2) 14 Associate Justices member
NOTE: Members of the Supreme Court and of 3) Representative of Congress, as an ex-
other courts established by law shall not be officio member
designated to any agency performing quasi- 4) Representative of the Integrated Bar
judicial or administrative functions. 5) A professor of law
6) A retired member of the SC
7) A representative of the private sector.
Qualifications of members of the SC:
1.) Natural born citizen of the Philippines
2.) At least 40 years old NOTE: The last four are the regular members of
3.) At least 15 years old of experience as a judge the JBC. Regular members are appointed by the
or in the practice of law in the Philippines. President with CA approval. Regular members
4.) Person of proven competence, Integrity, serve for 4 years, with staggered terms.
probity and independence.
B. Functions of JBC
1) Principal function; recommend appointees
to the Judiciary
Qualifications of members of lower collegiate
2) Exercise such other functions as the SC
courts (CA, CTA, Sandiganbayan) may assign to it.
1. Natural born citizen of the Philippines
2. Member of the Philippine bar C. Appointments to the Judiciary
3. Possesses other qualifications prescribed by 1. President shall appoint from a list of at
Congress least 3 nominees for each vacancy, as
4. Person of proven competence, Integrity, prepared by the JBC.
probity and independence. 2. No CA confirmation is needed for
appointments to the Judiciary.
3. acancies in SC should be filled within 90
days from the occurrence of the vacancy.
Qualifications of judges of lower non-
4. Vacancies in lower courts should be filled
collegiate courts:
within 90 days from submission to the
1.) Citizen of the Philippines (may be naturalized
President of the JBC list.
citizen)
2.) Member of the Philippine Bar
3.) Possesses other qualifications prescribed by
Vargas v Rilloraza
Congress
-Grounds to disqualify a justice of the SC cannot
4.) Person of proven competence, integrity,
be legislated. To allow this would in effect deprive
probity and independence.
the SC of jurisdiction as established by the
Constitution.
- Only the President can appoint justices to the
SC.
Noblejas v Teehankee,
In this case, the designation of the CFI judges a. Only the SC en banc has jurisdiction to
was made by Congress and therefore discipline or dismiss judges of lower
constitutionally repugnant. courts.
- The designated judge, even if his action or b. Disciplinary action/dismissal: Majority
participation is temporary, would be acting as a vote of SC Justices who took part in the
SC justice and his vote will be counted as that of a deliberations and voted therein.
regular justice 3. Removal of SC Justices:
a. Only by IMPEACHMENT
Sec. 10. Salaries b. Cannot be disbarred while they hold
office.
1.) Salaries of SC Justices and judges of lower Members of the SC cannot be removed
courts shall be fixed by law. except by impeachment.
2.) Cannot be decreased during their continuance Thus, a SC justice cannot be charged in a criminal
in office, but can be increased. case or a disbarment proceeding, because the
3.) Members of the Judiciary are NOT exempt ultimate effect of either is to
from payment of income tax. remove him from office, and thus circumvent the
provision on removal by impeachment thus
Art. XVIII, Sec. 17. violating his security of tenure
Unless the Congress provides otherwise, xxx;the (In Re: First Indorsement from Hon. Raul M.
annual salary of Gonzalez, A.M. No. 88-4-
- the Chief Justice shall receive an annual salary 5433).
of P240,000 and xxx;
- the Associate Justices shall receive P204,000
each; xxx.
Although the salaries may not be decreased, they
may be increased by law, to take effect at once. Sec. 4-6, 13. The Supreme Court
Reasons:
(1) the Constitution does not prohibit it;
(2) the Judiciary plays no part in the passage of
the law increasing their salary unlike the Congress Hearing of cases:
and the Executive, and so there can 1.) En banc; or
be no conflict of interest; and 2.) Division of 3, 5, or 7.
(3) this will promote the independence of the
Judiciary. One Supreme Court
The SC remains and functions as “one Supreme
Is the imposition of income tax on the salary of Court” even when it sits in divisions (US v
the Justices and Judges a diminution of their Limsiongco).
salary as prohibited by the Constitution?
Cases required to be heard en banc:
NO. In the Nifatan v CIR case, the SC, based on 1. All cases involving constitutionally of a/an:
the deliberation of the Constitutional Commission (CODE: T I L)
which ultimately deleted the tax a. Treaty
exemption original included in the draft Art. VIII, b. International or exclusive agreement or
Sec 10, ruled that salaries of members of the c. Law.
judiciary are not exempt from taxes. 2. All cases required to be heard en banc under
the Rules of Court:
Sec. 11. Tenure / Disciplinary Powers of SC a. Appeals from Sandiganbayan; and
b. From the Constitutional Commissions
3. All cases involving the constitutionality,
1. Members of the SC and judges of the lower application or operation of:
courts hold office during good behavior until (CODE: PPOIRO)
a. The age of 70 years old; or a. Presidential decrees
b. They become incapacitated to discharge b. Proclamations
their duties. c. Orders
2. Disciplinary action against judges of lower d. Instructions
courts: e. Ordinances; and
f. Other regulations.
4. Cases heard by a division where required b. All cases involving the legality of any:
majority of 3 was not obtained. (CODE: TITA P)
5. Cases where SC modifies or reverses a 1. tax
doctrine or principle of law laid down by the 2. impost
SC en banc or by a division. 3. toll
6. Administrative cases to discipline or dismiss 4. assessment or
judges or lower courts; and 5. any penalty imposed in relation
7. Election contests for President and Vice- thereto;
President. c. All cases in which the jurisdiction of
any lower court is in issue
d. Criminal cases where the penalty
Cases heard by division imposed is reclusion perpetua or
1. Must be decided with the concurrence of a higher; and
majority of the members who took part in the e. All cases where ONLY errors or
deliberations and voted thereon. questions of law are involved.
2. Majority vote in a division should be at least 3 f. Orders of the Constitutional
members. Commissions.
g. Jurisdiction over proclamation of
Martial law or suspension of the
Powers of the SC writ of Habeas Corpus.
1. SC has ORIGINAL jurisdiction over h. Jurisdiction over Presidential and Vice
a. Cases affecting ambassadors, other Presidential election contests
public ministers and consuls.
NOTE: This refers to foreign Jurisdiction over criminal cases where
ambassadors, etc., stationed in the penalty imposed is reclusion perpetua.
Philippines.
b. Petitions for certiorari, prohibition, People v Daniel; People v Ramos
mandamus, quo warranto, and habeas Both are rape cases where the trial court imposed
corpus. lesser penalties because of misappreciation of the
c. Sufficiency of factual basis of aggravating and qualifying circumstances and on
proclamation of martial law and appeal the penalty was increased. Chief Justice
suspension of privilege of writ of HC. Castro, for the majority, explained: Art. X, Sec. 5
Note: The SC does not have jurisdiction over (2) (d)
declaratory relief cases, which must be filed with [now Art. VIII, Sec. 5 (2) (d)] provides that the
the RTC (In Re Bermudez said so too, and yet SC shall have appellate jurisdiction over "final
gave due course to the petition.) judgments and decrees of inferior courts" in
The first case (ambassadors, etc.) is made criminal cases in w/c the "penalty imposed is
concurrent with RTCs by law (Judiciary Act of death or life imprisonment." Unless the CA
1948). The second case (special civil actions) is renders judgment and imposes the penalty of
concurrent with the CA and the RTC, with respect death or reclusion perpetua, there would be no
to inferior bodies. judgment for SC to review. Indeed, Section 34 of
the Judiciary Act of
1948 and the present Rule 124, Sec. 13 provide
2. SC has APPELLATE jurisdiction over final that, whenever the CA should be of the opinion
judgments and orders in the following: that the penalty of death or life imprisonment
a. All cases involving the constitutionality should be imposed, "the said court shall refrain
or validity of any (CODE: TILP- from entering judgment thereon, and shall
POIRO) forthwith certify the case
1. treaty brought before it on appeal," which that it is not
2. International or executive prohibited from rendering judgment. In other
agreement words, the CA is not prohibited from rendering
3. law judgment but from "entering judgment." The
4. presidential decree distinction between the two is well established.
5. proclamation The phrase "entering judgment" is not to be
6. order equated w/ an "entry of judgment" as the latter is
7. instruction understood in R36 in relation to Sec. 8, R 121 and
8. ordinance, or Sec. 16, R 124, ROC. "Entry of judgment"
9. regulation; presupposes a final judgment-- final in the sense
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.
Right to strike
No officer or employee in the Civil Service SSS Employees Association v CA
shall engage in any electioneering or in - Gen. Rule: Employees in the Civil Service may
partisan political activity not resort to strikes,
walkouts and other temporary work stoppages. a) Cannot be appointed to any office in
- Reason: The terms and conditions of the government or GOCC’s or their
employment in the subsidiaries
Govt, including any political subdivision or b) Period of disqualification: (1) year
instrumentality after such election.
thereof and GOCCs with original charters, are Ban on holding multiple positions
governed by 2) Elective officials
law and employees therein shall not strike for the a) Not eligible for appointment or designation
purpose in ANY CAPACITY to ANY PUBLIC OFFICE
of securing changes thereof. or position during their tenure.
- Statutory Basis: Sec. 4, Rule III of the Rules and b) EXCEPTION: May hold ex officio positions.
Regulations to Govern the Exercise of the Right of
Govt. Examples:
EEs to Self-Organization The Vice President may be appointed as
- EO 180: allows negotiation where the terms and a Cabinet member
conditions of A congressman may sit in the Judicial
employment involved are not among those fixed
and Bar Council
by law.
Government employees may, through their unions Art. VII, Sec. 13.
or associations, either (1) petition the Congress
for the betterment of the terms and conditions of “The President, Vice-President, the Members of
employment which are within the ambit of the Cabinet, and their deputies or assistants shall
legislation or (2) negotiate with the appropriate not, unless otherwise provided in this
government agencies for the improvement of Constitution,
those which are not fixed by law. If there be any - hold any other office or employment during their
unresolved grievances, the dispute may be tenure,
referred to the Public Sector Labor-Management - directly or indirectly, practice any other
Council for appropriate action. profession,
- On Injunction: The RTC can enjoin the union - participate in any business, or
from striking. EO 180 vests the Public Sector - be financially interested in any contract with, or
Labor-Management Council with jurisdiction over in any franchise, or special privilege granted by
unresolved labor disputes involving government the Government or any subdivision, agency, or
employees. instrumentality thereof, including government-
owned or controlled corporations or their
Clearly, the NLRC has no jurisdiction over the subsidiaries.
dispute. The RTC was not precluded, in the They shall strictly avoid conflict of interest in the
exercise of its general jurisdiction under BP conduct of their office.
129, as amended, from assuming jurisdiction over
the SSS's complaint for damages and issuing the Art. VI, Sec. 13.
injunctive writ prayed for therein. Unlike the “No Senator or Member of the House of
NLRC, the PSLM Council has not been granted by Representatives may hold any other office or
law authority to issue writs of injunction in labor employment in the Government, or any
disputes within its jurisdiction. Thus, since it is the subdivision, agency or instrumentality thereof,
Council and the NLRC that has jurisdiction over including government-owned or controlled
the instant labor dispute, resort to general courts corporations or their subsidiaries, during his term
of law for the issuance of a writ of injunction to without forfeiting his seat. Neither shall he be
enjoin the strike is appropriate. appointed to any office which may have been
created or the emoluments thereof increased
during the term for which he was elected.”
SECTION 10. Creation, abolition and division Independence from the Province
of LGU’s 1. Highly urbanized cities and independent
component cities are independent of the
1) Requisites province.
a) Compliance with the requirement of the 2. Component cities whose charter contains no
local Government Code; and such prohibition are still under the control of
b) Approved by a majority of the votes cast the province and its voters may still vote for
in a plebiscite held in the political units elective provincial officials.
DIRECTLY affected.
2) Thus, if a province is to be divided into 2 SECTION 13: Coordination Among LGUs
separate provinces, plebiscite will include
voters of the ENTIRE province, and not just
the area to comprise the new province.
3) LGC requirement relate to matters such as Consolidation and Coordination of Efforts,
POPULATION, REVENUE, and AREA Services and Resources
requirements. A. It is optional on the part of LGUs as
shown by the use of the word “may”
B. It can be done for purposes commonly
beneficial to them in accordance with
the law.
LGC, Section 33
Consolidation and coordination may
Section 14. REGIONAL DEVELOPMENT COUNCILS be done through appropriate
SECTION 11: Special Metropolitan Political ORDINANCE.
Subdivisions A PUBLIC HEARING should be
conducted and the approval of the
sanggunian obtained.
Creation: An LGU can:
A. Congress may create special metropolitan Contribute funds, real estate,
political subdivision by law. equipment and other kinds of
B. It is subject to a plebiscite
property
Jurisdiction of Metropolitan authority Appoint/assign personnel under such
It is limited to basic services requiring terms and conditions as may be
coordination. agreed upon by the participating
LGUs through MEMORANDA OF
Basic Autonomy of Component Cities and AGREEMENT.
Municipalities
The component cities and municipalities retain Section 14. REGIONAL DEVELOPMENT
their basic autonomy COUNCILS
They shall be entitled to their own local executive
and legislative assembles.
Who can provide for RDC
The President shall provide for RDC or other 5. The question of which LGUs shall constitute an
similar bodies composed of: autonomous region is one which is exclusively
for Congress to decide.
Composition
(i) Local government officials
(ii) Regional heads of Section 16. GENERAL SUPERVISION OVER
departments and other AUTONOMOUS REGIONS
government offices
(iii) Representatives of NGOS By Whom: The President
within the regions Purpose: To ensure that the laws
are faithfully executed.
For Purpose of
1) Administrative decentralization
2) To strengthen local autonomy
3) To accelerate the economic and social
Sec.17. All powers, functions and
growth and development of the units in
responsibilities not granted by this
the region
Constitution or by law to the autonomous
region shall be vested in the National
Government.
2. By appointment
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
ii. Jurisdiction
v. Administrative Appeal
iii. Preventive Suspension (§ 63)
1. When can it be imposed Decisions may, within 30 days from
a. After the issues are joined receipt thereof, be appealed to:
b. When the evidence of guilt is i. The sangguniang panlalawigan, in
strong the case of decisions of component cities’
c. Given the gravity of the offense, sangguniang panlungsod and the
there is great probability that the sangguiniang bayan;
continuance in office of the ii. The Office of the President, in the
respondent could influence the case of decisions of the sangguniang
witnesses or pose a threat to the panlalawigan and the sangguniang
safety and integrity of the records panlungsod of highly urbanized cities and
and other evidence independent component cities. Decisions
2. Who can impose preventive of the Office of the President shall be final
suspension and executory.
IMPOSED RESPONDENT LOCAL
BY: OFFICIAL Case:
1. President Elective official of a The Supreme Court ruled that
province, highly certiorari will not lie because there is still
urbanized an adequate remedy available in the
or independent ordinary course of law, i.e., appeal of the
component city decision of the Sangguniang Panlalawigan
2. Governor Elective official of a to the Office of the President (Malinao
component city or vs. Reyes, 255 SCRA 616).
municipality
3. Mayor Elective official of a Execution pending appeal
barangay An appeal shall not prevent a
decision from being executed; the
3. Duration of preventive suspension respondent shall be considered as having
a. Single preventive suspension been placed under preventive suspension
should not exceed 60 days. during the pendency of the appeal. But in
b. If several administrative cases are Berces vs. Executive Secretary, 241 SCRA
filed against an elective official, he 539, the Supreme Court pointed out that
cannot be preventively suspended Administrative Order No. 18 authorizes the
for more than 90 days within a Office of the President to stay the
single year on the same ground/s execution of a decision pending appeal.
existing and known at the time of A.O. No. 18 was not repealed by the Local
the first suspension. Government Code.
The protocol adds legal force to the Covenant on It declares genocide itself, conspiracy or
Civil and Political Rights by allowing the Human incitement to commit genocide, attempts to
Rights Commission to investigate and judge commit or complicity in the commission of
complaints of human rights violations from genocide all to be illegal. Individuals are to be
individuals from signatory countries. held responsible for these acts whether they were
Covenant on Economic, Social, and Cultural acting in their official capacities or as private
Rights individuals. Signatories to the convention are
This covenant describes the basic economic, bound to enact appropriate legislation to make the
social, and cultural rights of individuals and acts named in Article 3 illegal under their national
nations, including the right to: law and provide appropriate penalties for
1. self-determination violators.
2. wages sufficient to support a minimum
standard of living People suspected of acts of genocide may be tried
3. equal pay for equal work by a national tribunal in the territory where the
4. equal opportunity for advancement acts were committed or by a properly constituted
5. form trade unions international tribunal whose jurisdiction is
6. strike recognized by the state or states involved. For
purposes of extradition, an allegation of genocide The second part of the Convention establishes the
is not to be considered a political crime, and Committee Against Torture, and sets out the rules
states are bound to extradite suspects in on its membership and activities.
accordance with national laws and treaties. Any
state party to the Convention may also call upon The Convention was passed and opened for
the United Nations to act to prevent or punish acts ratification in February, 1985. At that time twenty
of genocide. nations signed, and five more signed within the
month. At present sixty five nations have ratified
The remainder of the Convention specifies the Convention against torture and sixteen more
procedures for resolving disputes between nations have signed but not yet ratified it.
about whether a specific act or acts constitute(s)
genocide, and gives procedures for ratification of Convention on Elimination of Discrimination
the convention. Against Women
This convention bans discrimination against
Convention against Torture women. The copy of the Convention on Women
This convention bans torture under all presently accessible through this page is a fully-
circumstances and establishes the UN Committee indexed HTML document. A linked summary of the
against Torture. In particular, it defines torture, document will be written in the next few weeks.
requires states to take effective legal and other
measures to prevent torture, declares that no
state of emergency, other external threats, nor
orders from a superior officer or authority may be Convention on the Rights of the Child
invoked to justify torture. It forbids countries to This convention bans discrimination against
return a refugee to his country if there is reason children and provides for special protection and
to believe he/she will be tortured, and requires rights appropriate to minors. The copy of the
host countries to consider the human rights record Convention on the Rights of the Child presently
of the person's native country in making this accessible through this page is a fully-indexed
decision. HTML document. A linked summary of the
document will be written in the next few weeks.
The CAT requires states to make torture illegal
and provide appropriate punishment for those
who commit torture. It requires states to assert
jurisdiction when torture is committed within their JURISPRUDENCE:
jurisdiction, either investigate and prosecute
SOCIAL JUSTICE- while the pursuit of
themselves, or upon proper request extradite
social justice can have revolutionary
suspects to face trial before another competent
effect, it cannot justify breaking the law.
court. It also requires states to cooperate with
(Astudillo v. Board of Directors, PHHC, 73
any civil proceedings against accused torturers.
SCRA 15).
Each state is obliged to provide training to law HUMAN RIGHTS- read EPZA VS, HR, 208
enforcement and military on torture prevention, SCRA; Simon vs. Com. on Human Rights,
keep its interrogation methods under review, and 229 SCRA 1170- limited to violations of
promptly investigate any allegations that its civil and political rights only either by
officials have committed torture in the course of government official or private individual.
their official duties. It must ensure that individuals
who allege that someone has committed torture Human Security Act- granting
against them are permitted to make and official adjudicatory and prosecutorial powers to
complaint and have it investigated, and, if the the CHR re violations of human rights.-
complaint is proven, receive compensation, refer to Section 5- perform such other
including full medical treatment and payments to functions and duties as may be provided
survivors if the victim dies as a result of torture. It by law.
forbids states to admit into evidence during a trial CHREA vs. CHR, November 25, 2004-
any confession or statement made during or as a The CHR, although admittedly a
result of torture. It also forbids activities which do constitutional creation is, nonetheless, not
not rise to the level of torture, but which included in the genus of offices
constitute cruel or degrading treatment. accorded fiscal autonomy by
constitutional or legislative fiat.
People vs. Leachon, 1998- The A. CHR can INITIATE COURT PROCEEDINGS
constitutional requirement that the on behalf of victims of human rights
eviction and demolition be in accordance violations.
with law and conducted in a just and B. They can RECOMMEND THE
humane manner does not mean validity or PROSECUTION of human rights violators,
legality of the demolition or eviction is but it cannot itself prosecute these cases.
hinged on the existence of resettlement C. BUT: The CHR CANNOT ISSUE
area designated or earmarked by the RESTRAINING ORDERS OR INJUNCTIONS
government. against alleged human rights violators.
These must be obtained from the regular
The Commission on Human Rights courts.
5) EXERCISE VISITORIAL POWERS over jails,
The Commission on Human Rights is an prisons and other detention facilities.
independent office created by the Constitution of 6) ESTABLISH CONTINUING PROGRAMS FOR
the Philippines, with the primary function of RESEARCH, education and information in
investigating all forms of human rights violations order to enhance respect for the primacy of
involving civil and political rights in the human rights.
Philippines. 7) RECOMMEND TO CONGRESS EFFECTIVE
MEASURES to promote human rights and to
Composition: provide compensation to victims of human
1) Chairman; and rights violations or their families.
2) 4 members 8) MONITOR COMPLIANCE BY THE GOVERNMENT
with international treaty obligations on human
Qualifications: rights.
1) Natural-born citizens of the Philippines; 9) GRANT IMMUNITY FROM PROSECUTION to
2) Majority of the Commission must be members any person whose testimony or whose
of the Philippine Bar; possession of documents or other evidence is
3) Term of office, other qualifications and necessary or convenient to determine the
disabilities shall be provided by law; truth in any CHR investigation.
4) The appointment of the CHR members is NOT 10) REQUEST ASSISTANCE from any department,
subject to CA confirmation; and bureau, office, or agency in the performance
5) The CHR is not of the same level as the of its functions.
COMELEC, CSC, or COA. 11) APPOINT ITS OFFICERS and employees in
accordance with law.
12) Perform such OTHER FUNCTIONS AND DUTIES
Powers: as may be provided for by law.
1) INVESTIGATE all forms of human rights
violations involving civil or political rights At present: President Benigno Aquino III have
A. Violations may be committed by public called former Akbayan Party-list representative
officers, or by civilians or rebels. Etta Rosales to head the commission. Despite to
B. CHR cannot investigate violations of social resistance from some sectors, she is appointed as
rights. chairperson of the human rights.
C. They cannot investigate cases where no
rights are violated. The Commission originated from the Presidential
D. Example: There is no right to occupy Committee on Human Rights established in 1986
government land, i.e. squat thereon. by President Corazon Aquino, which was chaired
Therefore, eviction therefrom is NOT a by former Senator Jose Diokno and former
human rights violation. Supreme Court Associate Justice J.B.L. Reyes. A
2) ADOPT operational guidelines and rules of separate Commission on Human Rights was
procedure. established upon the promulgation of the 1987
3) CITE FOR CONTEMPT for violations of its rules, Constitution.
in accordance with the Rules of Court.
4) PROVIDE APPROPRIATE LEGAL MEASURES for Cariño v. Commission on Human Rights, 204
the protection of the human rights of all SCRA 483 (1991) - The Supreme Court of the
persons, within the Philippines, as well as Philippines declared that the Commission did not
Filipinos residing abroad, and provide for possess the power of adjudication, and
preventive measures and legal aid services to emphasized that its functions were primarily
the underprivileged whose human rights have investigatory.
been violated or need protection.
ARTICLE XIII (Social Justice and Human nutrition, and special protection from all forms of
Rights) neglect, abuse, cruelty, exploitation and other
SECTION 1. The Congress shall give highest conditions prejudicial to their development.
priority to the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political ARTICLE XIV – EDUCATION, SCIENCE AND
inequalities, and remove cultural inequities by TECHNOLOGY, ARTS, CULTURE, AND SPORTS
equitably diffusing wealth and political power for
the common good. To this end, the State shall Education
regulate the acquisition, ownership, use, and
disposition of property and its increments. Goals of the State:
SECTION 2. The promotion of social justice shall The State shall promote and protect:
include the commitment to create economic 1) The right to quality education at all levels;
opportunities based on freedom of initiative and 2) The right to affordable and accessible
self-reliance. education; and
3) Education that is relevant to the needs of
Labor people and society.
SECTION 3. The State shall afford full protection
to labor, local and overseas, organized and Right to Education and Academic Freedom
unorganized, and promote full employment and The right to education must be read in conjunction
equality of employment opportunities for all. It with the academic freedom of schools to require
shall guarantee the rights of all workers to self- “fair, reasonable, and equitable admission
organizations, and peaceful concerted activities, requirements.”
including the right to strike in accordance with
law. They shall be entitled to security of tenure, Power to Dismiss Student
humane conditions of work, and a living wage. 1) Schools have the power to dismiss students,
They shall also participate in policy and decision- after due process, for disciplinary reasons.
making processes affecting their rights and 2) Acts committed outside the school may also
benefits as may be provided by law. The State be a ground for disciplinary action if:
shall promote the principle of shared responsibility a) It involves violations of school policies
between workers and employers and the connected to school-sponsored activities;
preferential use of voluntary modes in settling or
disputes, including conciliation, and shall enforce b) The misconduct affects the student’s
their mutual compliance therewith to foster status, or the good name or reputation of
industrial peace. The State shall regulate the the school.
relations between workers and employers,
recognizing the right of labor to its just share in Regulation of Right to Education
the fruits of production and the right of The right to education in particular fields may be
enterprises to reasonable returns on investments, regulated by the State in the exercise of its police
and to expansion and growth. power, e.g. the State may limit the right to enter
medical school by requiring the applicants to take
Women the NMAT.
SECTION 14. The State shall protect working
women by providing safe and healthful working Free Education
conditions, taking into account their maternal 1) The State shall maintain a system of free
functions, and such facilities and opportunities education in:
that will enhance their welfare and enable them to a) Elementary level; and
realize their full potential in the service of the b) High school level.
nation. 2) Elementary education is compulsory for all
ARTICLE II children of school age. However, this is a
Indigenous People moral right rather than a legal compulsion.
SECTION 22. The State recognizes and promotes
the rights of indigenous cultural communities
within the framework of national unity and Educational Institutions
development. I. Filipinization
ARTICLE XV A. Ownership:
Children 1) Filipino citizens,; or
SECTION 3. The State shall defend the right of 2) Corporations incorporated in RP and
children to assistance, including proper care and 60% Filipino-owned.
EXCEPT: Schools established by their teaching controversial matter
religious groups and missions boards. which has no relation to their
3) Congress may increase Filipino equity subjects.
requirements in ALL educational 3) When faculty members speak or write
institutions. in their capacity as citizens, then they
B. Control and Administration: are free from institutional censorship
1) Must be vested in Filipino citizens or discipline.
2) Refers to line positions, such as C. Students
President, Dean, Principal, and They have the right to enjoy in school the
Trustees guarantees of the Bill of Rights.
3) Faculty members may be foreigners. D. Limitations
C. Student Population: 1) Dominant police power of the State
1) GENERAL RULE: Cannot establish 2) State interest of the community
school exclusively for aliens. Aliens E. Budgetary Priority:
can only comprise up to 1/3 of total 1) Education must be assigned the
enrollment. highest budgetary priority.
2) EXCEPTIONS: Schools established for 2) BUT: This command is not absolute.
foreign diplomatic personnel and their Congress is free to determine what
dependents, and unless otherwise should be given budgetary priority in
provided for by law for other foreign order to enable it to respond to the
temporary residents. imperatives of national interest and
for the attainment of other state
II. Tax Exemptions policies or objectives.
A. Non-stock, non-profit educational
institutions:
1) All revenues and assets actually, Religious Education in Public Schools:
directly and exclusively (ADE) used Religion may be taught in public schools subject
for educational purposes are exempt to the following requisites:
from taxes and duties. 1) Express written option by parents and
2) This is self-executory. guardians;
B. Proprietary educational institutions, 2) Taught within regular class hours;
including cooperative: 3) Instructors are designated and approved
1) Entitled to exemptions as may be by the proper religious authorities; and
provided by law, including restrictions 4) WITHOUT ADDITIONAL COST TO THE
on dividends and re-investment GOVERNMENT.
2) Requires an enabling statute
3) Grants, endowments, donations and Section 6. Language
contributions actually, directly and
exclusively used for educational
purposes are exempt from taxes,
1) National language: Filipino
subject to conditions prescribed by
2) Official Languages: Filipino and, unless
law.
otherwise provided by law, English.
3) Regional languages are auxiliary to the official
languages.
III. Academic Freedom
4) Spanish and Arabic are promoted only on an
A. Educational Institutions
optional and voluntary basis.
Schools have the freedom to determine:
1) Who may teach;,
2) What may be taught;,
1. Academic Freedom
3) How it shall be taught;, and
ARTICLE XIV
4) Who may be admitted to study.
EDUCATION, SCIENCE AND TECHNOLOGY,
B. Faculty members
ARTS, CULTURE AND SPORTS
1) Full freedom in research and in the
(1987 Philippine Constitution)
publication of the results, subject to
Education
the adequate performance of their
other academic duties.
Section 1. The State shall protect and promote
2) Freedom in the classroom in
the right of all citizens to quality education at all
discussing their subjects, but they
should be careful not to introduce into
levels and shall take appropriate steps to make exercise reasonable supervision and regulation of
such education accessible to all. all educational institutions.
Section 2. The State shall:
(2) Educational institutions, other than those
(1) Establish, maintain, and support a complete, established by religious groups and mission
adequate, and integrated system of education boards, shall be owned solely by citizens of the
relevant to the needs of the people and society; Philippines or corporations or associations at least
sixty per centum of the capital of which is owned
(2) Establish and maintain, a system of free public by such citizens. The Congress may, however,
education in the elementary and high school require increased Filipino equity participation in all
levels. Without limiting the natural rights of educational institutions.
parents to rear their children, elementary
education is compulsory for all children of school The control and administration of educational
age; institutions shall be vested in citizens of the
Philippines.
(3) Establish and maintain a system of scholarship
grants, student loan programs, subsidies, and No educational institution shall be established
other incentives which shall be available to exclusively for aliens and no group of aliens shall
deserving students in both public and private comprise more than one-third of the enrollment in
schools, especially to the underprivileged; any school. The provisions of this subsection shall
not apply to schools established for foreign
(4) Encourage non-formal, informal, and diplomatic personnel and their dependents and,
indigenous learning systems, as well as self- unless otherwise provided by law, for other
learning, independent, and out-of-school study foreign temporary residents.
programs particularly those that respond to
community needs; and (3) All revenues and assets of non-stock, non-
profit educational institutions used actually,
(5) Provide adult citizens, the disabled, and out- directly, and exclusively for educational purposes
of-school youth with training in civics, vocational shall be exempt from taxes and duties. Upon the
efficiency, and other skills. dissolution or cessation of the corporate existence
of such institutions, their assets shall be disposed
Section 3. (1) All educational institutions shall of in the manner provided by law.
include the study of the Constitution as part of the
curricula. Proprietary educational institutions, including
those cooperatively owned, may likewise be
(2) They shall inculcate patriotism and entitled to such exemptions subject to the
nationalism, foster lover of humanity, respect for limitations provided by law including restrictions
human rights, appreciation of the role of national on dividends and provisions for reinvestment.
heroes in the historical development of the
country, teach the rights and duties of citizenship, (4) Subject to conditions prescribed by law, all
strengthen ethical and spiritual values, develop grants, endowments, donations, or contributions
moral character and personal discipline, used actually, directly, and exclusively for
encourage critical and creative thinking, broaden educational purposes shall be exempt from tax.
scientific and technological knowledge, and
promote vocational efficiency. Section 5. (1) the State shall take into account
regional and sectoral needs and conditions and
(3) At the option expressed in writing by the shall encourage local planning in the development
parents or guardians, religion shall be allowed to of educational policies and programs.
be taught to their children or wards in public
elementary and high schools within the regular (2) Academic freedom shall be enjoyed in all
class hours by instructors designated or approved institutions of higher learning.
by the religious authorities of the religion to which
the children or wards belong, without additional (3) Every citizen has a right to select a profession
cost to the Government. or course of study, subject to fair, reasonable, and
equitable admission and academic requirements.
Section 4.(1) The State recognizes the
complementary roles of public and private (4) The State shall enhance the right of teachers
institutions in the educational system and shall to professional advancement. Non-teaching
academic and non-academic personnel shall enjoy applied scientific research. Scholarships, grants-
the protection of the State. in-aid, or other forms of incentives shall be
provided to deserving science students,
(5) The State shall assign the highest budgetary researchers, scientists, inventors, technologists,
priority to education and ensure that teaching will and specially gifted citizens.
attract and retain its rightful share of the best
available talents through adequate remuneration Section 12. The State shall regulate the transfer
and other means of job satisfaction and and promote the adaptation of technology from all
fulfillment. sources for the national benefit. It shall encourage
the widest participation of private groups, local
Language governments, and community-based
Section 6. The national language of the Philippines organizations in the generation and utilization of
is Filipino. As it evolves, it shall be further science and technology.
developed and enriched on the basis of existing
Philippine and other languages. Section 13. The State shall protect and secure the
exclusive rights of scientists, inventors, artists,
Subject to provisions of law and as the Congress and other gifted citizens to their intellectual
may deem appropriate, the Government shall take property and creations, particularly when
steps to initiate and sustain the use of Filipino as beneficial to the people, for such period as may be
a medium of official communication and as provided by law.
language of instruction in the educational system.
Arts and Culture
Section 7. For purposes of communication and Section 14. The State shall foster the
instruction, the official languages of the preservation, enrichment, and dynamic evolution
Philippines are Filipino and, until otherwise of a Filipino national culture based on the principle
provided by law, English. of unity in diversity in a climate of free artistic and
intellectual expression.
The regional languages are the auxiliary official
languages in the regions and shall serve as Section 15. Arts and letters shall enjoy the
auxiliary media of instruction therein. patronage of the State. The State shall conserve,
promote, and popularize the nation’s historical
Spanish and Arabic shall be promoted on a and cultural heritage and resources, as well as
voluntary and optional basis. artistic creations.
Section 8. This Constitution shall be promulgated Section 16. All the country’s artistic and historic
in Filipino and English and shall be translated into wealth constitutes the cultural treasure of the
major regional languages, Arabic, and Spanish. nation and shall be under the protection of the
State which may regulate its disposition.
Section 9. The Congress shall establish a national
language commission composed of Section 17. The State shall recognize, respect,
representatives of various regions and disciplines and protect the rights of indigenous cultural
which shall undertake, coordinate, and promote communities to preserve and develop their
researches for the development, propagation, and cultures, traditions, and institutions. It shall
preservation of Filipino and other languages. consider these rights in the formulation of national
plans and policies.
Science and Technology
Section 10. Science and technology are essential Section 18. (1) The State shall ensure equal
for national development and progress. The State access to cultural opportunities through the
shall give priority to research and development, educational system, public or private cultural
invention, innovation, and their utilization; and to entities, scholarships, grants and other incentives,
science and technology education, training, and and community cultural centers, and other public
services. It shall support indigenous, appropriate, venues.
and self- reliant scientific and technological
capabilities, and their application to the country’s (2) The State shall encourage and support
productive systems and national life. researches and studies on the arts and culture.
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 Section 1-2. Symbols of Nationality
freedom over Civil service rules on AWOL,
stressing when UP opted to retain private
petitioner and even promoted him
1) FLAG
despite his absence, the University was
Red, white, and blue.
exercising its freedom to choose who may
With a sun and 3 stars
teach or who may continue to teach its
The design may be charged by
faculty (UP, et al. vs. CSC, April 3, 2001).
constitutional amendment.
Morales vs. UP Board of Regents,
December 13, 2004- As enunciated by 2) Congress may, by law, adopt a new:
this Court in the case of University of San (a) NAME FOR THE COUNTRY,
Carlos v. Court of Appeals, the discretion (b) NATIONAL ANTHEM, or
of schools of learning to formulate rules (c) NATIONAL SEAL.
and guidelines in the granting of honors
for purposes of graduation forms part of NOTE: Law will take effect upon ratification by the
academic freedom. And such discretion people in a NATIONAL REFERENDUM.
may not be disturbed much less controlled
by the courts, unless there is grave abuse Section 3. State Immunity
of discretion in its exercise. Therefore,
absent any showing of grave abuse of Suability of State
discretion, the courts may not disturb the 1) The State cannot be sued without its consent.
University’s decision not to confer honors 2) When considered a suit against the State
to petitioner. a) The Republic is sued by name;
Lacuesta vs. Ateneo, December 9, b) Suits against an un-incorporated
2005- Consistent with academic freedom government agency;
and constitutional autonomy, an c) Suit is against a government official,
institution of higher learning has the but is such that ultimate liability
prerogative to provide standards for its shall devolve on the government
teachers and determine whether these i. When a public officer acts in
standards have been met. At the end of bad faith, or beyond the scope
the probation period, the decision to re- of his authority, he can be
hire an employee on probation, belongs to held personally liable for
the university as the employer alone. damages.
ii. BUT: If he acted pursuant to
UP vs. CSC, April 3, 2001- the his official duties, without
University has the academic freedom to malice, negligence, or bad
determine for itself on academic grounds faith, he is not personally
who may teach, what may be taught, how liable, and the suit is really
it shall be taught, and who may be one against the State.
admitted to study.” Clearly, this freedom 3) This rule applies not only in favor of the
encompasses the autonomy to choose Philippines but also in favor of foreign states.
who should teach and, concomitant 4) The rule likewise prohibits a person from filing
therewith, who should be retained in its for interpleader, with the State as one of the
rolls of professors and other academic defendants being compelled to interplead.
Garnishment of government funds:
1. GENERAL RULE: Not allowed. Whether the
Consent to be sued money is deposited by way of general or
A. Express consent: special deposit, they remain government
1) The law expressly grants the authority to funds and are not subject to garnishment.
sue the State or any of its agencies. 2. EXCEPTION: Where a law or ordinance has
2) Examples: a) A law creating a been enacted appropriating a specific amount
government body expressly providing to pay a valid government obligation, then the
that such body “may sue money can be garnished.
or be sued”
b) Art. 2180 of the Civil
Code, which creates Consent to be sued is not equivalent to
liability against the State consent to liability:
when it acts through a 1) The Fact that the State consented to being
special agent. sued does not mean that the State will
B. Implied consent: ultimately be held liable.
1) The State enters into a private contract. 2) Even if the case is decided against the State,
a) The contract must be entered into an award cannot be satisfied by writs
by the proper officer and within the execution or garnishment against public
scope of his authority. funds. Reasons: No money shall be paid out of
b) UNLESS: The contract is merely the public treasury unless pursuant to an
incidental to the performance of a appropriation made by law.
governmental function.
2) The State enters into an operation that is
essentially a business operation.
a) UNLESS: The operation is incidental Rules regarding payment of interests by
to the performance of a Government in Money Judgments against it:
governmental function (e.g. arrastre
services) General Rule: Government cannot be made to
b) Thus, when the State conduct pay interests;
business operations through a
GOCC, the latter can generally be Exceptions:
sued, even if its charter contains no 1. Eminent domain;
express “sue or be used” clause. 2. Erroneous collection of taxes; or
3. Where government aggress to pay interest
pursuant to law.
NOTE: difference between:
i. Jure Gestionis – by right of
economic or business relation = Section 4. THE ARMED FORCES OF THE
may be sued PHILIPPINES
ii. Jure Imperil – by the sovereign
power, in the exercise of Composition: A citizen armed force
sovereign functions. = no
implied consent; cannot be Prohibitions and disqualifications:
sued. 1) Military men cannot engage, directly or
indirectly, in any partisan political activity,
3) Suit against an incorporated government except to vote.
agency. 2) Members of the AFP in active service cannot
a) This is because they generally be appointed to a civilian position in the
conduct proprietary business government, including GOCCs or their
operations and have charters which subsidiaries.
grant them a separate juridical
personality.
4) The State files suit against a private party.
UNLESS: The suit is entered into The Chief of Staff:
only to resist a claim. 1) Tour duty: Not to exceed three years
2) EXCEPTION: In times of war or other national 1) Proposal of amendments or revisions by the
emergency as declared by Congress, the proper constituent assembly;
President may extend such tour of duty. 2) Submission of the proposed amendments or
revisions; and
3) Ratification.
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.
B. Constitutional Convention:
2) REVISION: An examination of the entire 1) How a Constitutional Convention may be
Constitution to determine how and what called
extent it should be altered. A revision implies a) Congress may call a ConCon by a 2/3
substantive change, affecting the Constitution vote of all its members; or
as whole. b) By a majority vote of all its members,
Congress may submit to the electorate
the question of whether to call a
Constituent power Legislative power ConCon or not.
1. The power to 1. The power to pass, 2) Choice of which constituent assembly
formulate a repeal or amend (either Congress or ConCon) should
Constitution or to ordinary laws or initiate amendments and revisions is left
propose amendments statutes (as opposed to the discretion of Congress. In other
to or revisions of the to organic law) words, it is a political question.
Constitution and to 3) BUT: The manner of calling a ConCon is
ratify such proposal subject to judicial review, because the
2. It is exercised by 2. It is an ordinary Constitution has provided for voting
Congress (by special power of Congress and requirements.
constitution of the people, also 4) If Congress, acting as a constituent
conferment), by a through initiative and assembly, calls for a ConCon but does not
Constitutional referendum. provide the details for the calling of such
Convention or ConCon, Congress – exercising its
Commission, by the ordinary legislative power – may supply
people through such details. But in so doing, Congress (as
initiative and legislature should not transgress the
referendum, and resolution of Congress acting as a
ultimately, by the constituent assembly.
sovereign electorate 5) Congress, as a constituent assembly and
3. The exercise of the exercise of the ConCon has no power to appropriate
constituent power does legislative power money for their expenses. Money may be
not need the approval ordinary needs the spent from the treasury only pursuant to
of the Chief Executive approval of the Chief an appropriation made by law.
Executive, except
when done by people C. People’s Initiative
through initiative and 1) Petition to propose such amendments
referendum. must be signed be at least 12% of ALL
registered voters.
2) Every legislative district represented by at
Three (3) steps necessary to give effect to least 3% of the registered voters therein.
amendments and revisions: 3) Limitation: It cannot be exercised more
often than once every 5 years.
4) Requires implementing legislation: The election. Thus, they may be submitted
Supreme Court held that RA 6735, the for ratification simultaneously with a
initiative and Referendum law is general election.
insufficient. Therefore, amendment by 2) The determination of the conditions
initiative and referendum must still await under which proposed
a valid law. (Defensor- Santiago v. amendments/revisions are submitted
COMELEC, G.R. 127325) to the people falls within the
legislative sphere. That Congress
NOTE: could have done better does not make
1) While the substance of the proposals made by the steps taken unconstitutional.
each type of constituent assembly is not 3) All the proposed
subject to judicial review, the manner of the amendments/revisions made by the
proposals are made is subject to judicial constituent assembles must be
review. submitted for ratification in one single
2) Since these constituent assemblies owe their plebiscite. There cannot be a piece-
existence to the Constitution, the courts may meal ratification of
determine whether the assembly has acted in amendments/revisions.
accordance with the Constitution. 4) Presidential proclamation is NOT
3) Examples of judiciable issues: required for effectivity of
a) Whether a proposal was approved by the amendments/revisions, UNLESS the
required number of votes in Congress proposed amendments/revisions so
(acting as a constituent assembly). provide.
b) Whether the approved proposals were
properly submitted to the people for
ratification.
TREATY EXECUTIVE
B) SECONDARY SOURCES AGREEMENT
1) JUDICIAL DECISIONS – a subsidiary means SUBJEC [CODE: PCI] [CODE: TAAI]
for the determination of rules of law (e.g., T 1. Political a. Have Transitory
determining what rules of customary IL exist) MATTER issues effectivity
that is acceptable so long as they correctly 2. Changes in b. Adjustment of
interpret and apply int’l law. National Policy details carrying
NOTE: Even decisions of national courts, 3. Involve out-well
when applying int’l law, are acceptable. Ex. international established
Principles on diplomatic immunity have been arrangements national policies
developed by judgments of national courts. of a permanent and traditions
character c. Arrangements
2) TEACHINGS OF PUBLICISTS – The world of temporary
‘Publicist’ means ‘learned writer.’ Learned nature
writings, like judicial decisions, can be d.
evidence of customary law, and can also play Implementation of
a subsidiary role in developing new rules of treaties, statutes,
law.
well-established
2 Requisites:
1. Fair and impartial representation of policies
law.
2. By an acknowledged authority in the RATIF. While the Do not need to be
field. BY Constitution ratified by the
SENATE vest the power Senate
to NEGOTIATE
treaties with the
III. TREATIES President, such
must be
1) DEFINITION (Art. 2, Vienna Convention RATIFIED by
on the Law of Treaties) the 2/3 of the
A. TREATY is: 1) an international agreement Senate to
2) conduct between States become valid
3) in written form and effective
4) governed by international (Art.7, Sec 21)
law
5) embodied in a single
instrument or in 2 or
more related
3) PRINCIPAL RULES OF INTERNATIONAL
instruments.
LAW IN CONNECTION WITH TREATIES
A. PACTA SUNT SERVANDA – Every treaty in
force is binding upon the parties and must be
Q: If not in writing, is it still considered a
performed by them in good faith.
treaty?
- this applies despite hardships on the
A: Yes, Oral agreements between States are
contracting State such as conflicts
recognized as treaties under customary
between the treaty and its
International law (but are extremely rare
Constitution. NOTE: A state can avoid
nowadays).
PERFORMANCE if the treaty obligation
collides with its Constitution, but it
CANNOT escape whatever LIABILITY it
may incur as a result of such non-
performance.
acceding to a treaty, whereby it purports to
B. REBUS SIC STANTIBUS – A party is not exclude or to modify the legal effects of certain
bound to perform a treaty if there has been a provisions of the treaty in their application to that
fundamental change of circumstances since State.
the treaty was concluded.
1) it has been described as the exception to
the rule of pacta sunt servanda. Invalidity of treaties: Grounds
2) justifies the non-performance of a treaty 1) Error of fact
obligation if the subsequent condition in 2) Fraud
relation to which the parties contracted 3) Corruption
has changed so materially and 4) Duress
unexpectedly as to create a situation in 5) Jus cogens
which the exaction of performance would
be unreasonable.
3) Rebus sic stantibus may not be invoked as 5) TERMINATION OF TREATY
a ground for terminating or withdrawing 1. Expiration of term;
from a treaty: 2. Accomplishment of purpose;
a. if the treaty established a boundary 3. Impossibility of performance;
b. if the ‘fundamental change’ is the 4. Loss of subject matter;
result of a breach by the party 5. Novation;
invoking it of an obligation under 6. Desistance of parties;
the treaty or of any other obligation 7. Extinction of one of parties, if treaty is
owed to any other party to the bipartite;
treaty. 8. Occurrence of vital change of
circumstances;
C. JUS COGENS – a rule which has the status of 9. Outbreak of war; and
a preemptory (i.e., absolute, 10. Voidance of treaty.
uncompromising) norm of international law
where no derogation may be permitted. Succession to treaties: the “Clean State” rule
Elements: When one state ceases to exist and is succeeded
1. a norm accepted and recognized by another on the same territory, the
2. by the int’l community of States as a Newly independent state is not bound to maintain
whole in force, or become a party to, any treaty
3. as a norm from which no derogation is although it may agree to be bound by treaties
permitted. made by its predecessor.
4. it can only be modified by a subsequent
norm having the same character.
a. If a treaty, at the time of its IV. INTERNATIONAL LAW AND MUNICIPAL
conclusion, conflicts with jus LAW
cogens, it is
void. Q: When there is conflict between
Examples: International law and domestic law, which is
(1) prohibition against the unlawful use of to prevail?
force; A:
(2) prohibition against piracy, genocide, and 1. International rule: Before an international
slavery tribunal, a state may not pleads its own law as
an excuse for failure to comply with
4) STEPS IN TREATY-MAKING PROCESS: international law. The state must modify it
1. Negotiation; laws to ensure fulfillment of its obligations
2. Signature; under the treaty, unless the constitutional
3. Ratification; violation is manifest and concerns a rule of
4. Exchange of Instruments of Ratification; internal law of fundamental importance.
and 2. Municipal rule: When the conflict comes
5. Registration with UN. before a domestic court, domestic courts are
bound to apply the local law. Should a conflict
arise between an international agreement and
RESERVATIONS the Constitution, the treaty would not be valid
This is a unilateral statement made by a State and operative as domestic law. It does not,
when signing, ratifying, accepting, approving or
however, lose its character as international an excuse for failure to comply with
law. international law. The state must modify it
laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional
Effect of Municipal Law in International Law violation is manifest and concerns a rule of
2 THEORIES: internal law of fundamental importance.
1) DUALISM – domestic and international law 4. Municipal rule: When the conflict comes
are independent of each other, as they before a domestic court, domestic courts are
regulate different subject matters. IL bound to apply the local law. Should a conflict
regulates the relations of sovereign states, arise between an international agreement and
while municipal law regulates the internal the Constitution, the treaty would not be valid
affairs of a state. Thus, no conflict can ever and operative as domestic law. It does not,
arise between international and municipal law, however, lose its character as international
because the two systems are mutually law.
exclusive. If IL is applied within a state, it is
only because it has been expressly
incorporated by municipal law. The Philippines V. SUBJECTS OF INTERNATIONAL LAW
is a dualist state.
2) MONISM – Monists have a unitary concept of
law and see all law – including both STATE
international and municipal law – as an A) ELEMENTS OF A STATE:
integral part of the same system. If conflict A State should possess the following qualifications
exists between international law and (Art.1, Montevideo Convention):
municipal law, international law must prevail. 1) a permanent population;
Germany is a monist state. 2) a defined territory;
3) government;
4) capacity to enter into relations with other
Effect of International Law on Municipal Law States
2 VIEWS:
1) DOCTINE OF INCORPORATION – rules of B) DISTINCTIONS BETWEEN SOVEREIGNITY
international law form part of the law of the AND INDEPENDENCE
land and no further legislative action is A. SOVEREIGNITY is the broader term. It
needed to make such rules applicable in the refers to the supreme and uncontrollable
domestic sphere. power inherent in the State by which
a) Such recognized in art.2, sec.2, as the such State is governed. It has 2 aspects:
Philippines “adopts the generally 1. INTERNAL – freedom of the State to
accepted principles of international manage its own affairs.
law as part of the law of the land.” 2. EXTERNAL – freedom of the State to
b) Rules of international law are given, direct its foreign affairs.
equal standing with, but are not B. INDEPENDENCE is synonymous with
superior to, national legislative external sovereignty. It is defined as the
enactments. Thus, the Constitution, as power of a State to manage its external
the highest law of the land, may affairs without direction or interference
invalidate a treaty in conflict with it. from another State.
(Secretary of Justice v. Hon. Lantion
and Mark Jimenez, Jan. 18, 2000)
There are various types of international legal text. 3.3 'Double criminality'
They may be bilateral extradition treaties (it is
worth noting that in 1990, the United Nations According to this principle, extraditable offences
drew up a model extradition treaty providing a are only those which are punishable offences in
framework to assist those Member States wishing the requesting State, and would have been
to negotiate and conclude bilateral extradition punishable in the requested State if committed
agreements); or multilateral extradition there. By extension of this principle, extradition
conventions, such as the European Convention on may be refused if the time limit for prosecution in
Extradition, the Commonwealth Scheme for the the requested State has expired. This principle is
Rendition of Fugitive Offenders, the Arab League gradually losing ground.
Extradition Convention, the Interamerican
Extradition Convention and the Economic 3.4 'Non bis in idem'
Community of West African States Extradition
Convention, or again, international conventions In application of this principle, extradition must be
which, without being extradition conventions as refused if the individual whose extradition is
such, incorporate provisions relating to extradition requested has already been tried for the same
law. offence. However, if the individual has been
pardoned, he may - under the terms of some
recent extradition treaties - be tried again.
3. Principles of extradition law
3.5 Specificity
Since there are numerous provisions which deal
with extradition, each case has to be considered According to this principle, the person whose
individually and according to the applicable extradition has been requested may only be
provisions. However, there are six basic principles prosecuted, tried or detained for those offences
which are common to most extradition laws. which provided grounds for extradition or those
committed subsequent to extradition. If an
3.1 Influence of nationality on extradition individual has been extradited in application of a
judgment, only the penalty imposed by the
Many States apply the principle of not extraditing decision for
their own nationals. In such cases, a State may which extradition was granted may be enforced.
undertake to place its nationals on trial under the The principle of speciality means that an individual
conditions laid down in its own laws, in application may only be tried for the offences cited in the
of the principle 'Aut tradere, aut judicare' (either extradition request, on the basis of the definition
extradite or judge). of the offences applicable at that time. If the
requesting State discovers, subsequent to
3.2 Nature of the extraditable offence extradition, that offences had been committed
prior to that date and those offences should give
It is an accepted principle in international rise to prosecution, it may ask the requested
extradition law that political offences may not give State for authorization to prosecute the extradited
rise to extradition. Since no precise definition of a person for the new offences (this constitutes a
political offence exists in international law, it is up request for extension of extradition).
to the requested country to determine whether a
given offence is political. In the case of more 3.6 Capital punishment
complex offences (offences which are ordinary law
crimes by nature but inspired by political If the requested State does not apply the death
motives), the current tendency is to restrict the penalty to its own nationals who are to stand trial,
definition of a political offence and to allow or if it does not carry out the death penalty even
extradition (see, for example, the European though it is one of the penalties that may be
Convention on the suppression of terrorism, which applicable, the requested State may refuse
extradition if the person whose extradition is c. International Covenant on Economic, Social and
requested is likely to be sentenced to death in the Cultural Rights (ICESCR)
requesting State. However, extradition may be 10. International Humanitarian Law (IHL) and
granted if the requesting State provides sufficient Neutrality
assurance that the death penalty will not be a. Categories of Armed Conflicts
carried out. (1) International Armed Conflicts
(2) Internal or Non-International Armed Conflict
(3) War of National Liberation
b. Core International Obligations of States in IHL
4. Extradition procedure International humanitarian law and international
human rights law (hereafter referred to as human
The extradition procedure in the requested State rights) are complementary. Both strive to protect
may be one of three types: the lives, health and dignity of individuals, albeit
from a different angle.
Purely administrative;
Purely judicial; Humanitarian law applies in situations of armed
A combination of both judicial and administrative: conflict (see Q7), whereas human rights, or at
this is the most frequent type. In this procedure, least some of them, protect the individual at all
a refusal on the part of the judicial authorities to times, in war and peace alike. However, some
grant extradition is binding on the administrative human rights treaties permit governments to
authorities; on the other hand, if the judicial derogate from certain rights in situations of public
authorities give their consent to extradition, the emergency. No derogations are permitted under
administrative authorities may - in addition to IHL because it was
purely legal considerations - examine the question
of reciprocity or whether extradition is desirable. conceived for emergency situations, namely
Depending on extradition laws, there are two armed conflict.
kinds of examination:
Humanitarian law aims to protect people who do
an examination of the documents submitted with not or are no longer taking part in hostilities. The
the extradition request, the purpose of which is to rules embodied in IHL impose duties on all parties
verify whether the formal conditions for to a conflict. Human rights, being tailored
extradition have been met (this is the system in primarily for peacetime, apply to everyone. Their
'Continental-law' countries); principal goal is to protect individuals from
an examination of the substance of the case, and arbitrary behaviour by their own governments.
of the evidence to determine whether there is Human rights law does not deal with the conduct
'reasonable and probable cause' (this is the of hostilities.
system in common-law countries).
(2) Procedure The duty to implement IHL and human rights lies
(3) Distinguished from Deportation first and foremost with States. Humanitarian law
1) The following are the differences between obliges States to take practical and legal
extradition and deportation: measures, such as enacting penal legislation and
EXTRADITION is effected for the benefit of the disseminating IHL. Similarly, States are bound by
state to which the person being extradited will be human rights law to accord national law with
surrendered because he is a fugitive criminal in international obligations. IHL provides for several
that state, while DEPORTATION is effected for the specific mechanisms that help its implementation.
protection of the State expelling an alien because Notably, States are required to ensure respect
his presence is not conducive to the public good. also by other States. Provision is also made for an
EXTRADITION is effected on the basis of an enquiry procedure, a Protecting Power
extradition treaty or upon the request of another mechanism, and the International Fact-Finding
state, while DEPORTATION is the unilateral act of Commission. In addition, the ICRC is given a key
the state expelling an alien. role in ensuring respect for the humanitarian
In EXTRADITION, the alien will be surrendered to rules.
the state asking for his extradition, while in
DEPORTATION the undesirable alien may be sent Human rights implementing mechanisms are
to any state willing to accept him. complex and, contrary to IHL, include regional
9. International Human Rights Law systems. Supervisory bodies, such as the UN
a. Universal Declaration of Human Rights Commission on Human Rights, are either based
b. International Covenant on Civil and Political on the UN Charter or provided for in specific
Rights (ICCPR) treaties (for example the Human Rights
Committee, which is rooted in the International certain fundamental rights laid down in each
Covenant on Civil and Political Rights of 1966). treaty, which must be respected in all
The Human Rights Commission and its circumstances and may never be waived
Subcommissions have developed a mechanism of regardless of the treaty. In particular, these
special rapporteurs and working groups, whose include the right to life, the prohibition of torture
task is to monitor and report on human rights and inhuman punishment or treatment, slavery
situations either by country or by topic. Six of the and servitude, and the principle of legality and
main human rights treaties also provide for the non-retroactivity of the law. These fundamental
establishment of committees (e.g. the Human rights that States are bound to respect in all
Rights Committee) of independent experts circumstances even in the event of a conflict or
charged with monitoring their implementation. disturbances are known as the hard core of
Certain regional treaties (European and American) human rights.
also establish human rights courts. The Office of
the UN High Commissioner for Human Rights
(UNHCHR) plays a key part in the overall Points of convergence
protection and promotion of human rights. Its role
is to enhance the effectiveness of the UN human Since humanitarian law applies precisely to the
rights machinery and to build up national, regional exceptional situations which constitute armed
and international capacity to promote and protect conflicts, the content of human rights law that
human rights and to disseminate human rights States must respect in all circumstances (i.e. the
texts and information. hard core) tends to converge with the
fundamental and legal guarantees provided by
humanitarian law, e.g. the prohibition of torture
Human rights instruments and summary executions (see p. 21; Art. 75,
Protocol I; and Art. 6, Protocol II).
The many texts now in force include: c. Principles of IHL
International humanitarian law (IHL) is part of
a) Universal instruments international law. Therefore, basic knowledge of
international law is necessary for the
the Universal Declaration of Human Rights, understanding of IHL.
adopted by the UN General Assembly in 1948
International law is a combination of rules and
the Convention on the Prevention and Punishment customs governing the relations between states in
of the Crime of Genocide of 1948 different fields,
such as the law of the sea, space law, trade law,
the International Covenant on Civil and Political territorial boundaries of states, and diplomatic
Rights of 19 66 o the International Covenant on relations.
Social and Economic Rights of 1966
The sources of international law are treaty law
the Convention on the Elimination of All Forms of and international customary law.
Discrimination against Women of 1981
the Convention against Torture and Other Cruel, Treaty law is composed of treaties, which are
Inhuman, or Degrading Treatment or Punishment agreements that states willingly sign and ratify
of 1984 o the Convention on the Rights of the and are obliged to
Child of 1989 follow. Agreements between states govern the
mutual relations between them and may be called
b) Regional instruments the European Convention conventions, statutes
on Human Rights of 1950 the American or protocols. Agreements are only legally binding
Convention on Human Rights of 1969 the African on states that signed and also ratified them. The
Charter of Human and Peoples Rights of 1981 basis of Treaty
law is the rule of law ‘pacta sunt servanda’, which
means, that agreements must be honoured, and
The hard core adhered to.
The Secretary-General, for the purpose of setting In case of violations of international humanitarian
out fundamental principles and rules of law, members of the military personnel of a
international humanitarian law applicable to United Nations force are subject to prosecution in
United Nations forces conducting operations under their national courts.
United Nations command and control, Section 5
promulgates the following: Protection of the civilian population
5.1 The United Nations force shall make a clear
Section 1 distinction at all times between civilians and
Field of application combatants and between civilian objects and
military objectives. Military operations shall be
1.1 The fundamental principles and rules of directed only against combatants and military
international humanitarian law set out in the objectives. Attacks on civilians or civilian objects
present bulletin are applicable to United Nations are prohibited.
forces when in situations of armed conflict they 5.2 Civilians shall enjoy the protection afforded by
are actively engaged therein as combatants, to this section, unless and for such time as they take
the extent and for the duration of their a direct part in hostilities.
engagement. They are accordingly applicable in
enforcement actions, or in peacekeeping 5.3 The United Nations force shall take all feasible
operations when the use of force is permitted in precautions to avoid, and in any event to
self-defence. minimize, incidental loss of civilian life, injury to
1.2 The promulgation of this bulletin does not civilians or damage to civilian property.
affect the protected status of members of
peacekeeping operations under the 1994 5.4 In its area of operation, the United Nations
Convention on the Safety of United Nations and force shall avoid, to the extent feasible, locating
Associated Personnel or their status as non- military objectives within or near densely
combatants, as long as they are entitled to the populated areas, and take all necessary
protection given to civilians under the precautions to protect the civilian population,
international law of armed conflict. individual civilians and civilian objects against the
dangers resulting from military operations.
Section 2 Military installations and equipment of
Application of national law peacekeeping operations, as such, shall not be
considered military objectives.
The present provisions do not constitute an
exhaustive list of principles and rules of 5.5 The United Nations force is prohibited from
international humanitarian law binding upon launching operations of a nature likely to strike
military personnel, and do not prejudice the military objectives and civilians in an
application thereof, nor do they replace the indiscriminate manner, as well as operations that
national laws by which military personnel remain may be expected to cause incidental loss of life
bound throughout the operation. among the civilian population or damage to
Section 3 civilian objects that would be excessive in relation
Status-of-forces agreement
to the concrete and direct military advantage 6.8 The United Nations force shall not make
anticipated. installations containing dangerous forces, namely
dams, dikes and nuclear electrical generating
5.6 The United Nations force shall not engage in stations, the object of military operations if such
reprisals against civilians or civilian objects. operations may cause the release of dangerous
forces and consequent severe losses among the
Section 6 civilian population.
Means and methods of combat
6.9 The United Nations force shall not engage in
6.1 The right of the United Nations force to choose reprisals against objects and installations
methods and means of combat is not unlimited. protected under this section.
6.2 The United Nations force shall respect the
rules prohibiting or restricting the use of certain Section 7
weapons and methods of combat under the Treatment of civilians and persons hors de combat
relevant instruments of international humanitarian
law. These include, in particular, the prohibition 7.1 Persons not, or no longer, taking part in
on the use of asphyxiating, poisonous or other military operations, including civilians, members
gases and biological methods of warfare; bullets of armed forces who have laid down their
which explode, expand or flatten easily in the weapons and persons placed hors de combat by
human body; and certain explosive projectiles. reason of sickness, wounds or detention, shall, in
The use of certain conventional weapons, such as all circumstances, be treated humanely and
non-detectable fragments, anti-personnel mines, without any adverse distinction based on race,
booby traps and incendiary weapons, is sex, religious convictions or any other ground.
prohibited. They shall be accorded full respect for their
person, honour and religious and other
6.3 The United Nations force is prohibited from convictions.
employing methods of warfare which may cause 7.2 The following acts against any of the persons
superfluous injury or unnecessary suffering, or mentioned in section 7.1 are prohibited at any
which are intended, or may be expected to cause, time and in any place: violence to life or physical
widespread, long-term and severe damage to the integrity; murder as well as cruel treatment such
natural environment. as torture, mutilation or any form of corporal
punishment; collective punishment; reprisals; the
6.4 The United Nations force is prohibited from taking of hostages; rape; enforced prostitution;
using weapons or methods of combat of a nature any form of sexual assault and humiliation and
to cause unnecessary suffering. degrading treatment; enslavement; and pillage.
6.5 It is forbidden to order that there shall be no 7.3 Women shall be especially protected against
survivors. any attack, in particular against rape, enforced
prostitution or any other form of indecent assault.
6.6 The United Nations force is prohibited from
attacking monuments of art, architecture or 7.4 Children shall be the object of special respect
history, archaeological sites, works of art, places and shall be protected against any form of
of worship and museums and libraries which indecent assault.
constitute the cultural or spiritual heritage of
peoples. In its area of operation, the United Section 8
Nations force shall not use such cultural property Treatment of detained persons
or their immediate surroundings for purposes
which might expose them to destruction or The United Nations force shall treat with humanity
damage. Theft, pillage, misappropriation and any and respect for their dignity detained members of
act of vandalism directed against cultural property the armed forces and other persons who no longer
is strictly prohibited. take part in military operations by reason of
detention. Without prejudice to their legal status,
6.7 The United Nations force is prohibited from they shall be treated in accordance with the
attacking, destroying, removing or rendering relevant provisions of the Third Geneva
useless objects indispensable to the survival of Convention of 1949, as may be applicable to them
the civilian population, such as foodstuff, crops, mutatis mutandis. In particular:
livestock and drinking-water installations and (a) Their capture and detention shall be notified
supplies. without delay to the party on which they depend
and to the Central Tracing Agency of the
International Committee of the Red Cross (ICRC), 9.4 The United Nations force shall in all
in particular in order to inform their families; circumstances respect and protect medical
personnel exclusively engaged in the search for,
(b) They shall be held in secure and safe premises transport or treatment of the wounded or sick, as
which provide all possible safeguards of hygiene well as religious personnel.
and health, and shall not be detained in areas
exposed to the dangers of the combat zone; 9.5 The United Nations force shall respect and
protect transports of wounded and sick or medical
(c) They shall be entitled to receive food and equipment in the same way as mobile medical
clothing, hygiene and medical attention; units.
(d) They shall under no circumstances be 9.6 The United Nations force shall not engage in
subjected to any form of torture or ill-treatment; reprisals against the wounded, the sick or the
personnel, establishments and equipment
(e) Women whose liberty has been restricted shall protected under this section.
be held in quarters separated from men's
quarters, and shall be under the immediate 9.7 The United Nations force shall in all
supervision of women; circumstances respect the Red Cross and Red
Crescent emblems. These emblems may not be
(f) In cases where children who have not attained employed except to indicate or to protect medical
the age of sixteen years take a direct part in units and medical establishments, personnel and
hostilities and are arrested, detained or interned material. Any misuse of the Red Cross or Red
by the United Nations force, they shall continue to Crescent emblems is prohibited.
benefit from special protection. In particular, they
shall be held in quarters separate from the 9.8 The United Nations force shall respect the
quarters of adults, except when accommodated right of the families to know about the fate of
with their families; their sick, wounded and deceased relatives. To
this end, the force shall facilitate the work of the
(g) ICRC's right to visit prisoners and detained ICRC Central Tracing Agency.
persons shall be respected and guaranteed.
9.9 The United Nations force shall facilitate the
Section 9 work of relief operations which are humanitarian
Protection of the wounded, the sick, and medical and impartial in character and conducted without
and relief personnel any adverse distinction, and shall respect
personnel, vehicles and premises involved in such
9.1 Members of the armed forces and other operations.
persons in the power of the United Nations force
who are wounded or sick shall be respected and d. Law on Neutrality
protected in all circumstances. They shall be Types Of Neutrality
treated humanely and receive the medical care
and attention required by their condition, without Lauterpacht lists various types of neutrality:
adverse distinction. Only urgent medical reasons
will authorize priority in the order of treatment to Perpetual neutrality: The status of states
be administered. permanently neutralized by special treaty.
9.2 Whenever circumstances permit, a suspension General & Partial neutrality: General
of fire shall be arranged, or other local neutrality covers the territory of an entire State,
arrangements made, to permit the search for and but circumstances may exist in which only a part
identification of the wounded, the sick and the of its territory is neutral, for example, by treaty.
dead left on the battlefield and allow for their Voluntary & Conventional neutrality: In
collection, removal, exchange and transport. some instances a state is bound by treaty to
remain neutral; in all others the status is purely
9.3 The United Nations force shall not attack voluntary.
medical establishments or mobile medical units. Armed neutrality: The status of a state
These shall at all times be respected and which takes military measures to protect its
protected, unless they are used, outside their neutral status.
humanitarian functions, to attack or otherwise Benevolent neutrality: An obsolete term
commit harmful acts against the United Nations for less than neutral behavior.
force.
Absolute vs. Qualified neutrality: Qualified include the territorial sea and even the continental
neutrality implied the giving of some kind of aid to shelf. The EEZs were introduced to halt the
one belligerent. increasingly heated clashes over fishing rights,
although oil was also becoming important. The
11. Law of the Sea success of an offshore oil platform in the Gulf of
a. Baselines Mexico in 1947 was soon repeated elsewhere in
b. Archipelagic States the world, and by 1970 it was technically feasible
(1) Straight Archipelagic Baselines to operate in waters 4000 metres deep. Foreign
(2) Archipelagic Waters nations have the freedom of navigation and
(3) Archipelagic Sea Lanes Passage overflight, subject to the regulation of the coastal
Internal waters Covers all water and waterways states. Foreign states may also lay submarine
on the landward side of the baseline. The coastal pipes and cables.
state is free to set laws, regulate use, and use any Continental shelf
resource. Foreign vessels have no right of passage The continental shelf is defined as the natural
within internal waters. prolongation of the land territory to the
Territorial waters continental margin’s outer edge, or 200 nautical
Out to 12 nautical miles from the baseline, the miles from the coastal state’s baseline, whichever
coastal state is free to set laws, regulate use, and is greater. A state’s continental shelf may exceed
use any resource. Vessels were given the right of 200 nautical miles until the natural prolongation
innocent passage through any territorial waters, ends. However, it may never exceed 350 nautical
with strategic straits allowing the passage of miles from the baseline; or it may never exceed
military craft as transit passage, in that naval 100 nautical miles beyond the 2,500 meter
vessels are allowed to maintain postures that isobath (the line connecting the depth of 2,500
would be illegal in territorial waters. "Innocent meters). Coastal states have the right to harvest
passage" is defined by the convention as passing mineral and non-living material in the subsoil of
through waters in an expeditious and continuous its continental shelf, to the exclusion of others.
manner, which is not “prejudicial to the peace, Coastal states also have exclusive control over
good order or the security” of the coastal state. living resources "attached" to the continental
Fishing, polluting, weapons practice, and spying shelf, but not to creatures living in the water
are not “innocent", and submarines and other column beyond the exclusive economic zone.
underwater vehicles are required to navigate on Aside from its provisions defining ocean
the surface and to show their flag. Nations can boundaries, the convention establishes general
also temporarily suspend innocent passage in obligations for safeguarding the marine
specific areas of their territorial seas, if doing so is environment and protecting freedom of scientific
essential for the protection of its security. research on the high seas, and also creates an
Archipelagic waters innovative legal regime for controlling mineral
The convention set the definition of Archipelagic resource exploitation in deep seabed areas
States in Part IV, which also defines how the state beyond national jurisdiction, through an
can draw its territorial borders. A baseline is International Seabed Authority and the Common
drawn between the outermost points of the heritage of mankind principle.[4]
outermost islands, subject to these points being Landlocked states are given a right of access to
sufficiently close to one another. All waters inside and from the sea, without taxation of traffic
this baseline are designated Archipelagic Waters. through transit states.
The state has full sovereignty over these waters
(like internal waters), but foreign vessels have c. Internal Waters
right of innocent passage through archipelagic d. Territorial Sea
waters (like territorial waters). e. Exclusive Economic Zone
Contiguous zone f. Continental Shelf
Beyond the 12 nautical mile limit there was a
further 12 nautical miles or 24 nautical miles from The United Nations Convention on the Law of the
the territorial sea baselines limit, the contiguous Sea (UNCLOS), also called the Law of the Sea
zone, in which a state could continue to enforce Convention or the Law of the Sea treaty, is the
laws in four specific areas: pollution, taxation, international agreement that resulted from the
customs, and immigration. third United Nations Conference on the Law of the
Exclusive economic zones (EEZs) Extends from Sea (UNCLOS III), which took place from 1973
the edge of the territorial sea out to 200 nautical through 1982. The Law of the Sea Convention
miles from the baseline. Within this area, the defines the rights and responsibilities of nations in
coastal nation has sole exploitation rights over all their use of the world's oceans, establishing
natural resources. In casual use, the term may guidelines for businesses, the environment, and
the management of marine natural resources. The National law is law that is adopted by the
Convention, concluded in 1982, replaced four government of an individual country. In the
1958 treaties. UNCLOS came into force in 1994, a United States, the most common examples of
year after Guyana became the 60th state to sign national
the treaty.[1] To date, 161 countries and the law are federal and state legislation and judicial
European Community have joined in the decisions. Agency regulations and executive
Convention. However, it is uncertain as to what orders would also fall within this category.
extent the Convention codifies customary Although these national laws are adopted by an
international law. individual country, they may have international
While the Secretary General of the United Nations impacts. A foreign manufacturer whose defective
receives instruments of ratification and accession product injures a person living in the United
and the UN provides support for meetings of States may be held liable for resulting damages
states party to the Convention, the UN has no under U.S. law. The U.S. Corrupt Practices Act
direct operational role in the implementation of prevents a U.S. corporate executive from bribing
the Convention. There is, however, a role played a foreign government official. While these laws
by organizations such as the International affect international activities and non-national
Maritime Organization, the International Whaling parties, they are generally not considered
Commission, and the International Seabed international law. Rather, they are considered
Authority (the latter being established by the UN extraterritorial applications of national law.
Convention). International law, on the other hand, concerns
agreements among different nations, or between
(1) Extended Continental Shelf citizens or corporations of different nations.
g. Tribunal of the Law of the Sea Agreements or treaties among different nations
12. International Environment Law are
generally referred to as public international law.
Environmental Laws in General Contracts between private parties (corporations or
Environmental laws are the standards that citizens) residing in different nations are generally
governments establish to manage referred to as private international law. Because
naturalresources and environmental quality. The the field of international environmental law
broadcategories of “natural resources” and focuses on
“environmental quality” include such areas as air the relations and agreements among nations, it is
and water pollution, forests and wildlife, part of public international law.
hazardous waste, agricultural practices, wetlands,
and landuse planning. In the United States, some Distinguishing between Hard and Soft
of the more widely known environmental laws are International Law
the Clean Air Act, the Clean Water Act, the
National Environmental Policy Act, and the A distinction is often made between hard and soft
Endangered Species Act. The body of international law. Hard international law generally
environmental law includes not only the text of refers to agreements or principles that are directly
these laws but also the regulations that enforceable by a national or international body.
implement and the judicial decisions that interpret Soft international law refers to agreements or
this legislation. In general, the standards set forth principles that are meant to influence individual
in environmental laws can apply to either private nations to respect certain norms or incorporate
parties or the government. The Clean Air and them into national law Soft international law by
Clean Water Acts, for example, are frequently itself is not enforceable. It serves to articulate
used to regulate the polluting activities of private standards widely shared, or aspired to, by
enterprises. These laws mandate certain pollution- nations. Similar parallels can be found at the
reducing technology or limit the levels of pollution national level. Often an official, a legislative body,
for power plants and factories. The National or an agency will announce a new public policy or
Environmental Policy Act (NEPA) applies only to priority. In this announcement, or proclamation,
the actions of the U.S. government. NEPA there are often pledges to incorporate this new
requires that the federal government undertake a policy or priority into specific legal provisions.
comprehensive environmental impact assessment While the announcement itself is not enforceable
before it can proceed with projects that are likely in court, it nonetheless can have a powerful
to harm the environment. Distinguishing National influence on the development and implementation
Law from International Law of specific legal provisions. Private international
To understand the nature of international law generally concerns business transactions
environmental law, one must first understand the between citizens or corporations of different
difference between national and international law. countries. Because most of the rules governing
these private transactions are enforceable in the enforcement is left to the member nations, whose
courts of the concerned countries, these rules are governments propose and adopt implementing
usually deemed hard international law. Most of policies.
international environmental law, however,
concerns general principles agreed upon among Sometimes the implementing national legislation
nations. Although these principles sometimes is identical to the international agreement. For
oblige countries to adopt implementing legislation, example, Canada implemented the Migratory
they are not usually enforceable on their own in Birds Treaty (with the United States) by adopting
court. the Migratory Birds Treaty Act. Because the
language of this act is identical to language in the
The soft status of international environmental law, treaty, the law is basically a legislative codification
and most international law, is a result of concerns of the international agreement.
over sovereignty. Nations are generally reluctant
to surrender control over their territory, peoples, Other times, however, the international
and affairs to external international authorities. environmental agreement is of a general nature
Even when nations have joined in international and national governments must draft and
agreements, many of them have added implement more specific laws. For instance, in
reservations to preserve their right to decline to 1989 the International Convention on
be bound by particular parts of the agreement. Transboundary Movement of Hazardous Waste
The exercise of this power weakens the total was signed in Basel, Switzerland. This convention
effectiveness of many international forbids the export of hazardous wastes to
agreements. countries that lack “adequate means to dispose of
them.” Under the terms of the convention,
Means of Implementing and Enforcing signatory nations are called upon to draft their
International Environmental Law own more specific national laws to implement this
There are forums where international pledge.
environmental disputes can be adjudicated, such
as national courts, the International Court of Although international institutions are generally
Justice, and international arbitration panels. not responsible for directly implementing and
These forums, however, generally require that the enforcing international environmental law, they
disputing parties voluntarily submit to the often play important monitoring, informational,
jurisdiction of the court or panel. Additionally, and diplomatic roles. For example agendas
even when these forums obtain jurisdiction over adopted at the 1992 Convention on Environment
an international environmental dispute, they must and Development at Rio de Janeiro created a new
rely on the cooperation of national governments international body, the Commission on
to enforce rulings. For economic and political Sustainable Development (CSD).
reasons, this cooperation is often withheld. A
small number of environmental agreements have The CSD meets yearly at the United Nations in
established international institutions that can New York to review and advance the
directly impose trade sanctions (such as the implementation of Agenda 21—an enormous and
Montreal Protocol, discussed on p. 20) or have complex mandate. Most global agreements, such
authorized member states to impose trade as the Biodiversity Convention and the Framework
sanctions against violating parties (such as the Convention on Climate Change, are implemented
International Convention for the Regulation of by an annual or biennial Conference of Parties
Whaling, discussed on p. 29). For instance, in (COP). These COPs lack the power to bring
response to Japan’s violation of the International enforcement actions against either governments
Whaling Commission’s whaling moratorium, the or private parties. They help monitor national
United States threatened to restrict Japanese compliance by requiring member nations to
fishing vessel activity in U.S. territorial waters. submit annual reports. Through meetings and
Japan elected to accede to the whaling publications, COPs also provide a forum to discuss
moratorium rather than suffer any such and debate issues associated with the
restrictions. implementation of the agreement.
The type of sanctions envisioned under the There are other institutions similar in function to
Montreal Protocol and International Whaling the CSDs and the COPs. The North American
Commission are procedurally very difficult to Commission on Environmental Cooperation
impose. In general, there is no international body (NACEC), based in Montreal, Canada, monitors
authorized to directly enforce international compliance with the North American Agreement
environmental law. The task of direct on Environmental Cooperation, one of the side
agreements under the North American Free Trade Even in the event that the domestic legislation
Agreement (NAFTA). The European provides for suits of this nature, the judges who
Environmental Agency, based in Copenhagen, decide the case are residents of the country
Denmark, monitors the compliance of individual against which it is brought, and the resulting
European countries with environmental directives potential conflicts of interest are apparent. With
adopted by the European Union. Although the respect to parties, only nations are bound by
CSD, COPs, NACEC, and the European treaties and conventions. In international forums,
Environmental Agency indicate that the such as the International Court of Justice,
international community is trying to improve countries must consent to being sued in order to
compliance with environmental agreements, there preserve their sovereignty. Thus, it is often
is still a lack of effective implementation and impossible to sue a country. In any case, it is
enforcement. A 1992 study by the U. S. General often a transnational corporation (TNC), not a
Accounting Office concluded that international country, that has violated an international
environmental agreements lack adequate agreement. It is nearly impossible to sue a
procedures to monitor and ensure compliance. country for not enforcing its laws against a TNC or
Countries have become skilled in negotiating for not enacting sufficient implementing
international environmental agreements, but they legislation. The final difficulty in the jurisdictional
are much less skilled at making the agreement arena is the question of who may bring a suit.
operate effectively. In the past two decades, Often, only countries may sue countries, not
states have also used economic incentives and individual citizens and not nongovernmental
trade bans to encourage compliance with organizations. This has huge repercussions in that
international environmental agreements. For the environmental harm must be large and
example, the Montreal Protocol, the Framework notorious for a country to even notice it. Second,
Convention on Climate Change, and the for a country to have a stake in the outcome of
Biodiversity Convention provide economic the subject matter, some harm may have to cross
incentives in the form of technical assistance, the borders of the violating country into the
technology transfers, and money to build the country that is suing. Finally, even if trans-
administrative capacity of national environmental boundary harm does exist, the issue of causation,
agencies. These incentives have been of especially in the environmental field, is often
particular value in promoting the involvement and impossible to demonstrate with any certainty. In
compliance of developing countries—part of the addition, in all fields of international law no
Rio bargain between northern (developed) and country is ever in perfect compliance with every
southern (developing) countries. The Global international obligation. Moreover, some
Environmental Facility (GEF), a new international countries are substantially more powerful than
funding institution, also provides money for others. This may seem self-evident and
training, equipment, and enforcement related to unimportant, until one considers that suing
environmental protection measures. Some recent another country may expose the plaintiff country
international environmental agreements, such as to retaliatory actions. In spite of this political
the Biodiversity Convention, have designated the reality, however, Mexico successfully challenged
GEF as their exclusive funding mechanism. the United States in the World Trade Organization
Jurisdiction for Disputes: Courts, Parties, and in the Tuna Dolphin Case, and several Asian
Enforcement Roughly speaking, jurisdiction may countries successfully challenged the United
be defined as a court’s legal ability to hear a States over U.S. efforts to compel shrimp-
complaint. If the subject matter of the case is not exporting countries to harvest shrimp without
within the scope of a court’s jurisdiction, or if one harming turtles.
of the parties, either the one bringing the case
(plaintiff) or the one against whom it is brought The enforcement issue is one where advocates for
(defendant) is not within a court’s jurisdiction, the a safer environment often find themselves
court will not hear the dispute. This is particularly stymied. The entirety of international law, beyond
relevant to international environmental law for a the environmental field, remains largely
number of reasons. First and foremost, if a treaty unenforceable, even if a treaty or convention
or convention does not specify an international provides for specific substantive measures to be
forum that has subject-matter jurisdiction, often taken by a country (which is not always the case,
the only place to bring a suit with respect to that since many treaties merely provide frameworks),
treaty is in the member state’s domestic court and even if a forum for litigation or dispute
system. This then presents at least two additional resolution is specified or sanctions by member
hurdles. If the member state being sued does not states for noncompliance are authorized. A
have domestic implementing legislation in place to country cannot be forced to do what it is not
hear the dispute, there will be no forum available. willing to do. One can sanction the country, order
damages, restrict trade, or, most frequently, posed before Nations is how State liability for
declare noncompliance, but beyond that, if a environmental damage caused accidentally and
country will not comply, there is very little to be non accidentally should differ, and, what liability
done. Countries usually accept or avoid can be imposed; who decides such liability
international environmental obligations because it compensation; whether or not such liability can be
is in their economic self-interest to do so. Nations imposed for damage arising from acts which are
rarely take actions that may harm their domestic legal and what can make such decisions binding
economy or their international trade for altruistic on States and whether or not such mechanisms
reasons. They take these actions expecting some will be of use in the future. What may be effective
economic or political benefit sooner or later. in theory may not be effective in practice. Some
believe that more emphasis should be laid on the
a. Principle 21 of Stockholm Declaration preventative factor rather than focusing on who
Principle 21 of the Stockholm declaration clearly will take up responsibility.
states, "States have in accordance with the
Charter of the United Nations and the principles of Such damage may, however, be caused not just
international law, the sovereign right to exploit by human activities but also by natural factors.
their own resources pursuant to their own Earthquakes, floods, volcanoes, landslides and
environmental policies, and the responsibility to hurricanes can also bring tremendous destruction
ensure that activities within their jurisdiction or to human life and property. For such "acts of
control do not cause damage to the environment God", liability rules do not apply. In principle,
of other States or of areas beyond the limits of transboundary damage should have "some
national jurisdiction." reasonably proximate casual relation to human
conduct."
The practices of States can be affected
consciously by various international actions and Environmental damage thus poses a menace not
conventions are adopted in the hope that they just to one nation but also to the environments of
follow and act in the particular way stated and States as a whole. "All states parties to such
may even suggest that they are legally obliged to instruments have the responsibility to protect the
do so. Principle 21 has now become a customary natural environment and the common areas, and
law, which generally applies to all states and not correlative rights to see that others do so."
only to the parties to a particular instrument.
Principle 21 focuses on transboundary harm or Some Digested Public International Law Cases
State responsibility. 1) COMPAGNIE DE COMMERCE ET DE
NAVIGATION D’EXTREME ORIENT VS. THE
HAMBURG AMERIKA
PACKETFACHT ACTIEN GESELLSCHAFT -
Transboundary Damage
-The Court held that after examining the terms
Large-scale industrial, agricultural and technical and conditions of the convention that at the
activities of one country can cause damage to the outbreak of the present war, there was no such
environment of another nation or simply cause general recognition of the duty of a belligerent to
detrimental effects to its people at large. Such grant "days of grace" and "safe-conducts" to
damage can be caused through water, soil, and enemy ships in his harbors, as would sustain a
air and to one or more nations or quite possibly to ruling that such alleged duty was prescribed by
the global commons. Such transboundary damage any imperative and well settled rule of public
gives rise to the question of State responsibility international law, of such binding force that it
and compensation for damage caused. was the duty of the master of the Sambia to rely
confidently upon a compliance with its terms by
State responsibility and international liability for the French authorities in Saigon.
injurious consequences have been two of the
major issues on the agenda of the International -It was nothing but a *pious wish* at least,
Law Commission. International treaties of various adherence to the practice by any belligerent could
numbers have come into existence, pollution of not be demanded by virtue of any convention,
international waters, long-range air pollution, land tacit or express, universally recognized by the
source damage to the ocean and oil pollution to members of the society of nations; and that it
give a few examples. Most treaties only lay down may be expected only when the belligerent is
preventive methods and norms to be followed by convinced that the demand for adherence to the
states and very few lay down firm rules regarding practice inspired by his own commercial and
liability and compensation. Another challenge political interests outweighs any advantage he
can hope to gain by a refusal to recognize the 3) NICARAGUA VS. US - Calinisan c/o SC notes
practice as binding upon him. Tanquilit
The ICJ has jurisdiction. The 1946 declaration is
-The Court concluded that under the still binding on the US.
circumstances surrounding the flight of the
Sambia from the port of Saigon, her master had The US cannot derogate from the time-limit
no such assurances, under any well-settled and proviso included in its 1946 declaration. The
universally accepted rule of public international notion of reciprocity is concerned with the scope
law, as to the immunity of his vessel from seizure and substance of the commitments entered into,
by the French authorities, as would justify us in including reservations, and not with formal
holding that it was his duty to remain in the port conditions of their creation, duration, or
of Saigon in the hope that he would be allowed to extinction. Reciprocity cannot be invoked in order
sail for the port of destination designated in the to excuse departure from the terms of a State’s
contract of affreightment with a laissez-passer or own declaration. Nicaragua can invoke the six
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
not have been done without the knowledge of
Albania. It is then its duty to notify and warn Thailand had nevertheless continued also to use
ships proceeding through the Strait. Its failure to and indeed to publish maps showing Preah Vihear
undertake such constitutes neglect of its as lying in Cambodia. Moreover, in the course of
international, responsibility. the negotiations for the 1925 and 1937 Franco-
Siamese Treaties, which confirmed the existing
frontiers, and in 1947 in Washington before the
As to the argument on passage through territorial Franco-Siamese Conciliation Commission, it would
waters, the ICJ ruled that the North Corfu Channel have been natural for Thailand to raise the
constituted a frontier between Albania and matter: she did not do so.
Greece, that a part of it is wholly within the -In effect, Cambodia and Thailand are now
territorial waters of these 2 States, and that the estopped from questioning the validity of Annex 1.
Strait is of special importance to Greece. Hence, Thus, the Temple of Preah Vihear belongs to
the Channel belongs to a class of international Cambodia.
highways through which passage cannot be -
prohibited by a coastal State in time of peace.
Moreover, the passage of the British warships 6) GABCÍKOVO-NAGYMAROS (HUNGARY VS.
through the Channel was carried out in such SLOVAKIA) (1993) – Lopez
manner that is consistent with the principle of
innocent passage—the guns were in a normal Held:
position and not targeted to the shores. (a)
The Court says No. Hungary rests the validity of
its action upon the principle of a state of
5) TEMPLE OF PREAH VIHEAR (CAMBODIA V. necessity. The state says that they had to
THAILAND) – Gana abandon the treaty because of economic and
ecological concerns. The Court enumerated the
-The Court said yes. The Court held that the 1959 requirements for the application of such a
decision is only applicable to the parties thereto principle, to wit:
(which were Israel and Bulgaria). Furthermore, a. it must have been occasioned by an "essential
the Court held that Thailand’s 1950 declaration interest" of the State which is the author of the
made its situation different from that of Bulgaria. act conflicting with one of its international
Thailand’s being a party to the statute expired on obligations
May 6, 1950. Thus, it’s declaration on May 20, b. that interest must have been threatened by a
1950 was a new declaration made outside the "grave and imminent peril"
operation of the Statute of the Court c. the act being challenged must have been the
and consequently outside the application of Art. "only means" of safeguarding that interest
36. d. that act must not have "seriously impair[ed] an
essential interest" of the State towards which the
Second Objection: obligation existed
-Cambodia bases its claim on the Temple of Preah e. the State which is the author of that act must
on a map (Annex 1) made by a group of people. not have "contributed to the occurrence of the
On the other hand, Thailand bases its claim on a state of necessity" In this case, the Court held
treaty signed by France (who was then conducting that there was an essential interest, which is the
the foreign relations of Indo-China) and Siam. environment. But, the court held that the peril to
-Thailand argues that Annex 1 was never be caused is not imminent. The future problems
accepted by the parties to the treaty. Also, being pointed out by Hungary were not impending
Thailand reiterates that the treaty says that the enough to justify their abandonment of the treaty
boundary between Thailand and Cambodia is (ie, problem regarding drinking water was a long-
based on the watershed and the boundary term problem). The Court also pointed out that
delineated by Annex 1 does not conform to this there were other means by which Hungary could
agreement. have avoided the alleged perils attached to the
: continuation of the Gabcíkovo-Nagymaros System
-The Court held that Annex 1 should be followed. of Locks
Even if it was not accepted by France, there was (ie, lessening of the river bed could have been
an implied acceptance of such map. This can be solved by constant refilling of the bed with
seen through the acts of France and Thailand. In gravel). The
1934-1935 a survey had established a divergence Court also pointed out that Hungary helped in
between the map line and the true line of the bringing about the state of necessity by rushing
watershed, and other maps had been produced the projects without fully understanding the
showing the Temple as being in Thailand: effects it would have in the environment.
abandonment by Hungary of works for which it
(b) The Court says no. was responsible; and Slovakia shall compensate
Czechoslovakia rests its claim on what it calls the Hungary for the damage it has sustained on
"principle of approximate application" to justify account of the putting into operation of the
the construction and operation of Variant C. The "provisional solution" by Czechoslovakia and its
principle states that whenever a legal instrument maintenance in service by Slovakia.
of continuing validity cannot be applied literally
owing to the conduct of one of the parties, it 7) ADVISORY OPINION ON THE LEGAL
must, without allowing that party to take CONSEQUENCES OF THE PALESTINIAN WALL –
advantage of its own conduct, be applied in a way Mendiola
approximating most closely to its primary object.
The Court took note that the basic characteristic The Court has already indicated that the subject
of the treaty is to provide for the construction of of the present request for an advisory opinion falls
the Gabcíkovo-Nagymaros System of Locks as a within the competence of the General Assembly
joint investment constituting a single and under the Charter.
indivisible operational system of works. Clearly,
through Variant C, Czechoslovakia violated such Even if Article 12, paragraph 1, of the Charter
main objective of the treaty. Through Variant C, provides that: “While the Security Council is
the Czechs wanted to create their own system of exercising in respect of any dispute or situation
works on the Gabcikovo side of the Danube. This the functions assigned to it in the present Charter,
is obviously an internationally wrong act for it the General Assembly shall not make any
violated the treaty agreed upon between the recommendation with regard to that dispute or
parties. The Court considers that situation unless the
Czechoslovakia, by unilaterally assuming control Security Council so requests.” a request for an
of a shared resource, and thereby depriving advisory opinion is not in itself a
Hungary of its right to an equitable and “recommendation” by the General Assembly “with
reasonable share of the natural resources of the regard to [a] dispute or situation”.
Danube — with the continuing effects of the
diversion of these waters on the ecology of the As regards the practice of the United Nations,
riparian area of the Szigetköz — failed to respect both the General Assembly and the Security
the proportionality which is required by Council initially interpreted and applied Article 12
international law. to the effect that the Assembly could not make a
(c) The 19 May 1992 declaration of Hungary did recommendation on a question concerning the
not have any legal effect. It did not terminate the maintenance of international peace and security
treaty between the two states. When Hungary while the matter remained on the Security
made such a declaration, it did not have any basis Council’s agenda. However, this interpretation of
to terminate the treaty. It was actually the one Article 12 has evolved subsequently. Thus the
which violated the treaty by abandoning their General Assembly deemed itself entitled in 1961
obligations. There was no fault committed by the to adopt recommendations in the matter of the
Czechs to justify what Hungary did. In the Court's Congo (resolutions 1955 (XV) and 1600 (XVI))
view, therefore, the notification of termination by and in 1963 in respect of the Portuguese colonies
Hungary on 19 May 1992 was premature. No (resolution 1913 (XVIII)) while those cases still
breach of the Treaty by Czechoslovakia had yet appeared on the Council’s agenda, without the
taken place and consequently Hungary was not Council having adopted any recent resolution
entitled to invoke any such breach of the Treaty concerning them.
as a ground for terminating it when it did.
(d) The Court finds that Hungary and Slovakia The Court can exercise its jurisdiction.
must negotiate in good faith in the light of the
prevailing situation, and must take all necessary One of the arguments is to the effect that the
measures to ensure the achievement of the Court should not exercise its jurisdiction in the
objectives of the Treaty. present case because the request concerns a
Unless the Parties otherwise agree, a joint contentious matter between Israel and Palestine,
operational régime must be established in in respect of which Israel has not consented to the
accordance with the exercise of that jurisdiction. According to this
view, the subject-matter of the question posed by
Treaty. Also, unless the Parties otherwise agree, the General Assembly “is an integral part of the
Hungary shall compensate Slovakia for the wider Israeli-Palestinian dispute concerning
damage sustained by Czechoslovakia and by questions
Slovakia on account of the suspension and
of terrorism, security, borders, settlements, Nottebohm is still considered a citizen of
Jerusalem and other related matters”. Israel has Guatemala.
emphasized that it -When two States have conferred their nationality
has never consented to the settlement of this upon the same individual and this situation is no
wider dispute by the Court or by any other means longer confined within the limits of the domestic
of compulsory jurisdiction of one of these States but extends to
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-
standing and close connection between him and
Guatemala, a link which his naturalization in no jurisdiction of the Court under Article 36,
way weakened. paragraph 2, of its Statute, the court noted that
Indonesia did not do so. This, in effect, precludes
10) OPOSA VS. FACTORAN – Sarenas the court from exercising jurisdiction since were it
to rule on the case, its decision would affect, but
Petitioners indeed have locus standi to file the would not be binding on, Indonesia because of its
case. They can file the case for themselves aswell lack of consent to the court’s jurisdiction;
as for the succeeding generations.
Issue: c) while it is true that the right of peoples to self-
determination, as it evolved from the Charter and
Petitioners have successfully showed that they from United Nations practice, has an erga omnes
have a specific legal right. The right to a balanced character, the Court nonetheless considers that
and healthful ecology (Sec 16, Art II of the 1987 the erga omnes character of a norm and the rule
Constitution) of consent to jurisdiction are two different things.
• Whatever the nature of the obligations invoked,
The right to a balanced and healthful ecology the Court could not rule on the lawfulness of the
carries with it the correlative duty to refrain from conduct of a State when its judgment would imply
impairing an evaluation of the lawfulness of the conduct of
the environment. It is the DENR’s duty to protect another State which is not a party to the case;
such right.
• d) if the court were to exercise jurisdiction over
A denial or violation of that right by the other who the case and render judgment thereon
has the correlative duty to respect or protect the notwithstanding the lack of Indonesia’s consent,
same such a judgment would run directly counter to the
gives right to a cause of action. "well-established principle of international law
Issue: embodied in the Court's Statute, namely, that the
Court can only exercise jurisdiction over a State
No. What is principally involved is the with its consent" (Monetary Gold Removed from
enforcement of a right vis-à-vis policies already Rome in 1943, I.C.J. Reports 1954, p. 32).
formulated and
expressed in legislation. Re the separate opinion of Judge Oda:
The non-impairment clause must yield to the
police power of the state. All licenses may be Judge Oda, while agreeing that Portugal's
revoked or rescinded by executive action. Application should be dismissed as the Court lacks
Decision: Order of dismissal set aside (I jurisdiction to entertain it, considers that its
guessremanded yung case) dismissal should not have been based upon the
absence of Indonesia's consent, as in the Court's
11) EAST TIMOR – Anastacio Judgment, but upon the sole consideration that
Portugal lacked locus standi. His reasoning
Court cannot exercise jurisdiction over the case appears to be based on his view that the central
because Indonesia is not a party thereto. The issue in the case is whether Portugal or Indonesia,
court held that in order to rule on the proceedings as a State lying opposite to Australia, was entitled
instituted by Portugal against Australia concerning to the continental shelf in the "Timor Gap"(maybe,
"certain activities of Australia with respect to East this is what is referred to in the Treaty of
Timor", it would be necessary for the court to 11 December 1989 between Australia and
determine the rights and obligations of Indonesia. Indonesia as an area between the Indonesian
Specifically, the court held that the very subject- Province of East Timor and
matter of its decision would necessarily be a Northern Australia).
determination whether, having regard to the
circumstances in which Indonesia entered and . He notes that on the matter of the delimitation
remained in East Timor, it could or could not have of the continental shelf in the relevant areas, it
acquired the power to enter into treaties on behalf appears that since the seventies, Indonesia
of East Timor relating to the resources of its claimed the status of a coastal State for East
continental shelf. The Court could not make such Timor and, as such, negotiated with Australia
a determination in the absence of the consent of while, on the other hand, Portugal did not. Had
Indonesia; Portugal also claimed that status, it could and
should have initiated a dispute over the
b) regarding the contention that Portugal and corresponding title to the continental shelf with
Australia have accepted the compulsory Indonesia, but not with Australia. Not
unless and until such time as Portugal had been Australia leading to the conclusion of the Treaty. A
established as having the status of the coastal decision thereon does not imply any adjudication
State entitled to the corresponding continental on Indonesia,
shelf could any issue concerning the seabed area nor does it involve any finding on the validity of
of the "Timor Gap" have been the subject matter the Treaty. The conduct of Australia can be
of a dispute between Portugal and Australia Since assessed in the light of
Portugal does not have such status as yet, it has United Nations law and resolutions. Such
no locus standi and hence, its complaint should be assessment is not linked to any passing upon
dismissed on such ground. Indonesia's activities.
Re the dissenting opinion of Judge Weeramantry: Further, it is his view that Portugal has the
capacity to act before the Court in this case on
Judge Weeramantry disagrees with the majority behalf of East
view on the question as to whether or not the Timor and to vindicate the respect for its position
Court lacks jurisdiction on the ground that a as administering Power. The position of Portugal
decision against Australia would involve a decision as administering
concerning the rights of Indonesia, a third State, Power was questioned by Australia; the Court
not before the Court. should have clarified this issue. It is within its
jurisdiction.
Judge Weeramantry, after analyzing the Monetary
Gold decision and the prior and subsequent 12) ISLAND OF PALMAS – Beron
jurisprudence on the matter, concludes that,
having regard to the facts of this case, the It is recognized that the US communicated the
Monetary Gold decision is not relevant inasmuch Treaty of Paris to the Netherlands, and that no
as the Court could determine the matter before it reservations or protests were made by the
entirely on the basis of the obligations and actions Netherlands in respect of the delimitation of the
of Australia alone, without any need to make an Philippines which included the Palmas. However
adjudication on the conduct of Indonesia. He the territorial sovereignty (which as stated above
bases this on the view that a central principle of serves as good title...) which Netherlands
State responsibility in international law is the exercised over the Palmas could not be affected
individual responsibility of a State for its actions, by the mere silence as regards a treaty which has
quite apart from the complicity of another State in been notified.
those actions. Accordingly, he believes that
Australia’s actions, in negotiating, concluding and
initiating performance of the Timor Gap Treaty, Discovery alone without subsequent act cannot at
and taking internal legislative measures for its the present time suffice to prove sovereignty over
application, are thus justiciable on the basis of its the Palmas. Even considering that the US
unilateral conduct. possesses an imperfect title over the Palmas by
virtue of the Treaty of Paris, this title cannot
Re the dissenting opinion of Judge Skubiszewski: prevail over the continuous display of authority of
another state.
In his view, the court has jurisdiction because
even it finds itself without jurisdiction to
adjudicate on any The principle of contiguity as contention should
issue relating to the Timor Gap Treaty, it can still also fail. This principle itself is by its very nature
rule on Portugal’s first submission, i.e., with the so uncertain and contested that even
status of East governments of the same state have on different
Timor, the applicability to that territory of the occasions maintained contradictory opinions. If
principle of self-determination and some other this principle alone is to be used as basis for
basic principles of acquiring sovereignty over a territory, this
international law, and the position of Portugal as principle would be in conflict with what has been
administering Power. This is so because the first said about territorial sovereignty
submission can be
separated from the other submissions which 13) VFA CASE (LIM VS. EXEC. SEC.) – Calinisan
concern exclusively the specific issues of the
treaty. After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of
Judge Skubiszewski believes that the Court can the word .'activities" arose from accident. In our
decide on the lawfulness of some unilateral acts of view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In driving and vehicle registration, criminal
this manner, visiting US forces may sojourn in jurisdiction, claims, importation and exportation,
Philippine territory for purposes other than movement of vessels and aircraft, as well as the
military. As conceived, the joint exercises may duration of the agreement and its termination. Its
include training on new techniques of patrol and primary goal is to facilitate the promotion of
surveillance to protect the nation's marine optimal cooperation between American and
resources, sea search-and-rescue operations to Philippine military forces in the event of an attack
assist vessels in distress, disaster relief by a common foe.
operations, civic action projects such as the Public International Law (Dean Roy): Case Digests
building of school houses, medical and nastacio, Beron, Calinisan, Fernandez, Gana,
humanitarian missions, and the like. 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 14) WTO CASE (TAÑADA VS. ANGARA) –
"except in self-defense." We wryly note that this Fernandez
sentiment is admirable in the abstract but difficult
in implementation. The target of "Balikatan 02-1 An initial question was posed regarding
I" the Abu Sayyaf, cannot reasonably be expected jurisdiction. The SC ruled that it has jurisdiction
to sit idly while the battle is brought to their very over the matter since it has the power to
doorstep. They cannot be expected to pick and determine whether there was GADLEJ on the part
choose their targets for they will not have the of the Senate and President. However, the SC will
luxury of doing so. We state this point if only to not review the wisdom of their decisions.
signify our awareness that the parties straddle a
fine line, observing the honored legal maxim
"Nemo potest facere per alium quod non potest The WTO Agreement is not violative of the
facere per directum."11 The indirect violation is Constitution. The reliance on the priniciple of
actually petitioners' worry, that in reality, economic nationalism espoused in Articles 2(sec
"Balikatan 02-1 " is actually a war principally 19) and 12(secs 10 and 12) of the Constitution is
conducted by the United States government, and misplaced as these are not self-executing
that the provision on self-defense serves only as provisions. They do not embody judicially
camouflage to conceal the true nature of the enforceable constitutional rights but are guidelines
exercise. A clear pronouncement on this matter for legislation. These are broad constitutional
thereby becomes crucial. principles that need legislative enactments to
Notes: implement them. Moreover, while the Constitution
indeed mandates a bias in favor of Filipino goods,
• services, labor and enterprises, at the same time,
The entry of American troops into Philippine soil is it recognizes the need for business exchange with
proximately rooted in the international anti- the rest of the world on the bases of equality and
terrorism campaign declared by President George reciprocity and limits protection of Filipino
W. Bush in reaction to the tragic events that enterprises only against foreign competition and
occurred on September trade practices that are unfair. The Constitution
11, 2001 did not intend to promote an isolationist policy. In
• addition, the GATT itself has provided built-in
Mutual Defense Treaty—as the "core" of the protection from such unfair foreign competition
defense relationship between the Philippines and and trade practices.
its traditional ally, the United States. Its aim is to
enhance the strategic and technological
capabilities of our armed forces through joint (the important part)
training with its American counterparts; in re: Participating in the WTO Agreement did limit or
VFA. restrict, to some extent, the absoluteness of our
• sovereignty, but is not necessarily reprehensible.
Visiting Forces Agreement—provides the While sovereignty has traditionally been deemed
"regulatory mechanism" by which "United States absolute and all-encompassing on the domestic
military and civilian personnel [may visit] level, it is however subject to restrictions and
temporarily in the Philippines in connection with limitations voluntarily agreed to by the
activities approved by the Philippine Government." Philippines, expressly or impliedly, as a member
It contains provisions relative to entry and of the family of nations. Through the incorporation
departure of American personnel, clause in the Constitution, the Philippines is bound
by generally accepted principles of law as they Court. The adjustment would be based on special
automatically form part of the laws of the land. Of circumstances, at the discretion of the
great importance is the principle of pacta sunt Court.
servanda, which means that international
agreements must be performed in good faith. A -In this case, the Court found that the respective
state which has contracted valid international coastal lengths of Greenland and Jan Mayen can
obligations is bound to make in its legislation such be considered as a special circumstance which
modifications as may be necessary to ensure the calls for the adjustment of the median line. This is
fulfillment of the obligations undertaken. So by considered a special circumstance because the
their voluntary act, nations may surrender some difference is substantial. Greenland possesses a
aspects of their state power in exchange for much longer coastline, thus it should be afforded
greater benefits granted by or derived from a a wider claim over the disputed area based on the
convention or pact. For instance, when the principle of proportionality.
Philippines joined the UN and other bilateral
relations with other States, it effectively limits its 16) CASE CONCERNING THE MILITARY AND
sovereign powers of taxation, eminent domain PARAMILITARY ACTIVITIES
and police power. It can then be inferred that a IN AND AGAINST NICARAGUA (NICARAGUA VS.
portion of sovereignty may be waived without US) – Lopez
violating the Constitution by virtue of the
Philippines being bound by generally accepted The ICJ has jurisdiction. The 1946 declaration is
principles of law. still binding on the US.
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
the practice of nations with regard to extradition
treaties that formed the basis for this Court's Jeffrey Liang vs. People – Gana
decision in Rauscher, supra, to imply a term in the
extradition treaty between the United States and SLANDER CANNOT BE SAID TO BE COVERED BY
England.Respondent's argument, however, would THE
require a much larger inferential leap with only
the most general of international law principles to IMMUNITY GRANTED TO ADB EMPLOYEES
support it. While respondent may be correct that REGARDING ACTS
his abduction was "shocking" and in violation of
general international law principles, the decision PERFORMED BY THEM IN THEIR OFFICIAL
whether he should be returned to Mexico, as a CAPACITY
RATIO both public and private personalities. A distinction
was drawn between private transactions and
• matters of sovereign authority. Had Abu Bakr,
Nowhere in the assailed decision is diplomatic (who declined to appear in court) lost this
immunity denied privilege of diplomatic immunity by his deceit? An
• independent sovereign is entitled to immunity
However, the issue in this case is not really about from jurisdiction, unless he waives this privilege,
diplomatic immunity but whether or not the which Abu Bakr was not going to do. Did his
statements allegedly made by LIANG were uttered conduct amount to waiver? Persisted the lawyers
while in the performance of his official functions, for Miss Mighell. No, it must be an active waiver
in order for this case to fall squarely under the was the uncompromising answer.
provisions of Section 45 (a) of the "Agreement
Between the Asian Development Bank and the Ultimately, political considerations and agendas
Government of the Republic of the Philippines often decide the day. In 1894 the British
Regarding the Headquarters of the Asian Government was unwilling to offend a friendly
Development Bank ," to wit: foreign potentate to appease a private individual.
Officers and staff of the Bank, including for the In this sense, Miss Mighell was a victim of state
purpose of this Article experts and consultants policy, but the peculiar nature of breach of
performing missions for the Bank, shall enjoy the promise also meant she was a victim because she
following privileges and immunities: was a woman.
(a) Immunity from legal process with respect to Minucher vs. CA – Mendiola
acts performed by them in their official capacity
except when the Bank waives the immunity. The main yardstick in ascertaining whether a
• person is a diplomat entitled to immunity is the
After careful consideration, the Court held that it determination of whether or not he performs
had no cogent reason to disturb its Decision of duties of diplomatic nature. Also, vesting a person
January 28, 2000. As the Court has stated with diplomatic immunity is a prerogative of the
therein, the slander of a person, by any stretch, executive branch of
cannot be considered as falling within the purview the government.
of the immunity granted to ADB officers and
personnel Mighell vs. Sultan of Johore – Lopez The consent or imprimatur of the Philippine
government to the activities of the United States
The fifth case, that of Mighell v Sultan of Johore in Drug Enforcement Agency, can be gleaned from
1894 deals with a woman who fell under another the facts mentioned. The official exchanges of
kind of spell, for which there was no legal redress. communication between agencies of the
A man she had met in high society, who appeared government of the two countries, certifications
gentlemanly, wealthy and plausible, and who from officials of both the Philippine Department of
called himself Albert Baker, promised her Foreign Affairs and the United States Embassy, as
marriage. He promised marriage to her and then well as the participation of members of the
reneged on the promise, so she sued him, like Philippine
Polly Frost in a rather different social milieu, for Narcotics Command in the “buy-bust operation”
breach of promise. The case came on for hearing conducted at the residence ofMinucher at the
in the Court of Appeal on November 27, 1893. The behest of Scalzo, may be inadequate to support
case again attracted a wealth of legal talent: Lord the "diplomatic status" of the latter but they give
Esher, Master of the Rolls, and Lords Justices enough indication that the Philippine government
Lopes and Kay. has given its imprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo
Apparently Miss Mighell knew already that her of the United States Drug Enforcement Agency.
fiancé was not Albert Baker: this was a not very The job description of Scalzo has tasked him to
imaginative pseudonym for Abu Bakr, His Serene conduct surveillance on suspected drug suppliers
Highness the Sultan of Johore. The case revealed and, after having ascertained the target, to inform
his secret life in the high society of London, a long local law enforcers who would then be expected to
way absent from his kingdom in the Malay Straits. make the arrest. In conducting surveillance
The status of the defendant was important. Miss activities on Minucher, later acting as the poseur-
Mighell.s argument was that he had originally buyer during the buy-bust operation, and then
presented himself as a private individual and a becoming a principal witness in the criminal case
subject of the Queen. This pointed up of course against Minucher, Scalzo hardly can be said to
the duality of a sovereign.s status- that they are
have acted beyond the scope of his official In this case, the obligation of Poland is to restore
function or duties. the factory and, if this be not possible, to pay its
value at the time of the indemnification, which
All told, this Court is constrained to rule that value is designed to take the place of restitution
respondent Arthur Scalzo, an agent of the United which has become impossible. In addition, Poland
States Drug Enforcement Agency allowed by the must pay the compensating loss sustained as a
Philippine government to conduct activities in the result of the seizure.
country to help contain the problem on the drug
traffic, is entitled to the defense of state immunity Mavrommatis Palestine Concessions – Fernandez
from suit. N.B. It might be recalled that the
privilege is not an immunity from the observance It is true that the dispute was at first between a
of the law of the territorial sovereign or from private person (Mavrommatis) and a State
ensuing legal liability; it is, rather, an immunity (Britain). But the Greek Government subsequently
from the exercise of territorial jurisdiction took up the case. The case, then, entered into a
new phase: it became a dispute between two
Fisheries Case – Morada States and is covered by international law.
Legislative Power
Vacancies
Permanent vacancy
Age requirement e. Grounds
POSITION AGE REQUIREMENT 8. Elective local official fills a higher
Governor, Vice At least 23 years old on vacant office
Governor, Mayor, Vice election day 9. Refuses to assume office
Mayor, member of 10. Fails to qualify
Sangguniang 11. Dies
Panlungsod in highly 12. Removed from office
urbanized cities 13. Voluntarily resigns
Mayor, Vice Mayor of At least 21 years old 14. Permanently incapacitated to
independent discharge the functions of his office
component cities or f. Filling of vacancy
municipalities 3. Automatic succession
Member of At least 18 years old
Sangguniang
Panglungsod, Member VACANCY SUCCESSOR
of Sangguniang 4. In the office of the Vice-Governor, Vice-
Bayan, Punong governor, mayor Mayor
Barangay, Member of 5. In the office of the Highest ranking
Sangguniang governor, vice- Sanggunian member
Barangay governor, mayor or
vice-mayor
6. In the office of the Second highest ranking
Disqualifications for Local Elective Officials Sanggunian member
(§ 40) highest ranking
8. Those sentenced by final judgment for an Sangguniang
offense involving moral turpitude, or for an member (who was
offense punishable by 1 year or more or supposed to fill the
vacant position of
governor etc.
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.
Effectivity of Recall
Recall with only be effective upon the election and Limitations
proclamation of a successor. 1. It should not be exercised more than once a
If the official sought to be recalled receives the year.
highest number of votes, confidence in him is 2. It can only extend to subjects or matters
affirmed and he shall continue in office. which are within the legal powers of the
Sanggunians to enact.
Limitations on Recall 3. If the Sanggunian adopts in toto the
Elective local official can be the subject of a recall proposition presented and the local chief
election only once during his term of office executive approves the same, the initiative
No recall shall take place within 1 year from the shall be cancelled.
date of the official’s assumption to office or 1 year
immediately preceding a regular local election.
Limitations upon Sanggunians
1. The Sanggunian cannot repeal, modify or
LOCAL INITIATIVE (§§ 120-125) amend any proposition or ordinance approved
It is the legal process whereby the registered through system of initiative/referendum within
voters of a LGU may directly propose, enact or 6 months from the date of approval thereof.
armed any ordinance 2. The Sanggunian can amend, modify or repeal
the proposition/ordinance w/in 3 years
NOTE: IN Garcia v. Comelec, the SC ruled that a thereafter by a vote of ¾ of all its members.
resolution can also be the proper subject of an 3. For baranggays, the applicable period is 18
initiative months.
3. Disqualifications
The following are grounds for disqualifications to
hold public office:
Essential elements
1. mental or physical incapacity,
1. Created by Constitution or by law or by some
2. misconduct or crime,
body or agency which the power to create the
3. impeachment,
office has been delegated (enabling law)
4. removal or suspension from office,
2. Invested with authority to exercise some
5. previous tenure of office,
portion of the sovereign power of the State
6. consecutive terms,
3. Powers/Functions defined by the Constitution,
7. holding more than one office,
law, or through legislative authority
8. relationship with the appointing power,
4. Duties are performed independently without
9. office newly created or the emoluments of
control unless those of a subordinate
which have been increased,
5. Continuing / permanent in nature
10. being an elective official,
11. having been a candidate for any elective
position, and
Distinctions
12. grounds under the local government code.
In the absence of constitutional appointee enters upon the exercise of
inhibition, Congress has the same right the duties and functions of an office.
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
When the constitution has attached a not subject to reconsideration or
disqualification to the holding of any revocation. The exception is where an
office, Congress cannot remove it under officer is removable at will of the
power to prescribe qualifications as to appointing power.
such offices as it may create.
Presumption is in favor of eligibility. Steps in the Appointing Process:
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
office for which they are prescribed.
Designation is simply the mere
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.
virtue of an earlier appointment,
A) Appointment
performing other functions.
Appointment is the act of designation by
the executive officer, board, or body to 5. Vacancy
whom that power has been delegated,
of the individual who is to exercise the
There is a vacancy when an office is
empty and without a legally qualified
powers and functions of a given office.
incumbent appointed or elected to it
It is to be distinguished from the
with a lawful right to exercise its powers
selection or designation by a popular
and perform its duties. There can be no
vote.
appointment to a non-vacant position.
Power to appoint is generally regarded
as an executive function. But it is not
Causes of vacancy are death,
permanent disability, removal from
limited to the executive department.
office or resignation of the incumbent,
Power of appointment is absolute when expiration of term, conviction of a
the choice of the appointing authority is crime, impeachment conviction,
conclusive. It is conditional where acceptance of incompatible office,
assent or approval by some other officer creation of a new office, reaching the
or body is necessary to complete the age limit, and recall.
appointment.
Acceptance of appointment is not
necessary for the completion or validity
Petitioners urge this Court to expand the settled
of appointment. However, acceptance is
doctrine of condonation to cover coterminous
necessary to possession of office, and to
appointive officials who were administratively
enable appointee to the enjoyment and
charged along with the reelected
responsibility of an office. Acceptance
official/appointing authority with infractions
may be express when it is done verbally
allegedly committed during their preceding term.
or in writing. Acceptance is implied
when without formal acceptance, the
The Court rejects petitioners’ thesis.
More than 60 years ago, the Court in Pascual v. Petitioners’ theory is not novel.
Hon. Provincial Board of Nueva Ecija issued the
landmark ruling that prohibits the disciplining of A parallel question was involved in Civil Service
an elective official for a wrongful act committed Commission v. Sojor where the Court found no
during his immediately preceding term of office. basis to broaden the scope of the doctrine of
The Court explained that “[t]he underlying theory condonation.
is that each term is separate from other terms,
and that the reelection to office operates as a
Contrary to petitioners’ asseveration, the non-
condonation of the officer’s previous misconduct
application of the condonation doctrine
to the extent of cutting off the right to remove
to appointive officials does not violate the right to
him therefor.”
equal protection of the law.
5. Promotion
The movement from one position to another with SCOPE OF POWER OF A PUBLIC OFFICER
increase in duties and responsibilities as
authorized by law and usually accompanied by an Scope of power of a public officer consists of those
increase in pay. powers which are:
1. expressly conferred upon him by the
Next-in-Rank Rule – The person next in rank shall law under which he has been
be given preference in promotion when the appointed or elected;
position immediately above his vacated. However, 2. expressly annexed to the office by the
the concept of next-in-rank does not import any law which created it or some other law
mandatory or peremptory requirement that the referring to it; or
person next in rank must be appointed to the 3. attached to the office as incidents to
vacancy. The appointing authority has the it.
discretion to fill the vacancy under the next-in-
rank rule or by any other method authorized by Doctrine of Necessary Implication:
law, e.g., by transfer. The fact that a particular power has not been
expressly conferred does not necessarily mean
that it is not possessed by the official claiming it.
6. Discipline Such a power may still be sustained under the
doctrine of necessary implication pursuant to
Grounds for the discipline of members of the which all powers necessary to the exercise of the
Civil Service: power expressly granted are deemed impliedly
1. dishonesty granted.
2. oppression
3. neglect of duty
4. misconduct Kinds of Duties/Powers:
5. disgraceful and immoral conduct 1. Ministerial – when it is absolute,
6. being notoriously undesirable certain, and imperative involving
7. discourtesy in the course of official merely execution of a specific duty
duties arising from fixed and designated
8. inefficiency and incompetence in the facts. A duty is ministerial when the
performance of official duties law exacting its discharge prescribes
9. conviction of a crime involving moral and defines the time, mode and
turpitude occasion of its performance with such
10. falsification of official documents certainty that nothing is left for
11. habitual drunkenness judgment or discretion.
12. gambling It is susceptible of delegation and can
13. refusal to perform official duty or be compelled by judicial action.
render overtime service 2. Discretionary – when it requires the
14. physical or mental incapacity due to exercise of reason and discretion in
immoral or vicious habits determining how or whether the act
15. willful refusal to pay just debts or shall be done or the course pursued.
willful failure to pay taxes due to the The officer is expected to discharge
government the duty directly and not through the
interviewing mind of another.
Preventive Suspension It cannot be delegated to another,
Two Kinds subject to some exceptions (power of
1. Preventive Suspension Pending Investigation the President to conclude treaties may
2. Preventive Suspension Pending Appeal be assigned to a treaty panel, which
The duration of preventive suspension is can negotiate the treaty on his behalf,
coextensive with the period prescribed for under his instructions and subject to
deciding administrative disciplinary cases. If his approval).
the case is decided before ninety (90) days
then the suspension will last less than ninety
5. OFFICIAL IMMUNITY only protects public
MODES OF TERMINATION OF OFFICIAL officials from tort liability for damages arising
RELATIONS from discretionary of their official duties.
Natural Causes
1. Expiration of the term or tenure of office
2. Reaching the age limit (retirement)
3. Death or permanent disability ELECTION LAW
QUALIFICATIONS
Elective Citizenship Age Literacy Voter Presidency
officials
Voters
Prohibited means of arising of funds (Sec. 97 Qualifications
Omnibus Election Code): Age: 18 years old and over.
1. Holding any of the following activities: Residence
a. dances
A. He/she should have resided in the
b. lotteries
Philippines for one year and
c. cockfights
B. Resided in the city/municipality wherein
d. games
he proposes to vote for at least 6 months
e. boxing bouts
immediately preceding the election
f. bingo
g. beauty contest
Residence Requirement
h. entertainments
i. cinematographic, theatrical, or other
performances
If the transfer of residence is due to any of the 2. Those who have expressly renounced their
following reasons, the person concerned will be Philippine citizenship and who have pledged
deemed NOT to have lost his original residence: allegiance to a foreign country;
A. Transfer solely because of occupation, 3. Those who have committed and are convicted
profession, employment in private or in a final judgment by a court or tribunal of an
public service offense punishable by imprisonment of not
B. Educational activities less than one year, including those who have
C. Work in military or naval reservations committed and been found guilty of Disloyalty
D. Service in the army, navy or air force, as defined under Article 137 of the Revised
national police force Penal Code, such disability not having been
E. Confinement/detention in government removed by plenary pardon or amnesty;
institutions in accordance with law Provided, however, That any person
disqualified to vote under this subsection shall
NOTE: Residence is equal to domicile. Hence, a automatically acquire the right to vote upon
person may be physically absent from his expiration of five (5) years after service of
residence for a short, or even long period of time, sentence; Provided, further, That the
due to work, studies, etc., but as long as he has Commission may take cognizance of final
the INTENT TO RETURN to his place of residence, judgments issued by foreign courts or
and corollary to this, NO INTENT TO SETTLE in the tribunals only on the basis of reciprocity and
place where he is physically present, he/she is still subject to the formalities and processes
a resident in his original domicile (see Imelda prescribed by the Rules of Court on execution
Marcos case). of judgments;
4. An immigrant or a permanent resident who is
recognized as such in the host country, unless
he/she executes, upon registration, an
affidavit prepared for the purpose by the
Commission declaring that he/she shall
resume actual physical permanent residence
REPUBLIC ACT NO. 9189 – THE OVERSEAS in the Philippines not later than three (3)
ABSENTEE years from approval of his/her registration
VOTING ACT OF 2003 under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in
another country. Failure to return shall be the
cause for the removal of the name of the
immigrant or permanent resident from the
National Registry of Absentee Voters and
his/her permanent disqualification to vote in
absentia.
The Overseas Absentee Voting Act of 2003, also 5. Any citizen of the Philippines abroad
known as ‘Absentee Voting Law’, is the law that previously declared insane or incompetent by
‘ensures equal opportunity to all qualified citizens competent authority in the Philippines or
of the Philippines abroad’ to exercise their right to abroad, as verified by the Philippine
vote (suffrage) in the election of President, Vice embassies, consulates or foreign service
President, Senators and Party-List establishments concerned, unless such
Representatives. competent authority subsequently certifies
that such person is no longer insane or
incompetent. (Section 5. R.A. 9189)
Who are qualified to vote under the Absentee
Voting Law? How shall registration be done?
All citizens of the Philippines abroad, who are not Registration as an overseas absentee voter shall
otherwise disqualified by law, at least eighteen be done in person. (Section 6, RA 9189)
(18) years of age on the day of elections, may
vote for president, vice-president, senators and
party-list representatives. (Sec. 4 R.A. 9189) What is the procedure of registration?
A. For Qualified citizens of the Philippines abroad
Who are disqualified from voting under the who failed to register under Republic Act. No.
Absentee Voting Law? 8189, otherwise known as the “The Voters
1. Those who have lost their Filipino citizenship Registration Act of 1996”.
in accordance with Philippine laws;
1. They may personally apply for registration documents submitted by the party
with the Election Registration Board of the objecting and those of the applicant
city or municipality where they were 7. A certificate of Registration as an overseas
domiciled immediately prior to their absentee voter shall be issued by the
departure from the Philippines, or with the Commission to all applicants whose
representatives of the Philippines, or with applications have been approved,
the representatives of the Commission at including those certified as registered
the Philippine embassies, consulates and voters. The Commission shall include the
other foreign service establishment that approved applications in the National
have jurisdiction over the locality where Registry of Absentee Voters.
they temporarily reside. 8. In the application has been approved, any
2. The embassies, consulates and other interested party may file a petition for
foreign service establishments shall exclusion not later than two hundred ten
transmit within (5) days from receipt the (210) days before the day of elections
accomplished registration forms to the with the proper municipal or metropolitan
Commission, after which the Commission trial court. The petition shall be decided
shall coordinate with the Election Officer within fifteen (15) days after its filling on
of the city or municipality of the the basis of the documents submitted in
applicant’s stated residence for connection therewith. Should the court fail
verification, hearing and annotation in the to render a decision within the prescribed
permanent list of voters. period, the ruling of the Election
3. Upon receipt of the application for Registration Board shall be considered
registration, the Election Official shall affirmed.
immediately set the application for 9. If the application has been disapproved,
hearing, the notice of which shall be the applicant or his authorized
posted in a conspicuous place in the representative shall, within a period of five
premises of the city or municipal building (5) days from receipt of the notice of
of the applicant’s stated residence for at disapproval, have the right to file a
least (1) week before the date of the petition for inclusion with the proper
hearing. The Election Officer shall municipal or metropolitan trial court. The
immediately furnish a copy of the petition shall be decided within five (5)
application to the designated days after its filling on the basis of
representatives of political parties and documents submitted in connection
other accredited groups. therewith.
4. If no verified objection to the application
is filed the Election Officer shall B. For Qualified citizens of the Philippines
immediately forward the application to the abroad, who have previously registered as
Election Registration Board, which shall voters pursuant to Republic Act No. 8189
decide on the application within one (1)
week from the date of hearing without They shall apply for certification as
waiting for the quarterly meeting of the absentee voters and for inclusion in the National
Board. The applicant shall be notified of Registry of Overseas Absentee Voters, with a
the approval or disapproval of his/her corresponding annotation in the Certified Voters’
application by registered mail. List. (Section 6 of RA 9189)
5. In the event that an objection to the
application is filed prior to or on the date
of hearing, the Election Officer shall notify How shall voting be done?
the applicant of said objection by 1. The overseas absentee voter shall personally
registered mail, enclosing therein copies accomplish his/her ballot at the embassy,
of affidavits or documents submitted in consulate or other foreign service
support of the objection filed with the establishment that has jurisdiction over the
right to file his counter-affidavit by country where he/she temporarily resides or
registered mail, clearly stating therein at any polling place designated and accredited
facts and defenses sworn before any by the Commission. (section 16, RA 9189)
officer in the host country authorized to 2. The overseas absentee voter may also vote
administer oaths by mail. (Section 17, RA 9189)
6. The applications shall be approved or
disapproved based on the merits of the
objection, counter-affidavit and
When may voting by mail be allowed? Can the canvass of the overseas absentee
For the May, 2004 elections, the Commission shall votes delay the proclamation of winners?
authorize voting by mail in not more than three No. The canvass of votes shall not cause the delay
(3) countries, subject to the approval of the of the proclamation of a winning candidate if the
Congressional Oversight Committee. Voting by outcome of the election will not be affected by the
mail may be allowed in countries that satisfy the results thereof. Notwithstanding the foregoing,
following conditions: the Commission is empowered to order the
1. Where the mailing system is fairly well- proclamation of winning candidates despite the
developed and secure to prevent the fact that the scheduled election has not taken
occasion of fraud; place in a particular country or countries, if the
2. Where there exist a technically established holding of elections therein has been rendered
identification system that would preclude impossible by events, factors and circumstances
multiple or proxy voting; and are beyond the control or influence of the
3. Where the system of reception and Commission. (Section 18, RA 9189)
custody of mailed ballots in the
embassies, consulates and other foreign
service establishments concerned are
adequate and well-secured.
RA 8189 – VOTER”S REGISTRATION ACT
Thereafter, voting by mail in any country shall OF 1996
be allowed only upon review and approval of the Q: Can there still be general registration
Joint Congressional Oversight Committee. of voters?
(Section 17.1, RA 9189) A: No more, because 8189 (7) provides for
such only for the May ’98 elections
How will the constituting and canvassing of
the votes be done?
The counting and canvassing of votes Q: What kind of registration system do we
shall be conducted on site in the country have?
where the votes were actually cast. The A: Continuing, Computerized and Permanent
opening of the specially-marked
envelopes containing the ballots and the Disqualifications
counting and canvassing of votes shall A. If sentenced by final judgment to suffer
be conducted within the premises of the imprisonment for not less than 1 year and
embassies, consulates and other foreign such disability was not removed by plenary
service establishments or in such other pardon or has not been granted amnesty.
places as may be designated by the However, any person disqualified to vote shall
Commission pursuant to the automatically reacquire the right to vote upon
implementing Rules and Regulations. expiration of 5 years after service of sentence.
The Commission shall ensure that the B. Any person who has been adjudged by final
start of counting in all polling places judgment by competent court or tribunal of
abroad shall be synchronized with the having committed any crime involving
start of counting in the Philippines. disloyalty to the duly constituted government
The Commission shall constitutes as such as rebellion or any crime against national
security:
many Special Boards of Election
1. UNLESS restored to his full civil and
inspectors as may be necessary to
political rights in accordance with law.
conduct and supervise the counting of
2. However, he shall regain his right to
votes.
vote automatically upon expiration of 5
Immediately upon the completion of the years after service of sentence
counting, the Special Boards of Election C. Insane or incompetent person as declared by
Inspectors shall transmit via facsimile competent authority.
and/or electronic mail the results to the
Commission in Manila and the
accredited major political parties.
(Section 18, RA 9189) Jurisdiction in Inclusion/Exclusion cases
A. The municipal and metropolitan trial courts
shall have original and exclusive jurisdiction
over all matters of inclusion and exclusion of
voters from the list in their respective bribery, forgery, impersonation, intimidation,
municipalities or cities. Petition filed at any force, any similar irregularity or which contains
time except 105 days before regular election data that are statistically improbable; Cannot be
or 75 days before special election done within 90 days before election
B. Decisions may be appealed to the RTC within
5 days from receipt of notice of decision.
C. RTC will decide the appeal within 10 days.
Decision is final and executory.
D. NOTE: Relate this to Article IX of the
Constitution which provides that the COMELEC
has no jurisdiction over questions involving Pre-Proclamation Controversies
the right to vote.
E. Exclusion is through sworn petition and not A. A pre-proclamation controversy refers to any
later than 100 days before regular election; question pertaining to or affecting the
65 days before special election proceedings of the board of canvassers which
may be raised by any candidate or by any
registered political party or coalition of
political parties before the board or directly
Grounds when the List of Voters will be with the COMELEC.
altered: B. It would also refer to any matter raised under
Deactivation/Reactivation Sections 233, 234, 235, and 236 of the
Exclusion/ Inclusion Omnibus Election Code in relation to the
preparation, transmission, receipt, custody,
Cancellation of Registration in case of and appreciation of the election returns.
Death (Board of canvassers has original jurisdiction
New voters while COMELEC has appellate jurisdiction)
Annulment of Book of Voters 1. When election returns are delayed, lost
Transfer of Residence or destroyed (Sec.233)
2. Material defects in the election returns
(Sec. 234)
3. When election returns appear to be
How is challenge to right to register tampered with or falsified. (Sec. 235)
effected? 4. Discrepancies in election returns (Sec.
Who – any voter, candidate, political party 236)
representatives
How – in writing, stating grounds, under oath, C. Those that can be filed with COMELEC directly
proof of notice of hearing are the ff:
Issue involves the illegal composition or
proceedings of the board of the
canvassers, as when a majority or all of
DEACTIVATION means removing the registration the members do not hold legal
records of persons from the precinct book of appointments or are in fact usurpers
voters and places the same, properly marked and Issue involves the correction of manifest
dated in indelible ink, in the inactive file after errors in the tabulation or tallying of the
entering the cause of deactivation. results during the canvassing
Appellate Jurisdiction
COMELEC has APPELLATE jurisdiction over all
When not allowed contests involving:
Pre-proclamation cases on matters relating to the A. Elective MUNICIPAL officials decided by
preparation, transmission, receipt, custody and trial courts of GENERAL jurisdiction
appreciation of the election returns or the B. Elective BARANGAY officials decided by
certificates of canvass NOT allowed in elections trial courts of LIMITED jurisdiction
for: (under RA 7166)
President
Vice-President
Senator Who can file a petition contesting the
Member of the House of Representatives election
Any candidate who has duly filed a certificate of
candidacy and has been voted for the same office
winning candidate and the defeated
candidate.
Purpose of an election contest 2. Quo warranto may be filed by an voter. An
The defeated candidate seeks to oust the election protest may be filed only by a
proclaimed winner and claims the seat. candidate who has duly filed a certificate
of candidacy to the same office and has
been voted for.
Final COMELEC Decisions 3. Grounds for quo warranto are disloyalty or
Provision that decisions, final orders, rulings of ineligibility of the winning candidate.
the Commission of Election contests involving Grounds for election contest are election
municipal and barangay offices are final, fraud and irregularities in the counting
executory and not appealable: and casting of voters or in the preparation
A. This only applies to question of FACT, of the returns.
(Flores v. COMELEC, 184 SCRA 484) 4. In quo warranto, the respondent may be
B. It does NOT preclude a special civil action unseated, but the petitioner may not be
of certiorari. (Galido v. COMELEC, Jan. 18, installed into the office vacated. In
1991) election contest, the protestee may be
unseated and the protestant may be
installed into the office vacated.
Distinctions between Pre-Proclamation
Controversy and Election Contest
1) Dividing line: Proclamation of a candidate Election Offenses (Selected Offenses)
2) Jurisdiction
Vote buying and vote-selling
A. Pre-proclamation controversy A. Covered acts
1. The jurisdiction of COMELEC is 1. Give, offer or promise money or
administrative /quasi-judicial anything of value
2. It is governed by the requirements of 2. Making or offer to make any
administrative due process expenditure, directly or indirectly, or
B. Election contest cause expenditure to be made to any
1. The jurisdiction of COMELEC is judicial person, association, corporation,
2. It is governed by the requirement of entity or community
judicial process 3. Soliciting or receiving, directly or
3. In some cases, even if the case (involving indirectly, any expenditure or promise
municipal officials) began with the of any office or employment, public or
COMELEC before proclamation is made private
before the controversy is resolved, it B. Purpose of acts
ceases to be a pre-proclamation 1. To induce anyone or the public in
controversy is resolved, it ceases to be a general to vote for or against any
pre-proclamation controversy and candidate or withhold his vote in the
becomes an election contest cognizable by election; or
the RTC. 2. To vote for or against any aspirant for
4. However, in some cases, the SC has the nomination or choice of a
recognized the jurisdiction of COMELEC candidate in a convention or similar
over municipal cases even after selection
proclamation. Relate to the provision in C. Under RA 6646 (Prosecution of vote-
RA 7166 allowing pre-proclamation buying/selling)
controversy proceedings to continue even 1. Presentation of a complaint supported
after a proclamation has been made. by affidavits of complaining witnesses
attesting to the offer or promise by or
the voters acceptance of money or
Distinctions between Pre-Proclamation other consideration from the relatives,
Controversy and Quo Warranto leaders or sympathizers of a candidate
1. Quo warranto is not, strictly speaking, a is sufficient basis for an investigation
contest. It is a proceeding to unseat an by the COMELEC, directly or through
ineligible person from office. An election its duly authorized legal officers.
protest more than seeks to oust the 2. Disputable presumption of conspiracy:
winner. It is strictly a contest between the Proof that at least one voter in
different precincts representing at
least 20% of the total precincts I any 2. Creating or filling any new position
municipality, city or province has been 3. Promoting/giving an increase in salary,
offered, promised or given money, remuneration or privilege to any government
valuable consideration or other official or employee.
expenditure by a candidate relatives, C. Period when acts are prohibited
leaders and/or sympathizers for the 1. 45 days before a regular election
purpose of promoting the election of 2. 30 days before a special election
such candidate. D. Exceptions
3. Disputable presumption of 1. Upon prior authority of COMELEC if it
involvement is satisfied that the position to be
Proof affects at least 20% of the filled is essential to the proper
precincts of the municipality, city or functioning of the office/agency
province to which the public office concerned AND that the position is not
aspired for by the favored candidate filled in a manner that may influence
relate. This will constitute a disputable the election
presumption of the involvement of 2. In case of urgent need, a new
such candidate and of his principal employee may be appointed. Notice of
campaign managers in each of the appointment should be given to
municipalities concerned in the COMELEC within 3 days from
conspiracy appointment.
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
L. INTERNATIONAL
ENVIRONMENTAL LAW
CBDS