Libertas et Iusticia

Nationalism • Egalitarianism • Scholasticism

2008 Précis in Political & Public International Law

(A Pre-Week Material)

Contents

Consitutional Law
Part I ……………….. 2
Administrative Law &
Law on Public Officers
Part II ……………….. 5
Laws on Suffrage
Part III ……………….. 7
Local Government Code &
Public Corporations
Part IV ……………….. 10

Public International Law

Part V ……………….. 12

(This material is for Personal Use only)

2008 Pre-Week in Political & Public Int’l. Law
PART I.
Constitutional Law
REQUISITES OF TAXPAYER’S SUIT
a. public funds are disbursed by a political
subdivision or instrumentality; and
b. a law is violated or some irregularity is
committed, and that the petitioner is directly
affected by the alleged ultra vires act
Q: How does the 1987 Constitution deal with
one’s exercise of religion?
Our Constitution adheres to the benevolent
neutrality approach that gives room for
accommodation of religious exercises as required
by the Free Exercise Clause. Thus, in arguing that
respondent should be held administratively liable
as the arrangement she had was “illegal per se
because, by universally recognized standards, it is
inherently or by its very nature bad, improper,
immoral and contrary to good conscience,” the
Solicitor General failed to appreciate that
benevolent neutrality could allow for
accommodation of morality based on religion,
provided it does not offend compelling state
interests. (Estrada v. Escritor, A.M. No. P-02-1651,
22 June 2006, Resolution, en banc)
Q: Is a bank’s right to privacy and right against
self-incrimination violated when the bank is
called by a Senate Committee to appear before
it?
NO! Employing the rational basis relationship test
in the 1968 case of Morfe v. Mutuc, the Court also
found that petitioners’ right to privacy has not
been violated as the requirement to disclose
information before the Senate Committee was for
a valid and compelling state purpose, i.e., to
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ensure that government agencies involved in
regulating bank transactions adequately protect
the public who invest in foreign securities.
There is no violation of its right against
self-incrimination since they do not stand as
accused in a criminal case nor are they subjected
by Senate Committee to any penalty by reason of
their testimonies. Hence they cannot altogether
decline appearing before the body, although they
may invoke the privilege when a question calling
for an incriminating answer is propounded.
(Standard Chartered Bank v. Senate Committee on
Banks, Dinancial Institutions, and Currencies, GR
No. 167173, December 27, 2007)
Q: The bus of M crashed into the radio room of
Philippine National Construction Company
(PNCC). The incident was initially investigated by
PNCC and thereafter the bus was towed by to
PNCC’s compound where it was stored. Despite
requests of M for its release, PNCC did not
release the said bus. What constitutional right
was violated by PNCC, if any?
The constitutional right against unreasonable
seizure. The seizure and impounding of
petitioner's bus, were unquestionably violative of
"the right to be let alone" by the authorities as
guaranteed by the Constitution. (Superlines
Transportation Co. v. PNCC, G.R. No. 169596, 28
March 2007)
Q: NAPOCOR seeks to build a transmission line
project that traverses the private property. Is
the owner of the private property entitled to be
compensated for the monetary equivalent of the
land?YES. The easement is intended to
perpetually or indefinitely deprive the owner of
his proprietary rights through the imposition of
conditions that affect the ordinary use, free
enjoyment and disposal of the property or
through restrictions and limitations that are
inconsistent with the exercise of the attributes of
ownership, or when the introduction of structures
or objects which, by their nature, create or
increase the probability of injury, death upon or
destruction of life and property found on the land
is necessary, then the owner should be
compensated for the monetary equivalent of the
land. (NAPOCOR v. Tiangco, G.R. No. 170846, 06
February 2007)
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Q: An accused’s right to be informed was
violated when he was arraigned only after the
case was submitted for decision. TRUE or FALSE.
FALSE. Appellant's belated arraignment did not
prejudice him. This procedural defect was cured
when his counsel participated in the trial without
raising any objection that his client had yet to be
arraigned. In fact, his counsel even cross-
examined the prosecution witnesses. His
counsel's active participation in the hearings is a
clear indication that he was fully aware of the
charges against him; otherwise, his counsel would
have objected and informed the court of this
blunder. Moreover, no protest was made when
appellant was subsequently arraigned. The parties
did not question the procedure undertaken by the
trial court. It is only now, after being convicted
and sentenced to two death sentences, that
appellant cries that his constitutional right has
been violated. It is already too late to raise this
procedural defect. This Court will not allow it.
(People v. Pangilinan, G.R. No. 171020, 14 March
2007)
SAFEGUARDS THAT GUARANTEE INDEPENDENCE
OF CONSTITUTIONAL COMMISSIONS
1. Constitutionally created; cannot be abolished
by statute;
2. Conferred with powers and functions which
cannot be altered by statute;
3. Chairmen and members removable only by
impeachment;
4. Chairmen and members may not be
reappointed or appointed in acting capacity;
5. Fiscal autonomy; and
6. Commission may promulgate its own
procedural rules, provided they do not
diminish, increase or modify substantive
rights.
GROUNDS FOR IMPEACHMENT
1. Culpable violation of the Constitution;
2. Treason;
3. Bribery;
4. Graft and Corruption;
5. Other high crimes; and
6. Betrayal of public trust.
GOALS OF THE NATIONAL ECONOMY
1. More equitable distribution of wealth;
2. Increased wealth for the benefit of the
people; and
3. Increased productivity.
TEMPORARY TAKE OVER OF BUSINESS
AFFECTED WITH PUBLIC INTEREST
They State may:
1. In times of national emergency,
2. when the public interest so requires,
3. during the emergency and under reasonable
terms prescribed by it, and
4. temporarily take over or direct the operation
of any privately owned public utility or
business affected with public interest.
Q: Elma was appointed as PCGG Chairman and
as Chief Presidential Legal Counsel. Are the
appointments in violation of Section 13, Article
VII of the Constitution?
NO. The prohibition in Section 13, Article VII of
the 1987 Constitution does not apply to Elma
since neither the PCGG Chairman nor the CPLC is
a Cabinet secretary, undersecretary, or assistant
secretary. Even assuming, arguendo, that Section
13, Article VII is applicable to Elma, he still could
not be appointed concurrently to the offices of
the PCGG Chairman and CPLC because neither
office was occupied by him in an ex-officio
capacity, and the primary functions of one office
do not require an appointment to the other post.
Moreover, even if the appointments in question
are not covered by Section 13, Article VII of the
1987 Constitution, said appointments are still
prohibited under Section 7, Article IX-B, which
covers all appointive and elective officials, due to
the incompatibility between the primary
functions of the offices of the PCGG Chairman and
the CPLC. (Public Interest Center, Inc. v. Elma, G.R.
No. 138695, 30 June 2006)
Q: Is there a law that deals with dual allegiance?
NONE. To begin with, Section 5, Article IV of the
Constitution is a declaration of a policy and it is
not a self-executing provision. The legislature still
has to enact the law on dual allegiance. In
Sections 2 and 3 of Rep. Act No. 9225, the framers
were not concerned with dual citizenship per se,
but with the status of naturalized citizens who
2008 Pre-Week in Political & Public Int’l. Law
maintain their allegiance to their countries of
origin even after their naturalization. Congress
was given a mandate to draft a law that would set
specific parameters of what really constitutes
dual allegiance. Until this is done, it would be
premature for the judicial department, including
this Court, to rule on issues pertaining to dual
allegiance. (AASJS v. Datumanong, G.R. No.
160869, 11 May 2007, en banc)
Derivative Citizenship. – The unmarried child,
whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who
reacquire Philippine citizenship upon effectivity of
this Act shall be deemed citizens of the
Philippines. (Section 4, R.A. No. 9225, Citizenship
Retention & Reacquisition Act of 2003)
Q: What is Naturalization?
Naturalization signifies the act of formally
adopting a foreigner into the political body of a
nation by clothing him or her with the privileges
of a citizen. There are three ways by which an
alien may become a citizen by naturalization: (a)
administrative naturalization per R.A. No. 9139;
(b) judicial naturalization per C.A. No. 473; and (c)
legislative naturalization in the form of a law
enacted by Congress bestowing Philippine
citizenship to an alien. (So v. Republic, G.R. No.
170603, 29 January 2007)
Q: Give the formula that should be strictly
applied in determining the number of additional
seats a winning party-list is entitled to in order
to promote the “proportional representation”
intended by R.A. No. 7941.
The Veterans Formula should be applied.
The Supreme Court held that the COMELEC
should not have used the simplified formula in
Ang Bagong Bayani as it “is materially different”
Libertas Et Iusticia 4
from the Veterans formula, which uses a different
multiplier. While the simplified formula in the
former uses “allotted seats for the first party,” the
judicially recognized formula utilizes the “number
of additional seats allocated to the First Party” as
its multiplier, the application of which would
result in a “material, substantial, and significant”
disparity. Likewise, the Court said that its pro hac
vice ruling in Ang Bagong Bayani, which granted
one additional seat to the party-list Buhay
Hayaang Yumabong (BUHAY), cannot be set as a
precedent to future cases as the simplified
formula it used has since been abandoned. (CIBAC
v. COMELEC, G.R. No. 172103, 13 April 2007, en
banc)
Q: May the Congress validly enact a law granting
the ARMM Regional Assembly the power to
create provinces and cities?
NO. We rule that Section 19, Article VI of RA 9054,
insofar as it grants to the ARMM Regional
Assembly the power to create provinces and
cities, is void for being contrary to Section 5 of
Article VI and Section 20 of Article X of the
Constitution, as well as Section 3 of the Ordinance
appended to the Constitution. Only Congress can
create provinces and cities because the creation
of provinces and cities necessarily includes the
creation of legislative districts, a power only
Congress can exercise under Section 5, Article VI
of the Constitution and Section 3 of the
Ordinance appended to the Constitution. The
ARMM Regional Assembly cannot create a
province without a legislative district because the
Constitution mandates that every province shall
have a legislative district. Moreover, the ARMM
Regional Assembly cannot enact a law creating a
national office like the office of a district
representative of Congress because the legislative
powers of the ARMM Regional Assembly operate
only within its territorial jurisdiction as provided
in Section 20, Article X of the Constitution. Thus,
we rule that MMA Act 201, enacted by the ARMM
Regional Assembly and creating the Province of
Shariff Kabunsuan, is void. (Sema v. COMELEC, 16
July 2008, G.R. No. 177597)
UNIVERSAL CHARGE UNDER EPIRA
In exacting the assailed Universal Charge through
Sec. 34 of the EPIRA, the State's police power,
5 www.libertas.ph
particularly its regulatory dimension, is invoked.
The assailed Universal Charge is not a tax, but an
exaction in the exercise of the State's police
power. Public welfare is surely
promoted. (Gerochi v. DOE, G.R. No. 159796, 17
July 2007)
PART II
Administrative Law and Law on Public Officers
ADMINISTRATIVE DUE PROCESS
1) right to a hearing;
2) tribunal must consider evidence presented;
3) decision must have something to support
itself;
4) evidence must be substantial;
5) decision must be based on evidence adduced
at hearing or at least contained in the record
and disclosed to parties;
6) board of judges must act on its independent
consideration of facts and law of the case,
and not simply accept view of subordinate in
arriving at a decision; and
7) decision must be rendered in such a manner
that parties to controversy can know various
issues involved and reason for decision
rendered.
Q: May the Energy Regulatory Board order
MERALCO to reconnect the electric service of the
latter’s consumer pending the determination of
the propriety of the disconnection? YES! The
power of control and supervision over public
utilities would otherwise be a meaningless
delegation were the ERB is precluded from
requiring a public utility to reconnect pending the
determination of propriety of the disconnection.
(MERALCO v. ERB, G.R. No. 145399, 17 March
2006)
Q: Where should one appeal the decision of the
Secretary of Justice?
To the Office of the President not the CA, under
the established principle of exhaustion of
administrative remedies. Section 1, Rule 43, ROC
includes the Office of the President in the
agencies named therein, thereby accentuating
the fact that appeals from rulings of department
heads must first be taken to and resolved by that
office before any appellate recourse may be
resorted to. (Orosa v. Roa, G.R. No. 140423, 14
July 2006)
Q: Are administrative issuances required to be
published or filed with the Office of the National
Administrative Register (ONAR) of the University
of the Philippines Law Center before it may be
enforced?
YES. The Administrative Code of 1987, particularly
Section 3 thereof, expressly requires each agency
to file with the ONAR three certified copies of
every rule adopted by it. Administrative issuances
which are not published or filed with the ONAR
are ineffective and may not be enforced. (GMA
Network, Inc. v. MTRCB, G.R. No. 148579, 05
February 2007)
REQUISITES OF A DE FACTO OFFICERSHIP
1) De jure office;
2) Color of right or general acquiescence by the
public; and
3) Actual physical possession of the office in
good faith.
Q: Is the Special Prosecutor a mere subordinate
of the Ombudsman?
YES! As such, he can investigate and prosecute
cases only upon the Ombudsman’s authority or
order. He is under the supervision and control of
the Ombudsman. Control means “the power of an
officer to alter or modify or nullify or set aside
what a subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for that of the latter.”
Clearly, in disapproving the recommendation of
the Office of the Special Prosecutor to dismiss all
the charges against petitioner and his co-accused,
respondent Ombudsman did not act with grave
abuse of discretion. (Calingin v. Desierto, G.R. No.
145743-89, 10 August 2007)
2008 Pre-Week in Political & Public Int’l. Law
Q: The issuance of a wage order by the Regional
Tripartite Wages & Productivity Board involves
the performance of a quasi-judicial function.
TRUE or FALSE? Why?
FALSE. In the issuance of the wage order, RTWPB
did not act in any judicial, quasi-judicial capacity,
or ministerial capacity. It was in the nature of
subordinate legislation, promulgated by it in the
exercise of delegated power under R.A. No. 6727.
It was issued in the exercise of quasi-legislative
power. Quasi-legislative or rule-making power is
exercised by administrative agencies through the
promulgation of rules and regulations within the
confines of the granting statute and the doctrine
of non-delegation of certain powers flowing from
the separation of the great branches of the
government. (Metrobank v. NWPC, G.R. No.
144322, 06 February 2007)
EXCEPTIONS TO THE DOCTRINE OF EXHAUSTION
OF ADMINISTRATIVE REMEDIES
1. Doctrine of qualified political agency except
where law expressly provides exhaustion;
2. Administrative remedy is fruitless;
3. Where there is estoppel on part of
administrative agency;
4. Issue involved is purely legal;
5. Administrative action is patently illegal,
amounting to lack or excess of jurisdiction;
6. Where there is unreasonable delay or official
inaction;
7. Where there is irreparable injury or threat
thereof, unless judicial recourse is
immediately made;
8. In land case, subject matter is private land;
9. Where law does not make exhaustion a
Condition precedent to judicial recourse;
10. Where observance of the doctrine will result
in nullification of claim;
11. Where there are special reasons or
circumstances demanding immediate court
action; and
12. When due process of law is clearly violated.
Q: A respondent in an administrative case is
entitled to be informed of the preliminary
findings and recommendations. TRUE or FALSE?
FALSE. A respondent in an administrative case is
not entitled to be informed of the preliminary
findings and recommendations; he is entitled only
Libertas Et Iusticia 6
to a reasonable opportunity to be heard, and to
the administrative decision based on substantial
evidence. Note that it is the administrative order,
not the preliminary report, which is the basis of
any further remedies the losing party in an
administrative case may pursue.
One’s right to administrative due process only
requires an opportunity to be heard and to a
decision based on substantial evidence. No more,
no less. (Viva Footwear Mfg., Corp. v. SEC, G.R.
No. 163235, 27 April 2007)
Q: May the SEC’s approval of the Rehabilitation
Plan impair BPI’s right to contract?
NO! The non-impairment clause is a limit on the
exercise of legislative power and not of judicial or
quasi-judicial power. The SEC, through the
hearing panel that heard the petition for approval
of the Rehabilitation Plan, was acting as a quasi-
judicial body and thus, its order approving the
plan cannot constitute an impairment of the right
and the freedom to contract. (BPI v. SEC, G.R. No.
164641, 20 December 2007, en banc)
Q: What the so-called rule of administrative res
judicata? It is a rule which forbids the reopening
of a matter once judicially determined by
competent authority applies as well to the judicial
and quasi-judicial facts of public, executive or
administrative officers and boards acting within
their jurisdiction as to the judgments of courts
having general judicial powers. It has been
declared that whenever final adjudication of
persons invested with power to decide on the
property and rights of the citizen is examinable by
the Supreme Court, upon a writ of error or a
certiorari, such final adjudication may be pleaded
as res judicata.
To be sure, early jurisprudence were
already mindful that the doctrine of res judicata
cannot be said to apply exclusively to decisions
rendered by what are usually understood as
courts without unreasonably circumscribing the
scope thereof and that the more equitable
attitude is to allow extension of the defense to
decisions of bodies upon whom judicial powers
have been conferred. (NHA v. Almeida, G.R. No.
162784, 22 June 2007)
7 www.libertas.ph
ON REPLACEMENT OF NON-ELIGIBLE BY
ANOTHER NON-ELIGIBLE. Where a non-eligible
holds a temporary appointment, his replacement
by another non-eligible is not prohibited. (CSC v.
Darangina, G.R. No. 167472, 31 January 2007)
Q: Does the issue of whether or not a contractor
with an expired license at the time of the
execution of its contract with the DPWH is
entitled to be paid for completed projects require
exhaustion of administrative remedy?
NO! It is a pure question of law. It does not
involve an examination of the probative value of
the evidence presented by the parties. There is a
question of law when the doubt or difference
arises as to what the law is on a certain state of
facts, and not as to the truth or the falsehood of
alleged facts. Said question at best could be
resolved only tentatively by the administrative
authorities. The final decision on the matter rests
not with them but with the courts of justice.
Exhaustion of administrative remedies does not
apply, because nothing of an administrative
nature is to be or can be done. The issue does not
require technical knowledge and experience but
one that would involve the interpretation and
application of law. (Republic v. Lacap, 02 March
2007, G.R. No. 158253)
OMBUDSMAN’S POWER TO APPOINT OFFICIALS
AND EMPLOYEES OF THE OFFICE OF THE
OMBUDSMAN VS. CSC’S STANDARDS OF
EMPLOYMENT. The CSC cannot substitute its
own standards for those of the department or
agency, specially in a case like this in which an
independent constitutional body is involved.
Under the Constitution, the Office of the
Ombudsman is an independent body. As a
guaranty of this independence, the Ombudsman
has the power to appoint all officials and
employees of the Office of the Ombudsman,
except his deputies. This power necessarily
includes the power of setting, prescribing and
administering the standards for the officials and
personnel of the Office. (Ombudsman v. CSC, 30
July 2007, G.R. No. 162215)
Q: Can the CSC supplant its own discretion in the
appointment of an employee?
NO. The power of appointment involves
considerations of wisdom which only the
appointing authority can decide. The CSC is not
authorized to curtail or diminish the exercise of
discretion of the appointing power on the nature
or kind of appointment to be extended. The CSC,
by ignoring or annulling, or supplanting with its
own, Director Opinion’s appointment of
petitioner on a coterminous basis, has acted
beyond its authority. (Jaucian v. Wycoco, G.R. No.
164710, 28 September 2007, en banc)
PART III
Laws on Suffrage
Failure of Elections – three (3) instances where a
failure of elections may be declared:
a. The election in any polling place has not been
held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other
analogous causes;
b. The election in any polling place had been
suspended before the hour fixed by law for
the closing of the voting on account of force
majeure, violence, terrorism, fraud, or other
analogous causes; and
c. After the voting and during the preparation
and transmission of the election returns or in
the custody or canvass thereof such election
results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other
analogous causes.
STATE POLICY ON THE
AUTOMATED ARMM ELECTIONS.
It is the policy of the State to ensure free, orderly,
honest, fair and credible elections, and ensure the
secrecy and sanctity of the ballot in order that the
citizenry shall be assured that the results of
elections, plebiscites, referenda and other
electoral exercises are truly reflective of their will.
(Sec. 1, R.A. No. 8046) This is the underlying policy
2008 Pre-Week in Political & Public Int’l. Law
in authorizing the COMELEC to conduct a
nationwide demonstration of a computerized
election system and pilot-test the same in the
Autonomous Region in Muslim Mindanao
elections.
Q: When is a petition for inclusion or exclusion of
voters in the Voters’ List prohibited?
Section 34 of R.A. No. 8189 proscribes the filing of
a petition for inclusion of voters in the permanent
list of voters one hundred five (105) days prior to
a regular election or seventy-five (75) days prior
to a special election. Section 35 of the same Act
prohibits the filing of a petition for exclusion of
voters from the permanent list at anytime except
one hundred (100) days prior to a regular
election or sixty-five (65) days before a special
election.
Q: When may the COMELEC annul the Book of
Voters?
The Commission shall, upon verified petition of
any voter of election officer of duly registered
political party, and after notice and hearing, annul
any book of voters that is not prepared in
accordance with the provisions of this Act or was
prepared through fraud; bribery, forgery,
impersonation, intimidation, force or any similar
irregularity, or which contains data that are
statistically improbable. No order, ruling or
decision annulling a book of voters shall be
executed within (90) days before an election.
Q: Is an alleged misrepresentation of profession
or occupation on a certificate of candidacy of a
candidate for punong barangay punishable as an
election offense under Section 262 in relation to
Section 74 of B.P. 881?
NO. Profession or occupation not being a
qualification for elective office, misrepresentation
of such does not constitute a material
misrepresentation. Certainly, in a situation where
a candidate misrepresents his or her profession or
occupation in the certificate of candidacy, the
candidate may not be disqualified from running
for office under Section 78 as his or her certificate
of candidacy cannot be denied due course or
canceled on such ground. (Lluz v. COMELEC, G.R.
No. 172840, 07 June 2007)
Libertas Et Iusticia 8
Q: Sinando had been elected for three
consecutive terms as municipal councilor in 1998-
2001, 2001-2004, and 2004-2007. On his second
term, however, he succeeded as vice mayor of
due to the retirement of Vice Mayor Petronilo. Is
Sinando still qualified to run as municipal
councilor in the 2007 elections? YES. Sinando’s
assumption of office as vice-mayor was an
involuntary severance from his office as municipal
councilor, resulting in an interruption in the
service of his 2001-2004 term. It cannot be
deemed to have been by reason of voluntary
renunciation because the assumption of office as
vice-mayor was by operation of law. Hence, he is
qualified to run as municipal councilor in the 2007
elections. (Montebon v. COMELEC, 08 April 2008,
G.R. No. 180444, en banc)
Q: Can the COMELEC be compelled to disclose the
names of party-list nominees? YES. The people
has a right of to information on matters of public
concern. Likewise, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.
It has been repeatedly said in various
contexts that the people have the right to elect
their representatives on the basis of an informed
judgment. Hence the need for voters to be
informed about matters that have a bearing on
their choice. The ideal cannot be achieved in a
system of blind voting. Besides, there is no
national security or like concerns is involved in
the disclosure of the names of the nominees of
the party-list groups in question.
The prohibition imposed on the COMELEC
under Section 7 of R.A. No. 7941 (Party-list
System Act) is limited in scope and duration as it
extends only to the certified list which the same
provision requires to be posted in the polling
places on election day. It further said that to
stretch the coverage of the prohibition to the
absolute is to read into the law something that is
not intended. (BA-RA 7941 v. Comelec, GR No.
177271; Rosales v. Comelec, GR No. 177314, 04
May 2007, en banc)
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TYPES OF ELECTORAL PROCESSES
(http://www.comelec.gov.ph/faqs/faq_gen.html)
1. Regular elections are those held regularly
over a period of time as mandated by the
Constitution:
a. National Elections
b. Local Elections
c. Barangay Elections
d. ARMM Elections, for Regional Governor,
Regional Vice-Governor, and Regional
Assemblymen for the Autonomous
Region in Muslim Mindanao (ARMM),
every 3 years; and
e. Sangguniang Kabataan (SK) Elections
2. Special elections
a. Plebiscite is the name given to a vote of the
people expressing their choice for or against a
proposed law or enactment submitted to
them. In the Philippines, the term is applied
to an election at which any proposed
amendment to, or revision of, the
Constitution is submitted to the people for
their ratification;
b. A referendum is the submission of a law
passed by the national or local legislative
body to the voting citizens for their
ratification or rejection. Power of referendum
is the right reserved to the people to adopt or
reject any act or measure which has been
passed by a legislative body, which would
become a law without action on the part of
the electors;
c. An initiative is the process whereby the
people directly propose and enact laws.
Amendments to the Constitution may likewise
be directly proposed by the people through
initiative; and
d. Recall is a method by which a public officer
may be removed from office during his tenure
or before the expiration of his term by a vote
of the people after registration of a petition
signed by a required percentage of the
qualified voters.
Q: May the Board of Canvassers go beyond what
appears on the face of the election return?
It is a well-established rule in pre-proclamation
cases that the Board of Canvassers is without
jurisdiction to go beyond what appears on the
face of the election return. The rationale is that a
full reception of evidence aliunde and the
meticulous examination of voluminous election
documents would run counter to the summary
nature of a pre-proclamation controversy.
However, this rule is not without any exception.
While the summary nature of pre-
proclamation controversies is intended to ensure
that the canvass and proclamation be delayed as
little as possible so as not to create a vacuum in
elective positions, the Board of Canvassers cannot
close its eyes to patently dubious entries that
would put a reasonable person on notice that
something is wrong or irregular.
The public policy that frowns
against “grab-the-proclamation-prolong-the
protest” attempts has to be balanced against the
clear and present dangers created by a lengthy
period of non-proclamation of winners, a period
commonly fraught with tension and danger for
the public at large. (Ewoc v. COMELEC, 04 April
2007, G.R. No. 171882, en banc)
Q: Morales was elected mayor for three
consecutive terms. On his second term, an
election protest was decided against him thereby
declaring his proclamation as mayor void.
However, the said protest was decided after he
has already served his second term in office.
Morales won for the fourth consecutive term
maintaining that he served his second term
(1998 to 2001) only as a “caretaker of the office”
or as a “de facto officer.”
Section 8, Article X of the Constitution is violated
and its purpose defeated when an official serves
in the same position for three consecutive terms.
Whether as “caretaker” or “de facto” officer, he
exercises the powers and enjoys the prerequisites
of the office which enables him “to stay on
indefinitely”. Morales should be promptly ousted
from the position of mayor. (Rivera v. COMELEC,
G.R. No. 167591, 09 May 2007)
Q: Which among the following may be a ground
to annul elections based on fraud?
a) transfer of venue of the canvass without
previous notice to candidates;
b) proclamation of candidate without canvassing
the results of a “farcical election”;
c) erasures in the certificate of canvass;
2008 Pre-Week in Political & Public Int’l. Law
d) lack of initials by the Provincial Board of
Canvassers;
e) use of different inks and handwritings;
f) the act of the Provincial Board of Canvassers
in simply noting objections to the canvass of
the returns; or
g) None of the above.
Answer: (g) The above are not grounds that would
warrant the annulment of the elections. To
warrant a declaration of failure of election on the
ground of fraud, the fraud must prevent or
suspend the holding of an election, or mar fatally
the preparation, transmission, custody and
canvass of the election returns. The conditions
for the declaration of failure of election are
stringent. Otherwise, elections will never end for
losers will always cry fraud and terrorism.
The allegations of massive substitution of
voters, multiple voting, and other electoral
anomalies should be resolved in a proper election
protest in the absence of any of three instances
justifying a declaration of failure of election. In an
election protest, the election is not set aside, and
there is only a revision or recount of the ballots
cast to determine the real winner. (Mutilan v.
COMELEC, 02 April 2007, G.R. No. 171248)
Q: May dual citizens register and vote as
absentee voters?
YES! Those who retain or re-acquire Philippine
citizenship under Republic Act No. 9225, the
Citizenship Retention and Re-Acquisition Act of
2003, may exercise the right to vote under the
system of absentee voting in Republic Act No.
9189, the Overseas Absentee Voting Act of 2003.”
In effect, they are likewise exempt from the
residency requirements prescribed under Section
1, Article V of the Constitution.
There is no provision in the dual
citizenship law, RA 9225, requiring ‘duals’ to
actually establish residence and physically stay in
the Philippines first before they can exercise their
right to vote. On the contrary, RA 9225, in implicit
acknowledgment that ‘duals’ are most likely non-
residents, grants under its Section 5(1) the same
right of suffrage as that granted an absentee
voter under RA 9189. It cannot be
overemphasized that RA 9189 aims, in essence, to
enfranchise as much as possible all overseas
Filipinos who, save for the residency
Libertas Et Iusticia 10
requirements exacted of an ordinary voter under
ordinary conditions, are qualified to vote.”
(Nicolas-Lewis, et al. v. COMELEC, 04 August 2006,
GR. 162759, en banc)
Q: Filipinos who are immigrants and permanent
residents abroad are disqualified to vote under
the Overseas Absentee Voting Act of 2003 or R.A.
No. 9189. TRUE or FALSE? Why?
FALSE. An Filipino immigrant or permanent
resident abroad may be allowed to register as
voter and vote for as long as he executes an
affidavit to show that he has not abandoned his
domicile. This is a promise to resume actual
physical permanent residence in the Philippines
not later than three (3) years from approval of his
registration. Likewise he must declare therein
that he has not applied for citizenship in another
country. The effect of his failure to return shall
cause the removal of his name from the National
Registry of Absentee Voters and his permanent
disqualification to vote in absentia. (Makalintal v.
COMELEC, G.R. No. 157013, 10 July 2003, en banc)
PART IV
Local Government Code & Public Corporations
Decentralization of Power – this involves the
abdication of political power in favor of LGUs.
Decentralization of Administration – the central
government delegates administrative powers to
political subdivisions in order to broaden base of
government power and in process make LGUs
more responsive and accountable and ensure
their fullest development as self-reliant
communities and make them effective partners in
the pursuit of national development and social
progress.
Devolution – an act by which national
government confers power and authority upon
11 www.libertas.ph
various LGUs to perform specific functions and
responsibilities.
REQUISITES OF VALID ORDINANCE
b. must not contravene the Constitution and any
statute;
c. must not be unfair or oppressive;
d. must not be partial or discriminatory;
e. must not prohibit, but may regulate trade;
f. must not be unreasonable; and
g. must be general in application and consistent
with public policy.
REQUISITES OF VALID MUNICIPAL CONTRACTS
a. LGU has express, implied, or inherent power
to enter into a particular contract;
b. Entered into by proper department, board,
committee, or agent;
c. Must comply with substantive requirements;
d. Must comply with formal requirements; and
e. In case entered into by local chief executive
on behalf of LGU, prior authorization by
Sanggunian concerned is needed
Q: Is a corporation which developed a
subdivision liable for its failure to address the
silting problem of the a river located nearby?
NO! Article 502 of the Civil Code provides that
rivers and their natural bed are of public
dominion. As the river is a public property, hence,
it is the government which should address the
problem. (Filinvest Land, Inc. v. Flood-Affected
Homeowners of Meritville Alliance, G.R. No.
165955, 10 August 2007)
Q: Is the MMDA the agency to shoulder the
responsibility for the flooding?
NO! MMDA is a “development authority.” In
other words, the MMDA is “an agency created for
the purpose of laying down policies and
coordinating with the various national
government agencies, people’s organizations,
non-governmental organizations, and the private
sector for the efficient and expeditious delivery of
basic services” in the Metropolitan Manila area.
The MMDA cannot be held responsible as its
services only involve laying down policies and
coordination with other agencies relative to its
primary functions.
Instead, it is the City of Las Piñas which
has the duty to control the flood therein as
provided for in Sec. 17 of the LGC. (Ibid.)
Q: E.O. No. 179, s. 2003 was issued by PGMA
designating the MMDA to implement a program
to decongest traffic in the metro by eliminating
bus terminals located along major Metro Manila
thoroughfares. Is the issuance valid?
NO! The MMDA cannot order the closure of
respondents' terminals not only because no
authority to implement the Project has been
granted nor legislative or police power been
delegated to it, but also because the elimination
of the terminals does not satisfy the standards of
a valid police power measure.
Finally, an order for the closure of
respondents' terminals is not in line with the
provisions of the Public Service Act.
The establishment, as well as the
maintenance of vehicle parking areas or
passenger terminals, is generally considered a
necessary service to be provided by provincial bus
operators like respondents, hence, the
investments they have poured into the acquisition
or lease of suitable terminal sites. Eliminating the
terminals would thus run counter to the
provisions of the Public Service Act. (MMDA v.
Viron Transportation, G.R. No. 170656, 15 August
2007)
INSTANCES WHEN LGU MAY BE REPRESENTED BY
A PRIVATE LAWYER
1) When the municipality is an adverse party in a
case involving the provincial government or
another municipality or city within the
province; or
2) Where original jurisdiction is vested with the
Supreme Court.
Q: What is the true criterion in determining
whether a corporation is public or private?
The true criterion to determine whether a
corporation is public or private is found in the
totality of the relation of the corporation to the
State. If the corporation is created by the State as
the latter's own agency or instrumentality to help
it in carrying out its governmental functions, then
that corporation is considered public; otherwise,
it is private. Applying the above test, provinces,
2008 Pre-Week in Political & Public Int’l. Law
chartered cities, and barangays can best
exemplify public corporations. They are created
by the State as its own device and agency for the
accomplishment of parts of its own public works.
The fact that a certain juridical entity is
impressed with public interest does not, by that
circumstance alone, make the entity a public
corporation, inasmuch as a corporation may be
private although its charter contains provisions of
a public character, incorporated solely for the
public good. This class of corporations may be
considered quasi-public corporations, which are
private corporations that render public service,
supply public wants, or pursue other
eleemosynary objectives. While purposely
organized for the gain or benefit of its members,
they are required by law to discharge functions
for the public benefit. Examples of these
corporations are utility, railroad, warehouse,
telegraph, telephone, water supply corporations
and transportation companies. It must be
stressed that a quasi-public corporation is a
species of private corporations, but the qualifying
factor is the type of service the former renders to
the public: if it performs a public service, then it
becomes a quasi-public corporation.
Authorities are of the view that the
purpose alone of the corporation cannot be taken
as a safe guide, for the fact is that almost all
corporations are nowadays created to promote
the interest, good, or convenience of the public.
A bank, for example, is a private corporation; yet,
it is created for a public benefit. Private schools
and universities are likewise private corporations;
and yet, they are rendering public service. Private
hospitals and wards are charged with heavy social
responsibilities. More so with all common
carriers. On the other hand, there may exist a
public corporation even if it is endowed with gifts
or donations from private individuals. (Philippine
Society for the Prevention of Cruelty to Animals v.
COA, G.R. No. 169752, 25 September 2007)
Libertas Et Iusticia 12
PART V
Public International Law
Q: Who can declare war on behalf of the
Philippines as a State?
A: No one! The Constitution has withheld this
power from the government. What the
Constitution allows is a declaration of a “State of
War”. Under Art. VI, Sec. 23(1), Congress, by a
vote of 2/3 of both Houses, in joint session
assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
This presupposes that we are already under
attack.
What are the principal purposes of the UN?
1. To maintain international peace and security
2. To develop friendly relations among nations
3. To achieve international cooperation in
solving international economic, social,
cultural and humanitarian problems
4. To promote respect for human rights
5. To be a center of harmonizing the actions of
nations towards those common goals.
Q: May a potential extraditee be granted bail?
While our extradition law does not provide for the
grant of bail to an extraditee, there is no provision
prohibiting him or her from filing a motion for
bail, a right under the Constitution. A potential
extraditee may be granted bail on the basis of
clear and convincing evidence that the person is
not a flight risk and will abide with all the orders
and processes of the extradition court.
If bail can be granted in deportation
cases, we see no justification why it should not
also be allowed in extradition cases. Likewise,
considering that the Universal Declaration of
Human Rights applies to deportation cases, there
is no reason why it cannot be invoked in
13 www.libertas.ph
extradition cases. After all, both are
administrative proceeding where the innocence
or guilt of the person detained is not in issue.
(Government of Hong Kong Special Administrative
Region V v. Judge Olalia, Jr. and Muñoz, G.R. No.
153675, 19 April 2007)
REQUISITES OF BELLIGERENCY [COWS]
1. an organized civil government that has
control and direction over the armed struggle
launched by the rebels;
 a “provisional government”
2. occupation of a substantial portion of the
state’s territory;
 more or less permanent occupation
 legitimate government must use
superior military force to dislodge the
rebels
3. seriousness of the struggle, which must be so
widespread thereby leaving no doubt as to
the outcome; and
 must be so widespread, leaving no
doubt as to the outcome
International Humanitarian Law (IHL)
These are the laws of armed conflict. It used to
be called the laws of war.
It regulates the conduct of actual conflict (jus
in bello) as distinguished from laws providing for
the instances of the lawful resort to force (jus ad
bellum).
It is a functional and utilitarian body of laws,
not just humanitarian.
It is part of International Criminal Law and
deals with breaches of international rules on the
laws of armed conflict entailing the personal
liability of the individuals concerned, as opposed
to the responsibility of the State which is covered
by Public International Law proper. (IHL: A Field
Guide to the Basics, The 2007 Metrobank Lecture
on International Law, 22 Nov. 2007 by Associate
Justice Adolfo S. Azcuna)
What is an “exchange of notes”?
An “exchange of notes” is a record of a routine
agreement that has many similarities with the
private law contract. The agreement consists of
the exchange of two documents, each of the
parties being in the possession of the one signed
by the representative of the other. Under the
usual procedure, the accepting State repeats the
text of the offering State to record its assent. The
signatories of the letters may be government
Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently
resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.
Treaties, agreements, conventions,
charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of
notes” all refer to “international instruments
binding at international law. (Abaya v. Ebdane, Jr.,
G.R. No. 167919, 14 February 2007)
FIVE AIR FREEDOMS
(a) overflight without landing;
(b) landing for non-traffic purposes;
(c) put down traffic from state to airline;
(d) embark traffic destined for state of
aircraft; and
(e) embark traffic or put down traffic to or
from a third state
HOW MEMBERS OF ICJ ARE CHOSEN
1. Nomination made by national groups in
accordance with the Hague Conventions of
1907. No group shall nominate more than
four persons and not more than two of whom
shall be of their own nationality.
2. Candidates obtaining an absolute majority in
the GA and SC are considered elected. In the
event that more than 1 national of the same
state obtain the requisite majorities in both
bodies, only the eldest is chosen.
3. In cases when membership is not completed
by the regular elections, a joint conference
shall be convened. If this still fails, the judges
elected shall fill the remaining vacancies.
2008 Pre-Week in Political & Public Int’l. Law Libertas Et Iusticia 14

POINTERS ON DIPLOMATIC IMMUNITIES AND h) A diplomatic agent shall be exempt from all
PRIVILEGES dues and taxes, personal or real, national,
The more important are the following: regional, or municipal except in certain
specified cases like the imposition of indirect
a) The person of a diplomatic agent shall be
taxes.
inviolable and he shall not be liable to any
form of arrest or detention. The receiving
i) The mission and its head shall have the right
state shall treat him with due respect and
to use the flag and emblem of the sending
shall take all appropriate steps to prevent any
state on the premises of the mission,
attack on his person, freedom or dignity.
including the residences of the head of the
mission and on his means of transport.
b) A diplomatic agent shall enjoy immunity from
the criminal, civil and administrative
jurisdiction of the receiving state, except in
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certain cases as, for example, when the civil
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c) The diplomatic premises shall be inviolable,
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and the agents of the receiving state may not
enter them without the consent of the head
of the mission. Such premises, their
furnishings and other property thereon and
2008 Bar Academics
the means of transportation of the mission
Libertas Et Iusticia
shall be immune from search, requisition,
attachment or execution.

d) The archives and documents of the mission

shall be inviolable at any time and wherever
they may be.

e) The receiving state shall permit and protect

free communication on the part of the
mission for all official purposes. In
communicating with the government and
other missions, and consulates of the sending
state wherever situated, the mission may
employ all appropriate means, including
diplomatic couriers and messages in code or
cipher. The official correspondence of the
mission shall be inviolable.

f) Subject to its laws and regulations concerning

national security, the receiving state shall
insure to all members of the mission freedom
of movement and travel in its territory.

g) A diplomatic agent is not obliged to give

evidence as a witness.