Professional Documents
Culture Documents
Nachura Reviewer
Nachura Reviewer
Nachura Reviewer
B. Scope/Division 3. Classification
1. Constitutional Law – study of the maintenance a. Written – precepts are embodied in one
of the proper balance between authority as document/ set of documents
represented by the 3 inherent powers of the State Unwritten – rules which have not been
and liberty as guaranteed by the Bill of Rights integrated into a single, concrete form but are
scattered in various sources (statutes, judicial
2. Administrative Law – Fixes the organization of decisions, commentaries, customs and
the government; traditions, common law principles).
Determines the competence of the b. Enacted (Conventional) – formally struck off at
administrative authorities who execute the law; and a definite time and place following a conscious or
Indicates to the individuals remedies for the deliberate effort taken by a constituent body or
violation of his right. ruler.
Evolved (Cumulative) – result of political
3. Law on Municipal Corporations evolution, changing by accretion rather than
4. Law of Public Officers by any systematic method.
5. Election Law c. Rigid – amended only by formal and usually
difficult process
C. Basis of the Study Flexible – changed by ordinary legislation
1. 1935 and 1973 Constitution
2. 1986 Constitution 4. Qualities of a good written Constitution
3. Other organic laws made to apply in the a. Broad – comprehensive enough to provide for
Philippines every contingency
4. Statutes, EOs and decrees, judicial decisions b. Brief – confine to basic principles to be
5. US Constitution implemented
c. Definite – to prevent ambiguity
II. THE PHILIPPINE CONSTITUTION
5. Essential parts of a good written Constitution
A. Nature of the Constitution a. Constitution of Liberty – sets forth the civil and
1. Definition political rights of the citizens and imposing
a. The body of rules and maxims in accordance limitations on the powers of the government
with which the powers of sovereignty are habitually b. Constitution of Government – outlines the
exercised. organization of the government; enumerates its
b. That written instrument enacted by the direct powers; and lay down rules relative to its
action of the people, administration
by which the fundamental powers of the c. Constitution of Sovereignty – points out the
government are established, limited and defined; mode or procedure in accordance with formal
and by which those powers are distributed changes in the fundamental law may be brought
among several departments for their safe and about
useful exercise for the benefit of the body
politic. 6. Interpretation/Construction of the Constitution
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Nachura Notes – Constitutional Law
- The people have to be given a “proper frame of - A taxpayer, or group of taxpayers, is a proper
reference” in arriving at their decision. party to question the validity of a law appropriating
4. Judicial Review of Amendments – issue is public funds.
whether or not the constitutional provisions had - 2 Requisites for Taxpayer’s Suit:
been followed. (1) Public funds are disbursed by a political
subdivision or instrumentality
E. The Power of Judicial Review (2) A law is violated or irregularity is committed
1. Judicial Review – power of the courts to test the (3) Petitioner is directly affected by the ultra vires
validity of executive and legislative acts in light of act
their conformity with the Constitution. - The Government is a proper party to question
- Power is inherent in the Constitution. the validity of its own laws, because more than any
- Section 1, Article VII of the Constitution: one, it should be concerned with the
Judicial power includes the duty of the courts of constitutionality of its acts
justice to settle actual controversies involving rights The established rule is that a party can question
which are legally demandable and enforceable, and the validity of a statute only if, as applied to him, it
to determine whether or not there has been a grave is unconstitutional.
abuse of discretion amounting to lack or excess of Exception: Facial Challenge, when it operates in
jurisdiction on the part of any branch or the area of freedom of expression.
instrumentality of Government. Overbreadth Doctrine: permits a party to
2. Who may exercise challenge the validity of a statute even though, as
- Power of the SC to decide constitutional applied to him, it is not unconstitutional, but it
questions. might be if applied to other not before the Court
- Constitutional appellate jurisdiction of the SC whose activities are constitutionally protected.
and implicitly recognizes the authority of lower Invalidation of the statute “on its face”, rather
courts to decide questions involving the than “as applied” is permitted in the interest of
constitutionality of laws, treaties, agreements, etc. preventing a “chilling effect” on freedom of
- Notice to SolGen is mandatory to enable him to expression.
decide whether or not his intervention in the action Facial challenge is the most difficult challenge
is necessary. because the challenge must establish that no set of
3. Functions of Judicial Review circumstances exists under which the act would be
(1) Checking valid.
(2) Legitimizing - The constitutional question must be raised at the
(3) Symbolic earliest possible opportunity
4. Requisites - The decision on the constitutional question must
(1) Actual case or controversy be determinative of the case itself.
(2) Constitutional question must be raised by the - Bars judicial inquiry into a constitutional
proper party question unless the resolution is indispensable to the
determination of the case.
- A party’s standing in court is a procedural - Every law has in its favor the presumption of
technicality which may be set aside by the Court in constitutionality, and to justify its nullification,
view of the importance of the issues involved; there must be a clear and unequivocal breach of the
paramount public interest/transcendental Constitution.
importance
- “Present substantial interest” – such interest of a 5. Effects of Declaration of Unconstitutionality
party in the subject matter of the action as will - Orthodox View: unconstitutional act is not a
entitle him under substantive law, to recover of the law, it confers no rights and imposes no duties; it
evidence is sufficient, or that he has a legal title to affords no protection, creates no office; it is
defend and the defendant will be protected in inoperative as if it had not been passed at all.
payment to or recovery from him.
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Nachura Notes – Constitutional Law
- Modern View: certain legal effects of the statute (2) Ministrant – intended to promote the welfare,
prior to its declaration of unconstitutionality may be progress and prosperity of the people and which are
recognized. merely optional for Government to perform
6. Partial Unconstitutionality
- Legislature must be willing to retain the valid Doctrine of Parens Patriae: parents of the people;
portions separability clause the Government may act as guardian of the rights of
- Valid portion can stand independently as law the people who may be disadvantaged or suffering
from some disability or misfortune.
III. THE PHILIPPINES AS A STATE
State: a community of persons, more or less Classification
numerous, permanently occupying a definite portion (1) De jure
of territory, independent of external control and De facto – Kinds
possessing a government to which a great body of 1) Takes possession or control of, or usurps, by
inhabitants render habitual obedience. force or by the voice of the majority, the rightful
legal government and maintains itself against the
State is a legal or juristic concept; nation is an will of the latter;
ethnic or racial concept. 2) Established by the inhabitants of a territory who
Government is an instrumentality of the State rise in insurrection against the parent state; and
through which the will of the State is implemented 3) Established by invading forces of an enemy who
and realized. occupy a territory in the course of war (de facto
government of paramount force).
Elements: (2) Presidential – separation of executive and
(1) People legislative powers
(2) Territory Parliamentary – fusion of both executive and
Components: legislative in Parliament; actual exercise of
1) Terrestrial executive powers is vested in a Prime Minister who
2) Fluvial is chosen by, and accountable to the Parliament
3) Maritime (3) Unitary
4) Aerial Federal
(3) Government
(4) Sovereignty Sovereignty: supreme and uncontrollable power
inherent in a State by which that State is governed
Archipelago Doctrine: the waters around, between Kinds:
and connecting the islands of the archipelago, 1) Legal – power to issue final commands
regardless of their breadth and dimensions, form Political – sum total of all the influences which
part of the internal waters of the Philippines. lie behind the law
2) Internal – supreme power over everything
Straight Baseline Method: Imaginary straight lines within the territory
are drawn joining the outermost points of outermost External/Independence – freedom from external
islands of the archipelago, enclosing an area the control
ratio of which should not be more than 9:1;
provided that the drawing of the baselines shall not Characteristics:
depart, to any appreciable extent, from the general 1) Permanence
configuration of the archipelago. 2) Exclusiveness
3) Comprehensiveness
Functions of the Government: 4) Absoluteness
(1) Constituent – mandatory for the Government to 5) Indivisibility
perform because they constitute the very bonds of 6) Inalienability
society 7) Imprescriptibility
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Nachura Notes – Constitutional Law
provide that they can sue and be sued. (Section 22 against it. Such execution will require another
LGC) waiver.
2. Unincorporated – inquire into the principal
functions Suability is not equated with outright liability.
If governmental: no suit without consent Liability will have to be determined by the court on
If proprietary: suit will lie, because when the the basis of the evidence and the applicable law.
State engages in principally proprietary functions,
then it descends to the level of a private individual, IV. FUNDAMENTAL POWERS OF THE
and may therefore be vulnerable to suit. STATE
Inherent powers of the State
Suit Against Public Officers: The doctrine of state 1. Police Power
immunity also applies to complaints filed against 2. Eminent Domain
officials of the State for acts performed by them in 3. Power of Taxation
the discharge of their duties within the scope of
their authority. Similarities
Exceptions: (may be sued without prior consent 1. inherent in the state, without need of express
from State) constitutional grant
1. to compel him to do an act required by law; 2. necessary and indispensable
2. to restrain him from enforcing an act claimed to 3. methods by which the state interferes with
be unconstitutional; private property
3. to compel the payment of damages from an 4. presupposes equivalent compensation
already appropriated assurance fund or to refund tax 5. exercised primarily by legislature
over-payments from a fund already available for the
purpose; Distinctions
4. to secure a judgment that the officer impleaded 1. Police power regulates liberty and property
may satisfy by himself without the State having to Eminent domain and taxation affects only
do a positive act to assist him; property rights
5. where government itself has violated its own 2. Police power and taxation are exercised only by
laws, because the doctrine of state immunity government
“cannot be used to perpetrate an injustice” Eminent domain may be exercised by private
entities
Where a public officer has committed an ultra vires 3. Property taken in police power is usually
act, or there is a showing of bad faith, malice or noxious or intended for noxious purposes and may
gross negligence, then the officer can be held be destroyed
personally accountable. In eminent domain and taxation, the property is
wholesome and devoted to public use/purpose.
In order that suit may lie against the state, there 4. Compensation in police power is the intangible,
must be consent. Where no consent is shown, state altruistic feeling that the individual has contributed
immunity from suit may be invoked as a defense by to the public good;
the courts sua sponte at any stage of the In eminent domain, it is the full and fair
proceedings. equivalent of the property taken;
Express consent: general law or special law In taxation, it is the protection given and/or
Implied consent public improvements instituted by government
1. state commences a litigation for taxes paid.
2. state enters into a business contract
Limitations
Scope of consent: consent to be sued does not 1. Bill of Rights
include consent to the execution of judgment 2. Courts may annul improvident exercise of
police power
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
In some expropriation cases, the court imposes (2) Alienable lands of the public domain
12% damages for delay in payment which, in (3) Unregistered, abandoned or idle lands;
effect, makes the obligation on the part of (4) Lands within the declared Areas for Priority
government one of forbearance. Development, Zonal Improvement Program sites,
Slum Improvement and Resettlement sites which
Who else may be entitled to just compensation have not yet been acquired;
Owner (5) BLISS sites which have not yet been acquired;
Those who have lawful interest and
(6) Privately owned lands
Title to the property
Does not pass until after payment The mode of expropriation is subject to 2
conditions:
Right of landowner in case of non-payment of (1) Resorted to only when the other modes of
just compensation acquisition have been exhausted
Does not entitle to recover possession of the (2) Parcels owned by small property owners are
expropriated lots exempt from such acquisition
Only to demand payment of the FMV of the
Small property owners:
property
(1) Owners of residential lots not more than 300 sq.
m. in highly urbanized cities and not more than 800
Due process of law
sq. m. in other urban areas
Defendant must be given an opportunity to be
(2) They do not own residential property other than
heard
the same
Writ of Possession, ministerial upon:
Power of Taxation
(1) Filing of complaint for expropriation sufficient
in form and substance
Who may exercise
(2) Upon deposit by the government of the amount
Legislature
equivalent to 15% of the FMV of the property per
Local legislative bodies
current tax declaration
To a limited extent, the President, when granted
The plaintiff’s right to dismiss the complaint has delegated tariff powers
always been subject to Court approval and to
certain conditions, because the landowner may have Limitations on the exercise
already suffered damages at the start of the Due process of law, must not be confiscatory
taking. Equal protection clause, must be uniform and
equitable
Right to repurchase or re-acquire the property Public purpose
Property owner’s right to repurchase the
property depends upon the character of the title Double taxation
acquired by the expropriator: if land is expropriated Additional taxes are laid on the same subject by
for a particular purpose with the condition that the same taxing jurisdiction during the same taxing
when that purpose is ended or abandoned, the period and for the same purpose.
property shall revert to the former owner, the former
owner can re-acquire the property. Tax Exemptions
No law granting tax exemption shall be passed
Lands for socialized housing are to be acquired in without the concurrence of a majority of all the
the following order: Members of Congress.
(1) Government lands
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
(3) Section 3(3), Article 14: Optional religious patriotism and nationalism, and encourage their
instruction for public elementary and high school involvement in public and civic affairs.
studies
(4) Section 4(2), Article 14: Filipino ownership Fundamental equality of men and women
requirement to educational institutions, except those State recognizes the role of women in nation-
established by groups and mission boards building and shall ensure the fundamental equality
before the law of men and women.
Independent Foreign Policy and Nuclear-free
Philippines Promotion of health and ecology
State shall pursue an independent foreign policy. State shall protect and promote the right to
In relations with other states, the paramount health of the people and instill health consciousness
consideration shall be national sovereignty, among them.
territorial integrity, national interest and the right to The State shall protect and advance the right of
self-determination. the people to a balanced and healthful ecology in
The Philippines consistent with the national accord with the rhythm and harmony of nature.
interest, adopts and pursues a policy of freedom
from nuclear weapons in its territory. Priority to education, science, technology, etc.
State shall give priority to education, science
Just and dynamic social order and technology, arts, culture and sports, to foster
State shall promote a just and dynamic social patriotism and nationalism, accelerate social
order that will ensure prosperity and independence progress, and promote total human liberation and
of the nation and free the people from poverty development.
through policies that provide adequate social
services, promote full employment, a rising Protection to Labor
standard of living and an improved quality of life State affirms labor as a primary social economic
for all. force. It shall protect the rights or workers and
promote their welfare.
Promotion of Social Justice
Promote social justice in all phases of national Self-reliant and independent economic order
development State shall develop a self-reliant and
independent national economy effectively
Respect for human dignity and human rights controlled by Filipinos.
State values the dignity of every human person The State recognizes the indispensable role of
and guarantees full respect for human rights. the private sector, encourages private enterprise,
and provide incentives to needed investments.
Family and Youth
The State recognizes the sanctity of family life Land reform
and shall protect and strengthen the family as a State shall promote comprehensive rural
basic autonomous social institution. It shall equally development and agrarian reform.
protect the life of the mother and the life of the
unborn from conception. The natural and primary Indigenous cultural communities
right and duty of parents in the rearing of the youth State recognizes and promotes the rights of
for civic efficiency and the development of moral indigenous cultural communities within the
character shall receive support of the Government. framework of national unity and development.
The State recognizes the vital role of the youth
in nation-building and shall promote and protect Independent people’s organizations
their physical, moral, spiritual, intellectual and
social well-being. It shall inculcate in the youth
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
3. the defendant must be given an opportunity to All persons or things similarly situated should
be heard be treated alike, both as to rights conferred and
4. judgment must be rendered upon lawful hearing responsibilities imposed.
Natural and juridical persons are entitled to this
Publication as part of due process guarantee.
Publication is imperative to the validity of laws, With respect to juridical persons, they enjoy the
PDs and Eos, administrative rules and regulation protection only insofar as their property is
and is an indispensable part of due process. concerned.
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Nachura Notes – Constitutional Law
2. where a criminal case is pending, the Court prosecutor’s certification which are material in
wherein it is filed, or the assigned branch, has assisting the judge in his determination of probable
primary jurisdiction to issue the search warrant; cause
3. where no criminal case has been filed, the (3) Judges and prosecutors should distinguish the
executive judges or their lawful substitutes, in the preliminary inquiry which determines probable
areas and for the offense contemplated shall have cause for the issuance of the warrant of arrest from
primary jurisdiction; the preliminary investigation proper which
4. moment the information is filed with the RTC, it ascertains whether the offender should be held for
is that court which must issue the warrant of arrest; trial or be released
5. the judge may order the quashal of a warrant he (4) Only a judge may issue a warrant of arrest
issued even after the same had already been
implemented, particularly when such quashal is Judge himself conducts the preliminary
based on the finding that there is no offense investigation, for him to issue a warrant of arrest,
committed items seized shall be inadmissible in the investigating judge must:
evidence (1) Have examined, under oath, the complainant
and the witnesses;
Only a judge may issue a warrant (2) Be satisfied that there is probable cause; and
Exception: order of arrest may be issued by (3) That there is a need to place the respondent
administrative authorities but only for the purpose under immediate custody in order not to frustrate
of carrying out a final finding of a violation of law, the ends of justice
e.g. an order of deportation or an order of contempt
but not for the sole purpose of investigation or Particularity of Description:
prosecution. (1) Readily identify the properties to be seized and
thus prevent them from seizing the wrong items;
Requisites for a Valid Warrant and
(1) Probable cause (2) Leave peace officers with no discretion
(2) Determination of probable cause personally by regarding the articles to be seized and thus prevent
the judge unreasonable searches and seizures.
(3) After examination under oath or affirmation of
the complainant and the witnesses he may produce Warrant of Arrest particularly describe the
(4) Particularity of description person to be seized if it contains the name/s of the
person/s to be seized.
The judge shall John Doe warrant descriptio persona
(1) Personally evaluate the report and the
supporting documents submitted by the fiscal Search Warrant description is as specific as the
regarding the existence of probable cause and, on circumstances will ordinarily allow or when
the basis thereof, issue a warrant of arrest; or description expresses a conclusion of fact (not of
(2) If on the basis thereof, he finds no probable law) by which the warrant officer may be guided in
cause, he may disregard the prosecutor’s report making the search; or when the things described are
band require the submission of supporting affidavits limited to those which bear direct relation to the
of witnesses. offense for which the warrant is being issued.
2. approach and restrain a person who manifests (5) judgment of acquittal or conviction rendered by
unusual and suspicious conduct in order to check the court accordingly
the latter’s outer clothing for possible concealed
weapon Fishing vessel found to be violating fishery laws
3. must have a genuine reason, in accordance with may be seized without a warrant:
experience and the surrounding conditions, to (1) usually equipped with powerful motors that
warrant the belief that the person to be held has enable them to elude pursuit and
weapons or contraband concealed about him (2) seizure would be incident to a lawful arrest
4. search and seizure should precede the arrest
Exception: People vs. Sucro – warrantless Search of moving vehicles
search and seizure can be made without - justified on the ground that it is not practicable
necessarily being preceded by an arrest provided to secure a warrant because the vehicle can be
that the said search is effected on the basis of moved quickly out of the locality or jurisdiction in
probable cause. which the warrant may be sought.
- People vs. Chua Ho San: contemporaneous - Prevent violations of smuggling or immigration
search of a person arrested may be effected for laws, provided that such searches are made at
dangerous weapons or proofs or implements used in borders or constructive borders (e.g. checkpoints
the commission of the crime and which search may near the boundary lines of the state).
extend to the area within his immediate control
where he might gain possession of a weapon or “Stop and search” without a warrant at a military or
evidence he can destroy, a valid arrest must police checkpoints
preceded a search. - Not illegal per se so long as it is required by the
exigencies of public order and conducted in a way
Where the search (and seizure) is an incident to a least intrusive to motorists. (Valmonte vs. de Villa)
lawful arrest;
- Search must be contemporaneous to arrest and Checkpoint Search
made within a permissible area of search. (1) Mere routine inspection: the search is normally
- Requisites: permissible when it is limited to a mere visual
1. arresting officer must have probable cause in search, where the occupants are not subjected to a
effecting the arrest; and physical or body search.
2. probable cause must be based on reasonable (2) Extensive search: constitutionally permissible if
ground of suspicion or belief that a crime has been the officers conducting the search had reasonable or
committed or is about to be committed. probable cause to believe, before the search, that
either the motorist is a law offender or they will find
Permissible area of search the instrumentality or evidence pertaining to a crime
- may extend beyond the person of the one in the vehicle to be searched.
arrested to include the premises or surroundings
under his immediate control. Inspection of buildings and other premises for the
enforcement of fire, sanitary and building
Seizure of allegedly pornographic material regulations
(1) criminal charge must be brought against the - Exercise of police power of the State
person/s for purveying the pornographic material/s; - Must be conducted during reasonable hours
(2) application for a search and seizure warrant
obtained from a judge (who shall determine the Prohibited articles are in plain view
existence of probable cause); - Objects in plain view of the officer who has the
(3) material confiscated brought to the court in the right to be in the position to have that view.
prosecution of the accused for the crime charged; - Police officer is not searching but inadvertently
(4) court will determine whether the confiscated comes upon an incriminating object.
items are really pornographic; and - Requisites:
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Nachura Notes – Constitutional Law
(1) Prior valid intrusion based on a valid - Property illegally seized may be used in
warrantless arrest in which the police are legally evidence in the case filed against the officer
present in the pursuit of their official duties; responsible for the illegal seizure.
(2) Evidence was inadvertently discovered by the
police who have the right to be where they are; Privacy of Communications and Correspondence
(3) Evidence must be immediately apparent; and - The privacy of communication and
(4) “Plain view” justified the seizure of the correspondence shall be inviolable EXCEPT upon
evidence without any further search. lawful order of the court OR when public safety or
order requires otherwise as prescribed by law.
Plain View - Any evidence obtained in violation of this or the
- Object is plainly exposed to sight. preceding section shall be inadmissible for any
- Where the object seized is inside a closed purpose in any proceeding.
package, the object is not in plain view and,
therefore, cannot be seized without a warrant. Inviolability
- Package proclaims its contents transparency, - Exceptions:
distinctive configuration or contents are obvious to (1) Lawful order of the court;
an observer. (2) Public safety or order requires otherwise, as
- People vs. Salanguit: once the valid portion of may be provided by law.
the search warrant has been executed, the “plain - Includes tangible and intangible objects.
view” doctrine can no longer provide any basis for - RA 4200: illegal for any person not authorized
admitting the other items subsequently found… by all the parties to any private communication, to
(marijuana was also wrapped in newspaper which secretly record such communications by means of a
was not transparent….warrant for shabu and drug tape recorder. Telephone extension was not among
paraphernalia, found the shabu first) the devices covered by this law.
- Doctrine is not an exception to the warrant. It
serves to supplement the prior justification. It is a Freedom of Expression
recognition that of the fact that when executing - No law shall be passed abridging the freedom of
police officers come across immediately speech, of expression nor of the press, or the right
incriminating evidence not covered by the warrant, of the people peaceably to assemble and petition the
they should not be required to close their eyes to it, government for redress of grievances.
regardless of whether it is evidence of the crime - Scope: Any and all modes of expression.
they are investigating or evidence of some other
crime. It would be needless to require the police to Aspects:
obtain another warrant. (1) Freedom from censorship or prior restraint
- Need not be total suppression, even restriction
Immediately apparent test of circulation constitutes censorship.
- Does not require an unduly high degree of - Section 11 (b), RA 66461: legitimate exercise of
certainty. the police power of the State to regulate media or
- Requires merely that the seizure be communication and information for the purpose of
presumptively reasonable assuming that there is ensuring equal opportunity, time and space for
probable cause to associate the property with political campaigns. Unrelated to suppression of
criminal activity. speech as it is only incidental and no more than is
- Nexus exists between the viewed object and the necessary to achieve the purpose of achieving the
criminal activity. purpose of promoting equality.
- Movie censorship: movie, compared to other
Exclusionary Rule: Evidence obtained in violation media of expression, have a greater capacity for evil
of Section 2, Article 3 shall be inadmissible for any 1
purpose in any proceeding because it is “the fruit of Prohibited any person making use of the media to sell or to
give free of charge print space or air time for campaign or
the poisoned tree.” other political purposes except to the COMELEC.
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Nachura Notes – Constitutional Law
and must, therefore, be subjected to a greater degree - Every defamatory imputation is presumed to be
of regulation. malicious.
- Power of MTRCB can be exercised only for Exceptions:
purposes of “classification” not censorship. 1. a private communication made by any person to
- Primacy of freedom of expression over Enrile’s another in the performance of any legal, moral or
“right to privacy” because Enrile was a “public social duty; and
figure” and a public figure’s right to privacy is 2. fair and true report, made in good faith, without
narrower than that of an ordinary citizen. (Ayer any comments or remarks, of any judicial,
Productions vs. Judge Capulong) legislative or other official proceedings which are
- Board of Review for Motion Pictures and not of a confidential nature, or of any statement,
Television (BRMPT) “X-rating” when the report or speech delivered in said proceedings, or of
program would create a clear and present danger of any act performed by public officers in the exercise
an evil which the State has the right to prevent. if their functions.
(Inglesi ni Cristo vs. CA) - Public has the right to be informed on the
- No law prohibiting the holding and reporting of mental, moral and physical fitness of candidates for
exit poll. (ABS-CBN Broadcasting Corporation vs. public officer. The rule applies only to fair
COMELEC) comments on matters of public interest, fair
- Test for the validity of government regulation, comment being that which is true, or if false,
valid if (O’Brien Test): expresses the real opinion of the author based upon
1. within the constitutional power of government; reasonable degree of care and on reasonable
2. furthers an important or substantial government grounds.
interest; 2. Obscenity
3. government interest is unrelated to the - Determination of what is obscene is a judicial
suppression of free expression; and function.
4. incidental restriction on the freedom is no 3. Criticism of official conduct
greater than is essential to the furtherance of that - US vs. Bustos: individual is given the widest
interest. latitude in criticism of official conduct.
- Overbreadth Doctrine: prohibits government - Publication that tends to impede, embarrass or
from achieving its purpose by “means that sweep obstruct the court and constitutes a clear and present
unnecessarily broadly, reaching constitutionally danger to the administration of justice is not
protected as well as unprotected activity.” protected by the guarantee of press freedom and
(2) Freedom from subsequent punishment punishable by contempt. It is not necessary to show
- Without this assurance, the individual would that the publication actually obstructs the
hesitate to speak for fear that he might be held administration of justice; it is enough that it tends to
accountable for his speech, or that he might be do so.
provoking the vengeance of the officials he may - Freedom of press is subordinate to the decision,
have criticized. authority, integrity and independence of the
- Not absolute and may be properly regulated in judiciary and the proper administration of justice.
the interest of the public. 4. Right of students to free speech in school
- State may validly impose penal and/or premises not absolute
administrative sanctions, such as: - Campus Journalism Act provides that a student
1. Libel shall not be expelled or suspended solely on the
- Public and malicious imputation of a crime, or basis of articles he or she has written, the same
of a vice or defect, real or imaginary, or any act, should not infringe on the school’s right to
omission, condition, status or circumstance tending discipline its students.
to cause the dishonor, discredit or contempt of a - The school cannot suspend or expel a student
natural or juridical person, or to blacken the solely on the basis of the articles he or she has
memory of one who is dead. written, except when such article materially disrupts
- Oral defamation is called slander.
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Nachura Notes – Constitutional Law
class work or involves substantial disorder or - It must be exercised in such a way as will not
invasion of rights of others. prejudice the public welfare.
- PUBLIC PLACE: permit for the use of such
Test of valid government interference place, and not for the assembly itself, may be
(1) Clear and Present Danger Rule validly required. The power of local officials is
- Whether the words are used in such merely one of regulation.
circumstances and of such nature as to create a clear - Permit to hold public assembly shall not be
and present danger that they will bring about the necessary where the meeting is to be held in a
substantive evils that the State has the right to PRIVATE PLACE.
prevent. Public Assembly Act: a permit shall not be
- The substantive evil must be extremely serious necessary where the meeting is to be held in a
and the degree of imminence extremely high before private place, in the campus of the government-
utterances can be punished. owned or –operated educational institution, or in a
- Rule: the danger created must not only be clear freedom park.
and present but also traceable to the ideas Where permit is required, written application
expressed. shall be filed with the mayor’s office at least 5 days
- “clear”: seems to point to a causal connection before the scheduled meeting and shall be acted
with the danger of the substantive evil arising from upon within 2 days. Otherwise, permit shall be
the utterance questioned deemed granted.
- “present” refers to the time element, identified Denial shall be justified only upon clear and
with imminent and immediate danger convincing evidence that the public assembly will
- The danger must not only be probable, but very create a cleat and present danger to public order,
likely inevitable. safety, convenience, morals and health.
(2) Dangerous Tendency Rule Action shall be communicated within 24 hours
- Words uttered create a dangerous tendency of an to the applicant… may appeal to appropriate courts.
evil which the State has the right to prevent, then Decision must be reached within 24 hours.
such words are punishable. The law permits law enforcement agencies to
- Sufficient if the natural tendency and the
detail a contingent under a responsible officer at
probable effect of the utterance were to bring about
least 100 meters away from the assembly in case it
the substantive evil that the legislative body seeks to
becomes necessary to maintain order.
prevent.
- Academic freedom of institutions of higher
(3) Balancing of Interests Test
learning cannot be utilized to discriminate against
- When particular conduct is regulated in the
those who exercise their constitutional rights.
interest of public order, and the regulation results in
- Right to free assembly and petition prevails over
an indirect, conditional or partial abridgment of
economic rights.
speech, the duty of the courts is to determine which
- Education of the youth occupies a preferred
of the two conflicting interests demands the greater
position over the freedom of assembly and petition.
protection under the particular circumstances
- Tests priorly applied by the court:
presented.
1. purpose test
- Requires a court to take conscious and detailed
2. auspice test
consideration of the interplay of interests observable
in a given situation.
Freedom of Religion
- No law shall be made respecting an
Assembly and Petition
establishment of religion or prohibiting the free
- Right to assemble is not subject to prior
exercise thereof.
restraint.
- The free exercise and enjoyment of religious
- It may not be conditioned upon prior issuance of
profession and worship, without discrimination or
a permit or authorization from government
preference, shall forever be allowed. No religious
authorities.
19
Nachura Notes – Constitutional Law
test shall be required for the exercise of civil or Where a civil right depends upon some matter
political rights. pertaining to ecclesiastical affairs, the civil tribunal
- 2 guarantees: tries the civil right and nothing more.
1. non-establishment clause “Ecclesiastical Affair” is one that concerns
2. freedom of religious profession and worship doctrine, creed, or forum of worship of the church,
- Non-establishment clause: separation of Church or the adoption and enforcement within a religious
and State association of needful laws and regulations for the
1. cannot be registered as a political party; government of the membership, and the power of
2. no sectoral representative from the religious excluding from such associations those deemed
sector; and unworthy of membership.
3. prohibition against the use of public money or It is not for the Court to exercise control over
property for the benefit of any religion, or of any Church authorities in the performance of their
priest, minister or ecclesiastic. discretionary and official functions; it is for the
- Exceptions: members of religious institutions/organizations to
1. exception from taxation of properties actually, conform to just church regulations.
directly and exclusively used for religious purposes; - Free Exercise Clause
2. citizenship requirement of ownership of Aspects of freedom of religious profession and
educational institutions, except those established by worship:
religious groups and mission boards; 1. right to believe, which is absolute
3. optional religious instruction in public 2. right to act according to one’s belief, which is
elementary and high schools expressed in subject to regulation.
writing by the parents/guardians, taught within Constitutional guarantee of free exercise pf
regular class hours; and without additional costs on religious profession and worship carries with it the
the Government; and right to disseminate religious information, and any
4. appropriation allowed where the minister or restraint of such right can be justified only on the
ecclesiastic is employed in the armed forces, penal ground that there is a clear and present danger of an
institution or in the government-owned orphanage evil which the State has the right to prevent.
or leprosarium. - The compelling State interest test:
- Scope: Estrada vs. Escritor (administratively charged
1. State cannot set up a Church with immorality for living with a married man, not
2. nor pass laws which aid one religion, aid all her husband; conjugal arrangement was in
religion or prefer one over another; conformity with their religious beliefs)
3. nor force nor influence a person to go to or “Benevolent Neutrality” recognizes that
remain away from church against his will;
government must pursue its secular goals and
4. or force him to profess a belief or disbelief in
interests, but at the same time, strive to uphold
any religion.
religious liberty to the greatest extent possible
- The term “Non-Christian tribes” does not refer
within flexible constitutional limits.
to religious belief but to degree of civilization.
Thus, although the morality contemplated by
(People vs. Cayat)
- Laws, e.g. Article 133 of the RPC, do not laws is secular, benevolent neutrality could allow
violate freedom of religion. for accommodation of morality based on religion,
- Freedom of religion is accorded preferred status, provided it does not offend compelling state
designed to protect the broadest possible liberty of interest.
conscience, to allow each man to believe as his 2 steps:
conscience directs, to profess his beliefs and to live 1) Whether respondent’s right to religious freedom
as he believes he ought to live, consistent with has been burdened and
liberty of others and with the common good. 2) Ascertain respondents sincerity in his beliefs.
- Intramural religious disputes: - State regulations imposed on solicitations for
religious purposes do not constitute an abridgment
20
Nachura Notes – Constitutional Law
of freedom of religion; but are NOT covered by PD the effectiveness of its jurisdiction over the case and
1564 (Solicitation Permit Law) which required prior over the person of the accused;
permit from DSWD in solicitations for charitable or 2) By posting bail, the accused holds himself
public welfare purposes; amenable at all times to the orders and processes of
- Free exercise clause does not prohibit imposing the court, thus, she may be legally prohibited from
a generally applicable sales and use tax on the sale leaving the country during the pendency of the case;
of religious materials by a religious organization. and
Resulting burden is so incidental as to make it 3) Parties with pending cases should apply for
difficult to differentiate it from any other economic permission to leave the country from the very same
imposition that might make the right to disseminate courts which, in the first instance, are in the best
religious doctrines costly. position to pass upon such applications and to
impose appropriate conditions therefore, since they
Liberty of Abode and of Travel are conversant with the facts of the cases and the
- The liberty of abode and of changing the same ramifications or implications thereof.
within the limits prescribed by law shall not be - The persons right to travel is subject to the usual
impaired except upon lawful order of the court. constraints imposed by the very necessity of
- Neither shall the right to travel be impaired safeguarding the system of justice. Whether the
except in the interest of national security, public accused should be permitted to leave the country for
safety or public health, as may be provided by law. humanitarian reasons is a matter addressed to the
- Limitations: court’s discretion.
1) On liberty of abode: lawful order of the court
Caunca vs. Salazar: maid has the right to Right to Information
transfer to another residence even if she had not yet - Right of the people to information on matters of
paid the amount advanced for her transportation public concern shall be recognized.
from the province by an employment agency; - Access to official records and to documents and
Rubi vs. Provincial Board of Mindoro: requiring papers pertaining to official acts, transactions pr
some members of the non-Christian tribes to reside decisions as well as to government research data
only within a reservation, valid… to promote their used as basis for policy development shall be
better education, advancement and protection. afforded the citizen, subject to such limitations as
Universal Declaration of Human Rights: may be provided by law.
everyone has the right to leave any country, - Scope of the Right: right to information
including his own and to return to his country. contemplates inclusion of negotiations leading to
Covenant on Civil and Political Rights: no one consummation of the transactions.
shall be arbitrarily deprived of the right to enter his The right only affords access, which means the
own country. opportunity to inspect and copy them at his
2) On right to travel: national security, public expense.
safety or public health, as may be provided by law Subject to regulations: to protect integrity of
- Lawful order of the court is a valid restriction. public records and to minimize disruption of
- Court may validly refuse to grant the accused government operations.
permission to travel abroad, even if the accused in - Exceptions:
out on bail. (Manotoc vs. CA) 1) Privileged communications rooted in separation
- Liberty of travel may be impaired even without of powers
court order, the appropriate executive officers or 2) Information on military and diplomatic secrets
administrative authorities are not armed with 3) Information affecting national security
arbitrary discretion to impose limitations. 4) Information on investigations of crimes by law
- Principles: enforcement agencies before the prosecution of the
1) The Hold-departure Order is but an exercise of accused.
the court’s inherent power to preserve and maintain - Need for publication of law reinforces this right.
21
Nachura Notes – Constitutional Law
- The manner of examining public records may be - Change in the rights of the parties with
subject to reasonable regulation by the government reference to each other and not with respect to non-
agency in custody. parties.
- The duty to disclose the information of public - Impairment: anything that diminishes the
concern, and to afford access to public records efficacy of the contract
cannot be discretionary on the part of said agencies. - Substantial impairment when the law changes
Its performance may be compelled by mandamus. either
- In Re: Request for Live Radio-TV Coverage of 1) Time of performance
the Trial in the SB of the Plunder Case against 2) Mode of performance
Former Pres. Joseph Ejercito Estrada, Secretary of 3) Imposes new conditions
Justice Hernando Perez vs. Joseph Ejercito Estrada: 4) Dispenses with those expressed
when the constitutional guarantees of freedom of 5) Authorizes for its satisfaction something
the press and the right to public information, on different from that provided in its terms
the one hand, and the fundamental rights of the - Limitations:
accused, on the other hand, along with the 1) Police power – public welfare is superior to
constitutional power of a court to control its private rights
proceedings in ensuring a fair and impartial trial 2) Eminent domain
race against another, jurisprudence tells us that the 3) Taxation
right of the accused must be preferred (losing not - Franchises, privileges, licenses, etc do not come
only his liberty but also the very life of an accused). within the context of the provision
Subject to amendment alteration, or repeal by
Right to Form Associations the Congress when common good so requires.
- The right of the people, including those
employed in the public and private sectors, to form Free Access to Courts
unions, associations or societies for purposes not - Free access to the courts and quasi-judicial
contrary to law shall not be abridged. bodies and adequate legal assistance shall not be
- Scope: includes the right not to join or to denied to any person by reason of poverty.
disaffiliate from one. - Social justice provision providing for pauper
- Right to Strike: members of the civil service suits.
may not declare a strike to enforce economic
demands. Miranda Doctrine
- The ability to strike is not essential to the right - Any person under investigation for the
of association. commission of an offense shall have
- The right of the sovereign to prohibit strikes or The right to be informed of his right to remain
work stoppages by public employees is clearly silent and
recognized at common law. Modern rule merely To have competent and independent counsel
incorporate or reasserts said common law. preferably of his own choice.
- Right is not absolute. - If the person cannot afford the services of
Anti-Subversion Act counsel, he must be provided with one.
Managerial employees: receive information that - These rights cannot be waived, except
is not only confidential but also generally not In writing and
available to the public. In the presence of the counsel.
- No torture, force, violence, threat, intimidation
Non-impairment Clause or any other means which vitiate the free will shall
- No law impairing the obligation of contracts be used against him.
shall be passed. - Secret detention places, solitary,
- To fall within the prohibition, the change must incommunicado, or other similar forms of detention
not only impair the obligation of the existing are prohibited.
contract, but the impairment must be substantial.
22
Nachura Notes – Constitutional Law
- Any confession or admission obtained in Merely photographed or paraffin test, not yet
violation of this or Section 17 shall be inadmissible under custodial investigation.
in evidence against him. - Investigations not considered as custodial
- The law shall provide for penal and civil interrogations.
sanctions for violations of this section, as well as - Arrested person signs a booking sheer and an
compensation to and rehabilitation of victims of arrest report at the police station, he does not admit
torture or similar practices, and their families. the commission of an offense nor confess to any
- Rights are available only during custodial incriminating circumstance. Said booking sheet is
investigation. merely a statement of how the arrest was made and
Custodial investigation or in-custody has no probative value as an EJ statement of the
interrogation of accused person: any questioning person detained.
initiated by law enforcement officers after a person - Rights guaranteed by this provision refers only
has been taken into custody or otherwise deprived to testimonial compulsion.
of his freedom of action in any significant way. - What rights are available
Investigation ceases to be a general inquiry into 1) To remain silent;
an unsolved crime and direction is aimed upon a No adverse inference from his refusal to answer.
particular suspect who has been taken into custody 2) To competent and independent counsel
and to whom the police would then direct (preferably of his own choice; at all stages of the
interrogatory questions which tend to elicit proceeding);
incriminating statements. Attaches upon the start of the investigation;
- Does not apply to spontaneous statement5s. Lawyer should never prevent a person from
- Does not apply to admissions/confessions made telling the truth.
by a suspect before he was placed under custodial RA 7438: Accused’s parent, older bro and sis,
investigation. spouse, Mayor, Municipal Judge, district school
- Custodial investigation includes the practice of supervisor, or priest or minister of the gospel as
issuing an “invitation” to a person who is chosen by the accused, may appear in lieu of the
investigated in connection with an offense he is counsel during the taking of an EJ confession IF:
suspected to have committed, without prejudice to 1) Counsel of accused is absent and
the liability of the inviting officer for any violation. 2) Valid waiver had been executed.
- Police Line-up “competent and independent” willing to
Not considered part of custodial investigation safeguard the constitutional rights of the accused, as
because it is conducted before that stage of distinguished from one who would merely be giving
investigation is reached. a routine peremptory and meaningless recital of the
Process has not yet shifted from the individual’s constitutional rights.
investigatory to the accusatory stage. Mere pro forma appointment of a counsel de
- People vs. Escordial officio who fails to genuinely protect the interests of
Out-of-court identification may be made in a the accused merits disapprobation.
“show-up” (where the accused is brought face to Independent Counsel: not special counsel, City
face with the witness for identification) or in a legal officer, Mayor, public/private prosecutor,
police line-up (where the suspect is identified by a counsel of the police, or a municipal attorney,
witness from a group of persons gathered for that whose interest is admittedly adverse to the accused.
purpose). “Preferably of his own choice” does not mean
During custodial investigation, these have been that the choice of a lawyer by a person under
described as “critical confrontations of the accused investigation is exclusive as to preclude other
by the prosecution” necessitating the presence of equally competent and independent attorneys from
counsel. This is because the result of these pre-trial handling the defense.
proceedings might well settle the fate of the accused Choice of lawyer when accused cannot afford –
and reduce the trial to a mere formality. final say is still with the accused who may reject
23
Nachura Notes – Constitutional Law
said lawyer; deemed engaged by the accused when 1) Before case is field in court or with public
he does not object. prosecutor for preliminary investigation, but after
Confession obtained after charges had already having been taken into custody or otherwise
been filed: The right to counsel still applies in deprived of his liberty and on being interrogated by
certain pre-trial proceedings that are considered the police
critical stages in the criminal process. Custodial To remain silent
interrogation before or after charges have been Right to counsel
filed, and non-custodial interrogation after the To be informed of such right
accused has been formally charged, are Not to be subjected to torture, violence, threat,
considered “critical pre-trial stages” in the criminal intimidation or any other means which vitiates free
process. will and
3) To be informed of such rights; To have evidence obtained in violation of these
Transmission of meaningful information rather rights rejected and inadmissible.
than just ceremonial and perfunctory recitation of 2) After the case is filed in court
an abstract constitutional principle. To refuse to be a witness
P must show that the accused understood what Not to have nay prejudice by such refusal
he read and the consequences of his waiver. To testify in his own behalf, subject to cross-
Right to be informed carries with it the examination
correlative obligation on the part of the investigator While testifying, refuse to answer an
to explain and contemplates an effective incriminating question
communication which results in the subject - Waiver
understanding what is conveyed. (degree of (1) Must be in writing and made in the presence of
explanation depends on the personal circumstances the counsel
of the accused) (2) No retroactive effect – no application to waivers
4) Rights cannot be waived except in writing and made prior to APRIL 26, 1983, the promulgation of
signed by the person in the presence of his counsel; Morales.
5) No torture, force, violence, etc. which vitiates (3) Burden of proof – burden of proving valid
free will shall be used; waiver is with the prosecution.
6) Secret detention places, etc. are prohibited; and Presumption that official duty has been
7) Confessions/admissions obtained in violation of
regularly performed cannot prevail over the
rights are inadmissible in evidence.
presumption of innocence.
2 Kinds of Involuntary/Coerced Confession
(4) What may be waived
1) Coerced confession, the product of third degree Right to remain silent
methods
Right to counsel
2) Uncounselled statements, without the benefit of
the Miranda warning NOT the right to be informed of these rights.
Alleged infringement of the constitutional rights - Guidelines for Arresting/Investigating Officers
of the accused during custodial investigation is (People vs. Mahinay)
relevant and material only where an extrajudicial (1) Person arrested, detained, invited or under
confession/admission from the accused becomes the custodial investigation must be informed in a
basis of conviction. language known to and understood by him of the
1973 Constitution does not distinguish between reason for his arrest and must be shown the warrant
of arrest, if any.
verbal and non-vernal confession.
(2) He must be warned that he has the right to
A person suspected of having committed a
remain silent and that any statement he makes may
crime and subsequently charged with its be used as evidence against him.
commission has the following rights in the matter of (3) He must be informed that he has the right to be
his testifying or producing evidence: assisted at all times and have the presence of an
24
Nachura Notes – Constitutional Law
independent and competent lawyer, preferably of violation of any of the foregoing, inculpatory or
his own choice. exculpatory, in whole or in part, shall be
(4) He must be informed that if he has no lawyer or inadmissible.
cannot afford one, a lawyer will be provided for - Exclusionary Rule: Confession/Admission
him; and that a lawyer may also be engaged by any obtained in violation of Section 12 and 17, Article
person in his behalf or may be appointed by the III of the Constitution shall be inadmissible in
Court upon petition of the person or one acting in evidence.
his behalf. - Confession: declaration made voluntarily and
(5) That whether or not the person arrested has a without compulsion or inducement by a person
lawyer, he must be informed that no custodial acknowledging that he has committed or
investigation in any form shall be conducted except participated in the commission of a crime.
in the presence of his counsel or after a valid - Any allegation of force, duress, undue influence
waiver. or other forms of involuntariness in exacting such
(6) The person arrested must be informed that, at confession must be proved y clear, convincing and
any time, he has the right to communicate or confer competent evidence by the defense. Otherwise, the
by the most expedient means with his lawyer, any confession’s full probative value may be used to
member of his immediate family, or any medical demonstrate the guilt of the accused.
doctor, priest or minister chose by him or anyone of - Fruit of the Poisonous Tree: (Justice Frankfurter
his immediate family or by his counsel, or be visited Nardone vs. US)
by/confer with duly accredited national or Once the primary source is shown to have been
international non-governmental organization. It unlawfully obtained, any secondary or derivative
shall be the responsibility of the officer to ensure evidence derived from it is also inadmissible.
that this is accomplished. Basis: evidence illegally obtained by the State
(7) He must be informed that he has the right to should not be used to gain other evidence.
waive any said rights provided it is made - Receipt of Seized Property if signed by the
voluntarily, knowingly and intelligently, and ensure accused without assistance of counsel and not
that he understood the same. having been informed of his constitutional rights is
(8) If the person arrested waives his right to a inadmissible.
lawyer, he must be informed that this must be done People vs. Linsangan: initialed the P10 bill that
in writing and in the presence of the counsel, the police found tucked in his waist. Valid. Because
otherwise he must be warned that the waiver is void possession of marked bills did not constitute a
even if he insists in his waiver and chooses to crime, the subject if the prosecution being his act of
speak. selling marijuana cigs.
(9) The person arrested must be informed that he - Re-enactment of the Crime – before, must be
may indicate in any manner at any time or stage of appraised of his constitutional rights.
the process that he does not wish to be questioned - Res Gestae – admissible.
with a warning that once he makes such indication - Waiver of Exclusionary Rule: failure to object to
the police may not interrogate him if the same had offer in evidence.
not yet commenced or the interrogation must cease
if it had already begun. Right to Bail
(10) The person arrested must be informed - All persons except those charged with an
that the initial waiver of his right to remain silent, offense punishable by RP, when evidence of guilt is
the right to counsel or to any other rights does not strong, shall before conviction be bailable by
bar him from invoking it at any time during the sufficient sureties or be released on recognizance as
process, regardless of whether he may have may be provided by law.
answered some questions or volunteered some - The right to bail shall not be impaired even
statements. when the privilege of the writ of habeas corpus is
(11) He must be informed that any statement suspended.
or evidence, as the case may be, obtained in - Excessive bail shall not be required.
25
Nachura Notes – Constitutional Law
- Bail: is the security given for the release of a Upon conviction by RTC of an offense not
person in custody of the law, furnished by him or a punishable by death, RP or life imprisonment.
bondsman, conditioned upon his appearance before The court, in its discretion, may allow the
any court as may be required. accused to continue on provisional liberty under the
- Any person under detention, even if no formal same bail bond during the period to appeal, subject
charge have yet been field, can invoke the right to to consent of bondsman.
bail. If court imposes penalty of imprisonment of 6-
- When bail is authorized, it should be granted 20 years, accused shall be denied bail or bail
before arraignment, otherwise, the accused may be previously granted cancelled, upon showing by
precluded from filing a motion to quash. prosecution that:
- Exceptions: 1) The accused is a recidivist, quasi-recidivist,
1. when charged with an offense punishable by RP habitual delinquent, or has committed the crime
(or higher) and evidence of guilt is strong aggravated by the circumstance of reiteration;
2. traditionally, not available to military 2) The accused is found to have previously
- Duty of the Court when accused is charged with escaped from legal confinement, evaded sentence or
an offense punishable by RP or higher. has violated the conditions of his bail without valid
Hearing on the motion for bail must be justification;
conducted by the judge. 3) The accused committed the offense while on
Prosecution must be given an opportunity to probation, parole or under conditional pardon;
present all the evidences. 4) Circumstances of the accused or his case
Applicant having right of cross-examination and indicate the probability of flight if released on bail;
to introduce evidence in rebuttal. and
If prosecution refuses to adduce evidence or 5) Undue risk that during pendency of the appeal,
fails to interpose an objection to the motion for bail, the accused may commit another crime.
it is still mandatory for the court to conduct a 3) Denied
hearing or ask searching and clarificatory questions Accused is charged with a capital offense or an
from which it may infer the strength of the evidence offense punishable by RP or higher and evidence of
of guilt or lack of it. guilt is strong.
- The hearing on the petition for bail need not at Principle denying bail to an accused charged
all times precede arraignment, because the rule is with a capital offense where evidence of guilt is
that a person deprived of his liberty by virtue of his strong, applies with equal force to the appellant
arrest or voluntary surrender may apply for bail as who, though convicted of an offense not punishable
soon as he is deprived of his liberty, even before a by death, RP, or life imprisonment was nevertheless
complaint or information is filed against him. originally charged with a capital offense.
- Court’s order granting or refusing bail must - Standards for fixing bail
contain summary of evidence for the prosecution. 1) Financial ability of the accused
- The assessment of the evidence presented 2) Nature and circumstances of the offense
during bail hearing is only for the purpose of 3) Penalty for the offense charged
granting or denying an application for the 4) Character and reputation of the accused
provisional release of the accused liberal in their 5) Penalty for the offense charged
approach, not being a final assessment. 6) Weight of the evidence against him
- Bail is either: 7) Age and health
1) A matter of right 8) Probability of appearing at the trial
Before or after conviction by MeTC, MTC 9) Forfeiture of other bonds by him
MTC in Cities, MCTC 10) Fact that he was a fugitive from justice when
Before conviction by RTC of an offense not arrested
punishable by death, RP or life imprisonment. 11) Pendency of other cases in which he is under
2) Judges discretion bond
26
Nachura Notes – Constitutional Law
- Right to Bail and Extradition (Government of to have compulsory process to secure the
the U.S. vs. Judge Purungan and Mark Jimenez) attendance of the witnesses and the production of
The constitutional provision on bail applies only evidence in his behalf.
when a person is arrested and detained for violation - After arraignment, trial may proceed
of Philippine criminal laws. It does not apply to notwithstanding the absence of the accused,
extradition proceedings, because extradition courts provided that he has been duly notified and the
do not render judgments of acquittal or conviction. failure to appear is unjustifiable.
It flows from the presumption of innocence in - Criminal due process:
favor of every accused who should not be subjected 1) accused has been heard in a court of competent
to the loss of freedom unless his guilt is proved jurisdiction
beyond reasonable doubt. The constitutional 2) accused is proceeded against under the orderly
provision on bail will not apply to a case of processes of law
extradition where the presumption of innocence is 3) accused has been given notice and the
not an issue. opportunity to be heard
Extradition proceedings are separate and distinct 4) judgment rendered was within the authority of a
from the trial of the offenses for which he is constitutional law
charged. - Unreasonable delay in resolving complaint is
He should apply for bail before the courts trying violation of the right to due process and to speedy
the criminal cases against him, not before the trial dismissal of complaint.
extradition court. Exception: petitioner’s own acts or complexity
After a potential extradite has been arrested and of the issues involved.
placed under custody of the law, bail may be - Hearing before an impartial and disinterested
applied for and granted as an exception, only after tribunal. Bias must be shown by clear and
clear and convincing showing that convincing evidence.
a. Once granted bail, the applicant will not be a - Right to a hearing
flight risk or a danger to the community, and - Plea of guilt to a capital offense. Mandatory
b. There exists special, humanitarian and that:
compelling circumstances. 1) TC must conduct a searching inquiry into the
- Waiver of the Right to Bail – personal to the voluntariness of the plea and the full comprehension
accused. of the consequences;
- The right to bail is not impaired by the 2) Prosecution should present evidence to prove
suspension if the privilege of the writ of habeas the guilt of the accused and the precise degree of his
corpus. culpability; and
3) Accused must be asked if he desires to present
Constitutional Rights of the Accused evidence in his behalf and should be allowed to do
- No person shall be held to answer for a criminal so if he desires.
offense without due process of law. - The State and the offended party are entitled to
- In all criminal prosecutions, due process
the accused shall be presumed innocent until the - Presumption of Innocence: every circumstance
contrary is proved, favoring the innocence of the accused must be taken
and shall enjoy the right to be heard by himself into account.
and counsel, Will NOT apply if there is some logical
to be informed of the nature and cause of connection between the fact proved and the ultimate
accusation against him, fact presumed, and the inference of one fact from
to have a speedy, impartial and public trial, proof of another shall not be so unreasonable as to
to meet the witnesses face to face, and be purely arbitrarily mandate.
Can be invoked only by an individual accused
of a criminal offense.
27
Nachura Notes – Constitutional Law
Corporate entity has no personality to invoke of the State and the offended party to speedy and
the same. adequate justice.
- Presumption that official duty was regularly - “Preference in the choice of counsel” pertains
performed cannot, by itself, prevail over the more aptly and specifically to a person under
constitutional presumption of innocence. custodial investigation rather than one who is
Exception: when it is not the sole basis for accused in a criminal prosecution. Such preferential
conviction. discretion cannot partake of discretion so absolute
- Constitutional presumption may be overcome and arbitrary as would make the choice of counsel
by contrary presumptions based on experience of refer exclusively to the prediction of the accused.
human conduct. (e.g. unexplained wealth) - General Rule: a client is bound by the mistakes
- Circumstantial evidence in order to warrant of his lawyer
conviction: Exceptions: when the negligence or
1) More than one circumstance incompetence of counsel is deemed gross as to have
2) Facts from which the inference are derived are prejudiced the constitutional right of the accused to
proven be heard.
3) Combination of all the circumstances is such as - Right to be informed of the nature and cause of
to produce a conviction beyond reasonable doubt. accusation against him.
- Equipose Rule: applicable only when the Reasons:
evidence adduced by the parties are evenly 1. furnish the accused with such a description of
balanced, in which case the constitutional the charge against him as will enable him to prepare
presumption of innocence should tilt the scales in for his defense;
favor of the accused. 2. avail himself of his conviction or acquittal for
- Right to be heard by himself and counsel: protection against a further prosecution for the same
efficient and truly decisive legal assistance. cause; and
Proceeds from fundamental principle of due 3. to inform the Court of the facts alleged, so that
process. it may decide whether they are sufficient in law to
Right to counsel during the trial is not subject to support a conviction.
waiver because even the most intelligent or - When a judge is informed or discovers that an
educated man may have no skill in the science of accused is apparently in a condition of insanity or
law, particularly in the rules of procedure, and imbecility, it is within his discretion to investigate
without counsel. He may be convicted not because the matter.
he is guilty but because he does not know how to - Requisites: The information must state:
establish his innocence. 1. name of the accused
Failure of the record to disclose affirmatively 2. designation of the offense given by statute
that the TC advised the accused of his right to 3. statement of acts or omissions so complained of
counsel is not sufficient ground to reverse as constituting the offense
conviction. The TC must be presumed to have 4. name of the offended party
complied with the procedure prescribed by law for 5. approximate time and date of the commission of
the hearing and trial of the cases, and such the offense
presumption can be overcome only by an 6. place where the offense has been committed
affirmative showing to the contrary. 7. facts and circumstances that have a bearing on
- Right to counsel is not indispensable to due the culpability and liability of the accused
process of law. - Every element of the offense must be alleged in
Exceptions: cannot be waived during trial. the complaint or information, because the accused is
But this is not absolute. Option cannot be used presumed to have no independent knowledge of the
to sanction reprehensible dilatory tactics, to trifle facts that constitute the offense charged.
with ROC, or prejudice the equally important rights - Not necessary to state the precise time when the
offense was committed except when time is a
material ingredient of the offense.
28
Nachura Notes – Constitutional Law
- Description not the designation of the offense Separate trial is in consonant with the right of
controls. the accused to a speedy trial.
- Accused can be convicted only of the crime RA 8493 (Speedy Trial Act):
alleged or necessarily included in the allegations in o Arraignment of the accused – w/in 30 days from
the information. the filing of the information or from the date the
- While a TC can hold a joint trial of 2 or more accused has appeared before the justice, judge or
criminal case and can render a consolidated court in which the charge is pending, whichever
decision, it cannot convict the accused of the date last occurs.
complex crime constitutive of the various crimes of o If plea of not guilty – has 15 days to prepare for
the 2 informations. trial.
- Void for Vagueness Rule: the law is deemed o Trial shall commence w/in 30 days from
void where the statute itself is couched in such arraignment as fixed by the court.
indefinite language that it is not possible for men of o No case shall the entire trial period exceed 180
ordinary intelligence to determine what acts or days from the first day of trial, except as otherwise
omissions are punishable. authorized by the Chief Justice of the SC.
- The right to be informed of the nature and cause Impartial Trial
of the accusation against may not be waived but the
“cold neutrality of an impartial judge” – for the
defense may waive the right to enter a plea and let
benefit of the litigants and is also designed to
the court enter a plea of not guilty.
preserve the integrity of the judiciary and to gain
- Indictment must fully state the elements of the
and maintain the people’s faith in the institution s
specific offenses alleged to have been committed.
they have erected when they adopted the
An accused cannot be convicted of an offense, even
Constitution.
if duly proven, unless it is alleged or necessarily
Pervasive publicity is not per se prejudicial to
included in the complaint or information.
Different matter if the accused themselves the right of the accused to a fair trial.
Trial judges must be accorded a reasonable
refused to be informed of the nature and cause of
the accusation against them. leeway in asking questions as may be essential to
- Accused may be convicted of as many offenses elicit relevant facts and to bring out the truth. This
charged in the information and proved during the is not only a right but also duty of the judge.
trial, where he fails to object to such duplicitous Public Trial
information during the arraignment. Intended to prevent abuses that may be
- Information which lacks certain material committed against accused.
allegations may sustain a conviction if the accused Not absolute.
fails to object to its sufficiency during trial and Not synonymous to publicized trial.
deficiency is cured by competent evidence Means that the court doors must be open to
presented therein. those who wish to come, sit in the available seats,
- Right to Speedy, Impartial and Public Trial conduct themselves with decorum and observe trial
Speedy Trial processes.
Free from vexatious, capricious and oppressive - Right to Meet the Witnesses Face to Face – right
delays. to cross-examine the complainant and the witnesses.
Accused entitled to dismissal, equivalent to Testimony of the witness who has not submitted
acquittal, if trial is unreasonably delayed. himself to cross-examination is not admissible in
Relative – subject to reasonable delays and evidence being hearsay.
postponements arising from illness, medical This right can be waived.
attention, body operations, etc. - Right to Compulsory Process to secure the
Aggrieved party also has the same rights as the attendance of witnesses and the production of
accused. evidence.
Subpoeana – process directed to a person
requiring him to attend and to testify at the hearing
29
Nachura Notes – Constitutional Law
or trial of an action or at any investigation produce the body of the prisoner at a designated
conducted under the laws of the Philippines or for time and place, with the day and cause of his
the taking of his deposition. caption/detention, to do, to submit to and to receive
2 kinds: whatever the court/judge awarding the writ shall
1. subpoena ad testificandum: compel a person to consider in his behalf.
testify - When available: restores the liberty of an
2. subpoena duces tecum: compel the production individual subjected to physical restraint. It secures
of books, records, things or documents to the prisoner the right to have the cause of his
o test of relevancy: books, documents or other detention examined and determined by the courts;
things requested must appear prima facie relevant to and to have the issue ascertained as to whether he is
the issue subject of the controversy held under lawful authority.
o test of definiteness: such books must be - May also be availed of where, as a consequence
reasonably described by the parties to be readily of a judicial proceeding:
identified 1. there has been deprivation of constitutional
- Requisites: rights
1. evidence is really material 2. the court has no jurisdiction to impose the
2. accused is not guilty of neglect in previously sentence
obtaining the production of such evidence 3. excessive penalty has been imposed, since such
3. the evidence will be available at the time desired sentence is void as to the excess.
4. no similar evidence can be obtained. - The writ will not issue where the person alleged
- Trial in absentia to be restrained on liberty is in the custody of an
Purpose is to speed up the disposition of officer under a process issued by the court which
criminal cases. has jurisdiction to do so.
Mandatory upon the court whenever the accused - Even if the detention is at its inception illegal,
has been arraigned, notified of the date/s of supervening events such as the issuance of a judicial
hearing/s and his absence is unjustified. process, may prevent the discharge of the detained
After the accused has waived further appearance person.
- That the preliminary investigation was invalid
during trial, he can still be ordered arrested by the
and that the offense had already prescribed is not a
court for non-appearance upon summons to appear
ground to grant the issuance of habeas corpus.
for purposes of identification.
Remedy: motion to quash the WOA or file a
Presence of the accused is mandatory:
motion to quash the information based on
1. arraignment and plea
prescription.
2. during trial, for purposes of identification
- Desaparecidos (disappeared persons), persons in
3. promulgation of sentence, except for light
whose behalf the writ was issued could not be found
offense wherein accused may appear by
Remedy: refer the matter to the Commission on
counsel/representative
Accused who escapes from confinement, jumps Human Rights
In case of doubt, the burden of proof rests on the
bail or flees to a foreign country, loses his standing
in court and unless he surrenders or submits himself officers who detained them and who claim to have
to the jurisdiction of the court, he is deemed to effected the release of the detainees.
waive his right to seek relief from the court. - All courts of competent jurisdiction may
entertain petitions for HC to consider the release of
Habeas Corpus petitioners convicted of violation of the Dangerous
- The privilege of the writ of habeas corpus shall Drugs Act, provided they have served the maximum
not be suspended except in cases of invasion or term of the applicable penalties newly prescribed by
rebellion when public safety requires it. RA 7659.
- Definition: a writ issued by a court directed to a - HC lies only where the restraint of the person’s
person detaining another, commanding him to liberty has been judicially adjudged to be illegal or
unlawful.
30
Nachura Notes – Constitutional Law
- Loss of judicial records, after 12 years of - Not limited to the accused in a criminal
detention in the service of the sentence imposed proceedings, but extends to all cases, including civil
upon conviction, will not entitle him to be released and administrative cases and in all proceedings
on HC. Remedy: reconstitution of judicial including judicial and quasi-judicial hearings.
records. - Like right to speedy trial, this right is violated
- Have to comply with the writ. Disobedience only when the proceedings are attended by
constitutes contempt of court. vexatious, capricious and oppressive delays or when
unjustified postponements of the trial are asked for
- In case of invasion or rebellion, when the public and secured, or when without cause or justifiable
safety requires it, the President may for a period not motive a long period of time is allowed to elapse
exceeding 60 days, suspend the privilege of the writ without the party having his case tried.
of HC. - Unlike right to speedy trial, this right is
- W/in 48 hours from the suspension, the available not only during trial but also when the
President shall submit a report, in person or in case has already been submitted for decision.
writing, to Congress. - Right extends to all citizens, including those in
- Congress, voting jointly by a majority vote of at the military, and covers the period before, during
least a majority of all its members in regular or and after trial.
special session may revoke such proclamation or - Right can be waived failure to seasonably
suspension, such revocation shall not be set aside by assert this right.
the President.
- Upon initiative of the President, the Congress Self-incrimination
may, in the same manner, extend such proclamation - No person shall be compelled to be a witness
or suspension for a period to be determined by against himself.
Congress, if the invasion or rebellion shall persists - Right is available not only in criminal
and public safety requires it. prosecutions but also in all other government
- SC may review, in appropriate proceeding filed proceedings, including civil actions and
by any citizen, the sufficiency of the factual basis administrative or legislative investigations.
for the proclamation of martial law and the - It may be claimed not only by the accused but
suspension of the privilege of the HC or the also by any witness to whom a question calling for
extension thereof. an incriminating answer is addressed.
- SC must promulgate its decision w/in 30 days - General Rule: it may be invoked only when and
from filing. as the question calling for an incriminating answer
- The suspension of the privilege of the writ shall is asked. This applies only to ordinary witness.
apply only to persons charged for rebellion or In criminal prosecution accused may not be
offenses inherent in or directly connected with compelled to take the witness stand.
invasion. Similarly applicable to a respondent in an
- During the suspension of the privilege of the administrative proceeding.
writ, any person thus arrested or detained shall be - Scope: not against all compulsion, but
judicially charged within 3 days, otherwise he shall testimonial compulsion only. (not the inclusion of
be released. his body in evidence when it may be material)
Prohibition extends to the compulsion for the
- Suspension of the privilege does not suspend the production of documents, papers and chattels that
right to bail. may be used as evidence against the witness, except
where the State has a right to inspect the same such
Speedy Disposition of Cases as the books of accounts of corporations, under the
- All persons shall have the right to a speedy police or taxing power or where a government
disposition of cases before all judicial, quasi- official is required to produce official
judicial or administrative bodies. documents/public records which are in their
possession.
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Nachura Notes – Constitutional Law
Also protects the accused against any attempt to detainee, or the use of substandard or inadequate
compel him to furnish a specimen of his penal facilities under subhuman conditions shall be
handwriting in connection with a prosecution for dealt with by law.
falsification. - Mere severity does not constitute cruel or
- Immunity: unusual punishment.
1) Transactional Immunity: witness immune from - The penalty must be flagrantly and plainly
any criminal prosecution for an offense to which his oppressive, wholly disproportionate to the nature of
compelled testimony relates. the offense as to shock the moral sense of the
2) Use and Fruit Immunity: prohibits the use of the community.
witness’ compelled testimony and its fruits in any - Death penalty is not a cruel or unusual
manner in connection with the criminal prosecution punishment. It is an exercise of the State’s power to
of the witness. secure society against the threatened and actual evil.
- Those granted this privilege paid a high price – Automatic review in death penalty cases shall
the surrender of their right to remain silent. Should proceed even in the absence of the accused,
be given a liberal interpretation. considering that nothing less than life is at stake and
- Waiver: either directly or by failure to invoke it, any court decision must be error-free as possible.
provided that the waiver is certain and unequivocal
and intelligently made. Non-imprisonment for Debt
- No person shall be imprisoned for debt or non-
Non-detention by Reason of Political Beliefs or payment of a poll tax.
Aspirations - While the debtor cannot be imprisoned for
- No person shall be detained solely by reason of failure to pay his debt, he can be validly punished in
his political beliefs or aspirations. a criminal action if he contracted his debt through
fraud, as his responsibility arises not from the
Involuntary Servitude contract of loan, but from the commission of the
- No involuntary servitude in any form exist crime.
except as a punishment for a crime whereof the
party shall have been duly convicted. Double Jeopardy
- Exceptions: - No person shall be twice put in jeopardy of
1) Punishment for a crime whereof one has been punishment for the same offense.
duly convicted; - If an act is punished by law and an ordinance,
2) Patria potestas conviction or acquittal under either shall constitute
3) Posse comitatus a bar to another prosecution for the same act.
4) Return to work order in industries affected by - Requisites:
public interest 1. valid complaint or information
5) Service in defense of the state does not attach in preliminary investigation.
6) Naval (merchant marine) enlistment 2. filed before a competent court
mistake has been made in charging the proper
Prohibited Punishment offense, the first charge shall be dismissed to pave
- Excessive fines shall not be imposed. the way for the filing of the proper offense. The
- Nor cruel, degrading or inhuman punishment dismissal of the first case will not give rise to
inflicted. double jeopardy inasmuch as the court does not
- Neither shall death penalty be imposed, unless have jurisdiction over the case,
for compelling reasons involving heinous crimes, 3. to which defendant had pleaded
the Congress hereafter provides for it. no arraignment = no double jeopardy
- Any death penalty already imposed shall be grant of motion to quash, filed before the
reduced to RP. accused makes his plea, can be appealed by the
- The employment of physical, psychological or prosecution because the accused has not yet been
degrading punishment against any prisoner or placed in jeopardy.
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Nachura Notes – Constitutional Law
4. defendant was previously acquitted or 1) Against 2nd prosecution for the same offense
convicted, or the case dismissed or otherwise after acquittal;
terminated without his express consent 2) Against a 2nd prosecution for the same offense
promulgation of only one part of the decision is after conviction; and
not a bar to the promulgation of the other part, the 3) Against multiple punishments for the same
imposition of the criminal accountability and does offense.
not constitute a violation of the proscription against - Instances when prosecution may appeal
double jeopardy. 1) Prosecution is denied due process, such denial
- Dismissal of action results in loss or lack of jurisdiction and this appeal
1. permanent dismissal may be allowed
1) termination of the case on the merits resulting in 2) Accused has waived or is estopped from
either conviction or acquittal invoking his right against double jeopardy
2) dismissal of the case because of the - No double jeopardy
prosecution’s failure to prosecute 1) Mistrial
3) dismissal on the ground of unreasonable delay 2) State is deprived of fair opportunity to prosecute
in violation of the right to speedy trial and prove its case
2. provisional dismissal – dismissal without 3) Dismissal of information/complaint is purely
prejudice to reinstatement before order of dismissal capricious
becomes final or to subsequent filing of a new 4) Lack of proper notice to be heard
information within the periods allowed by law. 5) Accused waives or is estopped from invoking
- Express consent – directly given, either viva his right against double jeopardy.
voce or in writing, a positive, direct, unequivocal 6) Dismissal/acquittal is made with grave abuse of
consent requiring no inference or implication to discretion
supply its meaning. - Discharge of co-accused to be utilized as
- When dismissal is made at the instance of the government witness –
accused, there is no double jeopardy. - Accused cannot be prosecuted anew for an
- When the ground for motion to dismiss is identical offense, or for any attempt to commit the
insufficiency of evidence (grant of demurrer) same or frustration thereof, or for any offense
equivalent to an acquittal and any further which necessarily includes or is necessarily
prosecution would violate the constitutional included in the offense charged in the original
proscription against double jeopardy. complaint or information.
- When the proceedings have been unreasonably - Doctrine of Supervening Event – the accused
prolonged as to violate the right of the accused to may still be prosecuted for another offense if a
speedy trial double jeopardy subsequent development changes the character of
- Revival of the case provisionally dismissed – the first indictment under which he may have
time-bar for the revival of criminal cases already been charged or convicted.
provisionally dismissed with the express consent of The conviction of the accused shall not be a bar
the accused and with prior notice to the offended to another prosecution for an offense which
party: necessarily includes the offense charged in the
1) 2 years if the offense charged is penalized by original complaint or information when:
more than 6 years imprisonment a. Graver offense developed due to supervening
2) 1 years if the penalty imposed does not exceed 6 facts arising from the same act or omission;
years imprisonment or a fine in whatever amount b. Facts constituting the graver offense or were
- Prohibits the state from appealing or filing a discovered only after the filing of the former
petition for review if judgment of acquittal that was complaint or information; or
based on the merits of the case. Certiorari will lie to c. The plea of guilty to a lesser offense was made
correct errors of judgment. without the consent of the fiscal or the offended
- Double jeopardy provides three related party.
protections:
33
Nachura Notes – Constitutional Law
Ex post facto law and Bill of attainder - Nationality is membership in any class or form
- No ex post facto law or bill of attainder shall be of political community. It does not necessarily
enacted. include the right/privilege of exercising civil or
- Ex post facto law political rights.
Kinds - Modes of acquiring:
a. Law that makes criminal an action done before 1) Marriage
the passage of the law and which was innocent 2) Birth
when done, and punishes such action; - Jus soli
b. Law that aggravates a crime, or makes it - Jus sanguinis
greater than it was when committed; 3) Naturalization
c. Law that changes the punishment, and inflicts - Natural-born citizens – citizens of the
a greater punishment than the law annexed to the Philippines from birth without having to perform
crime when committed; any act to acquire or perfect their Philippine
d. Law that alters legal rules of evidence and citizenship.
receives less or different testimony than the law - Marriage by Filipino to an alien – citizens of the
required at the time of the commission of the Philippines who marry aliens shall retain their
offense, in order to convict the offender; citizenship, unless by their act or omission they are
e. Law which, assuming to regulate civil rights and deemed, under the law, to have renounced it.
remedies only, in effect imposes a penalty or the - Dual allegiance of citizens is inimical to the
deprivation of a right for something which when national interest and shall be dealt with by law.
done was lawful; - Dual citizenship as a disqualification under the
f. Law which deprives a person accused of a crime LGC must refer to dual allegiance.
of some lawful protection to which they have been - For candidates with dual citizenship, it is
entitled sufficient that they elect Philippine citizenship upon
Characteristics the filing of their certificate of candidacy to
a. Retroactive terminate their status as persons with dual
b. Works to the prejudice of the accused citizenship.
c. Refers to criminal matters Filing of certificate of candidacy is sufficient to
- Bill of attainder renounce foreign citizenship.
Definition: legislative act that inflicts - Attack on one’s citizenship may be made only
punishment without trial. through a direct and not collateral attack.
Substitutes legislative fiat for a judicial - Doctrine of res judicata does not ordinarily
determination of guilt. apply to questions of citizenship.
It is only when the statute applies either to Exception:
named individuals or to easily ascertainable 1) Person’s citizenship is resolved by a court or an
members of a group in such a way as to inflict administrative body as a material issue in the
punishment on them without judicial trial that it controversy, after full-blown hearing
becomes a bill of attainder. 2) Active participation of the SolGen or his
Anti-Subversion Act is not a bill of attainder. representative
simply declares that the Communist Party is an 3) Finding of citizenship is affirmed by the SC
organized conspiracy to overthrow the Government - Citizens of the Philippines
and for definitional purposes only. 1) Citizens of the Philippines at the time of the
adoption of the 1987 Constitution
VII. CITIZENSHIP 2) Whose fathers or mothers are citizens of the
- Definition: membership in a political Philippines
community which is personal and more or less 3) Born before January 17, 1973, of Filipino
permanent in character. mothers, who elect Philippines citizenship upon
reaching the age of majority
34
Nachura Notes – Constitutional Law
6) Able to read, write and speak Filipino or any of 2) w/in 5 years shall establish permanent residence
the dialects in a foreign country
7) Mingled with Filipinos and evinced a sincere o 1-year stay in native country or 2-year stay in a
desire to learn and embrace the customs and foreign country is prima facie evidence of intent to
traditions and ideals of the Filipino people take up residence
- Procedure 3) Allowed himself, wife or children with acquired
1) File with Special Committee a petition citizenship to be used as dummy
2) Publication of pertinent portions of the petition 4) He, his wife or children commits any act
once a week for 3 consecutive weeks in newspaper inimical to national interest
of general circulation
3) Posting of copies in public or conspicuous areas Loss and Reacquisition of Philippine Citizenship
4) Furnish copies to following agencies who shall - Loss of Citizenship
post copies of the petition in any public or 1) Naturalization in a foreign country
conspicuous areas in their building officers and - RA 9225
premises and within 30 days submit to Committee a 2) By express renunciation of citizenship
report stating whether or not petitioner has any 3) By subscribing to an oath of allegiance to
derogatory record on file support the Constitution or laws of a foreign
DFA country upon attaining 21 years of age
Bureau of Immigration and Deportation - Principle of Indelible Allegiance – Filipino may
Civil registrar of petitioner’s place of residence not divest himself of Philippine citizenship in this
NBI manner while Philippines is at war with any country
5) Within 60 days from receipt of agencies’ report, 4) By rendering service or accepting commission
Committee shall consider and review all in the armed forced of a foreign country
information. - Exceptions:
6) If Committee receives any adverse information, 1) Philippines has a defensive and/or offensive
Committee shall allow petitioner to answer, explain pact of alliance with the said foreign country
or refute the petition 2) Foreign country maintains armed forces in the
7) Deny or Approve petition Philippine territory with consent of the Republic
8) Within 30 days from approval, petitioner pays 5) By cancellation of the certificate of
P100,000, take oath of allegiance and certificate of naturalization
naturalization shall issue. 6) By having been declared by competent authority
9) Within 5 days from taking oath, BoI shall a deserter of the Philippine armed forces in time of
forward copy of oath to the proper local civil war
registrar and cancel petitioner’s alien certificate of - Reacquisition of Citizenship
registration. 1) Taking the oath of allegiance required of former
- Status of Alien Wife and Minor Children natural-born Philippine citizens who may have lost
May filed a petition for cancellation of their their citizenship by reason of their acquisition of the
alien certificate of registration. citizenship of a foreign country
If applicant is a married woman, husband may 2) Naturalization provided that he possesses none
not benefit. But minor children may avail of the of the disqualifications
right to seek the cancellation of alien certificate of 3) Repatriation or deserters of the Army, Navy or
registration. Air Corps; a woman who has lost her citizenship by
- Cancellation of the Certificate of Naturalization reason of marriage may be repatriated after
1) Naturalized person or representative made any termination of marital status
false statement or misrepresentation or obtained - Repatriation takes effect as of the date of filing
citizenship fraudulently or illegally or committed of his application.
any violation of the law, rules or regulations - Effect of repatriation is to allow the person to
recover or return to his original status before he lost
his Philippine citizenship.
37
Nachura Notes – Constitutional Law
Congress to make reapportionment of legislative Regional Party: constituency is spread over the
districts within 3 years following return of every geographical territory of at least a majority of the
census. cities and provinces comprising the region.
Constitution does not preclude Congress from Sectoral Party: (LUFEP-WHIP-VY) organized
increasing its membership by passing a law other group of citizens belonging to any of the following:
than a general apportionment law. labor, urban poor, fisherfolk, elderly, peasants,
Reapportionment of legislative districts may be women, handicapped, indigenous cultural
made through a special law. communities, overseas workers and professionals,
Qualifications: veterans and youth.
1) Natural-born Filipino citizen Sectoral Organization: group of citizens or a
2) At the day of the election, at least 25 years old coalition of groups of citizens who share similar
3) Able to read and write physical attributes, characteristics, employment,
4) Except the party-list representative, a registered interest or concern.
voter in the district in which he shall be elected Coalition: aggrupation of duly registered
5) Resident thereof for not less than 1 year national, regional, sectoral parties or organization
immediately preceding the day of the election for political and/or election purposes.
Principles - Registration/Manifestation to Participate in the
1) Minor follows domicile of parents Party-List System
2) Domicile of origin is lost only when there is 90 days prior to election, petition verified by its
a. actual removal or change of domicile President or Secretary
b. bona fide intention of abandoning the former If already registered, file instead a manifestation
residence and establishing a new one of its desire to participate in the party-list system
c. acts which corresponds with the purpose - Refusal and/or Cancellation of Registration
3) Wife does not automatically gain husband’s (motu proprio or upon verified complaint filed by
domicile any interested party; after due notice and hearing)
THEORY OF LEGAL IMPOSIBILITY J. 1) Religious sect/denomination
Francisco (Aquino v. Comelec) 2) Advocate violence to attain goal
Immigration to the US by virtue of a “green 3) Foreign party/organization
card” constitutes abandonment of domicile in the 4) Receives support from foreign party/org
Philippines. (Caasi vs. COMELEC) 5) Declares untruthful statement in its petition
Term: 3 years, commencing at noon on the 30th 6) Violates or fails to comply with election laws,
day of June next following their election, rules and regulations
Limitation: shall not serve for more than 3 7) Failed to participate in the last 2 preceding
consecutive terms. elections or fails to obtain at least 2% of the votes
- Party-List System: mechanism for proportional cast under the party-list system in the 2 preceding
representation elections for the constituency in which it has
Party: political party, sectoral party or coalition registered
of parties 8) Ceased to exist for at least 1 year
Political Party: organized group of citizens - Nomination of a party-list representative: each
advocating an ideology or platform, principles and registered party, organization or coalition must
policies for the general conduct of government and submit a list of names to the COMELEC not later
which, as the most immediate means of securing than 45 days before the election.
their adoption, regularly nominates and supports Not less than 5
certain of its leaders and members as candoidates Only persons who have given their consent may
for public office. be included in the list
National Party: constituency is spread over the Not include any candidate for elective position,
geographical territory of at least a majority of the or who lost the immediately preceding election
regions. No change allowed except:
39
Nachura Notes – Constitutional Law
40
Nachura Notes – Constitutional Law
members of the Senate and House approving such next regular session, exclusive of Saturdays,
increase. Sundays and legal holidays.
Special: call by president usually to consider
Privileges legislative measure which the President may
1) Freedom from Arrest designate in his call
Offenses punishable by not more than 6 years Joint
imprisonment, be privileged from arrest while 1) Voting Separately
Congress is in session. a. Choosing the president
2) Privilege of Speech and of Debate b. Determine disability of the president
Not be questioned nor be held liable in any c. Confirming nomination of VP
other place for any speech/debate in the Congress or d. Declaration of the existence of a state of war
in any committee. e. Proposing constitutional amendments
Held to account for such speech or debate by the 2) Voting Jointly
House to which he belongs a. Revoke/extend proclamation suspending the
privilege of the writ of HC
Disqualifications b. Or placing the Philippines under martial law
1) Incompatible Office Adjournment – neither House during the
Not hold any other office or employment sessions of the Congress shall, without the consent
Forfeiture of the seat in Congress automatically of the other adjourn for more than 3 days nor to any
upon assumption of incompatible office. other place than that in which the 2 Houses shall be
N/A if he holds the government office in an ex sitting.
officio capacity
2) Forbidden Office Officers
Neither shall he be appointed to any office Senate elects its President
which may have been created or the emoluments House elects its Speaker
thereof increased during the term for which he was Each nay choose such other officers as it may
elected. deem necessary
Last only for the duration of the term for which
the member of Congress was elected. Quorum
Majority of each House
Other Inhibitions But a smaller number may adjourn from day to
not personally appear as counsel before any day and may compel the attendance of absent
court, ET, quasi-judicial or other administrative Members in such manner and under such penalties
bodies as such House may determine
not be directly or indirectly interested Quorum in the Senate shall be the total number
financially in any contract with, or any franchise or of Senators who are in the country and within the
special privilege granted by the Government coercive jurisdiction of the Senate.
not intervene in any matter before any office of
the Government for his pecuniary benefit or where Rules of Proceedings
he may be called upon to act on account of his Each House determined the rules of its
office. proceedings.
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Nachura Notes – Constitutional Law
d. Constitutional appellate jurisdiction of SC distributed to its Members 3 days before its passage
e. No law granting a title of royalty or nobility EXCEPT when President certifies to the necessity
shall be passed of its immediate enactment to meet a public
- Implied calamity or emergency.
a. Non-delegation of powers Courts are denied the power to inquire into
b. Prohibition against the passage if irrepealable allegations that, in enacting a law, a House of
laws Congress failed to comply with its own rules, in the
2. Procedural absence of any showing that there was a violation of
a. Only one subject to be expressed in the title constitutional requirements or the rights of private
- Title is not required to be an index of the individuals.
contents of the bill It is within the Bicameral Conference
- Sufficient compliance if the title expresses the Committee to include in its report an entirely new
general subject and all the provisions of the statute provision that is not found either in the House or
are germane to thee subject Senate bill.
- Sufficient if the title is comprehensive enough, If the Committee can propose an amendment
as in this case, to include subjects related to the consisting of 1 or 2 provisions, there is no reason
general purpose which the statute seeks to achieve. why it cannot propose several provisions,
- Rider is a provision not germane to the subject collectively considered as “an amendment in the
matter of the bill. nature of a substitute” so long as the amendment is
b. Three readings on separate days germane to the subject of the bills before the
- Printed copies of bill in its final form distributed Committee.”
to Members 3 days before its passage Jurisdiction of the Conference Committee is not
- EXCEPT when the President certifies to its limited to resolving differences between the Senate
immediate enactment to meet a public calamity or and the House versions of the bill. It may propose
emergency an entirely new provision.
- Upon last reading, no amendment allowed, and - Approval of Bills
vote thereon taken immediately and the yeas and The bill becomes a law in the following cases:
nays entered in the journal a. President approves the same and signs it.
- Presidential certification dispensed with the b. Congress overrides the Presidential veto – if the
requirement not only of printing but also that of President disapproves the bill, he shall return the
reading the bill on separate days. same, with his objections contained in his Veto
3. Legislative Process message to the House of origin (which shall enter
- Requirements as to bill the objections at large in its Journal). The veto is
Only 1 subject to be expressed in the title overridden upon a vote of 2/3 of all members of the
Appropriation, revenue bills, tariff bills, bills of House of origin and the other House. Yeas and Nays
local application, bills authorizing increase of entered in the Journal of each House.
public debts and private bills shall originate o No pocket veto.
exclusively in the House of Representative. o Partial veto, as a rule, is invalid. It is allowed
It is not the law, but the bill, which is required to only for particular items in an appropriation,
originate exclusively in the House, because the bill revenue or tariff bill. The President cannot veto part
may undergo such extensive changes in the Senate of an item in an appropriation bill while approving
that the result may be a rewriting of the whole. the remaining portion of the item.
The Constitution does not prohibit the filing in o Legislative Veto – a congressional veto is a
the Senate of a “substitute bill” in anticipation of its means whereby the legislature can block or modify
receipt of the bill from the House, so long as the administrative action taken under a statute. It is a
action by the Senate as a body is withheld pending form of legislative control in the implementation of
receipt of the House bill. particular executive action. It may be negative
- Procedure: passed 3 readings on separate days, (subjecting the executive action to disapproval by
and printed copies in its final form have been
43
Nachura Notes – Constitutional Law
45
Nachura Notes – Constitutional Law
province or city shall be transmitted to Congress - No person who has succeeded as President and
directed to Senate President. has served for more than 4 years shall be qualified
SP, upon receipt, shall not later than 30 days for election to the same office at any time
after the day of the election, open all the certificates
in the presence of the Senate and House in joint Privileges
public session. 1. Official Residence
Congress upon determination of the authenticity 2. Salary
and due execution, shall canvass the votes. - Determined by law
Congress shall promulgate its own rules. - Shall not be decreased during tenure
2 or more candidates shall have an equal and - No increase shall take effect until after
highest number of votes, one of them shall be expiration of the term of the incumbent during
chosen by a majority vote of all members of which such increase was approved.
Congress. 3. Immunity from Suit
- Congress has the authority to proclaim the - President is immune from suit
winning candidates for the position of President and - May not be prevented from instituting a suit
Vice President - Immune from civil liability
- Congress may delegate the initial determination - After tenure, cannot invoke immunity from suit
of the authenticity and due execution of the for civil damages arising out of acts done by him
certificate of canvass to a Joint Congressional while he was President which was not performed in
Committee, composed of members of the House the exercise of official duties.
and Senate - Department Secretaries, though alter egos,
- The decisions and final report of the Committee cannot invoke President’s immunity from suit.
shall be subject to the approval of the joint session
of both Houses if Congress, voting separately. Prohibitions/Inhibitions
- Even if Congress has adjourned its regular 1. Not receive any other emoluments from the
session it may continue to perform this government or nay other source
Constitutional duty of canvassing the presidential 2. Not hold any other office or employment, unless
and vice-presidential election results without need provided in this Constitution
of any call for a special session by the President. - VP may be appointed to the Cabinet without
- The joint public session cannot adjourn sine die need of confirmation from Commission on
until it has accomplished its constitutionally Appointment
mandated task. - Secretary of Justice is ex-officio member of
- No constitutional or statutory basis for Judicial and Bar Council
COMELEC to undertake a separate and an - Secretary of Labor ex-officio member of
“unofficial” tabulation of results descends to the BOD of PEZA
level of private organization while using public - Secretary of TC ex-officio Chairman of PPA
funds, violates exclusive prerogative of NAMFREL and LRTA
and taints integrity of envelopes containing ER and - Prohibition must not be construed as applying to
the ERs themselves. poses occupied by Executive officials without
- SC as Presidential Electoral Tribunal additional compensation in an ex-officio capacity,
SC, en banc as provided by law and as required by the primary
Sole judge of all contests relating to the functions of the said official’s office. These posts do
election, returns and qualifications of the President not comprise “any other office” but is an imposition
or VP of additional duties and functions on said official.
Promulgate its own rules 3. Not directly or indirectly practice any other
profession, participate in any business or be
Term of Office: 6 years financially interested in any contract, franchise or
- No re-election special privilege
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Nachura Notes – Constitutional Law
4. Strictly avoid conflict of interest in the conduct Death, permanent disability, removal from
of their office office or resignation of President VP shall
5. May not appoint Spouse or Relatives by become President
consanguinity or affinity within the fourth civil Elements of Valid Resignation:
degree as 1. intent to resign
a. Members of Constitutional Commissions 2. act of relinquishment
b. Office of the Ombudsman
c. Secretaries - Temporary Disability
d. Undersecretaries President transmits to Senate President and
e. Chairman/heads of Speaker
bureaus/offices/GOCCs/subsidiaries His written declaration that he is unable to
discharge the powers and duties of his office
Rules on Succession Until he transmits a written declaration to the
- Vacancy at the BEGINNING of term contrary
Powers and duties shall be discharged by the VP
DEATH or VP-elect shall become as Acting President
PERMANENT President Majority of the members of the Cabinet transmit
DISABILITY of President
to Senate President and Speaker
– elect
Written declaration that the President is unable
President-elect fails to VP-elect shall act as
to discharge the powers and duties of his office
qualify President until
VP shall IMMEDIATELY assume the powers
President-elect shall
and duties of the office as Acting President
have qualified
IF President shall transmit written declaration
President shall not have VP-elect shall act as
been chosen President until that no such disability exists
He shall reassume the powers and duties of his
President-elect shall
have been chosen and office
qualified IF majority of the members of the Cabinet
No President and VP: Senate President or in transmit within 5 days to SP and Speaker their
- Chosen case of his disability, written declaration that the President is unable to
- Qualified the Speaker of the discharge the powers and duties of his office,
- Both died House shall act as Congress shall decide the issue
- Both become President until a Congress shall convene within 48 hours, if not
permanently disabled President or VP shall in session
been chosen and w/in 10 days from receipt of last declaration OR
qualified. if not in session w/in 12 days after it is required to
In case of inability of assemble Congress determines by 2/3 vote of
both, Congress shall, both Houses, voting separately
by law provide for the that President is unable VP shall act as
manner by which one President; Otherwise, President shall continue
who is to act as exercising the powers and duties of his office.
President shall be
selected until a Constitutional Duty of Congress in case of Vacancy
President or VP shall in the Offices of President and VP
have qualified. - 10:00am, 3rd day after the vacancy occurs
- Congress shall convene without need of call
- Vacancy DURING the term - w/in 7 days enact a law calling for a special
election to elect a President and VP
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Nachura Notes – Constitutional Law
- election held not earlier than 45 days nor later e. Emergency powers, by delegation from
than 60 days from time of such call Congress
- bill shall be deemed certified and shall become f. General supervision over LGs and autonomous
law upon approval on 3rd reading by Congress regional governments
- convening cannot be suspended
- election cannot be postponed Executive Power
- IF vacancy occurs w/in 18 months before the - Executive Power: power to enforce and
date of the next presidential election NO special administer the laws
election - Power of carrying out the laws into practical
operation and enforcing their due observance
Removal of President: Impeachment - Authority to Reorganize the Office of the
President “to achieve simplicity, economy and
Vice-President efficiency.”
- Power to reorganize the OP under Section 31 (1)
Qualifications of EO 292 (Administrative Code) President can
1. natural-born citizen reorganize the OP proper by abolishing,
2. registered voter consolidating or merging units or by transferring
3. able to read and write functions from one unit to another
4. on the day of the election, at least 40 years old - Power to reorganize the OP under Section 31 (2)
5. resident of the Philippines for at least 10 years and b(3) of EO 292 (Administrative Code)
immediately preceding such election power of the President to reorganize offices outside
of the OP proper is limited to merely transferring
Term: No VP shall serve for more than 2 successive functions/agencies from OP to
terms. Departments/Agencies and v.v.
- It is not for the President to determine the
Vacancy in VP validity of the law, it is the function of the judiciary.
- President shall nominate a VP from among Unless and until such law is declared
members of Senate and House unconstitutional, President has the duty to execute
- Assume office upon confirmation by a majority it.
vote of all Members of both Houses of Congress,
voting separately Power of Appointment
- Nominate and with consent of the Commission
Powers of the President on Appointments, appoint:
1) Executive Power a. Heads of the executive departments
2) Power of Appointment b. Ambassadors
3) Power of Control c. Other public ministers and consuls
4) Military Powers d. Officers of the armed forces from the rank of
5) Pardoning Power colonel or naval captain
6) Borrowing Power e. Other officers whose appointments are vested in
7) Diplomatic Power him in this Constitution
8) Budgetary Power - Appoint all other officers of the Government
9) Informing Power whose appointments are not otherwise provided by
10) Others law
a. Call Congress to special session - Appoint those whom he may be authorized by
b. Power to approve or veto bolls law to appoint.
c. Consent to deputation of government personnel - Congress may by law, vest appointment of other
by COMELEC officers lower in rank in the
d. Discipline such deputies a. President alone,
b. Courts
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Nachura Notes – Constitutional Law
Implied from power of appointment And the acts of Secretaries, performed and
President cannot remove officials appointed by promulgated in the regular course of business are,
him where the Constitution prescribes certain unless disapproved or reprobated are presumptively
methods for separation of such officers from service the acts of the Chief Executive.
Chairman and commissioners of Constitutional - President may exercise powers conferred by law
Commissions impeachment upon Cabinet members or subordinate executive
Judges disciplining authority of SC officers.
Where power of removal is lodged in President: - Power of the president to reorganize the
a. Cause as may be provided by law National Government may validly be delegated to
b. Prescribed administrative procedure his Cabinet members exercising control over a
Members of career service of the Civil Service particular executive department.
- Appeal to the President from decisions of
who are appointed by the President may be directly
executive officers, including Cabinet members,
disciplined by him
complete the exhaustion of administrative remedies.
Members of Cabinet and Officers whose
Exception: Doctrine of Qualified Political
continuity in office depends upon pleasure of
Agency applies, in which case the decision of
President replaced any time; separation is not by
Cabinet Secretary carries the presumptive approval
removal but EXPIRATION of term. of the President, thus there is no need to appeal to
the President.
- Power of control may be exercised over the acts,
Power of Control NOT over the actors
- President shall have control of all - Power of control of Secretary of Justice over
Executive departments prosecutors
Bureaus Decisions/Resolutions of prosecutors are subject
Offices to appeal to the Secretary of Justice who exercises
- Control: power of an officer to alter, modify, set power of direct control and supervision over
aside, or nullify what a subordinate had done in the prosecutors.
performance of his duties and to substitute the Where Secretary exercises power of review only
judgment of the former for that of the latter. after an information is filed, TC should defer or
Supervision: overseeing; the power of an officer suspend arraignment and other proceedings until
to see that subordinate officers perform their duties, appeal is resolved. HOWEVER, the TC is not ipso
and if the latter fails or neglects to fulfill them, then facto bound by the resolution of the Secretary,
the former may take such action or steps as because jurisdiction, once acquired is not lost
prescribed by law to make them perform these despite the resolution of the Secretary to withdraw
duties. the information or to dismiss the case.
- Alter Ego Principle/Doctrine of Qualified - Power of general supervision over local
Political Agency governments.
All executives and administrative organizations - President can only interfere in the affairs and
are adjuncts of the Executive department activities of a local government unit of he finds that
The heads of the various executive departments the latter had acted contrary to law.
are assistants and agents of the Chief Executive Otherwise, violative of local autonomy.
And, except in cases where the Chief Executive - Local fiscal autonomy: automatic release of
is required by the Constitution or law to act LGU shares in the national internal revenue.
personally OR the exigencies of the situation -
demand that he act personally, the multifarious Military Powers
executive and administrative functions of the Chief - Commander-in-Chief of all armed forces of the
Executive are performed by and through the Philippines
executive departments,
50
Nachura Notes – Constitutional Law
- If necessary, he may call out such armed forces SC may review upon proceeding filed by any
to prevent or suppress lawless violence, invasion or citizen, as to the sufficiency of factual basis. It must
rebellion. promulgate its decision w/in 30 days from its filing.
- In case of invasion or rebellion, when public Suspension does not impair the right to bail.
safety requires it, he may, for a period not Suspension applies to persons judicially charged
exceeding 60 days, suspend the privilege of the writ for rebellion or offenses inherent in or directly
of HC or place the Philippines or any part thereof connected with invasion
under martial law. During suspension, any person thus arrested
- Commander-in-Chief Clause shall be judicially charged w/in 3 days, otherwise he
Conduct of saturation drives or areal target shall be released.
zoning - Martial Law
Exercises discretionary power NOT Suspend operation of the Constitution
Only criterion, “whenever it becomes NOT Supplant the functioning of civil courts or
necessary” legislative assemblies
Discretionary authority to declare state of NOT authorize conferment of jurisdiction on
rebellion military courts and agencies over civilians where
Court may only look into the sufficiency of the civil courts are able to function
factual basis for the exercise of the power. NOT automatically suspend the privilege of the
Mere declaration of a state of rebellion cannot writ
diminish or violate constitutionally protected rights
Power to organize courts martial for the disciple Pardoning Power
of members of the armed forces - Except in cases of IMPEACHMENT or AS
Power to create military commissions for the OTHERWISE PROVIDED IN THE
punishment of war criminals CONSTITUTION
Military tribunals cannot try civilians when civil - May grant, after conviction by final judgment
courts are open and functioning a. Reprieves
Members of the PNP are not within the b. Commutations
jurisdiction of the military court c. Pardons
RA 7055, lawmakers intended to return to d. Remit fines and forfeitures
civilian courts jurisdiction over offenses that have - May grant Amnesty with concurrence of a
traditionally within their jurisdiction but did not majority of all members of the Congress
divest the military courts jurisdiction over cases - Pardon: act of grace which exempts the
mandated by the Article of War individual from punishment that the law inflicts
a. Disrespect towards the President upon the crime he has committed
b. Disrespect towards Superior Officer - Commutation: reduction or mitigation of
c. Sedition/Mutiny penalty
d. Conduct Unbecoming an Officer and a - Reprieve: postponement of sentence/ stay of
Gentleman execution
e. General Articles of the Articles of War - Parole: release from imprisonment but still in
- Suspension of the privilege of the writ of HC custody of law although not in confinement
Grounds: invasion or rebellion, when public - Amnesty: act of grace, with concurrence of
safety requires it legislature, usually extended to group of persons
Duration: not to exceed 60 days, unless who committed political offenses, puts into oblivion
extended by Congress the offense itself
Duty of President to Report action to Congress: - Discretionary exercise by the President
- Cannot be controlled by Legislature or reversed
w/in 48 hours, personally or in writing
by courts unless there is a constitutional violation.
Congress may revoke or extend by a majority
- Limitations:
vote of all its members, voting jointly
51
Nachura Notes – Constitutional Law
52
Nachura Notes – Constitutional Law
- Address Congress at the opening of its regular 6. members of Judiciary have security of tenure
session 7. members of Judiciary may not be designated to
- May appear before it at any other time any agency performing quasi-judicial or
administrative functions
X. JUDICIAL DEPARTMENT 8. salaries of judges may not be reduced; Judiciary
enjoys fiscal autonomy
Judicial Power 9. SC alone may initiate ROC
- Duty of the courts of justice to settle actual 10. SC alone may order temporary detail judges
controversies involving rights which are legally 11. SC can appoint officials and employees of
demandable and enforceable, and to determine judiciary
whether or not there has been grave abuse of
discretion amounting to lack or excess of Qualifications
jurisdiction on the part of any branch or - Proven competence, integrity, probity and
instrumentality of the government. independence +
- Political questions forbidden territory of - SC
courts 1) Natural-born
- Inherent power of Courts to amend and control 2) At least 40
its processed and orders so as to make them 3) 15 years or more a judge of a lower court or
comformable with law and justice. engaged in the practice of law in the Philippines
- Right to reverse itself.
- Lower Collegiate Courts
Where vested 1) Natural-born
- 1 SC 2) Member of Philippine Bar
- Such lower courts as may be established by law 3) Congress may prescribe other qualifications
a majority of the members who took part in the - “sin perjuicio” judgment without a statement of
deliberations and voted the facts in support of its conclusions, to be later
NOTE: only cases involving dismissal of judges supplemented by the final judgment.
of LCs are required to be decided by the Court en - Designed to prevent delay in the administration
banc. of justice.
First clause: declaration of grant of the - Failure to decide cases within the prescribed
disciplining power to and the determination of the period is not excusable and constitute gross
procedure in the exercise by the Court en banc inefficiency which is a ground for administrative
Grounds for the removal of a judicial officer sanction against the defaulting judge.
should be established beyond reasonable doubt, - Judges who cannot comply with this mandate
particularly where the charges on which removal is should ask for additional time, explaining in their
sought are misconduct in office, willful neglect, request the reasons for the delay.
corruption, incompetence, etc. - Despite expiration of the mandatory period, the
Judges cannot be disciplined for every court, without prejudice to such responsibility as
erroneous order or decision rendered in the absence may have been incurred in consequence thereof,
of a clear showing of ill motive, malice or bad faith. shall decide or resolve the case or matter submitted
The absence of bad faith or malice will not to it without further delay.
totally exculpate them from charges of - Court does not lose jurisdiction despite the lapse
incompetence and ignorance of the law when they of the mandatory period.
render decisions that are totally bereft of factual and
legal bases. XI. CONSTITUTIONAL COMMISSION
- No law shall be passed reorganizing the
Judiciary when it undermines the security of tenure Independent Constitutional Commission
of its members. 1. Civil Service Commission
2. COMELEC
Salaries 3. Commission on Audit
- Fixed by law
- May not be decreased during their continuance Safeguards Insuring the Independence of the
in office Commission
- Imposition of income tax on salaries of judges 1. constitutionally created, and not be abolished by
does not violate the constitutional prohibition statute
against decrease in salaries 2. expressly described as “independent”
3. conferred certain powers and functions which
Periods of Decisions cannot be reduced by statute
- All cases filed after the effectivity of the 4. enjoy fiscal autonomy
Constitution must be decided and resolved, from “no report, no release” policy may not be
date of submission validly enforced against offices vested with fiscal
24 months – SC autonomy.
12 months – lower collegiate courts Automatic release of approved annual
3 months – all other lower courts appropriations to a constitutional commission
- Unless in the 2 latter cases, the period is reduced vested with fiscal autonomy should be construed to
by the SC mean that no condition to fund releases to it may be
- Certification to be signed by the Chief imposed.
Justice/Presiding Justice shall be issued stating the Provision in Section 3, Article VIII, prohibiting
reason for delay the reduction in the appropriation for the Judiciary
- Must not sacrifice for expediency’s sake the below the amount appropriated for the previous
fundamental requirements of due process year does not appear in Section 5, Article IX-A….
Congress is not prohibited from reducing the
appropriations Constitutional Commissions below
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Nachura Notes – Constitutional Law
the amount appropriated for them for the previous - Majority vote of ALL members and not only of
year. those who participated in the deliberations and
5. promulgate its own procedural rules, provided voted thereon.
they do not diminish, increase or modify substantive - Retired prior to promulgation of decision
rights (subject to disapproval by the SC) votes should be considered withdrawn, as if they
6. appoint their own officials and employees in had not signed the resolution; only the votes of the
accordance with Civil Service Law remaining commissioners shall be counted.
7. Chairman and members removed only by - Treat the procedural requirements on deadlines
impeachment realistically.
8. Chairman and members are given a fairly long 2. Aggrieved party may bring the decision to the
term of 7 years SC on certiorari w/in 30 days from receipt of copy
9. Chairman and members may not be reappointed - When Court reviews a decision of the
or appointed in an acting capacity COMELEC, the Court exercises extraordinary
10. salaries of Chairman and members are relatively jurisdiction; thus the proceeding is limited to issues
high and may not be decreased during continuance involving grave abuse of discretion resulting in lack
in office or excess of jurisdiction and does not ordinarily
11. Chairman and members are subject to certain empower the Court to review factual findings.
disqualification calculated to strengthen their - Certiorari under R65 is the appropriate remedy.
integrity - Judgment of the COA are not reviewable by
ordinary writ of error or appeal by certiorari to the
Inhibitions/Disqualifications SC. Only when COA acts without or in excess of
1. not hold any other office or employment, during jurisdiction, or with GAD amounting to lack or
tenure excess of jurisdiction, may this court entertain a
2. not engage in the practice of any profession petition for certiorari under R65.
3. not engage in the active management or control - Decisions of the CSC shall be appealable by
of any business which in any way may be affected certiorari to the CA w/in 15 days from receipt of a
by the functions of his office copy. From the decision of the CA, the party
4. not be financially interested, directly or adversely affected thereby shall file a petition for
indirectly, in any contract or in any franchise or review on certiorari under R45.
privilege granted by the Government
Enforcement of Decision
Rotational Scheme of Appointments - Final decision of the CSC are enforceable by
- First appointees serve terms of 7, 5 and 3 years. writ of execution which CSC may itself issue.
- After the first commissioners are appointed, the
rotational scheme is intended to prevent the CIVIL SERVICE COMMISSION
possibility of one President appointing all the
Commissioners. Composition
- Rotational plan requires: - Chairman
1. terms of the first commissioners should start on - 2 Commissioners
a common date
2. any vacancy due to death, resignation or Qualifications
disability before the expiration of the term should 1. Natural-born
only be filled for the unexpired balance of the term. 2. at the time of the appointment at least 35 years
old
Decisions 3. proven capacity for public administration
1. Each Commission shall decide by a majority 4. not have been candidates for any elective
vote of all its members any case or matter brought position in the election immediately preceding their
before it w/in 60 days from the date of its appointment
submission for decision or resolution.
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Nachura Notes – Constitutional Law
Term - Includes:
- Appointed by the President with the consent of 1. Economic Intelligence and Information Bureau
the Commission on Appointments 2. Jose M. Rodriguez Hospital
- Term of 7 years, without reappointment 3. Philippine National Red Cross
- In no case shall any member be appointed or 4. UP
designated in temporary or acting capacity. 5. Morong Water District
- N/A:
Constitutional Objective/Function 1. National Housing Corporation
1. central personnel agency of the Government
2. establish a career service Classes of Service
3. adopt measures to promote morale, efficiency, 1. Career Service
integrity, responsiveness, progressiveness and a. Description
courtesy in the civil service - Entrance based on merit and fitness, as far as
4. strengthen merit and reward system practicable by competitive examinations
5. integrate all human resources development - Or based on highly and technical qualifications
programs for all levels and ranks - Opportunity for advancement to higher career
6. institutionalize a management climate positions
conducive to public accountability - Security of tenure
b. Includes:
- Granting civil service eligibility to employees 1) Open Career Service
under provisional or temporary status who have - Prior qualification in an appropriate
rendered 7 years of efficient service is examination is required
DISCRETIONARY on the CSC and may not be 2) Closed Career Service
compelled by mandamus to issue such eligibility. - Scientific or highly technical
- CSC cannot validly abolish Career Executive 3) Career Executive Service
Service Board - Undersecretaries, bureau directors, etc.
- Power to hear and decide administrative cases 4) Positions in the Armed Forces of the Philippines
instituted before it directly or on appeal, including - Governed by a different merit system
contested appointments. 5) Career Officers
- Power to recall an appointment initially - Other than those belonging to Career Executive
approved in disregard of the applicable provisions Service, appointed by President, e.g. foreign service
of the Civil Service law and regulations. 6) Personnel of GOCC w/ original charters
- Original jurisdiction to hear and decide a 7) Permanent laborers (skilled, semi-skilled or
complaint for cheating in the CS examinations by a unskilled)
government employee. c. Incumbents of positions which are declared to
- Decisions of lower level officials in cases be CES positions for the first time who hold
involving personnel actions be appealed to the permanent appointments shall remain under
agency head then to the CSC. (not RTC) permanent status in their position. Upon promotion
- CSC does not have appellate jurisdiction over a or transfer to other CES positions, these incumbents
case of separation from government service under shall be under temporary status in said other CES
Section 2, Article II of the Provisional Constitution. positions until qualify,
d. Mere fact that a position belongs to the CES
Scope of the CS does not automatically confer security of tenure on
- Embrace ALL branches, subdivisions, the applicant. Such right will have to depend on the
instrumentalities and agencies of the Government, nature of his appointment which depends on his
including GOCCs with original charter eligibility or lack of it.
- “with original charter” refers to corporation e. A person who does not have the requisite
chartered by special law as distinguished from qualifications for the position cannot be appointed.
corporations organized under the Corporation Code
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Nachura Notes – Constitutional Law
position, the appointing authority has discretion 3) Appointive official, except when allowed by
who to appoint. law or the primary functions of his position
Even if officers and employees in the career Ex-officio capacity
service of the Civil Service enjoy preference in the
promotion, it is not mandatory that the vacancy be Security of Tenure
filled by promotion. - Removed and suspended for case provided by
Discretion of the appointing authority is not law.
only in the choice of the person who is to be - Ground, procedure for investigation and the
appointed, but also in the nature or character of the discipline of career service officers and EEs
appointment issued. Career Service Law; Non-compliance constitutes
CSC cannot convert temporary appointment to a denial of the right to security of tenure
permanent one arrogation of power belonging to - Presidential appointee direct disciplinary
appointing authority. authority of the President
May approve as merely temporary an - Reassignment does not offend the constitutional
appointment intended to be permanent when the guarantee
appointee does not possess the requisite eligibility - Reinstatement – deemed not to have left his
and the exigency of the service demands that the office; entitled to payment of back salaries,
position be filled even in a temporary capacity. notwithstanding silence.
Payment of back wages during the period of
Role of the CSC suspension of a civil servant who is subsequently
Check if the appointee possesses the reinstated is proper only if he is found innocent of
qualifications and appropriate eligibility; if he does, the charges and the suspension is unjustified.
appointment is approved; if he doesn’t, appointment BUT where the reinstatement is ordered not as a
is disapproved. result of exoneration but merely as an act of
Selection or placement is made through the liberality, the claim for back wages was not
Placement Committee, the members of which are allowed. It follows the general rule that the public
the representatives of the head of the agency as well official is not entitled to compensation if he has not
as representatives of the employees. Said rendered any service.
Committee’s work is merely recommendatory. - Valid abolition of office does not violate the
Appointment should be submitted to the CSC constitutional guarantee of security of tenure.
w/in 30 days from issuance; otherwise, it shall be - ROC, career service officer or employee who
ineffective. has been unlawfully ousted from his office has 1
CSC Memorandum Circular – only the year within which to file an action in court to
appointing authority has the right to challenge the recover office.
CSC’s disapproval of an appointment. Exception: Cristobal vs. Melchot grounds of
Abella, Jr. vs. CSC both the appointing equity
authority and the appointee are the real parties in - Appellate jurisdiction of the CSC only over
interest and both have legal standing Merit System Protection Board’s decisions in
Challenge to the appointing authority’s administrative disciplinary cases involving the
discretion imposition of the penalty of suspension, fine,
While appointee has no vested right to the
demotion in rank or salary, transfer, removal,
dismissal from office – not over MSPB decision
position, it was his elgibility that was being
exonerating the accused. Only by the party
questioned; he has a personal stake in the outcome
adversely affected (Not ER).
- He who, while occupying one office, accepts
Disqualifications
another incompatible with the first, ipso facto
1) Lost in any election within 1 year preceding the
vacates the first office and his title thereto is thereby
appointment
terminated without any other act of proceeding.
2) Elective official during tenure
60
Nachura Notes – Constitutional Law
Canonizado vs. Aguirre: accepted another Retiree can continue to receive such
position while case questioning the law that pension/gratuity even after he accepts another
removed him from his first position was still government position to which another
pending. compensation is attached.
Partisan Political Activity – no officer or employee Oath of Allegiance – shall take an oath or
in the civil service shall engage, directly or affirmation to uphold and defend this Constitution
indirectly, in any electioneering or partisan political
campaign COMMISSION ON ELECTIONS
Except to vote
Does not prevent expression of views regarding Composition
political problems or mention the names of the - Chairman
public officers he supports - 6 Commissioners
Applicable to military establishments only to
those in the active military service, not to reservists Qualifications
Exemptions: 1. Natural-born
1. members of the Cabinet 2. at the time of the appointment at least 35 years
2. public officers and employees holding political old
offices 3. holder of a college decree
The above 2 are allowed to take part in political 4. not have been candidates in the immediately
and electoral activities, except to solicit preceding election
contributions from their subordinates or commit 5. majority, including the chairman, must be
acts prohibited under the Election Code. member of the Philippine Bar who have been
engaged in the practice of law for at least 10 years.
The right to Self-organization shall not be denied to
government employees Term
May not engage in strikes to demand changes in - Appointed by the President with the consent of
the Commission on Appointments
the terms and conditions of employment because
- Term of 7 years, without reappointment
such are provided for by law.
- In no case shall any member be appointed or
designated in temporary or acting capacity.
Temporary employees of the Government shall be
given such protection as may be provided by law.
En Banc and Division cases
It may sit en banc of in 2 division, and shall
Standardization of Compensation
Provided for by Congress (and also qualification promulgate its rules of procedure in order to
expedite disposition of cases, including pre-
required fir their positions)
proclamation controversies.
All such election cases shall be heard and
Double Compensation
No elective or appointive public officer or decided in division, provided that motions for
reconsideration of decisions shall be decided en
employee shall receive additional, double or
banc.
indirect compensation, UNLESS specifically
Cases which must first be heard and decided in
authorized by law,
Nor accept without the consent of Congress, any division
1. all election cases, including pre-proclamation
present, emoluments office or title of any kind from
contests, originally cognizable by the Commission
any foreign government.
2. cancel certificate of candidacy
Pensions and gratuities shall not be considered
3. cases appealed from the RTC or MTC (SC may
as additional, double or indirect compensation. motu proprio consider question of jurisdiction)
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Nachura Notes – Constitutional Law
4. petition for certiorari filed with COMELEC a. All contests relating to the elections, returns and
from a decision of the RTC or MTC qualifications of all elective regional, provincial and
Exceptions: city officials.
1. error in tabulation results or tallying of results Exclusive appellate jurisdiction
by the Board of Canvassers, merely clerical in b. All contests involving elective municipal
nature (petition for correction of manifest errors in officials decide by RTC
the Statement of Votes) c. Elective barangay officials decided by MTC
2. prosecution cases involving violation of election 3) Decide all questions relating to elections
laws Determination of the number and location of
The rule that all election cases shall be heard polling places
and decided in division applies only when the Appointment of election officials and inspectors
COMELEC exercises its adjudicatory powers or Registration of voters
quasi-judicial functions, not when it exercises EXCEPT: right to vote
purely administrative functions. 4) Deputize law enforcement agencies and
instrumentalities for the exclusive purpose of
COMELEC decisions reviewable by the SC ensuring free, orderly , honest and peaceful and
1. decisions of COMELEC en banc, on certiorari credible elections, with concurrence of President
2. only decision of COMELEC in the exercise of 5) Accredit Citizen’s Arm and Register political
its adjudicatory or quasi-judicial power may be parties, coalitions or organizations
brought to SC on certiorari After sufficient publication
if merely administrative in character ordinary Present platform/program of government
civil action before trial courts 6) File petition in court for the inclusion/exclusion
of voters, upon verified complaint or in its own
COMELEC en banc shall promulgate rules initiative; investigate and/or prosecute cases for
concerning pleadings and practice before it or violations of election laws
before any of its offices, but they must not diminish, 7) Recommend to Congress effective measures to
increase or modify substantive rights minimize election spending, limitation of places
subject to the rule that rules of procedure of where propaganda materials shall be posted and to
special courts and quasi-judicial bodies shall remain prevent and penalize all forms of election frauds,
effective unless disapproved by the SC offenses, malpractice and nuisance candidates
rules on civpro regarding demurrer to evidence 8) Submit to the President and Congress a
cannot apply to election cases, even by analogy in comprehensive report on the conduct of each
suppletory character. election, plebiscite initiative, referendum or recall
Authority to suspend reglamentary periods
provided by its rules, or the requirement of NFS, in Enforce and administer all laws and regulations
the interest of justice and speedy resolution of relative to the conduct of an election, plebiscite,
cases. It is not constrained to dismiss a case on the initiative, referendum or recall
ground of non-payment of filing fees. Initiative: power of the people to propose
Fingerprinting of chairman and members of the amendments to the Constitution or to propose and
Board of Election Inspectors is an internal matter enact legislation through an election called for the
and may be done even without prior notice. purpose.
Referendum: power of the electorate to approve
Constitutional Powers and Functions or reject legislation through an election called for
1) Enforce and administer all laws and regulations the purpose
relative to the conduct of an election, plebiscite, Recall: termination of official relationship of a
initiative, referendum or recall local elective official for loss of confidence prior to
2) Exclusive original jurisdiction the expiration of his term through the will of the
electorate
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Nachura Notes – Constitutional Law
Plebiscite: submission of constitutional 1) No voting has taken place in the precint on the
amendments or important legislative measures to sate fixed by law or even if there was voting, the
the people for ratification. result nevertheless results in a failure to elect
1) Broad powers – promulgate rules and 2) Votes not cast would affect the result of the
regulations in the enforcement of laws relative to election
elections 6) Not authorized to make an unofficial quick
Enforcement of provisions of the Omnibus count of presidential election results
Election Code exclusive jurisdiction of the
COMELEC Exclusive original jurisdiction
Includes the ascertainment of the identity of a All contests relating to the elections, returns
political party and its legitimate officers and qualifications of all elective regional,
Does not authorize the COMELEC, motu provincial and city officials.
proprio, without the proper proceedings, to deny
due course to cancel a certificate of candidacy filed Exclusive jurisdiction over pre-proclamation cases
in due form. Possible conflict with HR/S ET foreclosed by
Election and contests involving election of Section 15, RA 7166 prohibits pre-proclamation
Sangguniang Kabataan elections do NOT fall within controversies in national offices (EXCEPT on
jurisdiction of the COMELEC DILG question involving the composition and proceedings
Authority to annul results of plebiscite (through of the Board of Canvassers)
pre-proclamation case of revision of ballots) ET over a member only after proclamation
2) Regulatory power over media of transportation,
communication and information COMELEC without the power to partially/totally
to ensure equal opportunity, time, space, right to annul a proclamation or to suspend the effects of a
reply, etc. proclamation without notice and hearing
during election period violation of due process clause
exercised only over the media, not over
practitioners of media Power to issue writs of prohibition, certiorari, etc.
3) No pardon, amnesty, parole, etc, for violation of In the exercise of its exclusive appellate
election laws shall be granted by the President jurisdiction
without its favorable recommendation
4) COMELEC cannot exercise power of Exclusive appellate jurisdiction
apportionment All contests involving elective municipal
5) Power to declare failure of election officials decide by RTC
The election in any polling place has not been Elective barangay officials decided by MTC
held on the date fixed on account of force majeure, Decisions shall be final, executory and
violence, terrorism, fraud or other analogous case unappealable
The election in any polling place has been Appeal to the COMELEC from RTC must be
suspended before the hour fixed by law for the filed within 5 days from receipt of a copy of the
closing of the voting on account of force majeure, decision.
violence, terrorism, fraud or other analogous case MR of RTC decision is a prohibited pleading
After the voting and during the preparation and and does not interrupt running of period for appeal.
transmission of the election returns or in custody or Mere filing of notice of appeal is not sufficient,
canvas, such election results in a failure to elect on must be accompanied by payment of correct amount
account of force majeure, violence, terrorism, fraud of appeal fee.
or other analogous case. Permissive – COMELEC may give due course,
Petition must show, on its face and the subsequent payment cures the procedural
defect.
63
Nachura Notes – Constitutional Law
64
Nachura Notes – Constitutional Law
Stricter in cases of special election, at least there Judicial Review of COMELEC Decisions
must be substantial compliance Petition for certiorari (R65)
In fixing date of special election: Filed with SC
1) Should not be later than 30 days after the w/in 30 days from receipt of decision of
cessation of the cause of the postponement or COMELEC en banc
suspension of the election or failure to elect
Not absolute; directory COMMISSION ON AUDIT
Residual powers to conduct special elections
even beyond the deadline prescribed Composition
2) Reasonably close to the date of the election not - Chairman
held, suspended, or which resulted in failure - 2 Commissioners
No law which provides for a reglementary
period within which to file a petition for the Qualifications
annulment of an election if there has been no 1. Natural-born
proclamation yet 2. at least 35 years old
Legally remain in office in “hold-over” capacity 3. CPAs with not less than 10 years of auditing
until successors have been elected and qualified experience OR members of the Philippine Bar with
(LGC limits term of barangay officials to 3 years) at least 10 years practice of law
4. not have been candidates in the election
Exclusive original jurisdiction over all pre- immediately preceding the appointment
proclamation cases 5. no time shall ALL members belong to the same
GR: COMELEC restricted, in ore-proclamation profession
cases, to an examination of the election returns on
their face and is without jurisdiction to go beyond Term
them and investigate election irregularities. - Appointed by the President with the consent of
Exception: duty-bound to investigate allegations the Commission on Appointments
of fraud, terrorism, violence and other analogous - Term of 7 years, without reappointment
cases in an action for annulment of election results
or for a declaration of failure of elections. (may Powers and Duties
conduct technical examination of election 1. Examine, audit and settle all accounts pertaining
documents and analyze signatures and fingerprints to the revenue and receipts of, and expenditures or
in order to determine whether the election has been uses of funds and property owned or held in trust or
free, honest and clean) pertaining to the Government
2. Keep the general accounts of Government and
Party-System - a free and open party-system shall preserve vouchers and supporting papers for such
be allowed to evolve according to the free choice of period as provided by law
the people 3. authority to define the scope of its audit and
Votes cast in favor of political party, examination, establish techniques and methods
required therefore
organization or collation that are REGISTERED.
4. Promulgate accounting and auditing rules and
Entitled to appoint poll watchers in accordance
regulations, including those for the prevention and
with law. disallowance of irregular, unnecessary, expensive,
extravagant or unconscionable expenditures or uses
Election Period of government funds or property
Commence 90 days before the day of the
election and shall end 30 days thereafter Examine, audit and settle all accounts pertaining to
Exception: period fixed by COMELEC in the revenue and receipts of, and expenditures or
special cases uses of funds and property owned or held in trust or
pertaining to the Government
65
Nachura Notes – Constitutional Law
For purposes of initiating a preliminary should be withdrawn and a criminal case should be
investigation before the Office of the Ombudsman, dismissed, and to move for the withdrawal of such
a complaint “in any form or manner” is sufficient. information or dismissal of a criminal case, the final
Ombudsman or his deputy is authorized to disposition of the said motion and of the case is
preventively suspend any officer or employee under addressed to the sound discretion of the
his authority pending an investigation irrespective Sandiganbayan, subject only to the caveat that the
of whether such officer or employee is employed in action of the Sandiganbayan must not impair the
the Office of the Ombudsman or in any other substantial rights of the accused and the right of the
government agency. people t due process of law.
Whether evidence of guilt is strong to warrant RA 1405 (Law on Secrecy of Bank Deposit) –
preventive suspension is left to the determination of before an in camera inspection of bank accounts
the Ombudsman. There is no need for preliminary may be allowed:
hearing. 1) there must be a pending case before a court of
Congress can, by statute, prescribe other competent jurisdiction
powers, functions and duties to the Ombudsman. 2) account must be clearly identified
He may utilize the personnel of his office to 3) inspection limited to the subject matter of the
assist in the investigation of the cases, the pending case before the court
Ombudsman may refer cases involving non-military 4) bank personnel and account holder must be
personnel for investigation by the Deputy notified to be present during the inspection
Ombudsman for Military Affairs. 5) inspection may cover only the account identified
Power to cite for contempt; exercised by the in the pending case
Ombudsman while conducting preliminary investigation being done by the Ombudsman is
investigation because preliminary investigation is NOT one before a court of competent jurisdiction
an exercise of quasi-judicial functions. Ombudsman has no authority to directly dismiss
Appeals shall be made to the CA in accordance a public officer from government service
with R43. Can only recommend to the officer concerned
“any illegal act or omission of any public the removal of a public officer or employee found
official” is broad enough to embrace any crime to be administratively liable
committed by a public official or employee. HOWEVER the refusal, without just cause, of
Power of the Ombudsman to investigate and to any officer to comply with such an order of the
prosecute, as granted by law, is plenary and Ombudsman to penalize an erring officer or
unqualified. employee is a ground for disciplinary action.
The authority of the Ombudsman to investigate Special Prosecutor
is not an exclusive authority, but rather a shared or Existing Tanodbayan (at the time of the
concurrent authority with the Department of Justice adoption of the 1987 Constitution) shall be known
Panel of Investigators, “in respect of the offense as the Special Prosecutor.
charged” It shall continue to function and exercise its
It is not for the court to review the powers as now or hereafter provided by law, except
Ombudsman’s paramount decision in prosecuting or those conferred to the Office of the Ombudsman.
dismissing a complaint filed before his office.
Exception: grave abuse of discretion on the part Ill-gotten Wealth
of the Ombudsman in either prosecuting or Right of the State to recover properties
dismissing a case before it is evident. unlawfully acquired by public officials or
Case law holds that the Court is loathe to employees, from them or from their nominees or
interfere with the exercise by the Ombudsman of its transferees, shall not be barred by prescription,
powers. laches or estoppel.
While the Office of the Ombudsman has the Applies only to civil actions for recovery of ill-
discretion to determine whether an information gotten wealth and not to criminal cases.
69
Nachura Notes – Constitutional Law
72
Nachura Notes – Constitutional Law
- The lease for 99 years with a 50-year option to through an action for reversion (as expressly
purchase the property if and when Wong Heng authorized under the Public Land Act with respect
would be naturalized is a virtual surrender of all to lands which formerly formed part of the public
rights incident to ownership and therefore invalid. domain).
(PNB vs. Lui She)
- Land tenure is not indispensable to the free Remedies to Recover Private Land from
exercise of religious profession and worship. Disqualified Alien
A religious corporation, controlled by non- 1. Escheat Proceedings
Filipinos, cannot acquire and own lands even for a 2. Action for Reversion under Public Land Act
religious use or purpose. The Director of Lands has the authority and the
For a religious corporation sole to acquire lands, specific duty to conduct investigation of alleged
it must appear that at least 60% of the faithful or its fraud in obtaining free patents and the
members are citizens of the Philippines in order to corresponding titles to alienable public lands.
comply with the citizenship requirement. And if the facts warrant, to file the
This is so regardless of the citizenship of the corresponding court action for the reversion of the
incumbent inasmuch as a corporation sole is merely land to the State.
an administrator of the temporalities or properties Imprescriptible.
titled in its name and for the benefit of its members. State, alone, which may institute reversion
- Land sold to an alien which was later transferred proceedings against public lands allegedly acquired
to a Filipino citizen – or where the alien later through fraud and misrepresentation.
becomes a Filipino citizen can no longer be Private parties are without legal standing at all
recovered by the vendor because ether is no longer question the validity of respondent’s title.
any public policy involved. Property in dispute is still part of the public
- Exceptions to the Rule: domain, only the State can file suit for
1. Hereditary Succession reconveyance of such public land.
Exception: testamentary disposition The State can be in estoppel by the mistakes or
2. A natural born citizen of the Philippines who errors of its officials or agents.
has lost his Philippine citizenship may be a o Estoppel against the State is not favored; it may
transferee of private lands be invoked only in rare and unusual circumstances.
Filipino citizen may acquire 5,000 square
o State may not be allowed to deal dishonorably
meters of urban land or capriciously with its citizens.
Filipino citizen may acquire 3,000 hectares of
o State may be held in estoppel for irregular acts
rural land and mistakes of its officials.
May be used for residence, business and for
o Republic vs. CA, where the State failed to
other purposes.
correct and recover the alleged increase in the land
area of the titles issued, the prolonged inaction
3. Americans hold valid title to private lands as
strongly militates against its cause, tantamount to
against private persons
laches.
Titles to private lands acquired by such persons
o Laches – failure or neglect, for an unreasonable
before such date (July 3, 1974) shall be valid as
and unexplained length of time, to do that which by
against private persons only) – Transitory Provision
exercising due diligence could or should have been
of the 1973 Constitution.
done earlier.
Previous owner may no longer recover land
o The negligence or omission to assert a right
from an American buyer who succeeded in
within a reasonable time, warranting a presumption
obtaining title over the land.
that the party entitled to assert it either abandoned it
Only the State has the superior right to the land
or decline to assert it.
through the institution of escheat proceeding (as a
consequence of the violation of the Constitution) or
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Nachura Notes – Constitutional Law
3. Action for recovery filed by the former Filipino - The reason for the interdiction of unfair
owner, the pari delicto ruling having been competition and the reason for the prohibition of
abandoned, unless the land is sold to an American unmitigated monopolies.
citizen prior to July 3, 1974 and the American - A market controlled by one player (monopoly)
citizen obtained title thereto. or dominated by a handful of players (oligopoly) is
hardly the market where honest-to-goodness
Preference for Filipino Labor, etc. competition will prevail.
- The State shall promote the preferential use of - Constitution enshrined free enterprise as a
Filipino labor, domestic materials and locally policy, it nevertheless reserves to the Government
produced goods, and adopt measures that help make the power to intervene whenever necessary for the
them competitive. promotion of the general welfare.
- The promotion of social justice shall include the - Constitutionality of the Comprehensive
commitment to create economic opportunities based Agrarian Reform Law.
on freedom of initiative and self-reliance.
- Pursuit to social justice cannot justify breaking Urban Land and Housing Reform
the law. - The State shall, by law, and for the common
- The State’s solitude for the destitute and the good, undertake, in cooperation with the private
have-nots does not mean it should tolerate sector, a continuing program of urban land reform
usurpation of property, public or private. and housing which will make available at affordable
cost decent housing and basic services to
Labor underprivileged and homeless citizens in urban
- The State shall afford full protection to labor, centers and resettlement areas.
local and overseas, organized and unorganized, and - It shall promote adequate employment
promote full employment and equality of opportunities.
employment opportunities for all. - State shall respect the rights of small property
- It shall guarantee the rights of all workers to: owners.
1. self-organization - Urban or rural poor dwellers shall not be evicted
2. collective bargaining and negotiations nor their dwellings demolished,
3. peaceful concerted activities, including the right Except: in accordance with law and
to strike in accordance with law in a just and humane manner.
- They shall be entitled to: - No resettlement of urban or rural dwellers shall
1. security of tenure be undertaken without adequate consideration with
2. humane conditions of work them and the communities where they are to be
3. living wage located.
- They shall also participate in policy and
decision-making processes affecting their rights and - Eviction of squatters and the demolition of their
benefits as may be provided by law. shanties shall be done in accordance with law does
- The State shall promote the principle of shared not mean that the validity and legality of demolition
responsibility between the workers and employers or eviction hinges on the existence of resettlement
and the preferential use of voluntary modes in area designated or earmarked by the Government.
settling disputes, including conciliation and shall - Judicial notice of the fact that urban reform has
enforce their mutual compliance to foster industrial become a paramount task of Government in view o
peace. the acute shortage of decent housing in urban areas.
- The State shall regulate the relations between - Section 19 of the LGC imposes certain
workers and employers, recognizing the restriction on the exercise of the power of eminent
1. right of labor to its just share in the fruits of domain/
production and - RA 7279 provides the order in which lands may
2. the right of enterprises to reasonable returns on be acquired for socialized housing.
investments and to expansion and growth. - Urban tenant’s right of first refusal (pre-emptive
right), can be exercised only where the disputed
- Employees in the civil service may not resort to land is situated in an area declared to be an area for
strikes, walkouts and other temporary work priority development (APD) and an urban land
stoppages to pressure the Government to accede to reform zone (ULRZ).
their demands.
- The ability to strike is not essential to the right Human Rights
to association and the right to sovereign to prohibit The Commission on Human Rights
strikes or work stoppages was clearly recognized at Composition
common law. 1. Chairman
2. 4 Members
Agrarian and Natural Resources Reform Qualifications
75
Nachura Notes – Constitutional Law
77
Nachura Notes – Constitutional Law
enrollees to meet the standards required before Law shall take effect only upon its ratification
becoming full-pledged public accountants. by the people in a national referendum.
Prerogative of the school to provide standards
for its teachers and to determine whether or not Armed Forces of the Philippines
these standards have been met is in accordance with Composed of a citizen armed force
academic freedom and constitutional autonomy Which shall undergo military training
which give educational institutions the right to And serve, as may be provided by law.
choose who should teach.
Academic freedom was never meant to be All members of the armed forces shall take an
unbridled license; it is a privilege which assumes oath or affirmation to uphold and defend the
the correlative duty to exercise it responsibly. Constitution
Conferment of an honor or distinction was Professionalism and Adequate Remuneration
obtained through fraud, the University has the right shall be a prime concern of the State.
to revoke or withdraw the honor or distinction Insulated from partisan politics.
conferred. The right does not terminate upon the No member of the military shall engage directly
graduation of the student. or indirectly in any partisan political activity except
to vote.
Language No member of the armed forces in the active
National language Filipino
service shall, at any time, be appointed or
Purpose of communication and instruction designated in any capacity to any civilian position.
Filipino, and until otherwise provided by law, Laws on retirement of military officers shall not
English allow extension of their service.
Regional languages auxiliary official The officers and men of the regular force of the
languages in the regions and shall serve as ancillary armed forces shall be recruited proportionately from
media of instruction all provinces and cities as far as practicable.
Spanish and Arabic promoted on voluntary
and optional basis National Police Force
Constitution shall be promulgated in Filipino The State shall establish and maintain one
and English and shall be translated into major police force, which shall be:
regional languages, Arabic and Spanish. National in scope and
Civilian in character.
XVII. THE FAMILY
To be administered and controlled by a national
police commission.
XVII. GENERAL PROVISIONS
Authority of local executives over the police
Flag units in their jurisdiction shall be provided by law.
Red, white and blue RA 6975 established the PNP under a
A sun and 3 stars reorganized department, DILG.
As consecrated and honored by the people and
Mass Media and Advertising Industry
recognized by law.
Mass Media
Ownership limited to CITIZENS or
Name
Congress may, by law, adopt: CORPORATIONS WHOLLY-OWNED and
MANAGED by such citizens.
a new name for the country
Congress shall regulate or prohibit monopolies
a national anthem or
in commercial mass media.
a national seal
Advertising Industry
which shall be truly reflective and symbolic of
the ideals, history, and traditions of the people.
78
Nachura Notes – Constitutional Law
month period, does not comply with the immunity in civil and criminal cases, without need
constitutional requirement. of prior Congressional approval is sustained.
- Lifting of the sequestration orders does not ispo - Penal violations to fall within the jurisdiction of
facto mean that sequestrated property are not ill- the PCGG:
gotten. The effect of the lifting will merely be the 1) it must relate to ill-gotten wealth;
termination of the role of government as 2) of the late President Marcos, his immediate
conservator of the property. family, relatives, subordinates, and close associates;
- Writ of sequestration may be issued only upon 3) who took advantage of their public office and/or
authority of at least 2 PCGG Commissioners. power, authority, influence, connections or
- PCGG may not validly delegate its authority to relationships.
sequester. - Those not fulfilling the above elements are not
- PCGG cannot perform acts of strict ownership within the authority of the PCGG but within the
of sequestrated property. PCGG being a mere jurisdiction of the Ombudsman and other duly
CONSERVATOR. authorized investigating agencies.
Exception: case of take-over of a business - The invalid preliminary investigation did not
belonging to the government or whose impair the validity of the criminal information or
capitalization comes from public funds but which otherwise render them defective; much less did not
landed in private hands. affect the jurisdiction of the Court.
- Sequestration does not automatically deprive the The only effect is the imposition on the latter of
stockholders of their right to vote their shares of the obligation to suspend the proceedings and to
stock. Until the main sequestration case is resolved, require the holding of preliminary investigation.
the right to vote the sequestered shares of stocks - A mere allegation in the anti-graft complaint
depends on the 2-tiered tests: that the accused is a relative of then President
1. whether there is prima facie evidence showing Marcos will not suffice to enable the PCGG to take
that the said shares are ill-gotten and thus belong to cognizance of the case. There must, in addition, be a
the State showing that the accused has unlawfully
2. whether there is an immediate danger of accumulated wealth by virtue of such close relation
dissipation thus necessitating their continued with the former President.
sequestration and voting by PCGG while the main - Fact of sequestration alone did not automatically
issue pends with the Sandiganbayan. oust the RTC of its jurisdiction.
Does not apply in cases involving funds of - In order that the Sandiganbayan’s exclusive
“public character” jurisdiction may be invoked, the PCGG must be a
The Government is granted the authority to vote party to the suit.
said shares: - The Office of the Solicitor General may validly
1. where government shares are taken over by call the PCGG for assistance and ask it to respond
private persons or entities who/which registered to a motion for a bill of particulars, considering that
them in their own names and PCGG has the complete records of the case and,
2. where the capitalization or shares that were being in charge of the investigation, is more
acquired by public funds somehow landed on knowledgeable and better informed.
private hands.
- Sandiganbayan can review the validity of GENERAL PRINCIPLES
sequestration orders.
- Absence of express prohibition, the rule on Principles of Local Autonomy
amicable settlement or compromise agreements in Constitutional Provisions
the Civil Code is applicable to PCGG cases before The State shall ensure the local autonomy of
the Sandiganbayan. local governments
- PCGG’s authority to enter into compromise The territorial and political subdivisions shall
agreements involving ill-gotten wealth and to grant enjoy local autonomy
80
Nachura Notes – Constitutional Law
The principle of local autonomy under the 1987 2. Private: formed for some private purpose.
Constitution simply means 3. Quasi-Public: private corporation that renders
“DECENTRALIZATION”. public service or supplies public wants.
It does not make the local government sovereign
within the state or an imperium in iperio. Criterion to determine whether corporation is
Autonomy is either: public
1. decentralization of administration Relationship of the corporation to the State; if it
no valid constitutional challenge is created by the State as its own agency to help the
delegation of administrative powers to broaden State in carrying out its governmental function then
the base of governmental power. it is public. Otherwise, it is private.
2. decentralization of power
abdication by the national government of Classes of public corporations
1. Quasi-corporation – created by the state for a
political power in favor of the local government
limited purpose.
Congress retains control over the LGUs
2. Municipal Corporation – body politic and
although significantly reduced under the
corporate constituted by the incorporation of the
Constitution. National legislature is still the
inhabitants for the purpose of local government.
principal of LGUs which cannot defy its will or
modify or violate it.
Municipal Corporation
Power to tax of LGUs which cannot be
Elements:
withdrawn by mere statute. 1. Legal creation or incorporation
Any form of autonomy granted to local Law creating or authorizing the creation or
governments will necessarily be limited and incorporation of a municipal corporation.
confined within the extent allowed by the central 2. Corporate name
authority. Sanggunian Panlalawigan may change the name
Exercise of local autonomy remains subject to: of component cities or municipalities:
1. power of control by Congress and 1. consultation with Philippine Historical Institute
2. general supervision by the President 2. effective upon ratification in a plebiscite
Scope of President’s supervisory powers: 3. Inhabitants
President can only interfere in the affairs and People residing in the territory.
activities of a local government unit if he finds that 4. Territory
the latter had acted contrary to law; Land mass where the inhabitants reside
Cannot interfere in local affairs as long as the Together with external and internal waters and
concerned local government unit acts within the the airspace above.
parameters of the law and the Constitution;
Otherwise, violates the principle of local Dual Nature and Functions
autonomy and the doctrine of separation of powers. Exercise powers as a political subdivision of the
Liga ng mga Barangay is not subject to the National Government and
control by the Chief Executive or his alter ego. As a corporate entity representing the
inhabitants of the territory.
Corporation 1. Public or Governmental – acts as agents of the
Artificial being created by operation of law, State, for the government of the territory and the
having the right of succession and the powers, inhabitants.
attributes and properties expressly authorized by 2. Private or Proprietary – acts as agents of the
law or incident to its existence. community in the administration of local affairs.
Acts as a separate entity for its own purposes and
Classification not as a subdivision of the state.
1. Public: organized for the government of a
portion of a state.
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Nachura Notes – Constitutional Law
Roles of Municipal Corporations in the 6766, cannot validly constitute the Autonomous
Philippines Region of the Cordilleras.
The territorial and political subdivisions of the Special Metropolitan Political Subdivision
Philippines are the PROVINCES, CITIES, Congress may by law create special
MUNICIPALITIES and BARANGAYS. There shall metropolitan political subdivisions subject to a
be AUTONOMOUS REGIONS in MUSLIM plebiscite.
MINDANAO and the CORDILLERAS. The component cities and municipalities shall
retain their basic autonomy
Provinces Entitled to their own local executives and
Cluster of municipalities or municipalities and legislative assemblies
component cities. Jurisdiction of the metropolitan authority shall
Dynamic mechanism for developmental be limited to basic services requiring coordination.
processes and effective governance of LGUs within
its territorial jurisdiction. Creation and Dissolution of Municipal Corporations
City Authority to Create
More urbanized and developed barangays LGU may be created, divided, merged,
General purpose government for the abolished or its boundaries substantially altered
coordination and delivery of basic, regular and either by:
direct services. 1. law enacted by Congress – provinces, city,
Effective governance of the inhabitants within municipality or any other political subdivision
its jurisdiction. 2. ordinance passed by Sangguniang Panlalawigan
Muncipality or Sangguniang Panlungsod – barangay
Group of barangays
General purpose government for the Requisites/Limitation on Creation or
coordination and delivery of basic, regular and Conversion
direct services. No province, city, municipality or barangay may
Effective governance of the inhabitant within its be created, divided, merged, abolished or its
jurisdiction. boundary substantially altered, EXCEPT
Barangay 1. in accordance with criteria established in the
LGC
Basic political unit
2. subject to approval by a majority of the votes
Primary planning and implementing unit of
cast in a plebiscite in the political units directly
government policies, plans, programs, projects and affected
activities in the community. Plebiscite Requirement: conducted by the
Forum where collective views of the people
COMELEC within 120 days from the date of
may be expressed. effectivity of the law or ordinance effecting such
Where disputes may be amicably settled.
action, unless said law or ordinance fixes another
Autonomous Regions in Muslim Mindanao and date.
the Cordilleras Plebiscite for creating a new province should
Datu Firdausi Abbas vs. COMELEC: act include the participation of the residents of the
establishing the Autonomous Regional Government mother province in order to conform to the
of Muslim Mindanao was held valid. constitutional requirement.
Cordillera Broad Colaition vs. Commission on Where the law authorizing the holding of a
Audit: exercise of legislative powers, creating the plebiscite is unconstitutional, the Court cannot
Cordillera Administrative Region was held valid. It authorize the holding of a new one.
prepared the groundwork for autonomy and the The fact that the plebiscite which the petition
adoption of the organic law. sought to stop had already been held and officials of
Ordillo vs. COMELEC: sole province of Ifugao the new province appointed does not make the
which, in the plebiscite, alone voted in favor RA
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Nachura Notes – Constitutional Law
petition moot and academic, as the petition raises an Compliance with the foregoing indicators shall
issue of constitutional dimensions. be attested to by the Department of Finance, the
Section 7, RA 7160 – verifiable indicators of National Statistics Office and the Lands
viability and projected capacity to provide services: Management Bureau of the Department of
1. Income Environment and Natural Resources.
Sufficient, based on acceptable standards Requirement that the territory of the newly-
To provide for all essential government facilities created local government units be identified by
and services and special functions metes and bounds is intended to provide the means
Commensurate with the size of its population by which the area of the local government unit may
Average annual income for the last 2 be reasonably ascertained.
consecutive years based on 1991 constant prices: Territorial jurisdiction of the newly created city
may be reasonably ascertained – by referring to
1. Municipality: 2,500,000 common boundaries with neighboring
2. City 100,000,000 municipalities – then the legislative intent has been
3. Highly Urbanized City: 50,000,000 sufficiently served.
4. Province: 20,000,000 Other constitutional limitations: Bill of Rights
Internal Revenue Allotment should be included
in the computation of the average annual income of Beginning of Corporate Existence
the municipality. (for purposes of determining ELECTION and QUALIFICATION of its Chief
whether the municipality may be validly converted Executive and a majority of the members of its
into a city) sangguinan.
For conversion to cities, the municipality’s UNLESS some other time is fixed therefore by
income should not include the IRA. the law or ordinance creating it.
2. Population
Total number of inhabitants within the territorial Division and Merger, Abolition of LGUs
jurisdiction of the LGU concerned. Division and Merger
Required minimum population: comply with same requirements, provided that
1. Barangay: 2,000 inhabitants; except in Metro such division shall not reduce the income,
Manila and other metropolitan political subdivisions population or land area of the local government
or in highly urbanized cities where the requirement unit/s concerned to less than the minimum
is 5,000 inhabitants requirements prescribed
2. Municipality: 25,000 provided, further, that the income classification
3. City: 150,000 of the original local government unit/s shall not fall
4. Highly Urbanized City: 200,000 below its current income classification prior to the
5. Province: 250,000 division.
3. Land Area Abolition
Contiguous, unless it comprises 2 or more LGU may be abolished when its income,
islands or is separated by a LGU independent of the population or land area has been irreversibly
others reduced to less than the minimum standards.
Properly identified by metes and bounds with Law or ordinance abolishing a LGU shall
technical descriptions specify the province, city, municipality or barangay
Sufficient to provide for such basic services and with which the local government unit sought to be
facilities to meet the requirements of its populace. abolished will be incorporated or merged.
Area Requirements:
1. Municipality: 50 sq. kms. De Facto Municipal Corporation
2. City: 100 sq. kms. Requisites:
3. Province: 2,000 sq. kms. 1. Valid law authorizing incorporation
2. Attempt in good faith to organize under it
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Nachura Notes – Constitutional Law
3. Colorable compliance with the law 3. Any tax exemption, incentive or relief granted
4. Assumption of corporate powers by any LGU shall be construed strictly against the
Not de facto municipal corporations, because person claiming it.
there was no law authorizing incorporation. 4. The general welfare provision shall be liberally
interpreted to give more powers to LGUs in
Attack Against Invalidity of Incorporation accelerating economic development and upgrading
No collateral attack the quality of life for the people in the community.
Inquiry into the legal existence of a municipal 5. Rights and obligations existing on the date of
corporation is reserved to the state in a proceeding effectivity of this Code and arising out of contracts
for quo warranto or other direct proceeding. or any other source of prestation involving a LGU
Rule is applicable only when the municipal shall be governed by the original terms and
corporation is at least a de facto municipal conditions of said contracts or the law force at the
corporation time of such rights were vested.
6. In the resolution of controversies arising under
The Local Government Code this Code where no legal provision of jurisprudence
Effectivity: January 1, 1992; after its complete applies, resort may be had to the customs and
publication in at least 1 newspaper of general traditions in the place where the controversies take
circulation. place.
Scope of Application: all provinces, cities,
municipalities, barangays and other political II. GENERAL POWERS AND ATTRIBUTES
subdivisions as may be created by law and to OF LOCAL GOVERNMENT UNITS
officials, offices or agencies of the National
Government. Powers in General
10. LGUs shall ensure that theirs respective budget - Authorize reclassification of agricultural lands
incorporate the requirements of their component - And provide for the manner of their
units and provide for equitable allocation of utilization/disposition
resources among those - Grounds:
11. national planning shall be based on local 1. land ceases to be economically feasible and
planning sound for agricultural purposes as determined by
12. fiscal responsibility shall be shared by all those Department of Agriculture
exercising authority over financial affairs, 2. land shall have substantially greater economic
transactions and operations of the LGUs value for residential, commercial or industrial
13. the LGU shall endeavor to have a balanced purposes, as determined by the sanggunian
budget in each fiscal year of operation - Reclassification shall be limited to the following
percentage of the total agricultural land area at the
Eminent Domain time of the passage of the ordinance:
- Through chief executive and acting pursuant to 1. highly urbanized cities and independent
an ordinance component cities: 15%
- For public purpose/use/welfare, for the benefit 2. component cities and 1st to 3rd class
of the poor and landless municipalities: 10%
- Payment of just compensation 3. 4th to 6th class of municipalities: 5% Provided
- Valid and definite offer has been previously that agricultural land distributed to land reform
made to the owners and such offer was not accepted beneficiaries shall not be affected by such
- LGU may immediately take possession: reclassification.
1. upon filing of the expropriation and
2. making a deposit with the proper court of at Closure and Opening of Roads
least 15% of the FMV of the property based on - Pursuant to an ordinance
current tax declaration of the property - Permanently or temporarily close or open any
- Amount to be paid for the property shall be road, alley, park or square falling within its
determined by proper court based on FMV at the jurisdiction
time of TAKING of the property. - Provided, in case of permanent closure,
- Additional Limitations ordinance must be approved by at least 2/3 of all
1. exercised by local chief executive, pursuant to members of the sanggunian and when necessary, an
VALID ordinance adequate substitute for the public facility shall be
2. public use or purpose or welfare, for the benefit provided.
of the poor and landless - Additional limitations:
3. after valid and definite offer has been made to 1. adequate provision for the maintenance of
and not accepted by the owner public safety
- Power of eminent domain is expressly granted 2. property may be used or conveyed for any
to the municipality under the LGC purpose for which other real property may be
- What is required by law is an ORDINANCE, lawfully used or conveyed but no freedom parks
not a resolution. shall be closed permanently without provision for
Ordinance is a law while a resolution is merely its transfer or relocation to a new site.
a declaration of sentiment or opinion of a law- 3. temporary closure may be made during an
making body on a specific matter actual emergency, fiesta celebration, public rallies,
3rd reading is needed for an ordinance, not for a etc.
resolution unless decided otherwise by a majority of - Municipality has the authority to:
the members of the Sanggunian 1. prepare and adopt a land use map
2. promulgate zoning ordinance
Reclassification of Lands 3. close any municipal road
- City/municipality through ordinance passed - provincial roads and city streets are property for
after conducting public hearings public use and under absolute control of Congress;
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Nachura Notes – Constitutional Law
they are outside commerce of man and cannot be The veto shall be communicated by the local
disposed to private persons chief executive to the sanggunian
- Power to vacate is discretionary on the w/in 15 days in case of a province
Sanggunian w/in 10 days in case of a municipality
- When properties are no longer intended for Otherwise, the ordinance shall be deemed
public use, the same may be used or conveyed for approved, as if signed
any lawful purpose and may even become Grant of veto power accords the Mayor the
patrimonial and subject to common contract. discretion whether or not to approve the
- City Council has the authority to determine resolution… signature on the resolution is NOT
whether or not a certain street is still necessary for ministerial duty of the Mayor.
public use. Ordinance enacted by the sangguniang barangay
shall, upon approval by a majority of all its
Local Legislative Power
members, be signed by the punong barangay no
Exercised by local sanggunian
veto power.
Products of legislative action
Review by Sangguniang Panlalawigan
1. ordinance – prescribes permanent rule of
w/in 3 days from approval, the secretary of the
conduct
sangguniang panlungsod (in component cities) or
2. resolution – temporary character; expresses
sangguniang bayan shall forward to the
sentiment
sangguniang panlalawigan for review copies of
Requisites:
approved ordinances and resolutions.
1. not contravene the Constitution or statute
Sangguniang panlalawigan shall review the
2. must not be unfair or oppressive
same w/in 30 days
3. must not be partial or discriminatory
If it finds that it is beyond the power of the
4. must not prohibit but regulate trade
5. must not be unreasonable sangguniang panlungsod/sangguniang bayan, it
6. must be general in application and consistent shall declare the ordinance/resolution invalid.
with public policy If no action is taken w/in 30 days, it is presumed
Approval of Ordinances – passed by consistent w/ law and valid.
SANGGUNIANG PANLALAWIGAN, Review of Barangay Ordinance
SANGGUNIANG PANLUNGSOD, w/in 10 days from enactment, the sangguniang
SANGGUNIANG BAYAN shall be approved by: barangay shall furnish copies of all barangay
1. the local chief executive, affixing his signature ordinances to the sangguniang panlungsod or
on each and every page sangguniang bayan for review.
2. local chief executive vetoes the same and the If the reviewing sanggunian finds that it is
veto is overridden by 2/3 vote of all the members of inconsistent with law or city or municipal
the sanggunian. ordinances, the sangguniang concerned, shall within
The local chief executive may veto only once. 30 days return the same with its comments and
Grounds: recommendations to the sangguniang barangay for
1. ultra vires adjustment, amendment or modification.
2. prejudicial to the public welfare The effectivity of the ordinance is suspended.
He may veto any particular item/s of an: If no action is taken by the reviewing
1. appropriation ordinance sangguinan within 30 days, the ordinance is deemed
2. ordinance/resolution adopting a development approved.
plan and public investment program Enforcement of Disapproved
3. ordinance directing the payment of money or Ordinance/Resolutions
creating liability Attempt to enforce an ordinance or resolution
The veto shall not affect the item/s not objected approving the local development plan and public
to. investment program, after disapproval, shall be
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Nachura Notes – Constitutional Law
sufficient ground for the suspension or dismissal of Suit is commenced by the LOCAL
the official or employee concerned. EXECUTIVE, upon authority of the
Effectivity SANGGUINIAN except when the CITY
o Unless otherwise stated in the COUNCILORS, by themselves and as
ordinance/resolution, the same shall take effect representatives of or on behalf of the City bring the
AFTER 10 DAYS from the DATE A COPY IS action to prevent unlawful disbursement of City
POSTED IN THE BULLETIN BOARD at the funds.
entrance of the provincial capitol or city, municipal Municipality cannot be represented by a private
or barangay hall, and in at least 2 other conspicuous attorney.
places in the LGU. Only the Provincial Fiscal or the Municipal
o Gist of all ordinance W/ PENAL SANCTIONS Attorney. This is mandatory.
shall be Exception: when the Provincial Fiscal is
PUBLISHED in a newspaper of general disqualified to represent it and the fact of
circulation within the province where the local disqualification appears on record.
legislative body belongs; Fiscal’s refusal to represent the municipality is
absence of newspaper of general circulation, not a legal justification. The Municipality should
POSTING shall be made in all municipalities and request DOJ Secretary to appoint an Acting
cities of the province where the sanggunian of Provincial Fiscal
origin is situated. The legality of the representation of an
o In highly urbanized and independent component unauthorized counsel may be raised at any stage of
cities, the main features of the ordinance or the proceeding.
resolution duly enacted shall, Municipal Attorney may validly adopt the work
POSTED, already performed by a private lawyer provided that
PUBLISHED once in a local newspaper of no injustice is committed against the adverse party
general circulation within the city; and that no compensation has been paid to the
if there is no such newspaper within the city, private counsel.
then PUBLICATION shall be made in any
newspaper of general circulation. To have and use a corporate seal
Authority over Police Units Use, modify or change corporate seal
As may be provided by law. Any change shall be registered with DILG
Public streets or thoroughfares are property for Provided, projects financed by such grant or
public use, outside the commerce of man and may assistance with national security implications shall
not be the subject of lease or other contracts be approved by the national agency concerned.
Procurement of supplies is made through public
competitive bidding To exercise such other powers as are granted to
o Exception: amount is minimal corporations, subject to limitations provided in the
Code and other laws
Power to enter into contracts
Requisites of Valid Municipal Contracts III. MUNICIPAL LIABILITY
1. LGU has the express, implied or inherent power
to enter into the particular contract Rule: LGUs and their officials are NOT exempt
2. The contract is entered into by the proper from liability for DEATH or INJURY to persons or
department, board, committee, officer, or agent. DAMAGE to property
o Unless otherwise provided, no contract may be
entered into by the local chief executive without Specific Provisions Making LGUs liable:
prior authorization by the sangguinian concerned. 1. Article 2189, CC: The LGU is liable in damages
3. comply with substantive requirements for death or injuries suffered by reason of the
4. comply with formal requirements DEFECTIVE CONDITION of roads, streets,
Ultra Vires Contracts: contracts entered into bridges, public buildings and other public works.
without compliance with first and third requisites Attaches even if the road does not belong to the
ultra vires and void. LGU, provided that the City exercises control or
Cannot be ratified or validated. supervision over said road.
Ratification of defective municipal contracts is 2. Article 2180, CC: The State is responsible when
it acts through special agents
possible only when there is non-compliance with
3. Article 34, CC: The LGU is subsidiarily liable
the 2nd and/or 4th requisite.
for damages suffered by a person by reason of the
Does not provide that the absence of an
FAILURE or REFUSAL of a member of the
appropriation ordinance ipso facto makes a contract
POLICE FORCE to render aid and protection in
entered into by a LGU null and void. Public funds
case of danger to life and property.
may be disbursed not only pursuant to an
appropriation law, but also pursuant of other
Liability for Tort – decisions PRIOR to LGC
specific statutory authority.
1. if a LGU is engaged in GOVERNMENTAL
Police power prevails over non-impairment
functions, it is NOT liable
clause. 2. if a LGU is engaged in proprietary function, it is
Breach of contractual obligations – city liable
liable
for damages City is liable for the tortuous acts of its
Authority to negotiate and secure grants
employees under the principle of respondeat
Local chief executive upon authority of the superior
sangguinian 3. Liability for illegal dismissal of employee
Negotiate and secure financial grants or Absent proof of malice or bad faith which
donations in kind attended the illegal dismissal – cannot be held
In support of the basic services and facilities in personally accountable
Section 17 Municipal corporation, whether or not included
From local and foreign assistance agencies in the complaint for recovery of back salaries due to
Without necessity of securing clearance or wrongful removal from office is liable
approval from any department, agency, or office of 4. Local officials may be held personally liable
the national government or from any higher LGU Acted beyond the scope of their authority and
with bad faith
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Nachura Notes – Constitutional Law
Must be sued in their personal capacity Provisions applicable to elective and appointive
When they act maliciously and wantonly and local officials
injure individuals rather than discharged a public 1. Prohibited Business and Pecuniary Interest
duty, they are personally liable. Unlawful for any local government official/EE,
directly or indirectly, to:
Liability for Violation of the Law 1. engage in any business transaction with the
1. closed part of a municipal street without LGU which he is an official or employee or over
indemnification liable for damages which he has the power of supervisions
2. non-payment of minimum wage to employees 2. hold such interest in any cockpit or other games
3. refusal to abide by the TRO licensed by the LGU
3. purchase any real estate or other property
Liability for Contracts forfeited in favor of the LGU for unpaid taxes or by
1. Rule: A municipal corporation, like an ordinary virtue of legal process at the instance of LGU
person, is liable on a contract it enters into, 4. be a surety for any person contracting or doing
provided that the contract is intra vires. business with the LGU for which a surety is
If the contract is utra vires, the municipal required
corporation is not liable. 5. possess or use any public property of the LGU
2. a private indivisual who deals with a municipal for private purpose
corporation is imputed constructive knowledge of 6. prohibitions and inhibitions prescribed in RA
the extent of the power o authority of the municipal 6713
corporation to enter into contracts.
3. ordinarily, estoppel does not lie against the 2. Practice of Profession
municipal corporation. 1. GOVERNORS, CITY and MUNICIPAL
4. Doctrine of Implied Municipal Liability: a MAYORS are prohibited from practicing their
municipality may become obligated upon an profession or engaging in any occupation other than
implied contract to pay the reasonable value of the the exercise of their function.
benefits accepted or appropriated by it as to which it 2. SANGGUNIAN MEMBERS may practice their
has the general power to contract. profession, engage in any occupation, or teach in
Applies to all cases where money or property of schools EXCEPT during session hours.
a party is received under such circumstances that Provide that those who are also MEMBERS of
the general law, independent of an express contract, the BAR shall NOT:
implies an obligation to do justice with respect to 1. appear as counsel before any court in any civil
the same. case wherein the LGU is the adverse party
Cannot set up plea that it is ultra vires but still 2. appear as counsel in any criminal case wherein
retain the benefits. an officer or EE of the national or local government
EStoppel cannot be applied against a municipal is accused of an offense committed in relation to his
corporation in order to validate a contract which the office
municipal corporation has no power to make or 3. collect any fee for their appearance in
which it is authorized to make only under administrative proceedings involving the LGU
prescribed limitations or in a prescribed mode or 4. use property and personnel of the government
manner – even if the municipal corporation has except when the sanggunian member is defending
accepted benefits. the interest of the government.
If a suit is filed against a local official which Prohibition against private practice, if such
could result in personal liability, the latter may practice represents interests adverse to the
engage the services of private counsel. government.
3. DOCTORS of medicine may practice their
IV. LOCAL OFFICIALS profession even during OFFICIAL HOURS of work
only on occasions of emergency. Provided they do
not derive monetary compensation.
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
Member of the Sangguniang Kabataan who the 4th day of the absence of the local chief
obtained the next highest number of votes shall executive EXCEPT
succeed as Chairman if the latter:
1. refuses to assume office 1. power to appoint
2. fails to qualify 2. power to suspend
3. convicted of a crime 3. power to dismiss
4. voluntarily resigns
5. dies Compensation
6. permanently incapacitated determined by the Sanggunian concerned
7. removed from office elective barangay official:
8. has been absent without leave for more than 3 1. honoraria
consecutive months 2. allowances and other emoluments, which in no
* ineligibility is not one of the causes enumerated in case less that P1,000/month for the punong
LGC barangay and P600 for the sangguniang barangay
Temporary Vacancies members
Governor/City or Muncipal Mayor/Punong Elective local officials entitled to the same leave
Barangay is temporarily incapacitated, due to but privileges as those enjoyed by appointive local
not limited to: officials, including cumulation and commutation
1. leave of absence
2. travel abroad Resignation
3. suspension from office - deemed effective upon acceptance by the ff:
1. President – governor/vice-gov/mayor/vice-
vice governor/city or municipal vice-mayor or mayor of highly urbanized cities and independent
the highest ranking sanggunian barangay member component cities
shall automatically exercise the powers and perform 2. Governor – municipal mayors/vice-mayors/city
the duties EXCEPT: mayors/vice-mayors of component cities
1. power to appoint 3. Sanggunian concerned – sanggunian members
2. power to suspend 4. city or municipal mayor – barangay officials
3. power to dismiss
* which can be exercised only if the period of - resignation is deemed accepted if not acted upon
temporary incapacity exceeds 30 working days. within 15 working days from receipt
- irrevocable resignations by sanggunian
- Temporary incapacity shall terminate upon members shall be deemed accepeted upon
submission to the appropriate sanggunian of a 1. presentation before an open session
written declaration that he has reported back to 2. duly entered un its record
office. 3. EXCEPT: where sangguniang members are
- If temporary incapacity due to legal causes subject to recall elections or to cases where existing
shall also submit necessary documents showing that laws prescribe the manner of acting upon such
legal cause no longer exists. resignations.
- Acts of lasciviousness cannot be considered witnesses against him; compulsory process for the
misconduct; to constitute a ground for disciplinary attendance of witnesses and the production of
action, official charged with the offense must be documents.
convicted in the criminal action
4. Commission of any offense involving moral ELECTIVE MUNICIPAL OFFICIALS FILED
turpitude or an offense punishable by at least prision BEFORE SANGGUNIANG PANLALAWIGAN
mayor APPEALABLE TO OFFICE OF THE PRESIDENT
5. abuse of authority
6. unauthorized absence of 15 consecutive - On appeal from decision of the Sanggunian
working days except in the case of members of the Panlalawigan, the President may stay execution of
sangguniang panlalawigan, panlungsod, bayan and appealed decision
barangay - Decision of Sanggunian Panlalwigan must be:
7. application for, or acquisition of, foreign 1. in writing
citizenship or residence or the status of an 2. state clearly and distinctly the facts and the
immigrant of another country reasons for the decisions
8. other grounds as may be provided in this code 3. signed by the requisite majority of the
and other laws sanggunian
- An elective local official may be removed from ELECTIVE BARANGAY OFFICIAL FILED
office on the above grounds by order of the proper BEFORE SANGGUINIANG PANLUNGSOD OR
court. SANGGUNIANG BAYAN FINAL AND
EXECUTORY
Complaints – verified complaint against;
1. provincial/highly urbanized city or independent Preventive Suspension may be imposed by the
component city elective official filed before PRESIDENT, GOVERNOR or MAYOR
Office of the President - any time after the issues are joined
2. Elective municipal officials filed before - evidence of guilt is strong
Sangguniang Panlalawigan appealable to Office - given the gravity of the offense
of the President - there is great probability that the continuance in
3. Elective barangay official filed before office could influence the witnesses or pose threat
Sangguiniang Panlungsod or Sangguniang Bayan to the safety and integrity of the records and other
final and executory evidence
- Provided, single preventive suspension shall not
PROVINCIAL/HIGHLY URBANIZED CITY OR extend beyond 60 days
INDEPENDENT COMPONENT CITY ELECTIVE - In the event that several administrative cases are
OFFICIAL FILED BEFORE OFFICE OF THE filed, he cannot be suspended for more than 90 w/in
PRESIDENT a single year on the same ground or grounds
existing and known at the time of the first
- Local governments under supervision of the suspension.
Executive.
- The Constitution allows Congress to include in - Authority to preventively suspend is exercised
LGC provisions for removal of local officials; LGC concurrently by the Ombudsman six (6) months
has delegated its exercise to the President. - The preventive suspension of an elective local
- President has delegated the power to investigate official by the Sandiganbayan shall only be for 60
complaints to the Secretary of DILG alter ego days and not 90 days.
principle - Upon expiration of preventive suspension,
- Right to formal investigation – appeal and officer shall be REINSTATED to office without
defend himself in person or by counsel; confront prejudice to the CONTINUATION OF THE
PROCEEDINGS which shall be terminated within
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120 days from the time he was formally notified of - May employ emergency or casual employees or
the case against him. laborers paid on daily wage or piecework basis and
- Abuse of exercise of power of preventive hired through job orders for local projects
suspension abuse of authority authorized by sanggunian, without need of approval
from CSC
Penalty - Said employment shall not exceed 6 months.
- Penalty of suspension shall not exceed his
unexpired term or a period of 6 months for every Officials Common to all
administrative offense Municipalities/Cities/Provinces
- Nor shall penalty be a bar to candidacy as long 1. Secretary to the Sanggunian
as he meets requirements 2. Treasurer
- Penalty of removal from office as a result of an 3. Assessor
administrative case shall be a bar to the candidacy 4. Accountant
for any elective office. 5. Budget Officer
- Not more than 6 months for each offense; 6. Planning and Development Coordinator
provide, the total does not exceed the unexpired 7. Engineer
portion of his term 8. Health Officer
9. Civil Registrar
Administrative Appeal – w/in 30 days from receipt 10. Administrator
1. to Sangguniang Panlalawigan component 11. Legal Officer
cities’ sangguniang panlungsod and sangguniang 12. Agriculturist
bayan 13. Social Welfare and Development Officer
2. to OP Sangguniang Panlalawigan and 14. Environment and Natural Resources Officer
Sangguniang Panlungsod of highly urbanized cities 15. Architect
and independent component cities 16. Information Officer
- decisions of OP – final and executory 17. Cooperatives Officer
- administrative appeal to OP is possible; only 18. Population Officer
means that administrative appeal will not prevent 19. Veterinarian
enforcement of the decision 20. General Services Officer
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w/in 45 days in case of municipalities capacity of the Sanggunian concerned to enact said
w/in 30 days in case of barangays measure.
from date of CERTIFICATION by COMELEC.
The initiative shall be held on the date set, after VII. LOCAL GOVERNMENT UNITS
which the results shall be certified and proclaimed
by the COMELEC. The Barangay
8. If the proposition is approved by a majority of
the votes cast, it shall take effect 15 days after Chief Officials and Offices
certification by the COMELEC.
There shall be in each barangay:
Limitations 1. PUNONG BARANGAY
On Local Initiative 2. 7 SANGGUNIANG BARANGAY MEMBERS
1. not be exercised more than once a year 3. The SANGGUNIANG KABATAAN
2. extend only to subjects or matters which are CHAIRMAN
within the legal powers of the sanggunian to enact 4. BARANGAY SECRETARY
3. at any time before the initiative is held, the 5. BARANGAY TREASURER
sanggunian adopts in toto the proposition presented 6. LUPONG TAGAPAMAYAPA
and the local chief executive approves the same, the
initiative shall be cancelled. However, those against The Sangguniang Barangay may form brigades
such action may apply for initiative. and create such other positions or offices as may be
deemed necessary to carry out the purposes of the
On the Sanggunian barangay government.
Any proposition or ordinance approved through Punong Barangay, Sangguniang Barangay
an initiative and referendum shall not be repealed, Members and members of the Lupong
modified or amended by the sanggunian w/in 6 Tagapamayapa in each barangay shall be deemed as
months from date of approval. Persons in Authority in their jurisdiction; while
Amended, modified or repealed w/in 3 years by other barangay officials and members who may be
a vote of all its members. designated by law or ordinance and charged with
In case of barangays, the period shall be 18 maintenance, protection and security, and any
months after the approval. barangay members who comes to the aid of persons
in authority shall be deemed agents of persons in
Local Referendum authority.
Legal process whereby the registered voters of Barangay Chairman is a public officer who may
the LGUs may approve, amend or reject any e charged with arbitrary detention.
ordinance enacted by the sanggunian. Barangay Chairman entitled to possess and
The local referendum shall be held under the carry firearms within the territorial jurisdiction of
control and direction of the COMELEC: the barangay.
1. w/in 60 days in case of provinces
2. w/in 45 days in case of municipalities The Barangay Assembly
3. w/in 30 days in case of barangays Composed of:
COMELEC shall certify and proclaim the 1. All persons who are actual residents of the
results of the said referendum. barangay for at least 6 months,
2. 15 years of age or over
Authority of Courts 3. Citizens of the Philippines
Nothing shall preclude the proper courts from 4. Duly registered in the list of barangay assembly
declaring null and void any proposition approved members
pursuant for violation of the Constitution or want of Meet at least 2x a year to hear and discuss the
semestral report to the sangguniang barangay
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Nachura Notes – Constitutional Law
concerning its activities and finances and problems - An official who, during his term of office, shall
affecting the barangay. have passed the age of 21 shall be allowed to serve
the remaining portion of the term for which he was
Katarungang Pambarangay elected.
Lupong Tagapamayapa
Punong barangay as chairman Katipunan ng Kabataan
10 to 20 members Shall be composed of:
Constituted every 3 years 1. all citizens of the Philippines actually residing
in the barangay for at least 6 months
Powers of the Lupon 2. who are 15 but not more than 21 years of age
1. Exercise administrative supervision over the 3. duly registered in the list of the sangguniang
conciliation panels kabataan or in the official barangay list in the
2. Meet regularly once a month to provide a forum custody of the barangay secretary.
for exchange of ideas among its members and the It shall meet once every 3 month, or at the call
public of matters relevant to the amicable settlement of the sangguniang kabataan chairman, or upon
of disputes, and to enable various conciliation panel written petition of at least 1/20 of its members.
members to share with one another their
observations and experiences in effecting speedy Pederasyon ng mga Sangguniang Kabataan
resolution of disputes There shall be an organization of all the
3. Exercise such other powers and perform such prederasyn ng mga sangguniang kabataan:
other duties and functions as may be prescribed by 1. in municipalities pambayang pederasyon
law or ordinance 2. in cities panlungsod ng pederasyon
3. in provinces panlalawigang pederasyon
Pangkat ng Tagapagkasundo 4. special metropolitan political subdivision
Conciliation panel or Pangkat ng pangmetropolitang pederasyon
Tagapagkasundo shall be constituted for each 5. on national level pambansang pederasyon
dispute brought before the lupon.
Consists of 3 members Leagues of Local Government Units/Officials
Chosen by the parties to the dispute - Liga ng mga Barangay
From list of members of the lupon Organization of all the barangays for the
Should the parties fail to agree on the pangkat primary purpose of determining the representation
membership, the same shall be determined by lots of the Liga in the sanggunians
drawn by the lupon chairman And for ventilating, articulating and
crystallizing issues affecting barangay government
Subject Matter of Amicable Settlement administration and securing, through proper and
1. procedure legal means, solutions.
2. conciliation Liga is empowered to create such other
3. arbitration positions as may be deemed necessary.
4. effects of settlement and arbitration award
League of Municipalities
Sangguniang Kabataan Organized for the primary purpose of
- Creation: There shall be in every barangay a ventilating, articulating and crystallizing issues
Sangguniang Kabataan affecting municipal government administration, and
1. a Chairman securing through proper and legal means, solutions.
2. 7 Members
3. a secretary XII. ELECTION CONTESTS
4. a treasurer
Jurisdiction over Election Contests
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Nachura Notes – Constitutional Law
Returns
Includes: Jurisdiction over Election Offenses
1. canvass of returns Investigation and prosecution – COMELEC has
2. proclamation of winners exclusive jurisdiction.
3. questions concerning composition of Board of May validly delegate to Provincial Prosecutor.
Canvassers It is not the duty of the COMELEC to gather
4. authenticity of elections returns proof in support of a complaint.
Trial and Decision – RTC has exclusive
Qualifications jurisdiction to try and decide any criminal actions or
may be raised in quo-warranto proceeding proceedings for violation of election laws.
against proclaimed winner The MTC and MeTC, by way of exception,
exercises jurisdiction only over offenses relating to
XIII. ELECTION OFFENSES failure to register or to vote.
Prohibited Acts Preferential Disposition of Election Offenses
1. Vote-buying and vote-selling
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Administrative regulations must be in harmony 1. law itself must declare as punishable the
with the provisions of law. It must not override, but violation of the administrative rule or regulation
must remain consistent with the law they seek to 2. law should define or fix the penalty for the
apply and implement. violation of the administrative rule or regulation
Administrative agency has no discretion
whether or not to implement a law. Its duty is to Necessity for Notice and Hearing
enforce the law. NO constitutional requirement for a hearing:
Administrative order is an ordinance issued by 1. promulgation of a general regulation
the President which relates to specific aspects in the 2. rule is procedural
administrative operation of Government. 3. merely legal opinions
4. substantive rules where the class to be affected
Kinds of Administrative Rules or Regulations is large and the questions to be resolved involve the
1. Supplementary or Detailed Legislation use of discretion committed to the rule-making
Fix the details in the execution and enforcement body
of a policy set out in the law. Hearing Requirement:
2. Interpretative Legislation 1. subordinate legislation, designed to implement a
Construe or interpret the provisions of a statute law by providing details
to be enforced 2. substantially adds to or increase the burden of
Binding on all concerned until they are changed those concerned
Effect of law and are entitled to respect 3. exercise of quasi-legislative authority
Have in their favor presumption of legality
Function of Prescribing Rates by an Administrative
Erroneous application of the law by public
Agency may either be:
officers does not bar subsequent correct application Legislative Function: prior notice and hearing is
of the law
not a requirement
3. Contingent Legislation
Where the rules and rates are meant to apply to
Made on the existence of certain facts or things
ALL enterprises of a given kind throughout the
upon which the enforcement of law depends.
country, they may partake of a legislative character
Adjudicative Function: prior notice and hearing
Requisites for Validity
1. Issued under authority of law are essential to the validity
Where the rules and rates are meant to apply
2. Within the scope and purview of the law exclusively to a particular party, then its function is
3. Reasonable quasi-judicial in character
4. Publication in the OG or in a newspaper of
general circulation Where hearing is indispensable, it does not
Interpretative rules and regulations/mere preclude the Board from ordering, ex-parte, a
internal in nature/ letters of instructions concerning provisional increase subject to its final disposition
the rules and guidelines to be followed by their of whether or not to make it permanent, to reduce or
subordinates in the performance of their duties may increase it further or to deny the application.
simply be POSTED in CONSPICUOUS PLACES (Maceda vs. Energy Regulatory Board)
in the AGENCY.
DOLE Department Order and POEA Determinative Powers
Memorandum Circulars – proper publication + 1. Directing
filing in the Office of the National Administrative Power of assessment of BIR and Customs
Register (Article 5 of LC) 2. Enabling
Permit or to allow something which the law
Administrative Rules with Penal Sanctions undertakes to regulate
(additional requisites) 3. Dispensing
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Nachura Notes – Constitutional Law
To exempt from a general prohibition OR convicted of an offense with which he was not
Relieve individual or corporation from an charged.
affirmative duty Party be afforded reasonable opportunity to be
4. Examining heard and to submit any evidence he may have in
Investigatory power support of the defense.
1. production of books, papers, etc. In administrative proceedings, it means the
2. attendance of witnesses opportunity yto explain one’s side or opportunity to
3. compelling their testimony seek a reconsideration of the action or ruling
Power to compel attendance of witnesses not complained of; a formal or trial-type hearing is not,
inherent in administrative body at all times, necessary.
But an administrative officer authorized to take Requirement of notice and hearing in
testimony or evidence is deemed authorized to termination cases does not connote full adversarial
administer oath, summon witnesses, require proceedings, as actual adversarial proceedings
production of documents, etc. become necessary only for clarification or when
Power to punish contempt must be expressly there is a need to propound searching questions to
granted to the administrative body; when granted, witnesses who give vague testimonies.
may be exercised only when administrative body is Procedural right which employee must ask for
actually performing quasi-judicial functions since it is not an inherent right.
5. Summary Summary proceedings may be conducted
Power to apply compulsion or force against - Administrative due process dies not necessarily
persons or property to effectuate a legal purpose require the assistance of counsel.
without a judicial warrant to authorize such action - In a request for extradition, the prospective
extradite does not face a clear and present danger of
Quasi-Judicial or Adjudicatory Powers loss of property or employment, but of liberty itself.
- Proceedings partake of the character of judicial He is entitled to the minimum requirements of
proceedings notice and opportunity to be heard.
- Administrative due process - The standard of due process that must be met in
1. right to hearing administrative tribunals allows a certain latitude as
2. tribunal must consider evidence presented long as the element of fairness is not ignored; even
3. decision must have something to support itself in the absence of previous notice, there is no denial
4. evidence must be substantial of due process as long as the parties are given the
5. decision must be based on the evidence adduced opportunity to be heard.
at the hearing or at least contained in the record and - Administrative due process:
disclosed to the parties 1. opportunity to be heard
6. the Board or Judges must act on its or 2. opportunity to seek reconsideration
independence consideration of the facts and the law 3. opportunity to explain one’s side
of the case, and not simply accept the views of a - Substantial evidence: such relevant evidence as
subordinate in arriving at a decision a reasonable mind might accept as adequate to
7. decision must be rendered in such a manner that support a conclusion which is the quantum of proof
the parties to the controversy can know the various necessary to prove a change in an administrative
issues involved and the reasons for the decision case
rendered - “To be heard” does not mean only verbal
- In forfeiture proceeding, where the owner of the agreements in court, one may also be heard through
allegedly prohibited article is known, mere posting pleadings.
of the notice of hearing in the Bulletin Board does
not constitute compliance. Administrative Determinations where Notice and
- Due process demands that the person be duly Hearing are NOT necessary for due process
informed of the charges against him. He cannot be
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Nachura Notes – Constitutional Law
1. grant of provisional authority for increased rates Conclusive upon the rights of the affected
or to engage in a particular line of business parties as though the same had been rendered by a
2. summary proceedings of distraint and levy upon court of general jurisdiction.
the property of a delinquent taxpayer Forbids the reopening of a matter once
3. cancellation of passport, no abuse of discretion determined by competent authority acting within
4. summary abatement of a nuisance per se which their exclusive jurisdiction.
affects the immediate safety of persons/property Applies to adversary administrative proceeding
5. preventive suspension of a public Does NOT apply in administrative adjudication
officer/employee pending investigation of relative to citizenship
administrative charges Exception: Zita Ngo Burca vs. Republic
1. question of citizenship is resolved by a court or
Right Against Self-Incrimination an administrative body as a material issue in the
Administrative charge of unexplained wealth controversy after a full-blown hearing
which may result in forfeiture of the property 2. active participation of the SolGen
Medical practitioner where proceeding could 3. finding made by the administrative body on the
possibly result in the loss of his privilege to practice citizenship issue is affirmed by the SC
medicine
Right may be invoked at the time he is called as - LLDA: regulatory and quasi-judicial power in
a witness respect to pollution cases and matters affecting the
If he voluntarily takes the witness stand, he can construction of illegal fishpens, fish cages and other
be cross-examined, but he may still invoke the right aqua-structures in Laguna de Bay; may issue cease
at the time the question which calls for an answer and desist orders
which incriminates him of an offense other than that - DECS Regional Director: return to work order;
which is charged is asked. administrative charges; constitute an investigating
panel
Power to Punish Contempt is Inherently Judicial - Housing and Land Use Regulatory Board
1. conferred by law and (HLURB): unsound real estate business practices
2. administrative body is engaged in performance - Department of Energy: electric power
of its quasi-judicial powers - Home Insurance Guarantee Corporation(HIGC):
disputes involving homeowners association
Administrative Decisions not Part of the Legal
System III. EXHAUSTION OF ADMINISTRATIVE
no vested right REMEDIES
could not place government in estoppel
Doctrine
Administrative Appeal and Review - Whenever there is an available administrative
1. higher or superior administrative body remedy provided by law, no judicial recourse can be
2. President/ Department Secretaries by virtue of made until all such remedies have been availed of
the power of Control and exhausted.
3. appellate administrative agency
Reasons
Doctrine of res judicata 1. if relief is first sought from a superior
Decisions and orders of administrative agencies administrative agency, resort to courts may be
have upon their finality, the force and effect of a unnecessary
final judgment within the purview of the doctrine of 2. administrative agency should be given a chance
res judicata. to correct its error
3. principles of comity and convenience
4. judicial review of administrative decisions is
usually made through special civil actins, which
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Nachura Notes – Constitutional Law
will not normally prosper if there is another plain, 1. Doctrine of Qualified Political Agency (alter
speedy and adequate remedy in the ordinary course ego doctrine)
of law 2. Administrative remedy is fruitless
3. Estoppel on the part of the Administrative
Only decision of administrative agencies made Agency
in the exercise of QUASI-JUDICIAL and 4. Issue involved is purely a legal question
ADJUDICATORY POWERS are subject to the rule 5. Administrative action is patently illegal
on exhaustion. 6. Unreasonable delay or official inaction
Constitutionality/validity of a rule or regulation 7. Irreparable injury or threat, unless judicial
in the performance of quasi-legislative function recourse is immediately made
regular courts have jurisdiction 8. Land cases, where subject matter is private land
9. Law does not make exhaustion a condition
Corollary Principle precedent to judicial recourse
1. Doctrine of Prior Resort/ Doctrine of Primary 10. Observance of the doctrine will result in the
Administrative Jurisdiction nullification of the claim
No Where there is competence or jurisdiction 11. Special reasons or circumstances demanding
vested upon an administrative body to act upon a immediate court action
matter, no resort to the courts may be made before 12. Due process of law is clearly violated
such administrative body shall have acted upon the 13. Rules does not provide a plain, speedy and
matter. adequate remedy
Conversion of subdivision lots HLURB
Enforcement of forestry laws DENR IV. JUDICIAL REVIEW OF
ADMINISTRATIVE DECISIONS
Issuing license to radio stations NTC
Disputes arising from construction contracts Rule
Construction Industry Arbitrary Commission Judicial review may be granted or withheld as
Agricultural lands under the coverage of CARP Congress chooses
DAR Except: when Constitution requires or allows it
Effluents of a particular industrial establishment Judicial review of administrative decisions
Pollution Adjudication Board cannot be denied the courts when there is an
allegation of grave abuse of discretion.
2. Doctrine of Finality of Administrative Action
No resort to the courts will be allowed unless Bases for Judicial Review
the administrative action has been completed and Unless otherwise provided by this Constitution
there is nothing left to be done in the administrative or by law
structure. Any decision, order or ruling of each
A party aggrieved must not only initiate the Commission may be brought to the SC on certiorari
prescribed administrative proceeding, but must w/in 30 days from receipt of a copy
pursue it to its appropriate conclusion before
seeking judicial intervention. General Principles
underlying power in the Courts to scrutinize the
Effect of Failure to Exhaust Administrative acts of administrative agencies on questions of law
Remedies and jurisdiction although no right of review is given
- Jurisdiction of court is NOT affected by statute.
- Complainant is deprived of a CAUSE OF Keep administrative agencies within its
ACTION which is a ground for MTD
jurisdiction.
- If no MTD is filed, deemed a waiver
Protect substantial rights of parties affected by
Exceptions the decisions.
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Nachura Notes – Constitutional Law
Questions which may be subject of judicial review Judicial Review is not trial de novo
1. Question of Law
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
Until he is qualified, the holdover officer is the 2. No Senator or Member of the HR may hold
rightful occupant. any other office or employment in the Government
Oath of office taken before one who has no including GOCC, during his term without forfeiting
authority to administer oath, is no oath at all. his seat. Neither shall he be appointed to any office
Pendency of election protest is not sufficient which may have been created or the emoluments
basis to enjoin him from assuming office or from increased during the term for which he was elected.
discharging his functions. 3. Members of the SC and of other courts
established by law shall not be designated to any
Authority to Prescribe Qualifications agency performing quasi-judicial or administrative
Qualification prescribed by Constitution functions.
generally exclusive unless Constitution provides 4. No member of the Constitutional
otherwise Commission shall during his tenure, hold any other
Public officers created by statute Congress office or employment. Applies to Ombudsman and
has plenary powers to prescribe qualifications, his deputies.
provided: 5. Ombudsman and his deputies shall not be
1. germane to the objectives for which the office qualified to run for office in the election
was created immediately succeeding their cessation.
2. qualifications are not too specific as to fit a 6. Members of the Constitutional Commission,
particular identifiable person that would deprive Ombudsman and deputies must not have been
appointing authority of discretion in the selection of candidates for any elective position in the election
the appointee immediately preceding their appointments.
7. Members of the Constitutional Commission,
Disqualifications Ombudsman and his deputies are appointed to a
Authority term of 7 years, without reappointment.
8. Spouse and relatives by consanguinity or
Legislature has the right to prescribe
affinity within the 4th civil degree of the President
disqualifications in the same manner as it can
shall not during his tenure be appointed:
prescribe qualifications.
As members of the Constitutional Commission
Limitation: do not violate the Constitution
Office of Ombudsman
Disqualification may be because of unfitness for
Secretaries
public office or because the person is rendered
Undersecretaries
ineligible for the office.
Chairmen/heads
General Disqualifications under the Constitution
1. No candidate who lost in an election, shall,
III. DE FACTO OFFICERS
within 1 year after such election, be appointed to
any office in the Government.
- Reputation of being an officer and yet is not a
2. No elective official shall be eligible for
good officer in point of law.
appointment or designation in any capacity to any
- Acted as an officer for such length of time under
public office or position during his tenure.
color of title and under such circumstances of
3. No appointive official shall hold any other
reputation or acquiescence by the public and public
position in the Government, unless otherwise
authorities as to afford a presumption of
allowed by law or the primary functions of his
election/appointment and induce people to submit to
office.
or invoke his action.
*ex-officio capacity
Specific Disqualification under the Constitution
Legal Effect
1. President, VP, Cabinet Members and their
- Those that affect the public are valid, binding
deputies and assistants shall not hold any other
and with full legal effect.
office or employment during their tenure, UNLESS
- For the protection of the public.
otherwise provided in the Constitution.
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Nachura Notes – Constitutional Law
Elements Classification
1. validly existing public office 1) Permanent
2. actual physical possession of said office - Extended to person possessing the requisite
3. color of title to the office qualifications
a. by reputation/acquiescence - Security of tenure
b. known and valid appointment/election but 2) Temporary
officer failed to conform to a requirement imposed - Acting appointment
by law - May not possess the requisite qualifications for
c. known appointment or election, void (though eligibility
unknown to public) because: - Revocable at will, without necessity of just
i. ineligibility of officer cause or a valid investigation
ii. want of authority of appointing/electing
authority - Acquisition of the appropriate civil service
iii. irregularity in appointment/election eligibility by a temporary appointee will not ipso
d. known appointment/election pursuant to facto convert the temporary appointment into a
unconstitutional law, before law was declared permanent one; new appointment is necessary
unconstitutional. - Appointment to a position in the Career Service
of the Civil Service does not necessarily mean that
Entitlement of Salaries the appointment is a permanent one depend on
- GR: rightful incumbent of a public office may the nature of the appointment which in turn depends
recover from an officer de facto the salary received on the appointee’s eligibility or lack of it.
by the latter during the time of his wrongful tenure, - Acceptance by petitioner of a temporary
even though he entered into the office in good faith appointment resulted in the termination of official
and under color of title. relationship with his former permanent position.
- Where there is NO DE JURE officer, the officer - Temporary appointment shall not exceed 12
de facto who in good faith has had possession of the months.
office and has discharged the duties is legally - Mere designation does not confer security of
entitled to emoluments. tenure person designated occupies the position
- Principle of public policy on which de facto only in an acting capacity.
doctrine is based. - Appointment is subject to conditions,
appointment is not permanent.
IV. COMMENCEMENT OF OFFICIAL - Appointee cannot claim a complete appointment
RELATIONS as long as the re-evaluation incidental to the re-
organization is still pending.
Official relations are commenced: - “unless terminated sooner” even if co-
1) Appointment terminous with the project, it is nevertheless subject
2) Election to the appointing authority.
- Where temporary appointment is for a FIXED
Appointment period, appointment may be revoked only at the
- selection by the authority vested with the power, expiration of the period OR if before, it must be for
of an individual who is to perform the functions of a a valid and just cause.
given office. 3) Regular
- One made by the President while Congress is in
Commission session after the nomination is confirmed by the
- written evidence of appointment Commission on Appointments and continues until
the end of the term.
Designation
- imposition of additional duties 4) Ad-interim
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Nachura Notes – Constitutional Law
- Made while Congress is not in session, before eligibility; if he does, appointment must be
confirmation by the Commission on Appointments, approved; of not, it is disapproved.
is immediately effective - Appointment is complete when the last act
- Ceases to be valid if disapproved or bypassed by required of the appointing power is performed; until
COA upon next adjournment of Congress the process is completed, appointee can claim no
- Permanent appointment vested right in the officer nor claim security of
- That it is subject to confirmation, does not alter tenure.
its permanent character. - Appointment to be valid, position must be
vacant.
- Regular and Ad-interim Classification may be
used only when referring to the following: Discretion of Appointing Authority
1) Heads of Executive Department; Discretionary power and must be performed by
2) Ambassadors and other Publi Ministers and the officer in whom it is vested.
Consuls Only condition, appointee must possess the
3) Officers of the AFP, from rank of colonel or minimum qualifications requirements prescribed by
naval captain law.
4) Officers whose appointments are vested in the Appointing authority is in the best position to
President under the Constitution. determine who among the prospective appointees
can effectively discharge the functions of the
Steps in Appointing Process position.
For REGULAR Appointments Final choice of appointing authority should be
1) Nomination by President respected and left undisturbed.
2) Confirmation by COA Commission may not and should not substitute
3) Issuance of the Commission its judgment for that of the appointing authority.
4) Acceptance by the appointee Civil Service Law grants career service officers
preference in promotion under the “next-in-rank”
AD-INTERIM Appointment
rule, it is not mandatory, appointing authority
1) Nomination by President
should be allowed the choice of men of his
2) Issuance of the Commission
confidence provided they are qualified and eligible.
3) Acceptance by the appointee
Provincial, city prosecutor and their assistants
4) Confirmation by COA
appointed by President upon recommendation of
DO NOT require Confirmation Secretary of Justice (mere advise).
1) Appointment by Appointing Authority Discretion of appointing authority choice of
2) Issuance of the Commission the person WHO is to be appointed, NATURE and
3) Acceptance by the Appointee CHARACTER of appointment.
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
4. Doctrine of Necessary Implication – all powers SOLGEN – represent government and its offices
necessary for the effective exercise of the express EXCEPT criminal cases and civil cases for damages
powers arising from felony.
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Nachura Notes – Constitutional Law
Local governments are not exempt from 2. Misfeasance – failure to exercise that degree of
liabilities for DEATH or INJURY to persons or care, skill and diligence in the performance of
DAMAGE to property. official duty
3. Malfeasance – doing, through ignorance,
Statutory Liability inattention or malice of an act which he had no legal
Article 27, CC – refuses or neglects without just right to perform.
cause to perform his official duty, whereby a person
suffers moral or material loss; without prejudice to Command Responsibility
administrative disciplinary sanction Head of a department or a superior officer shall
Article 32, CC – liability of public officer for not be civilly liable for the wrongful acts, omission
violation of constitutional rights of duty, negligence or misfeasance of his
Article 34, CC – liability of peace officer who subordinates, UNLESS he has actually authorized
fails to respond or give assistance to persons in by written order the specific act or misconduct.
danger of injury to life or property
VII. RIGHTS OF PUBLIC OFFICERS
w/o just cause. Neglects to perform a duty
within a period fixed by law or regulation or within
1. Right to Office
a reasonable period if none is fixed
2. Right to Salary
3. Right to Preference in Promotion
Liability on Contracts
4. Right to Vacation and Sick Leave
personally entered without or exceeded his 5. Right to Maternity Leave
authority 6. Right to Retirement Pay
7. Right to reimbursement for expenses incurred in
Liability for Tort due performance of duty
personally beyond the scope of his authority 8. Right to be indemnified against any liability
or exceeds power conferred upon him; ultra vires or 9. Right to longevity pay
where there is bad faith
Right to Office
Presidential Immunity from Suit Just and legal claim to exercise the powers and
during tenure of the President the responsibilities of the public office.
After his tenure, cannot invoke immunity from Term vs. Tenure
suit for civil damages arising out of acts done by Term: period during which the officer may
him, while he was president which were not claim to hold the office as a matter of right.
performed in the exercise of official duties. Tenure: period during which the officer actually
Not prevented from instituting suit. holds office.
Right to Salary
Threefold Liability Rule Salary – personal compensation to be paid to the
Wrongs acts or omissions of a public officer public officer for his services
may give rise to civil, criminal and administrative Generally a fixed or periodical payment
liability. depending on the time and not on the amount of the
Action for each can proceed independently services he may render.
Dismissal of one does not foreclose action for Distinguished from wages:
others. difference in quantum of evidence Salaries are given to officers of higher degree of
employment than those given wages.
Liability of Minsiterial Officers Salary is compensation per annum. Wages are
1. Nonfeasance – neglect or refusal to perform an paid day by day or week by week.
act which is the officer’s legal obligation Basis:
1. legal title to the office
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the credits were earned, provided the claimant was 11. Death
in the service as of January 9, 1986. 12. Failure to Assume Elective Office w/in 6
Government employees are not required to work months from proclamation
on Saturdays, Sundays and holidays. 13. Conviction of a Crime
14. Filing of Certificate of Candidacy
Right to Maternity Leave
Expiration of term or tenure
Right to Retirement Pay Courtesy resignation during the EDSA
Retirement laws are liberally construed in favor Revolution expiration of term; entitled to
of the retiree. retirement benefits
Money value of the terminal leave of a retiring Termination presupposes an overt act committed
government official shall be computed at the by a superior officer
retiree’s highest monthly pay. Commencement of Term of Office
Judiciary – extension if satisfied that the career 1. statute fixes a period upon qualification
was marked by competence, integrity and 2. no time is fixed by law date of
dedication to the public service. appointment/election
A reserved officer who successfully rendered a 3. law fixing the term is ambiguous one that
total of 10 years continuous active commissioned fixes the term at the shortest period should be
military service shall not be reverted to inactive followed
service except for cause or upon his own request. 4. both duration of the term of office and the time
Covered by compulsory membership in the GSIS. of its commencement/termination are fixed by
Totalization of service credits is only resorted to constitutional or statutory provision person
when the retiree does not qualify for benefits in appointed or elected for vacancy shall hold the same
either or both of the systems. only for the unexpired portion
5. only the duration is fixed, no time is fixed for
Right to reimbursement for expenses incurred in beginning or end person selected to fill the
due performance of duty vacancy may serve the full term and not merely the
unexpired balance of the prior incumbent’s term
Right to be indemnified against any liability which 6. office is created/officer appointed for the
they may incur in the bona fide discharge of their purpose of performing a single act or
duties. accomplishment of a given result office
terminates and the authority ceases with the
Right to longevity pay accomplishment of the purposes which called it into
being.
VIII. TERMINATION OF OFFICIAL Principle of Hold-Over: public officer is entitled
RELATIONSHIP to hold his office until his successor shall have been
duly chosen and shall have qualified. Purpose is to
Modes of Terminating Official Relationship prevent hiatus in public service.
1. Expiration of term or tenure Legislative intent of not allowing hold-over
2. Reaching the age limit
must be clearly expressed or at least implied in the
3. Resignation
legislative enactment, otherwise, it is reasonable to
4. Recall
assume that the law-making body favors the same.
5. Removal
Article 237, RPC which penalizes public officer
6. Abandonment
7. Acceptance of an Incompatible Office who shall continue to exercise the duties and
8. Abolition of Office powers of the office beyond the period provided by
9. Prescription of the Right to Office law.
10. Impeachment During this period, de jure officer
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Nachura Notes – Constitutional Law
Where the law fixes a specific sate for the end Resignation by Sanggunian members shall be
of the term implied prohibition against hold-over deemed accepted upon:
1. presentation before an open session of the
Reaching the age limit sanggunian concerned
Compulsory Retirement Age 2. duly entered in its record
70 for members of judiciary 3. EXCEPT where sanggunian members are
65 for other government officers or employees subject to recall elections or to cases where existing
Special Retirement Laws: RA 1616 – allows laws prescribe the manner of acting upon such
optional retirement after an officer has rendered a resignation
minimum number of years of government service, If the law is silent on who shall accept:
when availed of by the public officer, will result in 1. appointive officer resigns appointing
the termination of official relationship through authority
reaching the age limit or retirement. 2. elective officer resigns officer authorized by
law to call an election in order to fill the vacancy
Resignation President and VP Congress
Members of Congress respective Houses
Act of giving up or the act of a public officer by
which he declines his office and renounces the Effective Date of Resignation
further right to use it. Date specified in the tender
Intention to surrender, renounce, and relinquish No date specified public officer receives notice
the office and the acceptance by competent and of the acceptance NOT the date of the letter or
lawful authority notice of acceptance
Voluntariness – when procured by fraud, may be
invalidated Recall
Courtesy resignation lacks the element of Termination of official relationship of an
voluntariness and therefore is not a valid elective official for loss of confidence prior to the
resignation. expiration of his term through the will of the
Need for Acceptance – not complete until electorate.
accepted by competent authority By Whom: registered voters of a LGU to which
Article 238, RPC penalizes any public officer such local government official belongs
who, before the acceptance of his resignation, Initiation of the Recall Process: registered voters
abandons his office to the detriment of the public of the LGU
service. Procedure for Initiating Recall
If the public officer is mandated by law to hold- 1. initiated upon petition by at least 25% of the
over, the resignation, even if accepted, will not be total number of registered voters in the LGU
effective until after appointment/election of his 2. written petition
successor. duly signed before the election
Accepting Authority – RA 7160, officers registrar/representative
authorized to accept resignation: in the presence of a representative of the
1. President – governor, vice-governor, mayor and petitioner
vice-mayor f highly urbanized cities and representative of the official
independent component cities in a public place, in the province, city,
2. Governor – municipal mayors and vice-mayors, municipality or barangay
city mayors and vice-mayors of component cities filed with the COMELEC through its office in
3. Sanggunian – sanggunian members the LGU concerned
4. City or municipal mayor – barangay officials 3. COMELEC shall cause the publication of the
Resignation deemed accepted if not acted upon petition
w/in 15 days from receipt
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Nachura Notes – Constitutional Law
In a public and conspicuous place Career service officers and employees causes
Period not less than 10 days nor more than 20 enumerated in law and in accordance with
days procedure prescribed
Purpose of verifying the authenticity and Removal not for just cause or non-compliance
genuineness of the petition and required percentage with prescribed procedures reversible,
of voters reinstatement with back salaries and without loss of
4. Lapse of the period, COMELEC or its duly seniority rights
authorized representative, shall announce the Demotion is tantamount to unlawful removal is
acceptance of candidates to the position and prepare NO CAUSE is shown or it is NOT PART OF
list of candidates, including the name of the official DISCIPLINARY ACTION
sought to be recalled. Unconsented transfer resulting in demotion in
Election on Recall rank or salary is tantamount to removal without just
cause.
Upon filing of a valid petition, COMELEC shall A transfer that results in promotion or demotion,
set date for the election on recall advancement or reduction or a transfer that aims to
Not later than 30 days after the filing of the lure the employee away from his permanent
resolution/petition in the case of position, cannot be done without the employee’s
barangay/city/municipal officials consent, for that would constitute removal from
Not later than 45 days in the case of provincial office.
officials No permanent transfer can take place unless the
Officials sought to be recalled, automatically officer or employee is first removed from the
considered as registered candidate. position held, and then appointed to another
Effectivity of Recall position.
Recall of an elective official shall be effective Some cases on Grounds for Disciplinary Action:
upon the election an proclamation of a successor. 1. Dishonesty – concealment or distortion of truth
If the official sought to be recalled receives the in a matter of fact relevant to one’s office or
highest number of votes confidence in him is connected with the performance of his duty; e.g. use
affirmed and he shall continue in office of fake or spurious civil service eligibility
Prohibition from Resignation 2. Conduct prejudicial to the best interest of the
Limitation on Recall service
3. Misconduct – transgression of some established
1. any elective official may be subject of a recall
and definite rule of action; wrongful intention
election once during his term of office for lack of
Administrative Code of 1987: 1) Unsatisfactory
confidence
2. no recall shall take place within one year from conduct and 2) Want of capacity
the date of the official’s assumption to office or one Civil Service Law: inefficiency and
year immediately preceding a regular local election incompetence in the performance of official duties
Sangguiniang Kabataan election is not a regular Poor performance falls within the concept of
election; inefficiency and incompetence
Not barred by barangay election Inefficiency and incompetence can only be
Approaching local election must be one where determined after the passage of sufficient time,
the position of the official to be recalled is actually hence, the probationary period of 6 months.
contested and to be filled by the electorate Poltical or non-career members of the Foreign
Service is coterminous with that of the appointing
Removal authority or subject to his pleasure
Constitutional Guarantee of Security of Tenure Holding primarily confidential positions
– not removed or suspended except for causes continue in office as long as the confidence in them
provided by law endures; termination is justified on the ground of
lack of confidence removal: expiration of term
122
Nachura Notes – Constitutional Law
123
Nachura Notes – Constitutional Law
125
Nachura Notes – Constitutional Law
“protect and advance the right of the people to a Note: Article 38, Statute of International Court of
balanced and healthful ecology in accord with the Justice
rhythm and harmony of nature” taken from the - Courts whose function is to decide in
Universal Declaration of Human Rights and the accordance with International Law such disputes as
Alma Conference Declaration of 1978, which are submitted to it, shall apply:
recognizes health as a fundamental human right. 1. As PRIMARY SOURCES
LLDA’s authority to issue cease and desist order International Treaties and Conventions
doctrine of necessary implication General or particular
Establishing rules expressly recognized by the
Conflict Between International Law and contesting states.
Municipal Law International Customs
On the domestic sphere, with local court Evidence of general practice, accepted as
deciding: binding law through persistent usage over a long
o If in conflict with CONSTITUTION – Consti period of time
prevails Custom be:
SC has the power to declare a treaty/executive 1. prevailing practice by a number of states
agreement unconstitutional 2. repeated over a considerable period of time
Where Consti is the highest law of the land, 3. attended by opinion juris or a sense of legal
both statutes and treaties may be invalidated if they obligation
are in conflict with the Consti General Principles of Law
o If in conflict with STATUTE Rules derived mainly from natural law,
Doctrine of Incorporation decrees that rules of observed and recognized by civilized nations.
international law are given equal standing with e.g. res judicata, prescription, pacta sunt
national legislative enactments, not superior. servanda, estoppel
Treaty may repeal a statute, a statute may repeal
a treaty principle of lex posterior derogate 2. As SECONDARY SOURCES
priori , that which comes last in time will usually Judicial Decisions
be upheld by the municipal tribunal Generally of international tribunals.
Retail Trade Nationalization Law prevails over Most authoritative: ICJ
the Treaty of Amity with China and the Universal NOT really sources, but “subsidiary means” for
Declaration of Human Rights – former passed in the finding what the law is and whether a norm has
exercise of police power of the State. been accepted as a rule of international law.
On the international sphere, with an Decision of a national court may be used
international tribunal deciding: depending upon the prestige and perceived
o International law is superior to municipal law impartiality of the domestic court, not being in
because international law provides the standard by conflict with the decisions of international tribunals
which to determine the legality of a State’s conduct. and its admissibility in the forum where it is cited.
Writings of publicists
Sources of International Law 1. fair and unbiased representation of international
- On domestic sphere law
1. Constitution 2. by acknowledged authorities in the field
2. Legislative Enactments
3. Case Law (stare decisis) Interpretation of Article 38
- On international law – problem because: although silent, by practice, hierarchy is:
1. no national legislature 1. treaties
2. no fundamental law 2. customs
3. doctrine of precedents is not applicable 3. general principles of law
Exception: Principle of Jus Cogens
127
Nachura Notes – Constitutional Law
129
Nachura Notes – Constitutional Law
4. revolution
5. unification Classes of States
6. succession 1. Independent – freedom to direct and control
foreign relations without restraint from other states
Extinction of States a. Simple – single central government with power
1. extinction over internal and external affairs.
2. emigration en masse of its population b. Composite – 2 or more sovereign states joined
3. loss of territory together to constitute one international person
4. overthrow of government resulting in anarchy i. Real Union
2 or more states are merged under a unified
Principle of State Continuity authority so that they form a single international
The state continues as a juristic being person through which they act as one entity.
notwithstanding changes in the circumstances, State retains their separate identities.
provided only that such changes do not result in the Respective international personalities are
loss of any of its essential elements. extinguished and blended in the new international
person.
Succession of States ii. Federal Union
Kinds: 2. Dependent – theoretically a state, but does not
1. Universal have full freedom in the direction of its external
2. Partial affairs
Effects: a. Protectorate – established at the request of a
1. Political laws are abrogated while municipal weaker state for the protection by a strong power
laws remains in force b. Suzerainty – result of a concession from a state
2. Treaties are discontinued except those dealing to a former colony that is allowed to be independent
with local rights and duties subject to the retention by the former sovereign of
3. All rights of the predecessor state are inherited certain powers over external affairs of the latter.
4. Successor state can assume and reject liabilities 3. Neutralized – independence and integrity are
in its discretion guaranteed by an international treaty on the
condition that such states obligates itself never to
Conquered state has no personality in international take up arms against any other state (except in self-
law. defense) or to enter into an international obligation
as would indirectly involved it in war.
Succession of Government
1. Integrity of the State is not affected Vatican City and the Holy See
2. State continues as the same international person Has all the constituent elements of statehood.
except that its lawful representative is changed Has all the rights of a state.
The Holy See is an international person with
Consequences of Succession of Government which the Philippines had diplomatic ties until
1. all rights of the predecessor government are 1957.
inherited by the successor
2. where the new government was organized by Colonies and Dependencies
virtue of a constitutional reform duly ratified in a Colony – dependent political community
plebiscite, all obligations of the predecessor are consisting of a number of citizens of the same
likewise assumed country who migrated to inhabit another country,
3. where the new government is established but remain subject to the mother state.
through violence, the new government may lawfully Dependency – territory distinct from the country
reject purely personal political obligations of the in which the supreme power resides, but belongs
predecessor but not those obligations contracted by
it in the ordinary course of official business
130
Nachura Notes – Constitutional Law
rightfully to it, and subject to the laws and 2/3 of the members of the General Assembly
regulations which the sovereign may prescribe. and ratified in accordance with their respective
NOTE: Theoretically, they belong to the parent constitutional processes by 2/3 of the members of
state and are without any personality. However, on the UN, including permanent members of the
occasions, colonies have been allowed to participate Security Council
in their own right to certain international A general conference called by a majority vote
undertaking. of the General Assembly and any nine members of
the Security Council, may propose amendments by
Territories under International Control or a 2/3 vote of the conference and shall take effect
Supervision when ratified by 2/3 of the members of the UN,
Non-self-governing territories which have been including the permanent member of the Security
placed under international supervision or control to Council.
insure their political, economic, social and
educational advancement. Principal Objectives
Mandates: former territorial possession of states 1. prevention of war
defeated in World War and placed under control of 2. maintenance of international peace and security
the League of Nations 3. development of friendly relations among
Many of these mandates became trust territories members of the international community
which are placed under the Trusteeship Council of 4. attainment of international cooperation
the United Nations. 5. harmony in the actions of nations
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Nachura Notes – Constitutional Law
4. A member is still subject to discharge its 1) 5 permanent members: China, France, Russia,
obligations under the Charter UK and US
To lift, qualified majority vote of the Security 2) 10 elective members, elected for 2 years by the
Council General Assembly
Expulsion 5 from African and Asian States
2/3 vote of those present and voting in the 2 from Latin American States
General Assembly upon recommendation of at 2 from Western European and other states
qualified majority of the Security Council 1 from Eastern European state
Ground: persistently violating the principles - For elective members, no immediate reelection
contained in Charter is allowed
Withdrawal - Function continuously and sessions may be
Intended that no provision on withdrawal is called at any time
included in the charter. - Representative of the state should always be
No compulsion for continued membership. available
- Functions
Principal Organs 1) Maintain peace and security
1. General Assembly 2) Investigate disputes and call disputants to settle
2. Security Council their differences through peaceful means
3. Economic and Social Council 3) Recommend methods of adjustment of disputes
4. Trusteeship Council 4) Determine the existence of threats to peace,
5. Secretariat breach of peace, acts of aggression and make
6. International Court of Justice appropriate recommendations,
5) Undertake preventive and enforcement actions
General Assembly Preventive actions
- Consist of all the members of the organization 1) Provisional measures to prevent a conflict from
- Each is entitled to not more than 5 worsening
representative and 5 alternates 2) Deployment of peacekeeping and observer
- Each member has only one vote mission
- Regular session – once a year - Established by Security Council
- May hold special sessions – called by Secretary - Directed by the Secretary General
General at the request of the Security Council or - Consent of the host government
majority of members - Military observers shall be unarmed
- On important questions, vote of 2/3 of the - Peace keeping forces may be armed with light
members present and voting is required weapons, but are not authorized to use force except
- On other questions, a simple majority in self-defense
- To classify the question as important, the vote - Operations must not interfere with internal
required is a simple majority affairs
- Functions 3) Other measures
1) Deliberative - Interruption of economic relations,
2) Supervisory communication or diplomatic relations, except for
3) Financial humanitarian reasons
4) Elective Enforcement actions
5) Constituent 1) Deployment of air, sea and land forces
2) Institution of a blockade
Security Council
- Key organ in the maintenance of international Domestic Jurisdiction Clause
peace and security Necessary for settlement of disputes
- Composition
132
Nachura Notes – Constitutional Law
133
Nachura Notes – Constitutional Law
The totality of the powers, legal competence and Guaranteed is legal – or sovereign – equality:
privileges of a state arising from customary equal in law, rights of sovereignty, personality,
international law and not dependent on the consent territorial integrity and political independence
of another state. respected by others.
Independence Not equality in fact
The freedom to conduct foreign relations - Act of State Doctrine
without outside control. A state should not inquire into the legal validity
The right to independence is a natural aspiration of the public acts of another state done within the
of people. territory of the latter.
It is not an absolute freedom. Considerations such as motive are immaterial.
Valid restraints may consist in the obligation to State doctrine seems to make a determination on
observe the validity of the confiscation of property by a
1. the rights of others foreign state a violation of the principle of
2. treaty stipulations international law. (Sabbatino Case)
3. obligations arising from membership in Acts of torture, execution and disappearance
international organizations were clearly acts outside of the President’s authority
Intervention and are not covered by the act of state doctrine.
- Doctrine of State Immunity
State interferes in the domestic or foreign affairs As a consequence of independence, territorial
of another state through the use of force or threat of supremacy and equality, a state enjoys immunity
force. from the exercise of jurisdiction (executive,
Protest or demand for rectification or reparation legislative, judicial) by another state, unless he has
does not comprise intervention. given consent, waived its immunity or voluntarily
1. Intervention used to be justified for preservation submitted to the jurisdiction of the court
of the balance of power, pre-emptive self-defense, concerned.
enforcement of treaty obligation, collection of debts Neither may its public property be attached or
(subsequently prohibited – Drago Doctrine in the taxed, nor its public vessel be boarded, arrested or
HGUE Convention). sued.
2. Contemporary International Law, intervention is Based on the principle of par in parem non
not allowed. habet imperium.
o Article 2, UN Charter – even UN is precluded The State’s immunity extends to the Head of
from intervening in matters essentially within the State who is the personification of the State.
domestic jurisdiction of a state, unless necessary to Restrictive Application of the Doctrine
remove and prevent threats to the peace, breaches or Only with respect to sovereign or public acts of
acts of aggression. the state and cannot be invoked with respect to
o 1965 UN General Assembly – no state has the private or proprietary acts.
right to intervene, directly or indirectly, in the Neither may this immunity be invoked when the
affairs of another. foreign state sues in the courts of another state, for
3. At present, intervention is allowed only: then it is deemed to have submitted itself to the
a. as an act of individual or collective self-defense ordinary incidents of procedure and thus, a
in response to an armed attack counterclaim may be validly set up against it.
b. pursuant to treaty stipulations or On Labor Contracts
c. with prior UN authorization Immunity Extends to Diplomatic Personnel to
the United Nations, its organs and specialized
Right of Equality agencies and to international organizations
- Article 2 of UN Charter Waiver of Immunity
Organization is based on the principle of 1. gives its consent at the time the proceeding is
sovereign equality of all its members instituted
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Nachura Notes – Constitutional Law
2. takes steps relating to the merits of the case Eastern Greenland Case – thinly populated and
before invoking immunity uninhabited areas, very little actual exercise of
3. by treaty or contract, it had previously given sovereignty was needed in the absence of
consent competition.
4. by law or regulation in force at the time the Kalayaan Islands – Tomas Cloma – claim to the
complaint arose, it has indicated that it will consent islands is justified by reason of history,
to the institution of the proceedings. indispensable need and effective occupation and
control.
IV. RIGHT TO TERRITORIAL INTEGRITY Manila Declaration of 1992 – whatever
AND JURISDICTION conflicting claims, there may be over the islands
shall be resolved in a peaceful manner, through
Territory diplomatic negotiations.
- Fixed portion on the surface of the earth on 2. Prescription
which the State settles and over which it has Continuous and uninterrupted possession over a
supreme authority. long period of time
- Components: In international law, as opposed to civil law,
1. Terrestrial there is no rule of thumb as to the length of time
2. Aerial needed for acquisition of territory through
3. Fluvial prescription.
4. Maritime Grotius doctrine of immemorial prescription –
- National Territory of the Philippines – Section
uninterrupted possession going beyond memory.
1, Article I.
3. Cession
- Organic Acts
a. Voluntary
1. Treaty of Paris – cession of the Philippine
o Treaty of Sale
Islands by Spain to the US
o Treaty of Donation
2. Treaty between Spain and the US – Cagayan,
Sulu and Sibuto b. Involuntary or Forced
3. Treaty between US and Great Britain – Turtle 4. Conquest
Islands and Mangsee Islands No longer recognized.
4. 1935 Constitution – Batanes UN Charter prohibits resort to threat or use of
5. 1973 Constitution – by historic or legal title force against territorial integrity or political
6. PD 1596 – Kalyaan Islands by virtue of independence.
occupation and exercise of jurisdiction Stimson Doctrine (even before UN Charter)
which forbade recognition of any government set up
Land Territory (Terrestrial Domain) through external aggression.
Modes of Acquisition 5. Accretion
1. Discovery and Occupation Increase in the land area of the State, through
Territory not belonging to any State or terra natural means or artificially through human labor
nullius is placed under the sovereignty of the
claiming State. Maritime Authority (Fluvial and Maritime Domain)
Discovery alone merely creates an inchoate
right and it must be followed within a reasonable 1) Internal (National) Waters
time by effective occupation and administration. Bodies if water within the land mass.
Palmas Island Arbitration Case – inchoate right The UN Convention on the Law of Seas – all
flowing from discovery was deemed lost because waters on the landward side of the baselines of the
administration was not undertaken within a territorial sea.
reasonable time. i. Rivers
Clipperton Island Case – small territory National
infrequent administration sufficient Boundary – divide territories of States
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Nachura Notes – Constitutional Law
International –flows through various states The length of such baselines shall not exceed
o Thalweg Doctrine: For boundary rivers, in the 100 nautical miles, except that up to 3% of the total
absence of an agreement between the riparian number of base lines inclosing any archipelago may
States, the boundary line is laid on the middle of the exceed that length, up to a maximum of 125
main navigable channel nautical miles.
o Middle of the Bridge Doctrine: Where there is a The baselines drawn should not depart from, to
bridge over a boundary river, the boundary line is any appreciable extent, from the general
the middle or center of the bridge. configuration of the archipelago.
ii. Bays and Gulfs All the waters within the baselines shall be
Bay – well-marked indentation whose considered as internal waters.
penetration is in such proportion to the width of its The breadth of the 12-mile territorial sea, the
mouth as to contain land-locked waters and contiguous zone, the exclusive economic zone and
constitute more than a curvature of the coast. the continental shelf shall then be measures from
Area must be as large or larger than a semi- the archipelagic baselines.
circle whose diameter is a line drawn across the Vessels may be allowed innocent passage. This
mouth of such indentation, or if the mouth is less right may be suspended, after PUBLICATION in
than 24 miles wide. the interest of INTERNATIONAL SECURITY.
Historic Bay – waters are considered internal Coastal state may designate the
because of the existence of historic title. ARCHIPELAGIC SEA LANES for continuous,
iii. Straits – narrow passageways connecting 2 unobstructed transit vessels.
bodies of water. 3) Territorial Sea - belt of the sea located between
If the distance between the two opposite coasts the coast and internal waters of the coastal state on
is not more than 6 miles, they are considered one hand and the high seas on the other, extending
internal waters. up to 12 nautical miles from the low-water mark, or
iv. Canals in case of archipelagic states, from the baselines.
Suez Canal - neutralized GR: ships (not aircrafts) of all states enjoy the
Panama Canal – open to everyone in times of right of innocent passage through the territorial sea
war or peace (not waters).
2) Archipelagic Waters Must be continuous and expeditious.
Archipelagic Doctrine – The waters around, Exception: force majeure
between and connecting the islands of the Submarines and other underwater craft are
archipelago, regardless of their breadth or required to navigate on the surface and to show
dimension, are to be treated as internal waters. their flag
Archipelago – group of islands (including parts 4) Contiguous Zone – extends up to 12 nautical
of island), interconnecting waters and other natural miles from the territorial sea.
features which are closed interrelated in such Technically, not part of the territory of the State.
islands, waters, and other natural features which Coastal state may exercise limited jurisdiction
form an intrinsic geographical, economic and over the contiguous zone to prevent infringement of
political entity for which historically has been customs, fiscal, immigration or sanitary laws.
regarded as such. 5) Exclusive Economic Zone – extends up to 200
Straight Baseline Method – to determine extent nautical miles from the low-water mark or the
of archipelagic waters, the archipelagic state shall baselines.
draw straight baselines connecting the outermost Coastal state may exercise sovereign rights over
points of the outermost islands and drying reefs economic resources of the sea, seabed, subsoil,
providing that the ratio of the area of the water to Other States shall have freedom of navigation
the area of the land, including atolls, is between 1:1 and over-flight, to lay submarine cables and
and 9:1. pipelines, and other lawful uses.
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Nachura Notes – Constitutional Law
States with overlapping EEZ enter into - Air space above the land and water of the state.
appropriate treaty for joint exploitation and - International Convention on Civil Aviation
utilization. (Chicago Convention)
Philippine EEZ Scarborough Shoal Every State has complete and exclusive
6) Continental Shelf sovereignty over the air space above its territory;
Comprises the seabed and the subsoil of the but this shall not include outer space (re
submarine areas that extends beyond the territorial communes).
sea throughout the natural prolongation of its land Other States have no right of innocent passage
territory to the outer edge of the continental margin, over the air territory of another State.
or to a distance of 200 miles from the baselines 5 Freedoms (of Air Transportation for
from which the territorial sea is ensured where the Scheduled International Services)
outer edge of the continental margin does not Fly across the territory without landing
extend up to that distance. Land for non-traffic purposes
Coastal state enjoys right of exploitation of oil Land to put down passenger, mail, cargo of flag
deposits and other resources in the continental shelf. territory
In case continental shelf extends to the shores of Land to take passenger, mail, cargo of flag
another State, or is shared with another State, the territory
boundary shall be determined in accordance with Put down passenger, mail, cargo from these
equitable principles. territories
7) High Seas - 1981 Resolution of the International Civil
Treated as res communes or res nullius Aviation Organization
Not territory of any particular state Intrusion into the air space by civilian aircraft
Traditional view: Freedom of the high seas – may be intercepted but in no case shall the
open and available, without restriction, to the use of interception be attended with the use of weapons.
all states for the purpose of navigation, flight over Military aircraft may be shot down.
them, laying submarine cables and pipes, fishing,
research, mining, etc.
At present, subject to regulation arising from Outer Space
treaty stipulations. Rules governing high seas apply; considered res
Freedom of navigation right to sail ships on communes.
the high seas, subject only to international law and Under customary international law, States have
the laws of the flag state. the right to launch satellites in orbit over the
territorial air space of other States.
Settlement of Dispute Arising from the UN Outer Space Treaty of 1967
Convention on the Law of the Sea (UNCLOS) 1. Outer space is free for exploration and use by all
Part XV of 1982 UN Convention on the Law of States
the Sea 2. Cannot be annexed by any State
Requires States to settle peacefully any dispute 3. May be used exclusively for peaceful purposes.
concerning the convention. (nuclear weapons of mass destruction may not be
Failing bilateral settlement settled for placed in orbit around the earth)
compulsory settlement to one of the tribunals 1972 Convention on International Liability for
having jurisdiction. Damage Caused by Outer Space Objects
International Tribunal for the Law of the Sea, o States which launch objects into space may be
ICJ, and arbitral or special arbitral tribunals held liable for the harmful contamination or for
constitutes under UNCLOS damage which may be caused by falling objects.
Theories on where outer space begins
Air Territory
- Aerial domain
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Head of the State enjoys personal immunity Innocent Passage: navigation through the
from the jurisdiction of another State territorial sea of a State for the purpose of
1961 Vienna Convention on Diplomatic transversing that sea without entering internal
Relations waters, or of proceeding to internal waters, or
Right of the foreign State to acquire property in making for the high seas from the internal waters, as
the receiving State for its diplomatic mission, as long as it is not prejudicial to the peace, good order
well as immunity of the diplomatic envoy from civil or security of the coastal State.
jurisdiction of the receiving State over any real Arrival under stress: involuntary entrance, due
action relating to immovable property which the to lack of provisions, unseaworthiness of vessel,
envoy holds on behalf of the sending state for inclement weather or other case of force majeure,
purposes of the mission. such as pursuit by pirates.
4) Immunity of the United Nations, its Organs, 6) Foreign armies passing through or stationed in
Specialized Agencies, other International the territory with the permission of the State
Organizations and its Officers 7) Warships and other public vessels of another
Article 105, UN Charter: “organizations, State operated for non-commercial purposes
officers, representatives of members, who shall such Generally immune from local jurisdiction
privileges and immunities as are necessary for the “floating territory”
independent exercise of their functions.” Crew members are immune from local
Secure them legal and practical independence in jurisdiction when on shore duty.
fulfilling their duties. N/A if the crew members violate local laws
Free from political pressure or control by the while on furlough or off-duty
host country.
Convention on the Privilege and Immunities of Jurisdiction over Land Authority
the United Nations – the immunities are with - Save for exceptions, the State exercises
respect to: jurisdiction over everything found within the
1) Legal processes relative to words spoken or terrestrial domain.
written and acts in their official capacity
2) Taxation on salaries and emoluments Jurisdiction over Maritime Authority
3) National service obligations - Over internal waters
4) Immigration, restriction and alien registration Same jurisdiction as land area, since the internal
5) Same immunities as are enjoyed by diplomats of water are deemed assimilated in the land mass
comparable rank Foreign merchant vessels docked in a local port
International agency, enjoys immunity from the or bay, the coastal state exercises jurisdiction in
legal writs and processes of the Philippines, because civil matters, but criminal jurisdiction depends on:
subjection to local jurisdiction would impair the 1) English Rule: coastal state shall have
capacity of such body to discharge its jurisdiction over all offenses committed on board
responsibilities impartially in behalf of its member the vessel except those which do not compromise
States. the peace of the port
Section 31, Convention on the Privileges and 2) French Rule: flag State shall have jurisdiction
Immunities to Specialized Agencies of the UN – over all offenses committed on board the vessel
provides remedy for those who may be adversely except those which compromise the peace of the
affected by these immunities each specialized port.
agency of the UN shall make a provision for - Over archipelagic waters
appropriate modes of settlement of disputes arising Same rule as internal waters.
out of contracts or other disputes of private Except for innocent passage of merchant vessels
character to which it is a party. through archipelagic sea lanes.
5) Foreign merchant vessels exercising the right of - Over the territorial sea
innocent passage or arrival under stress
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Criminal jurisdiction over foreign merchant Engaged in illicit traffic in drugs and slave trade
vessels depends on English Rule or French Rule All states shall cooperate in the suppression of:
Exceptions: 1) Illicit traffic in narcotics
1) Innocent passage and 2) Illicit traffic in slave trade
2) Involuntary surrender (distress on the vessel 3) Terrorism
must be real) 4) Unauthorized broadcasting from the high seas,
- Over the contiguous zone except in distress calls
UN Convention on the Law of the Sea, the In the exercise of the right to visit and search
Coastal State may exercise the control necessary to Laws of Neutrality – public vessels or aircraft of
prevent infringement of its customs, fiscal, a belligerent State may visit and search any neutral
immigration and sanitary regulations, and punish merchant vessel on the open seas and capture it if
the said infringement. found to be engaged in activities favorable to the
- Over the exclusive economic zone other belligerent.
UN Convention on the Law of the Sea, Coastal Under the doctrine of hot pursuit
State has sovereign rights over the EEZ for If an offense is committed by a foreign
purposes if exploring and exploiting, conserving merchant vessel within the territorial waters of the
and managing the natural resources, whether living coastal state (or of the coastal state has good reason
or non-living, of the sea-bed, sub-soil, and the to believe that such an offense had been committed)
superjacent waters as well the production of energy the said State’s vessels may pursue the offending
from the water, currents and winds. vessel into the open seas and, upon capture, bring it
Other States shall have the freedom of back to its territory for punishment.
navigation and over-flight, to lay submarine cables Exercised to violations committed in the EEZ or
and pipes and other lawful uses. on the continental shelf installations.
- Over the continental shelf However, to be lawful:
Coastal State enjoys the right of exploitation of 1) The pursuit must have begun before the
oil deposits and other resources in the continental offending vessel has left the territorial waters or the
shelf. contiguous zone of the coastal state
In case the continental shelf extends to the 2) The pursuit must be continuous and unabated
shores of another State or is shared with another 3) Ceases as soon as the ship being pursued enters
State, the boundary shall be determined in the territorial sea of its own or of a Third State.
accordance with equitable principles.
- Over the high seas Jurisdiction over other Territories (Extra-Territorial
Its vessels Jurisdiction)
Flag state has jurisdiction over its public vessels - State may, by virtue of customary and
wherever they are, and over its merchant vessels on conventional law, extend its jurisdiction to territory
the high seas. not within its sovereignty in the following:
Because of the “Flags of Convenience” 1) Assertion of personal jurisdiction over its
Controversy, the UN Convention on the Law of the national abroad
Sea concedes that a vessel shall have the nationality 2) Relations with other states, as when it
of the flag it flies provided there is genuine link establishes a protectorate, condominium, or
between the State and the vessel State must administers trust territory or occupies enemy
effectively exercise jurisdiction and control in territory in the course of war
administrative, technical and social matters over the 3) Consequence of waiver of jurisdiction by the
ship. local state over person and things within the latter’s
Pirates territory
Enemies of mankind 4) Principle of extraterritoriality, exemption of
persons and things from the local jurisdiction on the
May be captured on the open seas by the vessels
basis of international custom.
of any State
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2 or more instruments and whatever its particular Doctrine of jus cogens – customary international
designation. law has the status of peremptory norm of
- Agreement between States including international law, accepted and recognized by the
international organizations of States intended to international community of states as a rule from
create legal rights and obligations of the parties. which no derogation is permitted.
- Executive agreement, under municipal law, is A treaty which contravenes such norms/rules
not a treaty. But from the standpoint of international may be invalidated.
law, equally binding as treaties. Official torture of prisoners is violation of
- Qatar vs. Bahrain: Minutes to a Meeting and principle of jus cogens (Human Rights Cases vs.
exchange of letters constitute an international Marcos)
agreement creating rights and obligations for the 5) Ratification in accordance with constitutional
parties. processes of the parties concerned
Concurrence in by at least 2/3 of all the
Form members of the Senate.
- Article 2, 1969 Vienna Convention on the Law
of Treaties, treaties should be in writing. Treaties and Executive Agreements
- Article 3, fact that treaty is unwritten shall not
affect its legal force. Treaties Executive Agreements
- But that convention rules on matters governed Basic political issues Adjustment of detail
by international law independently of convention Changes in national carrying out well-
shall apply and that convention rules shall apply to policy established national
the relations of the States among themselves. policies
- 1969 Convention on the Law of Treaties Permanent international Temporary arrangements
treaties executed between states arrangements
- 1986 Vienna Convention in Treaties for
International Organizations treaties executed When there is a dispute as to whether or not an
between States and International Organizations international agreement is purely an executive
agreement, the matter is referred to the Secretary of
Requisites for Validity Foreign Affairs who will then seek the comments of
1) Treaty-making capacity the SENATE REPRESENTATIVE and the LEGAL
Possessed by every state as attribute of ADVISER of the DFA and after consultation with
sovereignty the Senate leadership, the Secretary shall then make
International organization, deemed to possess the appropriate recommendations to the President.
such, may be limited by the purpose and
constitution of such organization. Treaty-making Process
2) Competence of the representative/organ 1) Negotiations
concluding the treaty Pleine pouvoirs
Generally, exercised by Head of State. Even w/o such, it has been the general practice
In the Philippines, President w/ concurrence by to consider the following as representatives of the
2/3 of all members of the Senate State for treaty negotiations:
3) Parties must freely given consent 1) Head of State
Doctrine of Unequal Treaties – imposed through 2) Head of Government
coercion or duress by a State of unequal character is 3) Foreign Minister
void. 4) Head of diplomatic missions
4) Object and subject matter must be lawful 5) Representative accredited by the State to an
Within the commerce of nations and in international conference or to an international
conformity with international law. organization
2) Signing of the Treaty
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2) naturalization w/o renunciation of the original - Contracting states also agreed to grant to
nationality stateless persons within their territories as favorable
3) legitimation as possible, in any event, not less favorable than
4) legislative action that accorded to aliens:
Policy in the Philippines- dual allegiance is 1. acquisition of movable and immovable property
inimical to national interest and shall be dealt with 2. right of association in non-political and non-
by law. profit-making associations and trade unions
Resolution of conflicts in Multiple Nationality 3. gainful employment and practice of liberal
Cases profession
1930 Hague Convention on the Conflict of 4. housing and public education other than
Nationality Law elementary
1) A person having 2 or more nationalities – 5. freedom of movement
regarded as national by each of the States; AND a
state may not give diplomatic protection to one of VIII. TREATMENT OF ALIENS
its nationals against a State whose nationality that
person possesses. General Rule: Flowing from its right of existence
2) If a person has more than one nationality, he and as an attribute of sovereignty, no State is under
shall within a 3rd state, be treated as if he had only obligation to admit aliens.
one; the third State shall recognize exclusively Power to regulate the entry and stay of aliens,
either the nationality of the State in which he is and the State has the right to expel aliens from its
habitually and principally resident or the nationality territory through DEPORTATION or
of the State with which he appears in fact to be most RECONDUCTION.
closely connected – “Principle of Effective DEPORTATION or EXPULSION
Nationality” Menace to the security of the State
3) If a person, without any voluntary act of his Entry was illegal
won, possesses double nationality, he may renounce Permission to stay has expired
one of them with the permission of the State whose Violated any limitation or condition prescribed
nationality he wishes to surrender and, subject to for his admission and continued stay.
the laws of the State concerned, such permission RECONDUCTION
shall not be refused if that person has his habitual Forcible conveying of aliens back to their home
residence abroad. States
Destitute aliens
Statelessness
Vagabonds
- Status of having no nationality, as a
consequence of being BORN WITHOUT A Aliens without documents
NATIONALITY or as a result of DEPRIVATION or Alien criminals
LOSS OF NATIONALITY. Home state of such aliens has the obligation to
- 1954 Convention Relating to the Status of receive them
Stateless Persons – contracting states agreed to Alien must accept the institutions of the State.
grant to stateless persons within their territories He may be deprived of certain rights.
treatment at least as favorable as that accorded to Local laws may grant him certain rights and
their nationals with respect to: privileges based on:
1. freedom to practice their religion and freedom 1. reciprocity
as regards the religious education of their children 2. most-favored-nation treatment
2. access to courts 3. national treatment (equality between nationals
3. rationing of products in short supply and aliens in certain matters)
4. elementary education privileges may be revoked, subject to treaty
5. public relief and assistance stipulations.
6. labor legislation and social security
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Doctrine of State Responsibility punish the guilty or to enable the victim to pursue
a State is under obligation to make reparations his civil remedies against the offender.
to another State for the failure to fulfill its primary The claimant has the burden of proving.
obligation to afford, in accordance with 3. Injury to the claimant State indirectly because of
international law, the proper protection due to the damage to its national
alien national of the latter State.
The State may be held liable for injuries and Enforcement of Alien’s Claim
damages sustained by the alien if: 1. Exhaustion of Local Remedies
1. Act or omission constitutes an international Because the State must be given an opportunity
delinquency to do justice in its own regular way and without
International Standard of Justice – standard of unwarranted interference with its sovereignty by
reasonable state and notions accepted in modern other states.
civilization. N/A if:
1. laws of the State fall below the international 1. no remedies to exhaust, e.g. laws are
standard, it is no defense that such laws are intrinsically defective
applicable not only to aliens but to nationals 2. courts are corrupt
doctrine of equality of treatment not applicable 3. no adequate machinery
2. independence of the courts of the State and 4. international delinquency results from an act of
unless the misconduct is extremely gross, the law state
does not lightly hold a State responsible for any Calvo Case: alien waives or restricts his right to
error committed by the Courts appeal to his own state in connection with any claim
2. Act or omission is directly or indirectly arising from the contract and agrees to limit himself
imputable to the State to the remedies available under the laws of the local
Even when the laws of the State conform to state.
International standard, if it does not make Does not mean that the alien’s state is deprived
reasonable efforts to prevent injury to alien or of the right to protect or vindicate its interest in case
having done so unsuccessfully, fails to repair such they are injured in another state, as such waiver can
injury. be legally made by the state, not the alien.
The act or omission that may give rise to 2. Resort to Diplomatic Protection
liability may either be: After exhaustion of local remedies, alien must
1. acts of government officials avail himself of the assistance of his state.
primary agents Tie of nationality time of injury until time
give rise to direct state responsibility international claim is finally settled.
acts of high administrative officials UN may file diplomatic claim on behalf of its
officer acts beyond the scope of his authority, officials.
his act is likened to an act of a private individual. European Commission on HR and also
Acts of a minor or subordinate official to give contracting states other than the state of the injured
rise to liability, there must be a denial of justice or individual may bring alleged infractions of the
something which indicates complicity of the State European Convention on HR before the European
in, or condonation of, the original wrongful act, Court of HR.
such as an omission to take disciplinary action 3. Modes of Enforcement of Claims
against the wrongdoer. Negotiations or other modes of settling dispute.
2. acts of private individuals When responsibility is established:
For State to be liable, there must be actual or 1. Reparation
tacit complicity of the government in the act, before 2. Satisfaction
of after it, either by directly ratifying or approving 3. Compensation
it, or in the patent or manifest negligence in taking 4. all three
measures to prevent injury, investigate the case,
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themselves, provided they carry arms openly and combatants of similar ranks and functions in the
observe the laws and customs of war; armed forces of that party.
e. Franc tireursm, or guerillas, provided they are
commanded by a person responsible for his Conduct of Hostilities.
subordinates, wear a fixed distinct emblem Three Basic Principles
recognizable at a distance, carry their arms openly, Principle of Military Necessity
and conduct their operations according to the laws The belligerent may employ any amount of force to
and customs of war; and compel the complete submission of the enemy with
f. Officers and crew of merchant vessels who the least possible loss of lives, time and money.
forcibly resist attack. Principle of Humanity
Prohibits the use of any measure that is not
Rights of Prisoners of War absolutely necessary for the purposes of the war.
1949 Geneva Convention Humanitarian Convention in Armed Conflict
Treated humanely The right of the parties to adopt means of injuring
Not subject to torture the enemy is not unlimited
Allowed to communicate with their families Parties are prohibited to launch attacks against the
Receive food, clothing. Religious articles, etc. civilian population as such
Distinction must be made at all times between
Spies persons taking part in the hostilities and members of
Individual is deemed a spy only if, the civilian population, to spare the latter as much
as possible.
a. Acting clandestinely or under false pretenses
Enforcement action undertaken by UN is not war in
b. He obtains or seeks to obtain information in the
the traditional sense, as it is employed only to
zone of operations of a belligerent
maintain international peace and security,
c. With the intention of communicating it to the
humanitarian rules of warfare should still govern.
hostile party.
When captured, may be proceeded against under
Principle of Chivalry
the municipal law of the belligerent. Prohibits the belligerents from the employment
Although under the Hague Convention, may not
of perfidious or treacherous methods.
be executed without a trial.
But if captured after he has succeeded in Belligerent Occupation
rejoining his army, must be treated as a prisoner of Temporary military occupation of the enemy’s
war. territory during the war.
Scouts or soldiers in uniform who penetrate the Maintains effective control and military
zone of operations of the hostile army to obtain superiority and being able to send sufficient forces
information are NOT spies. to assert its authority within a reasonable time.
Mercenaries Effects
Protocol I to the 1949 Geneva Convention No change in sovereignty, but exercise of the
Mercenaries shall not have the rights of powers of sovereignty is suspended.
combatants or of prisoners of war. Political laws, except the laws on treason, are
To be considered a mercenary suspended.
a. The person must be a specially recruited to fight Municipal laws remain in force.
for a particular armed conflict
b. Must take direct part in the hostilities Rights and Duties of Belligerent Occupant
c. Motivated essentially by the desire for personal 1. Re-establish or continue the processes of orderly
gain and is provided material compensation administration, including enactment of laws.
substantially in excess of that promised or paid to 2. Adopt measures for the protection of the
inhabitants
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Nachura Notes – Constitutional Law
3. Requisition (sequester) goods with proper cash Protection granted by a commanding officer to
or future payment and services in non-military enemy persons or property within his command
projects (Conscription is prohibited) Usually with an escort or convoy of soldiers
4. Demand taxes and contributions to finance providing the needed protection.
military and local administrative needs
Foraging: the actual taking of provisions for Licenses to Trade
men and animals by the occupation troops where Permission given by competent authority to
lack of time makes it inconvenient to obtain individuals to carry on trade though there is state of
supplies by usual or ordinary methods. war.
Compensation must be paid at the end of the
war. Suspension of Hostilities
5. Issue legal currency
6. Use enemy property, public or private, but Suspension of Arms
private property is subject to indemnification or Temporary cessation of hostilities
return at the end of the war. By agreement of the local commanders
For the purposes of gathering of the wounded
Right of Angary and burial of the dead
Right of belligerent state, in cases of extreme
necessity, to destroy or use neutral property on its Armistice
own or on enemy territory or on the high seas Suspension of hostilities within a certain area or
in the entire region of the war
Non-Hostile Intercourse Agreed upon by the belligerents
Usually for the purpose of arranging the terms
Flag of Truce of the peace
White in color desire to communicate with
the enemy Cease-Fire
Agent (parlementaire) enjoys inviolability and is Unconditional stoppage of hostilities
entrusted with the duty of negotiating with the Usually ordered by an international body
enemy.
Truce
Cartels Conditional cease-fire for political purposes
Agreements to regulate intercourse during the
war Capitulation
Usually on the exchange of prisoners of war Surrender of military forces, places or districts
in accordance with rules of military honor.
Passport
Written permission given by the belligerent Termination of War
government 1. Simple Cessation of Hostilities
To the subjects of the enemy Principle of uti possidetis with respect to
To travel generally in the belligerent state property and territory possessed by the belligerents
is applied.
Sage-conduct 2. Conclusion of a negotiated treaty of peace
Permission given to an enemy subject or to an 3. Defeat of one of the belligerents
enemy vessel Followed by a dictated territory of peace or
Allowing passage between defined points annexation of conquered territory.
Safeguard Postliminium
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Nachura Notes – Constitutional Law
Termination of Neutrality
(1) Conclusion of a treaty or peace between
belligerents
(2) Neutral state itself joins war
158