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Table of Contents
A. Definitions
B. Power to Prescribe Qualifications
C. Time of Possession of
Qualifications
D. Presumption of Eligibility
E. Qualifications USUALLY
Prescribed
F. Religious Test/Qualification
Required
G. Disqualifications to Hold Public
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LAW ON PUBLIC OFFICERS
Office
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C. Punishment
XI. The International Criminal Court
(ICC)
A. Crimes within the Courts
Jurisdiction
B. Modes of Incurring Criminal
Liability
C. Sources of Law
D. Other Key Concepts
E. Landmark Cases
CHAPTER XI. DIPLOMATIC
INTERCOURSE
I. Agents of Diplomatic Intercourse
A. Head of State
B. The Foreign Office
C. The Diplomatic Corps
II. Functions and Duties
III. Diplomatic Immunities and
Privileges
A. Personal Inviolability
B. Inviolability of Premises and
Archives
C. Right of Official
Communication
D. Immunity from Local
Jurisdiction
E. Exemption from Taxes and
Customs Duties
IV. Consular Relations
A. Ranks
B. Necessary Documents
C. Immunities and Privileges
CHAPTER XII. RECENT
INTERNATIONAL LAW ISSUES IN
PHILIPPINE LAW
I. Daniel Smith and the VFA
II. Constitutionality of the Baselines
Law
III. Violence Against Women as Torture
APPENDICES
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Table of Contents
CONSTITUTIONAL LAW I
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Page 2 of 313
CONSTITUTIONAL LAW I
FACULTY-STUDENT
STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
CONSTITUTIONAL LAW I
Prof. Theodore O. Te
FACULTY EDITOR
ACADEMICS COMMITTEE
HEAD
SUBJECT EDITORS
Samantha Poblacion
DIRECTOR FOR ACADEMICS
EDITOR-IN-CHIEF
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
-------Kae Guerrero
Jason Mendoza
CONSTITUTIONAL LAW I
DEPUTY HEAD
Johanna Lorenzo
Malds Menzon
LEAD WRITER
LOGISTICS, HR
Ina Fransisco-Lao
Jill de Dumo
Chris Capul
Constitutional Law I
Chapter I. The State
I.
TERRITORY
A. 1987 CONSTITUTION, ART.
RT. I
B. TREATY OF PARIS
C. ARCHIPELAGIC DOCTRINE
E
II. PEOPLE
A. DEFINITIONS
1. INHABITANTS
2. ELECTORS
3. CITIZENS
B. CITIZENSHIP
1. WHO ARE CITIZENS?
2. NATURAL BORN
3. WHO MUST BE NATURAL
NATURAL-BORN?
4. GROUNDS
FOR
LOSS
OF
CITIZENSHIP
5. HOW
MAY
CITIZENSHIP
BE
REACQUIRED?
6. DUAL ALLEGIANCE
III. SOVEREIGNTY
A. KINDS
B. THEORY OF AUTO-LIMITATION
LIMITATION
C. DOMINIUM V. IMPERIUM
D. JURISDICTION
E. SUITS AGAINST THE STATE
ATE AND THE
DOCTRINE OF SOVEREIGN IMMUNIT
IMMUNITY
IV. GOVERNMENT
A. DEFINITION
B. FUNCTIONS
C. DOCTRINE OF PARENS PATRIAE
ATRIAE
D. DE
JURE
AND
DE
FACTO
GOVERNMENTS
-------Leo Zulueta
WRITERS
B.Treaty
Treaty of Paris, Art. III
Spain cedes to the United States the
archipelago known as the Philippines
Islands, and comprehending the islands
lying within the following line xxx
I. TERRITORY
(Asked 7 times in the Bar)
Page 3 of 313
C. Archipelagic Doctrine
II. PEOPLE
A. Definition
The term assumes three different
meanings, depending on the context in
which it is used: (NACHURA)
1. Inhabitants, as used in:
i. The right of the people to be
secure in their persons, houses,
papers,
and
effects
against
unreasonable searches and seizures
of whatever nature and for any
purpose shall be inviolable x x x
(Sec 2, Art III)
B. Citizenship
(Asked 25 times in the Bar)
1. Who are citizens?
i. Citizens of the Philippines at the
time of the adoption of this
Constitution;
ii. Those whose fathers or mothers are
citizens of the Philippines;
iii. Those who elected to be citizens.
This is available only to:
- those born before January 17,
1973,
- to Filipino mothers,
- and elect Philippine citizenship
upon reaching the age of
majority
iv. Those naturalized in accordance
with law.
ARTICLE IV, Section 1 (3), 1987
Constitution is also applicable to those
Page 4 of 313
CONSTITUTIONAL LAW I
Elements:
1. Internal waters waters around,
between and connecting the islands of
the archipelago
2. Straight baseline method consists of
drawing straight lines connecting
appropriate points on the coast without
departing to any appreciable extent
from the general direction of the
coast, in order to delineate the internal
waters from the territorial waters of an
archipelago
2. Natural-born
i. citizens of the Philippines from birth
without having to perform any act
to acquire or perfect their Philippine
citizenship; and
ii. those
who
elect
Philippine
citizenship in accordance with
ARTICLE IV, Section 1 (3)
Tecson v. Comelec, (2004)
The term "natural-born citizens," is
defined to include "those who are
citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship."
Only two, i.e., jus soli and jus
sanguinis, could qualify a person to
being a "natural-born" citizen of the
Philippines. Jus soli, per Roa vs.
Collector of Customs (1912), did not
last long. With the adoption of the 1935
Constitution and the reversal of Roa in
Tan Chong vs. Secretary of Labor
(1947),
jus
sanguinis
or
blood
relationship would now become the
primary basis of citizenship by birth.
3. Who must be Natural-Born?
i. President (Sec. 2, Art VII)
ii. Vice-President (Sec. 3, Art VII)
iii. Members of Congress (Secs. 3 and
6, Art VI)
iv. Justices of SC and lower collegiate
courts (Sec. 7 (1), Art VIII)
v. Ombudsman and his deputies (Sec.
8, Art XI)
vi. Members
of
Constitutional
Commissions
vii. CSC (Sec. 1 (1), Art IX B)
viii. COMELEC (Sec. 1 (1) Art IX C)
ix. COA (Sec. 1 (1), Art IX D)
x. Members of the Central Monetary
Authority (Sec. 20, Art XII)
xi. Members of the Commission on
Human Rights (Sec. 17 (2), Art XIII)
Page 5 of 313
CONSTITUTIONAL LAW I
6. Dual Allegiance
i. aliens who are naturalized as
Filipinos but remain loyal to their
country of origin (cite source)
ii. public officers who, while serving
the government, seek citizenship in
another country (cite source)
Page 6 of 313
CONSTITUTIONAL LAW I
ii. Repatriation
III.SOVEREIGNTY
(Asked 4 times in the Bar)
C. Dominium v Imperium
1. KINDS:
i. Territorial jurisdiction
authority of the State to have all
persons and things within its
territorial limits to be completely
subject to its control and
protection.
B. Theory of Auto-Limitation
Imperium
States authority to govern.
covers such activities as passing
laws
governing
a
territory,
maintaining peace and order over it,
and defending it against foreign
invasion.
When the State acts in this capacity,
it
generally
enjoys
sovereign
immunity.
D. Jurisdiction
A. Kinds
1. Legal sovereignty - power to issue final
commands.
2. Political sovereignty - power behind the
legal sovereign, or the sum total of the
influences that operate upon it.
3. Internal sovereignty - power to control
domestic affairs.
4. External sovereignty (also known as
independence) - power to direct
relations with other states.
CONSTITUTIONAL LAW I
CONSTITUTIONAL LAW I
B. Functions
1. Constituent functions - constitute the
very bonds of society; compulsory.
i. keeping of order and providing
protection
ii. fixing of legal relations between man
and wife, and children
iii. regulation
of
the
holding,
transmission and interchange of
property
iv. define crime and punishment
v. regulates and determines contract
between individuals
vi. dealings of state with foreign powers
2. Ministrant functions - undertaken to
advance the general interests of society;
optional.
i. public works
ii. public education
iii. public charity
iv. health and safety regulations
v. trade and industry
IV. GOVERNMENT
(Asked two times in the Bar)
A. Definition
Sec. 2(1) Administrative Code. Government of
the Republic of the Philippines is defined as:
the corporate governmental entity through
which the functions of government are exercised
throughout the Philippines, including
US v Dorr, (1903)
Government is that
institution
or
CONSTITUTIONAL LAW I
D. De
Jure
and
Governments
De
Facto
1. De jure government
i. has rightful title
ii. no power or control, either because
this has been withdrawn from it, or
because it has not yet actually
entered into the exercise thereof. (In
re Letter of Associate Justice Puno,
1992)
2. De facto government
i. government of fact, that is, it
actually exercises power or control
without legal title. (Co Kim Cham v.
Valdes, 1945)
In re Bermudez, (1986)
The legitimacy of the Aquino government is
not a justiciable matter. It belongs to the
realm of politics where only the people of
the Philippines are the judge. And the
people have made the judgment; they
have accepted the government of President
Corazon C. Aquino which is in effective
control of the entire country so that it is
not merely a de facto government but in
fact and law a de jure government.
Moreover, the community of nations has
recognized the legitimacy of the present
government. All the eleven members of this
Court, as reorganized, have sworn to
uphold the fundamental law of the Republic
under her government. [citing Lawyers
League for a Better Philippines v. Aquino,
1986]
automatically
orbits
out
of
the
constitutional loop. In checkered contrast,
the government of respondent Arroyo is
not revolutionary in character. The oath
that she took at the EDSA Shrine is the
oath under the 1987 Constitution. In her
oath, she categorically swore to preserve
and defend the 1987 Constitution.
Indeed, she has stressed that she is
discharging the powers of the presidency
under
the
authority
of
the
1987
Constitution.
In fine, the legal distinction between
EDSA People Power I EDSA People Power II
is clear. EDSA I involves the exercise of the
people power of revolution which overthrew
the whole government. EDSA II is an
exercise of people power of freedom of
speech and freedom of assembly to petition
the government for redress of grievances
which only affected the office of the
President. EDSA I is extra-constitutional
and
the
legitimacy
of
the
new
government that resulted from it cannot
be the subject of judicial review, but
EDSA II is intra-constitutional and the
resignation of the sitting President that
it caused and the succession of the Vice
President as President are subject to
judicial review. EDSA I presented a
political question; EDSA II involves legal
questions. xxx
Even if the petitioner can prove that he did
not resign, still, he cannot successfully
claim that he is a President on leave on the
ground that he is merely unable to govern
temporarily. That claim has been laid to
rest by Congress and the decision that
respondent Arroyo is the de jure,
president made by a co-equal branch of
government cannot be reviewed by this
Court.
legitimacy
successful
is beyond
government
Page 10 of 313
CONSTITUTIONAL LAW I
I.
II.
III.
IV.
V.
LEGISLATIVE DEPARTMENT
A. NATURE AND CLASSIFICATION OF
LEGISLATIVE POWER
B. COMPOSITION, QUALIFICATIONS AND
TERM OF OFFICE
C. ELECTION
D. SALARIES,
PRIVILEGES
AND
DISQUALIFICATIONS
E. INTERNAL
GOVERNMENT
OF
CONGRESS
F. ELECTORAL TRIBUNALS
G. COMMISSION ON APPOINTMENTS
H. POWERS OF CONGRESS
JUDICIAL DEPARTMENT
A. IN GENERAL
B. SUPREME COURT
C. JUDICIAL AND BAR COUNCIL
EXECUTIVE DEPARTMENT
A. PRESIDENT
B. VICE-PRESIDENT
CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
B. CIVIL SERVICE COMMISSION
C. COMMISSION ON ELECTIONS
D. COMMISSION ON AUDIT
CONSTITUTIONALLY-MANDATED BODIES
A. SANDIGANBAYAN
B. OMBUDSMAN
C. COMMISSION ON HUMAN RIGHTS
I. LEGISLATIVE DEPARTMENT
(Asked 23 times in the Bar)
of
1. Nature:
The authority to make laws and to
alter or repeal them.
Vested in Congress, except to the
extent reserved to the people by
provision
on
initiative
and
referendum
Plenary (Congress may legislate on
any subject matter provided that the
limitations are observed.)
2. Classification of Legislative Power:
Composition
Qualifications
Senate
(Art. VI secs. 2-4)
24 senators elected at large
6 years
House of Representatives
(Art. VI secs. 5-8)
Not more than 250 members, unless
otherwise provided by law, consisting
of:
1. District Representatives
2. Party-List Representatives
3. Sectoral Representatives
Natural-born citizens
At least 25 years old on the day of the
election
Able to read and write
Registered voter in the district he
seeks to represent
A resident of the said district for at
least 1 year immediately preceding the
day of the election
3 years
2 consecutive terms.
3 consecutive terms.
Term
of
Office
Term Limits
Natural-born citizen
At least 35 years old on the day
of the election
Able to read and write
A registered voter
Resident of the Philippines for at
least
2
years
immediately
preceding the day of the election
1. Senate
Composition:
large
24 senators elected at
Qualifications:
1. Natural-born citizen
2. At least 35 years old on the day of
the election
3. Able to read and write
4. A registered voter
Page 11 of 313
CONSTITUTIONAL LAW I
2. House of Representatives
(Art. VI Secs. 5-8)
Composition:
Not more than 250
members, unless otherwise provided by
law, consisting of:
i.
District Representatives
elected from legislative districts
apportioned
among
the
provinces, cities, and the Metro
Manila area.
Rules on Apportionment of
Legislative Districts:
1. Proportional representation
based
on
number
of
inhabitants
a. Each
city
with
a
population of at least
250,000,
or
each
province, shall have at
least 1 representative.
Each
province,
irrespective
of
the
number of inhabitants,
shall have at least 1
representative.
b. Each legislative district
shall comprise, as far as
practicable, contiguous,
compact, and adjacent
territory.
2. Re-apportionment
by
Congress within 3 years after
the return of each census
Qualifications of
Representatives:
1. Natural-born citizens
Page 12 of 313
CONSTITUTIONAL LAW I
Term of Office:
3 years,
commencing at noon on the 30th day
of June next following their election.
Dimaporo v. Mitra (1991)
In B.P. Blg. 881 members of the
legislature
included
in
the
enumeration of elective public
officials are to be considered
resigned from office from the
moment of the filing of their
certificates of candidacy for another
office, except for President and VicePresident. The term of office
prescribed by the Constitution may
not be extended or shortened by the
legislature, but the period during
which an officer actually holds the
office (tenure) may be affected by
circumstances within or beyond the
power of said officer.
Tenure may be shorter than the
term or it may not exist at all. These
situations will not change the
duration of the term of office.
Term Limits: No member of the
House of Representatives shall serve
for more than 3 consecutive terms.
C. Election
1. Regular Elections
Unless otherwise provided by law,
the regular election of the Senators
and the Members of the House of
Representatives shall be held on the
second Monday of May. (Sec 8, Art
VI)
2. Special Election
In case of vacancy in the Senate or
in the House of Representatives, a
special election may be called to fill
such vacancy in the manner
prescribed by law,
but the Senator or Member of the
D. Salaries,
Privileges
Disqualifications
and
1. Salaries
The salaries of Senators and
Members
of
the
House
of
Representatives shall be determined
by law.
No increase in said compensation
shall take effect until after the
expiration of the full term of all the
Members of the Senate and the
House of Representatives approving
such increase. (Ligot v. Mathay,
1974)
Official
President
Vice-President,
President
of
the
Senate, Speaker of the
House
of
Representatives, and
Chief Justice of the
Supreme Court
Senators, Members of
the
House
of
Representatives,
Associate Justices of
the Supreme Court,
and Chairmen of the
Constitutional
Commissions
Members
of
the
Constitutional
Commissions
Annual Salary
Php 300,000
Php 240,000
Php 204,000
Php 180,000
Page 13 of 313
CONSTITUTIONAL LAW I
Page 14 of 313
CONSTITUTIONAL LAW I
3. Rules of Proceedings
4. Discipline of Members
2. Quorum
Majority
of
each
House
shall
constitute a quorum.
A smaller number may adjourn from
day to day and may compel the
attendance of absent members.
Avelino v. Cuenco, (1949):
In computing a quorum, members who
are outside the country, thus outside of
each Houses coercive jurisdiction, are
not included.
Majority refers to the number of
members within the jurisdiction of
the Congress (those it can order
arrested for the purpose of questioning).
In this case, one Senator was out of the
Philippines which is not within the
jurisdiction of the Senate, so that the
working majority was 23 Senators.
There is a difference between a
majority of "all members of the House"
and a majority of "the House", the latter
requiring less number than the first.
Therefore, an absolute majority (12) of
all members of the Senate less one (23)
constitutes constitutional majority of
the Senate for the purpose of the
quorum.
5. Journal
Records
and
Congressional
Page 15 of 313
CONSTITUTIONAL LAW I
the
the
an
bill
the
US v. Pons, (1916):
Congress may validly continue enacting
bills even beyond the reglementary
period of adjournment.
When the
journal shows that Congress conducted
a sine die session where the hands of
the clock are stayed in order to afford
Congress the opportunity to continue
its session. All bills enacted during
the sine die session are valid and
conclusive upon the Courts.
The
Journals
are
conclusive
evidence of the contents thereof and
Courts are bound to take judicial
notice of them.
c.
d. Journal
Theory
Entry
Rule
v.
Enrolled Bill
6. Sessions
a. Regular Sessions
Convenes once every year on the 4th
Monday of July.
Continues to be in session until 30
days before the start of its next
regular
session,
exclusive
of
Saturdays, Sundays, and legal
holidays.
b. Special Sessions
Called by the President at any time
when Congress is not in session
c.
Adjournments
Neither House can adjourn for more
than 3 days during the time
Congress is in session without the
consent of the other House.
Neither can they adjourn to any
other place than that where the two
houses are sitting, without the
consent of the other.
d. Joint Sessions
Voting separately
Choosing the President (Sec. 4,
Art VII)
Page 16 of 313
CONSTITUTIONAL LAW I
F. Electoral Tribunals
1. Composition
2. Nature of Function
Jurisdiction: be the sole judge of all
CONTESTS relating to the election,
returns, and qualifications of their
respective members. ET has jurisdiction
only when there is an election contest.
3. Independence
Tribunals
of
the
Electoral
Since
the
ETs
are
independent
constitutional bodies, independent even of
the respective House, neither Congress nor
the Courts may interfere with procedural
matters relating to the functions of the
ETs. (Co v. HRET, 1991)
Bondoc v. Pineda, (1991):
The HRET was created to function as a
nonpartisan court although two-thirds of
its members are politicians. It is a nonpolitical body in a sea of politicians.
To be able to exercise exclusive
jurisdiction, the House Electoral Tribunal
must be independent. Its jurisdiction to
hear and decide congressional election
contests is not to be shared by it with the
Legislature nor with the Courts. "The
Electoral Commission is a body separate
from and independent of the legislature and
though not a power in the tripartite scheme
of government, it is to all intents and
purposes, when acting within the limits of
its authority, an independent organ; while
composed of a majority of members of
the legislature it is a body separate from
and independent of the legislature.
CONSTITUTIONAL LAW I
4. Powers
Co v. HRET, (1991)
As constitutional creations invested with
necessary power, the Electoral Tribunals
are, in the exercise of their functions
independent organs independent of
Congress and the Supreme Court. The
power granted to HRET by the Constitution
is intended to be as complete and
unimpaired as if it had remained originally
in the legislature (citing Angara vs.
Electoral Commission [1936]).
1. Composition:
a. Senate President as ex-officio chairman
(shall not vote except in case of a tie.)
b. 12 Senators
c. 12 Members of the House
The 12 Senators and 12 Representatives
are elected on the basis of proportional
representation from the political parties
and party-list organizations.
Daza v Singson, (1989)
The
authority
of
the
House
of
Representatives
to
change
its
representation in the Commission on
Appointments to reflect at any time the
changes that may transpire in the political
alignments of its membership. It is
understood
that
such
changes
in
membership must be permanent and do
not include the temporary alliances or
factional divisions not involving severance
of political loyalties or formal disaffiliation
and permanent shifts of allegiance from one
political party to another.
Guingona, Jr. v Gonzales, (1993)
The
provision
of
Section
18
on
proportional
representation
is
mandatory in character and does not
leave any discretion to the majority party in
the Senate to disobey or disregard the rule
on proportional representation RATIONALE:
The party with a majority representation in
the Senate or the house of Representatives
can by sheer force of numbers impose its
will on the hapless minority.
By
requiring
a
proportional
representation in the Commission on
Appointments, Section 18 in effect works as
a check on the majority party in the Senate
and helps to maintain the balance of power.
No party can claim more than what it is
entitled to under such rule.
CONSTITUTIONAL LAW I
G. Commission on Appointments
2. Meetings
3. Jurisdiction
a. Commission on Appointments shall
confirm the appointments by the
President with respect to the following
positions:
Heads of the Executive Departments
(except if it is the Vice-President
who is appointed to the post);
Ambassadors,
other
public
ministers or consuls;
Officers of the AFP from the rank of
Colonel or Naval Captain;
Other officers whose appointments
are
vested
in
him
by
the
Constitution
(e.g.
COMELEC
members);
b. Congress cannot by law require that the
appointment of a person to an office
created by such law shall be subject to
confirmation by the Commission on
Appointments.
c. Appointments
extended
by
the
President to the above-mentioned
positions while Congress is not in
session shall only be effective until
disapproval by the Commission on
Appointments or until the next
adjournment of Congress.
H. Powers of Congress
1. General
(Sec Art VI)
a. Legislative Powers: (Scope: vested in
Congress by the Constitution except to
the extent reserved to the people by the
provision on initiative and referendum).
powers of appropriation, taxation
and expropriation
authority to make, frame and enact
laws
b. Non-legislative Powers (Scope)
power to canvass the presidential
elections;
declare the existence of war;
give concurrence to treaties and
amnesties;
propose constitutional amendments;
impeach;
derivative and delegated power;
implied powers such as the power to
punish contempt in legislative
investigations.
2. Specific Powers
a.
b.
c.
d.
e.
f.
Constituent power
Legislative Inquiries
Appropriation
Taxation
Concurrence
in
treaties
and
international agreements
War powers and delegations powers
3. Inherent Powers
a. Police Power
Make, ordain, and establish all
manner
of
wholesome
and
reasonable laws, statutes and
ordinances as they shall judge for
the good and welfare of the
constituents.
Includes maintenance of peace and
order, protection of life, liberty and
property and the promotion of
general welfare
b. Power of Taxation
c. Power of Eminent Domain
d. Contempt power
4. Limitations:
a. Formal or Procedural Limitations
Prescribes the manner of passing
bills in the form they should take
Limitations provided by Sec 26, Art
VI
o Every bill passed by the
Congress shall embrace only one
subject which shall be expressed
in the title
o No bill passed by either house
shall become law unless it has
passed 3 readings on separate
days
o Printed copies in its final form
have been distributed to its
members 3 days before the
passage of the bill
Exception: president certifies
to the necessity of its
Page 19 of 313
CONSTITUTIONAL LAW I
b. Substantive Limitations
Circumscribe both the exercise of
the power itself and the allowable
subject of legislation
Express limitations:
o Sec 24-26, 28-30, Art VI
Express limitations on general
powers
o Bill of rights
Implied Limitations
o No power to pass irrepealable
law
o Non-encroachment on powers of
other departments
o Non-delegability of powers
Specific Limitations
o For General Appropriations Bills
1. Congress may not increase
the
appropriations
recommended
by
the
President for the operation of
the Government as specified
in the budget.
2. Form, content and manner of
preparation of the budget
shall be prescribed by law.
3. No provision or enactment
shall be embraced in the
general appropriations bill
unless it relates specifically
to
some
particular
appropriation therein.
4. Procedure
in
approving
appropriations FOR THE
CONGRESS shall strictly
follow the procedure for
approving appropriations for
other
departments
and
agencies.
5. No law shall be passed
authorizing any transfer of
appropriations. However, the
following may, BY LAW, be
authorized to AUGMENT any
item
in
the
general
appropriations law for their
respective
offices
from
savings in other items of
their
respective
appropriations:
i. President
ii. Senate President
iii. Speaker of the House
iv. Chief Justice of the
Supreme Court
v. Heads
of
the
Constitutional
Commissions
Guidelines for disbursement of
DISCRETIONARY
FUNDS
appropriated FOR PARTICULAR
OFFICIALS:
i. For public purposes
ii. To be supported by appropriate
vouchers
Page 20 of 313
CONSTITUTIONAL LAW I
immediate
enactment
to
meet a public calamity or
emergency
Purposes
o Pay debts and provide for the
common defense and general
warfare;
o Raise revenue;
o Instrument of national and
social policy;
o Instrument for extermination of
undesirable
acts
and
enterprises;
o Tool for regulation;
o Imposition of tariffs designed to
Limitations
o Public. Power to tax should be
exercised only for a public
purpose.
o Uniform and Equitable.
1. Operates with the same force
and effect in every place
where the subject of it is
found
2. Does
not
prohibit
classification for the purpose
of taxation
3. Requirements
for
valid
classification:
i. Based on substantial
distinctions which make
real differences
ii. Germane to the purpose
of law
iii. Applies to present and
future
conditions
substantially identical to
those of the present
iv. Applies equally to those
who belong to the same
class
o Progressivity.
1. The rate increases as the tax
base increases
2. Tax burden is based on the
taxpayers capacity to pay
3. Suited
to
the
social
conditions of the people
4. Reflects
aim
of
the
Convention that legislature
following
social
justice
command
should
use
taxation as an instrument
for
more
equitable
distribution of wealth
o Constitutional Tax Exemptions:
1. Religious,
charitable,
educational institutions and
their properties
2. All revenues and assets of
NON-STOCK
NON-PROFIT
EDUCATIONAL institutions
are exempt from taxes and
duties PROVIDED that such
revenues and assets are
actually,
directly
and
exclusively
used
for
educational purposes ( sec. 4
(3) Art XIV).
3. Grants,
endowments,
donations or contributions
used actually, directly and
Page 21 of 313
CONSTITUTIONAL LAW I
e. Concurrence
in
Treaties
and
international agreements (Sec 21, Art VII)
Treaties and other international
agreements which are in the nature
of
original
agreements
of
a
permanent
nature
or
which
establish national policy, or involve
political issues or changes in
national
policies
need
the
concurrence
of
2/3
of
the
members of the Senate.
Executive agreements which are
merely implementation of treaties or
statutes or of well-established
policies
or
are
of
transitory
effectivity do not require Senate
concurrence.
f.
6. Delegation of Powers
a. General rule: Congress cannot delegate
its legislative power (Potestas delegate
non potest delegare)
b. Exceptions
1. Delegation of tariff powers to the
President (Art VI sec. 28(2)).
2. Delegation of emergency powers to
the President (Art VI sec. 23(2)).
o Preconditions:
i. Limited time period
7. Legislative Process
A. Bills
that
Must
Originate
EXCLUSIVELY from the House of
Representatives
(Sec. 24, Art VI):
i.
vi.
vii.
ii.
iii.
iv.
v.
Page 22 of 313
CONSTITUTIONAL LAW I
Item veto
o The President may veto particular items
in an appropriation, revenue or tariff
bill.
o This veto will not affect items to which
he does not object.
Veto of a Rider
o A rider is a provision which does not
relate to a particular appropriation
stated in the bill.
o Since it is an invalid provision under
Section 25(2), the President may veto it
as an item.
Page 23 of 313
CONSTITUTIONAL LAW I
C. Effectivity of Laws
Article 2 (CC)
Laws shall take effect after fifteen days following
the completion of their publication in the Official
Gazette, unless it is otherwise provided. This
code shall take effect one year after such
publication.
Page 24 of 313
CONSTITUTIONAL LAW I
II. JUDICIARY
Where
vested
Definition
Requisites
for exercise
review
under
the
A. In General
JUDICIAL
POWER
Supreme Court
Lower courts
Duty to settle
actual
controversies
involving rights
which are legally
demandable and
enforceable, and
to
determine
whether or not
there has been a
grave abuse of
discretion
amounting
to
lack or excess of
jurisdiction on
the part of any
branch
or
instrumentality
of
the
Government
[Art. VIII, Sec. 1,
Par. 2]
Jurisdiction
power to decide
and hear a case
and execute a
decision thereof
power of judicial
Constitution.
a. Checking
b. Legitimating
c. Symbolic [NACHURA]
JUDICIAL
REVIEW
Supreme Court
Lower courts
Power of the
courts to test
the validity of
executive and
legislative acts
in light of their
conformity with
the
Constitution
[Angara
v.
Electoral
Commission
(1936)]
Essential
Review
1. Appropriate
case: actual
case or
controversy
2. Standing:
personal and
substantial
interest
3. Question
raised at the
earliest
opportunity
4. Lis mota of
the case
Requisites
for
Judicial
Page 25 of 313
CONSTITUTIONAL LAW I
c.
JUSTICIABLE
CONTROVERSY
Avelino
v.
Cuenco,
(1949):
election
of
Senate President was
done
without
the
required quorum
Taada
v.
Cuenco,
(1957): The selection of
the members of the
Senate
Electoral
Tribunal is subject to
constitutional
limitations.
Cunanan v. Tan, Jr.,
(1962):
The
amend
the
Constitution
is
a
highly
political
function performed by
Congress
in
its
sovereign capacity.
Osmea v. Pendatun,
(1960):
disciplinary
power
of
the
legislature
Severino v. GovernorGeneral,
(1910):
Mandamus
and
injunction could not
lie
to
enforce
or
restrain a duty which
is discretionary (calling
a
special
local
election).
Montenegro
v.
Castaeda,
(1952):
Authority to decide
whether the exigency
has arisen requiring
the suspension of the
privilege of the writ of
habeas corpus belongs
to the President.
Manalang
v.
Quitoriano,
(1954):
Presidents appointing
power is not to be
interfered with by the
Court.
Javellana v. Executive
Secretary, (1973): The
people may be deemed
to have cast their
favorable votes in the
belief that in doing so
they did the part
required of them by
Article XV, hence, it
may be said that in its
political aspect, which
is what counts most,
after all, said Article
has been substantially
complied with, and, in
effect,
the
1973
Constitution has been
constitutionally
ratified.
Effect
of
a
Unconstitutionality
Commission
on
Appointments
is
a
constitutional creation
and does not derive its
power from Congress.
Gonzales v. Comelec,
(1967); Tolentino v.
Comelec,
(1971):
abandoned Mabanag v.
Lopez-Vito
Lansang v. Garcia,
(1971): Suspension of
the privilege of the writ
of habeas corpus is not
a political question.
Javellana v. Executive
Secretary, (1973): WON
the 1973 Constitution
had been ratified in
accordance with the
1935 Constitution is
justiciable.
Declaration
of
a. Orthodox view
An unconstitutional act is not a law; it
confers no rights; it imposes no duties;
it affords no protection; it creates no
office; it is inoperative, as if it had not
been passed at all.
b. Modern view
Pelaez v. Auditor General, (1965)
Page 26 of 313
CONSTITUTIONAL LAW I
Citizenship
Age
Experience
Tenure
Characteristics
SC and
CA
JUSTICE
Naturalborn
Filipino
At least
40 years
old
RTC
JUDGE
MTC/
MCTC
JUDGE
Filipino
At least At least
35
30
years
years
old
old
Has been engaged
for at least 5 years
in the practice of
law*
in
the
Philippines or has
held public office
in the Philippines
requiring
admission to the
practice of law as
an indispensable
requisite
15 years
or more
as
a
judge or
a
lower
court or
has been
engaged
in
the
practice
of law in
the Phils.
for
the
same
period
Hold
office
during
good
behavior until they reach the
age of 70 or
become
incapacitated
to
discharge their duties
Person of proven competence,
integrity,
probity
and
independence
B. Supreme Court
1. Composition
i. Chief Justice and 14 Associate Justices
ii. May sit en banc or in divisions of three,
five, or seven Members
iii. Vacancy shall be filled within 90 days
from the occurrence thereof
2. Powers: Jurisdiction
i.
Original
a. Cases affecting ambassadors, other
public ministers and consuls [Art.
VIII, Sec. 5(1)];
b. Petitions for certiorari, prohibition,
mandamus, quo warranto, and
habeas corpus [Art. VIII, Sec. 5(1)];
c. Sole judge of all contests relating to
the
election,
returns,
and
qualifications of the President or
Vice-President, and may promulgate
its rules for the purpose [Art. VII,
Sec. 4, par. 7];
d. Sufficiency of the factual basis of
the proclamation of martial law or
the suspension of the privilege of the
writ of habeas corpus or the
extension thereof [Art. VII, Sec. 18,
par. 3].
Page 27 of 313
CONSTITUTIONAL LAW I
ii. Appellate
i.
Rule-making
Art. VIII, Sec. 5. The Supreme Court shall
have the following powers:
xxx
(5) Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice, and procedure in
all courts, the admission to the practice of
law, the integrated bar, and legal assistance
to the under-privileged.
Page 28 of 313
CONSTITUTIONAL LAW I
3. Other Powers
i.
En banc
a. decided with the concurrence of a
majority of the Members who
actually
took
part
in
the
deliberations and voted.
b. Instances when the SC sits en banc:
(C-DD-MM-PO)
Those
involving
the
constitutionality, application, or
operation of: (TOIL-PIPOO)
Treaty
Orders
International or executive
agreement
Law
Presidential decrees
Instructions
Proclamations
Ordinances
Other regulations
Exercise of the power to
discipline judges of lower courts,
or order their dismissal [Art.
VIII, Sec. 11]
Cases or matters heard by a
division where the required
number of votes to decide or
resolve (the majority of those
who
took
part
in
the
deliberations on the issues in
the case and voted thereon and
in no case less than 3 members)
is not met [Art. VIII, Sec. 4(3)]
Modifying or reversing a doctrine
or principle of law laid down by
the court in a decision rendered
en banc or in division [Art. VIII,
Sec. 4(3)]
Actions instituted by citizen to
test
the
validity
of
a
proclamation of martial law or
suspension of the privilege of the
writ [Art. VII, Sec. 18]
When sitting as Presidential
Electoral Tribunal [Art. VII, Sec.
4, par. 7]
All other cases which under the
Rules of Court are required to be
heard by the SC en banc. [Id.,
Sec. 4(2)]
ii. In divisions
Requirement and Procedures:
With the concurrence of a
majority of the Members who
actually took part in the
deliberations and voted
In
no
case
without
the
concurrence of at least three of
such Members
When required number is not
obtained, the case shall be
decided en banc:
Provided: that no doctrine or
principle of law laid down by the
court in a decision rendered en
banc or in division may be
modified or reversed except by
the court sitting en banc
5. Requirements as to Decisions
(applicable also to lower collegiate
courts)
i.
Page 29 of 313
CONSTITUTIONAL LAW I
LOWER
COLLEGIATE
COURTS
12
months,
unless
reduced by SC
LOWER
COURTS
3
months,
unless reduced
by SC
Page 30 of 313
CONSTITUTIONAL LAW I
III.EXECUTIVE
A. THE PRESIDENT
1. Qualifications, Election, Term and
Oath
i.
Page 31 of 313
CONSTITUTIONAL LAW I
Prohibited acts:
i. Hold any other office or employment
during
their
tenure,
unless
otherwise
provided
in
the
Constitution
ii. Directly or indirectly practice any
other profession
iii. Directly or indirectly participate in
any business
iv. Be financially interested in any
contract with, or in any franchise, or
special privilege granted by the
Government or any subdivision,
agency or instrumentality thereof,
including
GOCCs
or
their
subsidiaries.
v. Appoint Presidents spouse and
relatives by consanguinity or affinity
within the 4th civil degree as
Members of the Constitutional
Commissions, or the Office of the
Ombudsman, or as Secretaries,
Undersecretaries,
chairmen
or
heads of bureaus or offices,
including
GOCCs
and
their
subsidiaries.
Page 32 of 313
CONSTITUTIONAL LAW I
Exceptions
to
rule
prohibiting
executive officials from holding
additional positions:
a. President
(1) The President can assume a
Cabinet post, (because the
departments
are
mere
extensions of his personality,
according to the Doctrine of
Qualified Political Agency, so
no objection can be validly
raised based on Sec. 13, Art VII.)
(2) The President is the Chairman of
NEDA. (Sec. 9, Art XII)
b. Vice-President
xxx The Vice-President may be
appointed as member of the
Cabinet.
Such
appointment
requires no confirmation (Sec 3, Art
VII)
c. Cabinet
(1) The Secretary of Justice shall be
an ex-officio member of the
Judicial and Bar Council. ( Sec.
8[1], Art VIII)
(2) Unless otherwise allowed by law
or by the primary functions of
his position, appointive officials
shall not hold any other office or
employment in the Government
or any subdivision, agency or
instrumentality
thereof,
including government- owned or
controlled corporations or their
subsidiaries. (Art. IX, B, 7, par.
2)
Page 33 of 313
CONSTITUTIONAL LAW I
4. Succession
Vacancy in the Presidency
Two sets of rules in succession:
1. vacancy took place before the beginning
of the term on June 30
2. vacancy during the pendency of the
terms that commences on June 30
i.
Causes
President has not
yet qualified (e.g.
he
had
an
operation and so
he could not take
his oath of office
on June 30)
2. President has not
yet been "chosen"
and qualified (e.g.
there is a tie and
Congress has not
yet broken the tie)
President-elect
1. dies, or
2. becomes
permanently
disabled
Both President and VP
1. have
not
been
"chosen" or
2. have not qualified,
or
3. die, or
4. become
permanently
disabled
1.
Effect
VP
shall
act
as
President until the
President-elect
shall
have qualified, or shall
have been "chosen
and qualified, as the
case may be. (pars. 2
& 3, sec 7, Par VII).
President,
Congress
shall by law, provide
for the "manner of
selecting" the one who
will act as President
until a President or VP
shall have been either
"chosen" or "elected"
pursuant to the special
election referred to in
Art VII, Sec 10, and
qualified.
ii. Permanent
Vacancy
in
Presidency during the term
Causes
President's
1. death
2. permanent
disability,
3. removal from office
(impeached), or
4. resignation*
Both the President's
and VP's
1. death
2. permanent
disability
3. removal from office
(impeached)
4. resignation
Acting President
1. dies
2. becomes
permanently
disabled
3. resigns
the
Effect
VP
shall
become
President
for
the
unexpired portion of
the term. (par. 1)
Page 34 of 313
CONSTITUTIONAL LAW I
f)
the
Page 35 of 313
CONSTITUTIONAL LAW I
a)
Contested
Inability of the
President
Actions Required
President transmits to Senate
President and Speaker of the
House his written declaration
that he is unable to discharge
the powers and duties of his
office
1. Majority of all Cabinet
members transmit to the
Senate President and Speaker
of the House their written
declaration that the President
is unable to discharge his
office.
2. President contests by
sending his own written
declaration to the Senate
President and Speaker that no
inability exists.
3. Majority of the Cabinet
insist on their original stand
by transmitting a second
written declaration of the
President's inability within 5
days from resumption of office
of the President.
5. Removal
i.
Effect
VP to become Acting President until the
President transmits to Senate President and
Speaker of the House a written declaration
that he is no longer unable to discharge his
office.
VP shall immediately assume the Presidency
in an acting capacity
Constitution
treason
bribery
graft and corruption
other high crimes
betrayal or public trust.
All other public officers and
employees may be removed from
office as provided by law, but not by
impeachment.
CONSTITUTIONAL LAW I
Voluntary
Declaration of
Inability
by
President
Page 37 of 313
CONSTITUTIONAL LAW I
o
o
o
o
o
o
o
o
o
o
o
Functions
of
the
Executive power
Control of executive departments
General
supervision
of
local
governments
Power of appointment
Executive clemencies
Commander in chief powers
Military powers
Suspension of the writ if habeas
corpus
Martial law
Emergency powers
Contracting and guaranteeing foreign
loans
Powers over foreign affairs
Power over legislation
Immunity from suit
of
Local
Autonomous
Control
- Power of an
officer to alter,
modify, nullify or
set aside what a
subordinate officer
had done and to
substitute
the
judgment of the
former for that of
the latter.
Page 38 of 313
CONSTITUTIONAL LAW I
6. Powers and
President
imposition
of
additional duties, usually by law, on
a person already in the public
service
2. Commission written evidence of
the appointment
Quintos-Deles vs Commission on
Constitutional Commissions, and
Offices, (1989):
The seats reserved for sectoral reps
may be filled by appointment by the
President under Art XVIII, Sec7. It
is
indubitable
that
sectoral
representatives to the House are
among the other officers whose
appointments are vested in the Pres
in this Consti, referred to in the 1st
sentence of Art. VII, Sec. 16. These
appointments
require
the
1. Confirmation by the CA is
required only for presidential
appointees as mentioned in the
first sentence of Sec. 16, Art. VII,
including those officers whose
appointments
are
expressly
vested by the Constitution itself
in the President (like sectoral
representatives to Congress and
members of the constitutional
commissions of Audit, Civil
Service and Election).
(a) Heads of the executive
departments
(b) Ambassadors, other public
ministers and consuls
(c) Officers of the Armed Forces
of the Philippines with the
rank of colonel or naval
captain (because these are
officers
of
a
sizeable
command enough to stage a
coup)
(d) Other
officers
whose
appointments are vested in
the
President
in
the
Constitution:
(i) Chairman
and
Commissioners of the
Constitutional
Commissions (Sec 1 Art
IX-B, Sec 1 (2) Art IX-B,
Sec 1(2) Art Ix-D)
(ii) Regular members of the
Judicial and Bar Council
(Sec 8 (2) Art VII)
(iii) Sectoral representatives
(Sec 7 Art XVIII, Sec 18
Art X)
2. Confirmation is not required
when the President appoints
other government officers whose
appointments are not otherwise
provided for by law or those
officers whom he may be
authorized by law to appoint
(like the Chairman and Members
of the Commission on Human
Rights). Also, as observed in
Sarmiento
v.
Mison,
when
Congress:
Page 39 of 313
CONSTITUTIONAL LAW I
2. Upon
Recommendation
Judicial and Bar Council
of
the
Appointment
confirmation
requires
no
CONSTITUTIONAL LAW I
Appointments
requiring
confirmation are of two kinds
(i) regular, if the CA, that is,
Congress, is in session
(ii) during the recess of
Congress (because the
Commission shall meet
only while Congress is in
session [Art. VI, Sec. 19]).
Page 41 of 313
CONSTITUTIONAL LAW I
Exception:
Temporary
appointments,
to
executive positions, when continued
vacancies will
(1) prejudice public service (e.g
Postmaster) or
(2) endanger public safety (e.g.
Chief of Staff).
7. Executive Clemencies
o
Page 42 of 313
CONSTITUTIONAL LAW I
Except:
(a) In cases of impeachment, and
(b) As otherwise provided in this
Constitution
No pardon, amnesty, parole or
suspension of sentence for violation of election laws, rules, and
regulations shall be granted by
the
President
without
the
favorable recommendation by
the Commission (on Elections.)
(Sec 5, Art IX)
The President shall also have the power
to grant amnesty with the concurrence
of a majority of all the Members of the
Congress. (Sec 19, Art VII)
Amnesty - a sovereign act of oblivion
for past acts, granted by government
generally to a class of persons who
have been guilty usually of political
offenses and who are subject to trial
but have not yet been convicted,
and often conditioned upon their
return to obedience and duty within
a prescribed time. (BLACK; Brown v
Walker, 161 US 602).
Probation - a disposition under
which a defendant after conviction
and sentence is released subject to
conditions imposed by the court and
to the supervision of a probation
officer. [Sec. 3 (a), PD 968.]
Parole - suspension of the sentence
of a convict granted by a Parole
Board after serving the minimum
term of the indeterminate sentence
penalty, without granting a pardon,
prescribing the terms upon which
the sentence shall be suspended.
[REYES]
Effects of Pardon (Case Law)
Cristobal v Labrador (1940):
There are 2 limitations upon the
exercise
of
the
constitutional
prerogative of the Pres. to grant pardon:
(1)
that the power be exercised after
conviction; (2) that such power does not
extend to cases of impeachment.
Pelobello v. Palatino (1941):
Absolute pardon has the effect of
removing the disqualification from
voting and being elected incident to
criminal conviction under Sec 94(a) of
the Election Code.
The Chief Executive, after inquiry
into the environmental facts, should be
Application of Pardoning
Administrative Cases
Powers
to
Page 43 of 313
CONSTITUTIONAL LAW I
8. Powers as Commander-in-Chief
o
Powers as Commander-in-Chief:
a. He may call out such armed forces
to prevent or suppress lawless
violence, invasion or rebellion.
b. He may suspend the privilege of the
writ of habeas corpus, or
c. He may proclaim martial law over
the entire Philippines or any part
thereof.
Requisites:
1) There must be
rebellion, and
an
invasion
or
Page 44 of 313
CONSTITUTIONAL LAW I
2) The public
suspension.
requires
the
is
Requisites:
1) There must be an invasion or
rebellion, and
2) Public
safety
requires
the
proclamation of martial law all over
the Philippines or any part thereof.
Page 45 of 313
CONSTITUTIONAL LAW I
safety
the
no
the
the
Congress
cannot
"validate"
the
proclamation or suspension, because it
is already valid.
Page 46 of 313
CONSTITUTIONAL LAW I
as
Page 47 of 313
CONSTITUTIONAL LAW I
Requisites
for
contracting
and
guaranteeing foreign loans:
1. With the concurrence of the
monetary board (Sec 20, Art VII)
2. subject to limitations as may be
provided by law (Sec 21, Art XII)
3. information
on
foreign
loans
obtained or guaranteed shall be
made available to the public (sec 21,
Art XII)
Role of Congress:
1. The President does not need prior
approval by the Congress
a. Because the Constitution places
the
power
to
check
the
Presidents
power
on
the
monetary Board
b. Congress may provide guidelines
and have them enforced through
the Monetary Board
Guaranteeing
Treaty distinguished
agreements:
from
executive
1. Executive Agreements
entered into by the President
need no concurrence.
Page 48 of 313
CONSTITUTIONAL LAW I
Page 49 of 313
CONSTITUTIONAL LAW I
Commissioner
of
Customs
vs.
Eastern Sea Trading (1961):
International
agreements
involving
political issues or changes in national
policy and those involving international
agreements of permanent character
usually take the form of TREATIES.
But
the
international
agreements
involving adjustments in detail carrying
out well-established national policies
and traditions and those involving a
more or less temporary character
usually take the form of EXECUTIVE
AGREEMENTS.
Page 50 of 313
CONSTITUTIONAL LAW I
Gloria v CA (2000):
Petitioners theorize that the present petition
for prohibition is improper because the
same attacks an act of the President, in
violation of the doctrine of presidential
immunity from suit. Petitioners contention
is untenable for the simple reason that the
petition is directed against petitioners
and not against the President. The
questioned acts are those of petitioners and
not
of
the
President.
Furthermore,
presidential decisions may be questioned
before the courts where there is grave
abuse of discretion or that the President
acted
without
or
in
excess
of
jurisdiction.
B. VICE PRESIDENT
In Re Bermudez (1986):
The petition seeks clarification as to whom
the Consti refers to as the incumbent Pres
and Vice Pres. The petition amounts in
effect to a suit against the incumbent Pres.
Aquino and it is equally elementary that
incumbent Presidents are immune from
suit or from being brought to court during
the period of their incumbency and tenure.
3. Prohibitions
* same as President
4. Succession
* same as President (Art. VII, Sec. 9)
Page 51 of 313
CONSTITUTIONAL LAW I
Impeachment Process
CSC
COMELEC
COA
Chairman and 2 Chairman
Chairman
Commissioners
and
6 and 2 Comm
(Comm)
Comm
Natural-born citizens
At least 35 years of age
Proven
Holders of Certified
capacity
for a
college public
degree, and accountants
public
not with not less
administration, must
and must not have
been than 10 years
have
been candidates
auditing
candidates
for for
any experience, or
any
elective elective
Members of
position in the position in the
lections
the
Philippine
immediately
immediately
Bar who have
preceding their preceding
been engaged
appointment
elections
in
the
practice
of
law
for
at
Majority,
least
10
including
years,
and
the
Chairman,
must
not
shall
be have
been
Members of candidates for
any
elective
the
position
in
Philippine
Bar
who the elections
have
been immediately
engaged in preceding
the practice their
of law for at appointment
least
10
years
At no time
shall
all
Members
of
the
Commission
belong to the
same
profession.
6. Functions
a. Right of succession
The Vice-President shall assume the
functions of the president in case of:
1. death, permanent disability, removal
from office, or resignation of the
President(Sec 8, Art VII)
2. Whenever the President transmits to
the President of the Senate and the
Speaker of the House of Representatives
his written declaration that he is unable
to discharge the powers and duties of
his office, and until he transmits to
them a written declaration to the
contrary (Sec 11, Art VII)
3. Whenever a majority of all the Members
of the Cabinet transmit to the President
of the Senate and to the Speaker of the
House of Representatives their written
declaration that the President is unable
to discharge the powers and duties of
his office
b. Membership in Cabinet
xxx The Vice-President may be appointed as
member of the Cabinet. Such appointment
requires no confirmation. (sec 3, Art VII)
No
member
of
a
Constitutional
Commission shall, during his tenure:
i. hold any other office or employment
ii. engage in the practice of any
profession
iii. engage in the active management
and control of any business which
in any way may be affected by the
functions of his office
iv. be financially interested, directly or
indirectly, in any contract with, or in
any franchise or privilege granted by
the
Government,
any
of
its
subdivisions,
agencies
or
instrumentalities, including GOCCs
or their subsidiaries. (Art. IX, sec.2)
Page 52 of 313
CONSTITUTIONAL LAW I
5. Removal
3. Compensation
Fixed by law and shall not be decreased
during their tenure. (sec. 3)
7. Procedure
i.
i.
ii.
iii.
iv.
v.
Merit-based system
No holding of other positions
Standardization of salary
No partisan political activity
Security of tenure Temporary
employees of the Government shall be
given such protection as may be
provided by law.
vi. Right to self-organization (v. Right to
strike)
Art. XIII, Sec. 3. [The State] shall guarantee the
rights
of
all
workers
to
selforganization,peaceful concerted activities,
including the right to strike in accordance with
law.
Art. III, Sec. 8. The right of the people,
including those employed in the public and
private sectors, to form unions, association, or
societies for purposes not contrary to law shall
not be abridged.
Art. IX-B, Sec. 2(5). The right to selforganization shall not be denied to government
employees.
Sec. 38, Book V, Title I, Subtitle A, Chapter
6, Administrative Code of 1987.
Who: All government employees, including those
in GOCCs with original charters
Exception: (1) members of the AFP, (2) police
officers and policemen, (3) firemen, (4) jail
guards.
Scope of right: (1) form, join or assist employees'
organizations of their own choosing for the
furtherance and protection of their interests
(2) form, in conjunction with appropriate
government
authorities,
labor-management
committees, work councils and other forms of
workers' participation schemes to achieve the
same objectives
Page 53 of 313
CONSTITUTIONAL LAW I
3. Disqualifications
i.
5. Salary
Standardized compensation, taking
into account the nature of the
responsibilities pertaining to, and the
qualifications
required
for
their
positions
ii. No additional, double, or indirect
compensation
unless
specifically
authorized by law
iii. No elective or appointive public officer
or employee shall accept without the
consent of the Congress, any present,
emolument, office, or title of any kind
from any foreign government
i.
C. Commission on Elections
(Asked 9 times in the Bar)
1. Powers and Functions
i.
Page 54 of 313
CONSTITUTIONAL LAW I
2. Jurisdiction
Exclusive original: all contests relating
to
the
lections,
returns,
and
qualifications of all elective regional,
provincial, and city officials
ii. Appellate:
o elective municipal officials decided
by trial courts of general jurisdiction
o elective barangay officials decided by
trial courts of limited jurisdiction
i.
V. CONSTITUTIONALLY-MANDATED
BODIES
A. Sandiganbayan
(Asked 1 time in the Bar)
Art. XI, Sec. 4. The present anti-graft court
known as the Sandigan-bayan shall continue to
function and exercise its jurisdiction as now or
hereafter may be provided by law.
D. Commission on Audit
(Asked 1 time in the Bar)
1. Powers and Functions
i.
Page 55 of 313
CONSTITUTIONAL LAW I
B. Ombudsman
(Asked 5 times in the Bar)
1. Qualification
Natural born citizen at time of
appointment
At least 40 yrs old
With probity and independence
Member of the Bar
Not a candidate for elective office in
immediately preceding election
At least 10 yrs had been a judge OR
in practice of law
2. Appointment
JBC to nominate at least 6 for
original Ombudsman
JBC to nominate at least 3 for every
vacancy thereafter
Vacancies to be filled within 3
months after occurrence
Appointed by the President
Appointment needs no confirmation
3. Term
7 yrs without reappointment
4. Removal
By impeachment for:
culpable violation of the constitution
treason
bribery
graft and corruption
other high crimes
betrayal of public trust
5. Benefits
Ombudsman has rank of Chairman
of a ConCom
Enjoys fiscal autonomy
Automatic and regular release of
funds
Salary cannot be decreased during
term
6. Powers/Duties
MAIN PURPOSE: protectors of the
people
Shall act promptly on complaints
against
public
officials/govt
employees AND notify complainants
of action taken and the result
Investigate on its own or any
complaint when appears to be:
Illegal
Unjust
Improper
Inefficient
Direct, on its own or upon
complaint, any public official/govt
employee to:
perform
and
expedite
an
act/duty required
stop/prevent/correct any abuse
or impropriety of duty
Direct the officer concerned to take
appropriate action against the
public official/govt employee
Recommend for their:
removal
suspension
demotion
fine
censure
prosecution
Ensure
compliance
of
the
recommendation
Subject to limitations of law, direct
the officer concerned to furnish
copies
of
related
documents/contracts entered by his
office involving use of public funds:
Further report any irregularity to
the Commission on Audit
Request assistance and information
from other govt agencies for the
discharge of his duties
Publicize,
with
due
prudence,
matters covered by investigation,
whenever warranted
Determine the causes of the ff and
make recommendations for their
eradication, and observance of high
standards of ethics/efficiency:
Inefficiency
Red tape
Mismanagement
Fraud
Govt corruption
Promulgate its rules of procedure
Exercise other functions provided by
law
Declare his assets, liabilities, and
net worth upon assumption of office
and when required by law
7. Disqualification
Cannot hold any other office or
employment during tenure
Cannot engage in any profession or
active management/control of any
business affecting their office
Cannot be financially interested,
directly or indirectly, in any
contract, franchise, or privilege
Page 56 of 313
CONSTITUTIONAL LAW I
C. Commission
on
Human
Rights
CONSTITUTIONAL LAW I
II.
III.
IV.
V.
GENERAL PRINCIPLES
A. GOALS
B. CITIZENSHIP REQUIREMENTS
C. FILIPINO FIRST
NATURAL RESOURCES
A. REGALIAN DOCTRINE
B. EXPLORATION, DEVELOPMENT,
UTILIZATION
C. STEWARDSHIP CONCEPT
PRIVATE LANDS
MONOPOLIES
CENTRAL MONETARY AUTHORITY
I. GENERAL PRINCIPLES
A. Goals
1.
2.
3.
More
equitable
distribution
of
opportunities, income and wealth
Sustained increase in amount of goods
and services produced by the nation for
the benefit of the people
Expanding production as the key to
raising the quality of life for all,
especially the underprivileged.
B. Citizenship Requirements
100% Filipino
Marine Wealth
[Art. XII, Sec.
2, par. 2]
Agricultural
lands [Art. XII,
Sec. 3]
o Lease:
<
500 ha.
o Purchase,
homestead
or grant: <
12 ha.
o Private
corporations may
lease not
60-40
Natural
Resources
[Art. XII, Sec.
2, par. 1]
(Coproduction,
Joint venture,
Production
sharing
agreemenents)
Agreements
shall
not
exceed
a
period of 25
years
renewable for
another
25
years.
Educational
Institutions
[Art. XIV, Sec.
4(2)]
70-30
Advertising
Industry [Art.
XVI, Sec. 11]
100% Filipino
more than
1,000 ha.
for
25
years,
renewable
for another
25 years.
Practice
of
professions
[Art. XII, Sec.
14]
Small-scale
utilization
of
natural
resources (as
may
be
provided
by
law) [Art. XII,
Sec. 2, par. 3]
60-40
70-30
CONSTITUTIONAL LAW I
Areas
of
Investment as
Congress may
prescribe
(percentage
can be higher)
[Art. XII, Sec.
10]
Operation
of
public utility
[Art. XII, Sec.
11]
o Cannot be
for longer
period
than
50
years
o Executive
and
managing
officers
must
be
Filipino
C. Filipino First
Art. XII, Sec. 10. In the grant of rights,
privileges, and concessions covering the national
economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority
over foreign investments within its national
jurisdiction and in accordance with its national
goals and priorities.
Page 58 of 313
Parties
Size
of
Activities
FTAA
(1987
Const.)
Only
the
President (in
behalf of the
State),
and
only
with
corporations
Only
largescale
exploration,
development
and
utilization
Natural
Resources
Covered
Minerals,
petroleum
and
other
mineral oils
Scope
of
the
Agreements
Involving
either
financial or
technical
assistance
SERVICE
CONTRACT
(1973 Const.)
A
Filipino
citizen,
corporation or
association
with a foreign
person or entity
Contractor
provides
all
necessary
services
and
technology and
the
requisite
financing,
performs
the
exploration work
obligations, and
assumes
all
exploration risks
Virtually
the
entire range of
the
countrys
natural
resources
Contractor
provides
financial
or
technical
resources,
undertakes the
exploitation or
production of a
given resource,
or
directly
manages
the
productive
enterprise,
operations of the
exploration and
exploitation
of
the resources or
the disposition of
marketing
or
resources
Page 59 of 313
CONSTITUTIONAL LAW I
i.
Section
90,
which
provides
for
incentives to contractors in FTAAs
insofar as it applies to said contractors;
C. Stewardship Concept
Art. XII, Sec. 6. The use of property bears a
social function, and all economic agents shall
contribute to the common good.
Individuals and private groups, including
corporations, cooperatives, and similar collective
organizations, shall have the right to own,
establish, and operate economic enterprises,
subject to the duty of the State to promote
distributive justice and to intervene when the
common good so demands.
Art. XIII, Sec. 6. The State shall apply the
principles of agrarian reform or stewardship,
whenever applicable in accordance with law,
III.
PRIVATE LANDS
A. General Rule
No private lands shall be transferred or
conveyed
except
to
individuals,
corporations, or associations qualified to
acquire or hold lands of the public domain.
(Art. XII, sec. 7)
B. Exceptions
i.
Hereditary succession
(Art. XII, sec. 7)
ii. A natural-born citizen of the Philippines
who has lost his Philippine citizenship
may be a transferee of private lands,
subject to limitations provided by law.
(Art. XII, sec. 8)
IV. MONOPOLIES
Art. XIII, Sec. 19. The State shall regulate or
prohibit monopolies when the public interest so
requires. No combinations in restraint of trade
or unfair competition shall be allowed.
Page 60 of 313
CONSTITUTIONAL LAW I
CONSTITUTIONAL LAW I
V. CENTRAL MONETARY
AUTHORITY
[Art. XII, Sec. 20]
Functions:
1. Provide policy directions in the areas of
money, banking, and credit;
2. Supervise the operations of banks;
3. Exercise such regulatory powers as
may be provided by law over the
operations of finance companies and
other institutions performing similar
functions
Qualifications of the Governors:
1. Natural-born Filipino;
2. Known probity, integrity and patriotism;
3. Majority shall come from the private
sector
Page 61 of 313
I. PARTY-LIST SYSTEM
II. QUESTION HOUR V. INQUIRIES IN AID OF
LEGISLATION
III. EXECUTIVE PRIVILEGE
IV. PEOPLES INITIATIVE
V. RIGHT OF REPLY BILL
VI. THE (ERSTWHILE) PROVINCE OF
SHARIFF KABUNSUAN
VII. MOA ON ANCESTRAL DOMAIN (MOA-AD)
I. PARTY-LIST SYSTEM
Ang Bagong Bayani v. Comelec,
(2001):
Veterans
Federation
Comelec, (2000):
Party
v.
Page 62 of 313
CONSTITUTIONAL LAW I
Number of votes
of first party
-----------------Total votes for
party-list system
Proportion of
votes relative to
total votes for
party list
No. of votes of
concerned
party
=
--------------No. of votes of
the first party
No. of
additional
seats
allocated to
first party
Page 63 of 313
CONSTITUTIONAL LAW I
presents
an
unwarranted
obstacle
to
the
full
implementation of Section 5 (2), Article VI,
of the Philippine Constitution.
As such, it effectively defeats the declared
constitutional policy, as well as the
legislative objective expressed in the
enabling law, to allow the peoples broadest
representation in Congress, the raison
detre for the adoption of the party-list
system.
A
legal
provision
that
poses
an
insurmountable
barrier
to
the
full
implementation and realization of the
constitutional provision on the party-list
system should be declared void.
I submit that, until Congress shall have
effected an acceptable amendment to the
minimum vote requirement in R.A. 7941,
we abide by the sensible standard of
proportional representation and adopt a
gradually regressive threshold vote
requirement, inversely proportional to
the increase in the number of party-list
seats.
Thus, at present, considering that there are
55 seats allocated for party-list groups, the
formula should be:
100%
(Total # of votes cast for
party-list)
55 party-list seats
1.818%
Page 64 of 313
CONSTITUTIONAL LAW I
(2%) of the total votes cast for the partylist system shall be entitled to one
guaranteed seat each.
3. Those garnering sufficient number of
votes, according to the ranking in
paragraph 1, shall be entitled to
additional seats in proportion to their
total number of votes until all the
additional seats are allocated.
4. Each party, organization, or coalition
shall be entitled to not more than three
(3) seats.
1%
of
Congressional
Oversight
A. Scrutiny
1. Primary purpose is to determine
economy and efficiency of the operation
of government activities
2. In the exercise of legislative scrutiny,
Congress may request information and
report from the other branches of
government.
3. based primarily on the power of
appropriation of Congress
4. Congress can ask the heads of
departments to appear before and be
heard by either House of Congress on
any
matter
pertaining
to
their
departments.
Art. VI, Sec. 22. The heads of departments
may, upon their own initiative, with the consent
of the President, or upon the request of either
House, as the rules of each House shall provide,
appear before and be heard by such House on
any matter pertaining to their departments.
Written questions shall be submitted to the
President of the Senate or the Speaker of the
House of Representatives at least three days
before
their
scheduled
appearance.
Interpellations shall not be limited to written
questions, but may cover matters related
thereto. When the security of the State or the
public interest so requires and the President so
states in writing, the appearance shall be
conducted in executive session
B. Congressional Investigation
Art. VI, Sec. 21. The Senate or the House of
Representatives or any of its respective
committee may conduct inquiries in aid of
legislation in accordance with its duly
published rules of procedure. The rights of
persons appearing in or affected by such
inquiries shall be respected.
Limitations
i. Must be in aid of legislative
functions
ii. Must be conducted in accordance
with duly published rules of
procedure
iii. Persons appearing therein are
afforded their constitutional rights
C. Legislative Supervision
Congress exercises supervision over the
executive agencies through its veto power.
It typically utilizes veto provisions when
granting the President or an executive
agency the power to promulgate regulations
with the force of law. These provisions
require the President or an agency to
present the proposed regulations to
Congress, which retains a right to approve
or disapprove any regulation before it takes
effect.
III.EXECUTIVE PRIVILEGE
Page 65 of 313
CONSTITUTIONAL LAW I
100%
(Total # of votes cast for
party-list)
100 party-list seats
Deliberative Process
advisory
opinions,
recommendations
and
deliberations comprising part of
a process by which governmental
decisions
and
policies
are
formulated.
Executive officials
Page 66 of 313
CONSTITUTIONAL LAW I
V. RIGHT OF REPLY*
Highlights of House Bill No. 3306
is
Published
or
Page 67 of 313
CONSTITUTIONAL LAW I
E. Other Provisions
Page 68 of 313
CONSTITUTIONAL LAW I
Held:
1. The Presidential Adviser on Peace
Process, General Esperon, committed
grave abuse of discretion when he failed
to carry out the pertinent consultation
process as required by EO 3, RA 7160
(LGC) and RA 8371 (IPRA).
2. The MOA-AD cannot be reconciled with
the Constitution and laws, particularly
the associative relationship envisioned
between GRP and BJE. Therefore, it is
unconstitutional.
3. The clause on the MOA-AD that
inconsistent provisions will not take
effect until the framework is amended
does
not
cure
the
MOA-ADs
unconstitutionality.
4. Respondents act of guaranteeing the
amendments is, by itself, already a
constitutional violation.
Nachuras Dissent:
In light of supervening events, there is no
more actual case or controversy to be
resolved. There can be no violation of the
Constitution because the MOA-AD was not
consummated. On the substantive aspect,
Nachura believed that the constitutionality
of the MOA-AD should be viewed from the
perspective of executive power. As Chief
Executive and Commander-in-Chief, there
is an implied power given to the President
as protector of peace. Implied from the
calling out power of the President which
does not require existence of actual
invasion or rebellion, the President may
exercise not only emergency powers, but
day-to-day problems of maintaining peace
and
order
and
ensuring
domestic
tranquility. The mandate of the GRP Peace
Panel emanated from Executive Order No. 3
which was issued pursuant to the power of
the President to maintain peace and order.
Page 69 of 313
CONSTITUTIONAL LAW I
Table of Contents
CONSTITUTIONAL LAW II
CHAPTER I. BILL OF RIGHTS
I. In General
II. Bases and Purpose
A. Bases
B. Purpose
III. Accountability
75
75
75
75
75
75
75
77
78
78
78
79
79
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CONSTITUTIONAL LAW II
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106
106
124
124
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125
126
128
106
107
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109
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112
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114
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Page 72 of 313
CONSTITUTIONAL LAW II
Table of Contents
ACADEMICS COMMITTEE
Samantha Poblacion
DIRECTOR FOR ACADEMICS
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
CONSTITUTIONAL LAW II
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
Malds Menzon
-------Kae Guerrero
LEAD WRITER
Gab Libang
Rachel Mayuga
Louie Macabodbod
Nikki Mendez
Constitutional Law 2
Chapter I. Bill of Rights
I. IN GENERAL
II. BASES AND PURPOSE
A. BASES
B. PURPOSE
III. ACCOUNTABILITY
I. IN GENERAL
It is a declaration and enumeration of a
person's fundamental civil and political
rights. It also imposes safeguards against
violations
by
the
government,
by
individuals, or by groups of individuals.
People vs Marti G.R. No. 81561 (1991):
That the Bill of Rights embodied in the
Constitution is not meant to be invoked
against acts of private individuals finds
support in the deliberations of the
Constitutional Commission. x x x The Bill
of Rights governs the relationship
between the individual and the state. Its
concern is not the relation between
individuals, between a private individual
and other individuals. What the Bill of
Rights does is to declare some forbidden
zones in the private sphere inaccessible to
any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p. 674;
July 17, 1986; Emphasis supplied)
It is generally self-executing.
Article III contains the chief protection for
human rights but the body of the
Constitution guarantees other rights as
well.
1. Civil rights rights that belong to an
individual by virtue of his citizenship in
a state or community (eg., rights to
-------Leo Zulueta
WRITERS
over
Page 73 of 313
CONSTITUTIONAL LAW II
LAYOUT TEAM
Pau Caspellan
DEPUTY HEAD
III.
ACCOUNTABILITY
CONSTITUTIONAL LAW II
Page 74 of 313
Specifically
I. POLICE POWER
A. Definition
Ermita-Malate Hotel and Motel Operators
Association, Inc. v Mayor of Manila, (1967):
It is the inherent and plenary power of
the state which enables it to prohibit all
that is hurtful to the comfort, safety and
welfare of society.
Public
Public
Public
Public
Health
Morals
Safety
Welfare
2. Limitations
US v Toribio, (1910):
The legislative determination of what is
a proper exercise of its police power is
not final or conclusive, but is subject to
the supervision of the courts.
Page 75 of 313
CONSTITUTIONAL LAW II
POLICE POWER
A. DEFINITION
B. SCOPE AND LIMITATIONS
C. WHO MAY EXERCISE
D. TESTS FOR VALIDITY OF EXERCISE
E. ILLUSTRATION ON THE EXERCISE
II. EMINENT DOMAIN
A. DEFINITION
B. WHO MAY EXERCISE
C. REQUISITES
III. TAXATION
A. DEFINITION AND SCOPE
B. WHO MAY EXERCISE
C. LIMITATIONS
D. DOUBLE TAXATION
3. Public Morals
Ermita-Malate
Motel
and
Motel
Operators Assn. V. City Mayor of Manila
(1967)
Ermita
Malate
Hotel
and
Motel
Operations
Assoc.
assails
the
constitutionality of Ordinance No. 4760.
CONSTITUTIONAL LAW II
Page 77 of 313
CONSTITUTIONAL LAW II
Private
entities
operating
public
utilities. (Tenorio vs. Manila Railroad Co,
1912)
Extent of
Power
Question
of
Necessity
AS
EXERCISED
BY
CONGRESS
Pervasive and
allencompassing
Political
question
A. Definition
Visayan Refining Co. vs Camus, (1919):
It is the right of the government to take
private
property
with
just
compensation.
The power of eminent domain does not
depend for its existence on a specific
grant in the constitution.
It is inherent in sovereignty and exists
in a sovereign state without any
recognition of it in the constitution.
The provision found in most of the
state constitutions relating to the taking
of property for the public use do not by
implication grant the power to the
government of the state, but limit a
power which would otherwise be
without limit.
Executive
Legislative
Re:
private
property
AS EXERCISED
BY DELEGATES
Can only be as
broad
as
the
enabling law and
the
conferring
authorities want
it to be
Justiciable
question.
RTC
has to determine
whether there is a
genuine necessity
for its exercise, as
well as what the
propertys value is
Delegate
cannot
expropriate
private
property
already devoted to
public use
C. Requisites
1. Generally
a. Taking of Private Property
b. for Public Use,
c. with Just Compensation, and
d. Due Process.
2. Specifically
(LGUs, Sec. 19, Local Government
Code):
a. Ordinance by a local legislature
council is enacted authorizing local
chief executive to exercise eminent
domain,
b. For public use, purpose or welfare
or for the benefit of the poor and of
the landless,
c. Payment of just compensation,
Page 78 of 313
CONSTITUTIONAL LAW II
III.TAXATION
A. Definition and Scope
It is the enforced proportional contributions
from persons and property, levied by the
State by virtue of its sovereignty, for the
support of the government and for all
public needs.
It is as broad as the purpose for which it is
given.
Purpose:
a. To raise revenue
b. Tool for regulation
c. Protection/power to keep alive
C. Limitations
1. General Limitations
2. Specific Limitations
a. Uniformity of taxation: simply
geographical uniformity, meaning it
operates with the same force and
effect in every place where the
subject of it is found
But
does
not
prohibit
classification for purposes of
taxation
Requisites:
a. standards
used
are
substantial and not arbitrary
b. categorization is germane to
achieve
the
legislative
purpose
c. the law applies, all things
being equal to both present
and future conditions
d. applies equally to members
of the same class
b. Equal protection clause: taxes
should be uniform (persons or
things belonging to the same class
shall be taxed at the same rate) and
equitable
(taxes
should
be
apportioned among the people
according to their capacity to pay)
c. Progressive system of taxation
The rate increases as the tax
base increases
Basis is social justice
Taxation as an instrument for a
more equitable distribution of
wealth
d. Delegated tax legislation
Congress may delegate lawmaking authority when the
constitution itself specifically
authorizes it.
3. Impairment of Obligations of Contracts
Page 79 of 313
CONSTITUTIONAL LAW II
If a tax measure is so
unconscionable as to amount to
confiscation of property, the
Court will invalidate it.
But
invalidating a tax measure must
be
exercised
with
utmost
caution, otherwise, the States
power to legislate for the public
welfare might be seriously
curtailed
4. Tax Exemptions
D. Double Taxation
Comparative Table
Police Power
Compensation
Use of Property
Objective
What it Regulates
Eminent Domain
Taxation
None
(the protection given
Just compensation
and
public
(full and fair equivalent
improvements
of the property taken)
instituted by the State
required.
because of these taxes
- NACHURA)
Use taxing power as
an implement for the
Appropriated for public
Not appropriated for
attainment
of
a
use
public use
legitimate
police
objectiveto regulate
a business or trade
To destroy noxious
Property
taken
for
property
or
to
Earn revenue for the
public use; it is not
restrain the noxious
government
necessarily noxious
use of property
None
(the altruistic feeling
that
one
has
contributed to the
public
good
NACHURA)
Page 80 of 313
CONSTITUTIONAL LAW II
I. IN GENERAL
ultimately
presumed
A. Minimum Requirements
A. Scope
CONSTITUTIONAL LAW II
IN GENERAL
A. MINIMUM REQUIREMENTS
B. NOTED
EXCEPTIONS
TO
DUE
PROCESS
II. SUBSTANTIVE DUE PROCESS
A. SCOPE
B. REQUISITES
C. DOCTRINES
III. PROCEDURAL DUE PROCESS
A. SCOPE
B. KINDS
IV. DUE PROCESS AS LIMITATION ON
FUNDAMENTAL STATE POWERS
A. VIS-A-VIS POLICE POWER
B. VIS-A-VIS EMINENT DOMAIN
C. VIS-A-VIS POWER TO TAX
the
fact
therefrom.
B. Requisites
(US vs Toribio 1910)
C. Doctrines
1. Void for Vagueness
2. Overbreadth Doctrine
A. Scope
Page 82 of 313
CONSTITUTIONAL LAW II
B. Kinds
and
Page 83 of 313
CONSTITUTIONAL LAW II
Definition
A physical dispossession of the
owner of his actual property, or
its use.
It may include trespass without
actual eviction of owner, such as
the material impairment of value
of property, or preventions of
ordinary uses for which the
property was intended.
CONSTITUTIONAL LAW II
2. Public Use
Definition
The idea that "public use" means
"use by the public" has been
discarded. At present, whatever
may be beneficially employed for
the general welfare satisfies the
requirement of public use. (Heirs of
Juancho Ardona v. Reyes, 123 SCRA
220)
That only a few benefit from the
expropriation does not diminish its
public-use character, inasmuch as
pubic use now includes the broader
notion of indirect public benefit or
advantage (Filstream International
v. CA, 284 SCRA 716)
3. Just Compensation
Definition
Province of Tayabas vs Perez, (1938):
It is the just and complete
equivalent of the loss which the
owner of the thing expropriated has
to suffer by reason of the
expropriation.
Page 85 of 313
CONSTITUTIONAL LAW II
II. REQUISITES
OF
CLASSIFICATION
I.
SCOPE
OF
Definition
(City of Manila v. Laguio (2005) citing
Ichong v. Hernandez, 1957)
Scope
III.EXAMPLES
OF
CLASSIFICATION
VALID
A. Aliens
General rule:
The general rule is that a legislative act may
not validly classify the citizens of the State
on the basis of their origin, race or
parentage.
Exceptions:
1. In times of great and imminent
danger, such as a threatened
invasion
or
war,
such
a
classification is permitted by the
Constitution when the facts so
warrant
(e.g.
discriminatory
legislation against Japanese citizens
during WWII).
2. The political rights of aliens do not
enjoy the same protection as that of
citizens.
3. Statutes may validly limit to citizens
exclusively the enjoyment of rights
or privileges connected with the
public domain, the public works,
or the natural resources of the
State.
4. The rights and interests of the state
in these things are not simply
political but also proprietary in
Page 86 of 313
CONSTITUTIONAL LAW II
DEFINITION
AND
SCOPE
OF
PROTECTION
II. REQUISITES OF VALID CLASSIFICATION
III. EXAMPLES OF VALID CLASSIFICATION
A. ALIENS
B. FILIPINO
FEMALE
DOMESTICS
WORKING ABROAD
C. LAND-BASED VS. SEA-BASED FILIPINO
OVERSEAS WORKERS
D. QUALIFICATION
FOR
ELECTIVE
OFFICE
E. OFFICE OF THE OMBUDSMAN
F. PRINT VS. BROADCAST MEDIA
IV. THREE
STANDARDS
OF
JUDICIAL
REVIEW
A. RATIONAL BASIS TEST
B. STRICT SCRUTINY TEST
C. INTENSIFIED MEANS TEST
I. DEFINITION AND
PROTECTION
VALID
B. Filipino
Female
Working Abroad
Domestics
OF
JUDICIAL
Page 87 of 313
CONSTITUTIONAL LAW II
IV. STANDARDS
REVIEW
Chapter V. Requirements
for Fair Procedure
Scope
A. Natural Persons
I.
B. Artificial Persons
II. ARREST
A. Requisites for Issuance of a Valid
Arrest Warrant
1. Existence of probable cause
Such facts and circumstances which
would lead a reasonably discreet and
prudent mean to believe that an
offense has been committed by the
person sought to be arrested. (Webb
vs. De Leon 1995)
2.
Determination of probable
personally by the judge.
cause
How done:
i. Personally evaluate the report
and
supporting
documents
submitted by the fiscal regarding
the existence of probable cause
and, on the basis thereof, issue the
arrest warrant; OR
ii. If he finds no probable cause, he
may disregard the prosecutors
report
and
require
the
submission
of
supporting
affidavits of witnesses to aid him
in arriving at a conclusion as to the
existence of probable cause (Cruz v.
Judge Areola 2002).
(Beltran v. Makasiar, 1988)
What the Constitution underscores
is the exclusive and personal
responsibility of the issuing judge
to satisfy himself of the existence of
probable cause.
In satisfying himself of the
existence of probable cause for the
issuance of a warrant of arrest, the
judge is not required to personally
examine the complainant and his
witnesses.
Page 88 of 313
CONSTITUTIONAL LAW II
personal
they are
s5,
Rules
on
Criminal
Requisites:
People
vs
Gerente:
PERSONAL
KNOWLEDGE: The police saw the
victim dead at the hospital and when
they inspected the crime scene, they
found the instruments of death. The
Page 89 of 313
CONSTITUTIONAL LAW II
Page 90 of 313
CONSTITUTIONAL LAW II
personal
they are
4. On the basis of
knowledge of the
testifying to.
5. The
warrant
must
describe
particularly the place to be searched
and the persons or things to be
seized.
A. Requisites
Warrant
of
Valid
Search
DESCRIPTION
OF
PLACE:
The
description of the property to be seized
need not be technically accurate nor
precise. Its nature will vary according
to whether the identity of the property
is a matter of concern. The description
is required to be specific only in so far
as the circumstances will allow. (Kho
vs. Judge Makalintal, (1999)
DESCRIPTION
OF
PERSONS
SEARCHED: SW valid despite the
mistake in the name of the persons to
be searched. The authorities conducted
surveillance and test-buy ops before
obtaining the SW and subsequently
implementing it. They had personal
knowledge of the identity of the
persons and the place to be
searched, although they did not
specifically know the names of the
accused. (People vs. Tiu Won Chua
(2003)
EXCEPTION
TO
GENERAL
WARRANTS: General descriptions will
not invalidate the entire warrant if
other items have been particularly
described. (Uy v. BIR, (2000)
2. Determination of probable
personally by the judge.
cause
Page 91 of 313
CONSTITUTIONAL LAW II
their
facts
CONSTITUTIONAL LAW II
5. Valid
Express
Waiver
made
Voluntarily and Intelligently.
Requisites (People vs. Peralta, 2004):
a. Must appear that right exists;
b. Person
involved
had
actual/
constructive knowledge of the existence
of such right;
c. Said person had an actual interest to
relinquish the right;
d. Waiver is limited only to the arrest;
e. Waiver does not extend to search made
as an incident thereto, or to any
subsequent seizure of evidence found
in the search.
People vs Kagui Malasugui (1936)
It was ruled that the right to be secure
from unreasonable search may be
waived.
Waiver may be express or
implied. When one voluntarily submits
to a search or consents to have it made
of his person / premises, he is
precluded from later complaining. In
this case, the appellant neither made
objection nor even muttered a bit of
protest when the search was conducted on
his person. Also, as held in Weeks v.
United States, when the search of the
person detained or arrested and seizure of
effects found in his possession are
incidental to an arrest made in conformity
w/ the law, they cannot be considered
unreasonable, much less unlawful.
6. Customs Search
9. Exigent
and
Circumstances
Emergency
Page 93 of 313
CONSTITUTIONAL LAW II
IV. DETENTION/CUSTODIAL
INVESTIGATION
A. Rights under Custodial
Investigation
ART. III, S12, 1987 CONSTITUTION
1.
2.
3.
4.
MIRANDA RIGHTS
People vs Galit (1985)
The long question during the appraisal
of Galits constitutional rights followed
by a monosyllabic answer does not
satisfy the requirements of the law
that the accused be informed of his
rights. Instead there should be
several short and clear questions
and every right explained in simple
words in a dialect or language known
to the person under investigation. In
this case, the accused is from Samar
and there is no showing that he
understands Tagalog. Furthermore,
waiver of the right to counsel must be
done in the presence of counsel,
Page 94 of 313
CONSTITUTIONAL LAW II
People vs Salanguit:
Where the warrant authorized only the
seizure of shabu, and not marijuana, the
seizure of the latter was held unlawful.
FOR
under
Page 95 of 313
CONSTITUTIONAL LAW II
PROVIDING
PENALTIES
VIOLATIONS THEREOF
Right to Counsel
Page 96 of 313
CONSTITUTIONAL LAW II
2. Rule on Waiver
ART. III, s12
(1) Must be in writing
(2) Made in the presence of counsel
RA 7438, Rights of Persons under Custodial
Investigation; Section 2. Rights of Persons
Arrested,
Detained
or
Under
Custodial
Investigation; Duties of Public Officers.
(e) Any waiver by a person arrested or
detained under the provisions of Article
125 of the Revised Penal Code, or under
custodial investigation, shall be in writing
and signed by such person in the presence
of his counsel; otherwise the waiver shall
be null and void and of no effect.
priest
or
religious
minister
chosen by him; or
by his counsel; or
by
any
national
nongovernmental organization duly
accredited by the Commission on
Human Rights or
by
any
international
nongovernmental organization duly
accredited by the Office of the
President.
The person's "immediate family"
shall include his or her spouse,
fiance or fiancee, parent or child,
brother or sister, grandparent or
grandchild, uncle or aunt, nephew
or niece, and guardian or ward.
Page 97 of 313
CONSTITUTIONAL LAW II
Knowingly
and
deliberately
manifested that he was not
interested in having a lawyer assist
him during the taking of that
confession.
EFFECT
OF
FAILURE
TO
FOLLOW
PROTOCOL: Such investigation report shall
be null and void and of no effect whatsoever.
Page 98 of 313
CONSTITUTIONAL LAW II
Public
officer
or
employee, or anyone
acting upon orders of
such
investigating
officer or in his place
Any person
A. Definition
(Sec. 1, Rule 114, ROC)
Bail is the security given for the release of a
person in custody of the law, furnished by
him or a bondsman, conditioned upon his
appearance before any court as may be
required.
Dela Camara v. Enage (1971)
Before conviction, every person is bailable
except if charged with capital offenses when
the evidence of guilt is strong. Such a right
flows from the presumption of innocence in
favor of every accused who should not be
subjected to the loss of freedom as
thereafter he would be entitled to acquittal,
unless his guilt be proved beyond
reasonable doubt.
Comendador v. De Villa (1991)
The military men who participated in the
failed coup d etat should be denied release
Penalty
o a fine of Six thousand pesos
(P6,000.00) or a penalty of
imprisonment of not less than
eight (8) years but not more than
ten (10) years, or both.
o The penalty of perpetual absolute
disqualification shall also be
imposed upon the investigating
officer who has been previously
convicted of a similar offense.
Same as above
Page 99 of 313
CONSTITUTIONAL LAW II
Person Liable
Any arresting public
officer or employee, or
any
investigating
officer
2. When Available:
Matter of Discretion
In case the evidence of guilt is
strong.
In such a case, according to
People v. San Diego, (1966), the
court's discretion to grant bail
must be exercised in the light
of a summary of the evidence
presented
by
the
prosecution.
Thus, the order granting or
refusing bail must contain a
summary of the evidence for
the prosecution followed by the
conclusion on whether or not
the evidence of guilt is strong
(Note: it is not the existence
of guilt itself which is
concluded but the strength
of the probability that guilt
exists).
Also
discretionary
in
extradition
proceedings,
because extradition courts do
not
render
judgments
of
conviction or acquittal so it
does not matter WON the
crimes the accused is being
extradited for is punishable by
reclusion
perpetua
(US
Government
v.
Judge
Puruganan and Mark Jimenez,
G.R. 138571, December 17,
2002)
CONSTITUTIONAL LAW II
Manotok vs CA (1986):
The main issue in this case is WON a
person facing a criminal indictment and
provisionally released on bail have an
unrestricted right to travel. The Court held
that the constitutional right to travel being
invoked by petitioner is not an absolute
right. Section 5, Article IV of the 1973
Constitution states: The liberty of abode
and of travel shall not be impaired except
upon lawful order of the court, or when
necessary in the interest of national security,
public safety or public health.
The Court considered the order of the TC
releasing petitioner on bail as a lawful order
contemplated
by
the
above-quoted
constitutional provision.
I.
A. Presumption of Innocence
People
v.
Dramavo,
(1971):
The
requirement of proof beyond reasonable
doubt is a necessary corollary of the
constitutional right to be presumed
innocent.
CONSTITUTIONAL LAW II
E. Right of Confrontation
CONSTITUTIONAL LAW II
G. Trial in Absentia
1. Scope
Compulsory
incrimination
testimonial
self-
2. Examples
a. Handwriting in connection with a
prosecution for falsification is NOT
allowed, for this involves the use of the
mental processes (Beltran v. Samson, 53
Phil 570; Bermudez v. Castillo, 1937).
b. Reenactment of the crime by the
accused is NOT allowed, for this also
involves the mental process.
c. The accused can be required to allow a
sample of a substance taken from his
body (U.S. v. Tan Teh, 1912), or be
ordered to expel the morphine from his
mouth (U.S. v. Ong Sio Hong, 1917)
d. Accused may be made to take off her
garments
and
shoes
and
be
photographed (People v. Otadura, 96
Phil 244, 1950); compelled to show her
body for physical investigation to see if
CONSTITUTIONAL LAW II
Same offense
Attempt of the same offense
Frustration of the same offense
Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the
1st offense)
e. Offense that necessarily includes the
1st offense (All the elements of the 1st
constitute some of the elements of the
2nd offense)
3. Exceptions
a. The graver offense developed due to
"supervening facts" arising from the
CONSTITUTIONAL LAW II
a. By acquittal
b. By final conviction
c. By dismissal without express consent of
accused
d. By dismissal on the merits
and
Cruel,
Inhuman
C. Involuntary Servitude
1987 Constitution, Art. III, Sec 19. Section
18. No involuntary servitude in any form shall
exist except as a punishment for a crime whereof
the party shall have been duly convicted.
6. Termination of Jeopardy
B. Excessive
Fines
Degrading
and
Punishment
CONSTITUTIONAL LAW II
2.
I. HABEAS CORPUS
1987 Constitution, Art. III
The
President
shall
be
the
Commander-in-Chief of all armed forces
of the Philippines and whenever it
becomes necessary, he may call out
such armed forces to prevent or
suppress lawless violence, invasion or
rebellion.
In case of invasion or rebellion, when
the public safety requires it, he may,
for a period not exceeding sixty days,
suspend the privilege of the writ of
habeas corpus or place the Philippines
or any part thereof under martial law.
Within forty-eight hours from the
proclamation of martial law or the
suspension of the privilege of the
writ of habeas corpus, the President
shall submit a report in person or in
writing to the Congress.
CONSTITUTIONAL LAW II
custody
of
a
person
before
the
application for the writ is no reason why
the writ should not issue.
Lansang v. Garcia (1971):
Petitioners were arrested without warrants
and detained, upon the authority of
Proclamation 889 (Which suspended the
privilege of the Writ of Habeas Corpus) and
subsequently filed a petition for writ of
habeas corpus, assailing the validity of the
said Proclamation and their detention.
CONSTITUTIONAL LAW II
of
Writ of Amparo
Remedy
Available to any person
Whose right to life, liberty, and
security
has
been
violated
or
is
threatened with violation
By an unlawful act or omission
of a public official or employee,
or of a private individual or
entity.
What
rule
governs
petitions for and the
issuance of a writ of
amparo?
When does
take effect?
the
Rule
Habeas Data
Remedy
Available to any person
Whose right to life, liberty, and
security
has been violated or is
threatened with violation
By an unlawful act or omission
of a public official or employee,
or of a private individual or
entity
engaged
in
the
gathering,
collecting or storing of data or
information
regarding
the
person,
family,
home
and
correspondence of the aggrieved
party.
The Rule on the Writ of Habeas
Data (A.M. No. 08-1-16-SC), which
was approved by the Supreme
Court on 22 January 2008. That
Rule shall not diminish, increase
or modify substantive rights.
(Constitution, Art. VIII, Sec. 5[5]).
CONSTITUTIONAL LAW II
CONSTITUTIONAL LAW II
petition?
What
is
required burden
proof?
the
of
CONSTITUTIONAL LAW II
petitioner.
II. FORMS OF
COVERED
1.
2.
3.
4.
CORRESPONDENCE
letters
messages
telephone calls
telegrams, and the like (BERNAS)
III.ENABLING LAW
Republic Act 4200: AN ACT TO
PROHIBIT
AND
PENALIZE
WIRE
TAPPING
AND
OTHER
RELATED
VIOLATIONS OF THE PRIVACY OF
COMMUNICATION, AND FOR OTHER
PURPOSES (1965)
Section 1.
Unlawful Acts:
1. For any person not being authorized
by all the parties to any private
communication or spoken word to
tap any wire or cable, or by using
any other device or arrangement,
2. to secretly overhear, intercept, or
record such communication or
spoken word
by using a device commonly known
as a dictaphone or dictagraph or
detectaphone or walkie-talkie or
tape recorder, or however otherwise
described.
Exception 1:
Exception 2:
1. Upon
written
application
and
examination under oath or affirmation
of the applicant and the witnesses he
may produce, and
CONSTITUTIONAL LAW II
2. A showing of:
committed
or
Inadmissibility:
CONSTITUTIONAL LAW II
I. BASIS,
COMPONENTS,
AND LIMITATIONS
SCOPE
Basis
Components
Speech, expression, and press include:
a) Written or spoken words (recorded or
not)
b) Symbolic
speech
(e.g.
wearing
armbands as symbol of protest)
c) Movies (BERNAS)
Scope of Protected Freedoms
Any and all modes of protection are
embraced in the guaranty. It is reinforced
by Sec. 18(1), Art. 3.
General rules:
1.
2.
All
are
indispensable
to
the
uninhibited, robust and wide-open
debate in the free marketplace of ideas
(Abrams vs US)
Concept:
Examples
Restraint:
of
Unconstitutional
Prior
1.
2.
3.
CONSTITUTIONAL LAW II
BASIS,
COMPONENTS,
SCOPE
AND
LIMITATIONS
A. FREEDOM FROM CENSORSHIP OR
PRIOR RESTRAINT
B. FREEDOM
FROM
SUBSEQUENT
PUNISHMENT
II. CONTENT-BASED RESTRICTIONS
A. TESTS
B. APPLICATIONS OF VARIOUS TESTS IN
SPECIFIC INSTANCES
1. FREEDOM OF EXPRESSION AND
NATIONAL SECURITY
2. FREEDOM OF EXPRESSION AND
LIBEL
3. FREEDOM OF EXPRESSION AND
THE RIGHT TO PRIVACY
4. FREEDOM OF EXPRESSION AND
THE ADMINISTRATION OF JUSTICE
5. FREEDOM OF INFORMATION
III. CONTENT-NEUTRAL RESTRICTIONS
1. FREEDOM OF ASSEMBLY
2. FREEDOM OF ASSOCIATION AND
SELF-ORGANIZATION
3. MOVIE CENSORSHIP
4. BROADCAST MEDIA
moving
Examples
Restraint:
of
Constitutional
Prior
B. Freedom
from
Punishment
Subsequent
Concept:
of
Valid
Subsequent
in
on
its
vs
Exceptions:
CONSTITUTIONAL LAW II
Examples
Restraints:
CONSTITUTIONAL LAW II
and
CONSTITUTIONAL LAW II
CONSTITUTIONAL LAW II
5. Freedom of Information
Valmonte vs Belmonte
Media practitiones requested information
from the GM of GSIS re clean loans granted
to certain members of the defunct Batasang
Pambansa on the guaranty of Imelda
Marcos shortly before the Feb 1986
elections. Request was refused on the
ground of confidentiality.
The Court held that the right to information
is not absolte. It is limited to matters of
public concern and is subject to such
limitations as may be provided by law. That
III.CONTENT-NEUTRAL
RESTRICTIONS
1. Freedom of Assembly
Primicias vs. Fugoso (1948):
The right to freedom of speech and to
peaceably assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
guaranteed
by
the
constitutions
of
democratic countries. City or town mayors
are not conferred the power to refuseto
grant the permit, but oonly the
discretion in issuing the permit to
determine or specify the streets or
public places where the parade may pass
or the meeting may be held.
J.B.L. Reyes vs Bagatsing (1983):
The Court held here that freedom of speech
and freedom to peaceably assemble is
entitled to be accorded utmost deference
and respect, and cannot be limited or
denied unless there is showing of a clear
and present danger of a substantive evil
that the State has a right to prevent. For
the constitutional right to be invoked,
riotous conduct, injury to property, and
acts of vandalism must be avoided.
Furthermore, absent any clear and present
danger of a substantive evil, peacable
assembly in public places like streets or
parks cannot be denied, unless there is
showing of a clear and present danger of
substantive evil.
Bayan v. Ermita (2006)*
The CPR, insofar as it would purport to
differ from or be in lieu of maximum
tolerance, is NULL and VOID
CONSTITUTIONAL LAW II
Freedom Parks
B.P. 880 provides that every city and
municipality must set aside a freedom
park within six months from the
laws effectivity in 1985, or 20 years
ago. Section 15 of the law provides for
an alternative forum through the
creation of freedom parks where no
prior permit is needed for peaceful
assembly and petition at any time.
According to the SolGen (Nachura) ,
however, he is aware of only ONE
declared freedom park - Fuente
Osmena in Cebu City. Without such
alternative forum, to deny the permit
would in effect be to deny the right.
Permit Application
There is need to address the situation
adverted to by petitioners where mayors
do not act on applications for a permit
and when the police demand a permit
and the rallyists could not produce one,
the rally is immediately dispersed.
Conclusion
For
this
reason,
the
so-called
calibrated
preemptive
response
policy has no place in our legal
firmament and must be struck down
as a darkness that shrouds freedom.
It merely confuses our people and is
used by some police agents to justify
abuses. On the other hand, B.P. No.
880
cannot
be
condemned
as
unconstitutional; it does not curtail or
unduly restrict freedoms; it merely
regulates the use of public places as to
the time, place and manner of
assemblies.
CONSTITUTIONAL LAW II
CONSTITUTIONAL LAW II
3. Movie Censorship
Gonzales v. Kalaw Katigbak (1985):
Gonzales was the producer of the movie
Kapit sa Patalim w/c the Board of Review
for Motion Pictures and Televisions
classified as fit For Adults Only.
Here the Court held that the power of the
Board is limited to the classification of
films. For freedom of expression is the rule
and restrictions the exception. Censorship
is allowable only under the clearest proof
of a clear and present danger of a
substantive evil to public safety, morals,
helath or any other legit public interest.
1) There should be no doubt what is
feared may be traced to the expression
complained of. 2) Also, there must be
reasonable
apprehension
aout
its
imminence. It does not suffice that the
danger is only probable.
4. Broadcast Media
I. NON-ESTABLISHMENT CLAUSE
A. Concept
The clause prohibits excessive government
entanglement
with,
endorsement
or
disapproval of religion (Victoriano v. Elizalde
Rope Workers Union 1974, Lynch v.
Donnelly, 465 US 668 (1984) O'Connor, J.,
concurring); Allegheny County v. Greater
Pittsburg ACLU 1989).
B. Basis
Rooted in the separation of Church and
State (Sec. 2(5), Art. 9-C; Sec. 5(2), Sec.
29(2) Art. 6, 1987 Consti).
by
Mandatory
religious
subjects
or
prohibition
on
secular
subjects
(evolution) in schools (Epperson vs.
Arkansas)
5.
6.
D. Acts
Permitted
Establishment Clause
by
the
1. Tax exemption
Sec. 28 (3), Art. 6. Charitable institutions,
churches and personages or convents
appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and
exclusively used for religious, charitable, or
educational purposes shall be exempt from
taxation.
2. Operation of sectarian schools
Sec. 4(2), Art. 6. Educational institutions,
other than those established by religious
groups and mission boards, shall be owned
solely by citizens of the Philippines or
corporations or associations at least sixty
per centum of the capital of which is owned
by such citizens
Non-
1.
2.
3.
4.
CONSTITUTIONAL LAW II
NON-ESTABLISHMENT CLAUSE
A. CONCEPT
B. BASIS
C. ACTS NOT PERMITTED BY THE
ESTABLISHMENT CLAUSE
D. ACTS
PERMITTED
BY
THE
ESTABLISHMENT CLAUSE
E. TEST
II. FREE EXERCISE CLAUSE
A. DUAL ASPECT
B. LAWS JUSTIFIED UNDER THE FREE
EXERCISE CLAUSE
III. TESTS
A. CLEAR AND PRESENT DANGER TEST
B. COMPELLING STATE INTEREST TEST
C. CONSCIENTIOUS OBJECTOR TEST
is unconstitutional is unmistakably
non-secular. Nothing in its setting deemphasizes
its
religious
nature,
engenders in viewers a sense that
Christianity
is
endorsed
by
the
government.
E. Test
B. Laws
Justified
Exercise Clause
under
Free
CONSTITUTIONAL LAW II
to
propagate
religious
from
local
upon
religious
III.TESTS
A. Clear and Present Danger Test
Ebralinag vs. Div. Superintendent:
The existence of a grave and present danger
of a character both grave and imminent, of
a serious evil to public safety, public
morals, public health or any other
legitimate interest, that the state has a
right to prevent.
CONSTITUTIONAL LAW II
I. LIBERTY OF ABODE
Rubi vs. Provincial Board (1919):
"Liberty" as understood in democracies, is
not license; it is "Liberty regulated by law."
CONSTITUTIONAL LAW II
CRITICISM
If terrorism is defined by result, then how
can a conspiracy to commit the section 3
offense arise?
ARTICLE
III,
Section
3,
1987
CONSTITUTION
1. The privacy of communication and
correspondence shall be inviolable
except upon lawful order of the court,
or when public safety or order requires
otherwise as prescribed by law.
2. Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
CONSTITUTIONAL LAW II
_____________________________________________
* Acknowledgment: Thank you to professor
Te for allowing us to substantially lift the
materials from his report on the HSA.
CONSTITUTIONAL LAW II
CONSTITUTIONAL LAW II
Appendix: BP 880
CONSTITUTIONAL LAW II
Appendix: BP 880
Appendix: BP 880
the Revised
disorder or
the public
a group for
CONSTITUTIONAL LAW II
Table of Contents
ADMINISTRATIVE LAW
CHAPTER I. PRELIMINARY
CONSIDERATIONS
A. Definitions
B. Historical Considerations
C. Modes of Creation of
Administrative Agencies
D. When is an Agency
Administrative?
E. Types of Administrative Agencies
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ADMINISTRATIVE LAW
133
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POLITICAL LAW
LECTURES
FACULTY EDITOR
ACADEMICS COMMITTEE
Carmi Tugday
Joey Capones
Edel Cruz
Samantha Poblacion
SUBJECT EDITORS
Jason Mendoza
ADMINISTRATIVE LAW
DEPUTY HEAD
Rania Joya
LEAD WRITER
HEAD
-------Kae Guerrero
-------Leo Zulueta
WRITER
Administrative Law
Chapter I. Preliminary
Considerations
A. DEFINITIONS
B. HISTORICAL CONSIDERATIONS
C. MODES
OF
CREATION
OF
ADMINISTRATIVE AGENCIES
D. WHEN IS AN AGENCY ADMINISTRATIVE?
E. TYPES OF ADMINISTRATIVE AGENCIES
C. Modes
of
Creation
Administrative Agencies
of
1. 1987 Constitution
(e.g. CSC, Comelec, COA, CHR, Commission
on Appointments, Judicial and Bar Council
and NEDA)
2. Legislative Enactment
A. Definitions
1. Administrative Law is that branch of
modern law under which the executive
department of the government,
acting in a quasi-legislative or quasijudicial capacity, interferes with the
conduct of the individual for the
purpose of promoting the well-being of
the
community
(DEAN
ROSCOE
POUND)
2. Administrative Agencies are the
organs of government, other than a
court and other than legislature, which
affects the rights of private parties
either through adjudication or rulemaking.
B. Historical Considerations
D. When
is
administrative?
an
agency
1. Where
its
function
is
primarily
regulatory
EVEN IF it conducts hearings and
determines controversies to carry
out its regulatory duty.
2. On its rule-making authority, it is
administrative when it does not have
discretion to determine what the law
shall be but merely prescribes details
for the enforcement of the law.
1.
2.
3.
4.
ADMINISTRATIVE LAW
b. A sufficient standard:
i. Defines legislative policy, marks
its limits, maps out its boundaries
and specifies the public agency to
apply it; and
ii. Indicates
the
circumstances
under
which
the
legislative
command is to be effected. [Santiago
v COMELEC (1997); ABAKADA Guro
List v Ermita (2005)]
c. Form of the sufficient standard:
i. Express
ii. Implied [Edu v Ericta (1970)]
iii. Embodied in other statutes on the
same matter and not necessarily in
the same law being challenged.
[Chiongbian v Orbos (1995)]
d. Permissible Delegation
i. Ascertainment of Fact
ii. Filling in of Details
iii. Fixing of Rates, Wages, Prices
iv. Licensing Function, and
v. Administrative Rule-Making
i.
ii.
Filling in of details
For necessity and as a means of
enforcement
and
execution
[Alegre v Collector of Customs
(1920)]
A. Quasi-Legislative
Powers
(Rule-making)
1. Definition.
The authority delegated by the law-making
body to the administrative agency to adopt
rules and regulations intended to carry out
the provisions of a law and implement
legislative policy.
2. Non-delegation doctrine.
Potestas delegata non delegare potest. What
has been delegated cannot be delegated.
3. Legislative Delegation.
a. Requisites for a valid delegation
i. The law must be complete in itself
and must set forth the policy to be
executed
ADMINISTRATIVE LAW
QUASI-LEGISLATIVE (RULE-MAKING)
POWERS)
1. DEFINITION
2. NON-DELEGATION DOCTRINE
3. LEGISLATIVE DELEGATION
a. REQUISITES
OF
A
VALID
DELEGATION
b. A SUFFICIENT STANDARD
c. FORM
OF
THE
SUFFICIENT
STANDARD
d. PERMISSIBLE DELEGATION
B. QUASI-JUDICIAL
(ADJUDICATORY)
POWERS
1. DEFINITION
2. SOURCE
3. REQUISITES FOR VALID EXERCISE
4. GENERAL RULE
5. WHAT
QUASI-JUDICIAL
POWERS
INCLUDE
6. INVESTIGATIVE POWERS
7. SUBPOENA POWERS
8. POWER TO CITE IN CONTEMPT
9. WARRANTS OF ARREST
10. ADMINISTRATIVE SEARCHES
11. DUE PROCESS
12. NOTICE AND HEARING
13. ADMINISTRATIVE
AND
JUDICIAL
PROCEEDINGS ARISING FROM THE
SAME FACTS
14. RULES OF EVIDENCE
C. DETERMINATIVE POWERS
v. Administrative Rule-making
o Types of Administrative Rules:
a. Supplementary legislation
b. Interpretative legislation
c. Contingent legislation
a. Supplementary legislation
Pertains to rules and regulations to
fix details in the execution of a
policy in the law. e.g. IRRs of the
Labor Code.
b. Interpretative legislation
Pertains to rules and regulations
construing or interpreting the
provisions of a statute to be
enforced and they are binding on all
concerned until they are changed,
i.e. BIR Circulars.
GENERAL DISTINCTIONS FROM
LEGISLATIVE RULES
Legislative Rules
Promulgated
pursuant to its quasilegislative
/
rulemaking functions.
Create a new law, a
Interpretative Rules
Passed pursuant to its
quasi-judicial capacity.
Merely
clarify
the
ADMINISTRATIVE LAW
meaning of a pre-existing
law
by
inferring
its
implications.
Need not be published.
The court may review
their correctness of the
interpretation of the law
given
by
the
administrative body, and
substitute its own view of
what is correct to the
administrative body. If it
is not within the scope of
the
administrative
agency, court can only
invalidate the same but
not substitute its decision
or interpretation or give
its own set of rules.
Due process means that
the body observed the
proper
procedure
in
passing rules.
Restrictions on interpretative
regulations: (a) does not change
the character of a ministerial
duty, (b) does not involve
unlawful use of legislative or
judicial power.
Administrative interpretations:
may eliminate construction
and uncertainty in doubtful
cases.
When
laws
are
susceptible of two or more
interpretations,
the
administrative agency should
make known its official position.
Administrative
construction/
interpretation not controlling
as to the proper construction of
a statute, but generally it is
given great weight, has a very
persuasive influence and may
actually be regarded by the
courts as the controlling factor.
Administrative interpretation is
merely advisory; Courts finally
determine what the law means.
c. Contingent legislation
Pertains to rules and regulations
made by an administrative authority
on the existence of certain facts or
things upon which the enforcement
of the law depends.
o
Requisites
of
a
administrative rule
authorized by law
valid
Publication Rules
Administrative rules and
regulations are subject to the
publication and effectivity
rules of the Admin Code in
relation to the Civil Code.
EO 200 requires publication
of laws in the Official Gazette
or in a newspaper of general
circulation. Publication is
indispensable, especially if
the rule is general.
EXCEPTIONS:
Interpretative rules
Internal regulations (i.e.
regulating personnel)
Letters of instructions
issued by administrative
superior to subordinates
Effectivity:
15
days
after
publication, not 15 days from
date of filing with the UP Law
Center.
EXCEPTIONS:
Different date is fixed by law
or specified in the rule.
In case of imminent danger
to public health, safety and
welfare.
Penal Rules
Sec. 6, 1987 Admin Code. Omission
of Some Rules. (2) Every rule
establishing an offense or defining
an act which, pursuant to law is
punishable as a crime or subject to
a penalty shall in all cases be
published in full text.
ADMINISTRATIVE LAW
B. Quasi-Judicial
Powers
(Adjudicatory)
Judicial
Inquisitorial
Adversarial
Liberally applied
Nature and
Extent
of
Decision
Decision limited
to matters of
general concern
Follow
technical
rules in the
Rules
of
Court
Decision
includes
matters
brought as
issue by the
parties
The parties
are only the
private
litigates
Parties
ADMINISTRATIVE LAW
Kind
of
Proceedings
Nature
of
Proceedings
Rules
of
Procedure
b. Subpoenas
c. Power to Cite in Contempt
d. Warrants of Arrest (only upon final
order of deportation)
e. Administrative Searches
f. Imposition of fines and penalties
Harvey
v
Defensor-Santiago
(1988].
The Commissioner can arrest aliens
upon a warrant issued by him and
deported upon warrant issued by the
same after a determination of the
existence of a ground for deportation
by the Board of Commissioners.
Deportation
proceedings
are
administrative in nature, not penal,
but merely preventive. Thus, it need
not be conducted strictly in
accordance with ordinary court
proceedings. The requirement of
probable cause, determined by a
judge,
does
not
extend
to
deportation proceedings. What is
essential however is that (1) there be
a specific charge against the alien,
(2) there be a fair hearing
conducted, and (3) the charge be
substantiated
by
competent
evidence
ADMINISTRATIVE LAW
i. Limited in scope.
ii. Relevant in purpose.
iii. Specific directives so compliance will
not be unreasonably burdensome.
iv. Subpoena must designate the
needed documents.
v. Subpoena may not be made and
enforced in the field.
vi. Subpoenaed party may obtain
judicial review of reasonableness of
demand prior to suffering penalties
for refusal to comply.
vii. The particular agencys demand for
access will be measured against a
flexible standard of reasonableness
that takes into account the public
need for effective enforcement of
regulations. [See v Seattle (1967)]
ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
C. Determinative Powers
Determinative powers are: (D.E.E.D.S.)
a. Enabling to permit or allow
something which the law undertakes to
regulate, e.g. licenses
b. Directing i.e. assessment by the BIR
or Customs
c. Dispensing to exempt from a general
prohibition, or relieve an individual or
corporation from an affirmative duty,
e.g. authority of zoning
d. Examining investigatory power;
consists in requiring production of
Page 141 of 313
B.
C.
E.
A. Considerations
1. Basis
There is an underlying power in the courts
to scrutinize the acts of administrative
agencies exercising quasi-judicial power on
questions of law and jurisdiction even
though no right of review is given by the
statute.
Judicial review keeps the administrative
agency within its jurisdiction and protects
substantial rights of parties affected by its
decisions.
Judicial review is proper in
cases of lack of jurisdiction, error of law,
grave abuse of discretion, fraud or
collusion, or in case the administrative
decision is corrupt, arbitrary or capricious.
[San Miguel Corp. v Labor Secretary (1975)]
2. Factors to
Review:
Consider
in
Judicial
5. Exceptions
Administrative
proceedings
may
be
reviewed by the courts upon a showing that
the board or official:
a. Has
gone
beyond
his
statutory
authority;
b. Exercised unconstitutional powers;
ADMINISTRATIVE LAW
D.
CONSIDERATIONS
1. BASIS
2. FACTORS TO CONSIDER IN JUDICIAL
REVIEW
3. DOCTRINES
APPLICABLE
TO
ADMINISTRATIVE AGENCIES
4. GENERAL RULE
5. EXCEPTIONS
6. WHEN JUDICIAL REVIEW IS VALID
DESPITE
FINALITY
OF
ADMINISTRATIVE DECISIONS
7. AVAILABILITY OF JUDICIAL REVIEW
FOUR
IMPORTANT
DOCTRINES
IN
JUDICIAL REVIEW
1. PRIMARY JURISDICTION
2. EXHAUSTION OF ADMINISTRATIVE
REMEDIES
3. QUALIFIED POLITICAL AGENCY
4. RIPENESS
EXTENT OF JUDICIAL REVIEW
1. GENERAL RULE
2. GENERAL PRINCIPLES
3. LAW-FACT DISTINCTION
4. QUESTION OF LAW
5. QUESTION OF FACT
6. QUESTION OF DISCRETION
MODES OF JUDICIAL REVIEW
1. CERTIORARI
2. PROHIBITION
3. MANDAMUS
4. DECLARATORY RELIEF
5. HABEAS CORPUS
6. AMPARO
7. HABEAS DATA
8. INJUNCTION
AS
PROVISIONAL
REMEDY
ENFORCEMENT OF AGENCY ACTION
1. RES JUDICATA; FINAL JUDGMENT
2. WRIT OF EXECUTION; MANDAMUS
of
Judicial
B. Four Important
Judicial Review
1.
2.
3.
4.
in
Primary Jurisdiction
Exhaustion of Administrative Remedies
Qualified Political Agency
Ripeness
Review
Doctrines
ADMINISTRATIVE LAW
7. Availability
depends on:
b. Requisites:
i. Administrative body and the regular
court have concurrent and original
jurisdiction
ii. Question to be resolved requires
expertise of administrative agency
iii. Legislative intent on the matter is to
have uniformity in rulings
iv. Administrative agency is performing
a quasi-judicial or adjudicatory
function (not rule-making or quasilegislative.) [Smart vs NTC (2003)]
c. Rationale: It is presumed that an
administrative agency, if afforded an
opportunity to pass upon a matter,
would decide the same correctly, or
2. Doctrine
of
Exhaustion
Administrative Remedies
of
a. General Rule:
Where the law has
delineated the procedure by which
administrative appeal or remedy could
be effected, the same should be followed
before recourse to judicial action can be
initiated. [Pascual v Provincial Board
(1959)]
b. Requisites:
i. The
administrative
agency
is
performing a quasi-judicial function.
ii. Judicial review is available.
iii. The court acts in its appellate
jurisdiction.
c. Rationales:
i. Legal reason: The law prescribes a
procedure.
ii. Practical reason: To give the agency
a chance to correct its own errors
[and prevent unnecessary and
premature resort to the courts ;
iii. Reasons of comity: Expedience,
courtesy, convenience.
d. Exceptions
to
the
Doctrine
of
Exhaustion of Remedies:
Purely legal questions. [Castro v
Secretary (2001)]
Steps to be taken are merely
matters of form. [Pascual v Provincial
Board (1959)]
Administrative remedy not exclusive
but
merely
cumulative
or
concurrent to a judicial remedy.
[Pascual]
ADMINISTRATIVE LAW
e. Effect
of
Failure
to
Exhaust
Administrative Remedies:
Does not affect jurisdiction of the court.
The only effect of non-compliance is it
will deprive complainant of a cause of
action, which is a ground to dismiss.
4. Ripeness
a. When applied:
i. Administrative agencys decision is
final.
ii. Judicial
review
available/appropriate.
iii. Administrative agency exercising its
rule-making
or
quasi-legislative
function
b. Purpose [Abbot Laboratories v Gardner
(1967)]
i. To prevent courts, thru avoidance of
premature
adjudication,
from
entangling themselves in abstract
agreement
over
administrative
policies.
ii. To protect agencies from judicial
interference until a decision has
been formalized and its effect is felt
in a concrete way or the imminence
of the effect is demonstrable.
c. Two-fold test for a controversy to be ripe
[Abbot]
Fitness of the issue for judicial
decision.
Hardship
to
the
parties
of
withholding such court action.
General Rule
General Principles
Law-fact Distinction
Question of Law
a. General rule
b. What may be questioned?
c. Examples
5. Question of Fact
Page 145 of 313
ADMINISTRATIVE LAW
a. Definition
b. General Rule
c. Examples
6. Question of Discretion
a. Discretionary Acts v Ministerial Acts
b. Judicial review of administrative
discretion v. Substitution of judicial
discretion for administrative
discretion
c. General rule
d. Rationale
e. Exception
f. Examples
1. General Rule
Laws creating administrative agencies and
providing for judicial review may indicate
the scope of that review.
Whether the
courts may inquire into questions of law, of
fact or of both as well as of administrative
discretion will depend on the enabling act.
2. General Principles
3. Law-fact Distinction
a. There is no clear-cut line that separates
questions of law from questions of fact.
There may be cases where the issues
raised may easily be classified under
one or the other, but some cases may
involve mixed questions of law and fact;
b. Brandeis Doctrine of Assimilation of
Facts: Where what purports to be a
finding upon a question of fact is so
involved with and dependent upon a
question of law as to be in substance
and effect a decision on the latter, the
court will, in order to decide the legal
question, examine the entire record
including the evidence if necessary.
4. Question of Law
a. General rule: Questions of law are
subject to judicial review.
b. What may be questioned?
i. Constitutionality of the statute
creating the agency and granting its
powers;
ii. Validity of the agency action if
this transcend the limit established
by law; or
iii. Correctness
of
the
agencys
interpretation and application of
the law.
c. Examples:
i. Administrative officials action which
is based on a misconstruction of law
can be corrected and is not
conclusive upon the courts.
ii. When the conclusion drawn by an
administrative official from the facts
found is erroneous or not warranted
by law.
iii. Where the act of the administrative
official constitutes not only an
excess of regulatory power conferred
upon him, but also an exercise of
legislative power which he does not
have.
iv. Ysmael v CIR, (1960): The issue of
WON
an
Employer-Employee
relationship exists is a question of
law.
5. Question of Fact
a. Definition. A question of fact exists if
the issue involved is the existence of a
fact, the happening of an event, or
which of the two versions of the
happening of an event is correct.
b. General Rule: Finality is attached to
findings of fact of some agencies when
these findings are supported by
substantial evidence and as long as
there is no grave abuse of discretion.
c. Examples:
GENERAL RULE:
i. Mollaneda v Umacob, (2001):
It is not for the reviewing court to weigh
the conflicting evidence, determine the
credibility of witnesses, or otherwise
substitute its judgment for that of the
administrative
agency
on
the
sufficiency of evidence.
The court recognizes that the trial
court or administrative body, as a trier
of facts, is in a better position to assess
the demeanor of the witnesses and the
credibility of their testimonies as they
ADMINISTRATIVE LAW
EXCEPTIONS:
i. Gonzales v Victory Labor Union,
(1969)
One circumstance where the court may
not accept the agencys findings of fact
is when the decision rendered by an
almost evenly divided court and the
division was precisely on the facts as
borne out by the evidence.
In such a situation the court, in
order to determine the substantiality of
the evidence, must consider evidence
not only in its quantitative but also
in its qualitative aspects. For, to be
substantial, evidence must first of all be
credible.
ii. Banco Filipino v
Central Bank,
(1991)
When there is grave abuse of
discretion amounting to lack of
jurisdiction, there is a justification for
the
courts
to
set
aside
the
administrative determination.
iii. PAL v. Confessor, (1994)
The court is inclined to review the
findings of fact of an administrative
official if they are not based on a
thorough examination of the parties
contending
claims
wherein
the
adversarial process would ensure a
6. Question of Discretion
a. Discretionary Acts v Ministerial Acts
Discretionary
When
applied
to
public functionaries,
discretion
may
be
defined as the power
or
right
conferred
upon them by law to
act officially under
certain circumstances,
according
to
the
dictates of their own
judgment
and
conscience and not
controlled
by
the
judgment of others.
Discretion
is
the
power to make a
choice
among
permissive actions or
policies.
The
very
essence
of
discretionary power is
that the person or
persons exercising it
may choose which of
several
courses
of
action
should
be
followed.
Ministerial
A ministerial act has
been defined as one
performed in response
to a duty which has
been
positively
imposed by law and its
performance required
at a time and in a
manner
or
upon
conditions specifically
designated, the duty to
perform
under
the
conditions
specified
not being dependent
upon
the
officers
judgment or discretion.
Ministerial duty is one
in respect to which
nothing is left to
discretion. It is a
simple, definite duty
arising
under
conditions admitted or
proved to exist, and
imposed by law.
b. Judicial
review
of
administrative
discretion v. Substitution of judicial
discretion for administrative discretion
o Questions of policy or discretion are
reviewable
only
for
unreasonableness, departure from
statutory standards, or lack of
evidentiary support; and questions
of wisdom, propriety or expediency
are for the agency and not for the
courts.
The court will not substitute its
discretion or judgment for that of
the administrative agency, but will
determine the lawfulness of its
action.
The ruling of an administrative
agency, on questions of law, while
not as conclusive as its findings of
facts, is nevertheless persuasive and
given much weight especially if the
agency is one of special competence
and experience.
ADMINISTRATIVE LAW
2. Prohibition
1. Certiorari
a. Purpose: The purpose of a certiorari is
to set aside or nullify proceedings.
b. Requisites
i. Involves
question
of
lack
of
jurisdiction or grave abuse of
discretion
ii. No plain, adequate, and speedy
remedy available
iii. The administrative agency must be
performing a quasi-judicial function.
Certiorari cannot be invoked if what
is involved is merely a ministerial
function.
c. NOTE:
Certiorari
for
COMELEC
decisions is limited to Rule 65. For CSC
and COA decisions, the rules on
ordinary appeal apply.
ADMINISTRATIVE LAW
Examples:
i. Laguna Tayabas v PSC (1957)
The erroneous appreciation of the
significance of the facts before the
administrative agency does not mean
that the administrative agency had
abused its discretion. [
ii. PLDT v NTC, (1995)
Courts should not intervene in that
administrative process, save upon a
very clear showing of serious violation of
law or of fraud, personal malice or
wanton oppression.
Courts have none of the technical
and economic or financial competence
which
specialized
administrative
agencies have at their disposal.
j.
Meralco
Securities
Corporation
v.
Savellano, (1982): Tax assessment is
discretionary, therefore, mandamus will
not lie. The Commissioner cannot be
compelled to impose tax assessment not
found by him to be due for that would
be tantamount to a usurpation of an
executive function.
3. Mandamus
a. Nature.
Mandamus
is
an
order
compelling a party to perform an act
arising out of a positive duty imposed
by law.
b. Mandamus will lie against a ministerial
duty when the official/agency refuses to
exercise its ministerial duty to act on its
quasi-judicial functions.
c. Mandamus will not lie to enforce a
contractual obligation. The remedy will
be specific performance.
d. Requisites:
i. Duty is ministerial.
ii. Petitioner has a clear, controlling
right.
iii. No other plain, speedy and adequate
remedy.
e. Blanco v. Board of Examiners, (1924):
Mandamus will not issue to control or
review the exercise of discretion of a
public officer. The act of confirming is
not a ministerial duty.
f.
ADMINISTRATIVE LAW
i.
4. Declaratory Relief
a. Purpose: To determine the construction,
validity and declaration of rights.
b. An action for declaratory relief must be
brought in the RTC. It is not among the
actions within the original jurisdiction
of the SC even if only questions of law
are involved.
c. Requisites.
1) Subject matter must be a deed, will,
contract or written instrument in
which petitioner is legally interested,
or law or governmental regulation
which affects his rights.
2) The terms of the written instrument
are, or the validity of the law or
regulation is doubtful and requires
judicial construction.
3) Petition is filed before breach or
violation of the instrument or
regulation.
5. Habeas Corpus
a. Nature: The great writ of liberty is
intended as a speedy remedy to secure
the release of a person deprived of his
liberty.
A person detained upon the orders of an
agency may test the validity of his
detention through the privilege of the
writ of habeas corpus, which is a
constitutionally guaranteed right. (Art.
III, sec. 15, Consti.)
b. Requisites
i. There is illegal confinement or
detention.
ii. There is illegal restraint of liberty.
iii. Rightful custody of any person is
withheld from the person entitled
thereto.
c. Purpose: Secure the release of a person
deprived of his liberty, and test the
ADMINISTRATIVE LAW
6. Writ of Amparo
c. Philippine Version:
i. Rights protected: (1) right to life, (2)
liberty and (3) security of persons.
ii. The reason for limiting the coverage
of its protection only to the three
rights is that other constitutional
rights of our people are already
enforced through different remedies.
iii. It covers both actual and threatened
violations of such rights.
iv. It covers violations committed by
public officials or employees and
private individuals or entities.
(Annotation to the Writ of Amparo)
7. Habeas Data
a. Nature and Purpose: The writ of habeas
data is an independent remedy to
protect the right to privacy, especially
the right to informational privacy.
The writ of habeas data is also a
remedy to protect the right to life,
liberty or security of a person from
violation or threatened violation by an
unlawful act or omission of a public
official or employee or of a private
individual or entity. It complements the
writ of amparo and writs of habeas
corpus. (Annotation to the Writ of
Habeas Data)
b. Purposes/Types:
i. For the protection of personal
freedom, equivalent to the habeas
corpus writ (called amparo libertad);
ii. For the judicial review of the
constitutionality of statutes (called
amparo contra leyes);
iii. For the judicial review of the
constitutionality and legality of a
judicial decision (called amparo
casacion);
iv. For
the
judicial
review
of
administrative
actions
(called
amparo administrativo); and
v. For the protection of peasants
rights derived from the agrarian
reform process (called amparo
agrario). (Annotation to the Writ of
Amparo)
b. Purpose.
i. To prevent the commission of
certain acts complained of; or
ii. To order the continued performance
of some act for the purpose of
preventing further injury.
c. Requisites:
i. Plaintiff
is
entitled
to
relief
demanded. The right to the writ is
clear when:
There is willful invasion of the
petitioners right, and the injury
is a continuing one; and 2)
effect of the writ is to reestablish
the
pre-existing
relation. [Lemi vs. Valencia
(1966)]
Commission or continuance of
an act complained of would
probably work injustice to him.
ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
f.
ADMINISTRATIVE LAW
f.
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POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
FACULTY EDITOR
ACADEMICS COMMITTEE
Samantha Poblacion
HEAD
Carmi Tugday
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
DEPUTY HEAD
-------Kae Guerrero
LEAD WRITER
Karl Landoy
Joanna Orbe
Khristine Mendoza
Ralph Catedral
-------Leo Zulueta
WRITERS
Local
Government Law
I.
I. PRINCIPLES
OF
GOVERNMENT LAW
Principles
of
instituted
through
a
system
of
decentralization
nongovernmental
and
people's
organizations,
B. Decentralization
Limbona v. Mangelin (1989): Now, autonomy
is either decentralization of administration
or decentralization of power. There is
decentralization of administration when
the
central
government
delegates
administrative
powers
to
political
subdivisions in order to broaden the base of
government power.
A. State
Policy,
Decentralization
LOCAL
The
President
exercises
"general
supervision" over them, but only to
"ensure
that
local
affairs
are
administered according to law." He
has no control over their acts in the
sense that he can substitute their
judgments with his own.
C. Devolution
(asked in 1999)
B. Scope
RA 7160 (LGC), Sec. 4
The LGC shall apply to:
provinces
cities
municipalities
barangays
other political subdivisions as may be
created by law; and
to the extent herein provided, to
officials, offices, or agencies of the
national government.
C. Rules of Interpretation
LGC, Sec. 5
Sec. 5. Rules of Interpretation. - In the
interpretation of the provisions of this Code,
the following rules shall apply:
In case of doubt on any provision on a
power of an LGU:
Liberal interpretation
in favor of devolution of powers
in favor of existence of power
In case of doubt on any tax ordinance or
revenue measure:
Construed strictly against LGU
Construed liberally in favor of
taxpayer
Tax exemption, incentive or relief is
construed strictly against person
claiming it
General welfare provisions
Liberally interpreted to give more
powers to LGU in accelerating
economic
development
and
upgrading quality of life for the
people of the community
Rights and obligations existing on
effectivity of LGC:
Arising from contracts or other
source
Shall be governed by
original terms and conditions of
contract, OR
law in force at the time the
rights were vested
Resolution of controversies under the
LGC:
Where no legal
provision
or
jurisprudence applies
Resort to customs and traditions in
the place where the controversies
take place
CREATION
A. GENERAL PROVISIONS
B. SPECIFIC REQUIREMENTS
1. METROPOLITAN
POLITICAL
SUBDIVISIONS
2. HIGHLY URBANIZED CITIES AND
INDEPENDENT
COMPONENT
CITIES
3. AUTONOMOUS REGIONS
C. AUTHORITY TO CREATE LGUS
D. CREATION AND CONVERSION OF
LGUS
E. PLEBISCITE
F. BEGINNING
OF
CORPORATE
EXISTENCE
II. DIVISION AND MERGER; ABOLITION
A. DIVISION AND MERGER
B. ABOLITION
III. SETTLEMENT OF BOUNDARY DISPUTES
A. JURISDICTIONAL
RESPONSIBILITY
FOR SETTLEMENT OF BOUNDARY
DISPUTE
B. APPEAL
C. MAINTENANCE OF THE STATUS QUO
I. CREATION
(Art. X, 1987 Consti.)
A. General Provisions
group themselves,
for
purposes
of
administrative
decentralization
B. Specific Requirements
1) Metropolitan Political Subdivisions
Sec. 11. The Congress may, by law, create
special metropolitan political subdivisions,
subject to a plebiscite as set forth in Section 10
hereof.
The component cities and municipalities:
2) Highly
Urbanized
Cities
Independent Component Cities
and
3) Autonomous Regions
Sec. 15. There shall be created autonomous
regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing
common and distinctive historical and cultural
heritage, economic and social structures, and
other relevant characteristics
C. Authority
to
Create
Government Units
Local
LGC, Sec. 6
A local government unit may be
o created, divided, merged, abolished, or its
boundaries substantially altered
E. Plebiscite
LGC, Sec. 10
No creation, division, merger, abolition,
or substantial alteration of boundaries
of local government units shall take
effect unless there is:
Law or ordinance
Approved by a majority of the votes
cast in a plebiscite called for the
purpose in the political unit or units
directly affected.
Said plebiscite shall be conducted
by the commission on elections
(COMELEC)
Within one hundred twenty (120)
days from the date of effectivity of
the law or ordinance effecting such
action, unless said law or ordinance
fixes another date.
LGC, Sec. 7
As a general rule, the creation of a local
government unit or its conversion from one
level to another level shall be based on
verifiable indicators of viability and
projected capacity to provide services, to
wit:
1. Income. - must be sufficient, based on
acceptable standards, to provide for all
essential government facilities and
services
and
special
functions
commensurate with the size of its
population.
2. Population.
total
number
of
inhabitants
within
the
territorial
jurisdiction of the local government unit
concerned.
3. Land Area. - must be:
Contiguous
o unless it comprises two or more
islands or is separated by a LGU
independent of the others;
Properly identified by metes and
bounds with technical descriptions;
and
Sufficient to provide for such basic
services and facilities to meet the
Miranda
v.
Aguirre
(1999):
The
downgrading of Santiago City from an
ICC to a component city falls within the
meaning of creation, division, merger,
abolition, or substantial alteration of
boundaries; hence, ratification in a
plebiscite is necessary. There is material
change in the political and economic
rights of the LGUs directly affected as
well as the budget preparation, which
budget should reflect the estimates of
people therein. It is therefore but
reasonable to require the consent of the
people to be affected.
Effects of downgrading:
(a) the city mayor will be placed under
the administrative supervision of the
governor;
(b) resolutions and ordinances will have
to be reviewed by the provincial
board;
(c) taxes will have to be shared with the
province.
cadastral type
necessary.
description
is
not
Requirements
Income
Population
Province
LGC 460-461
Average annual
income,
as
certified by the
Department of
Finance, of not
less
than
P20,000,000
based on 1991
constant prices
City
RA 9009 (2001)
Average annual
income,
as
certified by the
Department
of
Finance, of at
least
P100,000,000
for the last 2
consecutive
years based on
2000
constant
prices
Municipality
LGC 441-442
Average
annual
income,
as
certified by the
provincial
treasurer, of at
least
P2,500,000.00 for
the
last
two
consecutive years
based on 1991
constant prices
Barangay
LGC 385-386
No
minimum
requirement
for
income
250,000
inhabitants
150,000
inhabitants
25,000
inhabitants
2,000 inhabitants
5,000 inhabitants,
in
cities
and
For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461
Requirements
Province
LGC 460-461
City
RA 9009 (2001)
Territory
contiguous
territory of at
least
2,000
km2
territory need
not
be
contiguous if it
comprises 2 or
more islands or
is separated by
a chartered city
or cities which
do
not
contribute
to
the income of
the province
By an Act of
Congress
contiguous
territory of at
least 100 km2
contiguous
territory of
least 50 km2
requirement on
land area shall
not apply where
the city proposed
to be created is
composed of 1 or
more
islands;
the
territory
need
not
be
contiguous if it
comprises 2 or
more islands
By an Act of
Congress
requirement
on
land area shall
not apply where
the municipality
proposed to be
created
is
composed of 1 or
more
islands;
territory need not
be contiguous if it
comprises 2 or
more islands
By an Act of
Congress
Manner of
Creation
Municipality
LGC 441-442
at
Barangay
LGC 385-386
municipalities
within
MM
and
other metropolitan
political
subdivisions or in
highly
urbanized
cities
No
minimum
requirement for area
Territory need not
be contiguous if it
comprises 2 or more
islands
By
an
Act
of
Congress,
to
enhance the delivery
of basic services in
the
indigenous
cultural
communities
Plebiscite
(in LGUs
drectly
affected)
Approval must
be by majority
of the votes
cast;
except
otherwise
provided in the
Act
of
Congress, the
plebiscite shall
be held within
120 days from
effectivity
Approval
must
be by majority of
the votes cast;
except otherwise
provided in the
Act of Congress,
the
plebiscite
shall be held
within 120 days
from effectivity
Approval must be
by majority of the
votes cast; except
otherwise
provided in the
Act of Congress,
the
plebiscite
shall
be
held
within 120 days
from effectivity
Approval must be by
majority of the votes
cast; plebiscite shall
be held within such
period of time as
may be determined
by
the
law
or
ordinance creating
said barangay.
By law or by an
ordinance of the
sangguniang
panlalawigan
or
panlungsod; In case
of the creation of
barangays by the
sangguniang
panlalawigan,
the
recommendation of
the
sangguniang
bayan
concerned
shall be necessary
II. DIVISION
ABOLITION
AND
MERGER;
B. Abolition
III.SETTLEMENT
DISPUTES
OF
BOUNDARY
(asked in 2005)
LGC, Sec. 118-119
Boundary disputewhen a portion or
the whole of the territorial area of an
LGU is claimed by two or more LGUs.
Boundary disputes
shall be referred
for settlement to:
sangguniang
panlungsod
or
sangguniang bayan
concerned.
sangguniang
panlalawigan
concerned.
jointly referred to
the sanggunians of
the
province
concerned.
jointly referred for
settlement to the
respective
sanggunians of the
parties.
B. Appeal
LGC, Sec. 119.
Within the time and manner prescribed
by the Rules of Court, any party may
elevate the decision of the sanggunian
concerned to the proper Regional Trial
Court having jurisdiction over the area
in dispute.
The Regional Trial Court shall decide the
appeal within one (1) year from the
filing thereof. Pending final resolution of
the disputed area prior to the dispute
shall be maintained and continued for
all legal purposes.
LGC, Sec. 9
A local government unit may be
abolished:
when its income, population, or land
area has been irreversibly reduced
to less than the minimum standards
prescribed for its creation under
Book III of this Code, as certified by
the national agencies mentioned in
Section 7 hereof to Congress or to
the sangguniang concerned, as the
case may be.
The law or ordinance abolishing a local
government unit shall specify the
province,
city,
municipality,
or
barangay with which the local
government unit sought to be
abolished will be incorporated or
merged.
C.
I.
POWERS IN GENERAL
A. SOURCES
B. CLASSIFICATION
C. EXECUTION OF POWERS
II. POLITICAL AND CORPORATE NATURE OF
LGUs
III. GOVERNMENTAL POWERS
A. GENERAL WELFARE
B. POWER TO GENERATE REVENUE
C. EMINENT DOMAIN
D. BASIC SERVICES AND FACILITIES
E. RECLASSIFICATION OF LANDS
F. CORPORATE POWERS
G. LOCAL LEGISLATIVE POWER
I. POWERS IN GENERAL
A. Sources of Powers of LGUs
or
Municipal Corporations
II. POLITICAL
AND
NATURE OF LGUS
CORPORATE
(LGC Sec.18)
C. Execution of Powers
municipal plaza
Establishment of
schools, post
offices, etc.
Includes
the
legislative,
judicial,
public and political
LGU cannot be held
liable except:
o If statute provides
otherwise
Art.2189, Civil Code
Examples:
Regulations against
fire, disease
Preservation of
public peace
Maintenance of
Corporate/
Municipal
Corporate
entity
representing
inhabitants
of
its
territory
Includes those which
are
ministerial,
private and corporate
Can be held liable ex
contractu
or
ex
delicto
Examples:
Municipal
waterworks
Slaughterhouses
Markets
Stables
Political/
Governmental
Political subdivision
of
national
government
Bathing
establishments
Wharves
Fisheries
Maintenance of
parks, golf courses,
cemeteries, airports
III.GOVERNMENTAL POWERS
A. General Welfare
(LGC Sec.16)
This includes: Police Power, Abatement of
Nuisance and Closure of Roads)
1. Police Power
2. Abatement of Nuisance
LGC sec.447 and 458
Sangguniang Bayan and Sangguniang
Panlungsod have:
Power to regulate activities relative to
the use of land, buildings and
structures within their jurisdiction
To promote the general welfare and
For said purpose declare, prevent or
abate any nuisance
Estate
of
Francisco
v
CA
(1991):
Respondents cannot seek cover under the
General Welfare Clause authorizing the
abatement of nuisances without judicial
proceedings. That tenet applies to a
nuisance er se, or one which affects the
immediate safety of persons and property
and may be summarily abated under the
undefined law of necessity (Monteverde v
Generoso).
NOTES:
The provisions of the Code DO NOT make a
distinction between nuisance per se and
nuisance per acccidens, thus creating a
presumption that LGUs can abate all kinds
of nuisances without need of a judicial
order. However, the jurisprudence holds
that LGUs can abate extrajudicially only
nuisances per se.
3. Closure of Roads
(LGC Sec.21)
C. Eminent Domain
(LGC Sec.19)
Eminent Domain -- It is the ultimate right
of the sovereign power to appropriate not
only public but private property of citizens
within the territorial sovereignty to public
purpose [Charles River Bridge vs. Warren
Bridge, (1837)]
Requisites for a
Eminent Domain
Valid
Exercise
of
support
Municipality
Agriculture
and
fishery extension and
on-site
research
services and facilities
Health services
Same
Same
Infrastructure
facilities (e.g. plaza,
multi-purpose hall)
Information
and
reading center
Satellite
market
or
public
Road,
bridges,
communal irrigation,
artesian
wells,
drainage,
flood
control
Municipal buildings,
cultural
centers,
public parks
Information services,
tax and marketing
information systems
and public library
Public
markets,
slaughterhouses
Implementation
of
community-based
forestry projects
City
See municipality and
province
N/A
N/A
Enforcement
of
forestry laws, limited
to community-based
forestry
projects,
pollution control law,
small-scale
mining
law,
mini-
Katarungang
Pambarangay
Maintenance of roads,
bridges and water
supply systems
Province
Agricultural extension
and on-site research
services and facilities;
organization
of
farmers
and
fishermens
cooperatives
Same,
including
hospitals and tertiary
health services
Same, including rebel
returnees
and
evacuees,relief
operations population
development services
Barangay
Municipality
Province
hydroelectric projects
for local purposes
School Buildings
Public cemetery
Tourism facilities
Police, fire station, jail
Tourism development
and
promotion
programs
Same
Industrial
research
and
development
services
Low cost housing and
other mass dwellings
Investment
support
services
Inter-municipal
telecommunication
services
E. Reclassification of Lands
and
By
the President
When public interest so requires
Upon recommendation of the NEDA
May authorize a city or municipality
to reclassify lands in excess of the
limits
NOTES:
Land use conversion: the act or
process of changing the current use of a
piece of agricultural land into some
other use as approved by the DAR
Reclassification: designation of
intended use of land within the
territory. The land is not currently used
By a City or Municipality
Through an ordinance passed by
Sanggunian
After conducting public hearings
Provide manner of disposition
Land ceases to be economically
feasible
and
sound
for
agricultural
purposes
as
determined by the Department
of Agriculture
Land shall have substantially
greater economic value for
residential,
commercial,
or
industrial
purposes,
as
determined by the Sanggunian
Limited to the following percentage
of the total agricultural land area at
the time of passage of the ordinance
For
highly
urbanized
and
independent component cities:
15%
For component cities and first to
the third class of municipalities:
10%
For fourth to sixth class
municipalities: 5%
Limited by RA 6657 or the
Comprehensive Agrarian Reform
Law
Agricultural lands distributed to
agrarian reform beneficiaries
shall not be affected
Conversion into other purposes
governed by sec.56 RA6657
City
F. Corporate Powers
(LGC Sec 22)
Every LGU, as a corporation has the
following powers:
a. To have continuous succession in
its corporate name
b. To sue and be sued
c. To have and use a corporate seal
d. To acquire and convey real or
personal property
e. To enter into contracts
f. To exercise such other powers as
are granted to corporations
Limitations: as provided in LGC
and other laws
Corporate Seal
LGUs may continue using, modify,
or change their existing corporate
seals
Newly established LGUs or those
without corporate seals
May create own corporate seals
Registered with the DILG
Change of corporate seal shall be
registered with the DILG
(LGC Sec.48-59)
Exercised by (Sec.48)
Sangguniang panlalawigan for
province
Sangguniang panglungsod for
city
Sangguniang
bayan
for
municipality
Sangguniang barangay for
barangay
the
the
the
the
Presided by (Sec.49):
Vice-governor or vice-mayor or
punong barangay
he will vote
only in case of a tie (Because he is
not a member of the Sanggunian
Perez v Dela Cruz (1969))
Inability of the above: members
present and constituting a quorum
shall elect from among themselves a
temporary presiding officer
Who shall certify within 10 days
from the passage of the ordinances
enacted and resolutions adopted by
the sanggunian in the session over
which he temporarily presided
Quorum (Sec.53)
Quorum. Majority of all members of
the Sanggunian who have been
elected and qualified
Questions of quorum is raised: the
presiding officer shall immediately
proceed to call the roll of the
members and announce the results
No quorum: the presiding officer
may declare a recess until such time
as a quorum is constituted
OR a majority of the members
present may adjourn from day to
day and may compel the
immediate attendance of any
member
absent
without
justifiable cause by arresting the
absent member and present him
at the session
No business shall be transacted
Sessions (Sec.52)
Regular sessions: fixed by resolution
on
1st
day
of
the
session
immediately following the election of
its members
Minimum numbers of regular
sessions:
once
a
week
(panlalawigan,
panlungsod,
bayan) and twice a month for
the Sangguniang Barangay
Special session: may be called by
the local chief executive or by a
majority of the members of the
Sanggunian-cause: when public
interest demands
Written notice: served personally
at the members usual place of
residence at least 24 hours
before the session
Unless otherwise concurred in
by 2/3 vote of the Sangguniang
member present, there being a
quorum, no other matters ay be
Approval,
Veto
and
Review
of
Ordinances
Every ordinance shall be presented
to the governor or mayor, as the
case may be
Approves: affix his signature on
each and every page
Disapproves: veto it and return
the same with his objections to
the Sanggunian
o Override: 2/3 vote of all its
members
making
the
ordinance
effective
even
without the approval of the
local
chief
executive
concerned
o Veto communicated to the
Sangunian within 15 days in
the case of a province, and
10 days in the case of a city
or a municipality; otherwise,
the ordinance shall
be
deemed approved
Veto (Sec.55): local chief executive
may veto any ordinance on the
ground that it is ultravires or
prejudicial to the public welfare,
stating his reasons for writing
Veto an ordinance or resolution
only once
Local chief executive (except the
punong barangay) power to veto
any particular item or items
o An appropriations ordinance
o Ordinance
or
resolution
adopting a local development
plan and public investment
program
o Ordinance
directing
the
payment
of
money
or
creating liability
Within
10
days
after
its
enactment, the sangguniang
barangay shall furnish copies to
The sangguniang panglungsod
or
sangguniang
bayan
concerned for review as to
whether
the
ordinance
is
consistent with law and city or
municipal ordinances
No action for 30 days from
receipt: ordinance shall be
deemed approved
Reviewed by
Furnish
copies
ordinances
resolution within
Period
to
documents
examine
Ground to invalidate
ordinance or resolution
Sangguniang panglungsod or
sangguniang bayan
10 days after enactment of
ALL ordinances
Ordinance is inconsistent
with
law
and
city
or
municipal ordinances
In
such
case,
the
sangguniang baranagay may
adjust, amend or modify the
ordinance within 30 days
from
receipt
from
the
sangguniang panglungsod or
sangguninang bayan
of
or
Barangay Ordinances
of
Law-Making
(Legislative)
Judicial Intervention
(Rules of Court, Rule 63, Sec.4)
Actions involving the validity of a local
government ordinance:
Prosecutor or attorney of the LGU
involved shall be notified and
entitled to be heard;
Alleged to be
unconstitutional:
Solicitor General shall also be
notified and entitled to be heard.
DEFINITION
REQUIREMENTS
PROCEDURE
EFFECTIVITY OF LOCAL PROPOSITIONS
LIMITATIONS ON INITIATIVES
LIMITATIONS UPON LOCAL LEGISLATIVE
BODIES
A. DEFINITION
NOTE:
Garcia v COMELEC (1994): Both a
resolution and an ordinance may be the
proper subjects of an initiative or a
referendum
(Based on LGC Sec. 120-127 and RA
6735: AN ACT PROVIDING FOR A
SYSTEM
OF
INITIATIVE
AND
REFERENDUM)
B. REQUIREMENTS
b. Referendum
or
initiative
on
an
ordinance passed in a municipality:
petition must be signed by at least 10%
of the registered voters in the
municipality, of which every barangay is
C. PROCEDURE
a. Not less than 1,000 registered in case of
provinces and cities, 100 in case of
municipalities, and 50 in case of
barangays, may file a petition with the
local legislative body, respectively,
proposing the adoption, enactment,
repeal, or amendment, of any law,
ordinance or resolution
b. If no favorable action thereon is made
by local legislative body within 30 days
from its presentation, the proponents
through their duly authorized and
registered representative may invoke
their power of initiative, giving notice
thereof to the local legislative body
concerned
c. 2 or more propositions may be
submitted in an initiative
d. Proponents shall have 90 days in case
of provinces and cities, 60 days in case
of municipalities, and 30 days in case of
barangays, from notice mentioned in
subsec. (b) hereof to collect the required
number of signatures
e. The petition shall be signed before the
Election Registrar, or his designated
representative, in the presence of a
representative of the proponent, and a
representative
of
the
regional
assemblies and local legislative bodies
concerned in a public place in the LGU
f. If the required number of the signatures
is obtained, the COMELEC shall then
set a date for the initiative for approval
of the proposition within 60 days from
the date of certification by the
COMELEC in case of provinces and
cities, 45 days in case of municipalities,
and 30 days in case of barangays
D. EFFECTIVITY
PROPOSITIONS
OF
LOCAL
E. LIMITATIONS ON INITIATIVES
a. The power of local initiative shall not be
exercised more than once a year.
b. Initiative shall extend only to subjects
or matters which are within the legal
powers of the local legislative bodies to
enact.
c. If at any time before the initiative is
held, the local legislative body shall
adopt in toto the proposition presented,
the initiative shall be cancelled.
However, those against such action
may, if they so desire, apply for
initiative in the manner herein provided.
F. LIMITATIONS
UPON
LEGISLATIVE BODIES
LOCAL
Any
local
legislative body may submit to the
registered voters of autonomous region,
provinces, cities, municipalities and
barangays for the approval or rejection,
any ordinance or resolution duly
enacted or approved.
A. SPECIFIC PROVISIONS
LGUs LIABLE
MAKING
If
damage
resulted from an
act of LGU in the
performance
of
governmental
functions
If
engaged
in
proprietary
functions,
LGC, Sec. 24
LGUs and their officials are not exempt
from liability for death or injury to persons
or damage to property.
Civil Code, Art. 34
When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger
to life or property, such peach officer shall
be primarily liable for damages, and the city
or municipality shall be subsidiarily
responsible therefor.
Civil Code, Art. 2180, par. 6
The obligation imposed by Article 2176 is
demandable not only for ones own acts or
omissions, but also for those of persons for
whom one is responsible. X X X The State is
responsible in like manner when it acts
through a special agent; but not when the
damage has been caused by the official to
whom the task done properly pertains, in
which case what is provided in Article 2176
shall be applicable.
B. LIABILITY
FOR
TORTS,
VIOLATION OF THE LAW AND
CONTRACTS
LIABLE
Exercise of due
diligence in the
selection
and
supervision is not
a defense.
Defense of due
diligence in the
selection
and
supervision
available only if
the
function
involved
is
a
corporate
function because
this defense is
available only to
private
employers.
NOTES:
If the LGU fails to
perform
a
governmental
function
(e.g.,
maintenance
of
roads under CC
Art.
2189,
rendering aid and
protection under
CC Art. 34)
LIABLE
NOT
LIABLE
I. EXECUTIVE SUPERVISION
II. CONSULTATIONS
III. RELATIONS WITH PNP
I. EXECUTIVE SUPERVISION
A. 1987 Constitution, Art. X, Sec. 2
and 4
(supra)
B. Administrative Code
Title XII Chapter I
OF
1987,
25(a) LGC)
Autonomous regions (Sec.16,
Art. X, Constitution)
II. CONSULTATIONS
(LGC Sec. 2(c), 26, 27)
A. Declaration of Policy
o
o
B. Maintenance
Balance
of
Ecological
C. Prior Consultation
(Sec. 27, LGC)
No
project
implemented:
or
program
shall
be
agency or government-owned or
-controlled corporation
authorized or involved in the
planning and implementation of
any project or program that may
cause
- pollution
- climatic change
- depletion of non-renewable
resources
- loss of crop land, rangeland,
or forest cover
- extinction of animal or plant
species
Explain the goals and objectives
Explain its impact upon the
people and the community in
terms of
environmental or
ecological balance
Measures
that
will
be
undertaken
to
prevent
or
minimize the adverse effects
III.RELATIONS WITH
NATIONAL POLICE
PHILIPPINE
Participation
of
Local
Government
Executives in the Administration of the
PNP (RA 8551, Sec. 62065 )
LGC, Sec. 28
18
18
at least 15 years
of age but not
more than 18
years of age on
election day
(as
amended
under RA 9164)
Cipriano
v.
COMELEC
(2004):
The
COMELEC may not deny due course or
cancel
a
certificate
without
proper
proceedings. To receive and acknowledge
receipt of the certificates of candidacy is a
ministerial duty of the COMELEC. The
COMELEC does not have discretion to give
or not to give due course to the certificate.
It may not look into matters not appearing
on their face.
Minimum Age at
Election Day
21
- Governor
- Vice-governor
- Member of the
Sangguniang
Panlalawigan
- Mayor
- Vice-mayor
- Member of the
Sangguniang
Panlungsod of Highly
21
Citizenship
(Asked in 1992)
LGC Sec. 39
(Asked in 1992, 2003, 2005)
Candidate for
Urbanized Cities
- Mayor or
- Vice-mayor of
independent
component cities,
component cities, or
municipalities
- Member of the
Sangguniang
Panlungsod or
Sangguniang Bayan
- Punong barangay or
member of the
Sangguniang
Barangay
- Sangguniang
Kabataan
B. Disqualifications
(Asked in 1986, 1993, 1994, 1999,
2001)
Second-Placer Rule
(asked in 2003)
Labo v. COMELEC (1992):
The ineligibility of a candidate receiving
the majority of votes does not entitle
the eligible candidate receiving the
LGC, Sec. 40
The following persons are disqualified
from running for any elective local
position:
Sentenced by final judgment for
Other grounds:
Vote-buying (upon determination in
a
summary
administrative
proceeding) [Nolasco v. COMELEC
(1997)]
Removal
by
administrative
proceedings:
(perpetual
disqualification
[Lingating
v.
COMELEC (2002)])
Removal of a candidate prior to
LGC cannot be used as a ground
for disqualification [Grego v.
COMELEC (1997)]
Should be a final determination
[Lingating v. COMELEC (2002)]
Subsequent re-election cannot be
deemed a condonation if there was
already a final determination of his
guilt before the re-election [Reyes v.
COMELEC (1996)]
When re-election considered a
condonation: if the proceedings are
abated due to elections. In this case,
there is no final determination of
misconduct [Malinao v. Reyes
(1996)]
Effect of probation:
Probation has no effect to
applicability of Sec. 40(a) as it only
suspends the execution of the
sentence [dela Torre v COMELEC
(1996)]
Moral Turpitude:
Fencing (Dela Torre v. COMELEC
[1996])
Direct bribery (Magno v. COMELEC
[2002])
Dual Citizenship:
Not an automatic disqualification;
filing of certificate of candidacy is
sufficient
to
renounce
foreign
citizenship (declaration under oath
of maintenance of true faith and
allegiance to the Constitution of the
Philippines) [Valles v. COMELEC
(2000)]
C. Manner of Election
Regular Members of
Sangguniang
Panlalawigan,
Sangguniang
Panlungsod
and
Sangguniang Bayan
Elected at large by
qualified voters in
respective units
Elected
by
registered voters of
the katipunan ng
kabataan
Elected by district:
1st and 2nd-class
provinces= 10
regular members
D. Term of Office
(Asked in 1995, 2001, 2005, 2006,
2008)
All elective local officials, except
barangay officials (Sec. 8, Art. X,
Constitution; Sec. 43 LGC)
Term of office: 3 years from noon of
June 30, 1992 or the date provided
by law
Existing
sub-provinces
converted
into regular provinces (Sec. 462 LGC)
New legislative districts continue to
be represented in Congress by the
duly-elected representatives of the
original districts out of which the
new provinces or districts were
created
until
their
own
representatives are elected in the
next regular congressional elections
and qualified
Sangguniang
Barangay Members
Provided:
If
province
has
more
than
5
districts,
each
district shall have
2
sangguniang
panlalawigan
members.
Elected at large
Governor
Vice-governor
Members of the sangguniang
panlalawigan
who shall hold office until
their successors are elected in
the next regular local elections
and qualified.
Sec. 14
An elective official running for any office
other than the one which he is holding
in a permanent capacity, is no longer
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy.
E. Rules on Succession
Votes
obtained
by
the
winning
candidate
-------------------------------------------Total number of registered voters in
each district
Office where
Permanent
Vacancy
Occurs
Governor
Mayor
Office
of
the
governor
or
[and]
vicegovernor, mayor
or [and] vicemayor
the
Vice-governor
Vice-mayor
Highest
ranking
sanggunian member;
In
case
of
his
permanent inability,
the
2nd
highest
ranking sanggunian
member;
Subsequent
vacancies are filled
automatically by the
other
sanggunian
members according
to their ranking.
Highest
ranking
sanggunian barangay
member;
In
case
of
his
permanent inability,
the
2nd
highest
ranking sanggunian
member.
2. Permanent
sanggunian.
vacancies
in
the
Office where
Permanent
Vacancy Occurs
Member
of
Sanggunian
Panlalawigan
or
Sangguniang
Panlungsod of highly
urbanized cities and
independent
component cities
Member
of
Sangguniang
Panlungsod
of
component
cities
and
the
Sangguniang Bayan
Member
of
the
Sangguniang
Barangay
Representation
of
the youth and the
barangay
in
the
sanggunian
Person appointed by
the governor
Person appointed by
the mayor, upon
recommendation of
the
Sangguniang
Barangay concerned
Official next in rank
of the organization
concerned
Office
of
Punong
Barangay
Who Temporarily
Succeeds into Office
Vice-governor
(automatically)
Vice-mayor (automatically)
Highest
ranking
sanggunian
member
(automatically)
1) Person designated in
writing by the said
local chief executive
Authorization shall
specify the powers
and functions that
the designate will
exercise, except the
power to appoint,
suspend, or dismiss
employees
2) Vice-governor, vicemayor or highest
Sangguniang Barangay
member, if the local
chief executive fails or
refuses to designate
In this case,
assumption into
office shall be on
the 4th day of
absence of the local
chief executive
(automatically)
4. Termination
Incapacity:
of
the
for sangguniang
barangay
members
The
local
executive
chief
punong
Expenses:
The
Annual
General
Appropriations Act contains a provision
for a contingency fund at the disposal of
the COMELEC. [S75, LGC]
The
barangay
The governor
The Vice-governor or
city/municipal vicemayor
The city/municipal
mayor
F. Recall
Temporary
LOCAL OFFICIAL
for governors;
mayors of
(i) highly
urbanized
cities or
(ii) independent
component
cities
for vice-governors;
for city/municipal
vice-mayors
for city/municipal
mayors of
component
cities/municipaliti
es
for the sanggunian
panlalawigan,
panlungsod and
pambayan
members;
its employees
for punong
barangays
COMELEC
candidates
announces
acceptance
of
G. Discipline
1. Administrative Action
DILG
Secretary
o may constitute an Investigating
Committee in the DILG for the
conduct of investigation
How Initiated
by any private individual or any
government officer or employee by
filing a sworn written complaint
(verified)
by the Office of the President or any
government agency duly authorized
by law to ensure that LGUs act
within their prescribed powers and
functions
Elective
Official
against
whom
Administrative
Complaint is Filed
Provincial or city
official
Municipal official
Barangay official
Where
to
Complaint
File
Office
of
the
President
Sangguniang
Panlalawigan
Sangguniang
Panlungsod
or
Sangguniang Bayan
Who may
impose:
President,
through
the
DILG
Secretary
Provincial
Governor
Mayor
Period:
Any
single
preventive
suspension of local elective officials
shall not extend beyond 60 days;
Ganzon
v.
CA
(1991):
Piecemeal
suspensions should not be issued. If there
are several administrative cases against a
public official, these cases should be
consolidated for the purpose of ordering
preventive suspension, instead of issuing
an order of suspension for each case.
Elective local officials should be given the
benefit
of
simultaneous
service
of
suspension.
NOTE: The ruling in this case as to
simultaneous service of suspension is more
of an exception than the rule, because of
the following circumstances:
o Three separate orders of 60-day
preventive suspension were issued
against Ganzon
o Another order of preventive suspension
was issued before the SC promulgated
the decision ruling that suspension
should not be issued piecemeal
o The simultaneous service of suspension
will lessen the harsh effects of whatever
2. Penalties
a. Suspension
b. Removal
3. Power of Tribunals
The Ombudsman
(Asked in 1999, 2003)
Hagad
v.
Gozo-Dadole
(1993):
The
Ombudsman and the Office of the President
have concurrent jurisdiction to conduct
administrative investigations over local
elective officials. The LGC did not withdraw
the power of the Ombudsman under RA
6770.
Preventive
Suspension under
RA 6770
Requirements:
Maximum period:
60 days
sufficient that
possibility.
there
exists
such
The Courts
RA 3019
Sandiganbayan
PD 1606, as amended by RA 8249
law
the
fact
not
1. the evidence of
guilt is strong;
AND
2. that any of the
following
circumstances
are present:
o the charge
against the
officer or
employee
should involve
dishonesty,
oppression or
grave
misconduct or
neglect in the
performance of
duty;
o the charges
should warrant
removal from
office; or
o the
respondents
continued stay
in office would
prejudice the
case filed
against him
Maximum period:
6 months
Preventive
Suspension under
the LGC
Requirements:
there is
reasonable
ground to believe
that the
respondent has
committed the act
or acts
complained of
the evidence of
culpability is
strong
the gravity of the
offense so
warrants; or
the continuance
in office of the
respondent could
influence the
witnesses or pose
a threat to the
safety and
integrity of the
records and other
evidence
4. Administrative Appeals
Sec. 67
Sangguniang
Panglungsod of
component cities
Sangguniang Bayan
Sangguniang
Panlalawigan
Sangguniang
Panglungsod of:
highly
urbanized cities
independent
component
cities
Office
of
the
President
May be appealed
before:
Sangguniang
Panlalawigan
5. Effect of Re-election
Aguinaldo v. Santos (1992): Re-election
renders the administrative complaint
against the local official moot and
academic. A public official cannot be
removed for administrative misconduct
committed during a prior term, since the
re-election to office operates as a
condonation of the officers previous
misconduct to the extent of cutting off the
right to remove him therefore. But this rule
is applicable only to administrative cases,
not to criminal cases. (Asked in 2000)
B. Discipline
Essential elements
of abandonment:
1. Intent to
abandon
2. Overt act by
which the
intention is to be
carried into
effect
n.
o.
p.
q.
r.
s.
III.PROVISIONS
APPLICABLE
TO
ELECTIVE
AND
APPOINTIVE
OFFICIALS
A. Prohibited Interests
All
and
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
LGC Sec. 89
C. Removal
D. Officials
Common
to
Municipalities,
Cities
Provinces
Elements
of
prohibited interest
member
concerned
is
defending the interest of the
government.
Public Officer
He has direct or
indirect financial or
pecuniary interest in
any
business,
contract, transaction
He
is
prohibited
from having such
interest
by
the
Const. or law
B. Practice of Profession
LGC, Sec. 90
All
governors
and
mayors
are
prohibited from:
o practicing their profession
o engaging in any occupation other
than the exercise of their functions
as local chief executives.
Private Counsel/Lawyers
Local Officials
for
Elective
Primary
duty:
to
initiate
a
comprehensive
multisectoral
development plan for the LGU which is
submitted to the sanggunian for
approval an assist the corresponding
sanggunian in setting the direction of
economic and social development, and
coordinating development efforts within
its territorial jurisdiction.
Formulate
and
recommend
such
measures to improve or enhance peace
and order and public safety
Monitor the implementation
Make periodic assessments of the
prevailing peace and order situation
A. THE BARANGAY
1. KATARUNGANG PAMBARANGAY
2. SANGGUNIANG KABATAAN
B. THE MUNICIPALITY
C. THE CITY
D. THE PROVINCE
A. THE BARANGAY
LGC Sec. 384-439
People v. Recto (2001): A barangay captain is
a person in authority and an attack on him
would amount to direct assault. On the other
hand, an attack on a barangay chief tanod
who was a mere bystander (not in the
performance of his duties) at the time the crime
was committed, is not direct assault as he is
merely an agent of a person in authority.
1. Katarungang Pambarangay
LGC Sec. 399-422
Uy v. Contreras (1994): The previous law on
Katarungang Pambarangay has already
been revised by the LGC and it has three
significant features:
PD 1508
No similar provision
Quick
Facts
Pambarangay
about
Katarungang
2. Sangguniang Kabataan
LGC Sec. 423-439
B. THE MUNICIPALITY
LGC Sec. 440-447
Olivarez v. Sandiganbayan (1995): The
municipal mayor has the authority to issue
permits and licenses for the holding of
activities for any charitable or welfare
purpose [LGC444(b)(3)].
Local Government
Code
Authority over criminal
offenses
limited
to
those punishable by
imprisonment
not
exceeding 1 year or a
fine
not
exceeding
P5,000
Disputes arising from
the workplace where
the contending parties
are employed or at the
institution where such
parties are enrolled for
study, shall be brought
in the brgy where such
workplace
or
institution is located
Prescriptive periods of
offenses
suspended
during the pendency of
the
mediation,
conciliation
or
arbitration process
C. THE CITY
LGC Sec. 448-458
Quick Facts about the City
May be created, divided, merged, abolished only
by Congress subject to the approval by a
majority of he votes cast in a plebiscite in the
LGU directly affected.
License/permit to do
business
Granted by the local
authorities
Authorizes the person
to engage in business
or
some
form
of
commercial activity
License to engage in
a profession
Board or Commission
tasked to regulate the
particular profession
Authorizes a natural
person to engage in
the practice or exercise
of his or her profession
D. THE PROVINCE
LGC Sec. 459-469
Quick Facts about the Province
May be created, divided, merged, abolished only
by Congress subject to the approval by a
majority of he votes cast in a plebiscite in the
LGU directly affected.
A. Posting
and
Publication
of
Ordinances with Penal Sanctions
Sec. 511, LGC
General rule: Ordinances with penal
sanctions shall be:
(1) posted at prominent places in the
provincial
capitol
or
city/municipal/barangay hall for at
least 3 consecutive weeks; &
(2) published in a newspaper of general
circulation (if available) within the
territorial jurisdiction of the LGU;
Exception: Barangay ordinances.
Ordinance
provides
B. Penalties for
Ordinances
Violation
of
Tax
Exception:
otherwise.
I.
AUTONOMOUS
REGION
IN
MUSLIM
MINDANAO
II. CORDILLERA ADMINISTRATIVE REGION
III. THE
METROPOLITAN
MANILA
DEVELOPMENT AUTHORITY
Cities covered:
Caloocan
Manila
Mandaluyong
Makati
Pasay
Pasig
Quezon, and
Muntinlupa
Municipalities covered:
Las Pias
Malabon
Marikina
Navotas
Paraaque
Pateros
San Juan
Tagig
Valenzuela
II. CORDILLERA
REGION
ADMINISTRATIVE
Services which
have
metro-wide
impact
and
transcend local political boundaries
or
entail huge expenditures such that
it would not be viable for said
services to be provided by the
individual LGUs comprising MM
including:
1. Development
planning,
investments programming, and
coordination and monitoring of
plan, program and project
implementation
2. Transport
and
traffic
management, provision for the
mass transport system and the
institution of a system to
regulate road users, traffic
engineering services and traffic
education programs, including
the institution of a single
ticketing system in MM
3. Solid
waste
disposal
and
management
4. Flood control and sewerage
management
5. Urban renewal, zoning, and land
use
planning,
and
shelter
services
6. Health and sanitation, urban
protection and pollution control
7. Public safety which include:
the
formulation
and
implementation of programs
and policies to achieve public
safety,
especially
preparedness for preventive
or rescue operations during
times of calamities and
disasters,
coordination
and
mobilization of resources and
the
implementation
of
contingency plans for the
rehabilitation
and
relief
operations in coordination
with
national
agencies
concerned.
Table of Contents
A. Definitions
B. Power to Prescribe Qualifications
C. Time of Possession of
Qualifications
D. Presumption of Eligibility
E. Qualifications USUALLY
Prescribed
F. Religious Test/Qualification
Required
G. Disqualifications to Hold Public
213
214
214
214
214
215
215
215
215
215
216
216
216
217
217
217
217
218
222
225
225
225
225
225
225
225
226
226
227
227
227
227
228
228
228
228
229
229
229
229
218
219
219
219
219
LAW ON PUBLIC OFFICERS
Office
212
212
212
212
212
213
220
220
220
221
221
221
222
ACADEMICS COMMITTEE
Samantha Poblacion
DIRECTOR FOR ACADEMICS
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
DEPUTY HEAD
-------Kae Guerrero
LEAD WRITER
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
-------Leo Zulueta
Michelle Maniwang
Law on
Public Officers
Chapter I. Public Office
and Officers
A. PUBLIC OFFICE
1. Definition
2. Purpose
3. Nature
Philippine Constitution
Art. XI
Sec. 1. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
A. PUBLIC OFFICE
1. DEFINITION
2. PURPOSE
3. NATURE
4. ELEMENTS
5. PUBLIC
OFFICE
V.
PUBLIC
EMPLOYMENT
6. PUBLIC OFFICE V. PUBLIC CONTRACT
7. NO VESTED RIGHT TO PUBLIC OFFICE
8. PUBLIC OFFICE V. PROPERTY
9. CREATION OF PUBLIC OFFICE
10. METHODS OF ORGANIZING PUBLIC
OFFICE
11. MODIFICATION AND ABOLITION OF
PUBLIC OFFICE
12. ESTOPPEL IN DENYING EXISTENCE OF
OFFICE
B. PUBLIC OFFICER
1. DEFINITION
2. A PERSON CANNOT BE COMPELLED
TO
ACCEPT
PUBLIC
OFFICE;
EXCEPTIONS
3. PUBLIC
OFFICERS
POWER
IS
DELEGATED, NOT PRESUMED
C. CLASSIFICATION OF PUBLIC OFFICES
AND PUBLIC OFFICERS
D. DE FACTO OFFICERS
1. DE FACTO DOCTRINE
2. DEFINITION OF DE FACTO OFFICER
A. DE FACTO V. DE JURE
B. OFFICER DE FACTO V. INTRUDER
3. ELEMENTS
OF
DE
FACTO
OFFICERSHIP
4. OFFICE
CREATED
UNDER
AN
UNCONSTITUTIONAL STATUTE
5. LEGAL EFFECT OF ACTS OF DE FACTO
OFFICERS
6. LIABILITIES OF DE FACTO OFFICERS
7. RIGHT TO COMPENSATION OF DE
FACTO OFFICER
WRITER
4. Elements
i.
5. Public
Office
Employment
Public
v.
Subject
Matter
Scope
Where
duties
are
defined
Public Office
Incident
of
sovereignty.
Sovereignty
is
omnipresent.
To carry out the
sovereign as well
as governmental
functions
affecting
even
persons
not
bound
by
the
contract.
A public office
embraces the idea
of
tenure,
duration,
continuity,
and
the
duties
connected
therewith
are
generally
continuing
and
permanent.
Duties that are
generally
continuing
and
permanent.
The law
Public Contract
Originates from
will
of
contracting
parties.
Obligations
imposed
only
upon
the
persons
who
entered into the
contract.
Limited duration
and specific in its
object. Its terms
define and limit
the rights and
obligations of the
parties,
and
neither
may
depart therefrom
without
the
consent of the
other.
Duties are very
specific to the
contract.
Contract
Exceptions:
In quo warranto proceedings
relating to the question as to which
of 2 persons is entitled to a public
office
In an action for recovery of
compensation accruing by virtue of
the public office
Board
System
Composition
one
head
assisted
by
subordinates
collegial body for
formulating
polices
and
implementing
programs
Efficiency
Swifter
decision
and action
but
may
sometimes
be
hastily made
Mature
studies
and deliberations
but may be slow
in responding to
issues
and
problems
EXCEPTIONS:
Where the Constitution prohibits
such modification / abolition;
Where the Constitution gives the
people the power to modify or
abolish the office [i.e. Recall]
Ocampo v. Sec. of Justice (1955):
Abolishing an office also abolishes
unexpired term. The legislatures
abolition of an office (i.e. court) also
abolishes the unexpired term. The
legislative power to create a court
carries with it the power to abolish
it.
Is
Abandonment
equivalent
to
Abolition?
When a public official
voluntarily accepts an appointment to
an office newly created by law -- which
new office is incompatible with the
B. PUBLIC OFFICER
1. Definition
An AGENT of a person in
authority is charged with the
maintenance of public order and
the protection and security of life
and property.
o They become such either by
direct provision of law, by
election or by a competent
authoritys appointment.
o Examples are barrio captain,
barrio councilman, barrio
policeman, barangay leader,
and any person who comes
to the aid of persons in
authority.
Temporary
functions.
performer
of
public
EXCEPTIONS:
When citizens are required, under
conditions provided by law, to
render personal military or civil
service (see Sec. 4, Art. II, 1987
Const.);
When a person who, having been
elected by popular election to a
public office, refuses without legal
motive to be sworn in or to
discharge the duties of said office.
This is a felony.
3. Public
Officers
Power
Delegated (not Presumed)
is
C. CLASSIFICATION
OF
PUBLIC
OFFICES AND PUBLIC OFFICERS
Creation
Public Body Served
Department of government
to which their functions
pertain
Nature of functions
Exercise of Judgment or
Discretion
Legality of Title to office
Compensation
Constitutional
Statutory
National
Local
Legislative
Executive
Judicial
Civil
Military
Quasi-judicial
Ministerial
De Jure
De Facto
Lucrative
Honorary
D. DE FACTO OFFICERS
1. De Facto Doctrine
He must have:
acted as an officer for such length of
time,
under color of title and under such
circumstances of reputation or
acquiescence by the public and
public authorities,
as to afford a presumption of
election or appointment, and
induce people, without inquiry, and
relying on the supposition that he is
the officer he assumes to be, to
submit to or invoke his action.
De Facto
De jure office;
Basis
Authority
of
He
actually
and
physically
possessed the office in good faith.
Reputation: He possesses office and
performs its duties under color of
right, but he is not technically
qualified to act in all points of law
De Jure
A de jure office exists;
How ousted
Validity
official acts
Cannot be ousted.
of
Rule
on
Compensation
In
a
direct
proceeding
(quo
warranto);
( collaterally)
Valid as to the public until his title
to the office is adjudged insufficient.
Conditionally entitled to receive
compensation: only when no de jure
officer is declared;
He is paid only for actual services
rendered.
Rule
on
compensation
De Facto
He becomes officer under any of the
4 circumstances discussed under
Part II (above).
Color of right or title to office
Valid as to the public until his title
to the office is adjudged insufficient
3. Elements
of
Officership
De
Facto
before
declaration
unconstitutionality
of
Intruder
He possesses office and performs
official acts without actual or
apparent authority.
None. Neither lawful title nor color of
right to office.
Absolutely void; His acts can be
impeached at any time in any
proceeding (unless and until he
continues to act for a long time,
creating a presumption of his right
to act) (De Leon, 119)
Not entitled to compensation at all.
4. Office
created
under
unconstitutional statute
an
7. Right to Compensation
Facto Officer
De
EXCEPTIONS
Where there is no de jure public officer,
the officer de facto who in good faith
has had possession of the office and
has discharged the duties pertaining
thereto is legally entitled to the
emoluments of the office. (Monroy v.
CA [1967])
In Civil Liberties Union v. Executive
Secretary (1991), even as EO No. 284
was declared unconstitutional because
it allowed Cabinet members to hold
multiple offices in direct contravention
of the Constitution, it was held that
during their tenure in the questioned
positions, the respondents may be
considered de facto officers and as
such entitled to the emoluments of the
office/s for actual service rendered.
A de facto officer, not having good title,
takes the salaries at his risk and must
account to the de jure officer (when
there is one) for whatever salary he
received during the period of his
wrongful tenure, even if he occupied
the office in good faith.
BUT when the de jure officer
assumed another position under
protest, for which she received
compensation:
while
her
assumption to the said position and
her acceptance of the corresponding
emoluments do not constitute
abandonment of her rightful office,
she cannot recover full back
wages for such. She is only entitled
to back pay differentials between
the salary rates for the lower
position she assumed and the
position she is rightfully entitled to.
Gen. Manager,
Philippine Ports
Authority v. Monserate (2002)
of
A. DEFINITION
Eligibility: endowment / requirement /
accomplishment that fits one for a
public office.
B. POWER
TO
QUALIFICATIONS
PRESCRIBE
C. TIME
OF
POSSESSION
QUALIFICATIONS
OF
D. ELIGIBILITY IS PRESUMED
E. QUALIFICATIONS
BY CONSTITUTION
PRESCRIBED
1. For President
(Sec. 2, Art. VI, Constitution) and
Vice President (Sec. 3, Art. VII,
Constitution)
Natural-born citizen
40 years old on election day
Philippine resident for at least 10
years immediately preceding election
day
2. For Senator
(Sec. 3, Art. VI, Constitution)
Natural-born citizen
35 years old on election day
able to read and write
registered voter
resident of the Philippines for not
less than two years immediately
preceding election day
3. For Congressmen
(Sec. 6, Art. VI, Constitution)
Natural-born citizen
25 years old on election day
able to read and write
registered voter in district in which
he shall be elected
resident thereof for not less than
one year immediately preceding
election day
4. Supreme Court Justice
Natural born citizen
at least 40 years old
15 years or more a judge or engaged
in law practice
of proven competence, integrity,
probity and independence (C.I.P.I.)
5. Civil Service Commissioners
(Sec. 1 [1], Art. IXB. Constitution)
Natural-born citizen
35 years old at time of appointment
proven
capacity
for
public
administration
not a candidate for any elective
position in election immediately
preceding appointment
6. COMELEC Commissioners
(Sec. 1[1], Art. IXC)
Natural-born citizen
35 years old at time of appointment
7. COA Commissioners
Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing
experience or
Bar member engaged in practice of
law for at least 10 years
Not candidates for any elective
position in election immediately
preceding appointment.
Residency
defined.
Aquino
v.
COMELEC (1995): In election law,
residence refers to domicile, i.e. the
place where a party actually or
constructively has his permanent home,
where he intends to return. To
successfully effect a change of domicile,
the candidate must prove an actual
removal or an actual change of domicile.
Philippine Constitution
Art. III
Sec. 5. No religious test shall be required for
the exercise of civil or political rights.
G. DISQUALIFICATIONS
PUBLIC OFFICE
TO
HOLD
General
Constitutional
Disqualifications
1. Losing candidates can not be
appointed to any governmental
office within one year after such
election. (Art. IX-B Sec. 6)
2. Elective officials during their tenure
are ineligible for appointment or
designation in ANY capacity to ANY
public office or position (Art. IX-B
Sec. 7(1))
3. Appointive officials shall not hold
any other governmental position.
Unless otherwise allowed by law
or
his
positions
primary
functions (Art. IX-B Sec 7 (2))
8. Specific
Constitutional
Disqualifications
Public Officer
The President, Vice
President,
the
Members
of
the
Cabinet
and
their
deputies or assistants
Senator or Member of
the
House
of
Representatives
Disqualifications
shall not hold any other
office or employment
during their tenure,
UNLESS
otherwise
provided
in
the
Constitution, (Art. VII,
Sec. 13)
may not hold during his
term) any other office or
employment
in
the
Government, or any
subdivision, agency or
instrumentality thereof,
including government owned or -controlled
corporations or their
F. RELIGIOUS TEST OR
QUALIFICATION IS NOT
REQUIRED
subsidiaries
effect: or else he forfeits
his seat
Members
of
the
Supreme Court and
other
courts
established by law
Members
of
Constitutional
Commission
the
Members
of
Constitutional
Commissions,
the
Ombudsman and his
Deputies
The
Presidents
spouse and relatives
by consanguinity or
affinity within the
fourth civil degree
shall
also
not
be
appointed to any office
when such was created
or its emoluments were
increased during his
term. (Art. VI, Sec 13)
shall not be designated
to
any
agency
performing
quasijudicial
or
administrative
functions. (Art. VIII,
Sec. 12)
shall not hold any other
office or employment
[during their tenure].
(Art. IX-A, Sec. 2)
(Art. XI, Sec. 8)
must not have been
candidates
for
any
elective position in the
elections
immediately
preceding
their
appointment (Art IX-B,
Sec. 1; Art. IX-C, Sec.
1; Art. IX-D, Sec. 1; Art
XI, Sec. 8)
are appointed to 7-year
term,
without
reappointment
(Sec.
1(2) of Arts. IX-B, C, D;
Art. XI, Sec. 11)
shall not be appointed
during
Presidents
tenure as Members of
the
Constitutional
Commissions, or the
Office
of
the
Ombudsman,
or
as
Secretaries,
Undersecretaries,
chairmen or heads of
bureaus
or
offices,
including governmentowned-or
-controlled
corporations. (Art. VIII,
Sec. 13)
3. Impeachment
4. Removal or suspension from office:
not
presumed non-imposable
Other Disqualifications
1. Mental or physical incapacity
2. Misconduct
or
crime:
persons
convicted of crimes involving moral
turpitude are USUALLY disqualified
from holding public office.
Public
officers
voluntary
renunciation of office for any
length of time an interruption
in the continuity of his service
for the full term for which he
was elected.
D.
E.
F.
G.
H.
I.
Security
of
tenure?
Is prior/1st
office
abandoned
when
Election
Appointment
Others:
i. Succession by operation of law;
ii. Direct provision of law, e.g. ex-officio
officers
Extent
Powers
of
Limited
Appointment
Appointing
authority
selects
an
individual who
will occupy a
certain public
office
Comprehensive
3. Classification of Appointments
Permanent:
the permanent appointee:
must be qualified
must be eligible
Page 225 of 313
1. Definition
Designation
Imposition of
additional
duties
upon
existing office
a
2nd
appointive
position
is
assumed?
Usually YES
C. APPOINTMENT
Definition
a
2nd
designated
position
is
assumed?
NO
B. ELECTION
Yes.
A. MODES
OF
COMMENCING
OFFICIAL RELATION
1.
2.
3.
No.
is constitutionally guaranteed
security of tenure
(Duration) until lawful termination.
Note: Conditional appointments are
not permanent.
Temporary:
an acting appointment;
the temporary appointee NEED NOT
be qualified or eligible;
(No Security of Tenure) revocable at
will: just cause or valid investigation
UNNECESSARY;
Marohombsar v. Alonto (1991):
an acting appointment is a
temporary
appointment
and
revocable in character.
A temporary appointee is like a
designated officer they:
o occupy a position in an
acting capacity and
o Sevilla v. CA (1992): do not
enjoy security of tenure.
Even a Career Service Officer
unqualified for the position is
deemed temporarily-appointed.
Thus he does not enjoy security
of tenure he is terminable at
will.
Romualdez III v. CSC (1991): A
public officer who later accepts a
temporary
appointment
terminates his relationship with
his former office.
EXCEPT Fixed-Period Temporary
Appointments: may be revoked
ONLY at the periods expiration.
Revocation
before expiration
must be for a valid cause.
(Duration)
until
a
permanent
appointment is issued.
on
Appointments
5. Presidential Appointees
4. Commission
confirms.
It
enumerates
the
minimum
requirements for a class of positions in
terms of education, training and
experience, civil service eligibility,
physical fitness, and other qualities
required for successful performance.
(Sec. 22, Book V, Administrative Code)
The Departments and Agencies are
responsible
for
continuously
establishing,
administering
and
maintaining the qualification standards
as an incentive to career advancement.
(Sec. 7, Rule IV, Omnibus Rules)
Such establishment, administration,
and maintenance shall be assisted and
approved by the CSC and shall be in
consultation with the Wage and Position
Classification Office (ibid)
It shall be established for all positions
in the 1st and 2nd levels (Sec. 1, Rule
IV, Omnibus Rules)
GENERAL
RULE:
Political
qualifications are NOT Required for
public office.
EXCEPTIONS:
Membership
in
the
electoral
tribunals of either the House of
Representatives or Senate (Art. VI,
Sec. 17, 1987 Const.);
Party-list representation;
Commission on Appointments;
Vacancies in the Sanggunian (Sec.
45, Local Government Code)
3. No Property Qualifications
4. Citizenship
Inclusive
Power.
The
appointing
authority
holds
the
power
and
prerogative to fulfill a vacant position in
the civil service.
5. Effect
of
Removal
of
Qualifications During the Term
E. DISCRETION
OFFICIAL
APPOINTING
Presumed.
Reyes v. Abeleda (1968): Administrators
of
public
officers,
primarily
the
department heads should be entrusted
with plenary, or at least sufficient,
discretion. Their position most favorably
determines who can best fulfill the
functions of a vacated office. There
should always be full recognition of the
wide scope of a discretionary authority,
UNLESS the law speaks in the most
mandatory
and
peremptory
tone,
considering all the circumstances.
Discretionary Act.
Lapinid v. CSC (1991): Appointment is
an essentially discretionary power. It
must be performed by the officer in
whom it is vested, the only condition
being that the appointee should possess
the qualifications required by law.
OF
F. EFFECTIVITY OF APPOINTMENT
Immediately
upon
appointing
authoritys issuance. (Rule V, Sec. 10,
Omnibus Rules).
GENERAL RULE:
An appointment, once made, is
irrevocable
and
not
subject
to
reconsideration.
It vests a legal right. It cannot be
taken away EXCEPT for cause, and
with previous notice and hearing
(due process).
It may be issued and deemed
complete
before
acquiring
the
needed assent, confirmation, or
approval of some other officer or
body.
EXCEPTIONS:
Appointment is an absolute nullity
[Mitra v. Subido (1967)];
Appointee commits fraud [Mitra v.
Subido, supra];
Midnight appointments
General Rule: A President or
Acting
President
shall
not
appoint 2 months immediately
before the next presidential
elections until his term ends.
(Art. VII, Sec. 15, 1987 Const.)
Exception:
Temporary
appointments
to
executive
positions
when
continued
vacancies will prejudice public
service or will endanger public
safety.
Qualification standards
Recall. Includes the authority to recall
an appointment which has been initially
approved when it is shown that the
same was issued in disregard of
pertinent
CSC
laws,
rules
and
regulations.
SCOPE:
Embraces
all
branches,
subdivisions,
instrumentalities
and
agencies of the Government, including
GOCCs with original charters (Art. IX-B
Sec. 2(1), Constitution)
Classes of Service
1. Career Service Entrance based on
merit and fitness determined by
competitive examinations, or based
on highly technical qualifications,
opportunity for advancement to
higher career positions and security
of tenure.
2. Non-career Service Entrance on
bases other than those of the usual
tests. Tenure limited to a period
specified by law or which is
coterminous with the appointing
authority or the duration of a
particular project. (i.e. elective
officials, Department Heads and
Members of Cabinet)
Exclusive Jurisdiction
Disciplinary cases
Cases involving personnel action
affecting the Civil Service employees
Appointment
through
certification
Promotion
Transfer
Reinstatement
Reemployment
Detail, reassignment
Demotion
Separation
Employment status
Requisites:
Appoint only according to merit and
fitness, to be determined as far as
practicable.
Require a competitive examination.
Exceptions: (Positions where
Appointees are exempt from
Competitive
Examination
Requirements)
o Policy determining - in which
the
officer
lays
down
principal or fundamental
guidelines
or
rules;
or
formulates a method of
action for government or any
of its subsidiaries
o Primarily
Confidential
Table of Contents
ELECTION LAW
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ELECTION LAW
CHAPTER I. GENERAL
PRINCIPLES
A. Theory of Popular Sovereignty
B. Suffrage
1. Definition
2. Object
3. Scope
a. Election
b. Plebiscite
c. Referendum
d. Initiative
e. Recall
4. Substantive Requirements for
Exercise of Right to Suffrage
a. Citizenship
b. Age
c. Residency
d. Absence of
Disqualifications
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ELECTION LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
ACADEMICS COMMITTEE
Samantha Poblacion
HEAD
DEPUTY HEAD
ELECTION LAW
-------Kae Guerrero
Arianne Reyes
LEAD WRITER
-------Leo Zulueta
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
Election Law
Chapter I. General Principles
A. THEORY OF POPULAR SOVEREIGNTY
B. SUFFRAGE
1. DEFINITION
2. OBJECT
3. SCOPE
a. ELECTION
b. PLEBISCITE
c. REFERENDUM
d. INITIATIVE
e. RECALL
4. SUBSTANTIVE REQUIREMENTS FOR
EXERCISE OF RIGHT TO SUFFRAGE
a. CITIZENSHIP
b. AGE
c. RESIDENCY
d. ABSENCE OF DISQUALIFICATIONS
A. THEORY
OF
SOVEREIGNTY
POPULAR
B. SUFFRAGE
1. Definition
The right to vote
in the election of officers chosen by the
people and
in determination of questions submitted
to the people (Nachura).
2. Object
Continuity
of
government
and
the
preservation and perpetuation of benefits.
3. Scope
a. Election: the means by which the people
choose their officials for definite periods
and to whom they entrust, for the time
being as their representatives, the
exercise of powers of government.
b. Plebiscite:
the
submission
of
constitutional amendments or important
legislative measures to the people for
ratification.
c. Referendum: the power of the electorate
to approve or reject legislation
through an election called for the
purpose. (Sec. 2c, R.A. 6735) It may be
of 2 classes:
Referendum on statutes: petition to
approve or reject an act/law/part
thereof passed by Congress;
Referendum on local law: petition to
approve or reject a law, resolution or
ordinance enacted by regional
assemblies and local legislative
bodies
d. Initiative: the power of the people to
propose
amendments
to
the
Constitution or to propose and enact
legislation through an election called for
the purpose. (Sec. 2a, R.A. 6735)
3 systems:
1. Initiative on the Constitution:
petition proposing amendments
to the Constitution;
Note: In the case of Santiago v.
COMELEC,(1997) the SC held
that there is no sufficient
enabling law to amend the
Constitution. R.A. 6735 was
deemed sufficient for statutory
amendments
but
not
Constitutional amendments.
ELECTION LAW
POLITICAL LAW
FACULTY EDITOR
e.
4. Substantive
Exercise
Requirements
for
No
literacy,
property
or
other
substantive
requirement
shall
be
imposed on the exercise of suffrage, and
Page 236 of 313
ELECTION LAW
A. PURPOSE
To protect the sanctity of the ballot and to
ensure the free and honest express of the
popular will.
The COMELEC was created as an
independent administrative tribunal,
co-equal with the other departments
with respect to the powers vested in it,
and not under any of the branches of
Government.
To preserve the independence of the
COMELEC,
appointments
or
designations in temporary or acting
capacities are not allowed.
B. COMPOSITION
2. Quasi-Judicial Powers
a. Exclusive original jurisdiction over all
contests relating to the election,
returns and qualifications of all
elective, regional, provincial and city
officials.
b. Exclusive appellate jurisdiction over all
contests involving municipal officials
decided by the RTC, or involving
elective barangay officials decided by
the MTC.
In these cases, the
decisions therein shall be final,
executory and unappealable. (Art. IXC, Sec. 2 (2), Const.)
ELECTION LAW
A. PURPOSE
B. COMPOSITION AND QUALIFICATIONS
C. POWERS AND FUNCTIONS
1. ENFORCEMENT AND ADMINISTRATION
OF
ELECTION
LAWS
AND
REGULATIONS
2. QUASI-JUDICIAL POWERS
3. DECIDE ALL QUESTIONS AFFECTING
ELECTIONS
4. POWER TO DEPUTIZE
5. REGISTER POLITICAL PARTIES
6. ACCREDIT CITIZENS' ARMS
7. INVESTIGATION AND PROSECUTION
OF
CASES
OF
VIOLATION
OF
ELECTION LAWS
8. FILING OF PETITIONS IN COURT FOR
INCLUSION
OR
EXCLUSION
OF
VOTERS
9. RECOMMENDATORY
10. SUPERVISION / REGULATION
D. RENDITION OF DECISION
1. COMPOSITION
2. TIME PERIOD AND VOTES REQUIRED
3. ANY DECISION, ORDER, OR RULING
OF EACH COMMISSION MAY BE
BROUGHT TO THE SUPREME COURT
ON CERTIORARI
3. Decide All
Elections
Questions
Affecting
9. Recommendatory
a. to Congress
Effective measures to minimize
election
spending,
including
limitation
of
places
where
b. to the President
For removal of any officer or
employee it has deputized;
For imposition of disciplinary
action for violation or disregard of,
or disobedience to its directive,
order, or decision;
For pardon, amnesty, parole,
suspension
of
sentence
for
violation of election laws, rules
and regulations.
D. RENDITION OF DECISION
1. Composition
The COMELEC may sit en banc or in 2
divisions.
General Rule: Election cases shall
be heard and decided in division.
Exceptions: Decisions that must be
rendered by the COMELEC en banc
include:
a. Decisions
on
motions
for
reconsideration (Art. IX-C, Sec.
3, Const.);
b. Petitions
for
correction
of
manifest errors in the Statement
of Votes (Sec. 5, Rule 27 of the
1993 Rules of the COMELEC);
c. Questions
pertaining
to
proceedings of the Board of
Canvassers
(Mastura
v.
COMELEC, 1998)
d. Postponement of election (Sec. 4,
R.A. 7166)
e. Declaration of failure of election
(Sec. 4, R.A. 7166)
f. Calling of special elections (Sec. 4,
R.A. 7166)
ELECTION LAW
3. Unless
order,
or
ruling
of
each
Commission may be brought to
the Supreme Court on certiorari
A. KINDS OF ELECTIONS
1. General Election
Provided for by law for election to offices
throughout the State or a certain
subdivision thereof, after the expiration
of the full term of former officers.
2. Special Election
Provided for by law under special
circumstances; an election held to fill a
vacancy in an office before the
expiration of the full term for which the
incumbent was elected, or an election at
which some issue or proposition is
submitted to the vote of the qualified
electors.
B. DATE OF ELECTION
President
Vice-President
Senators
Elective Members
of the House of
Representatives
Elective
Provincial,
City
and
Municipal
Officials
Barangay
Elections
E. MANNER
ELECTIONS
OF
HOLDING
ELECTION LAW
A. KINDS OF ELECTIONS
1. GENERAL
2. SPECIAL
B. DATE OF ELECTION
C. TIME FOR HOLDING ELECTIONS
D. PLACE FOR HOLDING ELECTIONS
E. MANNER
A. PRECINCTS
PLACES
AND
2. Polling Places
POLLING
1. Precinct
The
COMELEC
may
introduce
adjustments, changes or new divisions
2. Emergency Ballots
ELECTION LAW
official
C. REGISTRATION OF VOTERS
4. Re-Registration
a. If voter transfers residence to another
city or municipality; or
b. his registration has been cancelled on
the ground of disqualification and such
disqualification has been lifted or
removed (Sec. 125, BP 881);
5. System
Registration
1. Definition
of
Continuing
6. List of Voters
7. Inclusion-Exclusion Cases
a. Time of filing: During office hours
b. Notice: served upon the members of the
Board and challenged voter upon filing
of the petition.
c. Intervention: any voter, candidate or
political party who may be affected by
the proceedings
d. Evidence: shall be based on the
evidence presented.
In no case shall a decision be
rendered upon a stipulation of facts.
If the case involves the issue of a
fictitious voter, the non-appearance
of the challenged voter on the day
set for hearing shall be prima facie
evidence that such voter is fictitious.
e. Decision must be made within 10 days
from date of filing. Cases appealed to
the RTC shall be decided within 10 days
from receipt of the appeal. In all cases,
the court shall decide these petitions
not later than 15 days before the
ELECTION LAW
Grounds:
1) The book of voters was not prepared
in accordance with RA 8189 or the
Voters Registration Act of 1996;
2) The book of voters was prepared
through fraud, bribery, forgery,
impersonation, intimidation, force,
or any similar irregularity
3) The book of voters contains data
that are statistically improbable
D. REGISTRATION
PARTIES
OF
POLITICAL
1. Political Party
An organized group of citizens pursuing the
same ideology, political ideas or platforms
of government and includes its branches
and divisions.
3 kinds:
a. national
party
party
whose
2. Party System
A free and open party system shall be
allowed to evolve according to the free
choice of the people (Art. IX-C, Sec. 2(5),
Constitution); no votes cast in favor of a
political party, organization, coalition
shall be valid, except for those registered
under the party-list system (Art. IX-C,
Sec. 7).
ELECTION LAW
6. Forfeiture
of
Status
Cancellation of Registration
Mechanism
of
proportional
representation in the election of
representatives to the House of
Representatives from national, regional
and sectoral parties or organizations or
coalitions
registered
with
the
COMELEC. (Sec. 3, R.A. 7941)
Party-list
representatives
shall
constitute 20% of the total number of
representatives in the House of
Representatives (Art. VI, Sec. 5(2),
Constitution).
and
a. Forfeiture of status:
Singly or in coalition with others
fails to obtain at least 10% of the
votes cast
in the constituency in which it
nominated
and
supported
a
candidate/s in the election
next following its registration.
After notice and hearing. (Sec. 60,
BP 881)
ELECTION LAW
2. Purpose
5. Grounds
for
Refusal
and/or
Cancellation of Registration
Party-list representative
National
None
Voted upon by party or
organization.
Loses
his
seat,
will
be
substituted by another
Substitution will be made
within the party
Prohibited from sitting as
representative under his new
party or organization.
Cannot sit
District representative
Legislative district
Resident of his legislative district for
at least 1 year immediately before
the election
Elected personally
Does not lose seat
Special elections provided that the
vacancy takes place at least 1 year
before the next election.
Does
not
prevent
a
district
representative from running under
his new party.
Can run again
ELECTION LAW
G. CERTIFICATES OF CANDIDACY
1. Candidate, Definition
Any person aspiring for or seeking an
elective public office, who has filed a
certificate of candidacy by himself or
through an accredited political party,
aggroupment, or coalition of parties.
(Sec. 79, BP 881)
2. Qualifications
3. Contents
candidacy
of
certificate
of
4. Disqualifications
a. Status
i. Lack of Filipino citizenship;
ii. Lack of residency requirement;
iii. Insanity
or
incompetence,
as
declared by competent authority;
iv. Permanent residence or immigrant
status in a foreign country
unless he has waived such
status in accordance with the
residence requirement
ELECTION LAW
b. Acts:
Sentence by final judgment for:
i. subversion, insurrection, rebellion
ii. offense for which he has been
sentenced to more than 18 months
of imprisonment;
iii. offense involving moral turpitude;
iv. giving money or other material
consideration to influence, induce or
corrupt voters or public officials
performing electoral functions
v.committing acts of terrorism to
enhance his candidacy
vi. spending in his election campaign
an amount in excess of that allowed
vii. soliciting, receiving or making
prohibited contributions
viii.engaging in election campaign or
partisan political activity outside the
campaign period and not pursuant
to a political party nomination
ix. having
removed,
destroyed,
obliterated, defaced or tampered
with or prevented the distribution of
lawful election propaganda
x.violating
election
rules
and
regulations on election propaganda
through mass media
xi. having
coerced,
intimidated,
compelled, or influenced any of his
subordinates,
members,
or
employees to aid, campaign or vote
for or against any candidate or
aspirant for the nomination or
selection of candidates
xii. having
directly
or
indirectly
threatened, intimidated, or caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
disadvantage upon any person or of
the immediate members of his
family, his honor or property, or
used fraud to compel, induce or
prevent the registration of any voter,
or
the
participation
in
any
campaign, or the casting of any vote,
or any promise of such registration,
campaign,
vote,
or
omission
therefrom
xiii.unlawful electioneering
xiv. violating the prohibition against
release,
disbursement
or
expenditure of public funds 45 days
before a regular election (or 30 days
in the case of a special election)
xv. soliciting votes or undertaking
propaganda on election day for or
against any candidate or any
political party within the polling
place or within a 30 m radius
ELECTION LAW
c. Nuisance Candidacy:
Filing a certificate of candidacy:
i. To put the election process in mockery
or disrepute; or
ii. To cause confusion among the
voters by the similarity of the names
of the registered candidates, or
iii. Clearly demonstrating that he/she
has no bona fide intention to run for
the office which the certificate of
candidacy has been filed, and thus
prevents a faithful determination of
the true will of the electorate. (Sec.
69, BP 881)
d. Falsity of Material Representation in the
Certificate of Candidacy
e. Disqualifications under the LGC
Please refer to Locgov Reviewer Chapter
VII.
If a candidate of a registered or
accredited
political
party
dies,
withdraws or is disqualified after the
last day for filing of the certificates of
candidacy: ONLY a person belonging
to and certified by the same party
may file a certificate of candidacy to
replace him.
If
the
death,
withdrawal
or
disqualification occurs between the day
before the election and mid-day of the
election day, certificate may be filed
with:
any Board of Election Inspectors in
the political subdivision where he is
a candidate or
with the COMELEC if it is a national
position. (Sec. 77, BP 881)
A. ELECTION CAMPAIGN
1. Election Campaign
Political Activity
or
Partisan
2. Campaign Period
4. Prohibited Acts
a. For any foreigner to:
i. Aid any candidate or political party,
directly or indirectly;
ii. Take part or influence in any
manner any election;
Page 248 of 313
ELECTION LAW
A. ELECTION CAMPAIGN
1. ELECTION CAMPAIGN OR PARTISAN
POLITICAL ACTIVITY
2. CAMPAIGN PERIOD
3. LAWFUL ELECTION PROPAGANDA
4. PROHIBITED ACTS
5. MASS MEDIA CAMPAIGN
6. RALLIES, MEETINGS AND OTHER
POLITICAL ACTIVITY
B. ELECTION
CONTRIBUTIONS
AND
EXPENDITURES
1. CONTRIBUTIONS, DEFINITION
2. PROHIBITED CONTRIBUTIONS
3. PROHIBITED
FUND-RAISING
ACTIVITIES
4. LIMITATIONS
ON
AGGREGATE
AMOUNT TO BE SPENT FOR A
CAMPAIGN
5. PROHIBITED DONATIONS
2. Prohibited Contributions
(Sec. 96, BP 881)
a. From Public or private financial
institutions
Except (not prohibited if):
i. the financial institutions are
legally in the business of lending
Page 249 of 313
ELECTION LAW
5. Requisites
Donation
of
Prohibited
EXCEPTIONS:
Normal and customary religious
dues or contributions
Periodic payments for legitimate
scholarships established and school
contributions
habitually
made
before the prohibited period.
ELECTION LAW
money
ii. the loan is made in accordance
with laws and regulations AND
iii. the loan is made in the ordinary
course of business
A. IN GENERAL
1. What Constitutes an Election
Plurality of votes sufficient for:
3. Postponement of Elections
Grounds:
a. Violence
b. Terrorism
c. Loss or destruction of election
paraphernalia or records
d. Force majeure
e. Other analogous cause of such a
nature that the holding of a free,
orderly and honest election becomes
impossible
in
any
political
subdivision. (Sec. 5, B.P. 881)
4. Special Elections
2. Failure of Elections
B. CASTING OF VOTES
1. Secrecy of the Ballot
A legal voter will not be compelled to
disclose for whom he voted.
Moreover,
third persons are not permitted to testify to
its purport. The voter may, however, if he
ELECTION LAW
A. IN GENERAL
1. WHAT CONSTITUTES AN ELECTION
2. FAILURE OF ELECTIONS; GROUNDS
3. POSTPONEMENT OF ELECTIONS
4. SPECIAL ELECTIONS
B. CASTING OF VOTES
1. SECRECY OF THE BALLOT
2. ABSENTEE VOTING
3. VOTING HOURS
4. PREPARING THE BALLOT AND VOTING
5. CHALLENGE OF ILLEGAL VOTERS
C. COUNTING OF VOTES
1. BOARD OF ELECTION INSPECTORS
2. COUNTING PROPER
3. MARKED BALLOTS
4. APPRECIATION OF BALLOTS
5. ELECTION RETURNS
6. ISSUANCE OF THE CERTIFICATE OF
VOTES
D. CANVASS(ING OF VOTES)
1. DEFINITIONS
2. NATURE OF CANVASS PROCEEDINGS
3. COMPOSITION
OF
BOARD
OF
CANVASSERS
4. PROHIBITION ON BOC
5. CANVASS BY THE BOC
6. PREPARATION OF CERTIFICATE OF
CANVASS AND STATEMENT OF VOTES
7. COMPLETION OF CERTIFICATE OF
CANVASS
8. CANVASS OF VOTES FOR THE
PRESIDENT AND VICE PRESIDENT
9. PROCLAMATION
2. Absentee Voting
Under RA 9189, it is the process by which
qualified citizens of the Philippines exercise
their right to vote pursuant to the
constitutional mandate that Congress shall
provide a system of absentee voting to
qualified Filipinos (Exception to the 6month/1-year residency requirements).
3. Voting Hours
From 7 AM to 3 PM UNLESS
during
closing time there are voters present within
30 meters in front of the polling place who
have not yet cast their votes, in which case
the voting shall continue but only to allow
said voters to cast their votes without
interruption.
Spoiled Ballots
ELECTION LAW
i.
b. Non-conclusiveness of admission of
challenged vote (Sec. 201, B.P. 881):
Admission is not conclusive upon
any court as to the legality of the
registration of the voter challenged
or vote in a criminal action against
such person for illegal registration
or voting.
C. COUNTING OF VOTES
and
competence
who
are
registered voters of the city or
municipality
b. Powers: (Sec. 168, BP 881)
1) Conduct the voting and counting of
votes in their respective polling
places;
2) Act as deputies of the Commission
in the supervision and control of the
election in the polling places
wherein they are assigned, to assure
the holding of the same in a free,
orderly and honest manner;
3) Perform
such
other
functions
prescribed by the Omnibus Election
Code or by the rules and regulations
promulgated by the COMELEC
c. Prohibitions:
No person shall serve a chairman or
member of the Board if he is related
within the 4th civil degree of
consanguinity or affinity to any
member of the Board, or to any
candidate to be voted for in the
polling place or his spouse (Sec.
167, BP 881)
No member of the Board shall
engage in any partisan political
activity or take part in the election
except to discharge his duties as
such and to vote. (Sec. 173, BP
881)
No member of the Board shall,
before the termination of the voting,
make any announcement as to
whether a certain registered voter
has already voted or not, as to how
many have already voted or how
many so far have failed to vote, or
any other fact tending to show or
showing the state of the polls, nor
shall he make any statement at any
time as to how any person voted,
except as witness before a court.
(Sec. 205, BP 881)
2. Counting Proper
a. Counting must be public and without
interruption
b. Venue for counting: in any other place
within a public building in the same
municipality or city. The public building
shall not be located within the
perimeter of or inside a military or
police camp or reservation nor inside a
prison compound.
ELECTION LAW
c. Manner of Counting
Refer to Sec. 210 of B.P. 881 or the
Omnibus Election Code
3. Marked Ballots
Ballots containing a distinguishing mark
which would tend to identify the voter who
cast such ballot.
a. Effect: Invalidated in their entirety, and
none of the votes therein are counted.
b. Determination of marked ballots:
Only in an unmistakable case where
the ballot appeared to be marked,
should it be rejected.
In the absence of evidence aliunde
clearly showing the intention or
plan
was
for
purposes
of
identification, signs on ballots are
BALLOT
Containing name of a candidate affixed
thereto through any MECHANICAL process
Clearly appears to have been filled by 2
different persons
Written with crayon, lead pencil, ink, wholly
or in part
Initials only or illegible or does NOT
sufficiently identify the candidate for whom it
is intended
Vote for a person who has not filed a
certificate of candidacy or in favor of a
candidate for an office for which he did not
present himself
Vote for a candidate who has been disqualified
by final judgment
Only candidates first name or surname is
written; no other candidate with same first
name or surname for same office
Only candidates first name is written which
when read has a sound similar to the
surname of another candidate
2 or more candidates with the same full name,
first name or surname, one is the incumbent,
and on the ballot is written only full name,
first name or surname
Woman candidate uses her maiden name,
married name, or both, there is another
presumed accidental.
A majority vote of the board of
election
inspectors
shall
be
sufficient to determine whether a
ballot is marked or not.
4. Appreciation of Ballots
a. Principles
Doubts are to be resolved in favor of
the validity of ballots.
Liberal construction in reading the
ballots, and intendments should be
in favor of a reading which render
the ballot effective.
Minor blemishes should not affect
the validity of the ballot where the
intention of the voter to vote for
certain persons is discernible in the
ballot.
Errors in spelling, honest mistakes
due to ignorance or illiteracy should
not defeat the intention of the voter.
However, if the ballot is so defective
as to fail to show any intention, it
must be disregarded.
b. Rules (Sec. 211, BP 881): Every ballot
shall be presumed valid unless there is
clear and good reason to reject it.
HOW COUNTED
Totally VOID
Totally VOID
Valid
STRAY vote but shall not invalidate whole
ballot
STRAY vote but shall not invalidate the whole
ballot
STRAY vote but shall not invalidate the whole
ballot
Valid
Vote counted in favor of the candidate with
such SURNAME
Vote counted for the INCUMBENT
In favor of
INCUMBENT.
the
candidate
who
is
an
ELECTION LAW
accidental
flourishes,
ELECTION LAW
5. Election Returns
It contains:
the date of the election
the province, municipality and the
precinct in which it is held, and
the votes received by each candidate
written in figures and in words.
(Garay v. COMELEC, 1996 )
6. Issuance
Votes
of
the
Certificate
of
D. CANVASSING OF VOTES
1. Definitions
a. canvass - the process by which the
results in the election returns are tallied
and totalled.
Page 256 of 313
ELECTION LAW
Chairman
Province
City
Municipality
Provincial
election
supervisor or lawyer in
the COMELEC regional
office
Election
registrar
or
COMELEC representative
Provincial fiscal
Provincial
superintendent
schools
of
City fiscal
Municipal treasurer
City superintendent of
schools
Chairman
Vice Chairman
Member
Province
City
Municipality
Same as
Chairman
for
Vice-
4. Prohibitions on BOC
a. Chairman and members shall not be
related within the 4th civil degree of
consanguinity or affinity to any of
the candidates whose votes will be
canvassed by said board, or to any
member of the said board. (Sec. 222,
B.P. 881)
b. No member or substitute member shall
be transferred, assigned or detailed
outside of his official station, nor shall
he leave said station without prior
6. Preparation of Certificate of
Canvass and Statement of Votes
7. Completion
Canvass
of
Certificate
of
When
there
appear
erasures
or
alterations in the certificate of canvass
which may cast doubt as to the veracity
of the number of votes stated and may
affect the result of the election,
Congress shall, for the sole purpose of
verifying the actual number of votes,
count the votes as they appear in the
copies of the election returns
submitted to it, upon request of a
presidential
or
vice-presidential
candidate or their party. (Sec. 30, R.A.
7166)
ELECTION LAW
9. Proclamation
Proclamation shall be after the canvass
of election returns, in the absence of a
perfected appeal to the COMELEC,
proclaim the candidates who obtained
the highest number of votes cast in the
province, city, municipality or barangay,
on the basis of the certificates of
canvass.
duty
(Sec.
ELECTION LAW
A. Cancellation
Candidacy
of
Certificate
of
1. Grounds
False material representation in the
certificate of candidacy;
ii. If the certificate filed is a substitute
Certificate of Candidacy, when it is
not a proper case of substitution
under Sec. 77 of BP 881.
i.
2. Nature of Proceedings
Summary
3. Procedure
B. Pre-Proclamation Controversies
(asked in 1987, 1988, 1996)
Any question or matter pertaining to or
affecting:
the proceedings of the board of
canvassers, or
1. Jurisdiction
COMELEC has exclusive jurisdiction over
pre-proclamation cases. It may order, motu
proprio or upon written petition, the partial
or total suspension of the proclamation of
any candidate-elect or annul partially or
totally any proclamation, if one has been
made. (Sec. 242, BP 881)
3. Nature of Proceedings
Heard summarily by the COMELEC after
due notice and hearing. This is because
canvass and proclamation should be
delayed as little as possible.
ELECTION LAW
CANCELLATION OF CERTIFICATE OF
CANDIDACY
1. GROUNDS
2. NATURE OF PROCEEDINGS
3. PROCEDURE
B. PRE-PROCLAMATION CONTROVERSIES
1. JURISDICTION
2. WHEN NOT ALLOWED
3. NATURE OF PROCEEDINGS
4. ISSUES THAT MAY BE RAISED
5. ISSUES THAT CANNOT BE RAISED
6. PROCEDURE
7. EFFECT
OF
FILING
OF
PREPROCLAMATION
8. EFFECT
OF
PROCLAMATION
OF
WINNING CANDIDATE
9. PETITION
TO
ANNUL/SUSPEND
PROCLAMATION
10. DECLARATION
OF
FAILURE
OF
ELECTION
C. DISQUALIFICATION CASES
1. PROCEDURE
2. EFFECT
iii.
iv.
v.
vi.
Where:
Only with the Board of Canvassers
When:
At the time the questioned return is
presented for inclusion in the canvass.
Who:
Any candidate, political
coalition of political parties
7. Effect
of
Filing
of
Proclamation Controversy
Pre-
Where:
Either in the Board of Canvassers or
directly with the COMELEC. (Sec. 17,
R.A. 7166)
When:
1. a petition involves the illegal
composition or proceedings of the
board, must be filed immediately
when the board begins to act as
such (Laodeno v. Comelec), or at the
time of the appointment of the
member whose capacity to sit as
such is objected to if it comes after
the canvassing of the board, or
immediately at the point where the
proceedings are or begin to be
illegal. Otherwise, by participating
in the proceedings, the petitioner is
deemed to have acquiesced in the
composition of the BOC.
or
6. Procedure
a. Questions involving the composition or
proceedings of the board of canvassers,
or correction of manifest errors
party
ELECTION LAW
ii.
9. Petition to Annul
Proclamation
or
Suspend
10. Declaration
Election
of
Failure
of
Procedure:
1) Petitioner files verified petition with
the
Law
Department
of
the
COMELEC.
2) Unless a shorter period is deemed
necessary by circumstances, within
24 hours, the Clerk of Court
concerned serves notices to all
interested parties, indicating therein
the date of hearing, through the
fastest means available.
3) Unless a shorter period is deemed
necessary by the circumstances,
within 2 days from receipt of the
notice of hearing, any interested
party may file an opposition with the
Law Department of the COMELEC.
4) The COMELEC proceeds to hear the
petition.
The COMELEC may
delegate the hearing of the case and
the reception of evidence to any of
C. DISQUALIFICATION CASES
1. Procedure
i.
2. Effect
(asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. The fact that the
candidate who obtained the highest
number of votes is later declared to be
disqualified or not eligible for the office to
which
he
was
elected,
does
not
necessarily entitle the candidate who
obtained the second highest number of
votes to be declared the winner of the
elective office.
ELECTION LAW
RTCs
have
exclusive
original
jurisdiction to try and decide any
criminal actions or proceedings for
violation of election laws. (Sec. 268,
B.P. 881)
B. PROSECUTION
OFFENSES
OF
ELECTION
C. PREFERENTIAL DISPOSITION OF
ELECTION OFFENSES
1. Registration
1) Failure of the Board of Election
Inspectors to post the list of
voters in each precinct. (Sec. 9,
R.A. 7166);
2) Change or alteration or transfer of
a voter's precinct assignment in
the permanent list of voters without
the express written consent of the
voter (Sec. 4, R.A. 8189)
2. Certificate of Candidacy
1) Continued misrepresentation or
holding out as a candidate of a
disqualified candidate or one
declared by final and executory
judgment
to
be
a
nuisance
candidate (Sec. 27f, R.A. 6646);
2) Knowingly inducing or abetting
such
misrepresentation
of
a
disqualified or nuisance candidate
(Sec. 27f, R.A. 6646);
3) Coercing, bribing, threatening,
harassing,
intimidating,
terrorizing, or actually causing,
inflicting or producing violence,
injury,
punishment,
torture,
damage, loss or disadvantage to
discourage any other person or
persons from filing a certificate of
candidacy in order to eliminate all
other potential candidates from
running in a special election (Sec. 5,
R.A. 8295);
3. Election Campaign
1) Appointment or use of special
policemen, special agents or the
like during the campaign period
(Sec. 261m, B.P. 881)
2) Use of armored land, water or
aircraft during the campaign period
(Sec. 261r, B.P. 881)
3) Unlawful
electioneering
(Sec.
261k, B.P. 881)
4) Acting as bodyguards or security
in the case of policemen and
provincial
guards
during
the
campaign period (Sec. 261t, B.P.
881)
5) Removal,
destruction,
obliteration, or tampering of
lawful election propaganda, or
preventing the distribution thereof
(Sec. 83, B.P. 881 vis--vis Sec. 262,
B.P. 881)
ELECTION LAW
A. JURISDICTION
OVER
ELECTION
OFFENSES
B. PROSECUTION OF ELECTION OFFENSES
C. PREFERENTIAL
DISPOSITION
OF
ELECTION OFFENSES
D. ELECTION OFFENSES
1. REGISTRATION
2. CERTIFICATE OF CANDIDACY
3. ELECTION CAMPAIGN
4. VOTING
5. COUNTING OF VOTES
6. CANVASSING
7. ACTS OF GOVERNMENT AND PUBLIC
OFFICERS
8. COERCION, INTIMIDATION, VIOLENCE
9. OTHER PROHIBITIONS
10. PENALTIES
E. ARRESTS
IN
CONNECTION
WITH
ELECTION CAMPAIGN
F. PRESCRIPTION
D. ELECTION OFFENSES
4. Voting
5. Counting of Votes
1) Tampering, increasing, decreasing
votes, or
refusal to correct
tampered
votes
after
proper
verification and hearing by any
member of the board of election
inspectors (Sec. 27b, R.A. 6646)
2) Refusal to issue to duly accredited
watchers the certificate of votes cast
and the announcement of the
election, by any member of the
board of election inspectors (Sec.
27c, R.A. 6646)
6. Canvassing
7. Acts of
Officers
Government or Public
3)
4)
5)
6)
7)
8)
ELECTION LAW
10.
F. Prescription
5 years from the date of their commission.
If the discovery of the offense be made in an
election contest proceeding, the period of
prescription shall commence on the date on
which the judgment in such proceedings
becomes final and executory. (Sec. 267,
B.P. 881)
Penalties
For individuals
Imprisonment of not less than 1
year but not more than 6 years,
without probation (Sec. 264,
B.P. 881)
Disqualification to hold public
office
Deprivation of the right of
suffrage
For a Foreigner
Imprisonment of not less than 1
year but not more than 6 years
(without probation);
Deportation after service of
sentence
ELECTION LAW
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CHAPTER I. PRELIMINARIES
I. Public International Law
II. Contra-Distinctions
III. Relationship between PIL and
Municipal Law
A. Monist View
B. Dualist View
C. Monist-Naturalist View
D. Coordinationist View
IV. The Philippine Doctrine
A. Doctrine of Incorporation
B. Doctrine of Transformation
CHAPTER X. INTERNATIONAL
HUMANITARIAN LAW
I. Armed Conflict
II. Fundamental Principles of IHL
III. Application of IHL
IV. The Four Geneva Conventions and
the Two Additional Protocols
V. Application
VI. Concepts
A. Combatants
B. Hors de Combat
C. Protected Persons
D. The Martens Clause
E. Military Objective
F. Belligerency Status
VII. IHL and Weapons of Mass
Destruction
VIII. Non-International Armed Conflict
A. Common Article 3 and Protocol
II
B. Control of Territory
C. War of National Liberation
IX. Neutrality
X. Protective Emblems
A. Who May Use
B. Misuse of Emblem
292
292
292
292
292
292
292
294
294
294
294
294
294
294
295
295
295
296
296
296
296
297
297
297
298
299
299
299
300
C. Punishment
XI. The International Criminal Court
(ICC)
A. Crimes within the Courts
Jurisdiction
B. Modes of Incurring Criminal
Liability
C. Sources of Law
D. Other Key Concepts
E. Landmark Cases
304
304
304
305
305
306
306
307
307
307
307
307
307
307
307
308
308
308
308
309
309
309
309
310
310
311
311
313
300
301
301
301
301
301
301
302
302
302
302
303
303
303
303
304
304
304
Table of Contents
Chapter I. Preliminaries
ACADEMICS COMMITTEE
Samantha Poblacion
DIRECTOR FOR ACADEMICS
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
DEPUTY HEAD
-------Kae Guerrero
DS Corpuz
LEAD WRITER
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
-------Leo Zulueta
LOGO, COVER AND TEMPLATE DESIGN
WRITERS
Public
International Law
Chapter I. Preliminaries
I. PUBLIC INTERNATIONAL LAW
II. CONTRA-DISTINCTIONS
III. RELATIONSHIP
BETWEEN
PIL
AND
MUNICIPAL LAW
A. MONIST VIEW
B. DUALIST VIEW
C. MONIST-NATURALIST VIEW
D. COORDINATIONIST VIEW
IV. THE PHILIPPINE DOCTRINE
A. DOCTRINE OF INCORPORATION
B. DOCTRINE OF TRANSFORMATION
I. PUBLIC
(PIL)
INTERNATIONAL
LAW
II. CONTRA-DISTINCTIONS
Municipal Law deals with the conduct or
status of individuals, corporations, and
other private entities within states. PIL
may be distinguished therefrom in that it
prescribes rules and processes that govern
the relations of states with each other,
and the rights of other entities insofar as
they implicate the community of states
(note: whom it governs). (vs. PIL, Asked 1
time in the Bar))
Private International Law is that part of
the laws of each State (conflict of laws
rules) which determines whether in dealing
with a factual situation involving a foreign
element, the law or judgment of some other
State will be recognized or applied in the
forum (SALONGA). Unlike PIL which is
international in character and origin,
private international law is national or
municipal in character (note: character of
norms being applied).
III.RELATIONSHIP BETWEEN
AND MUNICIPAL LAW
PIL
A. Monist View
International and municipal legal systems
are fundamentally part of one legal order.
This view considers international law to be
superior, with municipal law being a mere
subset of international law.
Thus, international norms are applicable
within municipal systems within even
without some positive act of the State.
Paolo Camacho
Michelle Maniwang
Maximo Sison III
Chapter I. Preliminaries
B. Dualist View
B. Doctrine of Transformation
C. Monist-Naturalist View
D. Coordinationist View
International law and municipal law
operate in different spheres, but municipal
law is (generally) obliged to be in
conformity with international law.
OF
1. Requisite Elements
i.
OF
People
A people is an aggregate of individuals
of both sexes who live together as a
community despite racial or cultural
differences. Although no minimum
number is provided, they should be
permanent, and sufficient to maintain
and perpetuate themselves.
ii. Territory
iii. Government
Government
is
the
physical
manifestation of a state. Government
must be organized, exercising control
over and capable of maintaining law
and order within its territory.
Note: Under the Rules on Succession of
States, even changes of entire
governments do not affect the
identity and personality of the state.
Once statehood is established, neither
invasion nor disorder alone can remove
its character as a state (BROWLIE).
a.
The
requirement
of
effective
government is not strictly applied
when the State, already longexisting, happens to undergo a
period of civil strife or internal chaos
due to natural disaster or invasion.
A. States
States remain the most important actors in
international law.
A state is defined as a group of people, more
or less numerous, permanently living in a
definite territory, under an independent
government organized for political ends and
Effective Government
Although an effective government is
the best evidence of the existence of
a State, an effective government is
not
always
strictly
necessary
(BROWLIE).
b.
SUBJECTS
AND
OBJECTS
INTERNATIONAL LAW
A. STATES
1. REQUISITE ELEMENTS
i. PEOPLE
ii. TERRITORY
iii. GOVERNMENT
iv. INDEPENDENCE OR
SOVEREIGNTY
2. RECOGNITION
B. INDIVIDUALS
C. INTERNATIONAL ORGANIZATIONS
A government de jure is a
government from law, that is, one
with a color of legitimacy.
A government de facto is one that
governs without a mandate of law.
So long as it is in place, it may
command
obedience
from
the
inhabitants of the occupied area.
The de facto ruler may suspend laws
and enact new ones.
of a de facto
not by itself
and structures
the
deposed
concern
to
(SALONGA).
international
law
2. Recognition
Act by which a state acknowledges the
existence of another state, government or
belligerent
community
and
indicates
willingness to deal with the entity as such
under international law.
Declaratory View vs. Constitutive View
(Asked 1 time in the Bar).
The Declaratory View (Prevailing View)
posits that recognition is a mere
declaration or acknowledgement of an
existing state of law and fact, legal
personality
having
been
previously
conferred by operation of law (BROWNLIE).
The Constitutive View (Minority View)
posits that the political act of recognition
is a precondition to the existence of
legal rights of a state. In its logical
extreme, this is to say that the very
personality of a state depends on the
political
decision
of
other
states
(BROWNLIE).
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the
Bar) precludes recognition of government
established by revolution, civil war, coup
detat or other forms of internal violence
until freely elected representatives of the
people have organized a constitutional
government (US President Woodrow Wilson,
1913 and Ecuadorian FM, 1907)
Stimson Doctine precludes recognition of
any government established as a result of
external aggression (US Sec. of State Henry
Stimson, 1932)
Estrada Doctrine (Asked 1 time in the Bar)
dealing or not dealing with the government
established through a political upheaval is
not a judgment on the legitimacy of the said
government
(Mexican
Minister
Genaro
Estrada, 1930)
The establishment
government does
abolish all laws
established
by
government.
Effects of Recognition:
1. Diplomatic relations
2. Right to sue in courts of recognizing state
3. Right to possession of properties of
predecessor in the recognizing state
4. All acts of the recognized state or
government are validated retroactively,
preventing the recognizing state from
passing upon their legality in its own court.
B. Individuals
1. Preconditions for
Personality of IO
International
i.
I. CONCEPTS
II. SOURCES
LAW
OF
INTERNATIONAL
I. CONCEPTS
II. SOURCES OF INTERNATIONAL LAW
A. TREATY AS SOURCE OF LAW
B. CUSTOMARY INTERNATIONAL LAW
1.ELEMENTS
2.SCOPE
3.DUALITY OF NORMS
C. GENERAL PRINCIPLE OF LAW
D. SUBSIDIARY SOURCE: TRIBUNALS
E. SUBSIDIARY SOURCE: PUBLICISTS
F. OTHER SOURCES
III. STATUS OF NORMS
A. JUS COGENS OR PEREMPTORY NORMS
B. ERGA OMNES NORMS
1. Elements
i.
State Practice
For custom to exist, the customary
practice must be both consistent and
general.
(1) Consistency requires substantial
uniformity, and not necessarily
complete uniformity in practice.
(2) Generality likewise does not require
universality.
3. Duality of Norms
It is possible for a norm of international law
to exist both as a customary norm and a
conventional norm (ex. The Prohibition
Against the Use of Force). Such norms are
said to be of dual character.
Norms of dual character come into being
through any of the following ways:
a. A treaty provision may simply restate a
customary norm (as is true of many of
the provisions in the VCLOT;
b. A treaty provision may constitute
evidence of custom;
c. A treaty provision may crystallize into a
customary norm.
2. Scope
Custom may be:
General binding upon all or most
states or
Particular binding between only two or
among a few states.
use of
hearsay
duty
to
make
reparations, principle of reciprocity,
pacta sunt servanda, separate corporate
personality (Barcelona Traction Case).
Every breach of an engagement
(international obligation) entails the
obligation to make reparation. The
amount of reparation required is that
amount which is necessary to bring
the injured party back to the
situation had the wrong not occurred
[The Standard of Full Reparations]
(Chorzow Factory Case).
4. Jurisdictional Principles The power
of a tribunal to determine the extent of
its own jurisdiction (competence de la
competence).
F. Other Sources
a. Ex Aequo et Bono the court may
apply this standard of what is
equitable and good to decide a case
when the parties to the dispute so
agree.
b. Equity refers to the application of
standards of justice that are not
contained in the letter of existing law. It
has often been applied in cases
involving
territorial
disputes
and
maritime delimitations.
c. Unilateral Declarations declarations
made by way of unilateral acts,
concerning legal or factual situations,
may have the effect of creating legal
obligations.
Nothing in the nature of a quid pro
quo, nor any subsequent acceptance,
III.STATUS OF NORMS
A. Jus Cogens or Peremptory Norms
I. DEFINITION
A 'treaty' is:
an international agreement
concluded between States
in written form and
governed by international law,
whether
embodied
in
a
single
instrument or in two or more related
instruments and
whatever its particular designation
(Art.2(1), VCLOT)
Subject
Matter
1.Political
Issues
2.Changes in
national
policy
3.Involves
international
agreements
of a
permanent
character
Executive
Agreements
1. Transitory
effectivity
2. Adjusts
details to
carry out
wellestablished
national
policies and
traditions
3. Temporary
4. Implements
treaties,
statutes,
Ratification
policies
Does not require
concurrence by
Senate to be
binding
B. Competence
of
the
Representative/Organ Making the
Treaty
B. Adoption
Fixes the text of the treaty; but it does not
bind the State yet.
Page 278 of 313
II. DEFINITION
III. REQUISITES FOR VALIDITY
IV. THE TREATY-MAKING PROCESS
A. NEGOTIATION
B. ADOPTION
C. CONSENT
1. SIGNATURE
2. RATIFICATION
D. EXCHANGE OF INSTRUMENTS OF
RATIFICATION
E. REGISTRATION WITH THE UN
V. PHILIPPINE LAW ON TREATIES
VI. AMENDMENT OR MODIFICATION OF
TREATY
VII. RESERVATIONS
VIII.
INVALID
TREATIES
IX. GROUNDS FOR TERMINATION
Requires
ratification by
the 2/3 of the
Senate to be
valid
and
effective
(Art.
VII, Sec. 21)
C. Consent
Consent to be bound by the terms of a
treaty may be expressed through:
1. Signature, when the negotiator
authorized to sign the treaty;
Instruments
of
is
Doctrine of Transformation.
In Philippine Law, treaties have to be
transformed in order to be part of
Philippine law.
A treaty is transformed when a treaty
is ratified after it has been concurred in by
the Senate (Art.VII, Sec.21, Constitution).
After ratification, a treaty shall be
deemed as if legislated by our Legislature.
La Chemise Lacoste Case: Lacoste, a French
corporation, sued local counterfeiters before
Philippine courts. When the counterfeiters
challenged its legal personality to sue before
Philippine courts, the Court held that the
Philippines
has
ratified
international
conventions for the protection of intellectual
property, and it would frustrate the object of
these conventions if Lacoste is barred from filing
its claims directly in Philippine courts.
V. AMENDMENT OR MODIFICATION
OF TREATY
General Rule: Consent of all parties is
required.
Exception: If the treaty itself so allows, two
States may modify a provision only insofar
as their relationship inter se.
VI. RESERVATIONS
Definition: A unilateral statement made by
a state upon entering a treaty whereby it
purports to exclude or modify the legal effect
of certain provision/s of the treaty in their
application to the reserving state (Art.19.
VCLOT).
Exceptions:
A reservation shall not operate to modify or
exclude the provisions of a treaty:
1. Where the treaty expressly prohibits
reservations in general;
2. Where the treaty expressly prohibits
that specific reservation being made; or
3. Where the reservation is incompatible
with treatys object and purpose
(Reservation
to
the
Genocide
Conventions Advisory Opinion).
D. Exchange
of
Ratification
Conventions).
12. Severance of diplomatic relations (if such
relationship is indispensable for the
treatys application).
13. Jus Cogens Application: Emergence of a
new peremptory norm of general
international law which renders void
any existing, conflicting treaty.
Requisites:
ii. Change is so substantial that the
foundation of the treaty has
altogether disappeared
iii. Change
was
unforeseen
or
unforeseeable at the time of the
treatys perfection
iv. Change was not caused by the party
invoking the doctrine
v. Doctrine was invoked within a
reasonable time
vi. Treatys duration is indefinite
vii. Doctrine
cannot
operate
retroactively (it must not adversely
affect provisions which have already
been complied with prior to the vital
change)
11. Outbreak of war between the parties,
unless the treaty relates to the conduct
of
war
(ex.
The
Four
Geneva
Chapter V. International
Responsibility
I.
II.
III.
V.
I. BREACH
A. Is Fault or Malice Necessary?
i.
The
Relativist
view
holds
that
circumstances affecting a States ability to
perform its duties would be relevant in
determining the degree of diligence that
must characterize its performance of its
obligations. Thus, a State breaches its
obligation only if:
i. It is aware of its obligation;
ii. It had the means to fulfill them;
iii. Yet it failed to do so (Tehran Hostages
Case).
The Objective view holds that the States
ability to fulfill is irrelevant.
II. ATTRIBUTION
A State becomes liable for the acts of
individuals,
(1) when they are State organs or agent
acting under color of authority.
(2) If they are not officers, the State is
nonetheless liable when the state
adopts the acts of individuals or
(3) when it is negligent in preventing or in
punishing the acts.
EXAMPLE: When a State is bound by a
duty to prosecute, or has an international
obligation to exert efforts to prevent certain
acts, and the State maliciously or
negligently fails to do so.
IV.
BREACH
A. IS FAULT OR MALICE NECESSARY?
B. THE STANDARD OF DILIGENCE
ATTRIBUTION
A. DIRECT AND INDIRECT ATTRIBUTION
B. CONDUCT ATTRIBUTABLE TO THE
STATE
CONSEQUENCES
OF
STATE
RESPONSIBILITY
A. DUTY TO MAKE REPARATION
B. FORMS OF REPARATION
1. RESTITUTION
2. COMPENSATION
3. SATISFACTION
4. DECLARATORY RELIEF
CIRCUMSTANCES
PRECLUDING
WRONGFULNESS
DIPLOMATIC PROTECTION (ESPOUSAL
OF CLAIM)
A. MATERIAL DATES
B. EXHAUSTION OF LOCAL REMEDIES
III.CONSEQUENCES
RESPONSIBILITY
OF
STATE
B. Forms of Reparation
the
declaration that an offending
restitution in kind.
2. Compensation (Art.36, ASR)
Satisfaction
may
pecuniary form.
also
be
in
4. Declaratory Relief
Tribunals
may
give
declaratory
judgments when:
1. It is, or the parties deem it to be, the
proper way to deal with a dispute
(ex. disputes over territory); or
2. The object is not to give satisfaction
for the wrong received (BROWNLIE)
IV. CIRCUMSTANCES
WRONGFULNESS
PRECLUDING
V. DIPLOMATIC
PROTECTION
(ESPOUSAL OF CLAIM)
DEFINITIONS.
A procedure whereby the State asks relief
for the violation of the rights of the
State
through the harm done to its citizens,
and
the tribunal would award damages to
the State (OPPENHEIM).
A. Material Dates
Exceptions:
i. There are no reasonably available local
remedies to provide effective redress, or
the
local
remedies
provide
no
reasonable possibility of such redress;
ii. There is undue delay in the remedial
process which is attributable to the
State alleged to be responsible;
iii. There was no relevant connection
between the injured person and the
State alleged to be responsible at the
date of injury;
iv. The injured person is manifestly
precluded from pursuing local remedies;
or
v. The State alleged to be responsible has
waived the requirement that local
remedies be exhausted.
SOVEREIGNTY
A. CHARACTERISTICS
B. SOVEREIGN EQUALITY OF STATES
C. CORROLARIES
II. JURISDICTION
A. BASES OF CRIMINAL JURISDICTION
B. RESERVED DOMAIN OF DOMESTIC
JURISDICTION
C. DOCTRINE OF STATE IMMUNITY
Sovereignty
is
the
supreme
and
uncontrollable power inherent in a State
by which that State is governed (CRUZ).
Sovereignty has also been used to refer to
the general legal competence of states,
including its power to exercise legislative
jurisdiction, and the power to acquire title
to territory (BROWNLIE).
A. Characteristics
(CRUZ):
1. Permanent
2. Exclusive
3. Comprehensive
4. Absolute
5. Inalienable
6. Imprescriptible
B. Sovereign Equality of States
All States enjoy sovereign equality. They have
equal rights and duties and are equal members
of
the
international
community,
notwithstanding differences of an economic,
social, political or other nature (Principle 6,
Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation
Among States [UN GA Res.2625(XXV)]).
C. Corollaries
1. States are juridically equal;
2. Each State enjoys the rights inherent
in full sovereignty;
3. Each State has the duty to respect the
personality of other States;
4. The territorial integrity and political
independence
of
the
State
are
inviolable;
5. Each State has the right freely to
choose and develop its political, social,
economic and cultural systems;
6. Each State has the duty to comply fully
and in good faith with its international
obligations and to live in peace with
other States.
II. JURISDICTION
A. Criminal Jurisdiction
BASES:
1. Territoriality Principle jurisdiction
is determined by reference to the place
where the crime is committed.
2. Protective Principle court is vested
with jurisdiction if a national interest is
injured.
3. Nationality Principle court has
jurisdiction if the offender is a national
of the forum state.
4. Passive Personality Principle a
court has jurisdiction if the victim is a
national of the forum state.
5. Universality Principle jurisdiction is
asserted with respect to crimes
considered committed against the
whole of humanity (hostes humani
generis).
B. Reserved
Domain
of
Domestic
Jurisdiction
The domain of state activities where the
jurisdiction of states is not bound by
international law: the extent of this domain
depends on international law and varies
according to its development (i.e. when a norm
crystallizes into custom).
The reservation of this domain, however, is
without prejudice to the use of enforcement
measures under Chapter VII of the Charter.
C. Doctrine of State Immunity
Domestic courts must decline to hear cases
against foreign sovereigns out of deference to
their roles as sovereigns.
This doctrine is founded upon the principle
that states are sovereign equals an equal has
no power over an equal (Par in parem non
habet imperium).
Application: (Asked 1 time in the Bar)
1. Absolute Sovereign Immunity - a State
cannot be sued in a foreign court no
matter what act it is sued for.
2. Restrictive Sovereign Immunity a State
is
immune
from
suits
involving
governmental actions (jure imperii), but not
for those arising from purely commercial or
non-governmental activity (jure gestionis).
The Philippine Supreme Court recognizes the
second theory, and has established certain rules
in its application.
Test: Whether, assuming the public officer is
found liable, enforcement of the decision will
require an affirmative act on the part of the State.
If the answer is yes, then the act in question
would be covered by State immunity.
I. SOVEREIGNTY
REVIEWER IN PUBLIC
UBLIC INTERNATIONAL LAW
II.
V.
I. CONCEPTS
The Law of the Sea (LOS) is the body of
treaty
rules
and
customary
norms
governing the use of the sea, the
exploitation of its resources, and the
exercise of jurisdiction over maritime
regimes (MAGALLONA).
II. WATERS
The waters of a state can be classified
generally
as
internal,
territorial,
contiguous, or belonging to the exclusive
economic zone (EEZ). The extent of these
waters depend on their distance from the
states baseline
B. Baseline
The line from which a breadth of the
territorial sea and other maritime zones,
III.
IV.
CONCEPTS
A. DISTINGUISHED FROM M
MARITIME OR
ADMIRALTY LAW:
B. BASELINE
WATERS
A. INTERNAL WATERS
B. TERRITORIAL WATERS
C. CONTIGUOUS ZONE
D. EXCLUSIVE ECONOMIC ZONE
ONE
E. HIGH SEAS
ARCHIPELAGIC STATE
CONTINENTAL SHELF
A. LIMITS OF THE CONTINENTAL
ENTAL SHELF
B. RIGHTS OF THE COASTA
COASTAL STATE
OVER THE CONTINENTAL SHELF
C. RIGHTS
WITH
RESPECT
TO
CONTINENTAL SHELF VS.. EEZ
SETTLEMENT OF DISPUTES
A. PEACEFUL
SETTLEMENT
OF
DISPUTES
B. COMPULSORY
SETTLEMEN
SETTLEMENT
OF
DISPUTES
C. JURISDICTION
OF
COUR
COURT
OR
TRIBUNAL
D. COMPOSITION
OF
THE
INTERNATIONAL
ERNATIONAL TRIBUNAL FOR THE
LAW OF THE SEA (ITLOS)
E. JURISDICTION OF ITLOS
F. APPLICABLE LAWS IN SETTLEMENT
ETTLEMENT OF
DISPUTES BY THE ITLOS
A. Internal Waters
INNOCENT PASSAGE
B. Territorial Waters
(Asked 1 time in the Bar)
These waters stretch up to 12 miles from
the baseline on the seaward direction.
They are subject to the jurisdiction of the
coastal state, which jurisdiction almost
approximates that which is exercised over
land territory.
Except that the coastal state must respect
the rights to (1) innocent passage and, in
the case of certain straits, to (2) transit
passage. (Asked 1 time in the Bar)
1. Innocent passage
navigation
through the territorial sea w/o entering
internal waters, going to internal
waters, or coming from internal waters
and making for the high seas.
It must (a) involve only acts that are
required by navigation or by distress,
and (b) not prejudice the peace,
security, or good order of the coastal
state.
2. Transit passage the right to exercise
freedom of navigation and overflight
solely for the purpose of continuous and
expeditious
transit
through
the
straights
used
for
international
navigation.
The right cannot be unilaterally
suspended by the coastal state.
Pertains to navigation of
ships only
Requires
submarines
and other underwater
vehicles to navigate on
the surface and show
their flag.
TRANSIT
PASSAGE
Includes the right of
overflight
No
requirement
specifically applicable to
submarines
TRANSIT
PASSAGE
Cannot be suspended
C. Contiguous Zone
(Asked 1 time in the Bar)
This is the maritime zone adjacent to the
territorial sea where the coastal state may
exercise certain protective jurisdiction.
Thus, the coastal state may exercise the
control necessary to:
a. Prevent infringement of its customs,
fiscal, immigration or sanitary laws and
regulations within its territory or
territorial sea;
b. Punish infringement of the above laws
and regulations committed within its
territory or territorial sea.
The coastal state must not extend its
contiguous zone beyond 24 nautical miles
from the baseline. Note that the contiguous
zone is merely a zone of jurisdiction for a
particular purpose. It is not a zone of
sovereignty.
INNOCENT PASSAGE
E. High Seas
These are all parts of the sea that are not
included in the EEZ, in the territorial sea,
or in the internal waters of a state, or are in
the archipelagic waters of the archipelagic
state.
They are beyond the jurisdiction
sovereign rights of states.
and
III.ARCHIPELAGIC STATE
It is a state up made up of wholly one or
more archipelagos. It may include other
islands.
An archipelago is a group of islands,
including parts of islands, interconnecting
waters and other natural features which are
so closely related that such islands, waters
and natural features form an intrinsic
geographical, economic and political
entity, or
which historically have been regarded as
such.
Baselines of archipelagic states. Straight
baselines join the outermost points of the
outermost islands and drying reefs of an
archipelago, provided that within such
baselines are included the main islands
and an area in which the ratio of the water
to the area of the land, including atolls, is
between 1 to 1 and 9 to 1. Such are called
straight archipelagic baselines.
Two Kinds of archipelagoes
1. Coastal situated close to a mainland
and may be considered part thereof, i.e.
Norway
2. Mid-ocean situated in the ocean at
such distance from the coasts of firm
land, i.e. Indonesia
Respect
to
REVIEWER IN PUBLIC
UBLIC INTERNATIONAL LAW
C. Rights
with
Respect
Continental Shelf vs. EEZ
Rights of
the coastal
state as to
living
resources
Relate
to
mineral
and
other
nonliving
resources
of
the
seabed
and
the
subsoil
Apply only to
sedentary
species of such
living
resources
to
EEZ
Coastal state is
obliged
to
manage
and
conserve
living
resources in the
EEZ
Have to do with
natural resources
of both waters
superadjacent to
the seabed and
those
of
the
seabed
and
subsoil
Do not pertain to
sedentary species
V. SETTLEMENT OF DISPUTES
A. Peaceful Settlement of Disputes
Under par. 3, Art. 2 of the UN Charter,
States have the duty to settle disputes by
peaceful means. This obligation extends to
State Parties of the UNCLOS, underscoring
the right of the parties to resort to peaceful
means of their own choice on which they
can agree any time.
B. Compulsory
Disputes
Settlement
of
E. Jurisdiction of ITLOS
Its
jurisdiction
covers
all
disputes
submitted to it in accordance with the
UNCLOS.
It
also
includes
matters
submitted to it under any other agreement.
Duty
to
manage
and
conserve
living
resources
Rights of
the coastal
state as to
natural
resources
Continental
Shelf
No duty
b. Self-Defense
(Asked 2 times in the Bar)
Requisites:
i. There be an armed attack;
An armed attack is understood as
including not merely action by regular
armed forces across an international
border, but also "the sending by or on
behalf of a State of armed bands,
groups, irregulars or mercenaries, which
carry out acts of armed force against
another State of such gravity as to
amount to" (inter alia) an actual armed
attack conducted by regular forces, "or
its substantial involvement therein"
(Art.3(g),
Definition
of
Aggression
annexed to General Assembly resolution
3314 [XXIX])
A. General Rule
States are to refrain in their international
relations from the threat or use of force
against the territorial integrity or political
independence of any state, or in any
manner inconsistent with the purposes of
the United Nations.
B. Exceptions
(Asked 2 times in the Bar)
b. Humanitarian Intervention
The forcible intervention by external
actors (ex. the international community
through the UN) into a state that is
unwilling or unable to prevent or rectify
massive violations of human rights (ex.
Genocide).
Humanitarian intervention, it has been
argued, finds legal support under
Art.1(3), UN Charter may provide a
basis for the use of force to.
their
available
resources
may
be
restricted for the
general welfare,
with or without
an emergency
that
threatens
the
independence or
security of a
State Party.
III.INTERNATIONALIZATION
HUMAN RIGHTS
II. CLASSIFICATION
RIGHTS
OF
Obligatory
Force under
International
Law
First
generation
strictly
(or
objectively)
obligatory,
whatever the
economic or
other
conditions of
the
states
obligated
Second
generation
relatively
obligatory:
States
are
required
to
progressively
achieve the full
realization
of
these rights to
the maximum of
A. Convention
The
first
important
multilateral
convention protecting human rights was
the United Nations Charter, which
imposes the obligation to promote and
protect human rights (UN Charter, Art
1(1), par. 2).
HUMAN
OF
may only be
derogated in a
public
emergency
B. Custom
acceptance of the UN
of Human Rights as a
of international human
evidence that international
Derogation/
Restriction,
when
allowed
custom
protects
(MERON).
human
rights
These are
1.) the Universal Declaration of Human
Rights,
2.) the International Covenant on Civil
and Political Rights, and
3.) the International Covenant on
Economic, Social and Cultural
Rights.
VI. SPECIFIC
RIGHTS
HUMAN
IN
A. Genocide
C. International
Covenant
on
Economic, Social and Cultural
Rights (ICESCR)
NORMS
Acts Punishable
to
B. Torture
The Convention Against Torture and Other
Cruel, Inhumane or Degrading Punishment
defines torture as any act by which severe
pain or suffering, whether physical or
mental, is intentionally inflicted on a
person for such purposes as
1. Obtaining from him or a third person
information or a confession;
2. Punishing him for an act he or a third
person has committed, or is suspected
of having committed;
3. Intimidating or coercing him or a third
person;
4. For any reason based on discrimination
of any kind
E. Refugee Law
Chapter X. International
Humanitarian Law
I. DEFINITION
CONFLICT
OF
ARMED
II. FUNDAMENTAL
IHL
PRINCIPLES OF
XII.ARMED CONFLICT
XIII.
FUNDAMENTAL PRINCIPLES OF IHL
XIV.
APPLICATION OF IHL
XV. THE FOUR GENEVA CONVENTIONS AND
THE TWO ADDITIONAL PROTOCOLS
XVI.
APPLICATION
XVII. CONCEPTS
G. COMBATANTS
H. HORS DE COMBAT
I. PROTECTED PERSONS
J. THE MARTENS CLAUSE
K. MILITARY OBJECTIVE
L. BELLIGERENCY STATUS
XVIII. IHL AND WEAPONS OF MASS
DESTRUCTION
XIX. NON-INTERNATIONAL ARMED
CONFLICT
D. COMMON ARTICLE 3 AND PROTOCOL
II
E. CONTROL OF TERRITORY
F. WAR OF NATIONAL LIBERATION
XX. NEUTRALITY
XXI.
PROTECTIVE EMBLEMS
D. WHO MAY USE
E. MISUSE OF EMBLEM
F. PUNISHMENT
XXII. THE INTERNATIONAL CRIMINAL
COURT (ICC)
F. CRIMES WITHIN THE COURTS
JURISDICTION
G. MODES OF INCURRING CRIMINAL
LIABILITY
H. SOURCES OF LAW
I. OTHER KEY CONCEPTS
J. LANDMARK CASES
III.APPLICATION OF IHL
IV. THE
FOUR
GENEVA
CONVENTIONS AND THE TWO
ADDITIONAL PROTOCOLS
C. Protected Persons
B. Hors de combat
sick,
and
D. Martens clause
the
E. Military Objective
F. Belligerency Status
Attacks
which
are
considered
indiscriminate, or those that do not
distinguish between military objectives
and civilians or civilian objects, are:
1. Those which are not directed at a
specific military objective;
2. Those which employ a method or
means of combat which cannot be
directed at a specific military
objective; or
3. Those that employ a method or
means of combat the effect of which
cannot be limited as required by the
protocol.
An
attack
is
also
considered
indiscriminate if it may be expected to
cause incidental loss to human life,
Nuclear Weapons
In its advisory opinion in Legality of the
Threat or Use of Nuclear Weapons, the ICJ
expressed that nuclear weapons, having
been developed after most of the principles
and rules of IHL applicable to armed
conflicts, are governed by such principles
and rules.
B. Control-of-territory
IX. NEUTRALITY
(Asked 1 time in the Bar)
Neutrality is the legal status of a State in
times of war,
by which it adopts impartiality in
relation to the belligerents with their
recognition.
The Hague Convention Respecting the
Rights and Duties of Neutral Powers (Oct.
18, 1907) governs the status of neutrality
by the following rules:
a. The territory of the neutral Power is
inviolable;
b. Belligerents are forbidden to move
troops or munitions of war and supplies
across the territory of a neutral Power;
c. A neutral power is forbidden to allow
belligerents to use its territory for
moving
troops,
establishing
communication facilities, or forming
corps of combatants.
d. Troops of belligerent armies received by
a neutral Power in its territory shall be
interned by away from the theatre of
war;
e. The neutral Power may supply them
with food, clothing or relief required by
humanity;
f. If the neutral Power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in
its territory;
g. The neutral power may authorize the
passage into its territory of the sick and
It applies to:
all armed conflicts which take place
in the territory of a State Party,
between its armed forces and
dissident armed forces or other
organized groups
which, under responsible command,
exercise such control over a part
of its territory
as to enable to carry out sustained
and concerted military operations
and to implement the Protocol.
Protecting Power
C. Punishment
X. PROTECTIVE EMBLEMS
Emblems:
1. Red Cross (Geneva Conventions)
2. Red Crescent (Geneva Conventions)
3. Red Crystal (Third Additional Protocol to
the Geneva Conventions)
Note: Protocol III is an amendment to the
Geneva Conventions relating to the
Adoption of an Additional Distinctive
Emblem for use by national societies. It
entered into force on 14 January 2007, six
months after the second ratification.
A. Crimes
within
Jurisdiction
the
Courts
B. Modes of
Liability
Incurring
Criminal
C. Sources of Law
The Court shall apply:
1. In the first place, this Statute, the
Elements of Crimes and its Rules of
Procedure and Evidence;
2. In the second place, applicable treaties
and the principles and rules of
international
law,
including
the
established
principles
of
the
international law of armed conflict;
3. Failing that, General principles of law
derived by the Court from national laws
of legal systems of the world including,
as appropriate, the national laws of
States that would normally exercise
jurisdiction over the crime, provided
that
those
principles
are
not
inconsistent with this Statute and with
international law and internationally
recognized norms and standards.
Page 305 of 313
E. Landmark Cases
1. The Case of Thomas Lubanga Dyilo
Thomas Lubanga Dyilo is a former rebel
leader from the Democratic Republic of the
Congo. He founded and led the Union of
Congolese Patriots (UPC) and was a key
player in the Ituri conflict. Rebels under his
command have been accused of massive
human rights violations, including ethnic
massacres,
murder,
torture,
rape,
mutilation, and forcibly conscripting child
soldiers.
On 17 March 2006, Lubanga became the
first person ever arrested under a warrant
issued by the International Criminal Court.
He is on trial for the war crime of enlisting
children under the age of fifteen years and
using them to participate actively in
hostilities.
Page 306 of 313
I. AGENTS
OF
INTERCOURSE
It is composed of:
1. Head of Mission classified into: (a)
Ambassadors or nuncios accredited to
Heads of State, and other heads of
mission of equivalent rank; (b) Envoys,
Ministers and Internuncios accredited
to Heads of State; (c) Charges daffaires
accredited to Ministers of Foreign
Affairs.
2. Diplomatic Staff those engaged in
diplomatic activities and are accorded
diplomatic rank.
3. Administrative and Technical Staff
thise employed in the administrative
and technical service of the mission.
4. Service Staff those engaged in the
domestic service of the mission
(NACHURA REVIEWER)
DIPLOMATIC
A. Head of State
The head of State represents the
sovereignty of the State, and enjoys the
right to special protection for his physical
safety and the preservation of his honor
and reputation.
Upon the principle of exterritoriality, his
quarters, archives, property and means of
transportation are inviolate.
He is immune from criminal and civil
jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or
exchange or currency restrictions.
III.DIPLOMATIC
PRIVILEGES
IMMUNITIES
AND
A. Personal Inviolability
Premises
E. Exemption
from
Customs Duties
Taxes
i.
ii.
iii.
iv.
and
v.
and
of
B. Inviolability
Archives
A. Ranks
1. Consul General: heads several consular
districts, or one exceptionally large
consular district.
2. Consul: in charge of a small district or
town or port.
3. Vice Consul: assists the consul.
4. Consular agent: one entrusted with the
performance of certain functions by the
consul.
B. Necessary Documents
THE
AS
I. DANIEL
SMITH
AND
THE
VISITING FORCES AGREEMENT
OF
pursuit
of
III.VIOLENCE
AGAINST
WOMEN
(VAW) AS A FORM OF TORTURE*
State acquiescence in domestic violence can
take many forms, some of which may be
subtly disguised. For instance, Civil laws
that appear to have little to do with violence
also have an impact on womens ability to
protect themselves and assert their rights.
Laws that restrict womens right to divorce
or inheritance, or that prevent them from
gaining custody of their children, receiving
financial compensation or owning property,
all serve to make women dependent upon
men and limit their ability to leave a violent
situationStates
should
be
held
accountable for complicity in violence
against women, whenever they create and
implement discriminatory laws that may
trap women in abusive circumstances
Nowak, Manfred, Special Rapporteur, Report on
Torture and Other Cruel, Inhuman or Degrading
Treatment Or Punishment for Item 3 of the
Provisional Agenda: Promotion and Protection of All
Human Rights, Civil, Including The Right To
Development during the Seventh Session of the United
Nations Human Rights Council last January 15, 2008.
*
International
law
has
developed
considerably over the years to become more
gender-inclusive. In 1996, the Special
Rapporteur on violence against women
stated that: the argument that domestic
violence should be understood and treated
as a form of torture and, when less severe,
ill-treatment,
is
one
that
deserves
consideration by the rapporteurs and treaty
bodies that investigate these violations
together perhaps with appropriate NGO
experts and jurists.
In 2000, the Human Rights Committee
indicated that domestic violence can
give rise to violations of the right not to
be subjected to torture or ill-treatment
under article 7 of the ICCPR.
In line with this statement the Committee
has mentioned the need for States to adopt
specific legislation combating domestic
violence, including legislation criminalizing
marital rape. More specifically, it has called
upon States to ensure that their justice
systems incorporate restraining orders to
protect
women
from
violent
family
members, provide shelters and other
support to victims, establish measures to
encourage women to report domestic
violence to the authorities, and offer
material and psychological relief to the
victims.
REVIEWER IN PUBLIC
UBLIC INTERNATIONAL LAW
Appendices
Appendix 1
Appendix 2