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CONSTITUTIONAL LAW 2
attainment of the object sought and not unduly vehicles to install specific early warning devices to
oppressive upon individuals. [Lucena Grand Central reduce road accidents. Agustin already installed
Terminal v. JAC Liner (2005)] warning devices in his car but they were not the
same ones specified in the LOI. He argued that the 68
The SC Upheld the validity of Administrative Orders said LOI violated the police power of the state for
which converted existing mine leases and other being oppressive, arbitrary and unconscionable.
mining agreements into production-sharing
agreements within one year from effectivity. The Police power, public safety: The Court identified
subject sought to be governed by the AOs are police power as a dynamic agency, suitably vague
germane to the object and purpose of E.O. 279 and and far from precisely defined, rooted in the
that mining leases or agreements granted by the conception that men in organizing the state and
State are subject to alterations through a reasonable imposing upon its government limitations to
exercise of police power of the State. [Miners safeguard constitutional rights did not intend to
Association of the Philippines v. Factoran, 240 SCRA enable an individual citizen or a group of citizens to
100] obstruct unreasonably the enactment of such
salutary measures calculated to communal peace,
c. Illustrations on the Exercise of Police Power safety,
Court, agood order,
heavy and welfare.
burden According
lies in the hands toof the
the
General Welfare petitioner who questions the state‘s police power if
it was clearly intended to promote public safety.
RA 9257, the Expanded Senior Citizens Act of 2003, [Agustin vs. Edu, (1979)]
is a legitimate exercise of police power.
Administrative Order No. 177 issued by the Public Morals
Department of Health, providing that the 20%
discount privilege of senior citizens shall not be Ermita Malate Hotel and Motel Operations Assoc.
limited to the purchase of unbranded generic assails the constitutionality of Ordinance No. 4760.
medicine but shall extend to both prescription and
non-prescription medicine, whether branded or The grounds adduced were: (1) unreasonable and
generic, is valid. When conditions so demand, as violative of due process insofar as it would impose
determined by the legislature, property rights must different fees for different classes of hotels/motels
bow to the primacy of police power because and prohibit 18 year-olds from being accepted in
property rights, though sheltered by the due process such hotels, unless accompanied by parents or a
clause, must yield to the general welfare.[Carlos lawful guardian and making it unlawful for the
Superdrug Corporation v. DSWC et al. G.R. No. owner, manager, keeper or duly authorized
166494, June 29, 2007] representative of such establishments to lease any
room or portion more than twice every 24 hours, and
National Security (2) invasion of the right to privacy and the guaranty
against self-incrimination because it requires clients
SC upheld the constitutionality of RA 1180 (An Act to to fill up the prescribed form in a lobby open to
Regulate the Retail Business) which sought to public view at all times and in his presence, wherein
nationalize the retail trade business by prohibiting personal information are mandated to be divulged.
aliens in general from engaging directly or indirectly
in the retail trade. Aliens did not question the Police power, public morals: The mantle of
exercise of police power; they claim, however, that protection associated with the due process guaranty
there was a violation of the due process and equal does not cover petitioners. This particular
protection clauses. [Ichong vs. Hernandez (1957)] manifestation of a police power measure being
specifically aimed to safeguard public morals is
Scope of the police power: Since the Courts cannot immune from such imputation of nullity resting
foresee the needs and demands of public interest purely on conjecture and unsupported by anything of
and welfare, they cannot delimit beforehand the substance. Police power is "that inherent and
extent or scope of the police power by which and plenary power in the State which enables it to
through which the state seeks to attain or achieve prohibit all that is hurtful to the comfort, safety,
public interest and welfare. and welfare of society xxx There is no question but
that the challenged ordinance was precisely enacted
Police power and national security:―The disputed to minimize certain practices hurtful to public
law was enacted to remedy a real actual threat and morals. [Ermita-Malate Motel and Motel Operators
danger to national economy posed by alien Assn. vs. City Mayor of Manila (1967)]
dominance and control of the retail business; the
enactment clearly falls within the scope of the The case of White Light vs. City of Manila was
police power of the State, thru which and by which termed by Justice Tinga as a ―middle case‖. It was
it protects its own personality and insures its meant to identify its case within a spectrum of cases
security and future.‖ decided by the Supreme Court which dealt with
ordinances which has for its view the regulation of
Public Safety public morals.
Agustin questions President Marcos‘ Letter of It is called a ―middle case‖ because unlike its
Instruction No. 229 compelling owners of motor predecessors where the issue is either a wholesale
POLITICAL LAW REVIEWER
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This case churned out three standards for judicial It is the enforced proportional contributions from
review: the STRICT SCRUTINY TEST for laws dealing persons and property, levied by the State by virtue
with freedom of the mind and curtailment of of its sovereignty, for the support of the government
political process and the RATIONAL BASIS STANDARD and for all public needs.
OF REVIEW for economic legislation. A third standard
was created known as the IMMEDIATE SCRUTINY for It is as broad as the purpose for which it is given.
evaluating standards based on gender and
legitimacy. Purpose:
(1) To raise revenue
The Supreme Court justified the application of the (2) Tool for regulation
strict scrutiny test to this particular ordinance (3) Protection/power to keep alive
despite its lack of political significance by saying
that it is not gravitas alone which is sheltered by the Tax for special purpose [Sec. 29 (3), Art. VI]:
Bill of Rights. It is precisely these reflexive exercises Treated as a special fund and paid out for such
of fundamental acts which best reflect the degree of purpose only; when purpose is fulfilled, the balance,
liberty enjoyed. if any shall be transferred to the general funds of
the Government. See: Osmena v. Orbos, 220 SCRA
Sexual behavior is one of these fundamental acts 703
covered by the penumbra of rights. While the reality
of illicit activity is judicially recognized, it cannot be Scope and Limitation
denied that sexual behavior between consenting
adults is constitutionally protected. General Limitations
(1) Power to tax exists for the general welfare;
Apart from the right to privacy, the ordinance also should be exercised only for a public
proscribes other legitimate activities most of which purpose
are grounded on the convenience of having a place (2) might be justified as for public purpose
to stay during the short intervals between travels. even if the immediate beneficiaries are
private individuals
The Ordinance was struck down as an arbitrary (3) Tax should not be confiscatory : If a tax
intrusion to private rights. It made no distinction measure is so unconscionable as to amount
between lodgings and placed every establishment as to confiscation of property, the Court will
susceptible to illicit patronage. [Cf. White Light invalidate it. But invalidating a tax measure
Corporation, et al vs. City of Manila (2009)] must be exercised with utmost caution,
otherwise, the State‘s power to leg islate for
Eminent Domain the public welfare might be seriously
curtailed
a. Definition and Scope (4) Taxes should be uniform and equitable [Sec.
28(1), Art. VI]
The power of eminent domain is the inherent right
of the State to condemn private property to public The legislature has discretion to determine the
use upon payment of just compensation. It also nature, object, extent, coverage, and situs of
known as the power of expropriation. taxation. But where a tax measure becomes so
unconscionable and unjust as to amount to
It is well settled that eminent domain is an inherent confiscation of property, courts will not hesitate to
power of the state that need not be granted even by strike it down, for despite all its plenitude, the
the fundamental law. Sec. 9, Art. III merely imposes power to tax cannot override constitutional
a limit on the government‘s exercise of this power. prescriptions. [Tan v. del Rosario, 237 SCRA 324]
[Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].
POLITICAL LAW REVIEWER
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All revenues and assets of non-stock, non-profit a. Requisites for a valid taking [Republic v.
educational institutions used actually, directly and Castelvi, 58 SCRA 336]:
exclusively for educational purposes shall be exempt (1) The expropriator must enter a private
from taxes and duties. xxx Proprietary educational property
institutions, including those co-operatively owned,
may likewise be entitled to such exemptions subject All private property capable of ownership
to the limitations provided by law including may be expropriated, except money and
restrictions on dividends and provisions for choses in action. [Republic v. PLDT, 26
reinvestment. [Sec. 4(3), Art. XIV] SCRA 620]
Subject to conditions prescribed by law, all grants, (2) Entry must be for more than a momentary
endowments, donations, or contributions used period
actually, directly and exclusively for educational (3) Entry must be under warrant or color of
purposes shall be exempt from tax. legal authority
POLITICAL LAW REVIEWER
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(4) Property must be devoted to public use or Delegated tax legislation: Congress may delegate
otherwise informally appropriated or law-making authority when the constitution itself
injuriously affected specifically authorizes it.
71
Utilization of the property must be in such a way as 3. Similarities and Differences
to oust the owner and deprive him of beneficial
enjoyment of the property
Similarities (Nachura)
When is there taking in the constitutional case?
(1) Inherent in the State (Exercised even
When the owner is deprived of his proprietary rights without need of express constitutional
there is taking of private property. Examples: grant)
(1) The imposition of a right-of-way easement (2) Necessary and indispensable (State cannot
was held to be taking. The exercise of the be effective without them)
power of eminent domain does not always (3) Method by which state interferes with
result in the taking or appropriation of title private property
to the expropriated property; it may also (4) Presuppose equivalent compensation
(5) Exercised primarily by the legislature
result in theofimposition
the owner of a burden
the condemned upon
property,
without loss of title or possession.[NPC v. Differences
Gutierrez, 193 SCRA 1] Police Eminent Taxation
(2) May include trespass without actual eviction Power Domain
of the owner, material impairment of the Compensat None Just None
value of the property or prevention of the ion (The compensat (The
ordinary uses for which the property was altruistic ion protection
intended. [Ayala de Roxas v. City of Manila, feeling (Full and given and
9 Phil 215] that one fair public
(3) A municipal ordinance prohibiting a building has equivalent improveme
which would impair the view of the plaza contribute of the nts
from the highway was likewise considered d to the property instituted
taking. [People v. Fajardo, 104 Phil. 44] public taken) by the
good required. State
b. Adequacy of compensation [NACHURA because of
The full and fair equivalent of the property taken; it ]) these taxes
is the fair market value of the property. [NACHURA]
)
Fair market value – is the sum of money which a Use of Not Appropriat Use taxing
person, desirous but not compelled to buy, and an Property appropria ed for power as
owner, willing but not compelled to sell, would ted for public use an
agree on as a price to be given and received public use implement
therefore. for the
attainment
However, where only a PORTION of the property is of a
taken, the owner is entitled only to the market value legitimate
of the portion actually taken and the consequential police
damage to the remaining part. objective—
to regulate
Note: Just compensation means not only the correct a business
amount to be paid but also payment within or trade
reasonable time from its taking. [Esteban v. De Objective To Property Earn
Onorio, G.R. No. 146062, June 28, 2001] destroy taken for revenue
noxious public use; for the
property it is not governmen
Taxation or to necessarily t
restrain noxious
Equal protection clause: taxes should be uniform the
(persons or things belonging to the same class shall noxious
be taxed at the same rate) and equitable (taxes use of
should be apportioned among the people according property
to their ability to pay) Coverage Liberty Property Property
and rights only rights only
Progressive system of taxation: The rate increases Property
as the tax base increases, with basis as social justice
Taxation as an instrument for a more Police power is the power of the State to promote
equitable distribution of wealth public welfare by restraining and regulating the use
of liberty and property. The power of eminent
domain is the inherent right of the state to condemn
POLITICAL LAW REVIEWER
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health and bawdy houses to protect the Note: NOTICE is an essential element of due
public morals. [Ynot vs. IAC (1987)] process, otherwise the Court will not acquire
jurisdiction and its judgment will not bind the
defendant. 75
In such instances, previous judicial hearing may be
omitted without violation of due process in view of:
1) the nature of the property involved; or 2) the To be meaningful, it must be both as to time and
urgency of the need to protect the general welfare place.
from a clear and present danger.
Service of summons is not only required to give the
court jurisdiction over the person of the defendant
1. Relativity of Due Process but also to afford the latter the opportunity to be
heard on the claim made against him. Thus,
compliance with the rules regarding the service of
2. Procedural and Substantive Due summons is as much an issue of due process as of
Process jurisdiction. [Sarmiento v. Raon, G.R. No. 131482,
July 3, 2002]
Concerns with government action on established The Supreme Court reiterated that the right to
process when it makes intrusion into the private appeal is not a natural right nor part of due process;
sphere it is merely a statutory privilege, and may be
exercised only in the manner and in accordance with
the provisions of law. [Alba v. Nitorreda, 254 SCRA
Substantive Due Process
753]
Substantive due process, asks whether the
(4) Judgment must be rendered upon lawful
government has an adequate reason for taking away
hearing and must clearly explain its factual
a person’s life, liberty, or property. [City of Manila
and legal bases... [Sec. 14, Art. VIII; Banco
vs. Laguio (2005)]
Español-Filipino vs. Palanca (1918)]
In other words, substantive due process looks to Note: The allowance or denial of motions for
whether there is a sufficient justification for the
extension rests principally on the sound discretion of
government‘s action.
the court to which it is addressed, but such
discretion must be exercised wisely and prudently,
Substantive due process is an aspect of due process
with a view to substantial justice. Poverty is
which serves as a restriction on thelaw-making and
recognized as a sufficient ground for extending
rule-making power of the government.
existing period for filing. Theright to appeal is part
of due process of law . [Reyes vs. CA (1977)]
The law itself, not merely the procedures by which
the law would be enforced, should be fair,
In Administrative Agencies
reasonable, and just. The Ang Tibay Rules:
(1) Right to a hearing to present own case and
It guarantees against the arbitrary power even when
submit evidence in support thereof.
exercised according to proper forms and procedure.
(2) Tribunal must consider the evidence
presented.
b. Requisites (3) Decision rendered must have support.
(4) Evidence which supports the finding or
Procedural Due Process conclusion is substantial (such relevant
evidence as a reasonable mind accept as
In Civil Proceedings adequate to support a conclusion).
Requisites (5) The decision must be rendered on the
(1) An impartial court of tribunal clothed with evidence presented at the hearing, or at
judicial power to hear and determine the least contained in the record and disclosed
matter before it. to the parties affected.
(2) Jurisdiction must be lawfully acquired over (6) The tribunal or any of its judges, must act
the person of the defendant and over the on its or his own independent consideration
property subject matter of the proceeding of the law and facts of the controversy, and
[Banco Español vs. Palanca (1918)] not simply accept the views of a
subordinate in arriving at a decision.
POLITICAL LAW REVIEWER
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(7) The tribunal should, in all controversial unjustly terminated without just cause after notice
questions, render its decision in such a and hearing. [Agabon v. NLRC (2004)]
manner that the parties to the proceeding
can know the various issues involved, and The Labor Code requires twin requirements of notice 76
the reasons for the decision rendered. [Ang and hearing for a valid dismissal. However, the Court
Tibay vs. CIR (1940)] in Serrano v. NLRC clarified that this ―procedural
due process‖ requirement is not constitutional but
In Criminal Proceedings merely statutory, thus a violation of such
See Rights of the Accused, Topic 1 Criminal Due requirement does not render the dismissal void.
Process
There are three reasons why violation by the
In Academic Disciplinary Proceedings employer of the notice requirement cannot be
Requisites considered a denial of due process resulting in the
(1) The students must be informed in writing of nullity of the employee's dismissal or layoff. xxx The
the nature and cause of any accusation first is that the Due Process Clause of the
against them; Constitution is a limitation on governmental powers.
(2) They shall
charges havethem,
against the with
right the
to assistance
answer theof It does
such as not
theapply to the exercise
termination of privateunder
of employment power,
the
counsel, if desired; Labor Code. x x x The second reason is that notice
(3) They shall be informed of the evidence and hearing are required under the Due Process
against them; Clause before the power of organized society are
(4) They shall have the right to adduce brought to bear upon the individual. This is obviously
evidence in their own behalf; not the case of termination of employment under
(5) The evidence must be duly considered by Art. 283. x x x The third reason why the notice
the investigating committee or official requirement under Art. 283 cannot be considered a
designated by the school authorities to hear requirement of the Due Process Clause is that the
and decide the case [Non vs. Judge Dames employer cannot really be expected to be entirely
(1990)] an impartial judge of his own cause. [Serrano v.
NLRC (2000)]
Substantive Due Process
4. Hierarchy of Rights
Laws which interfere with life, liberty or property
satisfy substantive due process when there is:
When the Bill of Rights also protects property rights,
the primacy of human rights over property rights is
(1) Lawful object i.e. the interests of the
recognized. Because these freedoms are ―delicate
public in general (as distinguished from
and vulnerable, as well as supremely precious in our
those of a particular class) require the
society‖ and the ―threat of sanctions may deter
(2) intervention
Lawful means of the
i.e.State,
meansandemployed are their exercise almost as potently as the actual
application of sanctions,‖ they ―need breathing
reasonably necessary for the
space to survive,‖ permitting government regulation
accomplishment of the purpose and not
only ―with narrow specificity.‖ [Philippine Blooming
unduly oppressive on individuals. [US vs.
Mills Employees Organization v. Philippine Blooming
Toribio (1910)]
Mills Co., Inc (1973)]
Publication of laws is part of substantive due
If the liberty involved were freedom of the mind or
process. [Tañada vs. Tuvera (1986)]
the person, the standard for the validity of
governmental acts is much more rigorous and
3. Constitutional and Statutory Due exacting, but where the liberty curtailed affects at
Process the most rights of property, the permissible scope of
regulatory measure is wider. [Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor
Due process under the Labor Code, like
of Manila (1967)]
constitutional due process, has two aspects:
substantive (i.e. the valid and authorized causes of
employment termination), and procedural (i.e. the Under the present provision, understood in the light
of established jurisprudence on the position of
manner of dismissal). . . Breaches of these due
property in the hierarchy of constitutional values,
process requirements violate the Labor Code, not
property stands a good chance of serving and
the Constitution. Therefore, statutory due process
enhancing the life and liberty of all. Running through
should be differentiated from failure to comply with
constitutional due process. various provisions of property
the Constitution are with
various
provisions to protect —but always the
explicit or implicit reminder that property has a
Constitutional due process protects the individual
social dimension and that the right to property is
from the government and assures him of his rights in
weighted with a social obligation. [Bernas]
criminal, civil or administrative proceedings; while
statutory due process found in the Labor Code and
Implementing Rules protects employees from being
POLITICAL LAW REVIEWER
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5. Judicial Standards of Review necessarily guess at its meaning and differ as to its
application." It is subject to the same principles
governing overbreadth doctrine. For one, it is also an
a. ―Rational Basis Test‖ analytical tool for testing "on their faces" statutes in 77
free speech cases. Like overbreadth, it is said that a
The classification should bear a reasonable relation litigant may challenge a statute on its face only if it
to government's purpose, and the legislative is vague in all its possible applications.
classification is presumed valid.
A facial review of PP 1017 on the ground of
Notes: vagueness is unwarranted. Petitioners did not even
Important when there is no plausible attempt to show that PP 1017 is vague in all its
difference between the disadvantaged class application. They also failed to establish that men of
and those not disadvantaged. common intelligence cannot understand the meaning
Also important when the government attaches and application of PP 1017. [David vs. Arroyo (2006)]
a morally irrelevant and negative
significance to a difference between the VOID FOR VAGUENESS DOCTRINE: An accused is
advantaged and the disadvantaged.
denied the and
against him right to be
to DUE informed
PROCESS of the
where thestatute
charge
b. ―Strict Scrutiny Test‖ itself is couched in such INDEFINITE LANGUAGE that
it‘s not possible for men of ordinary intelligence to
This test is triggered when a fundamental determine therefrom what acts/omissions are
constitutional right is limited by a law. This requires punished. [People vs. Nazario (1988)]
the government to show anoverriding or compelling
government interest so great that it justifies the D. Equal Protection
limitation of fundamental constitutional rights (the
courts make the decision of WON the purpose of the 1. Concept
law makes the classification necessary). 2. Requisites for Valid Classification
What constitutes a reasonable or unreasonable (3) After personal examination under oath or
search and seizure in any particular case is purely a affirmation of the complainant and the
judicial question, determinable from a consideration witnesses he may produce.
of the circumstances involved. [Valmonte v. De
Villa, 178 SCRA 211] How it is done: In the form of searching
questions and answers, in writing and under
Objections to the warrant of arrest must be made oath (Rule 126, Sec. 6, ROC)
before the accused enters his plea. [People v.
Codilla, 224 SCRA 104; People v. Robles, G.R. No. Mere affidavits of the complainant and his
101335, June 8, 2000] witnesses are thus not sufficient.
The examining Judge has to take depositions
in writing of the complainant and the
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
witnesses he may produce and attach them conducted surveillance and test-buy ops before
to the record. obtaining the SW and subsequently implementing it .
Such written deposition is necessary in order They had personal knowledge of the identity of the
that the Judge may be able to properly persons and the place to be searched, although they 80
determine the existence or non-existence of did not specifically know the names of the accused.
the probable cause, to hold liable for [People vs. Tiu Won Chua (2003)]
perjury the person giving it if it will be
found later that his declarations are false GENERAL WARRANT: One that (1) does not describe
It is axiomatic that the examination must be with particularity the things subject of the search
probing and exhaustive, not merely and seizure; and (2) where probable cause has not
routinary or pro-forma,if the claimed been properly established. It is a void warrant.
probable cause is to be established. [Nolasco vs. Paño (1985)]
The examining magistrate must not simply
rehash the contents of the affidavit but EXCEPTION TO GENERAL WARRANTS: General
must make his own inquiry on the intent descriptions will not invalidate the entire warrant if
and justification of the application. [Roan other items have been particularly described. [Uy
vs. Gonzales (1984)] vs. BIR (2000)]
(4) On the basis of their personal knowledge of the Conduct of the Search(Sec. 7, Rule 126, ROC)
facts they are testifying to. In the presence of a lawful occupant thereof
or any member of his family, OR
(5) The warrant must describe particularly the If occupant or members of the family are
place to be searched and the persons or things absent, in the presence of 2 witnesses of
to be seized. - sufficient age
- discretion
Requirement is primarily meant to enable the law - residing in the same locality
enforcers serving the warrant to (1) readily identify Force may be used in entering a dwelling if
the properties to be seized and thus prevent them justified by Rule 126 ROC.
from seizing the wrong items; and (2) leave said
peace officers with no discretion regarding the Failure to comply with Sec. 7 Rule 126 invalidates
articles to be seized and thus prevent unreasonable the search. [People vs. Gesmundo (1993)]
searches and seizures. [People v. Tee, G.R. Nos.
140546-47, January 20, 2003] FORCIBLE ENTRY JUSTIFIED:
Occupants of the house refused to open the door
PLACE TO BE SEARCHED despite the fact that the searching party knocked
The search warrant issued to search petitioner‘s several times, and the agents saw suspicious
compound for unlicensed firearms was held invalid movements of the people inside the house.[People
for failing to describe the place with particularity, vs. Salanguit (2001)]
considering that the compound was made up of 200
buildings, 15 plants, 84 staff houses, 1 airstrip etc UNLAWFUL SEARCH:
spread out over 155 hectares. [PICOP vs. Asuncion Police officers arrived at appellant‘s residence and
(1999)] ―side-swiped‖ (sinagi) appellant‘s car (w hich was
parked outside) to gain entry into the house.
DESCRIPTION OF PLACE/THINGS Appellant‘s son, who is the only one present in the
The description of the property to be seized need house, opened the door and was immediately
not be technically accurate or precise. Its nature will handcuffed to a chair after being informed that they
vary according to whether the identity of the are policemen with a warrant to search the
property is a matter of concern. The description is premises. [People vs. Benny Go (2003)]
required to be specific only in so far as the
circumstances will allow. [Kho vs. Judge Makalintal 3. Warrantless Searches
(1999)]
DESCRIPTION OF PERSONS SEARCHED Evidence obtained in violation of Sec. 2 Art. III shall
Search warrant is valid despite the mistake in the be inadmissible for any purpose and in any
name of the persons to be searched. The authorities proceeding. [Stonehill vs, Diokno (1967)]
POLITICAL LAW REVIEWER
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Once the primary source is shown to have been Aguilar-Roque and Nolasco, allegedly connected w/
unlawfully obtained, any secondary or derivative the CPP-NPA and accused of rebellion and
evidence is also inadmissible. [Nardone vs. US subversion, assert that the search warrant in this 81
(1939)] case is void because (1) it doesn‘t sufficiently
describe things subject of the search & seizure and
It was alleged that Parliamentary Club was a (2) probable cause hasn‘t been established for lac k
gambling house; search warrant was obtained. of searching questions propounded to applicant‘s
Veloso read the warrant and said that he was not witness. Court ruled that the search warrant is void.
―John Doe‖. The Court ruled that the John Doe However, the Court also ruled that the search in
search warrant was valid and held that there is question did not need a search warrant. Under the
nothing to prevent issue and service of warrant Rules of Court, a person charged w/ an offense may
against a party whose name is unknown. Besides, the be searched for dangerous weapons or anything w/c
officers had the right to arrest the persons engaged may be used as proof of the commission of the
in prohibited game. An officer making an arrest may offense. As an incident of an arrest, the premises
take from the person arrested any money / property where the arrest was made can also be searched w/o
found upon
of crime, or his
wasperson,
the fruitw/c was crime,
of the used inorcommission
w/c may search warrant. [Nolasco vs Cruz Paño (1985)]
furnish the person w/ means of committing violence In this Motion for Partial Reconsideration of the 1985
or escaping, or w/c may be used as evidence on decision, the petitioners submit that a warrantless
trial, but not otherwise.[People vs. Veloso (1925)] search can be justified only if it‘s an incident to a
lawful arrest and that since Aguilar wasn‘t lawfully
Other specific situations: arrested, a search w/o warrant couldn‘t be made.
Quick Look: The SolGen offered no objection to declaration that
a. Search is an Incident to a Lawful Arrest. the search was illegal and to the return of the seized
b. Search of Moving Vehicles items. The Motion for Partial Reconsideration is
c. Plain View Doctrine granted. [Nolasco vs. Paño on M.R. (1987)]
d. Stop and Frisk Searches
e. Valid Express Waiver b. Search of Moving Vehicles
f. Customs search
g. Visual Search at Checkpoints Securing a search warrant is not practicable since
h. Conduct of ―Aerial Target Zoning‖ and the vehicle can be quickly moved out of the locality
―saturation drive‖ or jurisdiction in which the warrant must be sought
i. Exigent and Emergency Circumstances [Papa vs. Mago (1968)]
a. Search is an incident to a lawful arrest. c. Plain View Doctrine: Things seized are
within plain view of a searching party
Sec. 12, Rule 126, Rules of Court.Search incident
to lawful arrest . - A person lawfully arrested may Requisites
be searched for dangerous weapons or anything (1) Prior valid intrusion into a place;
which may be used as proof of the commission of an (2) Evidence:
offense, without a search warrant. inadvertently discovered
by police who had the right to be
where they were;
The provision is declaratory in the sense that
(3) Evidence must be immediately apparent
it is confined to the search, without a
and
search warrant, of a person who had been
(4) Noticed without further search [People vs.
arrested.
Musa; People vs. Sarap (2003)]
It is also a general rule that, as an incident of
an arrest, the place or premises where the
An object is in ―plain view‖ if t he object itself is
arrest was made can also be searched
plainly exposed to sight. Where the seized object is
without a search warrant. In this case, the
inside a closed package, the object is not in plain
extent and reasonableness of the search
view and, therefore, cannot be seized without a
must be decided on its own facts and
warrant. However, if the package proclaims its
circumstances.
contents, whether by its distinctive configuration, its
What must be considered is the balancing of
transparency, or if its contents are obvious to an
the individual‘s right to privacy and the
observer, then the content are in plain view, and
public‘s interest in the prevention of crime
may be seized. [Caballes v. Court of Appeals, G.R.
and the apprehension of criminals.[Nolasco
vs. Pano (1985)] No. 136282, January 15, 2002]
If the package is such that it contains prohibited
articles, then the article is deemed in plain view.
[People v. Nuevasm G.R. No. 170233, February 22,
Test for validity
2007]
Item to be searched was within the arrester‘s
custody;
Search was contemporaneous with the arrest
d. Stop and Frisk Searches
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
It is the State that has the burden of proving, by Arresting officer may take from the arrested
clear and convincing evidence, that the necessary individual any money or property found upon the
consent was obtained and that it was voluntarily and latter‘s person --- that which was used in the
freely given. [Caballes v. Court of Appeals, G.R. No. commission of the crime or was the fruit of the
136292, January 15, 2002] crime, or which may provide the person arrested
with the means of committing violence or escaping,
When accused checked in his luggage as passenger of or which may be used in evidence in the trial of the
a plane, he agreed to the inspection of his luggage in case. The search, must, however, be
accordance with customs laws and regulations, and contemporaneous to the arrest and made within a
thus waived any objection to a warrantless search. permissible area of search. [People v. Estella, G.R.
[People v. Gatward, 267 SCRA 785] Nos. 138539-40, January 21, 2003]
Searches of vessel and aircraft for violation of GENERAL RULE: Only the articles particularly
immigration and smuggling laws [Papa vs. Mago described in the warrant may be seized.
(1968)]
Property subject of an offense
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Stolen or embezzled property and other Following established doctrine and procedure, he
proceeds or fruits of an offense shall:
Used or intended to be used as a means of (1) Personally evaluate the report and the
committing an offense (Sec. 2 Rule 126, supporting documents submitted by the 83
ROC) fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
Where the warrant authorized only the seizure of warrant of arrest; or
shabu, and not marijuana, the seizure of the latter (2) If he finds no probable cause, he may
was held unlawful. [People vs. Salanguit, supra] disregard the fiscal's report and require the
submission of supporting affidavits of
It is not necessary that the property to be searched witnesses to aid him in arriving at a
or seized should be owned by the person against conclusion as to the existence of probable
whom the warrant is issued; it is sufficient that the cause. [Beltran vs. Makasiar (1988)]
property is within his control or possession. [Burgos
vs. Chief of Staff (1984)] Existence of probable cause: Such facts and
circumstances which would lead a reasonably
Requisites for Issuance of a Valid Arrest Though kidnapping w/ serious illegal detention is
Warrant deemed a continuing crime, it can be considered as
such only when the deprivation of liberty is
What the Constitution underscores is theexclusive persistent and continuing from one place to another.
and personal responsibility of the issuing judge to [Parulan vs. Dir of Prisons (1968)]
satisfy himself of the existence of probable cause . HOT PURSUIT: The arrest of the accused inside his
In satisfying himself of the existence of probable house following hot pursuit of the person who
cause for the issuance of a warrant of arrest, the committed the offense in flagrante was held valid.
judge is NOT required to personally examine the [People vs. De Lara (1994)]
complainant and his witnesses.
BUY-BUST: A buy-bust operation is a valid in
flagrante arrest. The subsequent search of the
person arrested and the premises within his
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
immediate control is valid as an incident to a lawful extrajudicial confession made by Burgos. However,
arrest. [People vs. Hindoy (2001)] Burgos claimed that he had been mauled and hit
repeatedly until he would admit and sign an
EXCEPTION TO BUY-BUST: Instead of arresting the extrajudicial confession. 84
suspect after the sale in a buy-bust op, the officer
returned to the police headquarters and filed his Exceptions to warrant of arrest: Art. IV, Sec. 3 of
report. It was only in the evening that he, without the Constitution safeguards against wanton and
warrant, arrested the suspect at his house where unreasonable invasion of the privacy and liberty of a
dried marijuana leaves were found and seized. This citizen as to his person, papers, and effects. Rule
is unlawful arrest.[People vs. Rodrigueza] 113, Sec. 6 of the Rules of Court provides the
exceptions to the warrant requirement.
2. When an offense has just been committed and
he has probable cause to believe based on However, the instant case does not fall under any of
personal knowledge of facts or circumstances that the exceptions in Rule 113, Sec. 6. First, it requires
the person to be arrested has committed it; that the officer arresting a person who has
committed, is committing, or is about to commit an
offense
The offense have personal
must must knowledge
be committed in hisofpresence
that fact.or
Requisites:
(1) Offense had JUST been committed; within his view. In the instant case:
(2) Person making the arrest has probable The knowledge as to the offense was furnished
cause to believe based on PERSONAL by Masamlok.
KNOWLEDGE. The location of the firearm was given by the
Burgos‘ wife.
Note: There must be a large measure ofimmediacy At the time of the arrest, Burgos was not in
between the time the offense is committed and the actual possession of any firearm or subversive
time of the arrest. If there was an appreciable lapse document.
of time between arrest and commission of crime, Neither was he committing any act which could
warrant of arrest must be secured. (NACHURA) be described as subversive. He was in fact
plowing his field at the time of his arrest.
Warrantless arrest of accused for selling marijuana 2
days after he escaped is invalid. [People vs Kimura It is clear that the arresting officers had no personal
(2004)] knowledge of the commission of the offense because
such information was only supplied to them by an
The police saw the victim dead at the hospital and informant.
when they inspected the crime scene, they found
the instruments of death. The eyewitnesses reported Neither has Burgos committed any offense in their
the happening and pointed to Gerente as one of the presence as he was merely plowing his field at the
time of arrest. On the other hand,Sec. 6 (b) of Rule
killers. Here
the killing wasthe warrantless
held valid sincearrest onlyknowledge
personal 3 hrs after 113 requires that a crime must in fact or actually
was established as to the fact of death and facts have been committed first. It is not enough that
indicating that Gerente killed the victim. [People vs there is reasonable ground to believe that the person
Gerente (1993)] to be arrested has committed a crime. That a crime
has actually been committed is an essential
PERSONAL KNOWLEDGE: Experience of an officer precondition. In the instant case, it was not even
which gives the idea that there is probable cause established that indeed a crime has been
that the person caught is responsible. It has been committed. The information that a crime was
ruled that ―personal knowledge of facts‖ in arrests probably committed was supplied by Masamlok who
without a warrant must be based on probable cause, did not even give his testimony under oath.
which means an actual belief or reasonable grounds
of suspicion. [Cadua v. Court of Appeals, G.R. No. Finally, the Court finds no compelling reason for the
123123, Aug. 19, 1999] haste of the arresting officers to arrest Burgos if
indeed he committed a crime. There is no showing
Burgos was convicted for the crime of Illegal that there was real apprehension that Burgos was on
Possession of Firearms in Furtherance of Subversion. the verge of flight or escape and that his
Masamlok claimed that he had been forcibly whereabouts are unknown. [People vs. Burgos
recruited by Burgos to the NPA, threatening him with (1986)]
the use of firearm against his life and family.
Masamlok was also allegedly threatened to attend an 3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
NPA seminar.
arrest The next
Burgos without day the authorities
a warrant. They found went
him into place where he is serving final judgment or is
his residence plowing his field. Burgos denied the temporarily confined while his case is pending, or
accusation, but his wife pointed to a place below has escaped while being transferred from one
their house where a gun was buried in the ground. confinement to another.
After the firearm was recovered, Burgos allegedly
pointed to a stock pile of cogon where he had hidden ADDITIONAL EXCEPTIONS (NOT IN THE RULES):
subversive documents. The prosecution presented an (1) When the right is voluntarily waived
(estoppel).
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
(1) Any system of prior restraints of expression (d) Incitements to acts of violence and the
comes to the Court bearing a heavy overthrow by force of orderly
presumption against its constitutionality, government
giving the government a heavy burden to 87
show justification for the imposition of such Subsequent Punishment
restraint. (New York vs. United States 1971)
(2) There need not be total suppression. Even Concept: Freedom of speech includes freedom after
restriction of circulation constitutes speech. Without this assurance, the citizen would
censorship [Grosjean vs. American Press hesitate to speak for fear he might be provoking the
Co., 297 US 233] vengeance of the officials he has criticized ( chilling
effect).
Examples of Unconstitutional Prior Restraint
(1) COMELEC prohibition against radio If criticism is not to be conditioned on the
commentators or newspaper columnists government’s consent, then neither should it be
from commenting on the issues involved in subject to the government‘s subsequent
a scheduled plebiscite [Sanidad vs. chastisement.
These reasons point to the Roxas administration, his ours which is both
an ascription, republican
whether andoregalitarian,
correct not, cannotsuchbe
disappointments and humiliations because of the defamatory.
former and his lack of power to put under Juez de
Cuchillo all the Roxas people in power. Finally, the It is to the standards of the national community, not
letter instructed the wife to teach their children to to those of the region that a court must refer
burn pictures of Roxas if they come across one. especially where a newspaper is national in reach
Espuelas admitted the fact that he wrote the letter and coverage. [Bulletin Publishing vs. Noel (1988)]
and caused its publication and that he had
impersonated one Alberto Reveniera and posed REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND
himself as Alberto Reveniera in a picture taken COVERED BY PRESS FREEDOM: Where the
wherein he was shown hanging by the end of a rope defamation is alleged to have been directed at a
tied to a limb of a tree. group/class, it is essential that the statement must
be so sweeping or all-embracing as to apply to every
Freedom of Expression, national security : The individual in that group or class, or sufficiently
letter is a scurrilous libel against the Government. It specific so that each individual in the class or group
suggests or incites rebellious conspiracies or riots can prove that the defamatory statement
and tends to stir up the people against the specifically pointed to him, so that he can bring the
constituted authorities, or to provoke violence from action separately, if need be.
opposition groups who may seek to silence the
writer, which is the sum and substance of the Also, the report in the Newsweek article referring as
it does to an official act performed by an elective
offense
criminal under
not onlyconsideration.
because they Such writings
tend to incite are
to a public official (i.e. that the victim had been arrested
breach of the peace but because they are conducive by members of special police unit brought by the
to the destruction of the very government itself. mayor of Kabankalan who incidentally is a sugar
Malicious endeavors to stir up public strife are planter), is w/in the realm of privilege and is
prohibited. protected by the constitutional guarantees of free
speech and press. [Newsweek vs. IAC (1986)]
Our Legislature has spoken in article 142 of the RPC
and the law must be applied. This kind of legislation Islamic Da‘Wah Council of the Philippines, Inc., a
must be weighed carefully vis-à-vis the fundamental local federation of more than 70 Muslim religious
right to freedom of speech. Such freedom, although organizations, filed a complaint for damages against
secured by the Constitution, does not confer an MVRS Publications, Inc., arising from an article,
absolute right to speak or publish without which says that the pig is sacred for the Muslims.
responsibility whatever one may choose. It is not
unbridled license that gives immunity for every Freedom of Expression, Libel: As the size of these
possible use of language and prevents the groups increases, the chances for members of such
punishment of those who abuse this freedom. groups to recover damages on tortious libel become
elusive. This principle is said to embrace two
The privilege of any citizen to criticize his important public policies: first, where the group
government and government officials and to submit referred to is large, the courts presume that no
his criticism to the "free trade of ideas" and to plead reasonable reader would take the statements as so
literally applying to each individual member; and
fornot
is its to
acceptance in "theHowever,
be restrained. competition of thecriticism
let such market" second, the limitation on liability would
be specific and therefore constructive, reasoned or satisfactorily safeguard freedom of speech and
tempered, and not a contemptuous condemnation of expression, as well as of the press, effecting a sound
the entire government set-up. compromise between the conflicting fundamental
interests involved in libel cases.
Such wholesale attack is nothing less than an
invitation to disloyalty to the government…. When
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Courts must be viewpoint-neutral when it comes to through a letter addressed to the Presidential
religious matters if only to affirm the neutrality Complaints and Actions Commission (PCAC). A
principle of free speech rights under modern contempt charge was brought against him for
jurisprudence where "all ideas are treated equal in sending that letter which tended to degrade the 89
the eyes of the First Amendment - even those ideas lower court in the eyes of the President and of the
that are universally condemned and run counter to people. SC reversed the ruling which cited him in
constitutional principles." contempt.
Under the right to free speech, "there is no such Freedom of Expression and the Administration of
thing as a false idea. However pernicious an opinion Justice: For his act (of sending his letter to the
may seem, we depend for its correction not on the President and not to the Sec of Justice or SC) to be
conscience of judges and juries but on the contemptuous, the danger must cause a serious
competition of other ideas." imminent threat to the administration of justice. We
cannot infer that such act has "a dangerous
Denying certiorari and affirming the appellate court tendency" to belittle the court or undermine the
decision would surely create a chilling effect on the administration of justice for the writer merely
constitutional
expression, andguarantees of freedom
of the press. [MVRSofv.speech,
Islamicof exercised
governmenthisforconstitutional
redress of aright to petition
legitimate the
grievance.
Da’Wah Council of the Phil (2003)] [Cabansag vs. Fernandez (1957)]
Freedom Parks. B.P. 880 provides that every city or group of persons organized for the purpose of
and municipality must set aside a freedom park engaging in terrorism, or which, although not
within six months from the law‘s effectivity in 1985, organized for that purpose, actually uses the acts to
or 20 years ago. Section 15 of the law provides for terrorize mentioned in this Act or to sow and create 90
an alternative forum through the creation of a condition of widespread and extraordinary fear
freedom parks where no prior permit is needed for and panic among the populace in order to coerce the
peaceful assembly and petition at any time. government to give in to an unlawful demand shall,
According to the SolGen (Nachura), however, he is upon application of the Department of Justice
aware of only ONE declared freedom park - Fuente before a competent Regional Trial Court, with due
Osmena in Cebu City. Without such alternative notice and opportunity to be heard given to the
forum, to deny the permit would in effect be to organization, association, or group of persons
deny the right. concerned, be declared as a terrorist and outlawed
organization, association, or group of persons by the
Hence, local governments are given a deadline of 30 said Regional Trial Court.
days within which to designate specific freedom
parks as provided under B.P. No. 880. If, after that The right to associate is not absolute.[People vs.
period, no such15parks
with Section are so
of the identified
law, in accordance
all public parks and Ferrer (1972)]
plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of Sec. 2 (5), Art 9-B. 1987 Constitution.The right to
whatever kind shall be required to hold an assembly self-organization shall not be denied to government
therein. The only requirement will be written employees.
notices to the police and the office of the mayor to
allow proper coordination and orderly activities.
Sec. 8, Art. 3, 1987 Constitution. The right of the
Permit Application. There is need to address the
people, including those employed in the public and
situation adverted to by petitioners where mayors do private sectors, to form unions, associations, or
not act on applications for a permit and when the societies for purposes not contrary to law shall not
police demand a permit and the rallyists could not be abridged.
produce one, the rally is immediately dispersed.
Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It
In such a situation, as a necessary consequence and shall guarantee the rights of all workers to self-
part of maximum tolerance, rallyists who can show organization, collective bargaining and negotiations,
the police an application duly filed on a given date and peaceful concerted activities, including the right
can, after two days from said date, rally in to strike in accordance with law. They shall be
accordance with their application without the need entitled to security of tenure, humane conditions of
to show a permit, the grant of the permit being then work, and a living wage. They shall also participate
presumed under the law, and it will be the burden of in policy and decision-making processes affecting
the authorities to show that there has been a denial their rights and benefits as may be provided by law.
of the application, in which case the rally may be
peacefully dispersed following the procedure of 3. Facial Challenges and the
maximum tolerance prescribed by the law.
Overbreadth Doctrine
Conclusion. For this reason, the so-called calibrated
pre-emptive response policy has no place in our legal Overbreadth Doctrine:A governmental purpose may
firmament and must be struck down as a darkness not be achieved by means which sweep
that shrouds freedom. It merely confuses our people unnecessarily broadly and thereby invade the area of
and is used by some police agents to justify abuses. protected freedoms.
On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or (1) Claims of facial overbreadth are
unduly restrict freedoms; it merely regulates the use entertained in cases involving statutes
of public places as to the time, place and manner of which by their terms seek to regulate only
assemblies. spoken words. Such claims have been
curtailed when invoked against ordinary
Far from being insidious, ―maximum tolerance‖ is for criminal laws that are sought to be applied
the benefit of rallyists, not the government. The to protected conduct.
delegation to the mayors of the power to issue rally (2) A facial challenge using the overbreadth
permits is valid because it is subject to the doctrine will require the Court to examine
constitutionally-sound clear and present danger PP 1017 and pinpoint its flaws and defects,
standard. [Bayan vs. Ermita (2006)] not on the basis of its actual operation to
petitioners, but on the assumption or
Freedom of Association and Self-Organization prediction that its very existence may cause
others not before the Court to refrain from
SEC. 17. Human Security Act constitutionally protected speech or
Proscription of Terrorist Organizations, Association, expression.
or Group of Persons. – Any organization, association,
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
(3) Also, the challenger must establish that Lovely as being involved in the series of bombings in
there can be no instance when the assailed Metro Manila.
law may be valid.
(4) Used on freedom of expression, when on 91
Direct Incitement Test: In the case before us, there
the face of a regulation, it appears is no teaching of the moral propriety of a resort to
sweeping. violence, much less an advocacy of force or a
conspiracy to organize the use of force against the
A plain reading of PP 1017 shows that it is not duly constituted authorities.
primarily directed to speech / speech-related
conduct. It is actually a call upon the AFP to prevent The alleged remark about the likelihood of violent
or suppress all forms of lawless violence. Petitioners struggle unless reforms are instituted is not a threat
did not show WON there‘s an instance when PP1017 against the government. Nor is it even the
may be valid. [David vs. Arroyo (2006)] uninhibited, robust, caustic, or unpleasantly sharp
attack which is protected by the guarantee of free
4. Tests speech.
In this case, the Petitioner was charged with Art. XVI Section 11. (1) The ownership and
violation of the Revised Anti-Subversion Act after management of mass media shall be limited to
being apparently implicated by a certain Victor citizens of the Philippines, or to corporations,
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Only Filipino citizens or corporations or associations According to Iglesia ni Cristo vs. CA : The law gives
at least seventy per centum of the capital of which the Board the power to screen, review and examine
is owned by such citizens shall be allowed to engage ALL ―television programs‖ whether religious, public
Movie Censorship The Supreme Court could not compel TV stations and
radio stations, being indispensable parties, to give
Gonzales was the producer of the movie Kapit sa UNIDO free air time as they were not impleaded in
Patalim w/c the Board of Review for Motion Pictures this case. UNIDO must seek a contract with these TV
and Televisions classified as fit ―For Adults Only.‖ stations and radio stations at its own expense.
[UNIDO vs COMELEC (1981)]
Here the Court held that the power of the Board is
limited to the classification of films. For freedom of The television camera is a powerful weapon which
intentionally or inadvertently can destroy an accused
expression
Censorshipis is
theallowable
rule and restrictions
only under thethe
exception.
clearest and his case in the eyes of the public.
proof of a clear and present danger of a
substantive evil to public safety, morals, health or Considering the prejudice it poses to the defendant‘s
any other legit public interest: right to due process as well as to the fair and orderly
(1) There should be no doubt what is feared administration of justice, and considering further
may be traced to the expression that the freedom of the press and the right of the
complained of. people to information may be served and satisfied by
(2) Also, there must be reasonable less distracting, degrading and prejudicial means,
apprehension about its imminence. It does live radio and television coverage of the court
not suffice that the danger is only proceedings shall not be allowed. No video shots or
probable. [Gonzales vs. Kalaw Katigbak photographs shall be permitted during the trial
(1985)] proper.
Limited intrusion into a person‘s privacy is Video footages of court hearings for news purposes
permissible when that person is a public figure and shall be limited and restricted as above indicated.
the information sought to be published is of a public [Secretary of Justice vs Sandiganbayan (2001)]
character.
Radio Censorship
What is protected is the right to be free from
unwarranted publicity, from the wrongful publicizing The Supreme Court does not uphold claim that Far
of the private affairs of an individual which are Eastern had no right to require the submission of the
outside the realm of public concern. [Ayer manuscript. It is a duty of Far Eastern to require the
Productions vs Capulong, supra] submission of a manuscript as a requirement in
broadcasting speeches. Besides, laws provide for
Television Censorship such actions:
P.D. 1986 gives the petitioner the power to screen, Act 8130. Franchise for Far Eastern; radio to be
review and examine all television programs. open to the general public but subject to regulations
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Comm. Act 98. Sec. of Interior and/or the Radio Art. III, Sec. 5. No law shall be made respecting an
Board is empowered to censor what is considered establishment of religion; or prohibiting the free
―neither moral, educational or ent ertaining, and exercise thereof. The free exercise and enjoyment
prejudicial to public interest.‖ The Board can 93
of religious profession and worship, without
forfeit the license of a broadcasting station. discrimination or preference, shall forever be
allowed. No religious test shall be required for the
Sec. of the Interior, Dept. Order 13. Requires exercise of civil or political rights.
submission of daily reports to Sec. of Interior/Radio
Board re: programs before airing. For speeches, a
manuscript or short gist must be submitted .
1. Non-Establishment Clause
[Santiago vs. Far Eastern Broadcasting (1941)]
Concept
The clause prohibits excessive government
6. Commercial Speech entanglement with, endorsement or disapproval of
religion [Victoriano v. Elizalde Rope Workers Union
(1974); Lynch v. Donnelly, 465 US 668 (1984)
Commercial speech is unprotected speech.
Commercial Advertising in the U.S. has been O'Connor, J., concurring);
Greater Pittsburg ACLU (1989 )Allegheny
] County v.
accorded First Amendment protection but it not in
the same level of protection given to political
Basis
speech. One case set down the requirements for
Rooted in the separation of Church and State[Sec.
protection of commercial speech: (1) speech must
2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987
not be false, misleading or proposing an illegal
Consti]
activity; (2) government interest sought to be served
by regulation must be substantial; (3) the regulation
must advance government interest; and (4) the Acts NOT permitted by Non-establishment
regulation must not be overbroad.[BERNAS] Clause
exclusively used for religious, charitable, or Crèche is displayed in a secular manner, and
educational purposes shall be exempt from taxation. merely depicts the srcins of the holiday. The
Constitution mandates accommodation and not
merely tolerance. Instead of an absolutist 94
(2) Operation of sectarian schools
Sec. 4(2), Art. 14. Educational institutions, other approach, court inquires if the law or conduct
than those established by religious groups and has a secular purpose. [Lynch vs. Donnely
mission boards, shall be owned solely by citizens of (1984)]
the Philippines or corporations or associations at
least sixty per centum of the capital of which is (9) Financial support for secular academic
owned by such citizens… facilities
(3) Religious instruction in public schools WON a law that grants financial support for
expansion of educational facilities in parochial
Sec. 3(3), Art. 14. At the option expressed in schools is constitutional. HELD: Yes, secular
writing by the parents or guardians, religion shall be purpose – facilities to be used for secular
allowed to be taught to their children or wards in activities. The facilities built here were a library
public elementary and high schools within the
regular class hours by instructors designated or and 672)] center. [Tilton vs. Richardson
a science
(403 U.S.
approved by the religious authorities of the religion
to which the children or wards belong, without (10) Exemption from zoning requirements to
additional cost to the Government. accommodate unique architectural features
of religious buildings
Civil Code, Art. 359 . The government promotes the
full growth of the faculties of every child. For this WON zoning law giving exemption to religious
purpose, the government will establish, whenever sect (Mormons building a tall pointed steeple) is
possible: constitutional. HELD: Yes, court may not
(1) Schools in every barrio, municipality and city determine whether architectural features are
where optional religious instruction shall be necessary for a particular religion, e.g. steeple
taught as part of the curriculum at the option of pointing upwards into heaven for Mormons.
the parent or guardian. xxx [Martin vs. Corporation of the Presiding Bishop
(434 Mass. 141)]
(4) Public aid to religion
Sec. 29 (2), Art. 6 . No public money or property Test
shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or Lemon Test
support of any sect, church, denomination, sectarian (1) Statute must have a secular legislative
institution, or system of religion, or of any priest, purpose.
preacher,
dignitary asminister, other religious
such, except when such teacher, or
priest, (2) Primary
advances effect mustreligion.
nor inhibits be one that neither
preacher, minister, or dignitary is assigned to the (3) Must not foster excessive entanglement
armed forces, or to any penal institution, or between government and religion. [Lemon
government orphanage or leprosarium. vs. Kurtzman, (403 U.S. 602)]
(8) Display of crèche in a secular setting The power to tax the exercise of the privilege is
the power to control or suppress its enjoyment.
Those who can tax the exercise of religious
practice can make its exercise so costly as to
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
deprive it of the resources necessary for its make them live together and the noble intention of
maintenance. [American Bible Society vs. City the Government of organizing them politically will
of Manila (1957)] come to naught. Furthermore, their relocation (and
the imposition that they are not allowed to emigrate 95
(3) Exemption from union shop to some other places under penalty of imprisonment)
is a proper restraint to their liberty, they being
Neither does the law constitute an taught and guided in Tigbao to improve their living
establishment of religion. It has been held that conditions, and improve their education. In short,
in order to withstand objections based on this everything is being done from them in order that
ground, the statute must have a secular purpose their advancement in civilization and material
and that purpose must not directly advance or prosperity may be assured. [Rubi vs. Provincial
diminish the interest of any religion. Congress Board (1919)]
acted merely to relieve persons of the burden
imposed by union security agreements. The free The executive of a municipality does not have the
exercise of religious profession or belief is right to force citizens of the Philippine Islands to
superior to contract rights. [Victoriano vs. change their domicile from one locality to another.
Elizalde Rope Workers Union (1974)] Law defines
regulation thatpower,
allows aand there
mayor or aispolice
no law
chiefnor
to
(4) Non-disqualification from local government restrain the liberty of abode of citizens of the
office Philippines. [Villavicencio vs. Lukban (1919)]
Sec. 6, Art.within
the same III: Thethe
liberty of prescribed
limits abode and of
bychanging
law shall 2. Return to One’s Country
not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired The threats to the government, to which the return
except in the interest of national security, public of the Marcoses has been viewed to provide a
safety or public health, as may be provided by law. catalytic effect, have not been shown to have
ceased. The President has unstated residual powers
"Liberty" as understood in democracies, is not which are implied from the grant of executive power
license; it is "Liberty regulated by law." and which are necessary for her to comply with her
duties under the Constitution. One of her duties is to
The right of the individual is necessarily subject to protect and promote the interest and welfare of the
reasonable restraint by general law for the common people. Her decision to bar the return of the
good. The Liberty of the citizens may be restrained Marcoses and, subsequently, the remains of Mr.
in the interest of the public health, or of the public Marcos at the present time and under present
order and safety, or otherwise within the proper circumstances is in compliance with this bounden
scope of the police power. duty. [Marcos vs. Manglapus (1989)]
None of the rights of the citizen can be taken away
except by due process of law. J. Right to Information
1. Limitations
The government's measure in relocating the 2. Publication of Laws and Regulations
Manguianes, a nomadic people with a wayfaring life 3. Access to Court Records
and without permanent individual property is 4. Right to Information Relative to…
necessary both in the interest of the public as owner
of the lands about which they are roving and for the Art. II Section 28. Subject to reasonable conditions
proper accomplishment of the purposes and prescribed by law, the State adopts and implements
objectives of the government. For as people a policy of full public disclosure of all its
accustomed to nomadic habit, they will always long transactions involving public interest.
to return to the mountains and follow a wayfaring
life, and unless a penalty is provided for, you cannot
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Art. III Section 7. The right of the people to While the Constitution guarantees access to
information on matters of public concern shall be information on matters of public concern, access is
recognized. Access to official records, and to subject to reasonable regulation for the convenience
of and for order in the office that has custody of the 96
documents and papers pertaining to official acts,
transactions, or decisions, as well as to government documents. [Baldoza vs Dimaano (1976)]
research data used as basis for policy development,
shall be afforded the citizen, subject to such While the public officers in custody or in control of
limitations as may be provided by law. public records have the discretion to regulate the
manner in which such records may be inspected,
Art. XVI Section 10. The State shall provide the
examined or copied by interested persons, such
policy environment for the full development of discretion does not carry with it the authority to
Filipino capability and the emergence of prohibit access, inspection, examination, or
copying.‖ [Lantaco vs Llamas (1981)]
communication structures suitable to the needs and
aspirations of the nation and the balanced flow of
information into, out of, and across the country, in 2. Publication of Laws and
accordance with a policy that respects the freedom Regulations
of speech and of the press.
We hold therefore that all statutes, including those
Scope of local application and private laws, shall be
published as a condition for their effectivity, which
Right to information contemplates inclusion of shall begin fifteen days after publication unless a
negotiations leading to the consummation of the different effectivity date is fixed by the legislature.
transaction. Otherwise, the people can never
exercise the right if no contract is consummated, or Covered by this rule are presidential decrees and
if one is consummated, it may be too late for the executive orders promulgated by the President in
public to expose its defects. However, if the right the exercise of legislative powers whenever the
only affords access to records, documents and same are validly delegated by the legislature or, at
papers, which means the opportunity to inspect and present, directly conferred by the Constitution.
copy them at his expense. The exercise is also Administrative rules and regulations must also be
subject to reasonable regulations to protect the published if their purpose is to enforce or implement
integrity of public records and to minimize existing law pursuant also to a valid delegation.
disruption of government operations.[Chavez v. PEA
and Amari, G.R. No. 133250, July 9, 2002] Interpretative regulations and those merely internal
in nature, that is, regulating only the personnel of
1. Limitations the administrative agency and not the public, need
not be published. Neither is publication required of
the so-called letters of instructions issued by
The right does
privileged not extend
information to matters
rooted recognizedofas
in separation administrative superiors concerning the rules or
powers, nor to information on military and guidelines to be followed by their subordinates in
diplomatic secrets, information affecting national the performance of their duties.
security, and information on investigations of crimes
by law enforcement agencies before the prosecution Accordingly, even the charter of a city must be
of the accused. [Chavez v. PEA and Amari, supra] published notwithstanding that it applies to only a
portion of the national territory and directly affects
Media practitioners requested information from the only the inhabitants of that place. All presidential
GM of GSIS regarding clean loans granted to certain decrees must be published, x x x. The circulars
members of the defunct Batasang Pambansa on the issued by the Monetary Board must be published if
guaranty of Imelda Marcos shortly before the Feb they are meant not merely to interpret but to "fill in
1986 elections. Request was refused on the ground the details" of the Central Bank Act which that body
of confidentiality. is supposed to enforce.
The right to information is not absolute. It is limited Publication must be in full or it is no publication at
to matters of public concern and is subject to such all since its purpose is to inform the public of the
limitations as may be provided by law. That the GSIS contents of the laws.[Tañada vs Tuvera (1986)]
was exercising a proprietary function would not
justify its exclusion of the transactions from the 3. Access to Court Records
coverage of the right to info. But although citizens
have such right and, pursuant thereto, are entitled
to ― access to official records,‖ the Constitution does Canon II Confidentiality Code of Conduct for Court
Personnel (AM No. 03-06-13-SC)
not accord them the right to compel custodians of SECTION 1. Court personnel shall not disclose to any
official records to prepare lists, summaries and the unauthorized person any confidential information
like in their desire to get info on matters of public acquired by them while employed in the judiciary,
concern. [Valmonte vs. Belmonte (1989)] whether such information came from authorized or
unauthorized sources.
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Confidential information means information not yet proceedings in ensuring a fair and impartial trial
made a matter of public record relating to pending race against another, jurisprudence tells us that the
cases, as well as information not yet made public right of the accused must be preferred to win. With
the possibility of losing not only the precious liberty 97
concerning the work of any justice or judge relating
to pending cases, including notes, drafts, research but also the very life of an accused, it behooves all
papers, internal discussions, internal memoranda, to make absolutely certain that an accused receives
records of internal deliberations and similar papers. a verdict solely on the basis of a just and
dispassionate judgment, a verdict that would come
The notes, drafts, research papers, internal only after the presentation of credible evidence
discussions, internal memoranda, records of internal testified to by unbiased witnesses unswayed by any
deliberations and similar papers that a justice or kind of pressure, whether open or subtle, in
judge uses in preparing a decision, resolution or proceedings that are devoid of histrionics that might
order shall remain confidential even after the detract from its basic aim to ferret veritable facts
decision, resolution or order is made public. free from improper influence, and decreed by a
judge with an unprejudiced mind unbridled by
Decisions are matters of public concern and interest. running emotions or passions. [Re: Request for Live
Pleadings and other documents filed by parties to a Radio-TV CoverageCases
of the Plunder of the against
Trial in the Sandiganbayan
former President
case need not be matters of public concern or
interest. They are filed for the purpose of Joseph Ejercito Estrada, Secretary of Justice
establishing the basis upon which the court may Hernando Perez v. Joseph Ejercito Estrada, A.M. No.
issue an order or a judgment affecting their rights 00-1-4-03-SC, June 29, 2001]
and interest. Access to court records may be
permitted at the discretion and subject to the K. Right to Association
supervisory and protective powers of the court, after 1. Labor Unionism
considering the actual use or purpose for which the 2. Communist and Similar Organizations
request for access is based and the obvious 3. Integrated Bar of the Philippines
prejudice to any of the parties. [Hilado, et al vs
Judge (2006)]
Sec. 8, Art. III. The right of the people, including
those employed in the public and private sectors, to
4. Right to Information Relative to form unions, association, or societies for purposes
not contrary to law shall not be abridged.
Government Contract Negotiations
Sec 2(5), Art. IX-B. The right to self-organization
The constitutional right to information includes shall not be denied to government employees.
official information on on-going negotiations before
a final contract. The information, however, must Sec. 3, Art. XIII. x x x. It shall guarantee the rights
constitute definite
and should not coverpropositions by the government,
recognized exceptions. [Chavez of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted
v. Philippine Estate Authority (2002) ] activities, including the right to strike in accordance
with law. They shall be entitled to security of
The limitations recognized to the right of tenure, humane conditions of work, and a living
information are: wage. They shall also participate in policy and
(1) National security matter including state decision-making processes affecting their rights and
secrets regarding military and diplomatic benefits as may be provided by law.
matters, inter-government exchanges prior
to the conclusion of treaties and executive With or without a constitutional provision of this
agreements. character, it may be assumed that the freedom to
(2) Trade secrets and banking transactions organize or to be a member of any group or society
(3) Criminal Matters exists. With this explicit provision, whatever doubts
(4) Other confidential matters.[Neri vs Senate there may be on the matter are dispelled. Unlike the
(2008) citing Chavez vs President cases of other guarantee which are mostly American
Commission on Good Government] in srcin, this particular freedom has an indigenous
cast. It can trace its srcin to the Malolos
Diplomatic Negotiations Constitution.
Diplomatic negotiations have a privileged character. The limitation "for purposes not contrary to law"
[Akbayan vs Aquino cited in Neri vs Senate (2008)] should be interpreted as another way of expressing
employed in the government or in the private sector. organized conspiracy for the overthrow of
It also recognizes that the right to form associations the Government by illegal means for the
includes the right to unionize purpose of placing the country under the
control of a foreign power; (b) that the 98
It should be noted that the provision guarantees the accused joined the CPP; (c) that he did so
right to associations. It does not include the right to willfully, knowingly and by overt acts.
compel others to form an association. But there may [People vs Ferrer (1972)]
be situations in which, by entering into a contract,
one may also be agreeing to join an association. 3. Integrated Bar of the Philippines
[BERNAS]
If a land buyer who buys a lot with an annotated lien Compulsory membership of a lawyer in the
that the lot owner becomes an automatic member of integrated bar of the Philippines does not violate the
a homeowners‘ association thereby voluntarily joins
constitutional guarantee. [In Re: Edillon, 84 SCRA
554]
the association. [Bel-Air Village Association vs
Diokno (1989)]
paid for the property – it is merely incidental to the (1) The expropriator must enter a private
expropriation suit [Barangay San Roque, Talisay, property
Cebu v. Heirs of Francisco Pastor, G.R. No. 138869, (2) Entry must be for more than a momentary
June 20, 2000; Bardillion v. Barangay Masili of period 99
Calamba, Laguna, G.R. No. 146886, April 30, 2003] (3) Entry must be under warrant or color of
legal authority
The issuance of a writ of possession becomes (4) Property must be devoted to public use or
ministerial upon the (1) filing of a complaint for otherwise informally appropriated or
expropriation sufficient in form and substance, and injuriously affected
(2) upon deposit made by the government of the Utilization of the property must be in such a way as
amount equivalent to 15% of the fair market value of to oust the owner and deprive him of beneficial
the property sought to be expropriated per current enjoyment of the property. [Republic v. Castelvi, 58
tax declaration. [Biglang-Awa v. Judge Bacalla, G.R. SCRA 336]
Nos. 139927-139936, November 22, 2000; Bardillon
v. Barangay Masili of Calamba, Laguna, Laguna, G.R. Due Process
No. 146886, April 30, 2003] The defendant must be given an opportunity to be
idea that ―public use‖ is strictly limited to clear value of the property at time of taking). The courts
cases of ―use by the public‖ has been abandoned. have the power and authority to determine just
The term ―public use‖ has now been held to be compensation, independent of what the decrees
synonymous with ―public interest‖, ―public benefit‘, state, and thus may appoint commissioners to help 10
―public welfare‖ and ―public convenience‘. [Reyes v. in determining just compensation.[EPZA vs. Dulay,
National Housing Authority, G.R. No. 147511, 148 SCRA 305]
January 20, 2003]
While commissioners are to be appointed by the
The practical reality that greater benefit may be court for the determination of just compensation,
derived by Iglesia ni Cristo members than most the latter is not bound by the commissioners‘
others could well be true, but such peculiar findings. [Republic v. Santos, 141 SCRA 30; Republic
advantage still remains merely incidental and (MECS) v. IAC, 185 SCRA 572]
secondary in nature. That only few would benefit
from the expropriation of the property does not The court may substitute its own estimate of the
necessarily diminish the essence and character of value of the property only for valid reasons: (a) the
public use [Manosca v. Court of Appeals, 252 SCRA commissioners have applied illegal principles to the
412] evidence
disregardedsubmitted to them; of
a clear preponderance (b)evidence;
they have
or
3. Just Compensation (c) where the amount allowed is either grossly
inadequate or excessive. [National Power
Corporation v. De la Cruz, G.R. No. 156093,
Definition February 2, 2007]
It is the just and complete equivalent of the loss
which the owner of the thing expropriated has to Non-payment of just compensation in an
suffer by reason of the expropriation. expropriation proceeding does not entitle the
private landowners to recover possession of the
Full and fair equivalent of the property taken; it is expropriated lots, but only to demand payment of
the fair market value of the property. It is settled the fair market value of the property. [Republic of
that the market value of the property is ―that the the Philippines v. Court of Appeals, G.R. No.
sum of money which a person, desirous but not 146587, July 2, 2002; Reyes v. National Housing
compelled to buy, and an owner, willing but not Authority, G.R. No. 147511, Janaury 29, 2003]
compelled to sell, would agree on as a price to be
given and received therefor‖ [Province of Tayabas
The Republic was ordered to pay just compensation
vs. Perez (1938)] twice: first, in the expropriation and then, in the
action for recovery of possession but it never did. 57
Determination years have lapsed since the expropriation case was
terminated but the Republic never paid the owners.
BASIS: Fair Market Value The court construed the failure to pay as a
Price fixed by a buyer desirous but not compelled to deliberate refusal on the part of the Republic. When
buy and a seller willing but not compelled to sell. the government fails to pay just compensation
within five years from the finality of the judgment in
Must include consequential damages (damages to the expropriation proceedings, the owners
other interest of the owner attributable to the concerned shall have the right to recover possession
expropriation) and deduct consequential benefits of their property. [Republic of the Philippines v.
(increase of value of other interests attributable to Vicente Lim, G.R. No. 161656, June 29, 2005]
new use of the former property).
Effect of Delay
CHOICE OF PROPERTY TO BE EXPROPRIATED IS
SUBJECT TO JUDICIAL REVIEW AS TO Just compensation means not only the correct
REASONABLENESS: Under Section 2, Article IV of the amount to be paid to the owner of the land but also
Philippine Constitution, the Republic of the payment within a reasonable time from its taking
Philippines can take private property upon payment [Eslaban v. De Onorio, G.R. No. 146062, June 28,
of just compensation. However, private property to 2001]
be taken cannot be chosen arbitrarily and
capriciously, as the landowner is entitled to due
The filing of the case generally coincides with the
process. The Department of Public Highways
taking. When the filing of the case coincides with
srcinally established the extension in Cuneta the taking, and the value of the property has
Avenue, and it is assumed that they made extensive increased because of the use to which the
studies regarding it. The change from Cuneta Avenue expropriator has put it, the value is that of the time
to Fernando Rein-Del Pan Streets cannot be justified of the earlier taking. Otherwise the owner would
on the ground of social impact, as the properties to gain undeserved profit. But if the value increased
be affected along Cuneta Avenue are mostly motels. independently of what the expropriator did, then
[De Knecht vs. Bautista (1980)] the value is that of the later filing of the case. Also,
between the time payment is due and the actual
The Presidential Decrees merely serve as a guide or payment, legal interest (6%) accrues.[NAPOCOR v.
a factor for the courts in determining amount of just
CA (1996)]
compensation (which should be the fair and full
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
popularity. Such laws might affect advertising prejudice to whatever criminal liability may have
contracts, the non-impairment clause of the been incurred.
Constitution must yield to the loftier purposes
targeted by the Government. [Chavez v. COMELEC 10
Rules of Court Rule 3 Sec. 21:
(2004)] Indigent party.—A party may be authorized to
litigate his action, claim or defense as an indigent if
The Court has imposed 2 essential requisites in order the court, upon an ex parte application and hearing,
that RA 7641 (Retirement Law) may be given is satisfied that the party is one who has no money
retroactive effect. First, the claimant for retirement or property sufficient and available for food, shelter
benefits must still be in the employ of the employer and basic necessities for himself and his family.
at the time the statute took effect. Second, the
claimant must have complied with the requirements Such authority shall include an exemption from
for eligibility for such retirement benefits under the payment of docket and other lawful fees, and of
statute. [Universal Robina Sugar v. Cabaleda (2008)] transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
3. Limitations docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
It is ingrained in jurisprudence that the judgment rendered in the case favorable to the
constitutional prohibition does not prohibit every indigent, unless the court otherwise provides.
change in existing laws. To fall within the
prohibition, the change must not only impair the Any adverse party may contest the grant of such
obligation of the existing contract, but the authority at any time before judgment is rendered
impairment must be substantial. Moreover, the law by the trial court. If the court should determine
must effect a change in the rights of the parties with after hearing that the party declared as an indigent
reference to each other, and not with respect to is in fact a person with sufficient income or
non-parties. [Philippine Rural Electric Cooperatives property, the proper docket and other lawful fees
Association v. Secretary, DILG, G.R. No. 143076, shall be assessed and collected by the clerk of court.
June 10, 2003] If the payment is not made within the time fixed by
the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as
N. Legal Assistance and Free the court may impose.
Access to Courts
Those protected include low paid employees,
domestic servants and laborers. [Cabangis v. Almeda
Sec. 11 Art. III: Lopez (1940)]
Free access to the courts and quasi-judicial bodies
The difference between ‗paupers‘ and ‗indigent‘
and adequate legal assistance shall not be denied to
any person by reason of poverty. persons is that the latter are ―persons who have no
property or sources of income sufficient for their
support aside from their own labor though self-
Rules of Court Rule 141 Sec. 18: supporting when able to work and in employment.‖
SEC. 18. Indigent litigants exempt from payment of [Acar v. Rosal (1067)]
legal fees.—Indigent litigants (a) whose gross income
and that of their immediate family do not exceed The new rule applies even to litigation pending at
four thousand (P4,000.00) pesos a month if residing the time of its enactment. The retroactive
in Metro Manila, and three thousand (P3,000.00) application of the new rule has been found to be
pesos a month if residing outside Metro Manila, and more in keeping with Section 11 of Article III. The
(b) who do not own real property with an assessed previous rule, denied the right to litigate as paupers
value of more than fifty thousand (P50,000.00) pesos in appellate courts.[Martinez v. People (2000)]
shall be exempt from the payment of legal fees.
Note: The significance of having an explicit ―free
The legal fees shall be a lien on any judgment access‖ provisions in the Constitution may be
rendered in the case favorably to the indigent gathered from the rocky road which ―free access‖
litigant, unless the court otherwise provides. seems to have traveled in American jurisprudence.
The American constitution does not have an explicit
To be entitled to the exemption herein provided, the free access provision and, hence, its free access
litigant shall execute an affidavit that he and his doctrine has been developed as implicit from both
immediate family do not earn a gross income the equal protection clause and the due process
abovementioned, nor they own any real property
with the assessed value aforementioned, supported clause. [BERNAS]
by an affidavit of a disinterested person attesting to
the truth of the litigant's affidavit. O. Rights of Suspects
1. Availability
Any falsity in the affidavit of a litigant or 2. Requisites
disinterested person shall be sufficient cause to 3. Waiver
strike out the pleading of that party, without
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
ART. III, SEC. 12, 1987 CONSTITUTION The SC reversed the lower court‘s imposition of
1. Any person under investigation for the death penalty because ―the accused was not even
commission of an offense shall have the right to informed at the start of the investigation of his right
to counsel, much less afforded the service of counsel 10
be informed of his right to remain silent and to
have competent and independent counsel notwithstanding his insistence.‖ He was given the
preferably of his own choice. If the person unacceptable excuse that there were no available
cannot afford the services of counsel, he must lawyers.
be provided with one. These rights cannot be
waived except in writing and in the presence of As used in this Act, "custodial investigation" shall
counsel. include the practice of issuing an " invitation" to a
2. No torture, force, violence, threat, person who is investigated in connection with an
intimidation, or any other means which vitiate offense he is suspected to have committed , without
the free will shall be used against him. Secret prejudice to the liability of the "inviting" officer for
detention places, solitary, incommunicado, or any violation of law. [People vs. Andag (1980)]
other similar forms of detention are prohibited.
3. Any confession or admission obtained in NOTE: These rights were further reiterated under RA
violation of in
inadmissible this or Section
evidence 17 him.
against hereof shall be 7438,
RIGHTSotherwise known
OF PERSON as AN ACT
ARRESTED, DEFINING
DETAINED ORCERTAIN
UNDER
4. The law shall provide for penal and civil CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES
sanctions for violations of this section as well as OF THE ARRESTING, DETAINING AND INVESTIGATING
compensation to the rehabilitation of victims of OFFICERS, AND PROVIDING PENALTIES FOR
torture or similar practices, and their families. VIOLATIONS THEREOF
In Miranda vs. Arizona: The Federal Supreme Court RA 7438, Rights of Persons under Custodial
made it clear that what is prohibited is the Investigation;
"incommunicado interrogation of individuals in a
police dominated atmosphere, resulting in self- Section 1. Statement of Policy. - It is the policy of
incriminating statements without full warnings of the Senate to value the dignity of every human being
constitutional rights.‖ and guarantee full respect for human rights
MIRANDA RIGHTS: The person under custodial Section 2. Rights of Persons Arrested, Detained or
investigation must be warned that— Under Custodial Investigation; Duties of Public
(1) He has a right to remain silent, Officers. –
(2) That any statement he makes may be used
as evidence against him, and (b) Any public officer or employee, or anyone acting
(3) That he has a right to the presence of an under his order or his place, who arrests, detains or
attorney, either retained or appointed. investigates any person for the commission of an
eliciting incriminating statements. [People vs. Mara communication which results in the subject/accused
(1994)] understanding what is conveyed.
However, given the clear constitutional intent in the Consequently, the prosecution must prove with
1987 Constitution, the moment there is a move or strongly convincing evidence to the satisfaction of
even an urge of said investigators to elicit admissions this Court that indeed the accused:
or confessions or even plain information which may (1) Willingly and voluntarily submitted his
appear innocent or innocuous at the time, from said confession and
suspect, he should then and there be assisted by (2) Knowingly and deliberately manifested that
counsel, unless he waives the right, but the waiver he was not interested in having a lawyer
shall be made in writing and in the presence of assist him during the taking of that
counsel. [Gamboa vs. Cruz (1988)] confession.
Section 1. Rights of accused at trial. – In all (2) Accused is proceeded against under the
criminal prosecutions, the accused shall be entitled orderly process of law;
to the following rights: (3) Accused is given notice and opportunity to
be heard; 10
(a) To be presumed innocent until the contrary is
proved beyond reasonable doubt. (4) Judgment rendered is within the authority
of a constitutional law. (Mejia vs. Pamaran,
(b) To be informed of the nature and cause of the 1988)
accusation against him.
(e) To be exempt
witness against from being compelled to be a
himself. d‘ etat should
argument be denied
that denial release
from the on of
military bail.
the The
right
to bail would violate the equal protection clause is
(f) To confront and cross-examine the witnesses not acceptable, given that the officers and members
against him at the trial. Either party may utilize of the military are not similarly situated with others.
as part of its evidence the testimony of a They are allowed a fiduciary use of firearms and can
witness who is deceased, out of or cannot with easily continue their insurgent activities against the
due diligence be found in the Philippines, government. National security considerations should
unavailable, or otherwise unable to testify, impress upon the Court that release on bail of
given in another case or proceeding, judicial or respondents constitutes a damaging precedent.
administrative, involving the same parties and [Comendador vs. De Villa (1991)]
subject matter, the adverse party having the
opportunity to cross-examine him. It has not been alleged that the persons to be
arrested for their alleged participation in the
(g) To have compulsory process issued to secure the "rebellion" on May 1, 2001 are members of an
attendance of witnesses and production of other outlawed organization intending to overthrow the
evidence in his behalf. government. Therefore, to justify a warrantless
arrest under Section 5(a), there must be a showing
(h) To have speedy, impartial and public trial. that the persons arrested or to be arrested has
committed, is actually committing or is attempting
(i) To appeal in all cases allowed and in the manner to commit the offense of rebellion. In other words,
prescribed by law. there must be an overt act constitutive of rebellion
taking place in the presence of the arresting officer.
1. Criminal Due Process
This requirement was not complied with particularly
in the arrest of Senator Enrile. In the Court's
Requisites [People vs. Vera (1937)] Resolution of May 5, 2001 in the petition for habeas
(1) Accused is heard by a court of competent corpus filed by Senator Enrile, the Court noted that
jurisdiction; the sworn statements of the policemen who
purportedly arrested him were hearsay. Senator
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Enrile was arrested two (2) days after he delivered No charge need be filed formally before one can file
allegedly seditious speeches. Consequently, his for bail, so long as one is under arrest. [Heras
arrest without warrant cannot be justified under Teehankee vs. Rovica (1945)]
Section 5(b) which states that an arrest without a 10
warrant is lawful when made after an offense has Arraignment of the accused is not essential to the
just been committed and the arresting officer or approval of the bail bond. When bail is authorized, it
private person has probable cause to believe based should be granted before arraignment. Otherwise
on personal knowledge of facts and circumstances the accused may be precluded from filing a motion
that the person arrested has committed the offense. to quash. Also, the court will be assured of the
presence of the accused at the arraignment
―Since the evidence in this case is hearsay, the precisely by grating bail and ordering his presence at
evidence of guilt is not strong, bail is allowed.‖ any stage of the proceeding.[Lavides vs CA (2000)]
[Enrile vs. Perez (En Banc Resolution, 2001)]
Exceptions:
Bail as a Matter of Right vs. Matter of (1) When charged with an offense punishable
Discretion by reclusion perpetua.
(2) Traditionally,
available to thethe right astoanbail
military, is notto
exception
Matter of right Matter of Discretion
Bail is a matter of right 1. In case the evidence the bill of rights. [People v. Reyes, 212
in all cases not of guilt is strong. In such SCRA 402]
punishable by reclusion a case, according to
perpetua. People vs. San Diego Standards for Fixing Bail
(1966), the court's
discretion to grant bail RULE 114. Sec. 9. Amount of bail; guidelines. –
must be exercised in the The judge who issued the warrant or granted the
light of a summary of the application shall fix a reasonable amount of bail
evidence presented by considering primarily, but not limited to, the
the prosecution. following factors:
(a) Financial liability of the accused to give bail;
Thus, the order granting (b) Nature and circumstance of the offense;
or refusing bail must (c) Penalty for the offense charged;
contain a summary of (d) Character and reputation of the accused;
the evidence for the (e) Age and health of the accused;
prosecution followed by (f) Weight of the evidence against the accused;
the conclusion on (g) Probability of the accused appearing at the
whether or not the trial;
evidence of guilt is (h) Forfeiture of other bail;
strong (Note: itofis guilt
the existence not (i) The factwhen
justice that arrested;
the accused
and was a fugitive from
itself which is (j) Pendency of other cases where the accused is on
concluded but the bail.
strength of the
probability that guilt Excessive bail shall not be required.
exists).
The constitution prohibits ―excessive bail.‖ Where
2. In extradition the lower court fixed bail at P 1, 195, 200.00, it
proceedings. Extradition rendered the right to bail nugatory.
courts do not render
judgments of conviction "Discretion is with the court called upon to rule on
or acquittal so it does the question of bail. We must stress, however, that
not matter WON the where conditions imposed upon a defendant seeking
crimes the accused is bail would amount to a refusal thereof and render
being extradited for is nugatory the constitutional right to bail, we will not
punishable by reclusion hesitate to exercise our supervisory powers to
perpetua [US Gov’t. vs. provide the required remedy. [Dela Camara v. Enage
Judge Puruganan and (1971)]
Mark Jimenez (2002)]
STANDARDS FOR FIXING BAIL: Guidelines in the
When Available fixing(2)
bail; of nature
bail are:of(1)
theability of the
offense; (3) accused
penalty to
forgive
the
General rule: From the very moment of arrest offense charged; (4) character and reputation of the
(which may be before or after the filing of formal accused; (5) health of the accused; (6) character and
charges in court) up to the time of conviction by strength of the evidence; (7) probability of the
final judgment (which means after appeal). accused appearing in trial; (8) forfeiture of other
bonds; (9) whether the accused was a fugitive from
justice when arrested; and (10) if the accused is
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
under bond for appearance at trial in other cases." These rights cannot be waived except in writing and
[Villaseñor vs. Abano (1967)] in the presence of counsel.
Dismissal based on the denial of the right to speedy Subpoena is a process directed to a person requiring
trial amounts to an acquittal. [Acevedo vs. him to attend and to testify at the hearing or trial of
Sarmiento (1970)] an action or at any investigation conducted under
the laws of the Philippines, or for the taking of his 11
Note: RA 8493 provides: a 30-day arraignment deposition. [Caamic v. Galapon, 237 SCRA 390]
within the filing of the information or from the date
the accused appeared before the court; trial shall Before a subpoena duces tecum may issue, the court
commence 30 days from the arraignment, as fixed by must first be satisfied that the following requisites
the court. The entire trial period shall not exceed are present:
180 days, except as otherwise authorized by the SC (1) The books, documents or other things
Chief Justice. requested must appear prima facie relevant
to the issue subject of the controversy (test
The right to a speedy trial is violated only when the of relevancy), and
proceeding is attended by vexatious, capricious and (2) Such books must be reasonably described by
oppressive delays, or when unjustified the parties to be readily identified (test of
postponements of the trial are asked for and definiteness). [Roco v. Contreras, G.R. No.
secured, or when without cause or justifiable 158275, June 28, 2005]
motive, a long period of time is allowed to elapse
without the party having his case tried. [dela Rosa v. 10. Trials In Absentia
Court of Appeals, 253 SCRA 499; Tai Lim v. Court of
Appeals, G.R. No. 131483, October 26, 1999] WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused
failed to appear for trial despite postponement and
The different interests of the defendant which the notice to his bondsmen. The Court then allowed
right to speedy trail are designed to protect are: prosecution to present evidence despite the fact
(1) To prevent oppressive pre-trail that accused had not been arraigned. Petitioner was
incarceration, found guilty. The issue is WON the court has
(2) To minimize anxiety and concern of the jurisdiction. The Court held that because accused
accused, was not arraigned, he was not informed of the
(3) To limit the possibility that the defense will nature and cause of accusation against him,
be impaired. Therefore, the Court has no jurisdiction. The
But the right to speedy trail cannot be invoked indispensable requisite for trial in absentia is that it
where to sustain the same would result in a clear should come after arraignment. [Borja vs. Mendoza
denial of due process to the prosecution. In essence, (1977)]
the right to a speedy trial does not preclude the
people‘s equally important right to public justice. After arraignment, during which accused pleaded
[Uy v. Hon. Adriano, G.r. No. 159098, October 27, not guilty, case was set for hearing but the accused
2006] escaped. He was tried in absentia. Lower court held
RA 8493 is a means of enforcing the right of the the proceedings against him in abeyance to give him
the opportunity to cross examine witnesses against
accused to a speedy trial. The spirit of the law is him and present his evidence.
that the accused must go on record in the attitude
of demanding a trial or resisting delay. If he does not The Court held that abeyance of proceedings was
do this, he must be held, in law, to have waived the invalid. Such right to cross examine and present
privilege. [Uy v. Hon. Adriano, G.R. No. 159098, evidence on his behalf is waived by failure to appear
October 27, 2006] during the trial of which he had notice.[Gimenez vs.
Nazareno (1988)]
8. Right of Confrontation
When Presence of the Accused is a DUTY
This is the basis of the right to cross-examination. (1) Arraignment and Plea
(2) During Trial, for identification
Testimony of a witness who has not submitted (3) Promulgation of Sentence
himself to cross examination is not admissible in (Exception: Light offense -> can be via counsel)
evidence. The affidavits of witnesses who are not
presented during the trial, hence not subjected to Petitioner challenges the jurisdiction of military
cross examination, are inadmissible because they are commissions to try him (for murder, illegal
hearsay. [People v. Quidate, G.R. No. 117401, possession of firearms and for violation of the Anti-
October 1, 1998; Cariago v. Court of Appeals, G.R. Subversion Act) arguing that he being a civilian, such
No. 143561, June 6, 2001] trial during martial law deprives him of his right to
due process.
9. Compulsory Process
An issue has been raised as to WON petitioner could
waive his right to be present during trial.
(1) Right to Secure Attendance of Witness
(2) Right to Production of Other Evidence
On a 7-5 voting: SEVEN justices voted that petitioner
may waive his right to be present at ALL stages of
the proceedings while FIVE voted that this waiver is
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
Considering Art IV, Sec 19, 1973 Constitution(trial A state of martial law does not suspend the
of a capital offense may proceed even in the operation of the Constitution, nor supplant the
absence of the accused) and the absence of any law functioning of the civil courts or legislative
specifically requiring his presence at all stages of his assemblies, nor authorize the conferment of
trial, there appears, no logical reason why jurisdiction on military courts and agencies over
petitioner, although he is charged with a capital civilians where civil courts are able to function, nor
offense, should be precluded from waiving his right automatically suspend the privilege of the writ.
to be present in the proceedings for the
perpetuation
conferred uponofhimtestimony, since this
for his protection and right was
benefit. applysuspension
The only to ofpersons
the privilege of the
judicially writ shall
charged for
[Aquino vs. Military Commission (1975)] rebellion or offenses inherent in or directly
connected with invasion.
Q. Writ of Habeas Corpus
A prime specification of an application for a writ of
habeas corpus is restraint of liberty.
Habeas Corpus The essential object and purpose of the writ of
SEC. 15. ART. III. 1987 CONSTITUTION habeas corpus is to inquire into all manner of
The privilege of the writ of habeas corpus shall not involuntary restraint as distinguished from voluntary,
be suspended except in cases of invasion or rebellion and to relieve a person therefrom if such restraint is
when the public safety requires it. illegal. Any restraint which will preclude freedom of
action is sufficient.
SEC. 18. ART. VII. 1987 CONSTITUTION
The President shall be the Commander-in-Chief of
all armed forces of the Philippines and whenever it The forcible taking of these women from Manila by
becomes necessary, he may call out such armed officials of that city, who handed them over to other
forces to prevent or suppress lawless violence, parties, who deposited them in a distant region,
invasion or rebellion. deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned.
In case requires
safety of invasion
it, orherebellion,
may, forwhen the public
a period not Placed in Davao
belongings, they without either money
were prevented or personal
from exercising the
exceeding sixty days, suspend the privilege of the liberty of going when and where they pleased.
writ of habeas corpus or place the Philippines or any
part thereof under martial law. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned
Within forty-eight hours from the proclamation of to Manila and released or until they freely and truly
martial law or the suspension of the privilege of the waived his right.
writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The true principle should be that, if the respondent
is within the jurisdiction of the court and has it in
The Congress, voting jointly, by a vote of at least a his power to obey the order of the court and thus to
majority of all its Members in regular or special undo the wrong that he has inflicted, he should be
session, may revoke such proclamation or compelled to do so. Even if the party to whom the
suspension, which revocation shall not be set aside writ is addressed has illegally parted with the
by the President. custody of a person before the application for the
writ is no reason why the writ should not issue.
Upon the initiative of the President, the Congress [Villavicencio vs. Lukban (1919)]
may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Petitioners were arrested without warrants and
Congress, if the invasion or rebellion shall persist detained, upon the authority of Proclamation 889
and public safety requires it. (Which suspended the privilege of the Writ of Habeas
Corpus) and subsequently filed a petition for writ of
The Congress, if not in session, shall, within twenty- habeas corpus, assailing the validity of the said
four hours following such proclamation or Proclamation and their detention.
suspension, convene in accordance with its rules
without need of a call. The Court upheld the violation of the Proclamation
and dismissed the petitions. The Supreme Court held
that the authority to suspend the privilege of the
writ is circumscribed, confined and restricted, not
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
The return shall also state other matters relevant to S. Self-Incrimination Clause
the investigation,
of the case. its resolution and the prosecution 1. Scope and Coverage
2. Application
A general denial of the allegations in the petition 3. Immunity Statutes
shall not be allowed.[Sec. 9]
1. Scope and Coverage
Hearing
The hearing on the petition shall be summary.
However, the court, justice or judge may call for a Sec. 17, Art. 3. No person shall be compelled to be
preliminary conference to simplify the issues and a witness against himself.
determine the possibility of obtaining stipulations
and admissions from the parties. Only applies to compulsory testimonial, and doesn‘t
apply to material objects [Villaflor vs. Summers
The hearing shall be from day to day until completed (1920)]
and given the same priority as petitions for habeas
corpus. [Sec. 13] It refers therefore to the use of themental process
and the communicative faculties, and not to a
Burden of proof merely physical activity.
The parties shall establish their claims by substantial If the act is physical or mechanical, the accused can
evidence. be compelled to allow or perform the act, and the
result can be used in evidence against him.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by Examples
applicable laws, rules and regulations was observed (1) Handwriting in connection with a
in the performance of duty. prosecution for falsification is NOT allowed,
for this involves the use of the mental
The respondent who is a public official or employee processes [Beltran vs. Samson, 53 Phil 570;
must prove that extraordinary diligence as required Bermudez vs. Castillo (1937)]
by applicable laws, rules and regulations was (2) Re-enactment of the crime by the accused
observed in the performance of duty. is NOT allowed, for this also involves the
mental process.
The respondent public official or employee cannot (3) The accused can be required to allow a
invoke the presumption that official duty has been sample of a substance taken from his body
regularly performed to evade responsibility or [U.S. vs. Tan The (1912)] , or be ordered to
liability. [Sec. 17] expel the morphine from his mouth[U.S. vs.
Ong Sio Hong (1917)]
The Manalo brothers were abducted, detained, and (4) Accused may be made to take off her
tortured repeatedly by the military. After their garments and shoes and be photographed
escape, they filed a petition for the privilege of the [People vs. Otadura, 96 Phil 244, 1950];
Writ of Amparo. The Supreme Court granted the compelled to show her body for physical
petition and held that there was a continuing investigation to see if she is pregnant by an
violation of the Manalos‘ right to security. adulterous relation [Villaflor vs. Summers
Considering that they only escaped from captivity (1920)]
and have implicated military officers, there is still a (5) Order to give a footprint sample to see if it
threat to their lives, liberty, and security. The matches the ones found in the scene of the
threat vitiates their free will and they are forced to crime is allowed [People vs. Salas and
limit their movements and activities. The People vs. Sara]
government also failed to provide them protection
because the military themselves perpetrated the Foreign Laws
abduction, detention, and torture. The government
also failed to provide an effective investigation.
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
The privilege which exists as to private papers, (8) Grant immunity from prosecution to any person
cannot be maintained in relation to ―records whose testimony or whose possession of
required by law to be kept in order that there may documents or other evidence is necessary or
be suitable information of transactions which are the 11
convenient to determine the truth in any
appropriate subjects of governmental regulation and investigation conducted by it or under its
the enforcement of restrictions validly established. authority;
[Shapiro v. US (1948)]
Use and Fruit of Immunity
In recent cases, the US Supreme Court has struck
down certain registration requirements that ―Use immunity‖ prohibits use of a witness‘
presented real and appreciable risk of self- compelled testimony and its fruits in any mannerin
incrimination. These involved statues directed at connection with the criminal prosecution of the
inherently suspect groups in areas permeated by witness. On the other hand, ― transactional
criminal statutes, a circumstance which laid the immunity‖ grants immunity to witness from
subjects open to real risk of self-incrimination. prosecution for an offense to which his compelled
[BERNAS] testimony relates.[Galman vs. Pamaran (1985)]
The great majority of persons who file income tax
returns do not incriminate themselves by disclosing T. Involuntary Servitude and
their occupation. The requirement that Political Prisoners
such returns be completed and filed simply does not
involve the compulsion to incriminate considered in
Mackey. [US v. Sullivan (1927)]
SEC. 18, ART. III.
(1) No person shall be detained solely by reason of
2. Application his political beliefs and aspirations.
GENERAL RULE: The privilege is available in any (2) No involuntary servitude in any form shall exist
proceedings, even outside the court, for they may except as a punishment for a crime whereof the
eventually lead to a criminal prosecution. party shall have been duly convicted.
A former court stenographer may be compelled SEC. 19. ART. III. 1987 CONSTITUTION
under pain of contempt to transcribe stenographic 1. Excessive fines shall not be imposed, nor cruel,
notes he had failed to attend to while in service. x x 11
degrading or inhuman punishment inflicted.
x such compulsion is not the condition of enforced Neither shall death penalty be imposed, unless,
compulsory service referred to by the Constitution. for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any
Fernando, J. concurring opinion: death penalty already imposed shall be reduced
The matter could become tricky should a to reclusion perpetua.
stenographer stubbornly refuse to obey and the 2. The employment of physical, psychological, or
court insist on keeping him in jail. The detention degrading punishment against any prisoner or
could then become punitive and give rise to the detainee or the use of substandard or
issue of involuntary servitude. [Aclaracion v. inadequate penal facilities under subhuman
Gatmaitan (1975)] conditions shall be dealt with by law.
Political Prisoners In this case the Court took into account, in lowering
the penalty to reclusion perpetua of the accused
Although they may also be considered as military most of whom were already death row convicts, the
prisoners as indicated in the second "Whereas", are deplorable sub-human conditions of the National
in fact civil prisoners, accused of offenses of Penitentiary where the crime was committed.
political character, not amenable to military justice [People vs. dela Cruz (1953)]
but to the ordinary administration of justice in civil
courts. RA 9346 (June 24, 2006): An Act Prohibiting the
Imposition of Death Penalty in the Philippines:
If the petitioners are political prisoners subject to Sec. 1. The imposition of the penalty of death is
the civil jurisdiction of ordinary courts of justice if hereby prohibited. Accordingly, R.A. No. 8177,
they are to be prosecuted at all, the army has no otherwise known as the Act Designating Death by
jurisdiction, nor power, nor authority, from all legal Lethal Injection is hereby repealed. R.A. No. 7659,
standpoints, to continue holding them in restraint. otherwise known as the Death Penalty Law, and all
They are entitled, as a matter of fundamental right, other laws, executive orders and decrees, insofar as
to be immediately released, any allegation as to they impose the death penalty are hereby repealed
whether the war was ended or not. [Raquiza v. or amended accordingly.
Bradford (1945)]
The import of the grant of power to Congress to
restore the death penalty requires: (1) that Congress
Sec. 19 of CA No. 682 authorizes that the political define or describe what is meant by heinous crimes;
prisoners in question "may be released on bail, even (2) that Congress specify and penalize by death, only
prior to the and
information," presentation
this mayof bethe done
corresponding
"existing crimes that qualify as heinous in accordance with
the definition or description set in the death penalty
provisions of law to the contrary notwithstanding." bill and/or designate crimes punishable byreclusion
We must assume that the discretion granted must be perpetua to death in which latter case, death can
construed in the sense that the same may be only be imposed upon the attendance of
exercised in cases wherein it was not heretofore circumstances duly proven in court that characterize
granted by law. And it is reasonable to assume that the crime to be heinous in accordance with the
the discretion granted is to the effect that the definition or description set in the death penalty
People's Court may exercise jurisdiction to order the bill; and (3) that Congress, in enacting this death
release on bail of political prisoners "even prior to penalty bill be singularly motivated by ―compelling
the presentation of the corresponding information." reasons involving heinous crimes.‖
[Duran v. Abad Santos (1945)]
For a death penalty bill to be valid, a positive
Petitioner has also contended that his arrest was manifestation in the form of higher incidence of
partly motivated by political reasons, and has crime should first be perceived and statistically
endeavored to show that, due to his oratorical proven following the suspension of the death penalty
ability, he became very popular and contributed "to [is not required in Sec. 19 (1)]. Neither does the said
the bad licking" of political opponents in Davao. provision require that the death penalty be resorted
Petitioner also called our attention to the fact that to as a last recourse when all other criminal reforms
of the thousands of other prisoners who were have failed to abate criminality in society. [People
released by the Japanese by pardon or otherwise, no v. Echegaray (1997)]
one exceptwas
Camasura him released
has beenfrom re-arrested. Thus,
confinement. The Golez resolution, signed by 113 congressman as
[Camasura v. Provost Marshal (1947)] of January 11, 1999 (House Resolution No. 629
introduced by Congressman Golez entitled
U. Excessive Fines and Cruel and "Resolution expressing the sense of the House of
Representatives to reject any move to review R.A.
Inhuman Punishments No. 7659, which provided for the re-imposition of
death penalty, notifying the Senate, the Judiciary
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
and the Executive Department of the position of the not involuntary servitude or imprisonment for debt.
House of Representative on this matter and urging [Ramirez v. de Orozco (1916)]
the President to exhaust all means under the law to
immediately implement the death penalty law.") The obligation incurred by the debtor, as shown by 11
House Resolution No. 25 expressed the sentiment the receipt, was yp [ay an ordinary contractual
that the House ". . . does not desire at this time to obligation. Since the guardianship proceeding was
review Republic Act 7659." In addition, the President civil in nature, the Court did not allow enforcement
has stated that he will not request Congress to ratify of the civil obligation by an order of imprisonment.
the Second Protocol in review of the prevalence of [In re Tamboco (1917)]
heinous crimes in the country. [Echegaray v.
Secretary (1998)] No person may be imprisoned for debt in virtue of a
civil proceeding. [Makapagal v. Santamaria (1930)]
To be prohibited by this provision the punishment
must not only be unusual but it must also be cruel. A person may be imprisoned as a penalty for a crime
There is no reason why unusual punishments which arising from a contractual debt and imposed in a
were not cruel should have been prohibited. If that proper criminal proceeding. Thus, the conversion of
had beenthe
change done it would have
punishments that been impossible
existed when tothe a
thecriminal fine
provision into ainprison
because such aterm
case,does not violate
imprisonment
Constitution was adopted. A law which changes a is imposed for a monetary obligation arising from a
penalty so as to make it less severe would be crime. [Ajeno v, Judge Insero (1976)]
unconstitutional if the new penalty were an unusual
one. W. Double Jeopardy
Punishments are cruel when they involve torture or a 1. Requisites
lingering death; but the punishment of death is not 2. Motions for Reconsideration and Appeals
cruel, within the meaning of that word as used in 3. Dismissal with Consent of Accused
the Constitution. It implies there something inhuman
and barbarous, something more than the mere SEC. 21. ART. III. No person shall be twice put in
extinguishment of life. The constitutional limit must jeopardy of punishment for the same offense. If an
be reckoned on the basis of the nature and mode of act is punished by a law and an ordinance,
punishment measured in terms of physical pain. conviction or acquittal under either shall constitute
[Legarda v. Valdez (1902)] a bar to another prosecution for the same act.
act or omission constituting the former When the case is dismissed other than on the merits,
charged. upon motion of the accused personally, or through
(2) The facts constituting the graver charge counsel, such dismissal is regarded as ―with express
became known or were discovered only consent of the accused‖, who is therefore deemed 11
after the filing of the former complaint or to have waived the right to plea double jeopardy.
information.
(3) The plea of guilty to the lesser offense was X. Ex Post Facto and Bills of
made without the consent of the fiscal and
the offended party. Attainder
When Defense of Double Jeopardy is Available
(1) Dismissal based on insufficiency of SEC. 22. ART. III. 1987 CONSTITUTION
evidence; No ex post facto law or bill of attainder shall be
(2) Dismissal because of denial of right to enacted.
speedy trial;
(3) Accused is discharged to be a state witness. RA 1700 which declared the Communist Party of the
Philippines a clear and present danger to Philippine
2. Motions for Reconsideration and security, and thus prohibited membership in such
Appeals organization, was contended to be a bill of
attainder. Although the law mentions the CPP in
particular, its purpose is not to define a crime but
The accused cannot be prosecuted a second time for
only to lay a basis or to justify the legislative
the same offense and the prosecution cannot appeal
determination that membership in such organization
a judgment of acquittal. [Kepner v. US (1904)]
is a crime because of the clear and present danger
to national security.[People vs. Ferrer (1972)]
Provided, that the judge considered the evidence,
even if the appreciation of the evidence leading to
the acquittal is erroneous, an appeal or motion for Ex Post Facto Laws —Defined
reconsideration by the prosecution will not be
allowed. [People v. Judge Velasco (2000)] (1) Makes an action done before the passing of
the law and which was innocent when done
No error, however, flagrant, committed by the court criminal, and punishes such action.
against the state, can be reserved by it for decision
by the Supreme Court when the defendant has once (2) Aggravates a crime or makes it greater than
been placed in jeopardy and discharged even though when it was committed.
the discharge was the result of the error committed.
[People v. Ang Cho (1945) citing State v. Rook] (3) Changes the punishment and inflicts a
greater punishment than the law annexed
A mere verbal dismissal is not final until written and to the crime when it was committed.
signed by the judge.[Rivera, Jr. v. People (1990)]
(4) Alters the legal rules of evidence and
When an accused appeals his conviction, he waives receives less or different testimony than
his right to the plea of double jeopardy. If the the law required at the time of the
accused had been prosecuted for a higher offense commission of the offense in order to
but was convicted for a lower offense, he has convict the defendant. ( Mekin v. Wolfe,
technically been acquitted of the higher offense. His 1903)
appeal would give the Court the right to impose a
penalty higher than that of the srcinal conviction (5) Assumes to regulate civil rights and
imposed on him. [Trono v. US (1905)] remedies only but in effect imposes a
penalty or deprivation of a right which
Double jeopardy provides three related protections: when done was lawful.
(1) Against a second prosecution for the same
offense after conviction; (6) Deprives a person accused of a crime of
(2) Against a second prosecution for the same some lawful protection of a former
offense after conviction; and conviction or acquittal, or a proclamation
(3) Against multiple punishments for the same of amnesty. [In re Kay Villegas Kami(1970)]
offense. [People v. Dela Torre, G.R. No.
1379-58, March 11, 2002] The prohibition applies only to criminal legislation
which affects the substantial rights of the accused.
3. Dismissal with Consent of Accused [Phil. National Bank v. Ruperto (1960)]
It applies to criminal procedural law prejudicial to
RULE 117. Sec. 8, par 1. Provisional dismissal.—A the accused. [US v. Gomez (1908)]
case shall not be provisionally dismissed except with
the express consent of the accused and with notice It is improper to apply the prohibition to an
to the offended party. executive proclamation suspending the privilege of
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 2
the writ of habeas corpus. [Montenegro v. Castañeda and penalties. Within the meaning of the
(1952)] Constitution, bills of attainder include bills of pains
and penalties. [Cummings v. Missouri(1867)]
11
Bills of Attainder—Defined
It is a general safeguard against legislative exercise
A bill of attainder is a legislative act which inflicts of the judicial function, or trial by legislature.[US v.
punishment without judicial trial. If the punishment Brown (1965)]
be less than death, the act is termed a bill of pains
Annex A
QUERY HABEAS DATA
What is the writ of Remedy
habeas data? 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 publicin
Engaged official
the or employee,collecting
gathering, or of a private
or individual
storing ofor data
entityor information
regarding the person, family, home and correspondence of the aggrieved
party.
What rule governs The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the
petitions for and the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify
issuance of a writ of substantive rights.
habeas data?
What is the Supreme (Constitution, Art. VIII, Sec. 5[5]).
Court‘s basis in issuing
the Rule?
When does the Rule take The Rule takes effect on 2 February 2008, following its publication in three (3)
effect? newspapers of general circulation.
Who may file a petition The aggrieved party.
for the issuance of a writ However, in cases of extralegal killings and enforced disappearances, the
of habeas data? petition may be filed by
- Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
- Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph.
Supreme Court;
Court of Appeals;
Sandiganbayan: when the action concerns public data files of government offices.
How much is the docket No docket and other lawful fees shall be required from an indigent petitioner.
or filing fees for the
petition? The petition of the indigent shall be docketed and acted upon immediately,
without prejudice to subsequent submission of proof of indigency not later than 15
days from the filing of the petition.
Instead of having the Yes. It can be done when the respondent invokes the defense that the release of the
hearing in open court, data or information in question shall compromise national security or state secrets ,
can it be done in or when the data or information cannot be divulged to the public due to its nature or
chambers? privileged character
2012 UP L AW
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POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
that Laurel was not compensated during his Where The law Contract
tenure. A salary is a usual (but not duties
necessary) criterion for determining the are
nature of a position. Also, the element of defined 12
continuance is not indispensable. [Laurel v.
Desierto (2002)] 7. No vested right to public office.
as in the case of Ad Hoc Bodies or
commissions GENERAL RULE:
A public office, being a mere privilege given by the
5. Public Office v. Public Employment State, does not vest any right in the holder of the
office. This rule applies when the law is clear.
Public employment is broader than public
office. All public office is public employment, EXCEPTION:
but not all public employment is a public office. When the law is vague, the person‘s holding of the
Public employment as a position lacks either one office is protected and he should not be easily
or more of the foregoing elements of a public deprived of his office.
office. (Bernard v. Humble [182 S.W. 2d. 24.
Cited by De Leon, page 8-9])1 A public office is neither property nor a public
o created by contract rather than by force of contract. Yet the incumbent has, in a sense, a
law right to his office. If that right is to be taken
the most important characteristic which away by statute, the terms should be clear.
distinguishes an office from an employment is [Segovia v. Noel (1925)]
that:
o the creation and conferring of an office 8. Public Office is not Property.
involves a delegation to the individual of
ome of the sovereign functions of A public office is not the property of the public
government, to be exercised by him for the officer within the meaning of the due process clause
benefit of the public, and of the non-impairment of the obligation of contract
o that the same portion of the sovereignty of clause of the Constitution.
the country, either legislative, executive or It is a public trust/agency. Due process is
judicial, attached, for the time being, to be violated only if an office is considered property.
exercised for the public benefit. However, a public office is not property within
the constitutional guaranties of due process. It
Unless the powers so conferred are of this nature, is a public trust or agency. As public officers
the individual is not a public officer. [Laurel v. are mere agents and not rulers of the people, no
Desierto (2002)] man has a proprietary or contractual right to an
office. [Cornejo v. Gabriel (1920)]
6. Public Office v. Public Contract It is personal. Public office being personal, the
Public Office Public Contract death of a public officer terminates his right to
How Incident of Originates from will occupy the contested office and extinguishes his
Created sovereignty. of contracting counterclaim for damages. His widow and/or
Sovereignty is parties. heirs cannot be substituted in the counterclaim
omnipresent. suit. [Abeja v. Tañada (1994)]
Object To carry out the Obligations
sovereign as well as imposed only upon Exceptions:
governmental the persons who In quo warranto proceedings relating to the
functions affecting entered into the question as to which of 2 persons is entitled to a
even persons not contract. public office
bound by the In an action for recovery of compensation
contract. accruing by virtue of the public office
Subject A public office Limited duration and
Matter embraces the idea specific in its object. 9. Creation of Public Office
of tenure, Its terms define and
duration, limit the rights and Modes of Creation of Public Office
continuity, and the obligations of the by the Constitution
duties connected parties, and neither by statute / law
therewith are may depart by a tribunal or body to which the power to
generally therefrom without create the office has been delegated
continuing and the consent of the
permanent. other. How Public Office is Created
Scope Duties that are Duties are very GENERAL RULE: The creation of a public
generally specific to the office is PRIMARILY a Legislative Function.
continuing and contract. EXCEPTIONS:
permanent. o where the offices are created by the
Constitution;
1
ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
o where the Legislature validly delegates such Except when the public official is constrained to
power. accept because the non-acceptance of the new
appointment would affect public interest. (no
Legislature should Validly Delegate the Power to abandonment) [Zandueta v. De La Costa 12
Create a Public Office (1938)]
Or else, the office is inexistent. The President‘s
authority to "reorganize within one year the 12. Estoppel in Denying Existence of Office
different executive departments, bureaus and
other instrumentalities of the Government" in A person is estopped from denying that he has
order to promote efficiency in the public service occupied a public office when he has acted as a
is limited in scope and cannot be extended to public officer; more so when he has received public
other matters not embraced therein. [UST v. monies by virtue of such office. [Mendenilla v.
Board of Tax Appeals (1953)] Onandia (1962)]
o They become such either by direct provision officers therefore are likewise agents entrusted with
of law, by election or by a competent the responsibility of discharging its functions. As
authority‘s appointment. such, there is no presumption that they are
o Examples are barrio captain, barrio empowered to act. There must be a DELEGATION 12
councilman, barrio policeman, barangay of such authority, either express or implied.In the
leader, and any person who comes to the absence of a valid grant, they are devoid of power.
aid of persons in authority. [Villegas v. Subido (1971)]
EXCEPTIONS 2. Appointment
When citizens are required, under conditions
provided by law, to render personal military or (a) Definition
civil service (see Sec. 4, Art. II, 1987 Const.); Designation Appointment
When a person who, having been elected by Definition Imposition of Appointing
popular election to a public office, refuses additional duties authority selects
without legal motive to be sworn in or to upon existing an individual
discharge the duties of said office. This is a office who will occupy
felony. a certain public
Art 234, RPC: Refusal to discharge elective office
office- the penalty of arresto mayor or a fine Extent of Limited Comprehensive
not exceeding 1,000 pesos, or both, shall be Powers
imposed upon any person who, having been Security of No. Yes.
elected by popular election to a public office, tenure?
shall refuse without legal motive to be sworn in Is prior/1st …a 2nd …a 2nd
or to discharge the duties of said office. office designated appointive
abandoned position is position is
3. Public Officer’s Power is Delegated (not when… assumed? assumed?
Presumed) NO Usually YES
A public official exercises power, not rights. The Political. Appointment is generally a political
government itself is merely an agency through which question so long as the appointee fulfills the
the will of the state is expressed and enforced. Its
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
minimum qualification requirements prescribed (No Security of Tenure) revocable at will: just
by law. cause or valid investigation UNNECESSARY;
o an ―acting‖ appointment is a temporary
Vacancy for Validity. For the appointment to be appointment and revocable in 12
valid, the position must be vacant [Castin v. character. [Marohombsar v. Alonto
Quimbo (1983)] (1991)]
o A temporary appointee is like a
(b) Nature of Power to Appoint designated officer – they:
The power to appoint is intrinsically an occupy a position in an acting
executive act involving the exercise of capacity and
discretion. [Concepcion v. Paredes (1921)] do not enjoy security of tenure.
[Sevilla v. CA (1992)]
Must be unhindered and unlimited by Congress. o Even a Career Service Officer
Congress cannot either appoint a public officer unqualified for the position is deemed
or impose upon the President the duty to temporarily-appointed. Thus he does
appoint any particular person to an office. The not enjoy security of tenure – he is
appointing power is
of the President, the exclusive
upon which no prerogative
l imitations o
terminable at will.who later accepts a
A public officer
may be imposed by Congress, EXCEPTthose: temporary appointment terminates his
o requiring the concurrence of the Commission relationship with his former office.
on Appointments; and [Romualdez III v. CSC (1991)]
o resulting from the exercise of the limited o EXCEPT Fixed-Period Temporary
legislative power to prescribe the Appointments: may be revoked ONLY at
qualifications to a given appointive office. the period‘s expiration. Revocation
[Manalang v. Quitoriano (1954)] before expiration must be for a valid
cause.
The President‘s power to appoint under the (Duration) until a permanent appointment is
Constitution should necessarily have a issued.
reasonable measure of freedom, latitude, or
discretion in choosing appointees. [Cuyegkeng II. Steps in Appointment Process
v. Cruz (1960)]
For Appointments requiring confirmation
Where only one can qualify for the posts in
Regular Appointments (NCIA)
question, the President is precluded from
1. President nominates.
exercising his discretion to choose whom to
2. Commission on Appointmentsconfirms.
appoint. Such supposed power of appointment,
3. Commission issues appointment.
sans the essential element of choice, is no
4. Appointee accepts.
power at all and
appointment goes
itself. against
[Flores v.the very(1993)]
Drilon nature of
Ad-Interim Appointments (NIAC)
1. President nominates.
C. Modes and Kinds of Appointment 2. Commission issues appointment.
I. Classification of Appointments 3. Appointee accepts.
II. Steps in Appointment Process 4. Commission on Appointmentsconfirms.
III. Presidential Appointees
IV. Discretion of Appointing Official For Appointments Not Requiring Confirmation
V. Effectivity of Appointment (AIA)
VI. Effects of a Complete, Final and Irrevocable 1. Appointing authorityappoints.
Appointment 2. Commission issues appointment.
3. Appointee accepts.
I. Classification of Appointments
Note: If a person is appointed to the career
service of the Civil Service, the Civil Service
1) Permanent: Commission must bestow attestation.
The permanent appointee:
o must be qualified
o must be eligible
III. Presidential Appointees
o is constitutionally guaranteed security
of tenure Who can be nominated and appointed only WITH
Other officers whose appointments are vested in the Constitutional prohibition on temporary
him by the Constitution, including Constitutional or acting appointments of COMELEC
Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Commissioners.
Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, 12
Sec. 1 (2) for COA) . o By-passed Appointee may be Reappointed.
Commission on Appointments‘ failure to
Who can the President appoint WITHOUT CA’s confirm an ad interim appointment is NOT
approval? disapproval. An ad interim appointee
All other officers of the government whose disapproved by the COA cannot be
appointments are not otherwise provided for by reappointed. But a by-passed appointee, or
law; one whose appointment was not acted upon
Those whom he may be authorized by law to the merits by the COA, may be appointed
appoint; again by the President.
Members of the Supreme Court;
Judges of lower courts; IV. Discretion of Appointing Official
Ombudsman and his deputies
Presumed.
Kinds of Presidential Appointments Administrators of public officers, primarily the
Regular: made by the President while Congress department heads should be entrusted with plenary,
is in session after the nomination is confirmed or at least sufficient, discretion. Their position most
by the Commission of Appointments, and favorably determines who can best fulfill the
continues until the end of the term. functions of a vacated office. There should always
Ad interim: made while Congress is not in be full recognition of the wide scope of a
session, before confirmation by the Commission discretionary authority, UNLESS the law speaks in
on Appointments; immediately effective and the most mandatory and peremptory tone,
ceases to be valid if disapproved or bypassed by considering all the circumstances. [Reyes v.
the Commission on Appointments . This is a Abeleda (1968)]
permanent appointmentand it being subject to
confirmation does not alter its permanent Discretionary Act.
character. Appointment is an essentially discretionary power. It
o Efficient. Recess appointment power keeps in
must be performed by the officer in whom it is
continuous operation the business of vested, the only condition being that the appointee
government when Congress is not in session. should possess the qualifications required by law.
The individual chosen may thus qualify and [Lapinid v. CSC (1991)]
perform his function without loss of time.
Scope. The discretion of the appointing
o Duration. The appointment shall cease to be authority is not only in the choice of the person
effective upon rejection
on Appointments, by acted
or if not the Commission
upon, at who is to be appointed but also in the nature
and character of the appointment intended
the adjournment of the next session, (i.e., whether the appointment is permanent or
regular or special, of Congress. temporary).
o Permanent. It takes effect immediately and Inclusive Power. The appointing authority holds
can no longer be withdrawn by the the power and prerogative to fulfill a vacant
President once the appointee has qualified position in the civil service.
into office.
The exercise of the power to transfer,
The fact that it is subject to confirmation reinstate, reemploy or certify is widely used
by the Commission on Appointments does (need not state reason)
not alter its permanent character.
To hold that the Civil Service Law requires filling up
The Constitution itself makes anad interim any vacancy by promotion, transfer, reinstatement,
appointment permanent in character by reemployment, or certification IN THAT ORDER
making it effective until disapproved by the would be tantamount to legislative appointment
Commission on Appointments or until the which is repugnant to the Constitution. What it does
next adjournment of Congress.[Matibay v. purport to say is that as far as practicable the
Benipayo (2002)] person next in rank should be promoted,
otherwise the vacancy may be filled by transfer,
o
Not Acting. An ad from
distinguishable interim appointment
an is
―acting‖ reinstatement, reemployment or certification,as
the appointing power sees fit, provided the
appointment which is merely temporary, appointee is certified to be qualified and eligible.
good until another permanent appointment [Pineda v. Claudio (1969)]
is issued.
Promotion of “next-in-rank” career officer is
o Applicable to COMELEC Commissionsers, being
not Mandatory. The appointing authority should
permanent appointments, do not violate
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
People's Courtcould
the President Act, which provided
designate Judgesthat
of IV. Eligibility is Presumed
First Instance, Judges-at-large of First
Instance or Cadastral Judges to sit as IN FAVOR of one who has been elected or
substitute Justices of the Supreme appointed to public office.
Court in treason cases without them The right to public office should be strictly
necessarily having to possess the construed against ineligibility.
required constitutional qualifications of (De Leon, 26)
a regular Supreme Court Justice.;
[Vargas v. Rilloraza (1948)] V. Qualifications Prescribed By
Automatic transfer to a new office. A Constitution
legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent 1. For President (Sec. 2, Art. VI, Constitution)
officer to a new office created; and Vice President (Sec. 3, Art. VII,
[Manalang v. Quitorano (1954)] Constitution)
Requiring inclusion in a list . A provision Natural-born citizen
that impliedly prescribes inclusion in a 40 years old on election day
list submitted by the Executive Council Philippine resident for at least 10 years
of the Phil. Medical Association as one immediately preceding election day
of the qualifications for appointment;
and which confines the selection of the 2. For Senator (Sec. 3, Art. VI, Constitution)
members of the Board of Medical Natural-born citizen
Examiners to the 12 persons included in 35 years old on election day
the list; [Cuyegkeng v. Cruz (1960)] able to read and write
registered voter
III. Time of Possession of resident of the Philippines for not less than
two years immediately preceding election
Qualifications day
At the time specified by the Constitution or law. 3. For Congressmen (Sec. 6, Art. VI,
Constitution)
If time is unspecified, 2 views: Natural-born citizen
a. qualification during commencement of term 25 years old on election day
or induction into office; able to read and write
b. qualification / eligibility during election or registered voter in district in which he shall
appointment be elected
(De Leon, 26-27) resident thereof for not less than one year
immediately preceding election day
Eligibility is a continuing nature, and must
exist throughout the holding of the public 4. Supreme Court Justice
office. Once the qualifications are lost, the Natural born citizen
public officer forfeits the office.
o No estoppel in ineligibility. Knowledge of at least
15 years40
or years
more old
as a judge or engaged in law
ineligibility of a candidate and failure to practice
question such ineligibility before or during of proven competence, integrity, probity and
the election is not a bar to questioning such independence (C.I.P.I.)
eligibility after such ineligible candidate
has won and been proclaimed. Estoppel will 5. Civil Service Commissioners (Sec. 1 [1], Art.
not apply in such a case. [Castaneda v. Yap IXB. Constitution)
(1952)]
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
Natural-born citizen
35 years old at time of appointment VI. Religious Test or Qualification is
proven capacity for public administration not Required 12
not a candidate for any elective position in
election immediately preceding
appointment Philippine Constitution, Art. III
Sec. 5. … No religious test shall be required for the
6. COMELEC Commissioners (Sec. 1[1], Art. IXC) exercise of civil or political rights.
Natural-born citizen
35 years old at time of appointment VII. Qualification Standards and
college degree holder
Requirements under the Civil Service
not a candidate for elective position in
election immediately preceding Law
appointment
chairman and majority should be members of 1. Qualification Standards
the bar who have been engaged in the It enumerates the minimum requirements for
practice of law for at least 10 years a class of positions in terms of education,
training and experience, civil service
7. COA Commissioners eligibility, physical fitness, and other
Natural-born citizen qualities required for successful
35 years old at time of appointment performance. (Sec. 22, Book V,
CPA with >10 year of auditing experience or Administrative Code)
Bar member engaged in practice of law for at The Departments and Agencies are responsible
least 10 years for continuously establishing, administering
Not candidates for any elective position in and maintaining the qualification standards
election immediately preceding as an incentive to career advancement.
appointment. (Sec. 7, Rule IV, Omnibus Rules)
Such establishment, administration, and
Notes: maintenance shall be assisted and approved
“Practice of Law” defined. Practice of law by the CSC and shall be in consultation with
means any activity, in or out of court, which the Wage and Position Classification Office
requires the application of law, legal (ibid)
procedure, knowledge, training and It shall be established for all positions in the
experience. Generally, to practice law is to 1st and 2nd levels (Sec. 1, Rule IV,
give notice or render any kind of service which Omnibus Rules)
requires the use in any degree of legal
knowledge or skill. [Cayetano v. Monsod 2. Political Qualifications for an Office
(1991)] (i.e. membership in a political party)
In the dissenting opinion of Justice Padilla in the
case of Cayetano v. Monsod, citing Agpalo, he GENERAL RULE
stated that engaging in the practice of law Political qualifications are NOT Required for public
presupposes the existence of lawyer-client office.
relationship. Hence, where a lawyer undertakes
an activity which requires knowledge of law but EXCEPTIONS
involves no attorney-client relationship, such as Membership in the electoral tribunals of either
teaching law or writing law books or articles, he the House of Representatives or Senate(Art. VI,
cannot be said to be engaged in the practice of Sec. 17, 1987 Const.);
his profession or a lawyer Party-list representation;
“Residency” defined. In election law, residence Commission on Appointments;
refers to domicile, i.e. the place where a party Vacancies in the Sanggunian (Sec. 45, Local
actually or constructively has his permanent Government Code)
home, where he intends to return. To
successfully effect a change of domicile, the 3. No Property Qualifications
candidate must prove an actual removal or an Since sovereignty resides in the people, it is
actual change of domicile. [Aquino v. COMELEC necessarily implied that the right to vote and to be
(1995)] voted should not be dependent upon a candidate‘s
Presumption in favor of domicile of srcin. wealth. Poor people should also be allowed to be
Domicile requires the twin elements of actual elected to public office because social justice
habitual residence and animus manendi presupposes equal opportunity for both rich and
(intent to permanently remain). Domicile of poor. [Maguera v. Borra and Aurea v. COMELEC
srcin is not easily lost; it is deemed to continue (1965)]
absent a clear and positive proof of a successful
change of domicile. [Marcos v. COMELEC 4. Citizenship
(1995)] Aliens not eligible for public office.
The purpose of the citizenship requirement is
to ensure that no alien, i.e., no person
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
EXCEPTIONS corporations
subsidiaries or their
When the pardon‘s terms expressly restores such
(Art. 36, RPC); Effect: or else he forfeits
When the reason for granting pardon is non- his seat
commission of the imputed crime. [Garcia v.
Chairman, COA (1993)] Shall also not be
appointed to any office
E. Disabilities and Inhibitions of when such was created or
its emoluments were
Public Officers increased during his
term. (Art. VI, Sec 13)
Members of the shall not be designated to
Disqualifications to Hold Public Office Supreme Court and any agency performing
IN GENERAL: Individuals who lack ANY of the other courts established quasi-judicial or
qualifications prescribed by the Constitution or by law administrative functions.
by law for a public office are ineligible (i.e. (Art. VIII, Sec. 12)
disqualified from holding such office). Members of the shall not hold any other
Constitutional office or employment
Authority: The legislature has the right to Commission [during their tenure].
prescribe disqualifications in the same manner (Art. IX-A, Sec. 2)
that
that it
thecanprescribed
prescribe disqualifications
qualifications, provided
do not Ombudsman
Deputies and his (Art. XI, Sec. 8)
violate the Constitution. Members of must not have been
Constitutional candidates for any
General Constitutional Disqualifications Commissions, the elective position in the
1. Losing candidates cannot be appointed to any Ombudsman and his elections immediately
governmental office within one year after Deputies preceding their
such election. (Art. IX-B Sec. 6) appointment (Art IX-B,
2. Elective officials during their tenure are Sec. 1; Art. IX-C, Sec. 1;
ineligible for appointment or designation in Art. IX-D, Sec. 1; Art XI,
ANY capacity to ANY public office or Sec. 8)
position (Art. IX-B Sec. 7(1)) Members of are appointed to 7-year
3. Appointive officials shall not hold any other Constitutional term, without
governmental position. Commissions, the reappointment (Sec. 1(2)
o Unless otherwise allowed by law or his Ombudsman and his of Arts. IX-B, C, D; Art.
position‘s primary functions (Art. IX-B Deputies XI, Sec. 11)
Sec 7 (2)) The President‘s spouse shall not be appointed
o Note: There is no violation when and relatives by during President‘s tenure
another office is held by a public consanguinity or affinity as Members of the
officer in an ex officio capacity within the fourth civil Constitutional
(where one can‘t receive compens ation degree Commissions, or the
or otherby law
provided honoraria anyway),
and as required as
by the Office of the or as
Ombudsman,
primary functions of his office. [ Secretaries,
National Amnesty Commission v. COA Undersecretaries,
(2004)] chairmen or heads of
bureaus or offices,
Specific Constitutional Disqualifications including government-
Public Officer Disqualifications owned-or -controlled
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
6. for reappointment
Consecutive terms (Article
limit: XI, Constitution). not conflict,
her official or tend to conflict, with his or
functions.
i. Vice-President = 2 consecutive terms
ii. Senator = 2 consecutive terms 9. Relationship with the appointing power
iii. Representative = 3 consecutive terms General Rule on Nepotism: The Civil Service
iv.Elective local officials = 3 consecutive terms Decree (PD 807) prohibits all appointments
(Sec. 8, Art. X, Constitution) in the national and local governments or
Public officer‘s voluntary renunciation any branch or instrumentality thereof made
of office for any length of time = an in favor of the relative of:
interruption in the continuity of his i. appointing authority;
service for the full term for which he ii. recommending authority;
was elected. iii. chief of the bureau office; or
iv. person exercising immediate
7. Holding more than one office: to prevent offices supervision over the appointee
of public trust from accumulating in a single Relative: related within the third degree of
person, and to prevent individuals from either consanguinity or of affinity.
deriving, directly or indirectly, any pecuniary Exceptions to rule on nepotism:
benefit by virtue of their holding of dual o persons employed in a confidential
positions. capacity
o teachers
Civil Liberties Union v. Executive Secretary o physicians
o
(1991):
Section 7, Article IX-B of the Constitution members
Philippinesof the Armed Forces of the
generally prohibits elective and appointive
public officials from holding multiple offices 10. Under the Local Government Code (sec. 40)
or employment in the government unless i. Sentenced by final judgment for an offense
they are otherwise allowed by law or by the involving moral turpitude or for an offense
primary functions of their position. punishable by 1 year or more of
imprisonment, within 2 years after serving
This provision does NOT cover the sentence;
President, Vice-President and cabinet ii. Removed from office as a result of an
members – they are subject to a stricter administrative case;
prohibition under Section 13 of Article VII. iii. Convicted by final judgment for violating the
oath of allegiance to the Republic;
To apply the exceptions found in Section 7, iv.Dual citizenship;
Article IX-B to Section 13, Article VII would
obliterate the distinction set by the Mercado v. Manzano (1999):
framers of the Constitution as to the high- Dual citizenship is different from dual
ranking officials of the Executive branch. allegiance. The former arises when, as a result
However, public officials holding positions of the concurrent application of the different
without additional compensation in ex- laws of two or more states, a person is
officio capacities as provided by law and as simultaneously considered a national by the said
states.
required by their by
are not covered office‘s primary13,
the Section functions
Article Dual allegiance, on the other hand, refers to the
VII prohibition. situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
8. Holding of office in the private sector: states. While dual citizenship is involuntary,
Section 7 (b)(1)of RA 6713 considers unlawful dual allegiance is the result of an individual‘s
for public officials and employees during volition.
their incumbency to own, control, manage,
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
[I]n including §5 in Article IV on citizenship, the The presumption is that the public officer was
concern of the Constitutional Commission was chosen because he was deemed fit and
not with dual citizens per se but with competent to exercise that judgment and
naturalized citizens who maintain their discretion. Unless the power to substitute 13
allegiance to their countries of srcin even after another in his place has been given to him, a
their naturalization. public officer cannot delegate his duties to
Hence, the phrase ―dual citizenship‖ in R.A. another.
No. 7160, §40(d) and in R.A. No. 7854, §20 must
be understood as referring to ―dual 2. As to the Obligation of the Officer to
allegiance.‖ Perform his Powers and Duties
They are such as necessarily require the Under our political system, the source of
exercise of reason in the adaptation of means to governmental authority is found in the people.
an end, and
whether the discretion
act shall in
be determining
done or thehow or
course Directly or indirectly
representatives, through
they create suchtheir chosen
offices and
pursued. agencies as they deem to be desirable for the
When the law commits to any officer the duty of administration of the public functions and
looking into facts and acting upon them, not in a declare in what manner and by what persons
way which it specifically directs, but after a they shall be exercised.
discretion in its nature, the function is quasi- Their will, in these respects, finds its expression
judicial. in the Constitution and the laws. The right to be
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
a public officer, then, or to exercise the powers the best of his ability, in such a manner as to be
and authority of a public office, must find its above suspicion of irregularities, and to act
source in some provision of the public law. primarily for the benefit of the public.
Nothing is better settled in the law than that a As to outside activities: It is the duty of public 13
public official exercises power, not rights. The officers to refrain from outside activities which
government itself is merely an agency through interfere with the proper discharge of their
which the will of the state is expressed and duties
enforced. Its officers therefore are likewise
agents entrusted with the responsibility of 2. Duty to make public disclosure of
discharging its functions. As such there is no statements of assets and liabilities
presumption that they are empowered to act. Public officials and employees have an
There must be a delegation of such authority, obligation under the Code of Conduct and
either express or implied. In the absence of a Ethical Standards for Public Officials and
valid grant, they are devoid of power. What Employees to accomplish and submit
they do suffers from a fatal infirmity. [Villegas declarations under oath of, and the public has
v. Subido (1969)] the right to know, their assets, liabilities, net
worth and financial and business interests
III. Duties of Public Officers including those of their spouses and of
(De Leon, 2008) unmarried children under 18 years of age living
in their household.
1. Duties as Trustees for the Public
3. Transparency of transactions and access to
a. To obey the law information
It is the duty of an officer to obey the general
laws and the laws which prescribe the duties of
his office, and a public officer has no power to G. Rights of Public Officers
vary or waive any statutory law. I. In General
As a general rule, a public officer must obey a II. Right to Compensation
law found on the statute books until its III. Other Rights
constitutionality is judicially passed upon in a
proper proceeding.
I. In General
b. To accept and continue in office (De Leon, 2008)
It is the duty of every person having the requisite
qualifications, when elected or appointed to a public 1. Rights incident to public office
office, to accept it. The theory is that the public has
the right to command the services of any citizen in The rights of one elected or appointed to office are,
any official position which it may designate. in general, measured by the Constitution or the law
under which he was elected or appointed.
c. To accept the burden of office
One who accepts a public office does so with the 2. Rights as a citizen
burden, and is considered as accepting its burdens
and obligations with its benefits. He thereby a. Protection from publication commenting on
subjects himself to all constitutional and legislative his fitness and the like
provisions relating thereto and undertakes to
perform all the duties of the office. The mere fact that one occupies a public office
does not deprive him of the protection accorded
d. As to diligence and care to citizens by the Constitution and the laws.
Every public officer is bound to use reasonable skill However, by reason of the public character of
and diligence in the performance of his official his employment or office, a public officer is, in
duties, particularly where rights of individuals may general, held not entitled to the same
be jeopardized by his neglect. protection from publications commenting on his
fitness and the like, as is accorded to the
e. As to choice and supervision of ordinary citizen.
subordinates
It is the duty of a public officer having an b. Engaging in ce rtain political and business
appointing power to make the best available activities
appointment.
The degree of care required in selecting The governmental interest in maintaining a high
subordinates must depend upon the nature of level service by assuring the efficiency of its
the work to be performed and the employees in the performance of their tasks may
circumstances of each case. require public employees to suspend or refrain from
certain political or business activities that are
f. Ethical duties embraced within the constitutional rights of others,
Every public officer is bound to perform the when such activities are reasonably deemed
duties of his office honestly, faithfully and to inconsistent with their public status and duties.
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
Any action denoting the movement or progress office, belong to the public, must be
of personnel in the civil service is known as determined wit reference to the facts of each
personnel action. case.
It includes: o where such are indispensable in the proper
13
o appointment through certification conduct of the office, the officer may not
o promotion take them as his own property.
o transfer o if, not being required by law, they are
o reinstatement prepared by the officer apart from his
o reemployment official duties and are not indispensable in
o detail the proper conduct of the office, the officer
o reassignment may acquire a property right therein.
o demotion and
o separation
H. Liabilities of Public Officers
I. Preventive Suspension and Back Salaries
5. Rights under the Revised Government
II. Illegal Dismissal, Reinstatement and Back
Service Insurance Act Salaries
Covered employees are entitled to retirement The liability of a public officer to an individual or
benefits, separation benefits, unemployment or the public is based upon and is co-extensive with his
involuntary separation benefits, disability benefits, duty to the individual or the public. (De Leon, 2008)
survivorship benefits, funeral benefits and life
insurance benefits. Three-fold Responsibility of Public Officers (De
Leon, 2008)
6. Right to Reimbursement and Indemnity A public officer is under a three-fold responsibility
for violation of duty or for wrongful act or omission:
When a public officer, in the due performance Civil Liability: if the individual is damaged by
of his duties, has been expressly or impliedly such violation, the official shall, in some cases,
required by law to incur expenses on the public be held liable civilly to reimburse the injured
account, not covered by his salary or party
commission and not attributable to his own Criminal Liability: if he law has attached a penal
neglect or default, the reasonable and proper sanction, the officer may be punished criminally
amount thereof forms a legitimate charge Administrative Liability: such violation may also
against the public for which he should be lead to imposition of fine, reprimand,
reimbursed. suspension or removal from office. This
Within the same limits, the officer is entitled to administrative liability is separate and distinct
be indemnified by the public against the from the penal and civil liabilities. (Agpalo,
consequences of acts which he has been 2005)
expressly or impliedly required to perform upon
the public account, and which are not Civil Liability (Agpalo, 2005)
manifestly illegal and which he does not know to A public officer is not liable for damages which
be wrong. a person may suffer arising from the just
performance of his official duties and within the
7. Right to Reinstatement and Back Salary scope of his assigned tasks. An officer who acts
within his authority is not liable for damages as
Reinstatement means the restoration to a state it would virtually be a charge against the
or condition from which one had been removed Republic, which is not amenable to judgment
or separated. One who is reinstated assumes the for monetary claims without its consent.
position he had occupied prior to the dismissal Statutory basis of liability:
Back salary or wages is a form of relief that o Under the Administrative Code:
restores the income that was lost by reason of Sec. 38. Liability of Superior Officers. - (1) A public
unlawful dismissal officer shall not be civilly liable for acts done in the
For a plaintiff to succeed in seeking performance of his official duties, unless there is a
reinstatement to an office, he must prove his clear showing of bad faith, malice or gross
right to the office. Unless this right is shown, negligence.
the action must fail even if the appointment of (2) Any public officer who, without just cause,
the successor is first in issue. neglects to perform a duty within a period fixed by
law or regulation, or within a reasonable period if
8. Rights to Property, Devices and none is fixed, shall be liable for damages to the
Inventions private party concerned without prejudice to such
other liability as may be prescribed by law.
Title to a public office carries with it the right, (3) A head of a department or a superior officer
during the incumbency of the officer, to the shall not be civilly liable for the wrongful acts,
insignia and property thereof. omissions of duty, negligence, or misfeasance of his
The question whether records, discoveries, subordinates, unless he has actually authorized by
inventions, devices, data and the like, made or written order the specific act or misconduct
prepared by an officer while he is occupying the complained of.
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
still be considered as actually occupying and o exercising the functions of public office
performing the duties of the office which he had without lawful right;
abandoned and vacated. An abandonment and o ineligibility for the public office as required
GENERAL RULE
None. A de facto officer cannot sue for the recovery
I. Expiration of the term or tenure of
of salary, fees or other emoluments attached to the office
office, for the duties he has performed. His acts, as
far as he himself is concerned, are void. (63A Am. Upon the expiration of the officer‘s term, unless
Jur. 2d 1094-1095) he is authorized by law to hold over, his rights,
duties and authority as a public officer must
The rightful incumbent may recover from thede ipso facto cease
facto officer tenure,
the salary received
thoughbyhethe latter during Term
officerofmay
his wrongful even entered into the office means the time during as
which the
claim to hold the office of right
office in good faith and under color of title.[ Monroy and fixes the interval after which the several
v CA (1967) incumbents shall succeed one another. It is a
fixed and definite period of time to hold office,
EXCEPTIONS perform its functions and enjoy its privileges
Where there is no de jure public officer, the and emoluments until the expiration of said
officer de facto who in good faith has had period
possession of the office and has discharged the Tenure of office represents the period during
duties pertaining thereto is legally entitled to which the incumbent actually holds office.
the emoluments of the office. M [ onroy v. CA
[1967])
In Civil Liberties Union v. Executive Secretary
II. Reaching the age limit (retirement)
(1991), even as EO No. 284 was declared
unconstitutional because it allowed Cabinet This mode results in the compulsory and automatic
members to hold multiple offices in direct retirement of a public officer
contravention of the Constitution, it was held
that during their tenure in the questioned III. Death or permanent disability
positions, the respondents may be considered de
facto officers and as such entitled to the
The death of the incumbent of an office, which
emoluments of the office/s for actual service
is by law to be filled by one person only,
rendered.
A de facto officer, not having good title, takes necessarily renders the office vacant. The public
official cease to hold office upon his death and
the salaries at his risk and must account to the all his rights, duties and obligations pertinent to
de jure officer (when there is one) for whatever the office are extinguished
salary he received during the period of his
Permanent disability covers both physical or
wrongful tenure, even if he occupied the office
mental disability.
in good faith.
o BUT when the de jure officer assumed
another position under protest, for which IV. Resignation
she received compensation: while her
assumption to the said position and her Resignation is the formal renunciation or
acceptance of the corresponding relinquishment of a public office. It implies an
emoluments do not constitute expression by the incumbent in some form,
abandonment of her rightful office, she express or implied, of the intention to
cannot recover full back wages for such . surrender, renounce and relinquish his right to
She is only entitled to back pay the office and its acceptance by competent and
differentials between the salary rates for lawful authority.
the lower position she assumed and the To constitute resignation of public office, there
position she is rightfully entitled to. [Gen. must be an intention to relinquish a part of the
Manager, Philippine Ports Authority v. term, accompanied by the act of
Monserate (2002)] relinquishment.
A written resignation, delivered to the board or
officer authorized to receive it and fill the
K. Termination of Official Relation vacancy thereby created, is prima facie, but not
conclusive evidence of the intention to
I. Expiration of the term or tenure of office
relinquish the office.
II. Reaching the age limit (retirement)
Acceptance by the proper authority is necessary
III. Death or permanent disability
IV. Resignation
for a resignation to be operative and effective.
V. Acceptance of an incompatible office
POLITICAL LAW REVIEWER
LAW ON PUBLIC OFFICERS
Conviction means conviction in a trial court. It o The CSC cannot co-manage or be a surrogate
contemplates a court finding guilt beyond administrator of government offices and
reasonable doubt followed by a judgment agencies.
upholding and implementing such finding. o It cannot change the nature of the 14
appointment extended by the appointing
XII. Recall officer. [ Luego v. CSC (1986)]
simultaneously
Commission. for approval by the Reassignment. An employee may be reassigned
The disapproval of the appointment of from one organizational unit to another in the
a person proposed to a higher position SAME agency.
invalidates the promotion of those in o It is a management prerogative of the CSC
the lower positions and automatically and any dept or agency embraced in the
restores them to their former positions. Civil Service.
However, the affected persons are o It does not constituteremoval without cause .
imprisonment for six (6) years, or a fine of prosecutors in the Office of the
P6,000; and Ombudsman and special prosecutor;
(d) Civil and criminal cases filed pursuant to and in b) Presidents, directors or trustees, or managers
connection with Executive Orders No. 1,2, 14, of government-owned or controlled 14
and 14-a issued in 1986 corporations, state universities or
educational institutions or foundations;
In the absence of any allegation that the offense (c) Members of Congress and officials thereof
charged was necessarily connected with the classified as Grade "27" and up under the
discharge of the duties or functions of a public Compensation and Position Classification
officer, the ordinary court, not the Act of 1989;
Sandiganbayan, has jurisdiction to hear and (d) Members of the judiciary without prejudice
decide the case. to the provisions of the Constitution;
What is controlling is not whether the phrase (e) Chairmen and members of Constitutional
"committed in relation to public office" appears Commissions, without prejudice to the
in the Information. What determines the provisions of the Constitution; and
jurisdiction of the Sandiganbayan is the specific (f) All other national and local officials
factual
indicateallegation in thebetween
close intimacy Information
the that would
discharge classified
under the as Grade
Compensation "27"and
and Position
higher
of the accused's official duties and the Classificafion Act of 1989.
commission of the offense charged in order to In case private individuals are charged as co-
qualify the crime is having been committed in principals, accomplices or accessories with the
relation to public office. The relation between public officers or employees, including those
the crime and the office must be direct and not employed in government-owned or -controlled
accidental, that is, the relation has to be such corporations, they shall be tried jointly with
that, in the legal sense, the offense cannot exist said public officers and employees in the proper
without the office. courts which shall exercise exclusive jurisdiction
over them.
Officials and private individuals subject to its
jurisdiction Exclusive Appellate Jurisdiction
The Sandiganbayan shall exercise exclusive appellate
Under Section 4(a, b) of PD No. 1606, as jurisdiction over final judgments, resolutions or
amended, the Sandiganbayan shall exercise orders of regional trial courts whether in the
exclusive srcinal jurisdiction over the cases exercise of their own srcinal jurisdiction or of their
mentioned in (a), (b), and (c) above where one appellate jurisdiction.
or more of the accused are officials
occupying the following positions in the IV. Ill-Gotten Wealth
government, whether in a permanent, acting or
N. Term Limits
POLITLAW
IC A L
Administrative Law
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POLITICAL LAW REVIEWER
ADMINISTRATIVE LAW
Potestas delegata non delegare potest . What has Legislative Rules Interpretative Rules
been delegated cannot be delegated. interpretation or give its
own set of rules.
Legislative Delegation Due process involves Due process means that
14
whether the parties the body observed the
Requisites for a valid delegation were afforded the proper procedure in
(1) The law must be complete in itself and must set opportunity to be passing rules.
forth the policy to be executed notified and heard
(2) The law must fix a standard, the limits of which before the issuance of
are sufficiently determinate or determinable, the ruling.
to which the delegate must conform
Restrictions on interpretative regulations: (a)
What is a sufficient standard: does not change the character of a ministerial
(1) Defines legislative policy, marks its limits, maps duty, (b) does not involve unlawful use of
out its boundaries and specifies the public legislative or judicial power.
agency to apply it; and
General Rule
EXCEPTIONS: A tribunal, board or officer exercising judicial
(a) Different date is fixed by law or functions acts without jurisdiction if no authority has
specified in the rule. been conferred to it by law to hear and decide cases 15
(b) In case of imminent danger to public (1) Jurisdiction to hear is explicitly or by necessary
health, safety and welfare. implication, conferred through the terms of
the enabling statute.
Penal Rules (2) Effect of administrative acts outside
Sec. 6, 1987 Administrative Code. Omission of jurisdiction—VOID.
Some Rules. – (2) Every rule establishing an offense
or defining an act which, pursuant to law is (1) Administrative Due Process
punishable as a crime or subject to a penalty shall in
all cases be published in full text. 1. Due Process
Findings of facts by administrative bodies which
(1) The law itself must declare the act as observed procedural safeguards (e.g. notice and
punishable and must also define or fix the hearing parties, and a full consideration of evidence)
penalty for the violation. are accorded the greatest respect by courts
(2) Can administrative bodies make penal rules? NO. Cardinal Primary Rights: Ang Tibay v CIR (1950) lays
Penal statutes are exclusive to the legislature down the cardinal primary rights:
and cannot be delegated. Administrative rules (1) Right to a hearing (Includes the right of a party
and regulations must not include, prohibit or to present his own case and submit evidence in
punish acts which the law does not even define support thereof)
as a criminal act. [People vs Maceren (1977)] (2) The tribunal must consider the evidence
presented
(3) If a rule is penal, it must be published before it (3) Decision must be supported by evidence.
takes effect. [People vs Que Po Lay (1954)] (4) Evidence must be substantial.
Rationale: In this era of clogged docket courts, the EXCEPTIONS to the Doctrine of Exhaustion of
need for specialized administrative boards with the Remedies:
special knowledge and capability to hear and (1) Purely legal questions. [Castro vs Secretary
determine promptly disputes on technical matters (2001)]
has become well nigh indispensable. Between the
power lodged in an administrative body and a court, (2) Steps to be taken are merely matters of form.
the unmistakable trend has been to refer it to the [Pascual vs Provincial Board (1959)]
former. [GMA vs ABS CBN (2005)]
POLITICAL LAW REVIEWER
ADMINISTRATIVE LAW
(3) Administrative remedy not exclusive but merely It does not affect jurisdiction of the court.
cumulative or concurrent to a judicial remedy.
[Pascual vs Provincial Board (1959)] The only effect of non-compliance is it that will
deprive complainant of a cause of action, which is a 15
(4) Validity and urgency of judicial action or ground for a motion to dismiss.
intervention. [Paat vs CA (1997)]
But if not invoked at the proper time, this ground is
(5) No other plain, speedy, adequate remedy in the deemed waived. [Republic vs Sandiganbayan (1996)]
ordinary course of the law. [Paat v CA (1997)t;
Information Technology Found’n v COMELEC III. Doctrine of Finality of
(2004)]
Administrative Action
(6) Resort to exhaustion will only be oppressive and
patently unreasonable. [Paat vs CA (1997); No resort to the courts will be allowed unless the
Cipriano vs Marcelino (1972)] administrative action has been completed and there
is nothing left to be done in the administrative
structure.
(7) Where theor voluntary
permissive administrative remedy
and not is only
a prerequisite
to the institution of judicial proceedings. The Doctrine of Finality of Administrative Action is a
[Corpuz vs Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
Exhaustion of Administrative Remedies. It is a
(8) Application of the doctrine will only cause great prerequisite for judicial review.
and irreparable damage which cannot be
prevented except by taking the appropriate
court action. [Paat vs CA (1997); Cipriano vs
Marcelino (1972)]
POLITLAW
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Election Law
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POLITICAL LAW REVIEWER
ELECTION LAW
Plebiscite: election at which any proposed Note: Any person who temporarily resides in another
amendment to, or revision of, the Constitution is city, municipality or country solely by reason of his:
submitted to the people for their ratification. (1) employment in private or public service
(2) educational activities
Referendum: submission of a law pass by the (3) work in the military or naval reservations
national or local legislative body to the registered within the Philippines
voters at an election called for the purpose for their (4) service in the AFP, PNP or
ratification or rejection. (5) confinement or detention in government
institutions in accordance with law shall
Initiative: the power of the people to propose not be deemed to have lost his srcinal
amendments to the Constitution or to propose and residence [Sec. 9, R.A. 8189, Voter’s
enact legislation through an election called for the Registration Act of 1996]
purpose. [Sec. 3a, R.A. 6735, The Initiative and
Referendum Act] It is not necessary that a person should have a house
in order to establish his residence or domicile in a
3 systems of initiative: municipality. It is enough that he should live there,
(1) Initiative on the Constitution: petition provided that his stay is accompanied by his
proposing amendments to the Constitution. intention to reside therein permanently.[Marcos v.
(2) Initiative on statutes: petition proposing COMELEC (1995)]
to enact a national legislation.
(3) Initiative on local legislation: petition Not otherwise disqualified by law: These are the 3
proposing to enact a regional, provincial, grounds for disqualification to register as a voter
city, municipal or barangay law, resolution under Sec. 11, R.A. 8189, Voter‘s Registration Act of
or ordinance. 1996:
POLITICAL LAW REVIEWER
ELECTION LAW
(1) Sentenced by final judgment to suffer Effect of failure to return: cause for the
imprisonment for not less than 1 year removal of his/her name from the National
(unless granted a plenary pardon or an Registry of Absentee Voters and his/her
amnesty) shall automatically reacquire permanent disqualification to vote in absentia. 15
right to vote upon the expiration of 5 years
after the service of sentence. (5) Previously declared insane or
(2) Adjudged by final judgment for having incompetent by competent authority in
committed any crime involving disloyalty the Philippines or abroad, as verified by
to the duly constituted government (e.g. the Philippine embassies, consulates or
rebellion, sedition, violation of the foreign eservice establishments
firearms law) or any crime against national concerned. [Sec. 5, R.A. 9189]
security (unless restored to full civil and
political rights in accordance with law) C. Registration of Voters
shall automatically reacquire the right to
vote upon the expiration of 5 years after I. Definition
the service of sentence II. System of Continuing Registration of Voters
III. Illiterate or disabled voters
(3) Insane or incompetent
by competent authoritypersons as declared IV. Election Registration Board
V. Change of residence or address
Registered voter: In order that a qualified elector VI. Challenges to right to register
may vote in any election, plebiscite or referendum, VII. Deactivation of Registration
he must be registered in the Permanent List of VIII. Reactivation of Registration
Voters for the city or municipality in which he IX. Certified List of Voters
resides. [Sec. 115, B.P. 881, Omnibus Election Code] X. Annulment of Book of Voters
XI. Overseas Absentee Voter
Note: No literacy, property or other substantive
requirement shall be imposed on the exercise of I. Definition
suffrage
Act of accomplishing and filing of a sworn
II. Overseas Absentee Voter application for registration by a qualified voter
before the election officer of the city or
1. Qualifications municipality wherein he resides and including the
same in the book of registered voters upon approval
(1) All Filipino citizens abroad by the Election Registration Board. [Sec. 3a, R.A.
(2) Not otherwise disqualified by law 8189]
(3) At least 18 years of age on the day of
elections [Sec. 3f, R.A. 9189] II. System of Continuing Registration
2. Disqualifications
of Voters
The personal filing of application of registration of
(1) have lost their Filipino citizenship in
voters shall be conducted daily in the office of the
accordance with Philippine laws
Election Officer during regular office hours.
(2) have expressly renounced their Philippine
citizenship and who have pledged
Period of registration:
allegiance to a foreign country
No registration shall be conducted within
(3) have committed and are convicted in a
(1) 120 days before a regular election
final judgment by a court or tribunal of
(2) 90 days before a special election [Sec. 8,
an offense punishable by imprisonment of
R.A. 8189]
not less than 1 year, including those who
have committed and been found guilty of
PALATINO VS COMELEC
Disloyalty as defined under Article 137 of
G.R. No. 189868, December 15. 2009
the RPC
(4) immigrant or a permanent resident who is
Facts: COMELEC Resolution 8585 set the deadline for
recognized as such in the host country
voter registration to 31 October 2009. Petitioners
unless he/she executes, upon
asked the SC to declare the resolution null and void,
registration, an affidavit prepared for the
and to require COMELEC to extend the voter
purpose by the Commission declaring
registration until 9 January 2010, the day before the
that:
120-day period prior to the 10 May 2010 regular
(a) he/she shall resume
permanent actual in
residence physical
the elections. COMELEC argued that it is authorize under
the law to fix other dates for pre-election acts which
Philippines not later than 3 years
include voter registration and in Akbayan-Youth vs.
from approval of his/her
COMELEC, the SC denied a similar prayer for
registration and
extension of deadline for voter registration for the
(b) he/she has not applied for
14 May 2001 elections.
citizenship in another country
POLITICAL LAW REVIEWER
ELECTION LAW
Issue: WON COMELEC Resolution 8585 should be Change of residence to another city or
declared void. municipality – the registered voter may apply with
the Election Officer of his new residence for the
Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself has transfer of his registration records. [Sec. 12, R.A. 15
determined that the period of 120 days before a 8189]
regular election and 90 days before a special
election is enough time for the COMELEC to make Change of address in the same municipality or city
ALL the necessary preparations with respect to the – voter shall immediately notify the Election Officer
coming elections. COMELEC is granted the power to in writing. [Sec. 13, R.A. 8189]
fix other periods and dates for pre-election activities
only if the same cannot be reasonably held within VI. Challenges to right to register
the period provided by law. There is no ground to
hold that the mandate of continuing voter
registration cannot be reasonably held within the :
Who may challenge application for registration
period provided by Sec. 8 of R.A. 8189. Any voter, candidate or representative of a
registered political party
The case is
COMELEC, different
wherein the from Akbayan-Youth
petitioners vs.
filed their Form:
(1) In writing
petition with the Court and sought the conduct of a
two-day registration all within the 120-day (2) State the grounds therefor
(3) Under oath and
prohibitive period. In this case, both the dates of
filing of the petition and the extension sought are (4) Attached to the application, together with
prior to the 120-day prohibitive period. the proof of notice of hearing to the
challenger and the applicant
III. Illiterate or disabled voters When: must be filed not later than the 2 nd Monday
of the month in which the same is scheduled to be
Illiterate person - may register with the assistance heard or processed by the ERB[Sec. 18, R.A. 8189]
of the Election Officer or any member of an
accredited citizen‘s arms VII. Deactivation of Registration
Physically disabled person – application for
registration may be prepared by: (1) The board shall remove the registration
(1) any relative within the 4th civil degree of records of the following persons from the
consanguinity or affinity or corresponding precinct book of voters and
(2) by the Election Officer or place the same in the inactive file:
(3) any member of an accredited citizen‘s arm (2) Sentenced by final judgment to suffer
[Sec. 14, R.A. 8189] imprisonment for not less than 1 year
(unless
amnesty)granted a plenary pardon or an
R.A. 9369 The Poll Automation Law now defines a
disabled voter as ―a person with impaired capacity
(3) shall automatically reacquire right to vote
to use the Automated Election System (AES)‖ (Sec.
upon the expiration of 5 years after the
2, Par. 11) service of sentence as certified by clerks of
courts
(4) Adjudged by final judgment for having
IV. Election Registration Board committed any crime involving disloyalty to
the duly constituted government (e.g.
Composition: rebellion, sedition, violation of the firearms
(1) Chairman: Election Officer law) or any crime against national security
If disqualified, COMELEC shall designate an (unless restored to full civil and political
acting Election Officer rights in accordance with law) shall
(2) Members: automatically reacquire the right to vote
(a) Public school official most senior in rank upon the expiration of 5 years after the
(b) Local civil registrar, or in his absence, service of sentence
the city or municipal treasurer. If (5) Insane or incompetent persons as declared
neither are available, any other by competent authority
appointive civil service official from the (6) Did not vote in the 2 successive preceding
same locality as designated by the regular elections (excluding SK elections)
COMELEC. (7) Registration has been ordered excluded by
the Court and
Disqualification: relation to each other or to any (8) Lost his Filipino citizenship. [Sec. 27, R.A.
incumbent city or municipal elective official within 8189]
the 4th civil degree of consanguinity or affinity.[Sec.
15, R.A. 8189] VIII. Reactivation of Registration
V. Change of residence or address Any voter whose registration has been deactivated
may file with the Election Officer a sworn
POLITICAL LAW REVIEWER
ELECTION LAW
application for reactivation of his registration in the Grounds for cancellation/amendment of entries
form of an affidavit stating that the grounds for the therein:
deactivation no longer exist. (1) When the overseas absentee voter files a
letter under oath addressed to the Comelec 15
When: Any time not later than 120 days before a that he/she wishes to be removed from the
regular election and 90 days before a special Registry of Overseas Absentee Voters, or
election. [Sec. 28, R.A. 8189] that his/her name be transferred to the
regular registry of voters.
IX. Certified List of Voters (2) When an overseas absentee voter‘s name
was ordered removed by the Comelec from
the Registry of Overseas Absentee Voters for
The ERB shall prepare and post a certified list of his/her failure to exercise his/her right to
voters 90 before a regular election and 60 days vote under R.A. 9189 for 2 consecutive
before a special election. [Sec. 30, R.A. 8189] national elections. [Sec. 9, R.A. 9189]
(4) Foreign party or organization There are 2 steps in the second round of seat
(5) Receives support from any foreign allocation:
government, foreign political party,
foundation, organization, whether directly or 1) The percentage of votes garnered by each party- 16
through any of its officers or members or list candidate is multiplied by the remaining
indirectly through third parties for partisan available seats. The whole integer of the product
election purposes corresponds to a party‘s share in the remaining
(6) Violates or fails to comply with laws, rules or available seats
regulations relating to elections
(7) Declares untruthful statements in its petition Formula for remaining available seats =
(8) Ceased to exist for at least 1 year No. of seats available to x Guaranteed seats
(9) Fails to participate in the last 2 preceding party-list representatives of the two-
elections or percenters
(10) Fails to obtain at least 2% of the votes cast
under the party-list system in the 2 preceding Formula for percentage of votes garnered by each
elections for the constituency in which it has party-list candidate =
registered [Sec. 6, R.A. 7941] No. of each
votesparty
garnered by Totalcast
no. of
÷ votes for
VII. Parameters in Allocation of Seats party-list
candidates
for Party-List Representatives
2) Assign one party-list seat to each of the parties
20% allocation – the combined number of all party- next in rank until all available seats are completely
list congressmen shall not exceed 20% of the total distributed.
membership of the House of Representatives,
including those elected under the party-list.
VIII. Effect of Change of Affiliation
Number available to x 20 = Number of seats
party-list available to Any elected party-list representative who changes
representatives party-list his political party or sectoral affiliation:
actually obtained, is representatives during his term of office shall forfeit his seat
entitled to a maximum within 6 months before an election shall not be
of 3 seats; one eligible for nomination as party-list
qualifying and of seats representative under his new party or
available to organization [Sec. 15, R.A. 7941]
legislative districts
.80 IX. Nomination of Party-List
2% threshold – only those parties garnering a Representative
minimum of 2% of the total votes cast for the party-
list system shall be entitled to one guaranteed seat Each registered party, organization or coalition shall
each. submit to the COMELEC not later 45 days before the
election a list of at least 5 names from which party-
Proportional representation – the additional seats list representatives shall be chosen in case it obtains
shall be computed in ―proportion to their total the required number of votes.
number of votes‖.
A person may be nominated:
3-seat limit – each party, regardless of the number (1) in 1 list only
of votes it actually obtained, is entitled to a (2) if he/she has given their consent in writing
maximum of 3 seats; one qualifying and 2 additional (3) is not a candidate for any elective office or
seats. (4) has not lost his bid for an elective office in
the immediately preceding election
BANAT VS. COMELEC
GR NO. 179271, July 8. 2009 No change of names or alteration of the order of
nominees shall be allowed after the same shall have
Held: In computing the allocation of additional been submitted to the COMELEC except where the
seats, the continued operation of the 2% threshold nominee:
for the distribution of the additional seats as found (1) dies
in the second clause of Sec. 11(b) of R.A. 7941 which (2) withdraws in writing his nomination or
provides that ―those garnering more than 2% of the (3) becomes incapacitated in which case the
votes shall be entitled to additional seats in name of the substitute nominee shall be
proportion to their total number of votes‖ is placed last in the list
unconstitutional. The 2% threshold frustrates the
attainment of the permissive ceiling that 20% of the Incumbent sectoral representatives in the HR who
members of the HR shall consist of party-list are nominated in the party-list system shall not be
representatives. considered resigned. [Sec. 8, R.A. 7941]
POLITICAL LAW REVIEWER
ELECTION LAW
requirement of a personal and sworn Any person holding an elective office or position
renunciation of foreign citizenship. Section shall not be considered resigned upon the filing of
5(2) of R.A. No. 9225 compels natural-born his certificate of candidacy for the same or any
Filipinos, who have been naturalized as other elective office or position. [Sec. 4, Comelec 16
citizens of a foreign country, but who Resolution No. 8678 Guidelines on the Filing of
reacquired or retained their Philippine Certificates of Candidacy and Nomination of Official
citizenship (1) to take the oath of Candidates of Registered Political Parties in
allegiance under Section 3 of Republic Act Connection with the May 10, 2010 National and Local
No. 9225, and (2) for those seeking elective Elections]
public offices in the Philippines, to
additionally execute a personal and sworn NOTE: Sec. 67 B.P. 811 which deemed elective
renunciation of any and all foreign officials automatically resigned from office upon
citizenship before an authorized public filing of their certificate of candidacy was repealed
officer prior or simultaneous to the filing of by Sec. 14 R.A 9006, Fair Election Act.
their certificates of candidacy, to qualify as
candidates in Philippine elections. [Jacot QUINTO VS COMELEC (MR Ruling)
may not go
on their into [Abcede
face. matters not appearing
v. Imperial, candidate‘s qualifications for public office.
(1958)] (5) Effect of Disqualification
When: within 5 days from the last day for the filing Effect (asked in 1990, 1992, 1996, 2003)
of certificates of candidacy Any candidate who has been declared by final
judgment to be disqualified shall not be voted for,
How: personally or through duly authorized and the votes cast for him shall not be counted. The
representative with the COMELEC fact that the candidate who obtained the highest
number of votes is later declared to be disqualified
Grounds: certificate of candidacy has been filed - or not eligible for the office to which he was
(1) To put the election process in mockery or elected, does not necessarily entitle the candidate
disrepute or who obtained the second highest number of votes to
(2) To cause confusion among the voters by the be declared the winner of the elective office.
similarity of the names of the registered
candidates or Any candidate who has been declared by final
(3) Clearly demonstrate that the candidate has judgment to be disqualified–
no bona fide intention to run for the office (1) shall not be voted for and
for which the certificate of candidacy has (2) the votes cast for him shall not be counted
been filed and thus prevent a faithful (3) If a candidate is not declared by final
determination of the true will of the judgment before an election to be
electorate [Sec. 69, B.P. 881] disqualified and he is voted for and receives
the winning number of votes in such
Proceeding: summary in nature election
(4) Petition to Deny or Cancel The Court or COMELEC shall continue with the trial
Certificates of Candidacy and hearing of the action, inquiry, or protest and
Who may file: Any person Upon motion of the complainant or any intervenor,
may during the pendency thereof, order the
When: Any time not later than 25 days from the suspension of the proclamation of such candidate
time of the filing of the certificate of candidacy whenever the evidence of his guilt is strong. [Sec. 6,
R.A. 6646, The Electoral Reforms Law of 1987]
Exclusive ground: any material representation
contained in the certificate of candidacy is false. :
Where a similar complaint/petition is filed
(1) before the election and proclamation of the
Decision: Shall be decided, after due notice and respondent and the case is not resolved
hearing, not later than 15 days before the election. before the election - the trial and hearing
[Sec. 78, B.P. 881] of the case shall continue and referred to
the Law Department for preliminary
investigation
POLITICAL LAW REVIEWER
ELECTION LAW
(2) after the election and before the Issue: WON Penera‘s disqualification for engaging in
proclamation of the respondent - the trial premature campaigning should be reconsidered.
and hearing of the case shall be suspended
and referred to the Law Department for Held: At the time the supposed premature 16
preliminary investigation campaigning took place, Penera was not officially a
―candidate‖ albeit she already filed her certificate
NOTE: In either case, if the evidence of guilt is of candidacy. Under Section 15 of R.A. 9369, a
strong, the COMELEC may order the suspension person who files his certificate of candidacy is
of the proclamation of respondent, and if considered a candidate only at the start of the
proclaimed, to suspend the effects of campaign period, and unlawful acts applicable to
proclamation. [Sec. 4, Resolution No. 8678] such candidate take effect only at the start of such
campaign period. Thus, a candidate is liable for an
(6) Withdrawal of Candidates election offense only for acts done during the
campaign period, not before. Before the start of the
A person who has filed a certificate of candidacy campaign period, such election offenses cannot be
may, prior to the election, withdraw the same by committed and any partisan political activity is
submitting to the
declaration under office concerned a written
oath. lawful.
1. Election Campaign or Partisan Political
Effect of filing or withdrawal of a certificate of Activity
candidacy: shall not affect whatever civil, criminal
or administrative liabilities which a candidate may An act designed to promote the election or defeat of
have incurred. a particular candidate or candidates to a public
office. [Sec. 79, B.P. 881]
G. Campaign
Exclusions:
I. Premature Campaigning (1) Acts performed for the purpose of
II. Prohibited Contributions enhancing the chances of aspirants for
nomination for candidacy to a public office
I. Premature Campaigning by a political party, aggroupment, or
coalition of parties.
GENERAL RULE: Any election campaign or partisan (2) Public expressions of opinions or discussions
political activity for or against any candidate outside of probable issues in a forthcoming election
of the campaign period is prohibited and shall be or on attributes or criticisms of probable
considered as an election offense. [Sec. 80, B.P. candidates proposed to be nominated in a
881] forthcoming political party convention.
[Sec. 79, B.P. 881]
EXCEPTION: Political parties may hold political Persons Prohibited from Campaigning:
conventions to nominate their official candidates
within 30 days before the start of the period for (1) Members of the board of election
filing a certificate of candidacy. [Sec. 15, R.A. 9369, inspections [Sec. 173, B.P. 881]
Poll Automation Law] (2) Civil service officers or employees [Art. IX-
B, Sec. 2 (4), Const.]
Prohibited campaigning days: It is unlawful for any (3) Members of the military [Art. XVI, Sec. 5
person to engage in an election campaign or partisan (3), Const.]
political activity on: (4) Foreigners, whether juridical or natural
(1) Maundy Thursday persons.
(2) Good Friday
(3) eve of Election Day and 2. Campaign Period
(4) Election Day [Sec. 3, COMELEC Resolution
8758] For President, Vice-President and Senators- 90
days before the day of the election.
PENERA VS COMELEC
G.R. No. 181613, November 25. 2009 For Members of the HR and elective provincial,
city and municipal officials - 45 days before the day
Facts: On 11 September 2009, the SC affirmed the of the election. [Sec. 5, R.A. 7166]
COMELEC‘s decision to disqualify Penera as
mayoralty candidate in Sta. Monica, Surigao del 3. Lawful Election Propaganda
Norte, for period,
campaign engagingin in electionofcampaign
violation outside
Sec. 80 of the
B.P. 881. (1) Pamphlets, leaflets, cards, decals, stickers, or
Penera moved for reconsideration, arguing that she other written or printed materials not larger
was not yet a candidate at the time of the supposed than 8.5x14 inches
premature campaigning, since under Sec. 15 of R.A. (2) Handwritten or printed letters urging voters to
9369 one is not officially a candidate until the start vote for or against any political party or
of the campaign period. candidate
(3) Cloth, paper or cardboard posters, framed or
POLITICAL LAW REVIEWER
ELECTION LAW
by
thethe radio"airtime
words or TV station, identified
for this by
broadcast Bona fide
running forcandidates and registered
locally elective political
office are entitledparties
to not
was provided free of charge by" more than 60 mins of TV advertisement and 90 mins
followed by the true and correct name of radio advertisement whether by purchase or by
and address of the broadcast entity. donation.
[Sec. 4.2, R.A. 9006]
Print, broadcast or outdoor Broadcast stations or entities are required to submit
advertisements donated to the copies of their broadcast logs and certificates of
candidate or political party shall not be performance to the COMELEC for the review and
printed, published, broadcast or verification of the frequency, date, time and
exhibited without the written duration of advertisement broadcast for any
acceptance by said candidate or candidate or political party.
political party. Written acceptance
must be attached to the advertising All mass media entities are required to furnish the
contract and submitted to the COMELEC with a copy of all contracts for advertising,
COMELEC within 5 days after its promoting or opposing any political party or the
signing. [Sec. 4.3, R.A. 9006, cf. Sec. candidacy of any person for public office within 5
6.3, R.A. 9006] days after its signing.
(6) All other forms of election propaganda not
prohibited by the Omnibus Election Code or the No franchise or permit to operate a radio or TV
Fair Election Act of 2001. [Sec. 3, R.A. 9006, station shall be granted or issued, suspended or
The Fair Election Act] cancelled during the election period.
For any person during the campaign period to: No movie, cinematograph or documentary shall be
(1) Remove, destroy, obliterate or in any manner publicly exhibited in a theater, television station or
deface or tamper with lawful election any public forum during the campaign period which:
propaganda (1) portrays the life or biography of a candidate
(2) Prevent the distribution of lawful election (2) is portrayed by an actor or media personality
propaganda [Sec. 83, B.P.881] who is himself a candidate.[Sec. 6, R.A. 9006]
published 15 days before an election and surveys which can be assessed based on the rates
affecting local candidates shall not be published 7 prevailing in the area. [Sec. 94, B.P. 881]
days before an election.
2. Prohibited Contributions 16
Exit polls may only be taken subject to the following
requirements: (1) From Public or private financial institutions.
(1) Pollsters shall not conduct their surveys within Unless:
50m from the polling place, whether said (a) the financial institutions are legally in
survey is taken in a home, dwelling place and the business of lending money
other places (b) the loan is made in accordance with
(2) Pollsters shall wear distinctive clothing laws and regulations AND
(3) Pollsters shall inform the voters that they may (c) the loan is made in the ordinary course
refuse to answer and of business
(4) The result of the exit polls may be announced (2) Natural and juridical persons operating a public
after the closing of the polls on election day utility or in possession of or exploiting any
and must clearly identify the total number of natural resources of the nation
respondents, and the placesshall
taken. Said announcement where they
state were
that the (3) Natural and juridical
or sub-contracts to persons whogovernment
supply the hold contracts
or
same is unofficial and does not represent a any of its divisions, subdivisions or
trend. [Sec. 5, R.A. 9006] instrumentalities, with goods or services or to
perform construction or other works
7. Application for Rallies, Meetings and Other (4) Grantees of franchises, incentives, exemptions,
Political Activity allocations or similar privileges or concessions
by the government or any of its divisions,
(a) All applications for permits must immediately be subdivisions or instrumentalities, including
posted in a conspicuous place in the city or GOCCs
municipal building, and the receipt thereof (5) Grantees, within 1 year prior to the date of the
acknowledged in writing. election, of loans or other accommodations in
(b) Applications must be acted upon in writing by excess of P100,000 by the government or any
local authorities concerned within 3 days after of its divisions, subdivisions or
their filing. If not acted upon within said instrumentalities including GOCCs
period, deemed approved. (6) Educational institutions which have received
(c) The only justifiable ground for denial of the grants of public funds amounting to no less
application is when a prior written application than P100,000
by any candidate or political party for the same (7) Officials or employees in the Civil Service, or
purpose has been approved. members of the Armed Forces of the
(d) Denial of any application for said permit is Philippines
(8) Foreigners and foreign corporations, including
appealable
or to the to the provincial
COMELEC whoseelection supervisor
decision shall be foreign governments. [Sec. 95 and 96, B.P.
made within 48 hours and which shall be final 881]
and executory. [Sec. 87, B.P. 881]
3. Prohibited Fund-raising Activities
II. Prohibited Contributions
The following are prohibited if held for raising
campaign funds or for the support of any candidate
1. Definitions from the start of the election period up to and
including election day:
Contribution: gift, donation, subscription, loan, (1) Dances
advance or deposit of money or anything of value, or (2) Lotteries
a contract, promise or agreement to contribute (3) Cockfights
WON legally enforceable (4) Games
made for influencing the results of the elections (5) Boxing bouts
excludes services rendered without (6) Bingo
compensation by individuals volunteering their (7) Beauty contests
time in behalf of a candidate or political party (8) Entertainments, or cinematographic,
includes the use of facilities voluntarily donated theatrical or other performances
by other persons, the money value of which can
be assessed based on the rates prevailing in the For any person or organization, civic or religious,
area. [Sec. 94, B.P. 881] directly or indirectly, to solicit and/or accept from
any candidate or from his campaign manager, agent
Expenditures: payment of money or anything of or representative, or any person acting in their
value or a contract, promise or agreement to make behalf, any gift, food, transportation, contribution
an expenditure or donation in cash or in kind from the start of the
for the purpose of influencing the results of the election period up to and including election day
election EXCEPT: normal and customary religious
includes the use of facilities personally owned stipends, tithes, or collections on Sundays
by the candidate, the money value of the use of and/or other designated collection days [Sec.
POLITICAL LAW REVIEWER
ELECTION LAW
III. Canvass by the BOC Composition: The chairman and members of the
COMELEC sitting en banc
Canvass - the process by which the results in the
election returns are tallied and totalled. Function: It shall canvass the results by
consolidating the certificates of canvass
Certificates of canvass- official tabulations of votes electronically transmitted. Thereafter, the national
accomplished by district, municipal, city and board shall proclaim the winning candidates for
provincial canvassers based on the election returns, senators and party-list representatives. [Sec. 23,
which are the results of the ballot count at the R.A. 9369]
precinct level.
The BOC shall canvass the votes by V. Proclamation
consolidating
transmitted results the or electronically
the results Proclamation shall be after the canvass of election
contained in the data storage devices returns, in the absence of a perfected appeal to the
used in the printing of the election COMELEC, proclaim the candidates who obtained the
returns. [Sec. 20, R.A. 9369] highest number of votes cast in the province, city,
municipality or barangay, on the basis of the
IV. Certificate of Canvass and certificates of canvass.
Statement of Votes Failure to comply with this duty
constitutes an election offense.
[Sec. 231, B.P. 881]
(1) Within one hour after the canvassing, the
Chairman of the district or provincial BOC or When proclamation void:
the city BOC of those cities which comprise (1) When it is based on incomplete returns
one or more legislative districts shall [Castromayor v. Comelec (1995)] or
electronically transmit the certificates of (2) When there is yet no complete canvass.[Jamil
canvass to: v. Comelec (1997)]
(a) COMELEC sitting as the National BOC for (3) A void proclamation is no proclamation at all,
senators and party-list representatives and the proclaimed candidate‘s assump tion
and into office cannot deprive the COMELEC of its
(b) Congress as the National BOC for the power to annul the proclamation.
president and vice president, directed
to the President of the Senate.[Sec. 20,
R.A. 9369] Partial
any proclamation: Notwithstanding
pre-proclamation pendency
controversy, COMELEC of
may
summarily order proclamation of other winning
(2) The certificates of canvass transmitted candidates whose election will not be affected by
electronically and digitally signed shall be the outcome of the controversy.[Sec. 21, R.A. 7166]
considered as official election results and shall
be used as the basis for the proclamation of a Election resulting in a tie: BOC, by resolution, upon
winning candidate. [Sec. 20, R.A. 9369] 5 days notice to all tied candidates, shall hold a
POLITICAL LAW REVIEWER
ELECTION LAW
special public meeting at which the board shall 1. What Constitutes an Election
proceed to the drawing of lots of tied candidates
and shall proclaim as elected the candidates who Plurality of votes sufficient for:
may be favored by luck. [Sec. 240, B.P. 881] (1) a choice conditioned on the plurality of valid 17
votes or
There is a tie when: (2) a valid constituency regardless of the actual
(1) 2 or more candidates receive an equal and number of votes cast.
highest number of votes; or
(2) 2 or more candidates are to be elected for the 2. Failure of Elections
same position and 2 or more candidates
received the same number of votes for the Grounds: in any of such cases the failure or
LAST PLACE in the number to be elected. suspension of election must affect the result of the
election
Proclamation of a lone candidate: Upon the (1) Election in any polling place has not been
expiration of the deadline for the filing of held on the date fixed due to force
certificates of candidacy in a special election called majeure, violence, terrorism, fraud, or
to
for fill a vacancy
and in
VP,anwhen
elective
thereposition
is only 1other than
President qualified (2) other analogous
Election in anycauses.
polling place had been
candidate, he shall be proclaimed elected without suspended before the hour fixed for the
holding the special election upon certification by the closing of the voting due to force majeure,
COMELEC that he is the only candidate for the office violence, terrorism, fraud, or other
and is therefore deemed elected. [Sec. 2, R.A. analogous causes.
8295, Law on Proclamation of Solo Candidates] (3) After the voting and during the preparation
and transmission of the election returns or
I. Remedies and Jurisdiction in in the custody or canvass thereof such
election results in a failureto elect due to
Election Law force majeure, violence, terrorism, fraud or
I. Petition Not to Give Due Course to Certificate other analogous causes. [Sec. 6, B.P. 881]
of Candidacy
II. Petition to Declare Failure of Elections Causes for the declaration of failure of election may
III. Pre-Proclamation Controversy occur before or after the casting of votes or on the
IV. Election Protest day of the election. [Sec. 4, R.A. 7166]
V. Quo Warranto
The postponement, declaration of failure of election
I. Petition Not to Give Due Course to and the calling of special elections shall be decided
by the COMELEC sitting en banc by a majority vote
Certificate of Candidacy of its members. [Sec. 4, R.A. 7166]
Cancellation of Certificate of Candidacy The COMELEC shall call for the holding or
continuation of the election not held, suspended or
1. Grounds which resulted in a failure to elect:
(1) False material representation in the certificate (1) upon a verified petition by any interested
of candidacy; party and
(2) If the certificate filed is a substitute Certificate (2) after due notice and hearing [Sec. 6, B.P.
of Candidacy, when it is not a proper case of 881]
substitution under Sec. 77 of BP 881.
When: on a date reasonably close to the date of the
2. Nature of Proceedings - Summary election not held, suspended or which resulted in a
failure to elect BUT not later than 30 days after the
3. Procedure cessation of the cause of such postponement or
suspension of the election or failure to elect. [Sec.
Who may file: any citizen of voting age, or a duly 6, B.P. 881]
registered political party, organization, or coalition
of political parties 3. Declaration of Failure of Election
When filed: Within 5 days from the last day for the It is neither an election protest nor a pre-
filing of certificates of candidacy proclamation controversy. [Borja v. Comelec,
(1998)]
Where filed: With the Law Department of the
COMELEC Jurisdiction: COMELEC, sitting en banc, may declare
a failure of election by a majority vote of its
II. Petition to Declare Failure of members.
Elections Requisites: The following conditions must concur:
(1) No voting has taken place in the precincts
concerned on the date fixed by law, or even if
POLITICAL LAW REVIEWER
ELECTION LAW
of
maythe file
notice
anof opposition
hearing, anywith
interested party
the Law 5. Issues That Cannot Be Raised
Department of the COMELEC.
(4) The COMELEC proceeds to hear the petition. (1) Appreciation of ballots, as this is performed by
The COMELEC may delegate the hearing of the the BEI at the precinct level and is not part of
case and the reception of evidence to any of the proceedings of the BOC [Sanchez v.
its officials who are members of the Philippine Comelec, (1987)]
Bar. (2) Technical examination of the signatures and
(5) The COMELEC then decides whether to grant or thumb marks of voters [Matalam v. Comelec
deny the petition. This lies within the (1997)]
exclusive prerogative of the COMELEC. (3) Prayer for re-opening of ballot boxes [Alfonso v.
Comelec, (1997)]
III. Pre-Proclamation Controversy (4) Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
(asked in 1987, 1988, 1996)
[Ututalum v. Comelec (1990)]
(5) Challenges directed against the Board of
Any question or matter pertaining to or affecting:
Election Inspectors [Ututalum v. Comele
(1) the proceedings of the board of canvassers, or
(supra)]
(2) any matter raised under Sec. 233-236 of BP 881
(6) Fraud, terrorism and other illegal electoral
(see below) in relation to the preparation,
practices. These are properly within the office
transmission, receipt, custody and
of election contests over which electoral
appreciation of the election returns. [Sec.
tribunals have sole, exclusive jurisdiction.
241, BP 881] [Loong v. Comelec, (1992)]
1. Jurisdiction
6. Procedure
COMELEC has exclusive jurisdiction over pre-
a. Questions involving the composition or
proclamation cases. It may order, motu proprio or
proceedings of the board of canvassers, or
upon written petition, the partial or total suspension
correction of manifest errors
of the proclamation of any candidate-elect or annul
partially or totally any proclamation, if one has been
Where: Either in the Board of Canvassers or directly
made. [Sec. 242, BP 881]
with the COMELEC. [Sec. 17, R.A. 7166]
2. When Not Allowed When:
(1) a petition involves the illegal composition or
For the positions of President, VP, Senator, and
proceedings of the board, must be filed
Member of the House of Representatives[Sec. 15, immediately when the board begins to act as
R.A. 7166] such [Laodeno v. Comelec], or at the time of
the appointment of the member whose
3. Nature of Proceedings capacity to sit as such is objected to if it
comes after the canvassing of the board, or
Heard summarily by the COMELEC after due notice immediately at the point where the
and hearing. This is because canvass and proceedings are or begin to be illegal.
proclamation should be delayed as little as possible. Otherwise, by participating in the proceedings,
the petitioner is deemed to have acquiesced in
4. Issues That May Be Raised the composition of the BOC.
(2) If the petition is for correction, it must be filed
This enumeration is restrictive and exclusive: not later than 5 days following the date of
(1) Illegal composition or proceedings of the board proclamation, and must implead all candidates
of election canvassers; who may be adversely affected thereby. [Sec.
(2) Canvassed election returns are either: 5(b), Rule 27, COMELEC Rules of Procedure]
POLITICAL LAW REVIEWER
ELECTION LAW
9. Petition to Annul or Suspend Proclamation When: within ten days after the proclamation of the
results of the election.
The filing of the petition suspends the running of the
period to file an election protest. [Alangdeo v. Who has jurisdiction:
Comelec, (1989)] (1) elections, over alland
Comelec – returns contests relating to
qualifications of the
all
No law provides for a reglementary period within elective regional, provincial and city
which to file a petition for the annulment of an officials [Sec. 250. BP 881]
election if there is as yet no proclamation. [Loong (2) RTC - over contests involving municipal
v. Comelec (supra)] officials [Sec. 251. BP 881]
POLITICAL LAW REVIEWER
ELECTION LAW
(3) MeTC or MTC – over election contests complainant may file the complaint with the fiscal
involving barangay officials [Sec. 252. BP or the Department of Justice, if warranted. [Sec.
881] 265, B.P. 881]
17
Effect of filing petition to annual or to suspend the I. Jurisdiction over Election Offenses
proclamation. - The filing with the Commission of a
petition to annual or to suspend the proclamation of
any candidate shall suspend the running of the RTCs have exclusive srcinal jurisdiction to try and
period within which to file an election protest orquo decide any criminal actions or proceedings for
warranto proceedings. [Sec. 248. BP 881] violation of election laws. [Sec. 268, B.P. 881]
(4) Acting as bodyguards or security in the case of service within the election period without the
policemen and provincial guards during the prior approval of the COMELEC [Sec. 261h, B.P.
campaign period [Sec. 261t, B.P. 881] 881]
17
(5) Removal, destruction, obliteration, or (3) Intervening of public officers and employees in
tampering of lawful election propaganda , or the civil service in any partisan political
preventing the distribution thereof [Sec. 83, activity [Sec. 261i, B.P. 881]
B.P. 881 vis-à-vis Sec. 262, B.P. 881]
(4) Use of public funds for an election campaign
4. Voting [Sec. 261o, B.P. 881]
(1) Vote-buying and vote-selling [Sec. 261a, B.P. (5) Illegal release of prisoners before and after
881] election [Sec. 261n, B.P. 881]
(2) Conspiracy to bribe voters [Sec. 261b, B.P. (6) Release, disbursement or expenditure of public
881]: A disputable presumption of a conspiracy funds during the prohibited period [Sec. 261v,
(3) Coercion of subordinates to votefor or against (1) Coercion of election officials and employees
any candidate [Sec. 261d, B.P. 881]
(2) Threats, intimidation, terrorism, use of
(4) Dismissal of employees, laborers, or tenants for fraudulent devices or other forms of coercion
refusing or failing to vote for any candidate [Sec. 261e, B.P. 881]
[Sec. 261d(2), B.P. 881]
(3) Use of undue influence [Sec. 261j, B.P. 881]
(5) Being a flying voter [Sec. 261z (2), B.P. 881] (4) Carrying deadly weapons within the prohibited
area [Sec. 261p, B.P. 881]
5. Counting of Votes
Any chairperson of the board of canvassers who fails (3) Sale, etc. of intoxicating liquor on the day fixed
to give notice of meeting to other members of the by law for the registration of voters in the
board, candidate or political party as required [Sec. polling place, or the day before the election or
27e, R.A. 6646] on election day [Sec. 261dd (1), B.P. 881]
7. Acts of Government or Public Officers (4) Opening booths or stalls within 30 meters of any
polling place [Sec, 261dd (2), B.P. 881]
(1) Appointment of new employees, creation of new
(5) Holding fairs, cockfights, etc. on election day
positions, promotion, or giving salary increases
within the election period[Sec. 261g, B.P. 881] [Sec. 261dd (3), B.P. 881]
election period [Sec. 261dd (4), B.P. 881]. In such as counting machine, memory
addition to the prescribed penalty, such pack/diskette, memory pack receiver
refusal constitutes a ground for cancellation or and computer set
revocation of certificate of public convenience 17
or franchise. (2) Interfering with, impeding, absconding for
purpose of gain, preventing the installation or
(7) Discrimination in the sale of air time [Sec. 261dd use of computer counting devices and the
(5), B.P. 881] In addition to the prescribed processing, storage, generation and
penalty, such refusal constitutes a ground for transmission of election results, data or
cancellation or revocation of the franchise. information
NOTE: Good faith is not a defense, as election (3) Gaining or causing access to using, altering,
offenses are generallymala prohibita. destroying or disclosing any computer data,
program, system software, network, or any
10. Penalties computer-related devices, facilities, hardware
or equipment, whether classified or
For individuals
(1) Imprisonment of not less than 1 year but not declassified
more than 6 years, without probation [Sec. (4) Refusal of the citizens' arm to present for
264, B.P. 881] perusal its copy of election return to the board
(2) Disqualification to hold public office of canvassers
(3) Deprivation of the right of suffrage
(5) Presentation by the citizens' arm of tampered or
For a Foreigner spurious election returns
(1) Imprisonment of not less than 1 year but not
more than 6 years (without probation); (6) Refusal or failure to provide the dominant
(2) Deportation after service of sentence majority and dominant minority parties or the
citizens'' arm their copy of election returns and
For a Political Party
Payment of a fine not less than P10,000 after a (7) The failure to post the voters' list within the
criminal conviction specified time, duration and in the designated
location shall constitute an election offense on
Persons Required by Law to Keep Prisoners in the part the election officer concerned."
their Custody:
For prisoners illegally released from any penitentiary PENALTY
or jail during the prohibited period, where such (1) imprisonment of 8 years and one day to 12 years
prisoners commit any act of intimidation, terrorism without possibility of parole
or interference
maximum periodin the election,
. [Sec. 264, B.P. prison
881] mayor in its (2) perpetual disqualification to hold public and any
non-elective public office and
IV. Arrests in Connection with (3) deprivation of the right of suffrage.
Election Campaign
Exception: Those convicted of the crime of electoral
Only upon a warrant of arrest issued by a competent sabotage, which includes acts or offenses committed
judge after all the requirements of the Constitution in any of the following instances:
have been strictly complied with
National elective office:
V. Prescription When the tampering, increase and/or decrease
of votes perpetrated or the refusal to credit the
correct votes or to deduct tampered votes
5 years from the date of their commission. If the is/are committed in the election of a national
discovery of the offense be made in an election elective office which is voted upon nationwide
contest proceeding, the period of prescription shall and
commence on the date on which the judgment in
the tampering, increase and/ or decrease votes
such proceedings becomes final and executory.
refusal to credit the correct votes or to deduct
[Sec. 267, B.P. 881]
tampered votes, shall adversely affect the
results of the election to the said national office
VI. Prohibited Acts Under R.A. 9369 to the extent that losing candidate/s is /are
made to appear the winner/s;
(1) Utilizing without authorization, tampering with,
damaging, destroying or stealing: Regardless of the elective office involved, when
(a) Official ballots, election returns, and the tampering, increase and/or decrease of
certificates of canvass of votes used in votes committed or the refusal to credit the
the system; and correct votes or to deduct tampered votes
(b) Electronic devices or their components, perpetrated
peripherals or supplies used in the AES
POLITICAL LAW REVIEWER
ELECTION LAW
determined
the membersto of
be the
in conspiracy or in involved,
BEIs or BOCs connivance withbe
shall
meted the same penalty of life imprisonment.
2012 UP L AW
BAR REVIEWER
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POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
The jurisdiction of the metropolitan authority that within its territorial jurisdiction,
will thereby be created shall be limited to basic subject to such limitations and requirements
services requiring coordination. [Sec. 11, LGC] prescribed in this Code. [Sec. 6, LGC]
180
Highly Urbanized Cities and Independent Component The authority to create municipal corporations is
Cities essentially legislative in nature. [Pelaez v. Auditor
Cities that are highly urbanized, as determined by General (1965)]
law, and component cities whose charters prohibit
their voters from voting for provincial elective The enactment of a LGC is not a condition sine qua
officials, shall be independent of the province . non for the creation of a municipality , and before
the enactment of such code, the power remains
The voters of component cities within a province, plenary except that the creation should be approved
whose charters contain no such prohibition, shall not by the people concerned in a plebiscite called for
be deprived of their right to vote for elective the purpose. [Torralba v. Sibagat (1987)]
provincial officials. [Sec.12, LGC]
The SC held that sec. 19 of RA 9054 insofar as it
Autonomous Regions grants ARMM
provinces andRegional
cities isAssembly the power toallows
void. (Constitution create
There shall be created autonomous regions in Muslim delegation of creating municipalities and barangays
Mindanao and in the Cordilleras consisting of only.) [Bai Sema v. COMELEC (2008)]
provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and Creations under Sec. 68, Admin Code
cultural heritage, economic and social structures, The alleged power of the President to create
and other relevant characteristics within the municipalities under Sec. 68 of the Admin Code
framework of this Constitution and the national amounts to an undue delegation of legislative power.
sovereignty as well as territorial integrity of the The authority to create municipal corporations is
Republic of the Philippines. [Sec. 15, LGC] essentially legislative in nature. The power of
control of the President over executive departments,
The President shall exercisegeneral supervision over bureaus or offices implies no more than the
autonomous regions to ensure that laws are authority to assume directly the functions thereof or
faithfully executed. [Sec. 16, LGC] to interfere in the exercise of discretion by its
officials. It does not include the authority either to
All powers, functions, and responsibilities not abolish or create such. [Pelaez v. Auditor General
granted by this Constitution or by law to the (1965)]
autonomous regions shall be vested in the National
Government. [Sec. 17, LGC] Effect if created under Sec 68, Admin Code: The
municipality is non-existent. It cannot be a party to
The Congress shall enact an organic act for each any civil action [Mun. of Kapalong v. Moya (1988)]
autonomous region with the assistance and
De Facto Corporations
participation of the regional consultative commission
De facto municipal corporation: There is defect in
composed of representatives appointed by the
creation; legal existence has been recognized and
President from a list of nominees from multi-sectoral
acquiesced publicly and officially.
bodies.
Requisites: (LACA)
The organic act shall define the basic structure of
(1) valid law authorizing incorporation;
government for the region consisting of the
(2) attempt in good faith to organize it;
executive department and legislative assembly , both
(3) colorable compliancewith law; and
of which shall be elective and representative of the
(4) assumption of corporate powers.
constituent political units.
There can be no color of authority in an
The organic acts shall likewise provide for special
unconstitutional statute. An unconstitutional act
courts with personal, family, and property law
confers no rights, imposes no duties, affords no
jurisdiction consistent with the provisions of this
protection, and creates no office. However, even if
Constitution and national laws. [Sec.18, LGC]
the EO was invalid, it does not mean that the acts
done by the municipality of Balabagan in the
c. Authority to Create Local Government exercise of its corporate powers are a nullity. This is
Units because the existence of the EO is ‗an operative fact
A local government unit may be which cannot justly be ignored.‘ [Malabanan v
created, divided, merged, abolished, or its Benito (1969)]
boundaries substantially altered either
- by law enacted by Congress in the case of a The Municipality of Sinacban2 possesses legal
province, city, municipality, or any other personality. Where a municipality created as such by
political subdivision, OR
- by ordinance passed by the sangguniang 2
Sinacban was created by EO 258 of then President Elpidio
panlalawigan or sangguniang panlungsod Quirino, pursuant to Sec. 68 of the Revised Administrative
concerned in the case of a barangay located Code of 1917.
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Since Sinacban had attained de facto status at the Criteria [Sec. 7, LGC]
time the 1987 Constitution took effect on February As a general rule, the creation of a local government
2, 1987, it is not subject to the plebiscite unit or its conversion from one level to another level
requirement. This requirement applies only to new shall be based on verifiable indicators of viability
municipalities
Constitution. created for the first time under the and
(IPL)projected capacity to provide services, to wit:
(1) Income. - must be sufficient, based on
Attack Against Validity of Incorporation acceptable standards, to provide for all
When the inquiry is focused on the legal existence of essential government facilities and services
a body politic, the action is reversed to the state in and special functions commensurate with
a proceeding for quo warranto or any other direct the size of its population.
proceeding. Collateral attacks shall not lie. (2) Population. - total number of inhabitants
within the territorial jurisdiction of the
Proceeding must be: (RST) local government unit concerned.
(1) Brought in the name of the Republic of the (3) Land Area. - must be:
Philippines Contiguous, unless it comprises two or
(2) Commenced by the Sol Gen or the fiscal more islands OR is separated by a LGU
when directed by the president independent of the others;
(3) Timely raised [Municipality of San Narciso v Properly identified by metes and
Mendez (1994)] bounds with technical descriptions; and
Sufficient to provide for such basic
The municipality can still be considered to have services and facilities to meet the
attained at least a status closely approximating that requirements of its populace.
of a de facto corporation despite the invalidity of
the EO creating it. This is because the State itself Compliance attested to by:
recognized the continued existence of San Andres
when it classified it as a 5 th class municipality. And, (1)
(2) Department of Finance
National Statistics (DOF)
Office (NSO)
more importantly, Sec. 442(d) of the LGC cured (3) Lands Management Bureau (LMB) of the
whatever defect there was in its creation. Department of Environment and Natural
[Municipality of San Narciso v. Mendez] Resources (DENR).
(2) Laws and ordinance of the annexing LGU (4) and all other matters relating to the
prevails organization and operation of the local units.
(3) The right of office in the annexed LGU is [Sec. 3, LGC]
terminated 183
(4) Title to property is acquired by the The President of the Philippines shall exercise
annexing LGU general supervision over local governments.
(5) Debts are assumed by the annexing LGU
[Martin, supra] Provinces with respect to component cities and
municipalities, and cities and municipalities with
Effects of division respect to component barangays shall ensure that
(1) The legal existence of the srcinal the acts of their component units are within the
municipality is extinguished scope of their prescribed powers and functions. [Sec.
(2) Property, rights and powers are acquired by 4, LGC]
the dividing LGUs [Martin, supra]
Each LGU shall have the power to create its own
Abolition
sources of revenues and to levy taxes, fees and
A
local government
when unitpopulation,
its income, may be abolished:
or land area has charges,
(1) subject to such guidelines and limitations as the
been irreversibly reduced to less than the
Congress may provide,
minimum standards prescribed for its creation
(2) consistent with the basic policy of local
under Book III of this Code, as certified by the
autonomy.
national agencies mentioned in Section 7 hereof
Such taxes, fees, and charges shall accrue
to Congress or to the sangguniang concerned, as
exclusively to the local governments.[Sec. 5, LGC]
the case may be.
The law or ordinance abolishing a local government Local Government Code (RA 7160)
unit shall specify the province, city, municipality, or It is likewise the policy of the State to require all
barangay with which the local government unit national agencies and offices to conduct periodic
sought to be abolished will be incorporated or consultations with:
merged. [Sec. 9, LGC] (1) appropriate local government units,
(2) nongovernmental and people's organizations,
When there is no dissolution (3) and other concerned sectors of the community
(1) Non-user or surrender of charter before any project or program is implemented
(2) Failure to elect municipal officers in their respective jurisdictions. [Sec. 2(c), LGC]
(3) Change of sovereignty
(4) Change of name 2. Local Autonomy
C. Principles of Loca l Autonomy The principle of local autonomy under the 1987
1. State Policy, Principles of Decentralization Constitution simply means decentralization
2. Local Autonomy (discussed below). [Basco vs PAGCOR (1991)]
3. Decentralization
4. Devolution Illustrations
The CSC cannot declare the provision ―upo n
recommendation of the local chief executive
1. State Policy, Principles of concerned‖ as merely directory. Such provision is in
Decentralization consonance with local autonomy. [San Juan vs CSC
(1991)]
Art. X, 1987 Constitution
Sec. 2. The territorial and political subdivisions shall An A.O. may not compel LGUs to reduce their total
enjoy local autonomy. expenditures. Supervising officials may not lay down
or modify the rules. These rules were made in
furtherance of local autonomy.[Pimentel vs Aguirre
The Congress shall enact a local government code
(2000)]
which shall HOWEVER, the Constitution did not intend, for the
(1) provide for a more responsive and accountable sake of local autonomy, to deprive the legislature of
local government structure instituted through a all authority over LGUs, in particular, concerning
system of decentralization with effective discipline. [Ganzon vs CA (1991)]
mechanisms of recall, initiative, and
referendum,
(2) allocate among the different local government 3. Decentralization
units their powers, responsibilities, and
resources, NOTE: Decentralization is a means to achieve local
(3) and provide for the qualifications, election, autonomy.
appointment and removal, term, salaries,
powers and functions and duties of local Autonomy is either (1) decentralization of
officials, administration or (2) decentralization of power.
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Cf. Decentralization
political of power
power in favor is the
of LGUs abdication
declared of
to be Where statute is means
select reasonable silent,and
LGUs have ofdiscretion
methods exercise. to
autonomous. There is self-immolation where
autonomous government is accountable, not to the Power to generate and apply resources
central government, but to its constituents. (Note: Local government units shall have the power and
not allowed by our Constitution.) authority to:
(1) Generate and apply resources
Sec. 1 of AO 372 (Adoption of Economy Measures in (2) Establish an organization responsible for
Government for FY 1998), insofar as it ―directs‖ implementation of development plans,
LGUs to reduce expenditures by at least 25%, is a program objectives, and priorities
valid exercise of the President‘s power of general (3) Own sources of revenues (Sec.5, Art. X,
supervision over LGUs as it is advisory only. Constitution; Sec.18 LGC) which include:
Supervisory power, when contrasted with control, is (a) Power to create own sources
the power of mere oversight over an inferior body ; (b) Levy taxes, fees and charges
it does not include any restraining authority over Shall accrue exclusively for their
such body. [Pimentel v. Aguirre, supra] own use and disposition
Limitation: guidelines Congress
4. Devolution (asked in 1999) may provide
(c) Just share in national taxes (Sec.6,
Art. X, Constitution; Sec.18 LGC)
Refers to the act by which the national government Determined by law
confers power and authority upon the various local Automatically and directly
government units to perform specific functions and released
responsibilities [Sec. 17, LGC]; the transfer of power
(d) Equitable share in utilization and
and authority from the National Government to LGUs development of national wealth (Sec.7,
to enable them to perform specific functions and Art. X, Constitution; Sec.18 LGC)
responsibilities. [Art. 24, IRR of the LGC] Within respective territorial
jurisdictions
D. Powers of Local Government In the manner provided by law
Sharing with inhabitants by way of
Units (LGUs)
direct benefits
1. Police Power (General Welfare Clause) (e) Acquire, develop, lease, encumber,
2. Eminent Domain alienate, or otherwise dispose of
3. Taxing Power property (Sec.18 LGC)
4. Closure and Opening of Roads Real or personal property
5. Legislative Power Made in a proprietary capacity
6. Corporate Powers (f) Apply resources and assets (Sec.18
7. Liability of LGUs LGC)
8. Settlement of Boundary Disputes Purpose: productive, development,
9. Succession of Elective Officials or welfare purposes
10. Discipline of Local Officials In the exercise of their
11. Recall governmental or proprietary
powers and functions [Sec.18,
Powers in General LGC]
Sources of Powers of LGUs
(1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art. 1. Police Power (General Welfare
X Clause)
(2) Statutes, e.g. LGC
(3) Charter (particularly of cities) Preservation of peace and order within respective
regions [Sec.21, Art. X, Constitution]
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
sovereignty to public purpose [Charles River Bridge The ordinance which requires cemeteries to
vs. Warren Bridge, (1837)]
set aside a portion of their lots to paupers is
not an exercise of police power, but a
Requisites for a Valid Exercise of Eminent Domain
taking without compensation. [QC vs Ericta
(COP-JO)
(1983)]
(1) Through the Chief Executive of LGU
(2) Acting pursuant to an ordinance
(3) For the purposes of:
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
(1) Income tax (except when levied on banks of local funds shall be properly bonded, and
and financial institutions) such officer shall be accountable and
(2) Documentary stamp tax responsible for said funds and for the
(3) Estate tax safekeeping thereof in conformity with the 188
(4) Customs duties, registration fees of vessels provisions of law;
and all other kinds of customs fees and (7) Local governments shall formulate sound
charges financial plans, and the local budgets shall
(5) Taxes, fees and charges and other be based on functions, activities, and
impositions upon goods carried in or out of, projects, in terms of expected results;
or passing through, the territorial (8) Local budgets shall operationalize approved
jurisdiction of local government units in the local development plans;
guise of charges for wharfage, tolls for (9) LGUs shall ensure that their respective
bridges or otherwise, or other taxes, fees or budgets incorporate the requirements of
charges in any form whatsoever upon such their component units and provide for
goods or merchandise equitable allocation of resources among
(6) Taxes, fees or charges on agricultural and these component units;
aquatic products
farmers or fishermenwhen sold by marginal (10) National
planning planning
to ensureshallthat
be based on local
the needs and
(7) Taxes on business enterprises certified by aspirations of the people as articulated by
the BOI as pioneer or non-pioneer for a the local government units in their
period of 6 and 4 years, respectively, from respective local development plans are
date of registration considered in the formulation of budgets of
(8) Excise taxes national line agencies or offices;
(9) Percentage taxes or VAT (11) Fiscal responsibility shall be shared by all
(10) Taxes on the gross receipts of those exercising authority over the financial
transportation contractors and persons affairs, transactions, and operations of the
engaged in the transportation of passengers local government units; and
or freight, and common carriers (12) The LGU shall endeavor to have a balanced
(11) Taxes on premiums paid by way of budget in each fiscal year of operation
reinsurance or retrocession
(12) Taxes, fees, charges for the registration of Jurisprudence
motor vehicles and for the issuance of all Sec. 234 withdrew all exemptions from real property
kinds of licenses or permits for the driving taxes, even GOCCs when the beneficial use of the
thereof, except tricycles property has been granted to a taxable person for
(13) Taxes, fees, or other charges in Phil. consideration or otherwise. MCIAA is a GOCC and an
products actually exported, except as instrumentality, therefore, RPT exemption granted
otherwise provided therein under its charter is withdrawn [ MCIAA vs Marcos
(14) Taxes, fees or charges, on Countryside and (1997)]
Barangay Enterprises and cooperatives duly
registered under RA 6810 and the Tax exemption of property owned by the Republic
Cooperative Code refers to properties owned by the Government and
(15) Taxes, fees, or charges of any kind on the by its agencies which do not have separate and
National Government, its agencies and distinct personalities (unincorporated entities). The
instrumentalities properties of NDC belong to the Government. NDC [
vs Cebu, (1992)]
Fundamental principles governing the financial
affairs, transactions and operations of LGUs[Sec. LGUs, in addition to administrative autonomy, also
305, LGC] enjoy fiscal autonomy. LGUs have the power to
(1) No money shall be paid out of the local create their own sources and revenue, in addition to
treasury except in pursuance of an their equitable share in the national taxes as well as
appropriations ordinance or law; the power to allocate resources in accordance with
(2) Local government funds and monies shall be their own priorities. A basic feature of local fiscal
spent solely for public purposes; autonomy is the automatic release of the shares of
(3) Local revenue is generated only from the LGUs in the national internal revenue. This is
sources expressly authorized by law or mandated by no less than the constitution. Any
ordinance, and collection thereof shall at retention is prohibited. [Pimentel v Aguirre (2000)]
all times be acknowledged properly;
(4) All monies officially received by a local 4. Closure and Opening of Roads [Sec.
government officer in any capacity or on
any occasion shall be accounted for as local 21, LGC]
funds, unless otherwise provided by law;
(5) Trust funds in the local treasury shall not be What roads are subject, those within jurisdiction
paid out except in fulfillment of the of LGU
purpose for which the trust was created or (1) Local road
the funds received; (2) Alley
(6) Every officer of the LGU whose duties (3) Park
permit or require the possession or custody (4) Square
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Sessions are open to the public, UNLESS a closed- Review of (Component) City or Municipal
door session is ordered by: Ordinances
(1) an affirmative vote of a majority of the
members present (there being a quorum) Within 3 days after approval, the secretary shall
forward to the Sangguniang Panlalawigan for review,
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Form part of the record of the proceedings Prosecutor or attorney of the LGU involved
and shall be made in the following manner: shall be notified and entitled to be heard;
- Made before the member participates Alleged to be unconstitutional: Solicitor
in the deliberations on the ordinance or General shall also be notified and entitled 192
resolution under consideration to be heard. [Sec. 4, Rule 63]
- If the member did not participate
during the deliberations, the The failure of the SolGen to appear in the lower
disclosure shall be made before court to defend the constitutionality of an ordinance
voting on the ordinance or is not fatal to the case. The determination of the
resolution on second and third question of WON the SolGen should be required to
readings appear ―in any action involving the validity of any
- Made when a member takes a position treaty, law, executive order, rule or regulation‖ is a
or makes a privilege speech on a matter left to the discretion of the Court. Inasmuch
matter that may affect the business as the said requirement is not mandatory, but
interest, financial connections, or discretionary, noncompliance therewith affected
professional relationship neither the jurisdiction of the trial court nor the
Updated
used. rules, the rules of the previous year may be validity
Associationofof the
the Phil.
proceedings. [Homeowner’s
Inc. v Municipal Board of
Manila (1968)]
The signature of the mayor is not a mere ministerial
act, but involves the exercise of discretion on the Requisites for Valid Ordinance
part of the local chief executive. [Delos Reyes v
Sandiganbayan (1997)] For an ordinance to be valid exercise of police
power, it must:
Incidents of Law-Making (Legislative) Power (1) Not be contrary to the Constitution and/or
Posting and Publication of: statute
(1) Tax ordinances and Revenue measures (2) Not be unfair or oppressive
Within 10 days after approval (3) Must not be partial or discriminatory
Certified true copies of all provincial, (4) Not prohibit but may regulate trade
city, or municipal tax ordinances or (5) Be General and consistent with public policy
revenue measures (6) Not be unreasonable [Tatel v. Mun. of Virac
Published in full for 3 consecutive days (1992)]
In a newspaper of local circulation
- Where no such newspaper: posted Local Initiative and Referendum
in at least 2 conspicuous and
publicly accessible places [Sec. Definition
188, LGC]
NOTE: Both a resolution and an ordinance may be
(2) Ordinance with penal sanctions
At prominent places in the provincial the proper subjects of an initiative or a referendum.
[Garcia v COMELEC (1994)]
capitol, city, municipal or barangay
hall
Minimum period: 3 consecutive weeks (Based on LGC Sec. 120-127 and RA 6735: AN ACT
Publication in a newspaper of a general PROVIDING FOR A SYSTEM OF INITIATIVE AND
circulation w/in territorial jurisdiction, REFERENDUM)
except barangay ordinances
Effectivity: unless otherwise provided Initiative: legalprocess whereby the registered
on the day following its publication or voters of a LGU may directly propose, enact, or
at the end of period of posting, amend any ordinance.
whichever is later
Violation by public officer or employee Referendum: legal process whereby the registered
- May be meted administrative voters of the LGUs may approve, amend or reject
disciplinary action any ordinance enacted by the sanggunian.
- Without prejudice to filing of
appropriate civil or criminal action Who may exercise — all registered voters of the
Duty of Secretary of Sanggunian: provinces, cities, municipalities and barangays
- Shall transmit official copies to the
chief executive of Official Gazette Requirements
- Within 7 days following approval of
ordinance Referendum or initiative affecting a resolution or
- Purpose for publication ordinance passed by the legislative assembly of a
- If with penal sanction: for archival province or city:
and reference purposes [Sec. 511, (1) petition must be signed by at least 10% of
LGC] the registered voters in the province or
city,
Judicial Intervention (2) of which every legislative district must be
Actions involving the validity of a local government represented by at least 3% of the registered
ordinance: voters therein;
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
(3) Provided, however, that if the province or (2) Initiative shall extend only to subjects or
city is composed only of 1 legislative matters which are within the legal powers
district, then at least each municipality in a of the local legislative bodies to enact.
province or each barangay in a city should (3) If at any time before the initiative is held, 193
be represented by at least 3% of the the local legislative body shall adopt in toto
registered voters therein. the proposition presented, the initiative
shall be cancelled. However, those against
Referendum or initiative on an ordinance passed in a such action may, if they so desire, apply for
municipality: petition must be signed by at least initiative in the manner herein provided.
10% of the registered voters in the municipality, of [Sec. 124, LGC]
which every barangay is represented by at least 3%
of the registered voters therein Limitations Upon Local Legislative Bodies
Limitations on Initiatives
A resolution may be the subject of an initiative or justified from its inherent power to administer what
referendum. [Garcia vs COMELEC (1994)] it owns privately. [NAWASA v Dator (1967)]
Initiative: power of the people to propose bills and If the property is owned by the municipality in its 194
laws, and to enact or reject them at the polls public and governmental capacity, the property is
independent of the legislative assembly. public and Congress has absolute control over it; if
the property is owned in its private or proprietary
Referendum is the right reserved to the people to capacity, then it is patrimonial and Congress has no
adopt or reject any act or measure which has been absolute control. In which case, the municipality
passed by a legislative body and which in most cases cannot be deprived of it without due process and
would without action on the part of electors become payment of just compensation. [Province of
law. Zamboanga v City of Zamboanga (1968)]
These law-making powers belong to the people and Authority to Negotiate and Secure Grants
the COMELEC only exercises administration and Who may negotiate: Local Chief Executive (upon
supervision of the process. Hence, COMELEC cannot authority of Sanggunian)
control or change the substance or the content of
the legislation. What are negotiated
(1) Financial grants or donations in kind in
COMELEC should have prepared for an initiative, not support of basic services or facilities
a referendum. [SBMA v. COMELEC (1996)] (2) From local and foreign assistance agencies
Requisites of Contracts entered into by local chief LGUs and their officials are not exempt from liability
executive on behalf of LGU for death or injury to persons or damage to
(1) Prior authorization by Sanggunian property. [Sec. 24, LGC]
(2) Legible copy of contract posted at a
conspicuous place in the
Provincial capitol or When a member of a city or municipal police force
omissions, but also for those of persons for whom - The prosecution of crimes, even if
one is responsible. X X X The State is responsible in injury occurs [Palafox vs Ilocos Norte
like manner when it acts through a special agent; (1958)]
but not when the damage has been caused by the 195
official to whom the task done properly pertains, in If in the performance of a proprietary
which case what is provided in Article 2176 shall be function, the LGU is liable
applicable. [Art. 2180(6), CC] - The improper grant of a ferry service
franchise [Mendoza vs de Leon (1916)]
Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by, NOTE: Municipal corporations‘ liability to private
any person by reason of the defective condition of persons for the wrongful exercise of the corporate
roads, streets, bridges, public buildings, and other powers is the same as that of a private corporation
public works under their control or supervision. [Art. or individual [Mendoza vs de Leon (1916)]
2189, CC]
Deaths caused by a collapsed stage in a town fiesta
[Torio vs Fontanilla (1978)]
Liability for Torts, Violation of the Law and
Contracts Back pay or wages of employees illegally dismissed,
including those involving primary governmental
WHEN LGU IS LIABLE functions (e.g. policemen) [Guillergan v Ganzon
CASE DEFENSE (1966)]
If LGU fails to perform a Exercise of due diligence
governmental function in the selection and By Express Provision of Law
(e.g., maintenance of supervision is not a (1) Article 2189, CC
roads under Art. 2189, defense. When a person falls in an open manhole in the city
CC or rendering aid and streets. [Manila vs Teotico (198)]
protection under Art. 34,
CC) When a person steps on a rusted nail in a flooded
If engaged in Defense of due diligence public market. [Jimenez vs Manila, 150 SCRA 510]
proprietary functions, in the selection and
supervision available When accidents are caused by defective roads even
only if the function if the road does not belong to the LGU as long as it
involved is a corporate exercises control or supervision over said road.
function. [Guilatco vs Dagupan, 171 SCRA 382]
On Tort Illustrations
If in the performance of a governmental
function, the LGU is NOT liable
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Votes obtained by the winning candidate Examples of local chief executive‘s temporary
Total number of registered voters in each district incapacity to perform duties for physical/legal
reasons:
b. Permanent vacancies in the sanggunian (1) leave of absence;
(2) travel abroad;
If automatic succession as provided in Sec. 44 does (3) suspension from office. [Sec. 46, LGC]
not apply, vacancy is to be filled in by appointment (Asked in 2002)
made as follows:
GENERAL RULE: Vice-governor, city/ municipal vice-
mayor, or the highest ranking sangguniang barangay
Office where Who Succeeds into member shall automatically exercise the powers and
Permanent Vacancy Office perform the duties and functions of the local chief
Occurs executive.
Member of Sanggunian Person appointed by the
Panlalawigan or President, through the EXCEPTION: The power to appoint/suspend/dismiss
Sangguniang Panlungsod Executive Secretary employees can be exercised only if the period of
of highly urbanized temporary incapacity exceeds 30 working days.
cities and ICCs
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
If the local chief executive is traveling within the of Local Government, may make the temporary
country but outside his territorial jurisdiction for a appointment. [Menzon v. Petilla (1991)]
period not exceeding 3 consecutive days, he may
designate in writing the officer-in-charge. A vice-governor who is concurrently an acting 198
governor is actually a quasi-governor. Being the
GENERAL RULE: The local chief executive cannot acting governor, the vice-governor can no longer
authorize any local official to assume the continue to simultaneously exercise the duties of the
powers/duties/functions of his office, other than the latter office, since the nature of the duties of the
vice-governor, city/municipal vice-mayor, or highest governor hinders him from discharging his duties for
ranking sangguniang barangay member. such office. Hence, there is an ―inability‖ on t he
part of the regular presiding officer, the vice-
The authorization shall specify the powers and governor, to preside during the sanggunian sessions,
functions that the officer-in-charge shall exercise. which calls for the election of a temporary presiding
officer. [Gamboa v. Aguirre (1999)]
EXCEPTION: The power to appoint, suspend and
dismiss employees. The governor has the power to fill a vacancy in the
The LGC
there is aistemporary
silent on vacancy
the modein of
thesuccession
office of when
the sangguniang barangay mayor
The punong barangay
vice-governor. In this case, there was a vacancy members
when the vice-governor automatically assumed the
governorship pending the determination of who is If the application for LOA is not acted upon within 5
the local chief executive. Because of such working days after receipt, the application is
circumstances, the President, through the Secretary deemed approved. [Sec. 47, LGC]
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
10. Discipline of Local Officials Penal Code; and all other applicable
general and special laws.
Elective Officials How Initiated 199
(1) by any private individual or any government
Administrative Action officer or employee by filing a sworn
AO 23, as amended by AO 159 (1994) and AO 66 written complaint (verified)
(1999): Prescribing the Rules and Procedures on the (2) by the Office of the President or any
Investigation of Administrative Disciplinary Cases government agency duly authorized by law
to ensure that LGUs act within their
Coverage: administrative disciplinary charges prescribed powers and functions
against:
(1) the governors, and members of the Elective Official against Where to File
sangguniang panlalawigan; whom Administrative Complaint
(2) the mayors, vice mayors, and members of Complaint is Filed
the sangguniang panlungsod of highly Provincial or city official Office of the President
urbanized cities, independent
cities, and component cities; andcomponent Municipal official Sangguniang
Panlalawigan
(3) the mayors, vice mayors, and members of Barangay official Sangguniang Panlungsod
the sangguniang panlungsod or bayan of or Sangguniang Bayan
cities or municipalities in Metropolitan
Manila Jurisprudence
Supervision and discipline. The President is not
Disciplining Authority — The President, who may act devoid of disciplinary powers because he merely has
through the Executive Secretary supervisory powers under the Constitution.
May still constitute a Special Investigating Supervision is not incompatible with disciplining
Committee in lieu of the DILG Secretary; authority. [Ganzon vs CA (1991)]
Nothing shall prevent the President from
assuming jurisdiction at any stage of the Valid delegation. Under AO 23, the delegation of the
proceedings over cases to be preliminarily power to investigate to the Sec of Interior is valid.
investigated by the DILG; in such an event, What cannot be delegated is the power to discipline.
the same shall immediately be forwarded to [Joson vs Torres, 290 SCRA 279]
the Special Investigating Committee after it
may have been constituted by the Prejudicial question? The administrative
Disciplining Authority. investigation can proceed even during the pendency
of an appeal of audit findings to the Commission on
Investigating Authority— DILG Secretary Audit [Salalima vs Guingona, 257 SCRA 55]
(1) may constitute an Investigating Committee
in the DILG for the conduct of investigation Jurisdiction
Grounds Power of Tribunals
(1) The Ombudsman (Asked in 1999, 2003)
Grounds for administrative action (discipline, The Ombudsman and the Office of the President
suspension, removal): MAD-VAD-CO have concurrent jurisdiction to conduct
(1) Disloyalty to the Republic of the administrative investigations over local elective
Philippines; officials. The LGC did not withdraw the power of the
(2) Culpable violation of the Constitution; Ombudsman under RA 6770. [Hagad v. Gozo-Dadole
(3) Dishonesty, oppression, misconduct in (1993)]
office, gross negligence, or dereliction of
duty; Preventive Suspension Preventive Suspension
(4) Commission of any offense involvingmoral under RA 6770 under the LGC
turpitude or any offense punishable by at 1. the evidence of guilt 1. there is reasonable
least prision mayor, which is from 6 years is strong; AND ground to believe
and 1 day to 12 years imprisonment; 2. that any of the ff. are that the respondent
(5) Abuse of authority; present: has committed the
(6) Unauthorized absence for 15 consecutive a. the charge against act or acts
working days in case of local chief the officer or complained of
executives and 4 consecutive sessions in the employee should 2. the evidence of
case of members of the sanggunian;
(7) Application for, or acquisition of, foreign involve dishonesty,
oppression or grave culpability
3. the gravity isofstrong
the
citizenship or residence of the status of an misconduct or offense so warrants;
immigrant of another country; and neglect in the or
(8) Such other grounds as may be provided by performance of 4. the continuance in
the Local Government Code of 1991; duty; office of the
Republic Act No. 6713; Republic Act No. b. the charges should respondent could
3019; Administrative Code of 1987; Revised warrant removal influence the
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
from office; or witnesses or pose a the records and other evidence. [Ganzon v. CA,
c. the respondent‘s threat to the safety (1991)]
continued stay in and integrity of the
office would records and other [cf. suspension as a penalty] 200
prejudice the case evidence
filed against him It may be imposed by the Disciplining Authority in
Maximum period: 6 mos. Maximum period: 60 days cases where the respondent is an elective official:
It is not only the Ombudsman, but also his Deputy, Local Elective Official of: Who may impose:
who may sign an order preventively suspending provinces President, through
officials. Also, the length of the period of suspension highly urbanized cities the DILG Secretary
within the limits provided by law and the evaluation independent component
of the strength of the evidence both lie in the cities
discretion of the Ombudsman. It is immaterial that municipalities Provincial Governor
no evidence has been adduced to prove that the component city
official may influence possible witnesses or may barangay Mayor
tamper with the
there exists public
such a records. It is[Castillo-Co
possibility. sufficient that
v. The governor shall, upon the direct order of the
Barbers (1998)] Disciplining Authority, preventively suspend an
elective official of a component city, who is under
(2) The Courts formal administrative investigation by the Office of
RA 3019: The term ―office‖ in Sec. 13 of RA 3019 the President.
(pertaining to mandatory preventive suspension)
applies to any office which the officer might When imposed: May be imposed at any time after
currently be holding and not necessarily the the issues are joined (after respondent has answered
particular office in relation to which the official is the complaint)
charged. The imposition of the suspension, though
mandatory, is not automatic or self-operative. A pre- BUT no preventive suspension shall be imposed
condition is the existence of a valid Information, within 90 days immediately prior to any local
determined at a pre-suspension hearing. [Segovia v. election. If the preventive suspension has been
Sandiganbayan (1999)] imposed prior to the 90-day period immediately
preceding a local election, it shall be deemed
(3) Sandiganbayan automatically lifted upon the start of the period.
PD 1606, as amended by RA 8249
It is the official‘s grade that determines his or her Grounds for Preventive Suspension:
salary, and not the other way around. An official‘s (1) when the evidence of guilt is strong and,
grade is not a matter of proof but a matter of law (2) given the gravity of the offense, there is a
which the court
Sec. 444(d) of themust
LGC, take judicial notice.
the municipal Under
mayor shall great probability
office of that the
the respondent continuance
could in
influence the
receive a minimum monthly compensation witnesses or pose a threat to the safety and
corresponding to SG 27. Thus, the cases filed against integrity of the records and other evidence
the petitioner are within the exclusive jurisdiction of
the Sandiganbayan. [Llorente v. Sandiganbayan Period: Any single preventive suspension of local
(2000)] elective officials shall not extend beyond 60 days;
If the law states that a certain officer is within the Provided that, in the event that several
jurisdiction of the Sandiganbayan, the fact that the administrative cases are filed against an elective
officer's SG is below 27 does not divest jurisdiction. official:
[Inding v. Sandiganbayan (2004)] he cannot be preventively suspended for more
than 90 days within a single year
RA 8249 provides that as long as one of the accused on the same ground or grounds existing and
is an official of the executive branch occupying the known at the time of the first suspension.
position otherwise classified as SG 27 and higher, the
Sandiganbayan exercises exclusive srcinal Expiration: the suspended elective official shall be
jurisdiction. To vest Sandiganbayan with jurisdiction, deemed reinstated in office without prejudice to the
public office must be an element of the crime OR continuation of the proceedings against him [which
that without the public office, the crime could not shall be terminated within 120 days from formal
have been committed. [Rodriguez v. Sandiganbayan notice of the case]. HOWEVER, if the delay in the
(2004)] proceeding of the case is due to his fault, or
request, other than the appeal duly filed, the
Preventive Suspension [Sec. 63, LGC] duration of such delay shall not be counted in
(Asked in 1990, 1996) computing the time of termination of the case.[Sec.
63 (c)]
Sole Objective: to prevent the accused official from
hampering the investigation with his influence and Compensation: officer shall receive no salary or
authority over possible witnesses and keep him off compensation during such suspension; BUT, upon
subsequent exoneration and reinstatement, he shall
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
be paid his full salary or compensation, including (2) Confront and cross-examine the witnesses
such emoluments accruing during such suspension. against him
[Sec. 64, LGC] (3) Require attendance of witnesses and the
production of documentary evidence in his 201
The provincial governor is authorized to preventively favor through subpoena or subpoena duces
suspend the municipal mayor any time after the tecum. [Sec. 65, LGC]
issues have been joined and any of the following
grounds were shown to exist: Due process. The petitioner has the right to a
(1) When there is reasonable ground to formal investigation under AO 23. Where the Sec
believe that the respondent has denied the motion for a formal investigation and
committed the act or acts complained decided the case on the basis of position papers, the
of right of the petitioner was violated. [Joson vs
(2) When the evidence of culpability is Torres, 290 SCRA 279]
strong
(3) When the gravity of the offense so Form and Notice of Decision
warrants (1) Shall be terminated within 90 days from
(4) When the continuance
respondent could in office of the
influence the (2) start
Officethereof.
of the President or Sanggunian
witnesses or pose a threat to the safety concerned to render decision
and integrity of the records and other Within 30 days from end of
evidence. investigation
In writing
There is nothing improper in suspending an Stating clearly facts and reasons
officer before the charges are heard and before (3) Furnish copies to respondent and interested
he is given an opportunity to prove his parties. [Sec. 66(a), LGC]
innocence. Preventive suspension is allowed so
that respondent may not hamper the normal NOTE: Any abuse of the exercise of the power of
course of the investigation through the use of preventive suspension shall be penalized as abuse of
his influence and authority over possible authority. [Nachura]
witnesses. When a local government official
believes that he has been wrongfully Penalty of Suspension
suspended, the proper procedure is to exhaust Limitations: The penalty of suspension:
administrative remedies, i.e. seek relief from (1) shall not exceed the unexpired term of the
the DILG Secretary, and not to file a case in respondent
court. [Espiritu v. Melgar (1992)] (2) shall not exceed a period of 6 months for
every administrative offense
Piecemeal suspensions should not be issued. If (3) shall not be a bar to the candidacy of the
there are several administrative cases against a respondent so suspended as long as he
public official, these cases should be meets the qualifications required for the
consolidated for the purpose of ordering office. [Sec. 66, LGC]
preventive suspension, instead of issuing an
order of suspension for each case. Elective local When the respondent has been meted 2 or more
officials should be given the benefit of penalties of suspension for 2 or more administrative
simultaneous service of suspension.[Ganzon v. offenses, such penalties shall be served successively
CA (1991)] [AO No. 159, Amending AO 23, Prescribing the Rules
and Procedures on the Investigation of
NOTE: The ruling in this case as to simultaneous Administrative Disciplinary Cases Against Elective
service of suspension is more of an exception Local Officials, 1994]
than the rule, because of the following
circumstances: Removal
Three separate orders of 60-day
preventive suspension were issued An elective local official may be removed by order of
against Ganzon the proper court. [Sec. 60, LGC]
Another order of preventive suspension
was issued before the SC promulgated The penalty of removal from office as a result of
the decision ruling that suspension administrative investigation shall be considered a
should not be issued piecemeal bar to the candidacy of the respondent for any
The simultaneous service of suspension elective position. [Sec. 66(c), LGC]
will lessen the harsh effects of
whatever ill motive may be behind the [cf. effect of penalty of suspension]
successive suspension orders issued
Proper court order
Rights of the Respondent Official: Full opportunity Local legislative bodies and/or the Office of the
to: President cannot validly impose the penalty of
(1) Appear and defend himself in person or by dismissal or removal from service on erring local
counsel elective officials. It is clear from Sec. 60 of LGC that
an elective local official may be removed from office
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
on the grounds enumerated above only by order of An appeal shall not prevent a decision from
the proper court. becoming final or executory.
Art. 124 (b), Rule XIX of the Rules and Regulations If respondent wins the appeal, he shall be 202
Implementing the LGC, which states that ―an considered as having been placed under preventive
elective local official may be removed from office by suspension during the pendency of the appeal.
order of the proper court or the Disciplining
Authority whichever first acquires jurisdiction to If the appeal results in an exoneration, he shall be
the exclusion of the other‖ is void for being paid his salary and other emoluments during the
repugnant to Sec. 60, LGC. pendency of appeal. [Sec. 68, LGC]
But if it‘s appointive, the OP may remove. [Pablico
v. Villapando (2002)] Sec. 68 of the LGC merely provides that an ―appeal
shall not prevent a decision from becoming final or
Petitioners contest the administrative action as executory.‖ As worded, there is room to construe
being violative of Sec. 60, which mandates that an the provision as giving discretion to the reviewing
elective local official may be removed from office officials to stay the execution of the appealed
only by orderbeing
suspension of the12-20
court, months
since theexceeded
duration oftheir
the decision. [Berces v. Guingona (1995)]
remaining terms. The suspension was allegedly The phrase ―final or executory‖ in Secs. 67 and 68
tantamount to a removal. simply means that administrative appeal will not
prevent the enforcement of the decision.[Mendoza
An administrative offense means every act or vs Lacsina (2003)]
conduct or omission which amounts to, or
constitutes, any of the grounds for disciplinary Effect of Re-election(Asked in 2000)
action. The offenses for which suspension may be Re-election renders the administrative complaint
imposed are enumerated in Section 60. against the local official moot and academic. A
public official cannot be removed for administrative
Assuming for the moment that the Office of the misconduct committed during a prior term, since the
President is correct in its decisions in each of the re-election to office operates as a condonation of
subject four administrative cases: the officer‘s previous misconduct to the extent of
cutting off the right to remove him therefore. But
It committed no grave abuse of discretion in this rule is applicable only to administrative cases,
imposing the penalty of suspension, although the not to criminal cases. [Aguinaldo v. Santos (1992)]
aggregate thereof exceeded six months and the
unexpired portion of the petitioners‘ term of office. Doctrine of Condonation
What is important is that the suspension imposed for When re-election considered a condonation: if the
each administrative offense did not exceed six
months. [Salalima v. Guingona (1996)] proceedings
case, there isare
no abated due to elections.
final determination In this
of misconduct
[Malinao v. Reyes (1996)]
Administrative Appeal
Subsequent re-election cannot be deemed a
Within 30 days from receipt of decisions: condonation if there was already a final
determination of his guilt before the re-election
Decisions of: May be appealed [Reyes v. COMELEC (1996)]
before:
Sangguniang Sangguniang Appointive Officials
Panlungsod of Panlalawigan
component cities The appointing authority is generally the disciplining
Sangguniang Bayan authority.
Sangguniang Office of the President
Panlalawigan Disciplinary Jurisdiction [Sec. 87, LGC]
Sangguniang Except as otherwise provided by law, the local chief
Panlungsod of: executive may impose:
- highly urbanized (1) Removal from service (cf. elective officials)
cities (2) Demotion in rank
- independent (3) Suspension for not more than 1 year w/o
component cities pay
If not more than 30 days—not
Office of the President finalbe
not and executory;
appealed [Sec.may appealable
67, LGC] If more than 30 days—appealable to the
CSC
(4) Fine not exceeding 6 months‘ salary
(5) Reprimand
(6) Or otherwise discipline subordinate officials
and employees under his jurisdiction.
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
No remedy of appeal if the decision of the on recall. Thus, if the official sought to be recalled
administrative case exonerated the office or receives the highest number of votes, confidence in
employee. ―Party adversely affected‖ in PD 807 or him is affirmed and he shall continue in office.[Sec.
―The Philippine Civil Service Law‖ only refers to the 72, LGC] 203
government employee against which the case is
filed. [Mendez vs. CSC (1991)] Prohibition on resignation:An Elective local official
sought to be recalled is not allowed to resign while
The City Treasurer has authority to discipline his the recall process is in progress.[Sec. 73, LGC]
subordinates.
Expenses: The Annual General Appropriations Act
The power to discipline is specifically granted by the contains a provision for a contingency fund at the
Revised Administrative Code to heads of disposal of the COMELEC. [Sec. 75, LGC]
departments, agencies and instrumentalities,
provinces and cities. RA 9244: An Act Eliminating the Preparatory Recall
Assembly as a Mode of Instituting Recall of Elective
The power to commence administrative proceedings Local Government Officials, Amending for the
against
Omnibus subordinate officers of
Rules to the secretary is department,
granted by head
the Purpose sec. 70-71 of the LGC of 1991.
of office, head of LGU, chief of agency, regional Sec. 70. Initiation of the Recall Process (PCPVA)
director, or person with sworn written complaint.
The City Treasurer may also motu proprio institute Petition of a registered voter in the LGU concerned,
disciplinary proceedings against subordinates. supported by a percentage of registered voters
during the election in which the local official sought
These rules must be reconciled with the LGC, which to be recalled was elected.
gives the mayor the authority to institute
administrative and judicial proceedings against any (Percentage decreases as population of people in
official or employee of the city. In cases involving area increases. Also, the supporting voters must all
employees of the city treasurer‘s office, the mayor sign the petition)
must file his complaint with the treasurer‘s office or
with the DOF. [Garcia vs. Pajaro (2002)] Within 15 days after filing, the COMELEC must
certify the sufficiency of the required number of
[Sangguniang Bayan of San Andres v. CA (1998)]: signatures. Failure to obtain the required number
(Asked in 2000) automatically nullifies the petition.
Requisites to constitute Essential elements of
resignation: abandonment: Within 3 days from certification of sufficiency,
(1) Intention to relinquish (1) Intent to abandon COMELEC provides the official with a copy of the
a part of the term (2) Overt act by which petition and causes its publication for 3 weeks (once
(2) Act of relinquishment the intention is to a week) in a national newspaper and a local
(3) Acceptance by the be carried into newspaper of general circulation. Petition must also
proper authority effect be posted for 10 to 20 days at conspicuous places.
PROTEST SHOULD BE FILED AT THIS POINT and ruled
with finality 15 days after filing.
Removal
In interpreting its own rules as it did, the CSC was
acting within its constitutionally delegated power to COMELEC verifies and authenticates the signatures.
interpret its own rules. The CSC, by ruling that the
employee took an automatic leave of absence, was COMELEC announces acceptance of candidates
merely interpreting its own rule on requirement of
approved leave. [City Government of Makati City v. Election on Recall
CSC (2002)] COMELEC sets election within 30 days upon
completion of previous section in
11. Recall barangay/city/municipality proceedings (45 days in
case of provinces).
(Asked in 2002)
Officials sought to be recalled are automatically
Recall is a mode of removal of a public official by candidate. [Sec. 71, LGC]
the people before the end of his term of office.
[Garcia v. COMELEC, (1993)] Jurisprudence
A petition for recall that is signed only by the
Who has the power of recall: Power of recall for petitioner but does not bear the names of the
loss of confidence is exercised by the registered citizens who have allegedly lost confidence in the
voters of the LGU. [Sec. 69, LGC] official should be dismissed. [Angobung vs Comelec
(1997)]
Effectivity: Upon the election and proclamation of a
successor in the person of the candidate receiving Whether or not the electorate of the municipality
the highest number of votes cast during the election has lost confidence in their incumbent mayor is a
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
(2) Within 1 year immediately preceding a Vacancy in the offices occupied by incumbent
regular local election elected officials or resulting from expiration of their
Rationale: a recall election is potentially
terms of office in case of a negative vote in the
disruptive of the normal working of the LGU plebiscite results:
by appointment of the President;
necessitating additional expenses [Sec. 74,
appointees shall hold office until their
LGC]
successors are elected in the regular local
Note:
elections following the plebiscite
―Recall‖, as used in par. b, sec. 74 prescribing the 1 -
year limitation, refers to the ―election‖ itself ( not
After conversion of the newly-created province,
the process of initiating the recall proceedings). The President shall appoint:
purpose of the 1-year limitation from assumption is (1) Governor
to prevent premature action without having (2) Vice-governor
sufficient time to evaluate the official‘s
(3) Members of the sangguniang panlalawigan
performance.
who shall hold office until their successors are
As long as the election is held outside the 1-year elected in the next regular local elections and
period, the preliminary proceedings to initiate recall qualified. [Sec. 462 LGC]
can be held even before the end of 1 year from Qualified appointive officials and employees in the
assumption.
career service of the subprovinces at the time of
The 1-year period before regular local election does their conversion into regular provinces shall continue
in office in accordance with civil service law, rules
not include the campaign period. [Claudio v.
COMELEC (2000)] and regulations.
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
RA 9164: Synchronized Barangay and Sangguniang from engaging in any partisan political activity or
Kabataan Elections (2002) take part in any election except to vote. Under the
same provision, elective officials, or officers or
Term of office of barangay and sangguniang employees holding political offices, are obviously 205
kabataan officials: 3 years expressly allowed to take part in political and
electoral activities.
No barangay elective official shall serve for more
than 3 consecutive terms in the same position By repealing Section 67 but retaining Section 66 of
Reckoned from the 1994 barangay elections the Omnibus Election Code, the legislators deemed
Voluntary renunciation of office for any length it proper to treat these two classes of officials
of time shall not be considered as an differently with respect to the effect on their tenure
interruption [Sec. 2] in the office of the filing of the certificates of
candidacy for any position other than those occupied
RA 9006 Fair Election Act (2001) by them.
An elective official running for any office other than Since the classification justifying Section 14 of Rep.
the
is noone which
longer he is holding
considered ipso in a permanent
facto capacity,
resigned from his Act No.
vis appointive 9006, i.e., is anchored
officials, elected upon
officials vis-a-
material
office upon the filing of his certificate of candidacy. and significant distinctions and all the persons
[Sec. 14] belonging under the same classification are similarly
treated, the equal protection clause of the
Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 Constitution is, thus, not infringed. [Fariñas v.
of BP 881 or the Omnibus Election Code which states Executive Secretary (2003)]
that ―any elective official, whether national or local,
running for any office other than the one which he is What constitutes term of office?
holding in a permanent capacity, except for The Constitution contemplates service by local
President and Vice-President, shall be considered officials for three consecutive terms as a result of an
ipso facto resigned from his office upon the filing of election. The term limits for elective local officials
his certificate of candidacy.‖ must be taken to refer to:
(1) the right to be elected and
Section 14 of RA 9006 did not repeal Section 66 of (2) the right to serve in the same elective
the Omnibus election Code, leaving intact Section 66 position.
thereof which imposes a limitation to appointive
officials and considers them ipso facto resigned from Consequently, it is not enough that an individual has
office upon filing of their certificate of candidacy fully served three consecutive terms in an elective
local office.
By the repeal of Section 67, an elective official who
He must also have been elected to the same position
runs
holdingforis office otherconsidered
no longer than theipso
one facto
which he is
resigned for the same number of times before the
therefrom upon filing his certificate of disqualification can apply. [Borja v. COMELEC
candidacy. Elective officials continue in public (1998)]
office even as they campaign for reelection or
election for another elective position. On the other Effect of judicial declaration that the official’s
hand, Section 66 has been retained; thus, the proclamation is void: His assumption of office in
limitation on appointive officials remains - they are 1995 cannot be deemed to have been by reason of a
still considered ipso facto resigned from their offices valid election. Also, he did not fully serve the 1995-
upon the filing of their certificates of candidacy. 98 mayoral term by reason of involuntary
relinquishment of office as he was ordered to vacate
Substantial distinctions clearly exist between his post before the expiration of the term. Although
elective officials and appointive officials. The he served the greater portion of the said term, he
former occupy their office by virtue of the mandate should not be considered disqualified because he did
of the electorate. They are elected to an office for not serve three full consecutive terms. [Lonzanida
a definite term and may be removed therefrom only v. COMELEC (1999)]
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of Effect of Recall Elections:An official has served for
their designation thereto by an appointing three consecutive terms. He was elected in the
authority. Some appointive officials hold their office recall election for the term of his predecessor.
in a permanent capacity and are entitled to security There was no violation of the 3-term rule.
of tenure while others serve at the pleasure of the
appointing authority. The Constitution does not require that the
interruption be a full term of 3 years. The clear
Another substantial distinction between the two sets intent of the framers of the law is that interruption
of officials is that under Section 55, Chapter 8, Title for any length of time is sufficient to break an
I, Subsection A. Civil Service Commission, Book V of elective local official‘s continuity of service.
the Administrative Code of 1987 (Executive Order [Socrates v. COMELEC (2002)]
No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited
POLITICAL LAW REVIEWER
LOCAL GOVERNMENTS
Annex A
Requirements Province City Municipality Barangay 207
LGC 460-461 RA 9009 (2001) LGC 441-442 LGC 385-386
Income Average annual Average annual Average annual No minimum
income, as certified income, as certified income, as certified requirement for
by the DOF, of not by the DOF, of at by the provincial income
less than P20,000,000 least P100,000,000 for treasurer, of at least
based on 1991 the last 2 consecutive P2,500,000 for the
constant prices years based on 2000 last two consecutive
constant prices years based on 1991
constant prices
Population 250,000 inhabitants 150,000 inhabitants 25,000 inhabitants 2,000 inhabitants
5,000 inhabitants, in
cities and
municipalities
MM and within
other
metropolitan political
subdivisions or highly
urbanized cities
Territory contiguous territory contiguous territory contiguous territory No minimum
of at least 2,000km2 of at least 100km2 of at least 50km2 requirement for area
territory need not be requirement on land Same as CITY. Territory need not be
contiguous if it area shall not apply contiguous if it
comprises 2 or more where the city comprises 2 or more
islands or is separated proposed to be islands
by a chartered city or created is composed
cities which do not of 1 or more islands;
contribute to the the territory need not
income of the be contiguous if it
province comprises 2 or more
islands
Manner of By an Act of Congress By an Act of Congress By an Act of Congress By law or by an
Creation 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
By an Act of Congress,
to enhance the
delivery of basic
services in indigenous
cultural communities
Plebiscite Approval must be by Approval must be by Approval must be by Approval must be by
(in LGUs majority of the votes majority of the votes majority of the votes majority of the votes
directly cast; except cast; except cast; except cast; plebiscite shall
affected) otherwise provided in otherwise provided in otherwise provided in be held within such
the Act of Congress, the Act of Congress, the Act of Congress, period of time as may
the plebiscite shall be the plebiscite shall be the plebiscite shall be be determined by the
held within 120 days held within 120 days held within 120 days law or ordinance
from effectivity
law or of the law
ordinance from effectivity
or of the law
ordinance from effectivity
or of the barangay.
ordinance creating said
effecting such action effecting such action effecting such action
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Annex B
Component City or Municipality Barangay Ordinances 208
Ordinances and Resolutions
Reviewed by Sangguniang panlalawigan Sangguniang panlungsod or
sangguniang bayan
Furnish copies of ordinances 3 days after approval of ordinance or 10 days after enactment of ALL
or resolution within resolution approving the local development ordinances
plans and public investment programs
formulated by the local development
councils
Period to examine 30 days after receipt of copies, after which 30 days after receipt of copies,
documents the ordinance or resolution is presumed after which ordinance is presumed
valid if no action is taken. valid if no action is taken
Within 30 days, it may also be transmitted
to the provincial attorney or prosecutor for
examination; said atty. or prosecutor shall
give his written recommendations within 10
days from receipt of document
Ground to invalidate Ordinance or resolution is beyond the power Ordinance is inconsistent with law
ordinance or resolution conferred upon the Sanggunian concerned and city or municipal ordinances
In such case, the sangguniang
barangay may adjust, amend or
modify the ordinance within 30
days from receipt from the
sangguniang panlungsod or
sangguniang bayan
2012 UP L AW
BAR REVIEWER
POLITLAW
IC A L
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POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Lex ferenda – what jurists think the law should be or This may mean simply that the Court may reach fair
will become compromise in balancing the interests of the parties.
1. Obligations Erga Omnes B. International and National Law
they follow under a sense of legal obligation. For Custom may be:
custom to exist, it requires the concurrence of 2 General binding upon all or most
elements: states or
(1) State Practice and Particular binding between 212
(2) Opinio juris. only two or among a few states.
Unlike treaties, customary norms are legally binding In cases it has decided, the ICJ has indeed
upon states regardless of whether they consent, recognized the possibility of regional custom
subject to the Persistent Objector rule. (Asylum Case) and of bilateral custom. [Right of
Passage over Indian Territory Case]
Elements
No particular length of time is required for the
State Practice formation of customary norms. What becomes
necessary is such length of time as to make manifest
For custom to exist, the customary practice must be the existence of the two elements of custom.
both consistent and general. [Magallona]
process of formation, by such persistent objection questioning Annex I thereof, which showed
the norm will not be applicable as against that that the Temple of Preah Vihear was within
State. [Magallona] Cambodian territory [Temple of Preah
Vihear Case] 213
The ten-mile rule [in the delimitation of territorial
waters cross bays] would appear to be inapplicable Procedural Rules – the use of
as against Norway, inasmuch as she has always circumstantial evidence, hearsay evidence
opposed any attempt to apply it to the Norwegian (press reports).
coast. [Anglo-Norwegian Fisheries Case]
Press reports can be used to corroborate the
Duality of Norms existence of a fact; and, when they demonstrate
matters of public knowledge which have received
It is possible for a norm of international law to exist extensive press coverage, they can be used to prove
both as a customary norm and a conventional norm a fact to the satisfaction of the court[Nicaragua vs.
(ex. The Prohibition against the Use of Force). Such US Case, ¶62-63]
norms are said to be of dual character.
Norms of dual character come into being through any Circumstantial evidence is admitted as indirect
evidence in all systems of law and its use is
of the following ways: recognized by international decisions. Such
(1) A treaty provision may simply restate a circumstantial evidence, however, must consist of a
customary norm (as is true of many of the series of facts or events that lead to a single
provisions in the VCLOT; conclusion. [Corfu Channel Case]
(2) A treaty provision may constitute evidence
of custom; Substantive – duty to make reparations,
(3) A treaty provision may crystallize into a principle of reciprocity, pacta sunt
customary norm. servanda, separate corporate personality
[Barcelona Traction Case]
For a treaty provision to crystallize into custom, the
provision must be norm-creating. The treaty must be The Standard of ―Full‖ Reparations:Every breach
law-making, creating legal obligations which are not of an engagement (international obligation) entails
dissolved by their fulfillment. the obligation to make reparation. The amount of
reparation required is that amount which is
The number of parties, the explicit acceptance of necessary to bring the injured party back to the
rules of law, and, in some cases, the declaratory situation had the wrong not occurred [Chorzow
nature of the provisions produce a strong law- Factory Case]
creating effect at least as great as the general
practice considered sufficient to support a
Jurisdictional Principles – The power of a
customary rule. [Brownlie]
tribunal to determine the extent of its own
jurisdiction (competence de la
The customary norm retains a separate identity even
competence).
if its content is identical with that of a treaty norm.
Thus, a state that cannot hold a state responsibility
for a breach of a treaty obligation can still hold the Note: International tribunals have not been
erring state responsible for the breach of the consistent in their manner of determining whether a
identical customary norm. [Nicaragua vs. US Case] principle in municipal law constitutes a general
principle. In some instances they have examined
different legal systems; in others, they merely
3. General Principles of Law declared a principle in municipal law as constituting
a general principle of international law.
Refer to those general principles inmunicipal law
(particularly those of private law) that may be 4. Subsidiary Source: Judicial
appropriated to apply to the relations of states.
[Oppenheim] Decisions
Unlike custom, it does not require to be supported Preliminary note: International law does not follow
by state practice that is consistent and virtually the rule on stare decisis. Art. 59 of the ICJ State
uniform; it being sufficient that such principle is (which Art.38(1)(d) makes reference to) expressly
found in a number of legal jurisdictions. [Roque] limits the effect of a decision only to the parties to
the case.
Illustrations
Principles in Roman Law – estoppel, res Be that as it may, decisions of international tribunals
judicata, res inter alios acta, prescription. exercise considerable influence as impartial and
well-considered statements of the law by (qualified)
When Thailand did not object to, and has in jurists made in light of actual problems. Decisions of
fact benefited from, the Treaty of 1904 for international tribunals constitute evidence of the
50 years, it is deemed to have accepted state of the law. [Brownlie]
said treaty. It is thereby precluded from
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Nothing in the nature of aquid pro quo, nor States remain the most important actors in
any subsequent acceptance, nor even any international law. It possesses objective or erga
reaction from other states is required for omnes personality, not merely by virtue of
such declaration to take effect. recognition on the part of particular states.
Objective (general) international
Verily, unilateral declarations bind the personality – exists wherever the rights and
State that makes them. obligations of an entity are conferred by
general international law, e.g. states
Eastern Greenland case: The ICJ held that Denmark Special (particular) international
not only had a superior claim over the contested personality – exists where an entity is
territory, but that Norway was further bound by the established by particular States for special
Ihlen Declaration not to oppose Denmark‘s claim. purposes
The Ihlen Declaration is a statement made by the
Norwegian Foreign Minister, Nils Claus Ihlen, on the A state is defined as a group of people, more or less
topic of Denmark's sovereignty over Greenland, numerous, permanently living in adefinite territory,
which Mr. Ihlen declared verbally to the Danish under an independent government organized for
Minister that ―the plans of the Royal [Danish] political ends and capable of entering into legal
Government respecting Danish sovereignty over the relations with other states [Art. 1, Montevideo
whole of Greenland would be met with no Convention on the Rights and Duties of States
difficulties on the part of Norway." (1933)]
Also in the Nuclear Test cases, France declared that Requisite Elements
it would cease atmospheric nuclear tests. This
signaled that there had ceased to be a dispute, since a. People
it had bound itself to do what Australia and New The term ―people‖ refers to an aggregate of
Zealand wanted. individuals of both sexes who live together as a
community despite racial or cultural differences.
Although no minimum number is provided, they
D. Subjects should be permanent, and sufficient to maintain and
1. States perpetuate themselves.
2. International Organizations
3. Individuals b. Territory
Subjects of International Lawrefer to entities: State territory is that defined portion of the surface
of the globe which is subjected to the sovereignty of
(1) capable of possessing international rights the State. [Oppenheim]
and duties; and
(2) having the capacity to maintain these rights A state must exercise control over a certain area. It
by bringing international claims need not be exactly defined by metes and bounds,
[Reparations for Injuries Advisory Opinion so long as there exists a reasonable certainty of
(1949)] identifying it. No minimum land area is required.
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
evidenced by some
acts in relation administrative
to the or political
territory in question and well organized" (ex. Poland, Burundi, and
Rwanda).
such acts must be undertitre de souverain (title
of sovereignty). ii. Governments de facto & de jure
A government de jure is a government
To constitute effective occupation, exercise of from law, that is, one with a color of
sovereignty must be peaceful, actual, legitimacy.
continuous and sufficient to confer valid title to
sovereignty. A government de facto is one that governs
without a mandate of law. So long as it is
(2) Cession – the transfer of territory from one in place, it may command obedience from
state to another by treaty (derivative); only the inhabitants of the occupied area.
bilateral mode of acquisition
The de facto ruler may suspend laws and
The validity of cession depends on the valid title enact new ones.
of the ceding state; the cessionary state cannot
have more rights than what the ceding state The establishment of ade facto government
possessed. [Magallona] does not by itself abolish all laws and
structures established by the deposed
(3) Prescription – title is acquired by through government.
continuous and undisturbed exercise of
sovereignty over a period of time (derivative) Only ―laws of political nature affecting
political relations‖ are suspended ipso
Requisites: facto; laws that enforce public order and
(a) Possession that must be exercisedtitre regulate social and commercial life remain
de souverain in effect unless they are changed by the de
(b) Peaceful and uninterrupted facto sovereign.
(c) Public
(d) Endure for a certain length of time Conversely, the re-establishment of thede
[Johnson] jure government does not void the acts of
the preceding de facto government.
(4) Accession or accretion – the natural process of
land formation resulting in the increase of Three kinds of de facto government:
territory (srcinal) Government de facto in the strict legal
sense is that which usurps – either by
force or the will of the majority– the
c. Government legal government and maintains and
Government is the physical manifestation of a state. control against it;
Government must be organized, exercising control Government by paramount force is
over and capable of maintaining law and order that which results from theoccupation
within its territory. of a state or a part thereof by invading
forces in time of war; and
Note: Under the Rules on Succession of States , even Government established as an
changes of entire governments do not affect the independent government by
identity and personality of the state. Once statehood inhabitants of a country who rise in
is established, neither invasion nor disorder alone insurrection against the parent state.
can remove its character as a state. [Brownlie]
d. Independence or Sovereignty
i. “Effective” Government (Asked 1 time in the Bar)
Although an effective government is the
best evidence of the existence of a State,
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Refers to the capacity to enter into relations with government established as a result of external
other states. A state must be free from outside aggression [US Sec. of State Henry Stimson
control in conducting foreign and internal affairs. (1932)]
Estrada Doctrine (Asked 1 time in the Bar) – 216
It has, however, been advanced that the fact that a dealing or not dealing with the government
State ―may be acting under the direction of another established through a political upheaval is not a
State‖ is not of concern to international law. judgment on the legitimacy of the said
[Salonga] government [Mexican Minister Genaro Estrada
(1930)]
The practice of states has been to ignore —so far as
the issue of statehood is concerned—various forms of Effects of recognition:
political and emotional blackmail and interference (1) Diplomatic relations
directed against the weaker members of the (2) Right to sue in courts of recognizing state
community." (3) Right to possession of properties of
predecessor in the recognizing state
Thus, it is sufficient for a State to possess external (4) All acts of the recognized state or
appearance of capacity to enter into international
relation. [Brownlie] government
preventing theare validated
recognizingretroactively,
state from
passing upon their legality in its own court.
Recognition
2. International Organizations
Act by which a state acknowledges the existence of
another state, government or belligerent community
and indicates willingness to deal with the entity as The status and powers of an IO is determined by
such under international law. agreement and not by general or customary
international law.
As a public act of state, recognition is an optional
and political act and there is no legal duty in this IO‘s are considered subjects of international law ―if
regard. their legal personality is established by their
constituent instrument (charter).‖
Legal functions of recognition
The typical act of recognition has 2 legal functions: Further, its constituent rights and duties, or
(1) The determination of statehood as a capacities and immunities, are limited to those set
question of law which may have evidential forth in the treaty creating the international
effect before a tribunal, and organization. Thus, legal personality in this context
(2) A condition of the establishment of formal, is a relative concept. [Magallona]
optional, and bilateral relations, including
diplomatic relations and the conclusion of Preconditions for International Personality
treaties; also described by some jurists as
constitutive (1) It must constitute a permanent association
of states, with lawful objects, equipped
Declaratory View vs. Constitutive View(Asked 1 with organs;
time in the Bar). (2) There must be a distinction, in terms of
legal powers and purposes, between the
The Declaratory View (Prevailing View) posits that organization [and] its member states; and
recognition is a mere declaration or (3) It must have legal powers that it may
acknowledgement of an existing state of law and exercise on the international plane and not
fact, legal personality having been previously solely within the national systems of one or
conferred by operation of law. more states.
The Constitutive View (Minority View) posits that Capacity to Bring a Claim for Reparation
the political act of recognition is a precondition to
the existence of legal rights of a state. In its logical An IO such as the United Nations (UN) must be
extreme, this is to say that the very personality of a deemed to have such powers which, though not
state depends on the political decision of other expressly granted in its Charter, are conferred upon
states. [Brownlie] it by necessary implication as being essential to the
performance of its duties.
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the Thus, though the UN Charter did not expressly clothe
Bar) – precludes recognition of government the UN with the capacity to bring an international
established by revolution, civil war, coup d’etat claim for reparations, the UN nevertheless possessed
or other forms of internal violence until freely functional personality. [Reparations for Injuries
elected representatives of the people have Advisory Opinion, ¶147]
organized a constitutional government [US
President Woodrow Wilson, 1913 and Ecuadorian IO‘s are deemed to have powers not expressly
FM, 1907] granted in their charters where these unstated
Stimson Doctrine – precludes recognition of any powers are either
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
(1) implicitly bestowed in their charters or his physical safety and the preservation of his honor
(2) necessary to effect powers expressly and reputation.
granted.
Upon the principle of exterritoriality, his quarters, 217
3. Individuals archives, property and means of transportation are
inviolate.
While States are have traditionally been deemed to
He is immune from criminal and civil jurisdiction,
be subject of international law, individuals have except when he himself is the plaintiff, and is not
likewise become in some degree subjects of that subject to tax or exchange or currency restrictions.
law. However, individuals may assume the status of
subjects of international law only on the basis of
The Foreign Office
agreement by states and in specific context, not in
accordance with general or customary IL.
The body entrusted with the conduct of actual day-
to-day foreign affairs.
Illustrations
Art. 187(c), (d) and (e), UNCLOS: The
jurisdiction of the Sea-Bed Disputes It is headed
proper cases,bymay
a Secretary or a Minister
make binding who, on
declarations in
Chamber of the ITLOS extends to disputes
behalf of his government. [Legal Status of Eastern
between parties to contracts relating to the
Greenland Case]
exploitation of the Area. Parties to such
contracts may be natural or juridical
persons. The Diplomatic Corps
Claims Settlement Declaration of 1981
between US and Iran: Direct access to the Refers to the collectivity of all diplomatic envoys
Iran-US Claims Tribunal is given to accredited to a State.
individuals for the settlement of their
claims involving more than $250,000 either It is composed of:
against Iran or the US. (1) Head of Mission – classified into: (a)
Mixed Claims Tribunals established in the Ambassadors or nuncios – accredited to
Treaties of Peace concluded at the end of Heads of State, and other heads of mission
WW I: Individuals enjoyed locus standi in of equivalent rank; (b) Envoys, Ministers
actions against States relating to contracts, and Internuncios – accredited to Heads of
debts, and property adversely affected by State; (c) Charges d’affaires – accredited to
the war. Ministers of Foreign Affairs.
London Agreement of the International (2) Diplomatic Staff – those engaged in
Military Tribunal at Nuremberg: In crimes diplomatic activities and are accorded
against peace, war crimes and crimes diplomatic rank.
(6) If diplomatic relation is severed, entrust the Note: The principle of inviolability continues to
protection of its nationals to the diplomatic apply even if diplomatic relations are broken off, or
mission of a third State acceptable to the if a mission is permanently or temporarily recalled.
receiving State [Art. 45, VCDR] In that case, the receiving state must respect and 218
(7) May protect the interest of a third State by protect the premises of the mission, together with
agreement with the receiving State, if there its property and archives. [Art. 45, VCDR]
is no diplomatic relations between the third
State and the receiving State [Art. 46, What does the ―premises of the mission‖ include?
VCDR] In the first place, it means ―the buildings or parts of
the buildings and the land ancillary thereto,
2. Diplomatic Immunities and irrespective of ownership, used for the purposes of
the mission including the residence of the head of
Privileges the mission.
(Asked 9 times in the Bar)
The mission need not be the owner of the
Theoretical basis of diplomatic privileges and premises – The expression ―premises of the mission‖
immunities
(1) Extraterritoriality theory – the premises of includes the buildings
mission, whether for owned
they are the purposes
by the of the
Sending
the diplomatic mission represent a sort of state or by a third party acting for its account or are
extension of the territory of the sending leased and are rented. [ILC Yearbook, vol II, p.95,
State 1958]
(2) Representational theory – the diplomatic
mission personifies the sending State The premises occupied by a diplomatic mission,
(3) Functional necessity theory– privileges and including the private residence of the diplomatic
immunities are necessary to enable the agent, are inviolable.[Art. 30, VCDR]
diplomatic mission to perform its functions
Such premises cannot be entered or searched, and
Personal Inviolability neither can the goods, records and archives be
detained by local authorities even under lawful
:
Personal inviolability consist of 2 aspects process.
(1) The duty of the receiving State to refrain
from exercising its sovereign rights, in The envoy must consent to such entry, except in
particular law enforcement rights against extreme cases of necessity (ex. When there is
the diplomat; and imminent danger that a crime of violence is to be
(2) The duty to treat him with due respect and perpetrated in the premises; when the premises are
protect his person, freedom or dignity from on fire).
physical interference by other persons.
The service of writs, summons, orders or processes
The receiving State shall treat him with due respect within the premises of mission or residence of the
and take all steps to prevent any attack on his envoy is prohibited.
person, freedom or dignity. [Art. 29, VCDR]
Even if a criminal takes refuge within the premises,
The diplomatic representative shall not be liable to the peace officers cannot break into such premises
any form of arrest or detention. to apprehend the same.
In the Hostage Case, however the ICJ held the The fugitive should, however, be surrendered upon
diplomatic envoy, however, may be arrested demand by local authorities, except when the right
temporarily in case of urgent danger, such as when of asylum exists.
he commits an act of violence which makes it
necessary to put him under restraint for the purpose Right of Official Communication
of preventing similar acts [Case Concerning the US
Diplomatic and Consular Staff in Tehran, ICJ The envoy is entitled to fully and freely
Reports, 1980] communicate with his government.
Inviolability of Premises and Archives (1) The receiving state shall permit and protect
free communication on the part of the
Consist of 2 elements: mission for all official purposes.
(1) The duty of the receiving State to refrain (2) The mission may employ all appropriate
from entering the premises, except with the means to send and receive messages by any
consent of the head of the mission; and of the usual modes of communication or by
(2) The ―special duty of the receiving state to diplomatic courier, which shall enjoy
protect the premises against any intrusion inviolability;
or damage and to prevent any disturbance (3) The official correspondence of the mission
of the peace of the mission or impairment is inviolable; and
of its dignity. (4) The diplomatic bag shall not be opened or
detained. [Art. 27, VCDR]
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Immunity from Local Jurisdiction Exemption from Taxes and Customs Duties
As to criminal jurisdiction - A diplomatic agent Exemption from taxation has 2 aspects, one,
enjoys immunity from criminal jurisdiction of the pertaining to the sending state and another, 219
receiving State. [Art. 31, VCDR] pertaining to the diplomatic agent.
He may not be arrested, prosecuted, prosecuted or (1) As to the sending state – exemption applies
punished for any offense he may commit, unless his to ―premises of the mission‖ whether owned
immunity is waived. or leased, with respect to ―all national,
regional or municipal dues and taxes‖. [Art
This privilege, however, only exempts a diplomatic 23, VCDR]
agent from local jurisdiction; it does not import
immunity from legal liability. (2) As to Diplomatic agents - are exempt from
all dues and taxes, whether personal or
As to civil and administrative jurisdiction- The real, national, regional or municipal. [Art.
diplomatic agent also enjoys immunity from the civil 34, VCDR]
State,administrative
and jurisdiction
even with respect of the
to hisprivate life. receiving
[Art. 31, He is also exempt from all customs duties
VCDR] of articles for the official use of the
mission and those for the personal use of
BUT there are exceptions: the envoy or members of the family
(1) A real action relating to private immovable forming part of his household, including
property situated in the territory of the articles intended for his establishment.
receiving state, unless he holds it in behalf
of the sending state for the purposes of the Baggage and effects are entitled to free
mission. entry and are usually exempt from
(2) An action relating to succession in which inspection.
the diplomatic agent involved as executor,
administrator, heir or legatee as a private Exception to Tax Exemption:
person and not on behalf of the sending As to sending state: Exemption does NOT include
state. dues or taxes which represent payment for specific
(3) An action relating to any professional or services rendered. [Art. 23(1), VCDR]
commercial activity exercised by the
diplomatic agent in the receiving state As to diplomatic agents:
outside his official functions. [Art. 31(1), (1) Indirect taxes incorporated in the price of
VCDR] goods purchased or services availed
(2) Dues and taxes on private immovable
His properties are not subject to garnishment, property situated in the receiving State
seizure for debt, execution and the like. (3) Estate, succession or inheritance taxes
levied by the receiving State
The diplomatic agent also cannot be compelled to (4) Dues and taxes on private income sourced
testify, not even by deposition, before any judicial within the receiving State
or administrative tribunal in the receiving State (5) Capital taxes on investments in commercial
without the consent of his government. ventures in the receiving State
(6) Charges levied for specific services
Who are the persons entitled to immunity from rendered
jurisdiction? (7) Registration, court or record fees, mortgage
(1) diplomatic agent dues and stamp duty, with respect to
(2) Members of the family of the diplomatic immovable property. [Art. 34, VCDR}
agent forming part of his household, who
are not nationals of the receiving State Who are entitled to exemption from taxation in
(3) As to criminal jurisdiction, members of the addition to the diplomatic agent?
administrative and technical staff of the (1) Members of the family of the diplomatic
diplomatic mission, as well as members of agent forming part of his household, who
their families forming part of their are not nationals of the receiving State
respective households, who are not (2) Members of the administrative and
nationals of or permanent residents in the technical staff of the diplomatic mission, as
receiving state. But as to civil and well as members of their families forming
administrative jurisdiction, immunity shall part of their respective households, who are
not extend to ―acts performed outside the not nationals of or permanent residents in
course of their duties‘; and the receiving state.
(4) Members of the service staff of the (3) Members of the service staff of the
diplomatic mission, who are not nationals of diplomatic mission, who are not nationals of
or permanent residents in the receiving or permanent residents in the receiving
state, with respect to ‗acts performed in state, with respect to ‗emoluments they
the course of their duties‘. [Art. 37, VCDR] receive by reason of their employment‘
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
(4) Private servants of members of the mission (5) Issuing passports and travel documents to
if they are not nationals or permanent nationals of the sending state and visas and
residents of the receiving state, with travel documents to persons wishing to
respect to ‗emoluments they receive by travel to the sending state; 220
reason of their employment‘. [Art. 37, (6) Acting as notary, civil registrar and similar
VCDR] administrative capacities; and
(7) Exercising rights of supervision and
Duration of Immunities and Privileges inspection pertaining to the sending state as
These privileges are enjoyed by the envoy from the flag state and state of registry of aircraft.
moment he enters the territory of the receiving
State, and shall cease when he leaves the country. Necessary Documents
With respect to official acts, immunity shall continue The following documents are necessary for the
indefinitely. assumption of Consular functions:
(1) Letters Patent(letter de provision) – the
Waiver of Immunities letter of appointment or commission which
Diplomatic privileges may be waived. Such waiver is transmitted
Secretary by theAffairs
of Foreign sendingof state to the
the country
may be made only by the government of the sending
State if it concerns the immunities of the head of where the consul is to serve.
the mission. In other cases, the waiver may be made (2) Exequatur – the authorization given to the
either by the government or by the chief of the consul by the sovereign of the receiving
mission. State, allowing him to exercise his function
within the territory.
3. Consular Relations Immunities and Privileges
Consuls are State agents residing abroad for various (1) Freedom of communication;
purposes but mainly (a) The receiving state shall permit and
(1) in the interest of commerce and navigation, protect freedom of information on the
(2) issuance of visa (permit to visit his part of the consular post for all official
country), and purposes;
(3) such other functions as are designed to (b) In communicating with the
protect nationals of the appointing State. government, the diplomatic missions
and other consular posts of the sending
Ranks state, the consular post may employ
all appropriate means, including
Consul General: heads several consular districts, or diplomatic or consular bags and
Consular agent: one entrusted with the performance BUT, may the receiving state request that
of certain functions by the consul. the consular bag be opened?
(4) Ascertaining
conditions and by all lawful means
developments the
in the (2) Inviolability of archives;
commercial, economic, and cultural and (a) Inviolability is unconditional. They
scientific life of the receiving state, shall be inviolable at all times and
reporting thereon to the government of the wherever they may be.[Art. 33, VCCR]
sending state, and giving information to
persons interested; (3) Inviolability of premises;
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
any disturbance
consular post or of peace ofof the
impairment its from
vehicle,anvessel
accident causedin by
or aircraft the
dignity receiving state. [Art. 43, VCCR]
(c) Consular premises, their furnishings,
the property of the consular post and
its means of transport shall be immune F. Treaties
from any form of requisition ―for
purposes of national defense or public 1. Definition
utility‖. 2. Requisites for Validity
(d) In case of consular premises, their 3. Treaty-Making Process
furnishings, the property of the 4. Invalid Treaties
consular post and its means of 5. Grounds for Termination
transport are expropriated for national
defense or public utility, ―all possible 1. Definition
steps shall be taken to avoid
impending the performance of consular A 'treaty' is:
functions, and prompt, adequate and (1) an international agreement
effective compensation shall be paid (2) concluded between States
to the sending state.[Art. 31, VCCR] (3) in written form and
(4) governed by international law,
Consular premises – ―the buildings or parts (5) whether embodied in a single instrument or
of buildings and the land ancillary thereto,
irrespective of ownership, used exclusively (6) in two or more
whatever its related instruments
particular and
designation
for the purposes of consular post‖. [Art.2(1), VCLOT]
(4) Exemption from local jurisdiction for Under the VCLOT, the term ―treaty‖ includes all
offenses committed in the discharge of agreements between states, regardless of how they
official functions, but not for other offense are called. Thus, for purposes of international law,
except for minor infractions; treaties, executive agreements, exchanges of notes,
etc. are all treaties. Note, however, that Philippine
(5) Exemption from testifying on official law makes a distinction between treaties and
communications or on matters pertaining to executive agreements. Both are equally binding,
consular functions; but only treaties require the concurrence of the
Senate to be effective.
(6) Exemption from taxes, customs duties,
military or jury service. Treaty Executive
Agreements
(7) Personal inviolability of consular officials 1. Political 1. Transitory
Issues effectivity
Scope of personal inviolability of consular 2. Changes in 2. Adjusts details
officials Subject national to carry out
(a) They are not liable to arrest or Matter policy well-
detention pending trial, except in case
of a grave crime and pursuant to a 3. Involves
international established
national
decision of a competent judicial agreements policies and
authority. of a traditions
(b) They shall not be committed to prison permanent 3. Temporary
nor be subject to any other form of character 4. Implements
restriction to personal freedom, treaties,
except in the case of grave crime statutes,
pursuant to a decision of competent
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Treaty Executive It means that the stage where the definitive text of
Agreements the treaty is established as the correct and authentic
policies one.
Requires Does not require 222
ratification by concurrence by Expression of Consent to be bound by t he
Ratification the 2/3 of the Senate to be Treaty (Article 11, VCLOT)
Senate to be binding
valid and Consent to be bound by the terms of a treaty may be
effective (Art. expressed through:
VII, Sec. 21)
(1) Signature, when the negotiator is
2. Requisites for Validity authorized to sign the treaty;
(5) Approval
Negotiation
(6) Accession - The method by which a State,
State representatives discuss the terms and under certain conditions, becomes a party
provisions of the treaty. to a treaty of which it is not a signatory and
in the negotiation of which it did not take
Adoption (Article 9, VCLOT) part
It means that the form and content have been (7) By any other means agreed by the parties
settled by the negotiating States. It is preparatory to
thesignature.
its authentication of the text of the treaty and to Doctrine
In of Transformation
Philippine Law, treaties have to be transformed in
order to be part of Philippine law.
Authentication of the Text (Article 10,
VCLOT) A treaty is ―transformed‖ when a treaty is ratified
after it has been concurred in by the Senate[Sec.
21, Art.VII, Constitution]
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PUBLIC INTERNATIONAL LAW
After ratification, a treaty shall be deemed as if prior to the representative expressing such
legislated by our Legislature. consent;
(7) If consent was given in violation of provisions of
La Chemise Lacoste v. Fernandez: Lacoste, a internal law regarding competence to conclude 223
French corporation, sued local counterfeiters before treaties that is manifest and of fundamental
Philippine courts. When the counterfeiters importance.
challenged its legal personality to sue before
Philippine courts, the Court held that the Philippines 5. Grounds for Termination
has ratified international conventions for the
protection of intellectual property, and it would (1) Expiration of the term, or withdrawal of a party
frustrate the object of these conventions if Lacoste
in accordance with the treaty;
is barred from filing its claims directly in Philippine (2) Extinction of a party to the treaty, when the
courts. treaty rights and obligations would not devolve
upon the successor-state;
Registration with the UN (3) Mutual agreement of parties;
(4) Denunciation or desistance by a party;
Philippine Law (5) Supervening impossibility of performance;
In the Philippines, the negotiation of treaties and (6) Conclusion of a subsequent inconsistent treaty;
their ratification are executive functions, subject to (7) Loss of subject matter;
concurrence of the Senate. Under Sec. 21, Art. VII, (8) Material breach or violation of treaty
(Treaty Clause) of the Constitution, treaties must (9) Fundamental Change of Circumstance (Rebus
receive the concurrence of the Senate before they sic stantibus) [Art.62, VCLOT]
may be effective.
A contracting state may unilaterally withdraw
Amendment or Modification of Treaty from a treaty when a vital or fundamental
GENERAL RULE: Consent of all parties is required. change of circumstance occurs such that the
foundation upon which its consent to be bound
EXCEPTION: If the treaty itself so allows, two States initially rested has disappeared.
may modify a provision only insofar as their
relationship inter se.
Requisites:
(a) Change is so substantial that the foundation
Reservations
of the treaty has altogether disappeared
Definition: A unilateral statement made by a state
(b) Change was unforeseen or unforeseeable at
upon entering a treaty whereby it purports to
the time of the t reaty‘s perfection
exclude or modify the legal effect of certain
(c) Change was not caused by the party
provision/s of the treaty in their application to the
invoking the doctrine
reserving state (Art.19. VCLOT).
(d) Doctrine was invoked within a reasonable
Exceptions: A reservation shall not operate to time
(e) Treaty‘s duration is indefinite
modify or exclude the provisions of a treaty:
(f) Doctrine cannot operate retroactively (it
(1) Where the treaty expressly prohibits
must not adversely affect provisions which
reservations in general;
have already been complied with prior to
(2) Where the treaty expressly prohibits that
the vital change)
specific reservation being made; or
(3) Where the reservation is incompatible with
(10) Outbreak of war between the parties , unless
treaty‘s object and purpose [Reservation to
the treaty relates to the conduct of war (ex.
the Genocide Conventions Advisory
The Four Geneva Conventions).
Opinion]
(11) Severance of diplomatic relations (if such
relationship is indispensable for the treaty‘s
4. Invalid Treaties application).
(12) Jus Cogens Application: Emergence of a new
(1) If the treaty violates a jus cogens norm of peremptory norm of general international law
international law (void); which renders void any existing, conflicting
(2) If the conclusion of a treaty is procured by treaty.
threat or use of force (void);
(3) Error of fact, provided that such fact formed an G. Nationality and Statelessness
essential basis of a state‘s consent to be bound;
1. Nationality
(4) If the representative of a state was corrupted to
consent by another negotiating state; 2. Statelessness
(5) If consent was obtained through fraudulent
conduct of another negotiating state; 1. Nationality
(6) If the representative consented in violation of
specific restrictions on authority, provided: Definition (Cruz): The tie that binds an individual to
the restriction was notified to the other his state, from which he can claim protection and
negotiating States whose laws he is obliged to obey.
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
Membership in a political community with all its A state conferring honorary citizenship upon
concomitant rights and obligations. an individual
Why important in international law: An individual Hague Convention of 1930 on Conflict of 224
ordinarily can participate in international relations Nationality Laws: Any question as to whether a
only through the instrumentality of the state to person possesses the nationality of a particular state
which he belongs, as when his government asserts a shall be determined in accordance with the law of
claim on his behalf for injuries suffered by him in a that state. These laws shall be recognized by other
foreign jurisdiction. This remedy would not be states so long as they are consistent with
available to a stateless individual. international conventions, international customs and
the principles of law generally recognized with
Acquisition regard to nationality.
Doctrine of State Responsibility: A state may be Any person extradited, whether he be a national of
held responsible for the requesting state, of the state of refuge or of
(1) an international delinquency another state.
(2) directly or indirectly imputable to it 225
(3) which causes injury to the national of Political and religious offenders are generally not
another state subject to extradition.
Liability will attach to the state where its treatment In the absence of special agreement, the offense
of the alien falls below the international standard of must have been committed within the territory or
justice or where it is remiss in according him the against the interests of the demanding state.
protection or redress that is warranted by the
circumstances. Rule of double criminality: The act for which the
extradition is sought must be punishable in both the
Conditions for the enforcement of the doctrine of requesting and requested states.
state responsibility:
(1) Exhaustion of local administrative remedies Procedure
(2) Must be damages
claim for represented
by hisinown
thestate
international If the surrender of a fugitive is sought, a request for
his extradition is presented through diplomatic
Calvo clause – a stipulation by virtue of which an channels to the state of refuge, with the necessary
alien waives or restricts his right to appeal to his papers for identification.
own state in connection with any claim arising from
a contract with a foreign state and limits himself to Upon a receipt of the request, the state of refuge
the remedies available under the laws of that state will conduct a judicial investigation to ascertain if
the crime is covered by the extradition treaty and if
The propriety of governmental acts should be put to there is a prima facie case against the fugitive
the test of international standards. The treatment of according to its own laws.
an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad If there is, a warrant of surrender will be drawn and
faith, to willful neglect of duty, or to an the fugitive will be delivered to the state of srcin.
insufficiency of governmental action so far short of
international standards that every reasonable and The evaluation process partakes of the nature of a
impartial man would readily recognize its criminal investigation, having consequences which
insufficiency. [Neer Claim (1926)] will result in deprivation of liberty of the
prospective extradite. A favorable action in an
1. Extradition extradition request exposes a person to eventual
extradition to a foreign country, thus exhibiting the
penal aspect of the process.
Definition (Cruz): The surrender of a person by one
state to another state where he is wanted for
The evaluation process itself is like a preliminary
prosecution or, if already convicted, for punishment.
investigation since both procedures may have the
same result – the arrest and imprisonment of the
PD 1086: The removal of an accused from the
respondent. The basic rights of notice and hearing
Philippines with the object of placing him at the
are applicable in criminal, civil and administrative
disposal of foreign authorities to enable the
proceedings. Non-observance of these rights will
requesting state or government to hold him in
invalidate the proceedings. Individuals are entitled
connection with any criminal investigation directed
to be notified of any pending case affecting their
against him in connection with any criminal
interests, and upon notice, may claim the right to
investigation directed against him or the execution
appear therein and present their side. [Secretary of
of a penalty imposed on him under the penal or
Justice vs. Lantion]
criminal law of the requesting state or government.
Second generation – consists of economic, social (7) The right to freedom of opinion and
expression;
and cultural rights;
(8) Right to peaceful assembly and association;
(9) The right to take part in the government of
Third generation – refers to right to development,
his country.
right to peace, and right to environment.
Economic, social and cultural rights enumerated in
the UDHR include:
(1) The right to social security;
(2) The right to work and protection against
First Second unemployment;
generation generation (3) The right to equal pay for equal work;
Obligatory strictly (or relatively (4) The right to form and join trade unions;
Force under objectively) obligatory: States (5) The right to rest and leisure.
International obligatory, are required to
Law whatever the progressively
economic or achieve the full 2. International Covenant on Civil and
other realization of Political Rights (ICCPR)
conditions of these rights ―to (Asked 1 time in the Bar)
the states the maximum of
obligated their available The ICCPR is an international covenant and is binding
resources‖ on the respective State Parties.
Derogation/ may only be may be restricted
Restriction, derogated in a for the general It embodies the first generation of human rights,
when allowed public welfare, with or although it lists more rights than the UDHR:
emergency without an (1) The right to own property;
―emergency that (2) The right to seek in other countries asylum
threatens the from prosecution;
independence or (3) The right of members of ethnic, religious or
security of a State linguistic groups not to be denied to enjoy
Party.‖ their own culture, to profess and practice
their own religion, or to use their own
1. Universal Declaration of Human language;
(4) The right to compensation in case of
Rights unlawful arrest;
(5) The right to legal assistance in criminal
The UDHR is the first comprehensive catalogue of prosecution;
human rights proclaimed by an international (6) The right against self-incrimination;
organization. (7) Protection against double jeopardy;
(8) Right to review by higher tribunal in case of
It must be noted, however, that the UDHR is not a criminal conviction;
treaty. (9) Right of every child to nationality;
(10) Right to protection of a child as required by
It has no
adopted obligatory
by the UN GA ascharacter
Resolutionbecause it As
217A (III). wasa his status as a minor;
(11) Right of persons below 18 years old not to
resolution, it is merely recommendatory. be sentenced to death for crimes;
(12) Right against the carrying out of death
Despite this, the UNDHR is considered a normative sentence on the part of a pregnant woman.
instrument that creates binding obligations for all
States because of the consensus evidenced by the Obligations of State Parties
practice of States that the Declaration is now
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
(1) Under the ICCPR, State Parties undertake to (IHL) and Neutrality
respect and to ensure to all individuals
within their territory the rights enumerated 1. Categories of Armed Conflicts
therein, without distinction of any kind, 2. Core International Obligations of States in IHL 227
such as race, color, sec, language, religion, 3. Principles of IHL
political or other opinion, national or social 4. Law on Neutrality
srcin, birth or other status.
(2) State Parties are required to take the IHL is the branch of public international law which
necessary steps to adopt legislative or other governs armed conflicts to the end that the use of
measures that are necessary to give effect violence is limited and that human suffering is
to the rights recognized in the ICCPR. mitigated or reduced by regulating or limiting the
(3) State Parties must ensure that any person means of military operations and by protecting those
whose rights or freedoms are violate have who do not or no longer participate in the hostilities.
an effective remedy, notwithstanding that
the violation has been committed by IHL has Two Branches: (1) Law of The Hague, which
persons action in an official capacity. establishes the rights and obligations of belligerents
in the conduct of military operations, and limits the
(4) State Parties
claiming suchmust ensure
remedy that
shall any his
have person
right means of harming the enemy; and the (2) Law of
thereto determined by competent judicial, Geneva, which is designed to safeguard military
administrative or legislative authority, and personnel who are no longer taking par in the
that they shall enforce the remedy when fighting and people not actively engaged in
granted. hostilities (i.e. civilians) (INTERNATIONAL
COMMITTEE OF THE RED CROSS [―ICRC‖]).
3. International Covenant on Note: The two branches draw their names from the
Economic, Social and Cultural Rights cities where each was initially codified. With the
(ICESCR) adoption of the Additional Protocols of 1977, which
combine both branches, that distinction is now of
merely historical and instructive value (ICRC).
The ICESCR, like the ICCPR, is an international
covenant and is binding on the respective State
Parties. 1. Categories of Armed Conflicts
(d) treatment;
The passing of sentences and the War of National Liberation
carrying out of executions without An armed conflict may be of such nature in which
previous judgment pronounced by a peoples are fighting against colonial domination and
regularly constituted court, affording alien occupation and against racist regimes in the
all the judicial guarantees which are exercise of their right to self-determination.
recognized as indispensable by civilized
peoples. This conflict, however, is considered an
(3) The wounded and the sick shall be collected international armed conflict under Art. 1, par. 3 and
and cared for. 4 of Protocol I.
The application of provisions above does not affect Article 2 common to the four Geneva conventions
the legal status of the parties to the conflict. Hence, provides that ―all cases of declared war or any other
an insurgent or a rebel group does not assume armed conflict which may arise between two or
belligerency status. more of the High Contracting Parties, even if the
state of war is not recognized by one of them.‖
Article 3 is indifferent to the legal character of such
group. Hence, the Geneva conventions and Protocol I
govern wars of national liberation.
It must be noted that Article 3 is to be applied as a
minimum. Wars by peoples against racist, colonial and alien
to all States.
binding However,
only States Protocol
that are partiesIItoisit.a treaty and Combatants
Combatants are members of the armed forces of a
Its rules, however, may still develop into customary Party to a conflict. [Art. 3(2), Protocol 1]
norms binding on all states, by the general practice
of states coupled with their acceptance of them as They have the right to participate directly and
law (opinio juris). indirectly in hostilities. [Art 43(2) Protocol 1]
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
In fact, only combatants are allowed to engage in (3) Persons hors de combat are those who have
hostilities. been injured in the course of hostile battle
action and are no longer able to directly
According to one commentator, a combatant is take part in hostilities. They shall be 229
allowed to use force, even to kill, and will not be protected and treated humanely without
held personally responsible for his acts, as he would any adverse distinction. Their right to life
be where he to the same as a normal citizen and physical and moral integrity shall be
[Gasser] respected.
1. Coastal – situated close to a mainland and may Thus, conversion from internal waters under the
be considered part thereof,i.e. Norway Constitution into archipelagic waters under the
2. Mid-ocean– situated in the ocean at such UNCLOS gravely derogates the sovereignty of the
distance from the coasts of firm land, i.e. Philippine state. Remember that sovereignty over 231
Indonesia (note: The Archipelagic State internal waters precludes the right of innocent
provisions apply only to mid-ocean archipelagos passage and other rights pertaining to archipelagic
composed of islands, and NOT to a partly waters under the UNCLOS.
continental state.)
3. Internal Waters
Territorial sea and other maritime zones – the (Asked 1 time in the Bar)
breadth of the territorial sea, the contiguous zone,
and the EEZ is measured from the straight Definition
archipelagic baselines. These are waters of lakes, rivers, and bays landward
of the baseline of the territorial sea.
Archipelagic Waters
However, in case of archipelagic states, waters
Archipelagic waters– these are the waters enclosed landward of the baseline other than those rivers,
by the straight archipelagic baselines, regardless of bays and lakes, are archipelagic waters.
their depth or distance from the coast.
Internal waters are treated as part of a State's land
It is subject to the sovereignty of the archipelagic territory, and is subject to the full exercise of
state, but subject to the right of innocent passage sovereignty. Thus, the coastal state may designate
for the ships of all states. which waters to open and which to close to foreign
shipping.
Archipelagic Sea Lanes Passage
4. Territorial Sea
Other Rights with Respect to Archipelagic Waters
(1) Rights under existing agreement on the (Asked 1 time in the Bar)
part of third states should be respected by
the archipelagic state. Definition
(2) Within its archipelagic waters, the These waters stretch up to 12 miles from the
archipelagic state shall recognize baseline on the seaward direction.
traditional fishing rights and other
legitimate activities of immediately They are subject to the jurisdiction of the coastal
adjacent neighboring states. state, which jurisdiction almost approximates that
(3) The archipelagic state shall respect existing which is exercised over land territory.
submarine cables laid by other states and
―passing through its waters without making Except that the coastal
to (1) innocent passage state
and, must respect
in the thecertain
case of rights
a landfall‖.
(4) Right of archipelagic sea lanes passage:It straits, to (2) transit passage. (Asked 1 time in the
is the right of foreign ships and aircraft to Bar)
have continuous, expeditious, and
unobstructed passage in sea lanes and air Innocent passage navigation through the
routes through or over archipelagic waters territorial sea w/o entering internal waters, going to
and the adjacent territorial sea of the internal waters, or coming from internal waters and
archipelagic state. making for the high seas.
A coastal state may establish an EEZ that may Note: In detention of foreign vessels, the coastal
stretch up to 200 miles from its baselines. state has the duty to promptly notify the flag state
of the action taken.
Within this zone, a State may regulate nonliving and
living resources, other economic resources, artificial Conflicts regarding the attribution of rights and
installations, scientific research, and pollution jurisdiction in the EEZ must be resolved on the basis
control. of equity and in the light of all relevant
circumstances, taking into account the respective
Under the UNCLOS, states have the sovereign right importance of the interests involved to the parties
to exploit the resources of this zone, but shall share as well as to the international community as a
that part of the catch that is beyond its capacity to whole. [Art. 59, UNCLOS]
harvest.
6. Continental Shelf
Resources covered by sovereign rights of coastal
states in the EEZ include living and non-living Extended Continental Shelf
resources in the waters of the seabed and its subsoil.
Definition
Coastal states have the primary responsibility to
It is the seabed and subsoil of the submarine areas
utilize, manage and conserve the living resources extending beyond the territorial sea of the coastal
within their EEZ, i.e. ensuring that living resources state throughout the natural prolongation of its
are not endangered by overexploitation, and the
lands territory up to
duty to promote optimum utilization of living
(1) the outer edge of the continental margin,
resources by determining allowable catch.
or
(2) a distance of 200 nautical miles from the
If after determining the maximum allowable catch, baselines of the territorial sea where the
the coastal state does not have the capacity to outer edge of the continental margin does
harvest the entire catch, it shall give other states not extend up to that distance.
access to the surplus by means of arrangements
allowable under the UNCLOS.
Continental margin the submerged prolongation
of the land mass of the continental state, consisting
Note however that the UNLCOS does not specify the
of the continental shelf proper, the continental
method for determining ―allowable catch.‖ Hence, slope, and the continental rise
states may establish illusory levels.
Limits of the Continental Shelf
Geographically disadvantaged states (those who
have no EEZ of their own or those coastal states
Juridical or Legal Continental Shelf: 0-200 nautical
whose geographical situations make them dependent
miles from baselines
on the exploitation of the living resources of the EEZ
of other states) and land-locked states have the
POLITICAL LAW REVIEWER
PUBLIC INTERNATIONAL LAW
It only has sovereign rights with respect to the Where no successful settlement can be achieved, or
exploration and exploitation of its natural resources, if the parties are unable to agree on the means of
including the mineral and other non-living resources settlement of a dispute concerning the application
of the seabed and subsoil together with living of UNCLOS, such dispute may be governed by the
organisms belonging to thesedentary species.* principle of compulsory settlement, where
procedures entail binding decisions.
For example, the coastal state has the exclusive
right to authorize and regulate oil-drilling on its Compulsory Procedures that States Parties Can
continental shelf. Choose From:
(1) International Tribunal for the Law of the
These rights are exclusive in the sense that when Sea*;
the coastal state does not explore its continental (2) International Court of Justice;
shelf or exploit its resources, no one may undertake (3) Arbitral Tribunal*;
these activities without the coastal state‘s consent. (4) Special Arbitral Tribunal *;
Note: In instances where the continental margin is The choice of the State Parties must be expressed in
more than 200 nautical miles from the baselines, and a written declaration, which is revocable and
replaceable.
hence extendsright
the exclusive beyond the EEZ,
to exploit the coastal
mineral state has
and non-living
resources in the ―excess area‖. Jurisdiction of Court or Tribunal
Its jurisdiction covers all disputes submitted to it in by States according to their capabilities. Where
accordance with the UNCLOS. It also includes there are threats of serious or irreversible damage,
matters submitted to it under any other agreement. lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to 234
Applicable Laws in Settlement of Disputes by prevent environmental degradation.
the ITLOS
Definition (Magallona)
The branch of public international law comprising
those substantive, procedural, and institutional rules
which have as their primary objective the protection
of the environment