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General Principles
DEFINITIONS
Administrative Law is that branch of modern law under
which the executive department of the government, acting
in a quasi-legislative or quasi-judicial capacity, interferes
with the conduct of the individual for the purpose of
promoting the well-being of the community [Dean Roscoue
Pound]
Administrative Agencies are the organs of government,
other than a court and other than the legislature, which
affect the rights of private parties either through
adjudication or through rule-making [Nachura].
HISTORICAL CONSIDERATIONS
Why did administrative agencies come about?
(1) Growing complexities of modern life
(2) Multiplication of number of subjects needing
government regulation; and
(3) Increased difficulty of administering laws [Pangasinan
Transportation v. Public Service Commission (1940)]
Why are administrative agencies needed?
Because the government lacks:
(1) Time
(2) Expertise and
(3) Organizational aptitude for effective and continuing
regulation of new developments in society [Stone]
Administrative Agencies
MODES OF CREATION OF ADMINISTRATIVE AGENCIES
(1) 1987 Constitution
(E.g. CSC, COMELEC, COA, CHR, Commission on
Appointments, Judicial and Bar Council, NEDA and
Office of the Ombudsman)
(2) Legislative Enactments
(E.g. NLRC, SEC, PRC, Social Security Commission,
Commission on Immigration and Deportation,
Philippine Patent Office, Games and Amusement
Board, Board of Energy, and Insurance Commission)
(3) Executive Orders/ Authorities of law
(E.g. Fact-finding Agencies)
WHEN IS AN AGENCY ADMINISTRATIVE?
Where its function is primarily regulatory EVEN IF it
conducts hearings and determines controversies to carry
out its regulatory duty.
On its rule-making authority, it is administrative when it
does not have discretion to determine what the law shall
be but merely prescribes details for the enforcement of the
law.
TYPES OF ADMINISTRATIVE AGENCIES
(1) Government grant or gratuity, special privilege (e.g.
Bureau of Lands, Phil. Veterans Admin., GSIS, SSS,
PAO);
(2) Carrying out the actual business of government (e.g.
BIR, Customs, Immigration, Land Registration
Authority);
(3) Service for public benefit (e.g. Philpost, PNR, MWSS,
NFA, NHA);
ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
(4) Regulation of businesses affected with public interest
(e.g. Insurance Commission, LTFRB, NTC, HLURB);
(5) Regulation of private businesses and individuals (e.g.
SEC);
(6) Adjustment of individual controversies because of a
strong social policy involved (e.g. ECC, NLRC, SEC,
DAR, COA).
Powers of Administrative
Agencies
The powers of administrative agencies are:
(1) Quasi-legislative (Rule-making)
(2) Quasi-judicial (Adjudicatory) and
(3) Determinative powers
Does the grant of such powers to Administrative Agencies
violate the Doctrine of Separation of Powers? No.
Administrative agencies became the catch basin for the
residual powers of the 3 branches (Dicey). The theory of the
separation of powers is designed to forestall over action
resulting from concentration of power. However with the
growing complexity of modern life, there is a constantly
growing tendency toward the delegation of greater powers
by the legislature. [Pangasinan Transportation v. Public
Service Commission (1940)]
QUASI-LEGISLATIVE (RULE-MAKING) POWER
(Asked 5 times in the Bar)
The authority delegated by the law-making body to the
administrative agency to adopt rules and regulations
intended to carry out the provisions of a law and
implement a legislative policy.
DOCTRINE OF SUBORDINATE LEGISLATION
Power to promulgate rules and regulations is only limited
to carrying into effect what is provided in the legislative
enactment.
NON-DELEGATION DOCTRINE
Potestas delegata non delegare potest. What has been
delegated cannot be delegated.
LEGISLATIVE DELEGATION
REQUISITES FOR A VALID DELEGATION
(1) The law must be complete in itself and must set forth the
policy to be executed
(2) The law must fix a standard, the limits of which are
sufficiently determinate or determinable, to which the
delegate must conform
WHAT IS A SUFFICIENT STANDARD:
(1) Defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it;
and
(2) Indicates the circumstances under which the legislative
command is to be effected. [Santiago v. COMELEC
(1997); ABAKADA Guro List v. Ermita (2005)]
FORMS OF THE SUFFICIENT STANDARD:
(1) Express
(2) Implied [Edu v. Ericta (1970)]
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(3) Embodied in other statutes on the same matter and not

necessarily in the same law being challenged. REQUISITES FOR VALIDITY
[Chiongbian v. Orbos (1995)] Requisites of a valid administrative rule (WRAP)
(1) Within the scope or authority of law
KINDS OF ADMINISTRATIVE RULES AND REGULATIONS (2) Authorized by law
(1) Supplementary legislation (3) Reasonableness
Pertains to rules and regulations to fix details in the (4) Promulgated in accordance with prescribed Procedure
execution of a policy in the law. e.g. IRRs of the Labor
Code. Publication Rules
(2) Interpretative legislation (1) Administrative rules and regulations are subject to the
Pertains to rules and regulations construing or publication and effectivity rules of the Admin Code in
interpreting the provisions of a statute to be enforced relation to the Civil Code.
and they are binding on all concerned until they are (2) EO 200 requires publication of laws in the Official
changed, i.e. BIR Circulars. Gazette or in a newspaper of general circulation.
Publication is indispensable, especially if the rule is
General Distinctions from Legislative Rules general.
Legislative Rules Interpretative Rules Exceptions:
(1) Interpretative rules
Promulgated pursuant to Passed pursuant to its quasi- (2) Internal regulations (i.e. regulating personnel)
its quasi-legislative / judicial capacity. (3) Letters of instructions issued by administrative
rule-making functions. superior to subordinates
Create a new law, a new Merely clarify the meaning of (3) Effectivity: 15 days after publication, not 15 days from
policy, with the force and a pre-existing law by date of filing with the UP Law Center.
effect of law. inferring its implications. Exceptions:
Need publication. Need not be published. (1) Different date is fixed by law or specified in the rule.
So long as the court finds The court may review their (2) In case of imminent danger to public health, safety
that the legislative rules correctness of the and welfare.
are within the power of interpretation of the law
the administrative given by the administrative Penal Rules
agency to pass, as seen body, and substitute its own Omission of Some Rules. – (2) Every rule establishing an
in the primary law, then view of what is correct to the offense or defining an act which, pursuant to law is
the rules bind the court. administrative body. If it is punishable as a crime or subject to a penalty shall in all
The court cannot not within the scope of the cases be published in full text. [Sec. 6, 1987 Administrative
question the wisdom or administrative agency, court Code]
correctness of the policy can only invalidate the same (1) The law itself must declare the act as punishable and
contained in the rules. but not substitute its decision must also define or fix the penalty for the violation.
or interpretation or give its (2) Can administrative bodies make penal rules? NO. Penal
own set of rules. statutes are exclusive to the legislature and cannot be
Due process involves Due process means that the delegated. Administrative rules and regulations must
whether the parties were body observed the proper not include, prohibit or punish acts which the law does
afforded the opportunity procedure in passing rules. not even define as a criminal act. [People v. Maceren
to be notified and heard (1977)]
before the issuance of (3) If a rule is penal, it must be published before it takes
the ruling. effect. [People v. Que Po Lay (1954)]

Restrictions on interpretative regulations: (a) does not QUASI-JUDICIAL (ADJUDICATORY) POWER

change the character of a ministerial duty, (b) does not (Asked 4 times in the Bar)
involve unlawful use of legislative or judicial power. The power of the administrative agency to determine
questions of fact to which the legislative policy is to apply,
Administrative interpretations: may eliminate construction in accordance with the standards laid down by the law
and uncertainty in doubtful cases. When laws are itself
susceptible of two or more interpretations, the
administrative agency should make known its official SOURCE
position. Incidental to the power of regulation but is often expressly
conferred by the legislature through specific provisions in
Administrative construction/ interpretation not controlling the charter of the agency
as to the proper construction of a statute, but generally it is
given great weight, has a very persuasive influence and DISTINCTIONS FROM JUDICIAL PROCEEDINGS
may actually be regarded by the courts as the controlling Kind of
Administrative Judicial
factor. Proceedings
Nature of
Inquisitorial Adversarial
Administrative interpretation is merely advisory; Courts Proceedings
finally determine what the law means. Liberally applied Follow technical
Rules of
rules in the Rules
Procedure
Contingent legislation of Court
Pertains to rules and regulations made by an Nature and Decision limited Decision includes
administrative authority on the existence of certain facts or Extent of to matters of matters brought
things upon which the enforcement of the law depends. Decision general concern as issue by the

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Kind of Due process does not always entail notice and hearing
Administrative Judicial
Proceedings prior to the deprivation of a right. Hearing may occur after
parties deprivation, as in emergency cases, in which case, there
must be a chance to seek reconsideration. [UP Board of
The agency itself The parties are Regents v. CA (1999)]
may be a party to only the private
Parties
the proceedings litigants Presence of a party at a trial is not always the essence of
before it due process. All that the law requires is the element of
fairness; that the parties be given notice of trial and
Requisites for a Valid Exercise (1) an opportunity to be heard
(1) Jurisdiction (2) in administrative proceedings, an opportunity to seek
(2) Due process reconsideration
(3) an opportunity to explain one’s side
General Rule
A tribunal, board or officer exercising judicial functions acts The law, in prescribing a process of appeal to a higher
without jurisdiction if no authority has been conferred to it level, contemplates that the reviewing officer is a person
by law to hear and decide cases different from the one who issued the appealed decision.
(1) Jurisdiction to hear is explicitly or by necessary Otherwise, the review becomes a farce; it is rendered
implication, conferred through the terms of the meaningless. [Rivera v. CSC (1995)]
enabling statute.
(2) Effect of administrative acts outside jurisdiction—Void. Is a trial necessary? —NO. WON to hold an adversarial trial
is discretionary. Parties cannot demand it as a matter of
Powers included in Quasi-Judicial Function right. [Vinta Maritime v. NLRC (1978)].
(1) Subpoena Power – In any contested case, the agency
shall have the power to require the attendance of The right of a party to confront and cross-examine
witnesses or the production of books, papers, opposing witness is a fundamental right which is part of
documents and other pertinent data. [Sec. 13, 1987 due process. If without his fault, this right is violated, he is
Admin Code] entitled to have the direct examination stricken off the
(2) Contempt Power record. [Bachrach Motors v. CIR (1978)]
General Rule: Get the aid of RTC.
Exception: Law gives agency contempt power. [Sec. 13, Evidence on record must be fully disclosed to the parties.
1987 Admin Code] [American Inter-Fashion v. Office of the President (1991)] but
(3) Power to issue Search Warrant or Warrant of Arrest respondents in administrative cases are not entitled to be
General Rule: Only Judges may issue informed of findings of investigative committees but only
Exception: Deportation Proceedings [Harvey v. of the decision of the administrative body. [Pefianco v.
Defensor-Santiago (1988)] Moral (2000)]
Administrative Due Process Due process is violated when:
Due Process (1) There is failure to sufficiently explain the reason for the
Findings of facts by administrative bodies which observed decision rendered; or
procedural safeguards (e.g. notice and hearing parties, and (2) If not supported by substantial evidence;
a full consideration of evidence) are accorded the greatest (3) And imputation of a violation and imposition of a fine
respect by courts despite absence of due notice and hearing. [Globe
Telecom v. NTC (2004)].
Cardinal Primary Rights
Ang Tibay v CIR (1950) lays down the cardinal primary Self-incrimination
rights: The right against self-incrimination may be invoked by the
(1) Right to a hearing (Includes the right of a party to respondent at the time he is called by the complainant as
present his own case and submit evidence in support a witness. However, if he voluntarily takes the witness
thereof) stand, he can be cross examined; but he may still invoke
(2) The tribunal must consider the evidence presented the right when the question calls for an answer which
(3) Decision must be supported by evidence. incriminates him for an offense other than that charged.
(4) Evidence must be substantial. [People v. Ayson (1989)]
Quantum of Proof (Substantial Evidence) Notice and Hearing
The amount of relevant evidence which a reasonable When required:
mind might accept as adequate to justify a conclusion (1) When the law specifically requires it.
[Sec. 5 Rule 134 Rules of Court] (2) When it affects a person’s status and liberty.
(5) Decision must be rendered on the evidence presented When not required:
at the hearing or at least contained in the record and (1) Urgent reasons.
disclosed to the parties affected (2) Discretion is exercised by an officer vested with it upon
(6) Independent consideration of judge (Must not simply an undisputed fact.
accept the views of a subordinate) (3) If it involves the exercise of discretion and there is no
(7) Decision rendered in such a manner as to let the parties grave abuse.
know the various issues involved and the reasons for (4) When rules to govern future conduct of persons or
the decision rendered. enterprises, unless law provides otherwise.
(5) In the valid exercise of police power.

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Administrative Decisions or Interpretation not part of the
legal system: A memorandum circular of a bureau head
could not operate to vest a taxpayer with a shield against
judicial action [PBCom v. CIR (1999)]
Administrative Appeal and Review
Different kinds of administrative appeal and review: [De
Leon]
(1) That which inheres in the relation of administrative
superior to administrative subordinate where
determinations are made at lower levels of the same
administrative system;
(2) That embraced in statutes which provides for a
determination to be made by a particular officer of
body subject to appeal, review, or redetermination by
another officer of body in the same agency or in the
same administrative system;
(3) That in which the statute attempts to make a court a
part of the administrative scheme by providing in terms
or effect that the court, on review of the action of an
administrative agency, shall exercise powers of such
extent that they differ from ordinary judicial functions
and involve a trial de novo of matters of fact or
discretion and application of the independent
judgment of the court;
(4) That in which the statute provides that an order made
by a division of a Commission or Board has the same
force and effect as if made by the Commission subject
to a rehearing by the full Commission, for the
‘rehearing’ is practically an appeal to another
administrative tribunal;
(5) That in which the statute provides for an appeal to an
officer on an intermediate level with subsequent
appeal to the head of the department or agency; and
(6) That embraced in statutes which provide for appeal at
the highest level, namely, the President
A party must prove that it has been affected or aggrieved
by an administrative agency in order to entitle it to a review
by an appellate administrative body or another
administrative body.
The appellate administrative agency may conduct
additional hearings in the appealed case, if deemed
necessary [Reyes v. Zamora (1979)].
Administrative Res Judicata
The doctrines of forum shopping, litis pendentia and res
judicata also apply to administrative agencies.
When it applies
The doctrine of res judicata applies only to judicial or
quasi-judicial proceedings and not to the exercise of purely
administrative functions. Administrative proceedings are
non-litigious and summary in nature; hence, res judicata
does not apply. [Nasipit Lumber Co. v. NLRC (1989)]
Requisites:
(1) The former judgment must be final;
(2) It must have been rendered by a court having
jurisdiction over the subject matter and the parties;
(3) It must be a judgment on the merits; and
(4) There must be identity of parties, subject matter and
cause of action [Ipekdijan Merchandising v. CTA (1963),
Firestone Ceramics v. CA (1999), DBP v. CA (2001)]
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Effect
Decisions and orders of administrative bodies rendered
pursuant to their quasi-judicial authority have, upon their
finality, the force and effect of a final judgment within the
purview of the doctrine of res judicata, which forbids the
reopening of matters once judicially determined by
competent authorities.
However, Res Judicata does not apply in administrative
adjudication relative to citizenship [Board of
Commissioners v. De la Rosa (1991)]
FACT-FINDING, INVESTIGATIVE, LICENSING AND
RATE-FIXING POWERS
ASCERTAINMENT OF FACT
A statute may give to non-judicial officers:
(1) The power to declare the existence of facts which call
into operation the statute’s provisions and
(2) May grant them and their subordinate officers the
power to ascertain and determine appropriate facts as
a basis of procedure in the enforcement of laws.
(3) Such functions are merely incidental to the exercise of
power granted by law to clear navigable streams of
unauthorized obstructions. They can be conferred upon
executive officials provided the party affected is given
the opportunity to be heard. [Lovina v. Moreno (1963)]
INVESTIGATIVE POWERS
Administrative agencies’ power to conduct investigations
and hearings, and make findings and recommendations
thereon is inherent in their functions as administrative
agencies
Findings of facts by administrative bodies which observed
procedural safeguards (e.g. notice and hearing parties, and
a full consideration of evidence) are accorded the greatest
respect by courts
LICENSING FUNCTION
Lincensing Procedure. – (1) When the grant, renewal,
denial or cancellation of a license is required to be
preceded by notice and hearing, the provisions concerning
contested cases shall apply insofar as practicable.
(2) Except in cases of willful violation of pertinent laws,
rules and regulations or when public security, health, or
safety requires otherwise, no license may be withdrawn,
suspended, revoked or annulled without notice and
hearing. [Sec. 17, 1987 Administrative Code]
Non-expiration of License. – Where the licensee has made
timely and sufficient application for the renewal of a
license with reference to any activity of a continuing nature,
the existing license shall not expire until the application
shall have been finally determined by the agency. [Sec. 18,
1987 Administrative Code]
“License” includes the whole or any part of any agency
permit, certificate, passport, clearance, approval,
registration, charter, membership, statutory exemption or
other form of permission, or regulation of the exercise of a
right or privilege. [Sec. 2(10), 1987 Administrative Code]
“Licensing” includes agency process involving the grant,
renewal, denial, revocation, suspension, annulment,
withdrawal, limitation, amendment, modification or
conditioning or a license. [Sec. 2(11), 1987 Admiistrative
Code]
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When are notice and hearing required in licensing? Only if
it is a contested case. Otherwise, it can be dispensed
with.(e.g. driver’s licenses).
No expiry date does not mean the license is perpetual. A
license permit is a special privilege, a permission or
authority to do what is within its terms. It is always
revocable. [Gonzalo Sy Trading v. Central bank (1976)]
FIXING OF RATES, WAGES, PRICES
“Rate” means any charge to the public for a service open
to all and upon the same terms, including individual or
joint rates, tolls, classification or schedules thereof, as well
as communication, mileage, kilometrage and other special
rates which shall be imposed by law of regulation to be
observed and followed by any person. [Sec. 2(3), 1987
Administrative Code]
Public Participation. – (2) In the fixing of rates, no rule or
final order shall be valid unless the proposed rates shall
have been published in a newspaper of general circulation
at least 2 weeks before the first hearing thereon. [Sec. 9,
1987 Administrative Code]
Generally, the power to fix rates is a quasi-legislative
function. However, it becomes judicial when the rate is
applicable only to an individual.
Can the power to fix rates be delegated to a common
carrier or other public service? NO. The latter may propose
new rates, but these will not be effective without the
approval of the administrative agency. [KMU v. Garcia
(1994)]
What are considered in the fixing of rates?
(1) The present valuation of all the property of a public
utility, and
(2) The fixed assets.
The property is deemed taken and condemned by the
public at the time of filing the petition, and the rate should
go up and down with the physical valuation of the
property. [Ynchausti v. Public Utility Commissioner (1922)]
Judicial Recourse and Review
General Rule: Judicial review may be granted or withheld as
Congress chooses. Thus, a law may provide that the
decision of an administrative agency shall be final and
irreviewable and still not offend due process.
Exception: Judicial Power vests in the Supreme Court the
power to determine whether or not there is grave abuse of
dicretion. [Nachura]
Rule 43 of the Rules of Court provides that the Court of
Appeals shall have appellate jurisdiction over judgments
or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of
its quasi-judicial functions.
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DOCTRINE OF PRIMARY ADMINISTRATIVE
JURISDICTION
General Rule: Courts will not intervene if the question to be
resolved is one which requires the expertise of
administrative agencies and the legislative intent on the
matter is to have uniformity in the rulings.
It can only occur where there is a concurrence of
jurisdiction between the court and the administrative
agency.
It is a question of the court yielding to the agency because
of the latter’s expertise, and does not amount to ouster of
the court. [Texas & Pacific Railway v. Abilene (1907)]
It is the recent jurisprudential trend to apply the doctrine of
primary jurisdiction in many cases that demand the special
competence of administrative agencies. It may occur that
the Court has jurisdiction to take cognizance of a particular
case, which means that the matter involved is also judicial
in character. However, if the determination of the case
requires the expertise, specialized skills and knowledge of
the proper administrative bodies because technical
matters or intricate questions of facts are involved, then
relief must first be obtained in an administrative proceeding
before a remedy will be supplied by the courts even though
the matter is within the proper jurisdiction of a court.
[Industrial Enterprises v. CA (1990)]
Well-entrenched is the rule that courts will not interfere in
matters which are addressed to the sound discretion of the
government agency entrusted with the regulation of
activities coming under the special and technical training
and knowledge of such agency. Administrative agencies are
given a wide latitude in the evaluation of evidence and in the
exercise of their adjudicative functions, latitude which
includes the authority to take judicial notice of facts within
their special competence [Quiambao v. CA (2005)]
The doctrine of primary jurisdiction applies where a claim is
originally cognizable in the courts, and comes into play
whenever enforcement of the claim requires the resolution
of issues which, under a regulatory scheme, have been
placed within the special competence of an administrative
body; in such case, the judicial process is suspended
pending referral of such issues to the administrative body
for its view. And, in such cases, the court cannot arrogate
into itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an
administrative body of special competence. [Sherwill v.
Sitio Sto Nino (2005)]
RATIONALE: In this era of clogged docket courts, the need
for specialized administrative boards with the special
knowledge and capability to hear and determine promptly
disputes on technical matters has become well nigh
indispensable. Between the power lodged in an
administrative body and a court, the unmistakable trend
has been to refer it to the former. [GMA v. ABS CBN (2005)]
REQUISITES:
(1) Administrative body and the regular court have
concurrent and original jurisdiction
(2) Question to be resolved requires expertise of
administrative agency
(3) Legislative intent on the matter is to have uniformity in
rulings
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(4) Administrative agency is performing a quasi-judicial or (9) When it involves the rule-making or quasi-legislative
adjudicatory function (not rule-making or quasi- functions of an administrative agency. [Smart v. NTC
legislative function [Smart v. NTC (2003)] (2003)]
(10) Administrative agency is in estoppel. [Republic v.
Rationale: It is presumed that an administrative agency, if Sandiganbayan (1996)]
afforded an opportunity to pass upon a matter, would (11) Doctrine of qualified political agency
decide the same correctly, or correct any previous error (12) Subject of controversy is private land in land case
committed in its forum [Caballes v Sison (2004)] proceedings. [Paat v. CA (1997)]
(13) Blatant violation of due process. [Paat v. CA (1997);
WHEN THE DOCTRINE IS INAPPLICABLE: Pagara v. CA]
(1) If the agency has exclusive jurisdiction (14) Where there is unreasonable delay or official inaction.
(2) When the issue is not within the competence of the [Republic v. Sandiganbayan (1996)]
administrative body to act on. (15) Administrative action is patently illegal amounting to
(3) When the issue involved is clearly a factual question lack or excess of jurisdiction. [Paat v. CA (1997)]
that does not require specialized skills and knowledge (16) Resort to administrative remedy will amount to a
for resolution to justify the exercise of primary nullification of a claim. [DAR v. Apex Investment (2003);
jurisdiction. Paat v. CA (1997)]
(17) No administrative review provided for by law. [Estrada
EFFECT v. CA (2004)]
The case is not dismissed, but merely suspended until after (18) Issue of non-exhaustion of administrative remedies
the matters within the competence of the administrative rendered moot. [Estrada v. CA (2004)]
agency are threshed out and determined. [Vidad v. RTC (19) In quo warranto proceedings. [Corpus v. Cuaderno
(1993)] (1962)]
(20) Law expressly provides for a different review
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE procedure. [Samahang Magbubukid v. CA (1999)]
REMEDIES
General Rule: Where the law has delineated the procedure EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES:
by which administrative appeal or remedy could be It does not affect jurisdiction of the court.
effected, the same should be followed before recourse to
judicial action can be initiated. [Pascual v. Provincial Board The only effect of non-compliance is it that will deprive
(1959)] complainant of a cause of action, which is a ground for a
motion to dismiss.
REQUISITES:
(1) The administrative agency is performing a quasi-judicial But if not invoked at the proper time, this ground is
function. deemed waived. [Republic v. Sandiganbayan (1996)]
(2) Judicial review is available.
(3) The court acts in its appellate jurisdiction. Doctrine of Primary
Doctrine of Exhaustion of
Administrative
Administrative Remedies
RATIONALE: Jurisdiction
(1) Legal reason: The law prescribes a procedure.
Jurisdiction of Court
(2) Practical reason: To give the agency a chance to correct
its own errors [and prevent unnecessary and premature Concurrent Original
resort to the courts Appellate Jurisdiction with Admin
(3) Reasons of comity: Expedience, courtesy, convenience. Body
Ground for non-exercise of Jurisdiction
EXCEPTIONS TO THE DOCTRINE OF EXHAUSTION OF REMEDIES:
(1) Purely legal questions. [Castro v. Secretary (2001)] The court yields to the
(2) Steps to be taken are merely matters of form. [Pascual jurisdiction of the
Exhaustion of
v. Provincial Board (1959)] Administrative agency
Administrative Remedy a
(3) Administrative remedy not exclusive but merely because of its
condition precedent.
cumulative or concurrent to a judicial remedy. [Pascual specialized knowledge
v. Provincial Board (1959)] or expertise
(4) Validity and urgency of judicial action or intervention. Court Action
[Paat v. CA (1997)]
(5) No other plain, speedy, adequate remedy in the Dismiss Suspend Judicial Action
ordinary course of the law. [Paat v. CA (1997);
Information Technology Found’n v. COMELEC (2004)] DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION
(6) Resort to exhaustion will only be oppressive and No resort to the courts will be allowed unless the
patently unreasonable. [Paat v. CA (1997); Cipriano v. administrative action has been completed and there is
Marcelino (1972)] nothing left to be done in the administrative structure.
(7) Where the administrative remedy is only permissive or
voluntary and not a prerequisite to the institution of The Doctrine of Finality of Administrative Action is a
judicial proceedings. [Corpuz v. Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
(8) Application of the doctrine will only cause great and Exhaustion of Administrative Remedies. It is a prerequisite
irreparable damage which cannot be prevented except for judicial review.
by taking the appropriate court action. [Paat v. CA
(1997); Cipriano v. Marcelino (1972)]

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Suffrage
The right to vote in the election of officers chosen by the
people and in determination of questions submitted to
the people.
SCOPE
Election – the means by which the people choose their
officials for a definite and fixed period and to whom they
entrust for the time being the exercise of the powers of
government.
KINDS OF ELECTION
Regular – one provided by law for the election of officers
either nation-wide or in certain subdivisions thereof, after
the expiration of the full term of the former officers.
Note: The SK election is not a regular election because
the latter is participated in by youth with ages ranging
from 15-21 (now 15-18 as per RA 9164), some of whom are
not qualified voters to elect local or national elective
officials [Paras v. COMELEC (1996)]
Special – one held to fill a vacancy in office before the
expiration of the full term for which the incumbent was
elected.
Plebiscite – election at which any proposed amendment
to, or revision of, the Constitution is submitted to the
people for their ratification. It is also the means by which
the voter in affected areas consent or object to the
change in the form of local government
Referendum – submission of a law passed by the national
or local legislative body to the registered voters at an
election called for the purpose for their ratification or
rejection.
Initiative – the power of the people to propose
amendments to the Constitution or to propose and enact
legislation through an election called for the purpose.
[Sec. 3(a), R.A. 6735, The Initiative and Referendum Act]
3 systems of initiative:
(1) Initiative on the Constitution – petition proposing
amendments to the Constitution.
(2) Initiative on statutes: petition proposing to enact a
national legislation.
(3) Initiative on local legislation: petition proposing to
enact a regional, provincial, city, municipal or
barangay law, resolution or ordinance.
The constitutional provision on people's initiative to
amend the Constitution can only be implemented by law
to be passed by Congress. No such law has been passed.
R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Note:
Section 2 of Art. XVII Constitution is limited to proposals
to AMEND — not to REVISE — the Constitution. [Santiago
v. COMELEC (1997)]
Recall: the termination of official relationship of a local
elective official for loss of confidence prior to the
expiration of his term through the will of the electorate.
ELECTION LAW BAR OPERATIONS COMMISSION
ELECTION PERIOD
Unless otherwise fixed by the COMELEC in special cases,
the election period shall commence 90 days before the
day of the election and shall end 30 days thereafter. [Art.
IX-C, Sec. 9, Const.]
Qualification and
Disqualification of Voters
QUALIFICATIONS
[Art. V, Sec. 1, 1987 Const.]
(1) Citizenship: Filipino citizen by birth or naturalization
Incumbent upon one who claims Philippine
citizenship to prove to the satisfaction of the courth
that he is really Filipino. Any doubt regarding
citizenship must be resolved in favor of the state. [Go
v. Ramos (2009)]
(2) Age: at least 18 at the time of the election
(3) Residency:
(a) Resident of the Philippines for at least 1 year and
(b) Resident of the place wherein they propose to
vote for at least 6 months immediately preceding
the election
Note: Any person who temporarily resides in another
city, municipality or country solely by reason of his:
(1) employment in private or public service
(2) educational activities
(3) work in the military or naval reservations within
the Philippines
(4) service in the AFP, PNP or
(5) confinement or detention in government
institutions in accordance with law shall not be
deemed to have lost his original residence [Sec. 9,
R.A. 8189, Voter’s Registration Act of 1996]
It is not necessary that a person should have a house
in order to establish his residence or domicile in a
municipality. It is enough that he should live there,
provided that his stay is accompanied by his
intention to reside therein permanently. [Marcos v.
COMELEC (1995)]
In election cases, the Court treats domicile and
residence as synonymous terms. Both import not
only an intention to reside in a fixed place but also
personal presence in that place, coupled with
conduct indicative of such intention. [Pundaodaya v.
COMELEC (2009)]
(4) Not otherwise disqualified by law: These are the 3
grounds for disqualification to register as a voter
under Sec. 11, R.A. 8189, Voter’s Registration Act of
1996:
(a) Sentenced by final judgment to suffer
imprisonment for not less than 1 year (unless
granted a plenary pardon or an amnesty) shall
automatically reacquire right to vote upon the
expiration of 5 years after the service of sentence.
(b) Adjudged by final judgment for having committed
any crime involving disloyalty to the duly
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UP COLLEGE OF LAW
constituted government (e.g. rebellion, sedition,
violation of the firearms law) or any crime against
national security (unless restored to full civil and
political rights in accordance with law) shall
automatically reacquire the right to vote upon the
expiration of 5 years after the service of sentence
(c) Insane or incompetent persons as declared by
competent authority
Registered voter: In order that a qualified elector may vote
in any election, plebiscite or referendum, he must be
registered in the Permanent List of Voters for the city or
municipality in which he resides. [Sec. 115, B.P. 881,
Omnibus Election Code]
Note: No literacy, property or other substantive
requirement shall be imposed on the exercise of suffrage.
OVERSEAS ABSENTEE VOTER
(1) Qualifications
(a) All Filipino citizens abroad
(b) Not otherwise disqualified by law
(c) At least 18 years of age on the day of elections
[Sec. 3(f), R.A. 9189]
(2) Disqualifications
(a) have lost their Filipino citizenship in accordance
with Philippine laws
(b) have expressly renounced their Philippine
citizenship and who have pledged allegiance to a
foreign country
(c) have committed and are convicted in a final
judgment by a court or tribunal of an offense
punishable by imprisonment of not less than 1
year, including those who have committed and
been found guilty of Disloyalty as defined under
Article 137 of the RPC
(d) immigrant or a permanent resident who is
recognized as such in the host country unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that:
(i) he/she shall resume actual physical
permanent residence in the Philippines not
later than 3 years from approval of his/her
registration and
(ii) he/she has not applied for citizenship in
another country
Effect of failure to return: cause for the removal of
his/her name from the National Registry of
Absentee Voters and his/her permanent
disqualification to vote in absentia.
(e) Previously declared insane or incompetent by
competent authority in the Philippines or abroad,
as verified by the Philippine embassies,
consulates or foreign eservice establishments
concerned. [Sec. 5, R.A. 9189]
Registration of Voters
DEFINITION
Act of accomplishing and filing of a sworn application for
registration by a qualified voter before the election officer
ELECTION LAW BAR OPERATIONS COMMISSION
of the city or municipality wherein he resides and
including the same in the book of registered voters upon
approval by the Election Registration Board. [Sec. 3(a),
R.A. 8189]
Registration does not confer the right to vote but it is a
condition precedent to the exercise of the right [Yra v.
Abano (1928)]
SYSTEM OF CONTINUING REGISTRATION OF
VOTERS
The personal filing of application of registration of voters
shall be conducted daily in the office of the Election
Officer during regular office hours.
PERIOD OF REGISTRATION
No registration shall be conducted within
(1) 120 days before a regular election
(2) 90 days before a special election [Sec. 8, R.A. 8189]
COMELEC Resolution 8585 which set the deadline for
voter registration to Oct. 31, 2009 (election was May 10,
2010 – more than 120 days) was declared null and void
because Sec. 8 of RA 8189 has determined that the
period of 120 days before a regular election and 90 days
before a special election is enough time for the COMELEC
to make ALL the necessary preparations with respect to
the coming elections. COMELEC is granted the power to
fix other periods and dates for pre-election activities only
if the same cannot be reasonably held within the period
provided by law. There is no ground to hold that the
mandate of continuing voter registration cannot be
reasonably held within the period provided by Sec. 8 of
R.A. 8189. [Palatino v. COMELEC (2009)]
Akbayan-Youth vs. COMELEC (2001)
Petitioners filed their petition with the Court and sought
the conduct of a two-day registration all within the 120-
day prohibitive period. In this case, both the dates of filing
of the petition and the extension sought are prior to the
120-day prohibitive period.
ILLITERATE OR DISABLED VOTERS
Illiterate person - may register with the assistance of the
Election Officer or any member of an accredited citizen’s
arms
Physically disabled person – application for registration
may be prepared by:
(1) any relative within the 4th civil degree of
consanguinity or affinity or
(2) by the Election Officer or
(3) any member of an accredited citizen’s arm [Sec. 14,
R.A. 8189]
Disabled Voter – a person with impared capacity to use
the Automated Election System (AES) [Sec. 2(11), RA 9369
The Poll Automation Law]
ELECTION REGISTRATION BOARD
There shall be in each city and municipality as many
Election Registration Boards as there are election officers
therein [Sec. 15, RA 8189]
COMPOSITION
(1) Chairman: Election Officer
If disqualified, COMELEC shall designate an acting
Election Officer
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UP COLLEGE OF LAW
(2) Members:
(a) Public school official most senior in rank
(b) Local civil registrar, or in his absence, the city or
municipal treasurer. If neither are available, any
other appointive civil service official from the
same locality as designated by the COMELEC.
Disqualification: relation to each other or to any
th
incumbent city or municipal elective official within the 4
civil degree of consanguinity or affinity. [Sec. 15, RA 8189]
CHANGE OF RESIDENCE OR ADDRESS
CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY
The registered voter may apply with the Election Officer
of his new residence for the transfer of his registration
records. [Sec. 12, RA 8189]
CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY
Voter shall immediately notify the Election Officer in
writing. [Sec. 13, RA 8189]
CHALLENGES TO RIGHT TO REGISTER
WHO MAY CHALLENGE APPLICATION FOR REGISTRATION
Any voter, candidate or representative of a registered
political party.
FORM
(1) In writing
(2) State the grounds therefor
(3) Under oath and
(4) Attached to the application, together with the proof
of notice of hearing to the challenger and the
applicant
WHEN FILED
nd
Must be filed not later than the 2 Monday of the month
in which the same is scheduled to be heard or processed
by the ERB [Sec. 18, RA 8189]
HEARING
rd
3 Monday of the month
DECISION
Before the end of the month
DEACTIVATION OF REGISTRATION
Deactivation – process of deactivating the registration of
certain persons, removing their registration records from
the corresponding precinct book of voters and placing the
same in the inactive file, properly marked “deactivated”
and dated in indelible ink.
CAUSES OF DEACTIVATION
The board shall remove the registration records of the
following persons from the corresponding precinct book
of voters and place the same in the inactive file:
(1) Sentenced by final judgment to suffer imprisonment
for not less than 1 year (unless granted a plenary
pardon or an amnesty) shall automatically reacquire
right to vote upon the expiration of 5 years after the
service of sentence as certified by clerks of courts
(2) Adjudged by final judgment for having committed
any crime involving disloyalty to the duly constituted
government (e.g. rebellion, sedition, violation of the
firearms law) or any crime against national security
(unless restored to full civil and political rights in
accordance with law) shall automatically reacquire
ELECTION LAW BAR OPERATIONS COMMISSION
the right to vote upon the expiration of 5 years after
the service of sentence
(3) Insane or incompetent persons as declared by
competent authority
(4) Did not vote in the 2 successive preceding regular
elections (excluding SK elections)
(5) Registration has been ordered excluded by the Court
and
(6) Lost his Filipino citizenship. [Sec. 27, RA 8189]
REACTIVATION OF REGISTRATION
Any voter whose registration has been deactivated may
file with the Election Officer a sworn application for
reactivation of his registration in the form of an affidavit
stating that the grounds for the deactivation no longer
exist.
When: Any time not later than 120 days before a regular
election and 90 days before a special election. [Sec. 28,
RA 8189]
Election Officer shall submit said application to the ERB
and if approved, the Election Officer shall retrieve the
registration record from the inactive file and include the
same in the corresponding precinct book of voters
Local heads or representatives of political parties shall be
properly notified on approved applications
CERTIFIED LIST OF VOTERS
List of Voters – refers to an enumeration of names of
registered voters in a precinct duly certified by the
Election Registration Board for use in the Election
Preparation - The ERB shall prepare and post a certified
list of voters 90 before a regular election and 60 days
before a special election. [Sec. 30, RA 8189]
Posting – copies of the certified list along with a certified
list of deactivated voters categorized by precinct per
barangay, within the same period shall be posted in the
office of the Election Officer and in the bulletin board of
each city/municipal hall. Upon payment of the fees as
fixed by the Commission, the candidates and heads shall
also be furnished copes thereof [Sec. 30, RA 8189]
GROUNDS WHEN LIST OF VOTERS WILL BE ALTERED
(1) Deactivation/Reactivation
(2) Exclusion/Inclusion
(3) Cancellation of Registration in case of death
(4) New voters
(5) Annulment of Book of Voters
(6) Transfer of Residence
ANNULMENT OF BOOK OF VOTERS
The COMELEC shall, upon verified petition of any voter or
election officer or duly registered political party, and after
notice and hearing, annul any book of voters that is:
(1) not prepared in accordance with R.A. 8189 or the
Voters’ Registration Act of 1996
(2) prepared through fraud, bribery, forgery,
impersonation, intimidation, force, or any similar
irregularity
(3) contains data that are statistically improbable
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Petition for Inclusion Petition for Exclusion

No order, ruling or decision annulling a book of voters
shall be executed within 90 days before an election. [Sec. When to File
39, RA 8189]
Any time except 105 days Any time except 100 days
OVERSEAS ABSENTEE VOTER before a regular election or before a regular election or
DEFINITIONS 75 days before a special 65 days before a special
Absentee Voting: process by which qualified citizens of the election election
Philippines abroad exercise their right to vote. [Sec. 3(a), Who may file
RA 9189, The Overseas Absentee Voting Act]
(1) one whose application (1) one whose application for
Overseas Absentee Voter: citizen of the Philippines who is for registration has registration has been
qualified to register and vote under this Act, not been disapproved by disapproved by the BEI
otherwise disqualified by law, who is abroad on the day of the BEI or or
elections. [Sec. 3(f), RA 9189] (2) one whose name has (2) one whose name has
been stricken out from been stricken out from
COVERAGE the list the list
Elections for president, vice-president, senators and Period to decide
party-list representatives [Sec. 3(f), RA 9189]
Within 15 days after its Within 10 days from its filing
PERSONAL OVERSEAS ABSENTEE REGISTRATION filing
Registration as an overseas absentee voter shall be done
in person. [Sec. 5, RA 9189] OVERSEAS ABSENTEE VOTER
Petition for Inclusion Petition for Exclusion
NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS [Sec. 6.6, RA 9189] [Sec. 6.7, RA 9189]
Definition
The consolidated list prepared, approved and maintained When to file
by the COMELEC, of overseas absentee voters whose 5 days after receipt of Any time not later than 210
applications for registration as absentee voters, including notice of disapproval days before the day of the
those registered voters who have applied to be certified elections
as absentee voters, have been approved by the Election
Who may file
Registered Board. [Sec. 3(e), RA 9189]
Applicant or his authorized Any interested person
Grounds for cancellation/amendment of entries therein: representative
(1) When the overseas absentee voter files a letter under
Period to decide
oath addressed to the Comelec that he/she wishes to
be removed from the Registry of Overseas Absentee 5 days after its filing 15 days after its filing
Voters, or that his/her name be transferred to the
regular registry of voters.

(2) When an overseas absentee voter’s name was

ordered removed by the Comelec from the Registry of Political Parties
Overseas Absentee Voters for his/her failure to
exercise his/her right to vote under R.A. 9189 for 2 PARTY SYSTEM
consecutive national elections. [Sec. 9, RA 9189] A free and open party system shall be allowed to evolve
according to the free choice of the people. [Art. IX-C, Sec.
6, Const.]

Inclusion and Exclusion No votes cast in favor of a political party, organization,

coalition shall be valid, except for those registered under
Proceedings the party-list system. [Art. IX-C, Sec. 7, Const.]

JURISDICTION OF THE COMELEC OVER POLITICAL

JURISDICTION IN INCLUSION AND EXCLUSION CASE
The Municipal and Metropolitan Trial Courts shall have
original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters in their respective cities
or municipalities. [Sec. 33, RA 8189]
APPEAL
Decisions of the MTC or MeTC may be appealed by the
aggrieved party to the RTC within 5 days from receipt of
notice thereof. No motion for reconsideration shall be
entertained. [Sec. 33, RA 8189]
PARTIES
PARTY
Either a political party or a sectoral party or acoalition of
parties [Sec. 3(b), RA 7941, Party-List System Act]
PARTY-LIST SYSTEM
Mechanism of proportional representation in the election
of representatives to the House of Representatives from
national, regional and sectoral parties or organizations or
coalitions registered with the COMELEC. [Sec. 3(a), RA
7941]

POLITICAL PARTY
An organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct

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UP COLLEGE OF LAW
of government and which, as the most immediate means
of securing their adoption, regularly nominates certain of
its leaders and members as candidates for public office.
[Sec. 60, BP 881 and Sec. 3(c) of RA 7941]
3 KINDS OF PARTIES:
(1) National party - constituency is spread over the
geographical territory of at least a majority of the
regions.
(2) Regional party - constituency is spread over the
geographical territory of at least a majority of the
cities and provinces comprising the region.
(3) Sectoral party – organized group of citizens belonging
to any of the following sectors: labor, peasant,
fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers and professionals whose
principal advocacy pertains to the special interests
and concerns of their sector.
Sectoral organization: group of citizens or a coalition of
groups of citizens who share similar physical attributes or
characteristics, employment, interests or concerns.
Coalition: an aggrupation of duly registered national,
regional, sectoral parties or organizations for political
and/or election purposes. [Sec. 3, R.A. 7941, Party-List
System Act]
PURPOSE
To enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and
who lack well-defined political constituencies but who
could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole, to become members of the House of
Representatives. [Sec. 2, R.A. 7941]
REGISTRATION
Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list
sytem.
PROCEDURE FOR REGISTRATION
File with the COMELEC not later than 90 days before
the election a petition verified by its president or
secretary stating its desire to participate in the party-
list system as a national, regional or sectoral party or
organization or a coalition of such parties or
organizations attaching thereto its constitution, by-
laws, platform or program of government, list of
officers, coalition agreement and other relevant
information as the COMELEC may require
COMELEC shall publish the petition in at least 2
national newspapers of general circulation
COMELEC shall, after due notice and hearing, resolve
the petition within 15 days from the date it was
submitted for decision but in no case not later than 60
days before election [Sec. 5, R.A. 7941]
ELECTION LAW BAR OPERATIONS COMMISSION
GROUPS WHICH CANNOT BE REGISTERED AS POLITICAL PARTIES
(1) Religious denominations and sects
(2) Those which seek to achieve their goals through
violence or unlawful means
(3) Those which refuse to uphold and adhere to the
Constitution
(4) Those supported by foreign governments [Art. IX-C,
Sec. 2 (5), Constitution]
PURPOSE OF REGISTRATION
(1) To acquire juridical personality
(2) To entitle it to rights and privileges granted to
political parties
(3) To participate in the party-list system
GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION
The COMELEC may, motu propio or upon verified
complaint of any interested party, refuse or cancel, after
due notice and hearing, the registration of any national,
regional or sectoral party, organization or coalition on any
of the following grounds:
(1) Religious sect or denomination, organization or
association, organized for religious purposes
(2) Advocates violence or unlawful means to seek its goal
(3) Foreign party or organization
(4) Receives support from any foreign government,
foreign political party, foundation, organization,
whether directly or through any of its officers or
members or indirectly through third parties for
partisan election purposes
(5) Violates or fails to comply with laws, rules or
regulations relating to elections
(6) Declares untruthful statements in its petition
(7) Ceased to exist for at least 1 year
(8) Fails to participate in the last 2 preceding elections or
(9) Fails to obtain at least 2% of the votes cast under the
party-list system in the 2 preceding elections for the
constituency in which it has registered [Sec. 6, RA
7941]
CERTIFIED LIST OF REGISTERED PARTIES
COMELEC shall prepare a certified list of national,
regional, or sectoral parties, organizations or coalitions
which have applied or who have manifested their desire
to participate under the party-list system
Must prepare the list not later than 60 days before
election.
Names of party-list nominees shall not be shown on the
certified list [Sec. 7, RA 7941]
NOMINATION OF PARTY -LIST REPRESENTATIVES
Each registered party, organization or coalition shall
submit to the COMELEC not later than 45 days before the
election a list of names, not less than 5, from which party-
list representatives shall be chose in case it obtains the
required number of votes.
A person may be nominated:
(1) in 1 list only
(2) if he/she has given their consent in writing
(3) is not a candidate for any elective office or
(4) has not lost his bid for an elective office in the
immediately preceding election
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No change of names or alteration shall be allowed after There are 2 steps in the second round of seat allocation:
the same shall have been submitted to the COMELEC (1) The percentage of votes garnered by each party-list
except when: candidate is multiplied by the remaining available
(1) the nominee dies seats. The whole integer of the product corresponds
(2) withdraws his nomination to a party’s share in the remaining available seats
(3) becomes incapacitated
Formula for remaining available seats =
Incumbent sectoral representatives in the House of No. of seats available to party- x Guaranteed seats
Representatives who are nominated shall not be list representatives of the two-
considered resigned [Sec. 8, RA 7941] percenters

QUALIFICATIONS OF PARTY LIST REPRESENTATIVES Formula for percentage of votes garnered by each party-list
(1) Natural-born citizen of the Philippines candidate =
(2) Registered voter
(3) Resident of the Philippines for a period of not less
No. of votes garnered by each
party ÷ Total no. of votes
cast for party-list
than 1 year immediately preceding the day of the candidates
election
(4) Able to read and write (2) Assign one party-list seat to each of the parties next
(5) Bona fide member of the party or organization which in rank until all available seats are completely
he seeks to represent for at least 90 days preceding distributed.
the day of the election
(6) at least 25 years old on the day of the election BOC’s Note: Atong Paglaum v. COMELEC, G.R. No.
203766, April 3, 2013 is beyond the 2013 Bar Coverage
PARAMETERS IN ALLOCATION OF SEATS FOR cut-off date, but the decision reversed and significantly
PARTY-LIST REPRESENTATIVES modified previous Court rulings on the party-list system.
20% ALLOCATION
The combined number of all party-list congressmen shall EFFECT OF CHANGE OF AFFILIATION
not exceed 20% of the total membership of the House of Any elected party-list representative who changes his
Representatives, including those elected under the party- political party or sectoral affiliation:
list. (1) during his term of office shall forfeit his seat
(2) within 6 months before an election shall not be
Number available to x 20 = Number of seats eligible for nomination as party-list representative
party-list available to under his new party or organization [Sec. 15, R.A.
representatives actually party-list 7941]
obtained, is entitled to a representatives
maximum of 3 seats;
one qualifying and of
seats available to
legislative districts Candidacy
.80
QUALIFICATIONS OF CANDIDATES
2% THRESHOLD CANDIDATE, DEFINITION
Only those parties garnering a minimum of 2% of the Any person who files his certificate of candidacy within
total votes cast for the party-list system shall be entitled prescribed period shall only be considered as a candidate
to one guaranteed seat each. at the start of the campaign period for which he filed his
certificate of candidacy. [Sec. 15, R.A. 9369, Poll
PROPORTIONAL REPRESENTATION Automation Law]
The additional seats shall be computed in “proportion to
their total number of votes”. Unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid
3-SEAT LIMIT campaign period. [Sec. 15, R.A. 9369]
Each party, regardless of the number of votes it actually
obtained, is entitled to a maximum of 3 seats; one Any registered national, regional, or sectoral party,
qualifying and 2 additional seats. organization or coalition thereof that has filed a
manifestation to participate under the party-list system
Banat vs. Comelec GR No. 179271, July 8. 2009 which has not withdrawn or which has not been
Held: In computing the allocation of additional seats, the disqualified before the start of the campaign period.
continued operation of the 2% threshold for the [Comelec Res. 8758, Feb. 4, 2010]
distribution of the additional seats as found in the second
clause of Sec. 11(b) of R.A. 7941 which provides that QUALIFICATIONS
“those garnering more than 2% of the votes shall be Qualifications prescribed by law are continuing
entitled to additional seats in proportion to their total requirements and must be possessed for the duration of
number of votes” is unconstitutional. The 2% threshold the officer's active tenure [Frivaldo v. COMELEC (1989);
frustrates the attainment of the permissive ceiling that Labo v. COMELEC (1989)].
20% of the members of the HR shall consist of party-list
representatives.

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Requirements Pres/VP Senator District Rep Gov/ Vice Gov/ Mayor/ Vice
Mayor/ P.Brgy/Sanggunian
Member
Citizenship Natural -born Natural -born Natural -born Citizen of the Philippines
Registered Voter ✔ ✔ ✔ ✔
Read and Write ✔ ✔ ✔ ✔
Age At least 40 on At least 35 on election At least 25 on election On election day:
election day day day 23 – gov., vice gov., member of
sangguniang panlalawigan,
mayor, vice mayor, member of
the sangguniang panlungsod of
HUC

21 – mayor or vice mayor of ICC,

CC or municipalities

18 – member of the
sangguniang panlungsod, or
bayan or punong baranggay or
member of the sangguniang
baranggay

15 but not more than 18 - SK

Residence 10 yrs immediately 2 yrs immediately Resident of the same 1 yr immediately preceding the
preceding the election preceding the election district for a period of election
day not less than 1 yr
immediately preceding
the election

DISQUALIFICATIONS campaign or vote for or against any candidate or

Under the Omnibus Election Code
(1) Declared incompetent or insane by competent
authority (Sec. 12)
(2) Permanent resident of or an immigrant to a foreign
country unless he has waived such status (Sec. 68)
(3) Sentenced by final judgment for:
(a) Subversion, insurrection, rebellion
(b) Any offense for which he has been sentenced to a
penalty of more than 18 months imprisonment
(c) A crime involving moral turpitude (Sec. 12)
(4) Given money or other material consideration to
influence, induce or corrupt voters or public officials
performing electoral functions (Sec. 68)
(5) Committed acts of terrorism to enhance his candidacy
(Sec. 68)
(6) Spent in his election campaign an amount in excess of
that allowed (Sec. 68)
(7) Solicited, received or made prohibited contributions
(Sec. 68)
(8) Engaged in election campaign or partisan political
activity outside the campaign period and not pursuant
to a political party nomination (Sec. 80)
(9) Removed, destroyed, defaced lawful election
propaganda (Sec. 83)
(10) Engaged in prohibited forms of election propaganda
(Sec. 85)
(11) Violated election rules and regulations on election
propaganda through mass media (Sec. 86)
(12) Coerced, intimidated, compelled, or influenced any of
his subordinates, members, or employees to aid,
aspirant for the nomination or selection of candidates
(Sec. 261.d)
(13) Threatened, intimidated, caused, inflicted or produced
any violence, injury, punishment, damage, loss or
disadvantage upon any person or of the immediate
members of his family, his honor or property, or used
fraud to compel, induce or prevent the registration of
any voter, or the participation in any campaign, or the
casting of any vote, or any promise of such registration,
campaign, vote, or omission therefrom (Sec. 261.e)
(14) Unlawful electioneering (Sec. 261.k)
(15) Violated the prohibition against release, disbursement
or expenditure of public funds 45 days before a regular
election or 30 days before a special election (Sec. 261.v)
(16) Solicited votes or undertook propaganda on election
day for or against any candidate or any political party
within the polling place or within a 30m radius (Sec.
261.cc.6)
Under Section 40 of the LGC
(1) Sentenced by final judgment for an offense punishable
by at least 1 year imprisonment within 2 years after
serving sentence
(2) Removed from office as a result of an administrative
case
(3) Convicted by final judgment for violating the oath of
allegiance to the Republic of the Philippines
(4) Dual citizenship
Dual citizenship as a disqualification must refer to
citizens with dual allegiance. [Mercado v. Manzano,

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(1999)]
Under R.A. 9225 Citizenship Retention and Re-
acquisition Act of 2003, a Filipino who becomes a
naturalized citizen of another country is allowed to
retain his Filipino citizenship by swearing to the
supreme authority of the Republic of the Philippines.
The act of taking an oath of allegiance is an implicit
renunciation of a naturalized citizen’s foreign
citizenship.
Dual citizenship is not a ground for disqualification
from running for elective position. Like any other
natural-born Filipino, it is enough for a person with
dual citizenship who seeks public office to (1) file his
certificate of candidacy and (2) swear to the Oath of
Allegiance contained therein. [Cordora vs. COMELEC,
(2009)]
With respect to a person with dual allegiance, the Court
held that candidate’s oath of allegiance to the Republic
of the Philippines and his Certificate of Candidacy do
not substantially comply with the requirement of a
personal and sworn renunciation of foreign
citizenship. Section 5(2) of R.A. No.
9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who
reacquired or retained their Philippine citizenship (1) to
take the oath of allegiance under Section 3 of Republic
Act No. 9225, and (2) for those seeking elective public
offices in the Philippines, to additionally execute
a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer
prior or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine
elections. [Jacot vs. Dal, (2008)]
(5) Fugitive from justice in criminal and non-political cases
here and abroad
(6) Insane or feeble-minded
FILING OF CERTIFICATES OF CANDIDACY
No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the
period fixed herein. [Sec. 73, B.P. 881]
The certificate of candidacy shall be filed by the candidate
personally or by his duly authorized representative.
When: any day from the commencement of the election
period but not later than the day before the beginning of
the campaign period.
In cases of postponement or failure of election, no
additional certificate of candidacy shall be accepted except
in cases of substitution of candidates. [Sec. 75, B.P. 881]
Filing of 2 certificates of candidacy:
(1) No person shall be eligible for more than one office to
be filled in the same election.
(2) If he files a certificate of candidacy for more than one
office he shall not be eligible for either.
(3) Before the expiration of the period for the filing of
certificates of candidacy, the person who has filed
more than one certificate of candidacy, may -
(a) declare under oath the office for which he desires to
be eligible and
ELECTION LAW BAR OPERATIONS COMMISSION
(b) cancel the certificate of candidacy for the other
office/s [Sec. 73, B.P. 881]
EFFECT OF FILING
(1) Any person holding a public appointive office or
position including active members of the AFP, and
other officers and employees in GOCCs, shall be
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy. [Sec. 66(1), B.P.
881]
- Applies to employees of GOCCs without an original
charter [PNOC Energy Devt. Corp. v. NLRC (1993)]
(2) Any person holding an elective office or position shall
not be considered resigned upon the filing of his
certificate of candidacy for the same or any other
elective office or position. [Sec. 4, Comelec Resolution
No. 8678, Guidelines on the Filing of Certificates of
Candidacy and Nomination of Official Candidates of
Registered Political Parties in Connection with the May
10, 2010 National and Local Elections] – SC upheld the
validity of the COMELEC Resolution in Quinto v.
COMELEC
Note: Sec. 67 B.P. 811 which deemed elective officials
automatically resigned from office upon filing of their
certificate of candidacy was repealed by Sec. 14 R.A
9006, Fair Election Act. This means that such elective
official is no longer deemed resigned when he files his
CoC for any position
(3) Filing of 2 CoCs – when a person files 2 CoCs for
different offices, he becomes ineligible for either
position [Sec. 73, BP 881]
- He may withdraw one of his certificates by filing a
sworn declaration with the Commission before the
deadline for the filing of CoCs
SUBSTITUTION OF CANDIDATES
If after the last day for filing of the certificates of candidacy,
an official candidate of a registered political party dies,
withdraws or is disqualified for any cause:
(1) He may be substituted by a candidate belonging to
and nominated by the same political party.
(2) No substitute shall be allowed for any independent
candidate. [Recabo, Jr. v. COMELEC (1999)]
(3) The substitute must file his certificate of candidacy not
later than mid-day of the election day
If the death, withdrawal or disqualification should happen
between the day before the election and mid-day of the
election day, certificate may be filed with:
(1) any Board of Election Inspectors in the political
subdivision where he is a candidate or
(2) with the COMELEC if it is a national position [Sec. 77,
B.P. 881]
MINISTERIAL DUTY OF COMELEC TO RECEIVE CERTIFICATE
Duty of COMELEC [Sec. 76, B.P. 881]
General Rule: The COMELEC shall have the ministerial duty
to receive and acknowledge receipt of the certificates of
candidacy provided said certificates are: under oath and
contain all the required data and in the form prescribed by
the Commission.
Exception: COMELEC may go beyond the face of the
certificate of candidacy –
(1) Nuisance candidates
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UP COLLEGE OF LAW
(2) Petition to deny due course or to cancel a certificate of
candidacy
The COMELEC has no discretion to give or not to give
due course to a certificate of candidacy filed in due
form. While the COMELEC may look into patent
defects in the certificate, it may not go into matters not
appearing on their face. [Abcede v. Imperial, (1958)]
NUSIANCE CANDIDATES
Petition to declare a duly registered candidate as a
nuisance candidate [Sec. 5, RA 6646, The Electoral Reforms
Law of 1987]
Who may file: any registered candidate for the same office
When: within 5 days from the last day for the filing of
certificates of candidacy
How: personally or through duly authorized representative
with the COMELEC
Grounds: certificate of candidacy has been filed -
(1) To put the election process in mockery or disrepute or
(2) To cause confusion among the voters by the similarity
of the names of the registered candidates or
(3) Clearly demonstrate that the candidate has no bona
fide intention to run for the office for which the
certificate of candidacy has been filed and thus prevent
a faithful determination of the true will of the
electorate [Sec. 69, B.P. 881]
Proceeding: summary in nature
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY
Who may file: Any person
When: Any time not later than 25 days from the time of the
filing of the certificate of candidacy
Exclusive ground: any material representation contained in
the certificate of candidacy is false. Provided that
(1) the false representation pertains to material matter
affecting substantive rights of a candidate and
(2) the false representation must consist of deliberate
attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible [Salcedo
II v. COMELEC (1999)]
Decision: Shall be decided, after due notice and hearing,
not later than 15 days before the election. [Sec. 78, BP 881]
The false representation must pertain to a material fact
that affects the right of the candidate to run for the
election for which he filed his COC. Such material fact
refers to a candidate’s eligibility or qualification for elective
office like citizenship, residence or status as a registered
voter. Aside from the requirement of materiality, the false
representation must consist of a deliberate attempt to
mislead, misinform, or hide a fact that would otherwise
render a candidate ineligible. In other words, it must be
made with the intention to deceive the electorate as to the
would-be candidate’s qualifications for public office. [Salic
Maruhom v. COMELEC (2009)]
Jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC in division and not with
the COMELEC en banc [Garvida v. Sales (1997)]
ELECTION LAW BAR OPERATIONS COMMISSION
EFFECT OF DISQUALIFICATION
Procedure
(1) Who may file: Any citizen of voting age, or any duly
registered political party, organization or coalition of
political parties
(2) Where: Law Department of the COMELEC
(3) When: Any day after the last day for filing of certificates
of candidacy, but not later than the date of
proclamation
(4) Grounds: Sec. 68 of BP 881. All other election offenses
are beyond the ambit of the COMELEC jurisdiction
[Codilla v. COMELEC (2004)]
Effect (asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for
him shall not be counted. The fact that the candidate who
obtained the highest number of votes is later declared to
be disqualified or not eligible for the office to which he was
elected, does not necessarily entitle the candidate who
obtained the second highest number of votes to be
declared the winner of the elective office.
A possible exception is predicated on the concurrence of
two assumptions, namely: (1) the one who obtained the
highest number of votes is disqualified; and (2) the
electorate is fully aware in fact and in law of a candidate’s
disqualification so as to bring such awareness within the
realm of notoriety but would nonetheless cast their votes
in favor of the ineligible candidate [Grego v. COMELEC
(1997)]
Any candidate who has been declared by final judgment to
be disqualified –
(1) shall not be voted for and
(2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and
receives the winning number of votes in such election
The Court or COMELEC shall continue with the trial and
hearing of the action, inquiry, or protest and
Upon motion of the complainant or any intervenor, may
during the pendency thereof, order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
Law of 1987]
Where a similar complaint/petition is filed:
(1) before the election and proclamation of the
respondent and the case is not resolved before the
election - the trial and hearing of the case shall
continue and referred to the Law Department for
preliminary investigation
(2) after the election and before the proclamation of the
respondent - the trial and hearing of the case shall be
suspended and referred to the Law Department for
preliminary investigation
Note: In either case, if the evidence of guilt is strong, the
COMELEC may order the suspension of the proclamation
of respondent, and if proclaimed, to suspend the effects of
proclamation. [Sec. 4, Resolution No. 8678]
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WITHDRAWAL OF CANDIDATES
A person who has filed a certificate of candidacy may, prior
to the election, withdraw the same by submitting to the
office concerned a written declaration under oath.
Effect of filing or withdrawal of a certificate of candidacy:
shall not affect whatever civil, criminal or administrative
liabilities which a candidate may have incurred. [Sec. 73, BP
881]
Campaign
PREMATURE CAMPAIGNING
General Rule: Any election campaign or partisan political
activity for or against any candidate outside of the
campaign period is prohibited and shall be considered as
an election offense. [Sec. 80, BP 881]
Exception: Political parties may hold political conventions
to nominate their official candidates within 30 days before
the start of the period for filing a certificate of candidacy.
[Sec. 15, RA 9369, Poll Automation Law]
PROHIBITED CAMPAIGNING DAYS
It is unlawful for any person to engage in an election
campaign or partisan political activity on:
(1) Maundy Thursday
(2) Good Friday
(3) eve of Election Day and
(4) Election Day [Sec. 3, COMELEC Resolution 8758]
At the time the supposed premature campaigning took
place, Penera was not officially a “candidate” albeit she
already filed her certificate of candidacy. Under Section 15
of RA 9369, a person who files his certificate of candidacy
is considered a candidate only at the start of the campaign
period, and unlawful acts applicable to such candidate
take effect only at the start of such campaign period. Thus,
a candidate is liable for an election offense only for acts
done during the campaign period, not before. Before the
start of the campaign period, such election offenses cannot
be committed and any partisan political activity is lawful.
[Penera v. COMELEC (2009)]
ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY
An act designed to promote the election or defeat of a
particular candidate or candidates to a public office. [Sec.
79, B.P. 881]
It includes:
(1) forming organizations or groups of persons
(2) holding political causcuses, meetings, rallies or other
similar assemblies
(3) making speeches or commentaries
(4) publishing or distributing campaign literature or
materials for the purpose of soliciting votes and/or
undertaking any campaign or propaganda to support
or oppose the election of any candidate
Exclusions:
(1) Acts performed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a
public office by a political party, aggroupment, or
coalition of parties.
ELECTION LAW BAR OPERATIONS COMMISSION
(2) Public expressions of opinions or discussions of
probable issues in a forthcoming election or on
attributes or criticisms of probable candidates
proposed to be nominated in a forthcoming political
party convention. [Sec. 79, BP 881]
Persons Prohibited from Campaigning:
(1) Members of the board of election inspections [Sec. 173,
BP 881]
(2) Civil service officers or employees [Art. IX-B, Sec. 2 (4),
Const.]
(3) Members of the military [Art. XVI, Sec. 5 (3), Const.]
(4) Foreigners, whether juridical or natural persons.
CAMPAIGN PERIOD
For President, Vice-President and Senators
90 days before the day of the election.
For Members of the HR and elective provincial, city and
municipal officials
45 days before the day of the election. [Sec. 5, RA 7166]
EQUAL ACCESS TO MEDIA TIME AND SPACE
Print advertisements shall not exceed 1/4 page, in broad
sheet and 1/2 page in tabloids thrice a week per
newspaper, magazine or other publications.
Bona fide candidates and registered political parties
running for nationally elective office are entitled to not
more than 120 mins of TV advertisement and 180 mins of
radio advertisement whether by purchase or by donation.
Bona fide candidates and registered political parties
running for locally elective office are entitled to not more
than 60 mins of TV advertisement and 90 mins of radio
advertisement whether by purchase or by donation.
Broadcast stations or entities are required to submit copies
of their broadcast logs and certificates of performance to
the COMELEC for the review and verification of the
frequency, date, time and duration of advertisement
broadcast for any candidate or political party.
All mass media entities are required to furnish the
COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the candidacy
of any person for public office within 5 days after its
signing.
No franchise or permit to operate a radio or TV station
shall be granted or issued, suspended or cancelled during
the election period.
Any mass media columnist, commentator, announcer,
reporter, on-air correspondent or personality who is a
candidate for any elective public office or is a campaign
volunteer for or employed or retained in any capacity by
any candidate or political party shall:
(1) be deemed resigned, if so required by their employer or
(2) take a leave of absence from his/her work as such
during the campaign period
No movie, cinematograph or documentary shall be publicly
exhibited in a theater, television station or any public
forum during the campaign period which:
(1) portrays the life or biography of a candidate
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UP COLLEGE OF LAW
(2) is portrayed by an actor or media personality who is
himself a candidate. [Sec. 6, RA 9006]
ELECTION SURVEYS
The measurement of opinions and perceptions of the
voters as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to the
election, including voters' preference for candidates or
publicly discussed issues during the campaign period.
Surveys affecting national candidates shall not be
published 15 days before an election and surveys affecting
local candidates shall not be published 7 days before an
election.
Exit polls may only be taken subject to the following
requirements:
(1) Pollsters shall not conduct their surveys within 50m
from the polling place, whether said survey is taken in
a home, dwelling place and other places
(2) Pollsters shall wear distinctive clothing
(3) Pollsters shall inform the voters that they may refuse
to answer and
(4) The result of the exit polls may be announced after the
closing of the polls on election day and must clearly
identify the total number of respondents, and the
places where they were taken. Said announcement
shall state that the same is unofficial and does not
represent a trend. [Sec. 5, RA 9006]
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL
ACTIVITY
(1) All applications for permits must immediately be
posted in a conspicuous place in the city or municipal
building, and the receipt thereof acknowledged in
writing.
(2) Applications must be acted upon in writing by local
authorities concerned within 3 days after their filing. If
not acted upon within said period, deemed approved.
(3) The only justifiable ground for denial of the application
is when a prior written application by any candidate or
political party for the same purpose has been
approved.
(4) Denial of any application for said permit is appealable
to the provincial election supervisor or to the
COMELEC whose decision shall be made within 48
hours and which shall be final and executory. [Sec. 87,
BP 881]
PROHIBITED CONTRIBUTIONS
DEFINITIONS
Contribution: gift, donation, subscription, loan, advance or
deposit of money or anything of value, or a contract,
promise or agreement to contribute
(1) WON legally enforceable
(2) made for influencing the results of the elections
(3) excludes services rendered without compensation by
individuals volunteering their time in behalf of a
candidate or political party
(4) includes the use of facilities voluntarily donated by
other persons, the money value of which can be
assessed based on the rates prevailing in the area.
[Sec. 94, BP 881]
Expenditures: payment of money or anything of value or a
contract, promise or agreement to make an expenditure
(1) for the purpose of influencing the results of the
election
ELECTION LAW BAR OPERATIONS COMMISSION
(2) includes the use of facilities personally owned by the
candidate, the money value of the use of which can be
assessed based on the rates prevailing in the area.
[Sec. 94, BP 881]
PROHIBITED CONTRIBUTIONS
(1) From Public or private financial institutions. Unless:
(a) the financial institutions are legally in the business
of lending money
(b) the loan is made in accordance with laws and
regulations AND
(c) the loan is made in the ordinary course of business
(2) Natural and juridical persons operating a public utility
or in possession of or exploiting any natural resources
of the nation
(3) Natural and juridical persons who hold contracts or
sub-contracts to supply the government or any of its
divisions, subdivisions or instrumentalities, with goods
or services or to perform construction or other works
(4) Grantees of franchises, incentives, exemptions,
allocations or similar privileges or concessions by the
government or any of its divisions, subdivisions or
instrumentalities, including GOCCs
(5) Grantees, within 1 year prior to the date of the election,
of loans or other accommodations in excess of
P100,000 by the government or any of its divisions,
subdivisions or instrumentalities including GOCCs
(6) Educational institutions which have received grants of
public funds amounting to no less than P100,000
(7) Officials or employees in the Civil Service, or members
of the Armed Forces of the Philippines
(8) Foreigners and foreign corporations, including foreign
governments. [Secs. 95 and 96, BP 881]
PROHIBITED FUND-RAISING ACTIVITIES
The following are prohibited if held for raising campaign
funds or for the support of any candidate from the start of
the election period up to and including election day:
(1) Dances
(2) Lotteries
(3) Cockfights
(4) Games
(5) Boxing bouts
(6) Bingo
(7) Beauty contests
(8) Entertainments, or cinematographic, theatrical or
other performances
For any person or organization, civic or religious, directly or
indirectly, to solicit and/or accept from any candidate or
from his campaign manager, agent or representative, or
any person acting in their behalf, any gift, food,
transportation, contribution or donation in cash or in kind
from the start of the election period up to and including
election day
Except: normal and customary religious stipends, tithes, or
collections on Sundays and/or other designated collection
days [Sec. 97, BP 881]
REQUISITES OF A PROHIBITED DONATION
Who: By candidate, spouse, relative within 2nd civil degree
of consanguinity or affinity, campaign manager, agent or
representative; treasurers, agents or representatives of
political party
When: During campaign period, day before and day of the
election
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Directly or indirectly:
(1) donation, contribution or gift in cash or in kind
(2) undertake or contribute to the construction or repair of
roads, bridges, school buses, puericulture centers,
medical clinics and hospitals, churches or chapels
cement pavements, or any structure for public use or
for the use of any religious or civic organization.
Exceptions:
(1) Normal and customary religious dues or contributions
(2) Periodic payments for legitimate scholarships
established and school contributions habitually made
before the prohibited period [Sec. 104, BP 881]
LAWFUL AND PROHIBITED ELECTION PROPAGANDA
LAWFUL ELECTION PROPAGANDA
(1) Pamphlets, leaflets, cards, decals, stickers, or other
written or printed materials not larger than 8.5x14
inches
(2) Handwritten or printed letters urging voters to vote for
or against any political party or candidate
(3) Cloth, paper or cardboard posters, framed or posted,
not larger than 2x3 feet
(4) Streamers not larger than 3x8 feet are allowed at a
public meeting or rally or in announcing the holding of
such. May be displayed 5 days before the meeting or
rally and shall be removed within 24 hours after such
(5) Paid advertisements in print or broadcast media
(a) Bear and be identified by the reasonably legible or
audible words “political advertisement paid for”
followed by the true and correct name and address
of the candidate or party for whose benefit the
election propaganda was printed or aired. [Sec. 4.1,
RA 9006]
(b) If the broadcast is given free of charge by the radio
or TV station, identified by the words "airtime for
this broadcast was provided free of charge by"
followed by the true and correct name and address
of the broadcast entity. [Sec. 4.2, RA 9006]
(c) Print, broadcast or outdoor advertisements
donated to the candidate or political party shall
not be printed, published, broadcast or exhibited
without the written acceptance by said candidate
or political party. Written acceptance must be
attached to the advertising contract and submitted
to the COMELEC within 5 days after its signing.
[Sec. 4.3, RA 9006, cf. Sec. 6.3, RA 9006]
(6) All other forms of election propaganda not prohibited
by the Omnibus Election Code or the Fair Election Act
of 2001. [Sec. 3, RA 9006, The Fair Election Act]
PROHIBITED ACTS
For any foreigner to:
(1) Aid any candidate or political party, directly or
indirectly
(2) Take part or influence in any manner any election
(3) Contribute or make any expenditure in connection with
any election campaign or partisan political activity
[Sec. 81, BP 881]
For any person during the campaign period to:
(1) Remove, destroy, obliterate or in any manner deface or
tamper with lawful election propaganda
(2) Prevent the distribution of lawful election propaganda
[Sec. 83, BP 881]
PAGE 136
BAR OPERATIONS COMMISSION
For any candidate, political party, organization or any
person to:
(1) Give or accept, directly or indirectly, free of charge,
transportation, food or drinks or things of value during
the five hours before and after a public meeting, on the
day preceding the election, and on the day of the
election;
(2) Give or contribute, directly or indirectly, money or
things of value for such purpose (Sec. 89, BP 881)
Note: Sec. 85 “Prohibited election propaganda” of BP 881
was repealed by Sec. 14 RA 9006.
LIMITATIONS ON EXPENSES
FOR CANDIDATES
(1) President and VP: P10 for every voter currently
registered
(2) Other candidates: P3 for every voter currently
registered in the constituency where he filed his
certificate of candidacy
CANDIDATES WITHOUT A POLITICAL PARTY
P5 for every voter
FOR POLITICAL PARTIES
P5 for every voter currently registered in the constituency
or constituencies where it has official candidates [Sec. 13,
R.A. 7166, Act Providing for Synchronized National and
Local Elections and Electoral Reforms]
STATEMENT OF CONTRIBUTIONS AND EXPENSES
Every candidate and treasurer of the political party shall
file:
(1) in duplicate with the COMELEC
(2) the full, true and itemized statement of all
contributions and expenditures in connection with the
election
(3) within 30 days after the day of the election
EFFECT OF FAILURE TO FILE STATEMENT
No person elected to any public offices shall enter upon
the duties of his office until he has filed the statement of
contributions and expenditures
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the
statements
Administrative fines (except candidates for elective
barangay office [Sec. 14, RA 7166]
(1) 1st offense – P1,000-P30,000 in the discretion of the
Commission to be paid within 30 days from receipt of
notice of such failure otherwise it shall be enforceable
by a writ of execution issued by the Commission
against the properties of the offender
(2) 2nd offense – P2,000-P30,000 in the discretion of the
Commission. In addition, the offender shall be subject
to perpetual disqualification to hold public office
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION

conducts himself in a disorderly manner in its presence

or within its hearing and thereby interruprts or disturbs

Board of Election Inspectors its proceedings, the BEI may issue an order in writing
directing any peace officer to take said person into

(BEI) and Board of custody until the adjournment of the meeting, but such
order shall not be executed as to prevent said person

Canvassers (BOC) from voting. A copy of such written order shall be

attached to the Minutes;

COMPOSITION OF BOARD OF ELECTION INSPECTORS (5) Furnish watchers Certificate of Votes (CEF No. A13)
COMPOSITION upon request
[Sec. 13, RA 6646 and Sec. 164, BP 881]
(1) Chairman – public school teacher (6) Perform such other functions as prescribed by the
(2) Poll Clerk – public school teacher Code or by the rules and regulations promulgated by
(3) Two members, each representing the two accredited the Commission
political parties
COMPOSITION OF BOARD OF CANVASSERS
QUALIFICATIONS [Sec. 20, RA 6646]
[Sec. 166, BP 881]
(1) Good moral character and irreproachable reputation
Province City Municipality
(2) Registered voter of the city or municipality
(3) Never been convicted of any election offense or any Chairman
other crime punishable by more than 6 months of
imprisonment, or if he has pending against him an Provincial election City election Election registrar
information for any election offense supervisor or registrar or a or COMELEC
(4) Speak , read and write English or the local dialect lawyer in the lawyer of representative
(5) At least 1 member of the BEI shall be an information COMELEC COMELEC;
technology-capable person who is trained and certified regional office
by the DOST to use the AES (where AES shall be In cities with more
adopted) [Sec. 3, RA 9369 Amended Automated than 1 election
Elections System Law] registrar,
COMELEC shall
DISQUALIFICATIONS designate
[Sec. 167, BP 881]
Vice Chairman
(1) Related within 4th degree of consanguinity or affinity
to any member of the BEI Provincial fiscal City fiscal Municipal
(2) Related within 4th degree of consanguinity or affinity treasurer
to any candidate to be voted for in the polling place or
his spouse Member
(3) Not engaged in any partisan political activity or take Provincial City Most senior district
part in the election except to discharge his duties as superintendent of superintendent of school supervisor
such and to vote [Sec. 173, BP 881] schools schools or in his absence, a
principal of the
POWERS OF BOARD OF ELECTION INSPECTORS school district or
[Sec. 10, COMELEC Resolution 9640, General Instructions elementary school
for BEI on Testing and Sealing, Voting, Counting and
Transmission of Election Results]
(1) Conduct the voting in the polling place and administer In case of non-availability, absence, disqualification due to
the electronic counting of votes, including the testing relationship, or incapacity for any cause of any of the
and sealing of the PCOS machine members, COMELEC may appoint the following as
substitutes, in the order named:
(2) Print the election returns and transmit electronically
the election results through the use of the PCOS Province City Municipality
machine to the
(a) City/Municipal Board of Canvassers Chairman
(b) Central Server
(c) Transparency Server (Dominant Majority Ranking lawyer of Ranking lawyer of Ranking lawyer of
Party/Dominant Minority Party/Accredited the COMELEC the COMELEC the COMELEC
Citizens’ Arm/ KBP Server Vice Chairman

(3) Act as deputies of the Commission in the conduct of -Provincial auditor -City auditor or -Municipal
the elections -Registrar of equivalent; Administrator;
Deeds -Registrar of -Municipal
(4) Maintain order within within the polling place and its -Clerk of Court Deeds; Assessor;
premises; keep access thereto open and unobstructed; nominated by the -Clerk of Court -Clerk of Court
enforce obedience to its lawful orders and prohibit the Executive Judge of nominated by the nominated by the
use of cellular phones and camera by the voters. If any the RTC; Executive Judge of Executive Judge of
person refuses to obey the lawful orders of the BEI, or -Any other the RTC; the MTC;

PAGE 137
UP COLLEGE OF LAW ELECTION LAW
Province City Municipality
available -Any other -Any other
appointive available available
provincial official appointive city appointive
official municipal official
Member
Same as for Vice- Same as for Vice- Same as for Vice-
Chairman Chairman Chairman
PROHIBITIONS ON BOC
(1) Chairman and members shall not be related within the
th
4 civil degree of consanguinity or affinity to any of the
candidates whose votes will be canvassed by said
board, or to any member of the said board. [Sec. 222,
BP 881]
(2) No member or substitute member shall be transferred,
assigned or detailed outside of his official station, nor
shall he leave said station without prior authority of the
COMELEC during the period beginning election day
until the proclamation of the winning candidates. [Sec.
223, BP 881]
(3) No member shall feign illness to be substituted on
election day until the proclamation of the winning
candidates. Feigning of illness constitutes an election
offense. [Sec. 224, BP 881]
CANVASS BY THE BOC
Canvass - the process by which the results in the election
returns are tallied and totalled.
Certificates of canvass - official tabulations of votes
accomplished by district, municipal, city and provincial
canvassers based on the election returns, which are the
results of the ballot count at the precinct level.
- The BOC shall canvass the votes by consolidating the
electronically transmitted results or the results
contained in the data storage devices used in the
printing of the election returns. [Sec. 20, RA 9369]
CERTIFICATE OF CANVASS AND STATEMENT OF
VOTES
(1) Within one hour after the canvassing, the Chairman of
the district or provincial BOC or the city BOC of those
cities which comprise one or more legislative districts
shall electronically transmit the certificates of canvass
to:
(a) COMELEC sitting as the National BOC for senators
and party-list representatives and
(b) Congress as the National BOC for the president
and vice president, directed to the President of the
Senate. [Sec. 20, RA 9369]
(2) The certificates of canvass transmitted electronically
and digitally signed shall be considered as official
election results and shall be used as the basis for the
proclamation of a winning candidate. [Sec. 20, RA
9369]
(3) 30 copies shall be distributed in accordance to Sec. 21,
RA 9369.
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NATIONAL BOC FOR PRESIDENT AND VICE-PRESIDENT
Composition
The Senate and the House of Representatives in joint
public session.
Functions:
(1) Upon receipt of the certificates of canvass, the
President of the Senate shall, not later than 30 days
after the day of the election, open all the certificates in
the presence of the Senate and the House of
Representatives in joint public session.
(2) Congress upon determination of the authenticity and
the due execution thereof in the manner provided by
law shall:
(a) canvass all the results for president and vice-
president and
(b) proclaim the winning candidates. [Sec. 22, RA
9369]
NATIONAL BOC FOR SENATORS AND PARTY -LIST
REPRESENTATIVES
Composition
The chairman and members of the COMELEC sitting en
banc
Function
It shall canvass the results by consolidating the certificates
of canvass electronically transmitted. Thereafter, the
national board shall proclaim the winning candidates for
senators and party-list representatives. [Sec. 23, RA 9369]
PROCLAMATION
Proclamation shall be after the canvass of election returns,
in the absence of a perfected appeal to the COMELEC,
proclaim the candidates who obtained the highest number
of votes cast in the province, city, municipality or barangay,
on the basis of the certificates of canvass.
Failure to comply with this duty constitutes an election
offense. [Sec. 231, BP 881]
WHEN PROCLAMATION VOID
(1) When it is based on incomplete returns [Castromayor v.
Comelec (1995)] or
(2) When there is yet no complete canvass. [Jamil v.
Comelec (1997)]
(3) A void proclamation is no proclamation at all, and the
proclaimed candidate’s assumption into office cannot
deprive the COMELEC of its power to annul the
proclamation.
PARTIAL PROCLAMATION
Notwithstanding pendency of any pre-proclamation
controversy, COMELEC may summarily order proclamation
of other winning candidates whose election will not be
affected by the outcome of the controversy. [Sec. 21, RA
7166]
ELECTION RESULTING IN A TIE
BOC, by resolution, upon 5 days notice to all tied
candidates, shall hold a special public meeting at which
the board shall proceed to the drawing of lots of tied
candidates and shall proclaim as elected the candidates
who may be favored by luck. [Sec. 240, BP 881]
There is a tie when:
(1) 2 or more candidates receive an equal and highest
number of votes; or
UP COLLEGE OF LAW
(2) 2 or more candidates are to be elected for the same
position and 2 or more candidates received the same
number of votes for the LAST PLACE in the number to
be elected.
PROCLAMATION OF A LONE CANDIDATE
Upon the expiration of the deadline for the filing of
certificates of candidacy in a special election called to fill a
vacancy in an elective position other than for President and
VP, when there is only 1 qualified candidate, he shall be
proclaimed elected without holding the special election
upon certification by the COMELEC that he is the only
candidate for the office and is therefore deemed elected.
[Sec. 2, RA 8295, Law on Proclamation of Solo Candidates]
Remedies and Jurisdiction in
Election Law
PETITION NOT TO GIVE DUE COURSE TO OR CANCEL
A CERTIFICATE OF CANDIDACY
CANCELLATION OF CERTIFICATE OF CANDIDACY
(1) Grounds
(a) False material representation in the certificate of
candidacy;
(b) If the certificate filed is a substitute Certificate of
Candidacy, when it is not a proper case of
substitution under Sec. 77 of BP 881.
(2) Nature of Proceedings - Summary
(3) Procedure
Who may file: any citizen of voting age, or a duly
registered political party, organization, or coalition of
political parties
When filed: Within 5 days from the last day for the filing
of certificates of candidacy
Where filed: With the Law Department of the COMELEC
PETITION FOR DISQUALIFICATION
PROCEDURE
Who may file: Any citizen of voting age, or any duly
registered political party, organization or coalition of
political parties
Where: Law Department of the COMELEC
When: Any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation
Grounds: Sec. 68 of BP 881. All other election offenses are
beyond the ambit of the COMELEC jurisdiction [Codilla v.
COMELEC (2004)]
Period to decide: The Commission and the courts shall give
priority to cases of disqualification by reason of violation of
this Act to the end that a final decision shall be rendered
not later than seven days before the election in which the
disqualification is sought. [Sec. 72, BP 881]
EFFECT (asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for
ELECTION LAW BAR OPERATIONS COMMISSION
him shall not be counted. The fact that the candidate who
obtained the highest number of votes is later declared to
be disqualified or not eligible for the office to which he was
elected, does not necessarily entitle the candidate who
obtained the second highest number of votes to be
declared the winner of the elective office.
A possible exception is predicated on the concurrence of
two assumptions, namely: (1) the one who obtained the
highest number of votes is disqualified; and (2) the
electorate is fully aware in fact and in law of a candidate’s
disqualification so as to bring such awareness within the
realm of notoriety but would nonetheless cast their votes
in favor of the ineligible candidate [Grego v. COMELEC
(1997)]
Any candidate who has been declared by final judgment to
be disqualified –
(1) shall not be voted for and
(2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and
receives the winning number of votes in such election
The Court or COMELEC shall continue with the trial and
hearing of the action, inquiry, or protest and
Upon motion of the complainant or any intervenor, may
during the pendency thereof, order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
Law of 1987]
Where a similar complaint/petition is filed:
(1) before the election and proclamation of the
respondent and the case is not resolved before the
election - the trial and hearing of the case shall
continue and referred to the Law Department for
preliminary investigation
(2) after the election and before the proclamation of the
respondent - the trial and hearing of the case shall be
suspended and referred to the Law Department for
preliminary investigation
Note: In either case, if the evidence of guilt is strong, the
COMELEC may order the suspension of the proclamation
of respondent, and if proclaimed, to suspend the effects of
proclamation. [Sec. 4, Resolution No. 8678]
PETITION TO DECLARE FAILURE OF ELECTIONS
WHAT CONSTITUTES AN ELECTION
Plurality of votes sufficient for:
(1) a choice conditioned on the plurality of valid votes or
(2) a valid constituency regardless of the actual number of
votes cast.
FAILURE OF ELECTIONS
Grounds: in any of such cases the failure or suspension of
election must affect the result of the election
(1) Election in any polling place has not been held on the
date fixed due to force majeure, violence, terrorism,
fraud, or other analogous causes.
(2) Election in any polling place had been suspended
before the hour fixed for the closing of the voting due
to force majeure, violence, terrorism, fraud, or other
analogous causes.
(3) After the voting and during the preparation and
PAGE 139
UP COLLEGE OF LAW ELECTION LAW
transmission of the election returns or in the custody or
canvass thereof such election results in a failure to
elect due to force majeure, violence, terrorism, fraud or
other analogous causes. [Sec. 6, BP 881]
Causes for the declaration of failure of election may occur
before or after the casting of votes or on the day of the
election. [Sec. 4, R.A. 7166]
The postponement, declaration of failure of election and
the calling of special elections shall be decided by the
COMELEC sitting en banc by a majority vote of its
members. [Sec. 4, R.A. 7166]
The COMELEC shall call for the holding or continuation of
the election not held, suspended or which resulted in a
failure to elect:
(1) upon a verified petition by any interested party and
(2) after due notice and hearing [Sec. 6, B.P. 881]
When: on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure
to elect BUT not later than 30 days after the cessation of
the cause of such postponement or suspension of the
election or failure to elect. [Sec. 6, BP 881]
DECLARATION OF FAILURE OF ELECTION
It is neither an election protest nor a pre-proclamation
controversy. [Borja v. Comelec, (1998)]
Jurisdiction
COMELEC, sitting en banc, may declare a failure of election
by a majority vote of its members.
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 there was voting,
the election nonetheless resulted in a failure to elect;
and
(2) The votes cast would affect the results of the election.
Procedure:
(1) Petitioner files verified petition with the Law
Department of the COMELEC.
(2) Unless a shorter period is deemed necessary by
circumstances, within 24 hours, the Clerk of Court
concerned serves notices to all interested parties,
indicating therein the date of hearing, through the
fastest means available.
(3) Unless a shorter period is deemed necessary by the
circumstances, within 2 days from receipt of the notice
of hearing, any interested party may file an opposition
with the Law Department of the COMELEC.
(4) The COMELEC proceeds to hear the petition. The
COMELEC may delegate the hearing of the case and
the reception of evidence to any of its officials who are
members of the Philippine Bar.
(5) The COMELEC then decides whether to grant or deny
the petition. This lies within the exclusive prerogative
of the COMELEC.
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PRE-PROCLAMATION CONTROVERSY
(asked in 1987, 1988, 1996)
Pre-Proclamation Controversy – proceedings of the board
of canvassers which may be raised by any candidate or by
any registered political party or coalition of political
parties, or by any accredited and participating party list
group, before the board or directly with the Commission
[Rule 3, Sec. 1, COMELEC Resolution No. 8804]
Note: COMELEC Resolution No. 8804 applies to election
disputes under the Automated Election System (AES)
using the Precinct Count Optical Scan (PCOS) and shall
cover pre-proclamation controversies and election protests
[Rule 1, Sec. 2, COMELEC Resolution No. 8804]
Any question or matter pertaining to or affecting:
(1) the proceedings of the board of canvassers, or
(2) any matter raised under Sec. 233-236 of BP 881 (see
below) in relation to the preparation, transmission,
receipt, custody and appreciation of the election
returns. [Sec. 241, BP 881]
JURISDICTION
COMELEC has exclusive jurisdiction over pre-proclamation
cases. It may order, motu proprio or upon written petition,
the partial or total suspension of the proclamation of any
candidate-elect or annul partially or totally any
proclamation, if one has been made. [Sec. 242, BP 881]
COMELEC has exclusive jurisdiction in pre-proclamation
controversies arising from national, regional or local
elections. [Rule 3, Sec. 2, COMELEC Resolution No. 8804]
WHEN NOT ALLOWED
For the positions of President, VP, Senator, and Member of
the House of Representatives [Sec. 15, RA 7166]
NATURE OF PROCEEDINGS
Heard summarily by the COMELEC after due notice and
hearing. This is because canvass and proclamation should
be delayed as little as possible.
ISSUES THAT MAY BE RAISED
This enumeration is restrictive and exclusive:
(1) Illegal composition or proceedings of the board of
election canvassers;
(2) Canvassed election returns are either:
(a) Incomplete
(b) Contain material defects;
(c) Appear to be tampered with or falsified;
(d) Contain discrepancies in the same returns or in
other authentic copies;
(3) The election returns were:
(a) Prepared under duress, threats, coercion,
intimidation or
(b) Obviously manufactured or not authentic
(4) Substituted or fraudulent returns in controverted polling
places were canvassed, the results of which materially
affected the standing of the aggrieved candidate(s).
(5) Manifest errors in the Certificates of Canvass or Election
Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]
UP COLLEGE OF LAW ELECTION LAW
Note: In Rule 3, Sec. 1 of COMELEC Resolution No. 8804
(promulgated March 22, 2010) there are only 2 issues
covered in a pre-proclamation controversy:
(1) Illegal composition of the BOC [Sec. 1, Rule 4,
COMELEC Resolution No. 8804]
Exists when, among other circumstances, any of the
members do not possess legal qualifications and
appointments. The information technology capable
person required to assist the BOC by RA 9369 shall be
included as among those whose lack of qualifications
may be questioned
(2) Illegal proceedings of the BOC [Sec. 2, Rule 4,
COMELEC Resolution No. 8804]
Exists when the canvassing is a sham or mere
ceremony, the results of which are predetermined and
manipulated as when any of the following
circumstances are present:
(1) Precipitate canvassing
(2) Terrorism
(3) Lack of sufficient notice to the members of the
BOC’s
(4) Improper venue
ISSUES THAT CANNOT BE RAISED
(1) Appreciation of ballots, as this is performed by the BEI
at the precinct level and is not part of the proceedings
of the BOC [Sanchez v. Comelec, (1987)]
(2) Technical examination of the signatures and thumb
marks of voters [Matalam v. Comelec (1997)]
(3) Prayer for re-opening of ballot boxes [Alfonso v.
Comelec, (1997)]
(4) Padding of the Registry List of Voters of a municipality,
massive fraud and terrorism [Ututalum v. Comelec
(1990)]
(5) Challenges directed against the Board of Election
Inspectors [Ututalum v. Comele (supra)]
(6) Fraud, terrorism and other illegal electoral practices.
These are properly within the office of election contests
over which electoral tribunals have sole, exclusive
jurisdiction. [Loong v. Comelec, (1992)]
PROCEDURE
Questions involving the composition or proceedings of the
board of canvassers, or correction of manifest errors
Where: Either in the Board of Canvassers or directly with
the COMELEC. [Sec. 17, R.A. 7166]
When:
(1) a petition involves the illegal composition or
proceedings of the board, must be filed immediately
when the board begins to act as such [Laodeno v.
Comelec (1997)], or at the time of the appointment of
the member whose capacity to sit as such is objected
to if it comes after the canvassing of the board, or
immediately at the point where the proceedings are or
begin to be illegal. Otherwise, by participating in the
proceedings, the petitioner is deemed to have
acquiesced in the composition of the BOC.
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BAR OPERATIONS COMMISSION
(2) If the petition is for correction, it must be filed not later
than 5 days following the date of proclamation, and
must implead all candidates who may be adversely
affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of
Procedure]
Matters relating to the preparation, transmission, receipt,
custody and appreciation of the election returns and
certificates of canvass
Where: Only with the Board of Canvassers
When: At the time the questioned return is presented for
inclusion in the canvass.
Who: Any candidate, political party or coalition of political
parties
Note: Non-compliance with any of the steps above is fatal
to the pre-proclamation petition.
Pre-proclamation controversies under COMELEC
Resolution No. 8804
If filed before the BOC
(1) Upon receipt of the verified petition, the BOC shall
immediately announce the fact of the filing of said
petition and the ground/s raised
(2) BOC shall immediately deliberate on the petition and
make a prompt resolution within 24 hrs – reduced into
writing
(3) If the decision is in favor of the petition, it shall
immediately inform the Commission of its resolution –
the Commission shall make appropriate action
In no case shall the receipt by the BOC of the
electronically transmitted precinct, municipal, city or
provincial results, be suspended by the filing of the
said petition
Appeal an adverse resolution
(1) The petitioner may appeal an adverse resolution by the
BOC to the COMELEC, by notifying the BOC of his or
her intent to appeal, through a verbal and a written
and verified notice of appeal
(2) Notice on the BOC shall not suspend the formal
proclamation of the official results of the election until
the final resolution of the appeal
(3) 48 hrs from such notice to the BOC, the petitioner shall
submit before the Board a Memorandum on appeal
stating the reasons why the resolution being
questioned is erroneous and should be reversed
(4) Upon receipt by the BOC of the memorandum, the
Board shall forward the entire records of the petition at
the expense of the petitioner
(5) Upon receipt of the records, the petition shall be
docketed by the Clerk of Commission and submitted to
the COMELEC en banc for consideration and decision
(6) Within 5 days, the COMELEC shall render its decision
on appeal
UP COLLEGE OF LAW
If filed directly with the Commission
(1) Upon receipt of the petition by the COMELEC, the
Clerk of the Commission shall docket the same and
send summons to the VOC concerned with an order
directing it to submit, through the fastest verifiable
means available, its answer within 48 hrs
(2) COMELEC en banc shall resolve the petition within 5
days from the filing of the answer or upon the
expiration of the period to file the same
EFFECT OF FILING OF PRE-PROCLAMATION CONTROVERSY
(1) The period to file an election contest shall be
suspended during the pendency of the pre-
proclamation contest in the COMELEC or the Supreme
Court.
(2) The right of the prevailing party in the pre-proclamation
contest to the execution of COMELEC’s decision does
not bar the losing party from filing an election contest.
(3) Despite the pendency of a pre-proclamation contest,
the COMELEC may order the proclamation of other
winning candidates whose election will not be affected
by the outcome of the controversy.
EFFECT OF PROCLAMATION OF WINNING CANDIDATE
General Rule: A pre-proclamation controversy shall no
longer be viable after the proclamation and assumption
into office by the candidate whose election is contested.
The remedy is an election protest before the proper forum.
Exceptions: The prevailing candidate may still be unseated
even though he has been proclaimed and installed in office
if:
(1) The opponent is adjudged the true winner of the
election by final judgment of court in an election
contest;
(2) The prevailing party is declared ineligible or
disqualified by final judgment of a court in a quo
warranto case; or
(3) The incumbent is removed from office for cause.
PETITION TO ANNUL OR SUSPEND PROCLAMATION
The filing of the petition suspends the running of the
period to file an election protest. [Alangdeo v. Comelec,
(1989)]
No law provides for a reglementary period within which to
file a petition for the annulment of an election if there is as
yet no proclamation. [Loong v. Comelec (supra)]
ELECTION PROTEST
Election protest is a contest between the defeated and
winning candidates on the ground of frauds or
irregularities in the casting and counting of the ballots, or
in the preparation of the returns. It raises the question of
who actually obtained the plurality of the legal votes and
therefore is entitled to hold the office. [Samad v. Comelec,
(1993)]
An election contest consists of either:
(1) an election protest or a
(2) quo warranto
which, although two distinct remedies, would have one
objective in view: to dislodge the winning candidate from
office.
ELECTION LAW BAR OPERATIONS COMMISSION
In an election protest, the protestee may be ousted and the
protestant seated in the office vacated.
General Rule:
As a general rule, the filing of an election protest or a
petition for quo warranto precludes the subsequent filing
of a pre-proclamation controversy, or amounts to the
abandonment of one earlier filed, thus depriving the
COMELEC of the authority to inquire into and pass upon
the title of the protestee or the validity of his proclamation.
The reason is that once the competent tribunal has
acquired jurisdiction of an election protest or a petition for
quo warranto, all questions relative thereto will have to be
decided in the case itself and not in another proceeding.
This procedure will prevent confusion and conflict of
authority. Conformably, we have ruled in a number of
cases that after a proclamation has been made, a pre-
proclamation case before the COMELEC is no longer
viable. [Samad v. Comelec, (1993)]
Exceptions: The rule admits of exceptions, however, as
where:
(1) the board of canvassers was improperly constituted;
(2) quo warranto was not the proper remedy;
(3) what was filed was not really a petition for quo
warranto or an election protest but a petition to annul
a proclamation;
(4) the filing of a quo warranto petition or an election
protest was expressly made without prejudice to the
pre-proclamation controversy or was made ad
cautelam; and
(5) the proclamation was null and void. [Samad v.
Comelec, (1993)]
NATURE
Summary proceeding of a political character
PURPOSE
To ascertain the candidate lawfully elected to office
WHO MAY FILE
A candidate who has duly filed a certificate of candidacy
and has been voted for.
WHEN
Within 10 after the proclamation of the results of the
election.
(1) It is suspendeded during the pendency of a pre-
proclamation controversy
(2) It should be decided within 15 days from filing in case
of barangay officials
WHO HAS JURISDICTION
(1) COMELEC – over all contests relating to the elections,
returns and qualifications of all elective regional,
provincial and city officials [Sec. 250, BP 881]
(2) RTC - over contests involving municipal officials [Sec.
251, BP 881]
(3) MeTC or MTC – over election contests involving
barangay officials [Sec. 252, BP 881]
GROUNDS
(1) Fraud
(2) Terrorism
(3) Irregularities
(4) Illegal acts committed before, during, or after the
casting and counting of votes
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PAYMENT OF DOCKET FEE Election Protest Quo Warranto

A protestant has to pay a docket fee of P300 and an
additional docket fee if there is a claim for damages. A protestee may be ousted While the respondent may
Failure to pay the basic docket fee shall result to the and the protestant seated in be unseated, the petitioner
dismissal of the protest [Soller v. COMELEC (2000)] the office vacated will not be seated
EFFECT OF FILING PETITION TO ANNUL OR TO SUSPEND THE
PROCLAMATION
The filing with the Commission of a petition to annual or to Quo Warranto in an elective Quo Warranto in an
suspend the proclamation of any candidate shall suspend office appointive office
the running of the period within which to file an election Issue is the eligibility of the Issue is the legality of the
protest or quo warranto proceedings. [Sec. 248, BP 881] officer-elect appointment

QUO WARRANTO Court or tribunal cannot The court determines who of

A petition for quo warranto under the Omnibus Election declare the protestant (or the parties has legal title to
Code raises in issue the disloyalty or ineligibility of the the candidate who obtained the office
winning candidate. It is a proceeding to unseat the the second highest number
respondent from office but not necessarily to install the of votes) as having been
petitioner in his place. [Samad v. Comelec, (1993)] elected

In a quo warranto proceeding, the petitioner is not EXECUTION PENDING APPEAL

occupying the position in dispute. Moreover, under the
Omnibus Election Code, quo warranto is proper only for
the purpose of questioning the election of a candidate on
the ground of disloyalty or ineligibility. [Samad v. Comelec,
(1993)]
It is a proceeding to unseat the ineligible person from
office but not to install the protestant in his place. In this
sense, it is strictly speaking, not a contest where the parties
strive for supremacy. While the respondent may be
unseated, the petitioner will not be seated.
The trial court may grant a motion for execution pending
appeal because the mere filing of an appeal does not
divest the trial court of its jurisdiction over a case and to
resolve pending incidents
Valid and special reasons to grant the same
(1) The public interest is involved or the will of the
electorate
(2) The shortness of the remaining portion of the term
(3) The length of time that the election contest has been
pending

WHO MAY FILE The rule is strictly construed against the movant and only
Any voter when the reason is of such urgency will such execution
pending appeal be allowed, as it is an exception to the
WHEN general rule
Within 10 days after the proclamation of the results of the
election.

WHO HAS JURISDICTION

(1) COMELEC – over petitions for quo warranto involving Prosecution of Election
regional, provincial and city officials [Sec. 253, BP 881]
(2) RTC - over petitions for quo warranto involving Offenses
municipal officials [Sec. 253, BP 881]
(3) MeTC or MTC – over petitions for quo warranto JURISDICTION OVER ELECTION OFFENSES
involving barangay officials [Sec. 253, BP 881] INVESTIGATION AND PROSECUTION
COMELEC has exclusive jurisdiction to investigate and
GROUNDS prosecute cases involving violation of election laws [Sec. 2
(1) Ineligibility (6), Art. IX-C, 1987 Consti]
(2) Disloyalty to the Republic
However, it may validly delegate the power to the
Election Protest Quo Warranto Provincial Prosecutor or to the Ombudsman.

Strictly a contest between
the defeated and winning
candidates based on
grounds of election frauds or
irregularities as to who
actually obtained the
majority of the legal votes
and therefore is entitled to
hold the office
Can only be filed by a
candidate who has duly filed
a certificate of candidacy and
has been voted for
Refers to questions of
disloyalty or ineligibility of
the winning candidate. It is a
proceeding to unseat the
ineligible person from office,
but not to install the
protestant in place
Can be filed by any voter. It is
not considered a contest
where the parties strive for
supremacy
In the event that the COMELEC fails to act on any
complaint within 4 months from its filing, the complainant
may file the complaint with the fiscal or the Department of
Justice, if warranted. [Sec. 265, BP 881]
It is not the duty of the COMELEC, as investigator and
prosecutor, to gather proof in support of a complaint filed
before it [Kilosbayan v. COMELEC (1997)]
TRIAL AND DECISION
RTCs have exclusive original jurisdiction to try and decide
any criminal actions or proceedings for violation of election
laws. [Sec. 268, BP 881]

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UP COLLEGE OF LAW
MTCs, by way of exception, exercise jurisdiction only over
offenses relating to failure to register or to vote
PREFERENTIAL DISPOSITION OF ELECTION
OFFENSES
(1) The investigating officer shall resolve the case within 5
days from submission.
(2) The courts shall give preference to election cases over
all other cases except petitions for writ of habeas
corpus.
ELECTION OFFENSES
REGISTRATION
(1) Failure of the Board of Election Inspectors to post the
list of voters in each precinct. [Sec. 9, RA 7166];
(2) Change or alteration or transfer of a voter's precinct
assignment in the permanent list of voters without the
express written consent of the voter [Sec. 4, RA 8189]
CERTIFICATE OF CANDIDACY
(1) Continued misrepresentation or holding out as a
candidate of a disqualified candidate or one declared by
final and executory judgment to be a nuisance
candidate [Sec. 27(f), RA 6646]
(2) Knowingly inducing or abetting such misrepresentation
of a disqualified or nuisance candidate [Sec. 27(f), RA
6646];
(3) Coercing, bribing, threatening, harassing, intimidating,
terrorizing, or actually causing, inflicting or producing
violence, injury, punishment, torture, damage, loss or
disadvantage to discourage any other person or
persons from filing a certificate of candidacy in order to
eliminate all other potential candidates from running
in a special election [Sec. 5, RA 8295]
ELECTION CAMPAIGN
(1) Appointment or use of special policemen, special agents
or the like during the campaign period [Sec. 261(m), BP
881]
(2) Use of armored land, water or aircraft during the
campaign period [Sec. 261(r), BP 881]
(3) Unlawful electioneering [Sec. 261(k), BP 881]
(4) Acting as bodyguards or security in the case of
policemen and provincial guards during the campaign
period [Sec. 261(t), BP 881]
(5) Removal, destruction, obliteration, or tampering of
lawful election propaganda, or preventing the
distribution thereof [Sec. 83, BP 881 vis-à-vis Sec. 262,
BP 881]
VOTING
(1) Vote-buying and vote-selling [Sec. 261(a), BP 881]
(2) Conspiracy to bribe voters [Sec. 261(b), BP 881]: A
disputable presumption of a conspiracy to bribe voters
is created when there is proof that at least 1 voter in
different precincts representing at least 20% of the
total precincts in any municipality, city or province has
been offered, promised or given money, valuable
consideration or other expenditure by a candidate's
relatives, leaders and/or sympathizers for the purpose
ELECTION LAW BAR OPERATIONS COMMISSION
of promoting the election of such candidate. [Sec. 28,
RA 6646]
(3) Coercion of subordinates to vote for or against any
candidate [Sec. 261(d), BP 881]
(4) Dismissal of employees, laborers, or tenants for refusing
or failing to vote for any candidate [Sec. 261(d(2)), BP
881]
(5) Being a flying voter [Sec. 261z (2), B.P. 881]
COUNTING OF VOTES
(1) Tampering, increasing, decreasing votes, or refusal to
correct tampered votes after proper verification and
hearing by any member of the board of election
inspectors [Sec. 27(b), RA 6646]
A special election offense to be known as electoral
sabotage and the penalty to be imposed shall be life
imprisonment. [Sec. 42, RA 9369]
(2) Refusal to issue to duly accredited watchers the
certificate of votes cast and the announcement of the
election, by any member of the board of election
inspectors [Sec. 27(c), RA 6646]
CANVASSING
Any chairperson of the board of canvassers who fails to
give notice of meeting to other members of the board,
candidate or political party as required [Sec. 27(e), RA
6646]
ACTS OF GOVERNMENT OR PUBLIC OFFICERS
(1) Appointment of new employees, creation of new
positions, promotion, or giving salary increases within
the election period [Sec. 261(g), BP 881]
(2) Transfer of officers and employees in the civil service
within the election period without the prior approval of
the COMELEC [Sec. 261(h), BP 881]
(3) Intervening of public officers and employees in the civil
service in any partisan political activity [Sec. 261(i), BP
881]
(4) Use of public funds for an election campaign [Sec.
261(o), BP 881]
(5) Illegal release of prisoners before and after election
[Sec. 261(n), BP 881]
(6) Release, disbursement or expenditure of public funds
during the prohibited period [Sec. 261(v), BP 881]
(7) Construction of public works, etc. during the prohibited
period [Sec. 261(w), BP 881]
(8) Suspension of elective local officials during the
election period without prior approval of the COMELEC
[Sec. 261(x), BP 881]
COERCION, INTIMIDATION, VIOLENCE
(1) Coercion of election officials and employees
(2) Threats, intimidation, terrorism, use of fraudulent
devices or other forms of coercion [Sec. 261(e), BP 881]
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UP COLLEGE OF LAW
(3) Use of undue influence [Sec. 261(j), BP 881]
(4) Carrying deadly weapons within the prohibited area
[Sec. 261(p), BP 881]
(5) Carrying firearms outside residence or place of
business [Sec. 261(q), BP 881]
(6) Organization or maintenance of reaction forces, strike
forces, or similar forces during the election period [Sec.
261(u), BP 881]
OTHER PROHIBITIONS
(1) Unauthorized printing of official ballots and election
returns with printing establishments that are not under
contract with the COMELEC [Sec. 27(a), RA 6646]
(2) Wagering upon the results of elections [Sec. 261(c), BP
881]
(3) Sale, etc. of intoxicating liquor on the day fixed by law
for the registration of voters in the polling place, or the
day before the election or on election day [Sec. 261(dd)
(1), BP 881]
(4) Opening booths or stalls within 30 meters of any
polling place [Sec, 261(dd) (2), BP 881]
(5) Holding fairs, cockfights, etc. on election day [Sec.
261(dd) (3), BP 881]
(6) Refusal to carry election mail during the election
period [Sec. 261(dd) (4), BP 881]. In addition to the
prescribed penalty, such refusal constitutes a ground
for cancellation or revocation of certificate of public
convenience or franchise.
(7) Discrimination in the sale of air time [Sec. 261(dd) (5),
BP 881] In addition to the prescribed penalty, such
refusal constitutes a ground for cancellation or
revocation of the franchise.
Note: Good faith is not a defense, as election offenses are
generally mala prohibita.
PENALTIES
For individuals
(1) Imprisonment of not less than 1 year but not more than
6 years, without probation [Sec. 264, BP 881]
(2) Disqualification to hold public office
(3) Deprivation of the right of suffrage
For a Foreigner
(1) Imprisonment of not less than 1 year but not more than
6 years (without probation);
(2) Deportation after service of sentence
For a Political Party
Payment of a fine not less than P10,000 after a criminal
conviction
Persons Required by Law to Keep Prisoners in their Custody
For prisoners illegally released from any penitentiary or jail
during the prohibited period, where such prisoners commit
any act of intimidation, terrorism or interference in the
election, prison mayor in its maximum period. [Sec. 264,
BP 881]
ELECTION LAW BAR OPERATIONS COMMISSION
ARRESTS IN CONNECTION WITH ELECTION
CAMPAIGN
Only upon a warrant of arrest issued by a competent judge
after all the requirements of the Constitution have been
strictly complied with
PRESCRIPTION
5 years from the date of their commission. If the discovery
of the offense be made in an election contest proceeding,
the period of prescription shall commence on the date on
which the judgment in such proceedings becomes final
and executory. [Sec. 267, BP 881]
PROHIBITED ACTS UNDER RA 9369
(1) Utilizing without authorization, tampering with,
damaging, destroying or stealing:
(a) Official ballots, election returns, and certificates of
canvass of votes used in the system; and
(b) Electronic devices or their components, peripherals
or supplies used in the AES such as counting
machine, memory pack/diskette, memory pack
receiver and computer set
(2) Interfering with, impeding, absconding for purpose of
gain, preventing the installation or use of computer
counting devices and the processing, storage,
generation and transmission of election results, data or
information
(3) Gaining or causing access to using, altering, destroying
or disclosing any computer data, program, system
software, network, or any computer-related devices,
facilities, hardware or equipment, whether classified or
declassified
(4) Refusal of the citizens' arm to present for perusal its
copy of election return to the board of canvassers
(5) Presentation by the citizens' arm of tampered or
spurious election returns
(6) Refusal or failure to provide the dominant majority and
dominant minority parties or the citizens'' arm their
copy of election returns and
(7) The failure to post the voters' list within the specified
time, duration and in the designated location shall
constitute an election offense on the part the election
officer concerned."
PENALTY
(1) imprisonment of 8 years and one day to 12 years
without possibility of parole
(2) perpetual disqualification to hold public and any non-
elective public office and
(3) deprivation of the right of suffrage.
Exception: Those convicted of the crime of electoral
sabotage, which includes acts or offenses committed in
any of the following instances:
NATIONAL ELECTIVE OFFICE
When the tampering, increase and/or decrease of votes
perpetrated or the refusal to credit the correct votes or to
deduct tampered votes is/are committed in the election of
a national elective office which is voted upon nationwide
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and the tampering, increase and/ or decrease votes refusal BEIs or BOCs involved, shall be meted the same penalty of
to credit the correct votes or to deduct tampered votes, life imprisonment.
shall adversely affect the results of the election to the said
national office to the extent that losing candidate/s is /are
made to appear the winner/s;

Regardless of the elective office involved, when the

tampering, increase and/or decrease of votes committed
or the refusal to credit the correct votes or to deduct
tampered votes perpetrated is accomplished in a single
election document or in the transposition of the figure /
results from one election document to another and
involved in the said tampering increase and/or decrease or
refusal to credit correct votes or deduct tampered votes
exceed 5,000 votes, and that the same adversely affects
the true results of the election

Any and all other forms or tampering increase/s and/ or

decrease/s of votes perpetuated or in cases of refusal to
credit the correct votes or deduct the tampered votes,
where the total votes involved exceed 10,000 votes

PENALTY
Any and all other persons or individuals determined to be
in conspiracy or in connivance with the members of the

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Public Corporations NATURE AND FUNCTION

DUAL NATURE
CONCEPT Every LGU created under this Code is a body politic and
Municipal Corporations Government-Owned or corporate. It shall exercise powers both as a political
Controlled Corporations subdivision of the National Government, and as a
(GOCCs) corporate entity representing the inhabitants of its
territory. [Sec. 15, LGC]
Purpose
Local governance over Agencies of the State for Political/Governmental Corporate/Proprietary
inhabitants of cities/towns; limited purposes to take
agency of the State for charge of some public or Exercised in the Exercised for the special
assistance in civil state work, other than administration of powers of benefit and advantage of
government of the country community work. [National the state and for promotion the community [Torio v.
for regulation of local and Waterworks & Sewerage of public welfare [Torio v. Fontanilla (1978)]
internal affairs. Authority v. NWSA Fontanilla (1978)]
Consolidated Unions (1964)]
Legislative, judicial, public, Ministerial, private, and
Personality and political corporate
Political subdivision of the Separate and distinct from LGU not liable except if: Can be held liable ex
Republic of the Philippines the government; subject to (1) Statute provides contractu or ex delicto;
the Corporation Code; otherwise;
Mere fact the the (2) damages due to defective
Government is a majority condition of roads, streets,
stockholder of the buildings, and other public
corporation does not make works [Art. 2189, Civil Code]
it a public corporation;
Government gives up its Examples: Examples:
sovereign character with (1) Regulations against fire, (1) Municipal waterworks,
regard to transactions of the disease; markets, wharves, fisheries;
corporation; [Bacani v. (2) Preservation of public (2) Maintenance of parks,
National Coconut peace; golf courses, cemeteries;
Corporation (1956)] (3) Establishment of schools,
public offices, etc.
Nature and Status
Constituted by law and Independent agency of the REQUISITES FOR CREATION, CONVERSION, DIVISION,
possessed of substantial government for MERGER, OR DISSOLUTION
control over its own affairs; administrative purposes; MINIMUM REQUIREMENTS
Autonomous in the sense Has corporate powers to be The territorial and political subdivisions are the provinces,
that it is given more powers, exercised by its board of cities, municipalities, and barangays. There shall be
authority, responsibilities, directors, and its own assets autonomous regions in Muslim Mindanao and the
and resources; and liabilities; [National Cordilleras. [Sec. 1, LGC]
Waterworks & Sewerage
Authority v. NWSA No province, city, municipality, or barangay may be
Consolidated Unions (1964)] created, divided, merged, abolished, or its boundary
altered except,
(a) in accordance with the criteria established in the Local
CLASSIFICATIONS Government Code and;
Municipal Corporation v. Quasi-Municipal Corporation (b) subject to approval by a majority of the votes cast in a
A municipal corporation exists by virtue of its charter, while plebiscite in the political units directly affected. [Sec.
a quasi-municipal corporation operates directly as an 10, LGC]
agency of the state.
GENERAL REQUIREMENTS
Law or Ordinance
A local government unit is created, divided, merged,
Municipal Corporations abolished, or its boundary altered:
(1) by law enacted by Congress, for provinces, cities,
ELEMENTS municipalities, and any other political subdivision;
(1) Legal creation or incorporation (2) by ordinance passed by the Sangguniang Panlalawigan
(2) Corporate name by which the entity is known and in or Panlungsod, for a barangay within its territorial
which all corporate acts are done jurisdiction;
(3) Population which is invested with the powers of the
corporation through duly constituted officers and Plebiscite
agents (1) Law or ordinance;
(4) Territory within which the local government exercises (2) Approved by majority of the votes cast in a plebiscite
civil and corporate functions; called for the purpose in the political unit or units
directly affected;
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(3) Said plebiscite shall be conducted by the COMELEC Province City Municipality Barangay
within 120 days from the date of effectivity of the law or
ordinance, unless said law or ordinance fixes another Population
date.
250,000 150,000 25,000 2,000
inhabitants inhabitants inhabitants inhabitants,
Only amendments to, or revisions of, the Organic Act
and 5,000
constitutionally-essential to the creation of autonomous
for
regions – those aspects specifically mentioned in the
barangays in
Constitution which Congress must provide for in the
cities and
Organic Act– require ratification through a plebiscite. If all
municipalitie
amendments to the Organic Act have to undergo the
s within
plebiscite requirement before becoming effective, this
Metro Manila
would hamper the ARMM’s progress by impeding
and highly-
Congress from enacting laws that timely address problems
urbanized
as they arise in the region, as well as weighing down the
cities
ARMM government with the costs that unavoidably follow
the holding of a plebiscite. [Abas Kida v. Senate of the Phil Territory
(2012)]
Contiguous Contiguous Contiguous No minimum
The phrase “in the political unit directly affected” refers to territory of at territory of at territory of at requirement
the residents of the political entity who would be least 2,000 least 100 least 50
economically dislocated by the separation of a portion square kms square kms square km
thereof who have the right to vote in said plebiscite.
[Padilla v. COMELEC (1992)] Creation of an LGU or its conversion from one level to
another level shall be based on verifiable indicators of
CREATION viability and projected capacity to provide services:
Nature of Power
The authority to create municipal corporations is (1) Income – must be sufficient to provide for all essential
essentially legislative in nature. [Pelaez v. Auditor General government facilities and services commensurate with
(1965)] the size of its population;
(2) Population – total number of inhabitants within the
The enactment of a LGC is not a sine qua non for the territorial jurisdiction of the local government unit
creation of a municipality, and before the enactment of concerned;
such, the power remains plenary except that creation (3) Land Area – must be:
should be approved in a plebiscite. [Torralba v. Sibagat (a) Contiguous, unless it comprises of two or more
(1987)] islands or is separated by an LGU independent of
the others;
Creations under Sec. 68, Admin. Code (b) Properly identified by metes and bounds with
The alleged power of the President to create municipalities technical descriptions;
under the Administrative Code amounts to an undue (c) Sufficient to provide for such basic services and
delegation of legislative power. The power of control of the facilities to meet the requirements of its populace;
President over executive departments does not include the
authority to abolish or create such. [Pelaez v. Auditor The income requirement covers the income accruing to the
General (1965)] general fund, exclusive of special funds, transfers, and
non-recurring income.
Beginning of Corporate Existence
Commences upon the election and qualification of its chief Provinces and Cities must satisfy the income requirement,
executive and a majority of the members of its sanggunian, and EITHER population or territory. Barangays have no
unless some other time is fixed therefor by the law or minimum requirement for area and income.
ordinance creating it. [Sec. 14, LGC]
Compliance with such requirements are attested to by:
Specific Requirements (1) Department of Finance
General Rule: (2) National Statistics Office (NSO)
Province City Municipality Barangay (3) Lands Management Bureau (LMB) of the Department
of Environment and Natural Resources (DENR)
Income
INTERNAL REVENUE ALLOTMENTS
Average Average Average No minimum
The IRA forms part of the income of the LGU. The funds
annual annual annual requirement
generated from local taxes, IRA, and national wealth
income of not income of not income of not
utilization proceeds accrue to the general fund of the LGU.
less than less than less than
[Alvares v. Guingona (1996)]
P20M, based P100M, P2.5M pesos,
on 1991 based on based on
Other LGUs
constant 2000 1991 constant
Special Metropolitan Political Subdivisions
prices constant prices
(a) created by Congress, subject to a plebiscite;
prices
(b) component cities/municipalities retain their basic
autonomy and entitled to create their own local

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executive and legislative assemblies;
(c) metropolitan authority that will be created shall be
limited to basic services requiring coordination; [Sec. 11,
LGC]
Highly Urbanized Cities and Independent Component Cities
(a) independent of the province;
(b) for HUCs, as determined by law
(c) for ICCs, as determined by their charter if prohibited
from voting for provincial officers; [Sec. 12, LGC]
Autonomous Regions
(a) consist of provinces, cities, and municipalities and
geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within the
framework of the Constitution;
(b) President of the Philippines exercises general
supervision over such region;
(c) all powers not granted to it by law or the Constitution
shall be vested in the National Government;
(d) created via organic act for each autonomous region,
with participation of the regional consultative
commission,
(I). defines the basic structure of government for the
region for both the executive department and
legislative assemblies
(ii). provides for special courts with personal, family,
and property law jurisdiction; [Sec. 15-18, LGC]
De Facto Corporations
Occurs when there is defect in the creation but the legal
existence has been recognized and acquiesced publicly
and officially.
The requisites are. — (1) Valid law authorizing incorporation;
(2) Attempt in good faith to organize it; (3) Colorable
compliance with law; (4) Assumption of corporate powers;
Municipal Corporations by Prescription. — Existence is
presumed where the corporation has claimed and
exercised corporate functions with the knowledge and
acquiescence of the legislature, and without interruption or
objection for a period long enough to afford title by
prescription. [Martin, Public Corporations (1977)]
ATTACKS AGAINST VALIDITY OF INCORPORATION
The action is reserved to the state in a proceeding for quo
warranto or any other direct proceeding. Collateral attacks
are not allowed.
The proceeding must be:
(1) Brought in the name of the Republic of the Philippines
(2) Commenced by the Solicitor General or the fiscal when
directed by the President
(3) Timely raised [Municipality of San Narciso vs Mendez
(1994)]
DOWNGRADING
Falls within the meaning of creation, division, merger,
abolition, or substantial alteration; hence ratification in a
plebiscite is necessary. There is a material change in the
political and economic rights of the LGU's inhabitants as
well as its budget, and thus reasonable to require the
consent of the affected population. [Miranda vs. Aguirre
(1999)]
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BAR OPERATIONS COMMISSION
The Effects of Downgrading (from independent component
city to component city) are: — (1) The city mayor will be
placed under the administrative supervision of the
Governor; (2) Resolutions and ordinances will have to be
reviewed by the Provincial Board; (3) Taxes will have to be
shared with the province;
DIVISION AND MERGER
Division and merger shall comply with the same
requirements prescribed for their creation:
Provided: such division shall no reduce the income,
population, or land area of the LGU concerned to less than
the minimum requirements prescribed;
Provided: the income classification of the original LGU
shall not fall below its current classification prior to the
division;
Effects of Merger
(1) Legal existence and right of office of the annexed LGU
are terminated
(2) Laws and ordinances of the annexing LGU shall prevail
(3) Title to property is acquired by the annexing LGU
(4) Debts are assumed by the annexing LGU
Effects of Division
(1) The legal existence of the original LGU is extinguished
(2) The property, rights, and powers are acquired by the
dividing LGUs
ABOLITION
An LGU may be abolished when its income, population, or
land area has been irreversibly reduced to less than the
minimum standards prescribed for its creation.
(a) Certified by the national agencies concerned to the
Congress or the sanggunian, as the case may be.
(b) Does result in an automatic cessation of the LGU;
Congress or the sanggunian concerned must pass a law or
ordinance for the abolition, and such must be subjected to
a plebiscite. [Sultan Usman Sarangani v. COMELEC (2000)]
Dissolution does not occur due to:
(1) Non-user or surrender of charter
(2) Failure to elect municipal officers
(3) Change of sovereignty
(4) Change of name
Principles of Local Autonomy
LOCAL AUTONOMY
The territorial and political subdivisions shall enjoy local
autonomy. [Sec. 2, Article X, 1987 Constitution]
DECLARATION OF POLICY
(a) Policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities
and make them more effective partners in the
attainment of national goals.
(b) The State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
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government units shall be given more powers,
authority, responsibilities, and resources. [Sec. 2, LGC]
The princple of local autonomy under the 1987
Constitution simply means decentralization. [Basco v.
PAGCOR (1991)]
DECENTRALIZATION
Refers to either (1) decentralization of administration or to
(2) decentralization of power.
(g) Maintenance of peace and order
(h) Preservation of the comfort and convenience of its
inhabitants [Sec. 16, LGC]
NATURE
The police power of a municipal corporation extends to all
great public needs, and includes all legislation and
functions of the municipal government. The drift is towards
social welfare legislation geared towards state policies to
provide adequate social services, the promotion of general
welfare, and social justice. [Binay v. Domingo (1991)]

Decentralization of Public Use

Decentralization of Power (1) The public in general should have equal or common
Administration
rights to use the land or facility involved on the same
terms.
Occurs when the central Abdication of political (2) The number of users in not the yardstick in determining
government delegates power in favor of LGUs whether property is properly reserved for public use or
administrative powers to declared to be autonomous benefit. [Republic v. Gonzales (1991)]
political subdivisions in regions, making the latter
order to broaden the base no longer accountable to Two Branches of General Welfare Clause
of government power. the national government, (1) The general legislative power, which authorizes
[Ganzon v. CA (1991)] but to its constituents municipal councils to enact ordinances and make
instead regulations not repugnant to law and may be
The purpose of such is to necessary to carry into effect and discharge the powers
relieve the central Not allowed under the 1987 and duties conferred upon it by law.
government of the burden Constitution (2) The police power, which authorizes the municipality to
of managing local affairs enact ordinances as may be proper and necessary for
and enable to concentrate the health and safety, prosperity, morals, peace, good
on national concerns. order, comfort and convenience of the municipality and
its inhabitant, and for the protection of their property.
DEVOLUTION [Rural Bank of Makati, Inc. v. Municipality of Makati
The act by which the national government confers power (2004)]
and authority upon the various local government units to
perform specific functions and responsibilities [Sec. 17, LIMITATIONS
LGC] (1) The General Welfare clause cannot be used to justify an
act not authorized by law.
(2) The exercise of such must be via a valid ordinance [Tatel
v. Municipality of Virac (1992)]
Powers of Local Government (a) Not contrary to the Constitution or statute
(b) Not unfair or oppressive
Units (c) Not partial or discriminatory
(d) Not unreasonable -Consistent with public policy
SOURCES OF POWER: ILLUSTRATIONS – POLICE POWER APPLIED
(1) 1987 Constitution; Sec. 25, Art II and Sec. 5-7, Art X (1) Prescribing zoning and classification of merchandise
(2) Law; Local Government Code sold in the public market;
(3) Charter (2) Condemnation and demolition if buildings found to be
(4) Right to Self-Government; applies only in states which dangerous or ruinous condition;
adhere to such doctrine (3) Regulation and operation of tricycles and to grant
franchises for the operation thereof;
POLICE POWER (GENERAL WELFARE CLAUSE) (4) Zoning regulations;
(1) Powers expressly granted (5) Providing burial assistance to the poor;
(2) Powers impliedly granted (6) Enforcement of fishery laws within LGU waters;
(3) Powers necessary, appropriate, or incidental for efficient
and effective governance ILLUSTRATIONS –POLICE POWER DOES NOT APPLY
(4) Powers essential to the promotion of the general (1) Prohibition of operation of night clubs, as it is a lawful
welfare trade or pursuit of occupation;
(5) Duty to ensure and support: (2) Rescinding of mayor's permits based on arbitrary
(a) Preservation and enrichment of culture grounds;
(b) Promotion of health and safety
(c) Enhancement of the right of the people to a EMINENT DOMAIN
balanced ecology It is the right or power of the sovereign state to appropriate
private property within the territorial sovereignty for public
Development of self-reliant scientific and purpose.
technological capabilities
(d) Improvement of public morals
(e) Economic prosperity and social justice
(f) Promotion of full employment among residents
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UP COLLEGE OF LAW LOCAL GOVERNMENT CODE
NATURE
The exercise of eminent domain is necessarily in
derogation of private rights, hence the authority to exercise
such must be strictly construed. [Heirs of Suguitan v. City of
Mandaluyong (2000)]
REQUISITES
(1) Ordinance enacted by the local legislative council
authorizing the local Chief Executive to exercise
eminent domain
(2) For purpose of public use, public purpose, or welfare for
the benefit of the poor and landless
(3) Payment of just compensation based on the fair market
value of the property at the time of taking
(4) Valid and definite offer was previously made to the
owner of the property, but the offer was not accepted
[Sec. 19, LGC]
The primary question is whether the government has
complied with the requisites for taking of private property.
The value of the property is merely incidental to the
expropriation suit, as it is only after the court is satisfied
with the propriety of expropriation that said amount is
determined. [Barangay San Roque v. Heirs of Pastor
(2000)]
JUST COMPENSATION
Section 3A of Republic Act No. 6395, as amended (which
provides a fixed formula in the computation of just
compensation in cases of acquisition of easements of right
of way) is not binding upon this Court. This is in keeping
with the established rule that the determination of “just
compensation” in eminent domain cases is a judicial
function. [National Power Corporation v. Lleto (2012)] \
IMMEDIATE ENTRY BY THE LGU
(1) Filing of the complaint for expropriation sufficient in form
and substance
(2) Deposit of the amount equivalent to 15% of the fair
market value of the property to be expropriated based on
the current tax declaration
Upon compliance with the requisites, the issuance of a writ
of possession becomes ministerial. There is no need for a
hearing for the writ to issue. [City of Iloilo v. Legaspi (2004)]
SOCIALIZED HOUSING [RA 7279]
Under the Urban Development and Housing Act,
expropriation by an LGU for purposes of socialized housing
projects shall occur only as a last resort. It must be shown by
the LGU that other methods of acquisition have been
exhausted: mortgage, land swapping, land consolidation,
donation, joint venture agreements, and negotiated
purchase.
If all the other methods have been exhausted and
expropriation to continue, the LGU shall prioritize
expropriation of property of:
(1) Government lands
(2) Alienable public lands
(3) Abandoned lands
(4) Areas for priority development
(5) Unacquired BLISS sites
(6) Private lands
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BAR OPERATIONS COMMISSION
Furthermore, small property landowners are similarly exempt
from expropriation for purposes of socialized housing,
provided:
(1) Those owners of real property which consist of residential
lands within an area of not more than 300 sq. meters in
highly urbanized cities, and 800 in other urban cities;
AND
(2) They do not own real property other than the same.
TAXING POWER
Each LGU shall have the power to create new sources of
funds and to levy taxes, fees, and charges subject to
limitations as Congress may provide, consistent with the
basic policy of local autonomy. Such taxes, fees, and charges
accrue exclusively to the local governments. [Sec 5, Article X,
1987 Constitution]
FUNDAMENTAL PRINCIPLES ON TAXATION BY AN LGU
(1) Taxation shall be uniform;
(2) Taxes, fees, and charges shall be equitable and based
as far as practicable on the taxpayer's ability to pay;
(3) Levied and collected only for a public purpose;
(4) Shall not be unjust, excessive, oppressive, or
confiscatory;
(5) The collection of taxes, fees, and charges shall in no
case be left to any private person;
(6) The revenue shall insure solely to the LGU, unless
otherwise specified;
(7) Each LGU shall, as far as practicable, evolve a
progressive system of taxation;
(8) Shall not be contrary to law, public policy, national
economic policy, or in restraint of trade; [Sec. 130, LGC]
SOURCES OF LGU FUNDS
(1) Own sources of revenue
(2) Taxes, fees, and charges which accrue exclusively for their
use and disposition
(3) Just share in national taxes which shall be automatically
and directly released to themselves
(4) Equitable share in the proceeds from utilization and
development of national wealth and resources within
their territorial jurisdiction
LGUs, in addition to administrative autonomy, also enjoy
fiscal autonomy. LGUs have the power to create their own
sources of revenue, in addition to their equitable share in the
national taxes and their power allocate resources in
accordance with their own priorities. [Pimentel v. Aguirre
(2000)]
COMMON LIMITATIONS ON TAXING POWER
Unless otherwise provided herein, the exercise of the taxing
powers of provinces, cities, municipalities, and barangays
shall not extend to the levy of the following:
(a) Income tax, except when levied on banks and other
financial institutions
(b) Documentary stamp tax
(c) Taxes on estates, inheritance, gifts, legacies and other
acquisitions mortis causa
(d) Customs duties, registration fees of vessel and
wharfage on wharves, tonnage dues, and all other
kinds of customs fees, charges and dues except
wharfage on wharves constructed and maintained by
the local government unit concerned
(e) Taxes, fees, and charges and other impositions upon
goods carried into or out of, or passing through, the
territorial jurisdictions of local government units in the
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE
guise of charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise
(f) Taxes, fees or charges on agricultural and aquatic
products when sold by marginal farmers or fishermen
(g) Taxes on business enterprises certified to by the Board
of Investments as pioneer or non-pioneer for a period
of six (6) and four (4) years, respectively from the date
of registration;
(h) Excise taxes
(i) Percentage or value-added tax
(j) Taxes on the gross receipts of transportation contractors
and persons engaged in the transportation of
passengers or freight by hire and common carriers by
air, land or water, except as provided in this Code
(k) Taxes on premiums paid by way or reinsurance or
retrocession;
(l) Taxes, fees or charges for the registration of motor
vehicles and for the issuance of all kinds of licenses or
permits for the driving thereof, except tricycles
(m) Taxes, fees, or other charges on Philippine products
actually exported, except as otherwise provided herein
(n) Taxes, fees, or charges, on Countryside and Barangay
Business Enterprises and cooperatives duly registered
under R.A. No. 6810 and the Cooperative Code,
respectively
(o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, and
local government units [Sec. 133, LGC]
EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION
Sec. 133 of the LGC provides a limitation on the power of
an LGU to levy taxes, fees, or charges on the national
government, its agencies and instrumentalities, unless
otherwise provided. Sec. 234 of the LGC on the other hand,
grants to LGUs the power to impose real property tax on
properties of the Republic of the Philippines and its
political subdivisions when its beneficial use is granted to a
taxable person.
FUNDAMENTAL PRINCIPLES ON THE FINANCIAL AFFAIRS OF AN LGU
(a) No money shall be paid out of the local treasury except
in pursuance of an appropriations ordinance or law;
(b) Local government funds and monies shall be spent
solely for public purposes;
(c) Local revenue is generated only from sources expressly
authorized by law or ordinance, and collection thereof
shall at all times be acknowledged properly;
(d) All monies officially received by a local government
officer in any capacity or on any occasion shall be
accounted for as local funds, unless otherwise provided
by law;
(e) Trust funds in the local treasury shall not be paid out
except in fulfillment of the purpose for which the trust
was created or the funds received;
(f) Every officer of the local government unit whose duties
permit or require the possession or custody of local
funds shall be properly bonded, and such officer shall
be accountable and responsible for said funds and for
the safekeeping thereof in conformity with the
provisions of law;
(g) Local governments shall formulate sound financial
plans, and local budgets shall be based on functions,
activities, and projects, in terms of expected results;
(h) Local budget plans and goals shall, as far as
practicable, be harmonized with national development
plans, goals, and strategies in order to optimize the
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BAR OPERATIONS COMMISSION
utilization of resources and to avoid duplication in the
use of fiscal and physical resources;
(i) Local budgets shall operationalize approved local
development plans;
(j) Local government units shall ensure that their
respective budgets incorporate the requirements of
their component units and provide for equitable
allocation of resources among these component units;
(k) National planning shall be based on local planning to
ensure that the needs and aspirations of the people as
articulated by the local government units in their
respective local development plans are considered in
the formulation of budgets of national line agencies or
offices;
(l) Fiscal responsibility shall be shared by all those
exercising authority over the financial affairs,
transactions, and operations of the local government
units; and
(m) The local government unit shall endeavor to have a
balanced budget in each fiscal year of operation. [Sec.
305, LGC]
CLOSURE AND OPENING OF ROADS [SEC. 21, LGC]
SCOPE – WITHIN JURISDICTION OF THE LGU
(1) Local roads
(2) Alleys
(3) Parks
(4) Squares
FOR TEMPORARY CLOSURE
(1) Via ordinance
(2) May be done due to:
(a) Actual emergency
(b) Fiesta celebrations
(c) Public rallies
(d) Agricultural or industrial fairs
(e) Undertaking of public works and highways,
telecommunications, and waterworks projects
(3) Duration of closure must be specifically stated in the
order of closure
(4) If for the purpose for athletic, cultural, or civil activities;
these must be officially sponsored, recognized, or
approved by the local government
FOR PERMANENT CLOSURE
(1) Via ordinance approved by at least 2/3 of all members
of the Sanggunian
(2) Such ordinance must have provisions for the
maintenance of public safety therein
(3) Such property withdrawn may be used or conveyed for
any purpose for which other real property belonging to
the local government may be lawfully used or conveyed
(4) When necessary, an adequate substitute for the public
facility that is subject to closure should be provided
(5) If a freedom park is permanently closed, there must be
a provision for its transfer or relocation to a new site
FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS
(1) Via ordinance
(2) May temporarily close and regulate the use of any local
street, road, or any other public place
(3) For shopping malls, Sunday, flea, or night markets, or
shopping areas for the sale of goods, merchandise,
foodstuffs, and commodities
Note: All LGUs may temporarily and permanently close
their local roads, but the regulation and closure of local
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roads for the above purposes are limited to cities, Publication Effectivity
municipalities, and barangays.
Ordinance or Resolution on Local Development Plan and
A public road may not be the subject of lease or contract, Public Investment Programs
as public roads are properties for public use outside the
Follow general rule; Follow that stated in the
commerce of man. [Dacanay v. Asistio (1992)]
ordinance or resolution;
if none, follow general
The closure of public roads under police power is not
rule;
eminent domain. No grant of damages is awarded.
[Cabrera v. CA (1991)] All Ordinances with Penal Sanctions

LEGISLATIVE POWER posted at conspicuous places in Unless otherwise

REQUISITES FOR VALID ORDINANCE
the provincial capitol, or city, provided therein, shall
municipal or barangay hall for a take effect on the day
General Requirements minimum period of 3 following its publication,
Exercised via ordinance by: consecutive weeks; or at the end of the
(1) Sangguniang Panlalawigan for the province AND period of posting,
(2) Sangguniang Panlungsod for the city publication in a newspaper of whichever occurs later;
(3) Sangguniang Bayan for the municipality general circulation, except in the
(4) Sangguniang Barangay for the barangay case of barangay ordinances.
AND
Constitutional Requirements gist of such tax ordinance shall
(1) Not contrary to the Constitution and statute be published in a newspaper of
(2) Not unfair or oppressive general circulation within the
(3) Not partial or discriminatory province; if none, posting in all
(4) Not unreasonable municipalities and cities of the
(5) May regulate, but not prohibit trade province
(6) Must be general and consistent with public policy. Tax Ordinances
[Tatel v. Municipality of Virac (1992)]
Within 10 days after their Beginning of the quarter,
Presided by: approval, published in full for 3 if otherwise, the same
(1) Vice-governor or vice-mayor or punong barangay will consecutive days in a newspaper shall be considered as
vote only in case of a tie because he is not a member of of local circulation; if none. the falling at the beginning
the Sanggunian. [Perez vs. Dela Cruz (1969)] same may be posted in at least of the next ensuing
(2) The incumbent local chief executive acting as the chief 2 conspicuous and publicly quarter
executive may not preside over the sessions of the accessible places
Sanggunian. Why? To ensure better delivery of public
services and provide a system of checks and balances Approval and Veto of Ordinances
between the executive and legislative. [Gamboa v. Approval: Affix his signature on each and every page
Aguirre, supra]
The signature of the local chief executive in the approval of
In case of inability of the above: members present and an ordinance or resolution is not a mere ministerial act, as
constituting a quorum shall elect from among themselves it requires the exercise of analysis and judgment. This is
a temporary presiding officer who shall certify within 10 part of the legislative process. [Delos Reyes v.
days from the passage of the ordinances enacted and Sandiganbayan (1997)]
resolutions adopted by the sanggunian in the session over
which he temporarily presided [Sec. 49, LGC] Disapproval: The local chief executive may veto and
ordinance on the ground that it is ultra vires or prejudicial
Publication and Effectivity of Ordinances to public welfare, stating his reasons in writing
Publication Effectivity (1) may be exercised only once
(2) cannot be exercised by the punong barangay
General Rule (3) power to veto any particular item or items of
posted in a bulletin board at the 10 days after posting; (a) appropriations ordinance
entrance of the provincial (b) ordinances or resolutions adopting the local
capitol or city, municipal, or development plan or public investment program
barangay hall, as the case may (c) ordinances directing the payment of money or creating
be, and in at least 2 other liabilities
conspicuous places (4) the ordinance is returned with objections to the
Sanggunian within 15 days to the Sangguniang
Highly Urbanized and Independent Component Cities Panlalawigan, or within 10 days to the Sangguniang
Panlungsod/Bayan
Main features of the ordinances, General rule;
-may be overridden by the Sanggunian upon a 2/3 vote of
in addition to posting, shall be
all its members
published once in a newspaper
of local circulation; if none, in a
newspaper of general
circulation;

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Review of Ordinances/ Resolutions (2) Open to the public, unless a closed-door session
Component Cities and Sangguniang Barangay ordered by majority of the members present;
Municipalities
Minimum Sessions
By Whom Once a week for the Sang. Panlalawigan, Panlungsod, and
Bayan; Twice a month for the Sangguniang Barangay;
Sangguniang Panlalawigan Sangguniang
Panlungsod/Bayan
Special Sessions:
When (1) May be called the local chief executive or by majority of
the Sanggunian;
Within 3 days from approval, Within 10 days from (2) Written notice to all the members personally at least 24
forwarded by Secretary of approval, forwarded by hours before the special session is held;
Sang; Sanggunian; (3) If matters not in the notice are to be discussed during
What the special session, a 2/3 vote of those present is
required;
Ordinances/Res. on local All barangay ordinances;
development plans and Full Disclosure of Financial and Business Interests of
public investment programs Sanggunian Members
How Reviewed When: Upon assumption of office, before participation in
the deiberations on an ordinance or resolution, and when
Sang. Panlalawigan shall The sanggunian concerned taking a position or priviledge speech that may affect his
examine and transmit to the shall review such; interests;
Prov. Atty. for comments
and recommendations How: In writing and submitted to the Secretary of the
sanggunian or the secretary of the committee of which he
Reasons for Rejection is a member;
If beyond the power Whether consistent with law
conferred upon the and the city and municipal What: Any business, financial, or professional relationship
th
Sanggunian concerned ordinances; or relation by affinity/consanguinity up to the 4 degree
affected by any ordinance or sanggunian which may result
Period to Review in a conflict of interest.
30 days; if no action after 30 30 days; if no action after 30
days, deemed consistent days, deemed approved “Conflict of Interest” refers in general to one where it ma y
with law and valid be reasonably deduced that a member of the sanggunian
may not act in the public interest due to some private,
pecuniary, or other personal considerations that may tend
Internal Rules to affect his judgment.
Internal Rules of Procedure
st
(1) Adopted/updated on the 1 regular session following LOCAL INITIATIVE AND REFERENDUM
the election of the members of the Sanggunian and Local Initiative
shall be within 90 days from such
(2) Provides for: Legal process whereby the registered voters
(a) Organization of the Sanggunian and the election of Defined of a LGU may directly propose, enact, or
its officers amend an ordinance.
(b) Creation of Standing Committees All registered voters of the provinces, cities,
(c) Order and calendar of business for each session Exercised by
municipalities, and barangays.
(d) Disciplinary rules for members
Petition proposing the adoption, enactment,
Quorum repeal, or amendment of an ordinance filed
The presence of a quorum is required to transact official with the sanggunian concerned by not less
business; a majority of all members of the Sanggunian Procedure than
who have been elected and qualified. [Sec. 53, LGC] 1,000 – in case of provinces and cities
100- in case of municipalities
Only qualification is material in the counting of a quorum. 50- in case of barangays
The filing of a leave of absence does not affect the 15 days after the Certification by the
member's material qualification or election, hence quorum Effectivity COMELEC that the proposition is approved
shall be based on the total number of members without by a majority of the votes cast
regard to the filing of a leave of absence. [Zamora v.
Caballero (2004)] (1) The power of local initiative shall not be
exercised more than once a year.
It is legally permissible, as exceptions to the general (2) Initiative shall extend only to subjects or
provisions covered by the city charters and the LGC, that matters which are within the legal powers of
the vote requirement be specifically provided for instead of Limitations the sanggunians to enact.
the usual majority vote. [Casiño v. CA (1991)] (3) If at any time before the initiative is held,
the sanggunian concerned adopts in toto
Sanggunian Sessions the proposition presented and the local chief
(1) First session following the election, the Sanggunian executive approves the same, the initiative
shall fix the day, time, and place of its regular sessions;
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shall be cancelled. However, those against
such action may, if they so desire, apply for
initiative.
Any proposition or ordinance approved
through the system of initiative and
referendum shall not be repealed, modified,
or amended by the sanggunian concerned
Limitations within six (6) months from the date of the
upon approval thereof and may be amended,
Sanggunians modified, or repealed by the sanggunian
within three (3) years thereafter by a vote of
three-fourths (3/4) of all its members.
Provided that in case of barangays, the
period shall be eighteen months.
Proponents shall have 90 days in case of provinces and
cities, 60 days in case of municipalities, and 30 days in
case of barangays, from notice to collect the required
number of signatures
The petition shall be signed before the Election
Registrar, or his designated representative, in the
presence of a representative of the proponent, and a
representative of the regional assemblies and local
legislative bodies concerned in a public place in the LGU

Local Referendum
Legal process whereby the registered voters of the local If the required number of signatures is obtained, the
government unit may approve, amend, or reject any COMELEC shall then set a date for the initiative for
ordinance enacted by the Sanggunian. approval of the proposition within 60 days from the date
of certification by the COMELEC in case of provinces and
Initiative is resorted to (or initiated) by the people directly cities, 45 days in case of municipalities, and 30 days in
either because the law-making body fails or refuses to case of barangays [Sec. 122, LGC]
enact the law ordinance, resolution, or act that they desire
or because they want to amend or modify one already
existing. CORPORATE POWERS
TO SUE AND BE SUED
In a local referendum, the law-making body submits to the As a general rule, local government unit, as a corporation,
registered voters of its territorial jurisdiction, for approval shall have the power to sue and be sued. This applies to all
or rejection, any ordinance or resolution which is duly acts of the LGU in its corporate and proprietary capacity.
enacted or approved by such lawmaking authority. Said [Sec. 22, LGC]
referendum shall be conducted under the control and
direction of the COMELEC.
Corporate (Proprietary)
Governmental Powers
While initiative is entirely the work of the electorate, Powers
referendum is begun and consented to by the law-making Exercised in administering Exercised for the special
body. Initiative is a process of law-making by the people the powers of the state and benefit and advantage of
themselves without the participation and against the
promoting public welfare the community
wishes of their elected representatives, while referendum
consists merely of the electorate approving or rejecting
what has been drawn up or enacted by a legislative body. Cannot be sued without Impliedly consents to
consent for injuries it being sued by entering into
Procedure
caused private contracts
Not less than 1,000 registered voters in case of
provinces and cities, 100 in case of municipalities, and
50 in case of barangays, may file a petition with the local Officers or agents acting Officers and agents are
legislative body, respectively, proposing the adoption, within official duties are not liable for negligence/ torts
enactment, repeal, or amendment, of any law, ordinance liable unless they acted while within scope of
or resolution willfully and maliciously employment.

Respondeat superior Respondeat superior

If no favorable action thereon is made by local legislative
body within 30 days from its presentation, the
proponents through their duly authorized and registered
representative may invoke their power of initiative, giving
notice thereof to the local legislative body concerned
2 or more propositions may be submitted in an initiative
doesn’t apply applies
TO ACQUIRE AND SELL REAL PROPERTY
If the property is owned by the municipality in its public and
governmental capacity, the property is public and Congress
has absolute control over it. If the property is owned in its
private or proprietary capacity, then it is patrimonial and
Congress has no absolute control and the municipality
cannot be deprived of it without due process and payment of
just compensation. [Rabuco v. Villegas (1974)]

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TO ENTER INTO CONTRACTS

Requisites The obligation imposed by article 2176 is demandable not
(1) Entered into by the the local chief executive in behalf of only for one's own acts or omissions, but also for those of
the LGU persons for whom one is responsible.
(2) Prior Authorization by Sanggunian concerned xx
(3) Legible copy of contract posted at a conspicuous place The State is responsible in like manner when it acts
in the through a special agent; but not when the damage has
(a) provincial capitol or been caused by the official to whom the task done properly
(b) city, municipal, barangay hall pertains, in which case what is provided in article 2176 shall
be applicable.
Authority to Negotiate and Secure Grants xx
Who may negotiate: Local Chief Executive (upon authority The responsibility treated of in this article shall cease when
of Sanggunian) the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent
What are negotiated: damage. [Art. 2180, Civil Code]
(1) Financial grants or donations in kind in support of basic
services or facilities
(2) From local and foreign assistance agencies
Provinces, cities and municipalities shall be liable for
Approval by national agency concerned damages for the death of, or injuries suffered by, any
General rule: No necessity of securing clearance from person by reason of the defective condition of roads,
national agency streets, bridges, public buildings, and other public works
under their control or supervision. [Art. 2189, Civil Code]
Exception: If with national security implications
(1) Shall be approved by national agency concerned Political/Governmental Acts Corporate/Proprietary Acts
(2) Failure to act on request for approval within 30 days
from receipt: deemed approved Liability
LGU generally not liable Can be held liable ex
Reporting duty: local chief executive shall report to both unless: contractu or ex delicto;
Houses of Congress and the President (1) Statute provides
(1) Nature otherwise;
(2) Amount (2) damages due to
(3) Terms defective condition of
(4) Within 30 days upon signing of grant agreement or roads, streets, buildings,
deed of donation [Sec. 23, LGC] and other public works
(Art. 2189, Civil Code)
Ultra Vires Contracts (3) damages due due to
An LGU can only legitimately exercise powers of failure to render aid or
government only within the limits of the authority granted protection in case of
to it, or else its acts are ultra vires. danger to life or
property (Art. 34, Civil
Illustrations: Code)
A public street is property for public use hence outside the
commerce of man. Being outside the commerce of man, it Defense
may not be the subject of lease or other contract. The city
No valid defense for non- Defense of due diligence in
government, contrary to law, has been leasing portions of
performance the selection and supervision
the streets. Such lease or license is null and void for being
of its officers
contra to law. [Dacanay v. Asistio (1992)]
Personal Liability of Officers

Officers or agents acting Officers and agents are liable

Liability of LGUs
Local government units and their officials are not exempt
from liability for death or injury to persons or damage to
property. [Sec. 24, LGC]
When a member of a city or municipal police force refuses
or fails to render aid or protection to any person in case of
danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The civil action
herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice
to support such action. [Art. 34, Civil Code]
within official duties are not for negligence/ torts while
liable unless they acted within scope of employment.
willfully and maliciously
Illustrations
ON CONTRACT
General Rule: The LGU is liable only for contracts that are
intra vires.
The Doctrine of Implied Municipal Liability provides that an
LGU may become obligated upon an implied contract to
pay reasonable value of the benefits accepted by it as to

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which it has the general power to contract [Cebu v. IAC
(1987)]
Exception: the LGU may not be estopped in order to
validate a contract which the LGU is not authorized to
make EVEN IF it has accepted the benefits thereunder [San
Diego v. Mun. Of Naujan (1960)]
A private individual who deals with a LGU is imputed with
constructive knowledge of the extent of the power or
authority of the LGU to enter into contracts. Thus,
ordinarily, the doctrine of estoppel does not lie against the
LGU.
ON TORT
If in the performance of a governmental function, the LGU
is NOT liable
The prosecution of crimes, even if injury occurs [Mendoza v.
- Note that under NCC27, a public servant is personally liable
de Leon (1916)]
If in the performance of a proprietary function, the LGU is
liable
The improper grant of a ferry service franchise [Mendoza v.
de Leon (1916)]
Note: Municipal corporations’ liability to private persons
for the wrongful exercise of the corporate powers is the
same as that of a private corporation or individual
[Mendoza v. de Leon (1916)]
Deaths caused by a collapsed stage in a town fiesta [Torio
v. Fontanilla (1978)]
Back pay or wages of employees illegally dismissed,
including those involving primary governmental functions
(e.g. policemen) [Guillergan v. Ganzon (1966)]
BY EXPRESS PROVISIONS OF LAW
ARTICLE 2189, CC
When a person falls in an open manhole in the city streets.
[Manila v. Teotico (1968)]
When a person steps on a rusted nail in a flooded public
market. [Jimenez v. Manila (1987)]
When accidents are caused by defective roads even if the
road does not belong to the LGU as long as it exercises
control or supervision over said road. [Guilatco v. Dagupan
(1989)]
Damages suffered through accidents in national roads
under the control and supervision of an LGU (cause is
unsafe road conditions, especially when there is gross
negligence). [Municipality of San Juan v. CA (2005)]
Also exemplary damages may be granted when public
officials acted with gross negligence. [Quezon City v.
Dacara (2005)]
ARTICLE 2180, CC
When the State acts through a special agent [Merritt v.
Government (1916)]
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ON VIOLATION OF LAW
When the Mayor refused to abide by a TRO issued by the
court, he may be held in contempt. [Moday v. CA (1997)]
When the LGU does not pay the statutory minimum wage
(mandated by law) even if there is lack of funds. [Racho v.
Ilagan, Isabela (1968)]
PERSONAL LIABILITY OF PUBLIC OFFICIAL
General Rule: The public official is personally liable if he
acts beyond the scope of his powers OR if he acts with bad
faith.
Illustrations:
Mayor exceeding authority in vetoing a resolution passed
by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol
(1984)]
for damages for his refusal or neglect to perform his official
duty.
When the officials incorrectly ordered the construction of a
drug rehabilitation center [Angeles v. CA (1996)]
When officials illegally dismiss an employee [Rama v. CA
(1987)]
When the official defies an order of reinstatement of an
illegally dismissed employee [Correa v. CFI (1979)]
The Mayor pays for the back salaries of an illegally
dismissed employee [Nemenzo v. Sabillano (1968)]
The Governor pays for moral damages for refusing the
reinstatement of an employee [San Luis v. CA (1989)]
A public officer, whether judicial, quasi-judicial or
executive, is not personally liable to one injured in
consequence of an act performed within the scope of his
official authority, and in line of his official duty. [Tuzon v.
CA (1992)]
The holding of a town fiesta is a proprietary function,
though not for profit, for which a municipality is liable for
damages to 3rd persons ex contractu or ex delicto;
(a) that under the principle of respondeat superior the
principal is liable for the negligence of its agents acting
within the scope of their assigned tasks; and
(b) that the municipal councilors have a personality distinct
and separate from the municipality [Torio v. Fontanilla
(1978)]
Hence, as a rule they are not co-responsible in an action
for damages for tort or negligence unless they acted in bad
faith or have directly participated in the commission of the
wrongful act.
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Settlement of Boundary The power of provincial boards to settle boundary disputes

is limited to implementing the law creating a municipality.

Disputes Thus, provincial boards do not have the authority to

approve agreements which in effect amend the boundary
stated in the creating statute [Municipality of Jimenez v.
Boundary disputes between and among local government Baz (1996)]
units shall, as much as possible, be settled amicably. To
this end: [Sec. 118, LGC] The conduct of plebiscites, to determine whether or not a
barangay is to be created, should be suspended or
Boundary dispute Where: Settled by: cancelled in view of a pending boundary dispute between
between: two local governments. Precisely because territorial
2 or more Same city or Sangguniang jurisdiction is an issue raised in the pending boundary
barangays municipality Panlungsod or dispute, until and unless such issue is resolved with finality,
Sangguniang to define the territorial jurisdiction of the proposed
Bayan barangays would only be an exercise in futility. [City of
2 or more Same Sangguniang Pasig v. COMELEC (1999)]
municipalities province Panlalawigan
Municipalities or Different Jointly referred to
component cities province sanggunians of the
provinces
concerned
Succession of Elective
Component city or
Municipality vs.
Jointly referred to
respective
Officials
Highly urbanized Sanggunians of the
city parties SUCCESSION IN PERMANENT VACANCIES
Or PERMANENCY OF VACANCY
Between 2 or more Permanent Vacancy Occurs when an elective local official:
highly urbanized [Sec. 44, LGC]
cities (1) fills a higher vacant office
(2) refuses to assume office
In the event the Sanggunian fails to effect an amicable (3) fails to qualify
settlement within 60 days from the date the dispute was (4) dies
referred thereto, it shall issue a certification to that effect. (5) is removed from office
Thereafter, the dispute shall be formally tried by the (6) voluntarily resigns
sanggunian concerned which shall decide the issue within (7) otherwise permanently incapacitated from discharging
60 days from the date of the certification referred to above. the functions of his office

When the dispute between two LGUs do no fall under POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT
those enumerated in Sec. 118 of the LGC, BP 129 Sec. 19 is Vacant Position Successor
applicable: “Regional Trial Courts shall exercise exclusive
original jurisdiction in all cases not within the exclusive Permanent Vacancy
jurisdiction of any court, tribunal, person, or body Governor or Mayor Vice Governor ; Vice Mayor
exercising judicial or quasi-judicial functions.” The RTC
exercises original jurisdiction over the settlement of a Governor, Vice-Gov, Mayor, Highest-ranking
boundary dispute between a municipality and an Vice-Mayor Sangguinang member
independent component city. [Municipality of Kananga v. Permanent Inability
Madrona (2003)]
Highest-ranking Second highest-ranking
Sangguniang Member (as Sangguniang Member
APPEAL [SEC. 119, LGC]
the successor of the Gov, (subsequent vacancies
When: Within the time and manner prescribed by the Rules Vice-Gov, Mayor, Vice-M) filled according to their
of Court rank)
Where: Proper Regional Trial Court having jurisdiction over Permanent Vacancy
the area in dispute.
Punong Barangay Highest-ranking
Who: Any party
Sangguniang Barangay
Member
The Regional Trial Court shall decide the appeal within Tie between highest
one (1) year from the filing thereof. Pending final resolution ranking Sangguninan
of the disputed area prior to the dispute shall be Member then draw lots
maintained and continued for all legal purposes.

MAINTENANCE OF THE STATUS QUO

Pending final resolution of the dispute: status of the
affected area prior to the dispute shall be maintained and
continued for all purposes. [Sec. 18, IRR of the LGC]

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Sanggunian Member becomes vacant [Farinas v. Barba (1996)]

If prior member was
If prior member not a member of
Position Appointing Authority member of a political
any political party
party
Nomination and
Recommendation of the Certification of the
Sangguniang Panlalawigan political party of the
Sangguniang Panlalawigan
member who caused the
President through vacancy issued by the
Sangguniang Panlungsod (of highly the Executive highest official of the
Secretary Recommendation of the political party
urbanized and independent
Sangguniang Panlungsod
component cities)
SECTION 45 (b)

Nomination and
Certification of the
Recommendation of political party of the
Sangguniang Panlungsod (of
Sangguniang Panglungsod member who caused the
component cities)
vacancy issued by the
Governor highest official of the
Recommendation of political party
Sangguniang Bayan
Sangguniang Bayan
SECTION 45 (b)

Recommendation of
Sangguniang Barangay City or Municipal
Sangguniang Barangay
Mayor

General Rule: The appointee under Sec. 45 must be a
nominee of the political party under which the sanggunian
member (whose elevation to the position next higher in
rank created the vacancy) had been elected.
Conditions sine qua non: There must be a nomination and
certificate of membership from the highest official of the
political party or else the appointment is:
(1) null and void ab initio; and
(2) a ground for administrative action against the
responsible official.
If sanggunian member who caused vacancy does not
belong to any political party, the local chief executive shall
appoint a qualified person, upon recommendation of the
sanggunian.
Exception: The power to appoint/suspend/dismiss
employees can be exercised only if the period of incapacity
exceeds 30 working days; or if the successor is appointed
in writing, if the authorization specifies such powers to the
successor.
If the local chief executive is traveling within the country
but outside his territorial jurisdiction for a period not
exceeding 3 consecutive days, he may designate in writing
the officer-in-charge.
General Rule: The local chief executive cannot authorize
any local official to assume the powers/duties/functions of
his office, other than the vice-governor, city/municipal
vice-mayor, or highest ranking sangguniang barangay
member.

The appointee under Sec. 45 serves the unexpired term of The authorization shall specify the powers and functions
the vacant office. that the officer-in-charge shall exercise.
Exception: Sangguniang barangay.
Exception: The power to appoint, suspend and dismiss
If the vacancy pertains to barangay or youth representation employees.
in the sanggunian, the vacancy is automatically filled by
the official next in rank of the organization concerned. General Rule: If the local chief executive fails/refuses to
issue the authorization, the vice-governor, city/municipal
TEMPORARY VACANCIES vice-mayor, or highest ranking sangguniang barangay
Temporary Vacancy Occurs when the local chief executive is member has right to assume the powers, duties, and
due to: functions of the office on the 4th day of absence.
(1) leave of absence
(2) traveling abroad Exception: The power to appoint/ suspend/dismiss
(3) suspension from office employees.

Extent of Duty exercised by Temporary Successor Office where Temporary Who Temporarily Succeeds
General Rule: The successor shall automatically exercise Vacancy Occurs into Office
the powers and perform the duties and functions of the
local chief executive. Governor Vice-Governor,
automatically

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Office where Temporary

Vacancy Occurs
Who Temporarily Succeeds
into Office
Discipline of Elective Officials
Mayor Vice-Mayor, automatically GROUNDS OF DISCIPLINARY ACTION
Punong Barangay Highest-ranking (a) Disloyalty to the Republic of the Philippines;
Sanggunian Member, (b) Culpable violation of the Constitution;
automatically (c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;
Local Chief Executive is 1) The person designated in (d) Commission of any offense involving moral turpitude or
travelling within the country writing by the local chief an offense punishable by at least prision mayor;
but is outside the territorial executive (e) Abuse of authority;
jurisdiction for a period not 2) Vice-Governor, Vice- (f) Unauthorized absence for fifteen (15) consecutive
exceeding three consecutive Mayor, or highest-ranking working days, except in the case of members of the
days Sanggunian Member on the sangguniang panlalawigan, sangguniang panlungsod,
th
4 day of absence, if local sangguniang bayan, and sangguniang barangay;
chief executive fails or (g) Application for, or acquisition of, foreign citizenship or
refuses to designate a residence or the status of an immigrant of another
successor; country; and
(h) Such other grounds as may be provided in this Code
The creation of a temporary vacancy in the office of the and other laws. [Sec. 60, LGC]
Governor creates a corresponding temporary vacancy in
the office of the Vice Governor whenever the latter acts as Any attempt to enforce and disapproved
Governor by virtue of such temporary vacancy. This event ordinance/resolution on local development plans or public
constitutes an inability on the part of the presiding officer investment programs, shall be sufficient ground for the
(Vice Gov) to preside during the SP sessions; which thus suspension or dismissal of the officer/employee
concerned. [Sec. 58, LGC]
calls for the operation of the remedy set in ART 49 (b) of
the LGC on the election of a temporary presiding officer. JURISDICTION
[Gamboa v. Aguirre (1999)] ADMINISTRATIVE COMPLAINTS [Sec. 61, LGC]
By Whom: By means of a verified complaint; by any private
Termination of Temporary Incapacity individual or government official or employee, or motu
Upon submission to the sanggunian of a written proprio by the Office of the President or the government
declaration that he has reported back to office agency duly authorized by law; [AO 23, as amended]

If the temporary incapacity is due to legal causes, he must WHERE FILED

also submit the necessary documents showing that the
legal causes no longer exist. Elective Local Official of Complaint filed at

Province, highly urbanized Office of the President

Leaves of Absence
city, independent component
Local Official LoA Approved by city, or component city
Governors and mayors of The President or his duly Municipality Sangguniang
highly-urbanized cities or authorized representative Panglalawigan,
independent component
cities Barangay Sangguniang Panglungsod
or Bayan
Vice-Governors, The local chief executive
City/Municipal Vice-Mayors
If penalty is removal
City/Municipal Mayors of The Governor Must be by order of the proper court. The Sanggunians
component cities and cannot order the removal of an erring elective official from
municipalities office, as the courts are exclusively vested with this power
under Sec. 60 of the LGC.
Sanggunian Panlalawigan, The Vice-Governor or Vice-
Panglungsod, and Bayan Mayor If the acts allegedly committed by the official are of a grave
Members and their nature and, if found guilty, would merit the penalty of
employees removal from office, the case should be filed with the
Punong Barangays The City/Municipal Mayor regional trial court. If it is found that the penalty will be
lower than removal, the court still retains its jurisdiction.
Sanggunian Barangay The punong barangay [Sangguniang Barangay of Don Mariano Marcos v. Martinez
Members (2008)]

If the application for LoA is not acted upon within 5 OMBUDSMAN JURISDICTION
working days after receipt, the application is deemed Primary Jurisdiction [Sec. 15, Acts or omissions of a public
approved. [Sec. 46, LGC] RA 6770] officer or employee in cases
cognizable by
the Sandiganbayan (Salary

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grade of 27 or higher) paid full salary that accrued during such suspension;
(2) Accorded full opportunity to appear and defend
himself, to confront witnesses, and require attendance
Concurrent Jurisdiction [Sec. Cases cognizable by regular
of witnesses and production of evidence; [Sec. 64-65,
61, LGC] courts and other
LGC]
investigative agencies of the
government;
UNDER THE OMBUDSMAN [SEC. 24, RA 6770]
Grounds for Preventive Suspension
The Ombudsman exercises concurrent jurisdiction over The Ombudsman or his Deputy may preventively suspend
administrative cases against elective officials occupying any officer or employee under his authority pending an
positions below salary grade 27. Even if filed in the investigation,
Ombudsman and the sanggunian concerned, identical (1) if in his judgment the evidence of guilt is strong, and
complaints will not violate the rule against forum shopping (2) any of the following are present:
because the complaints are in the nature of an (a) the charge against such officer or employee involves
administrative case. dishonesty, oppression or grave misconduct or
neglect in the performance of duty;
In administrative cases involving the concurrent jurisdiction (b) the charges would warrant removal from the
of two or more disciplining authorities, the body in which service; or
the complaint is filed first, and which opts to take (c) the respondent's continued stay in office may
cognizance of the case, acquires jurisdiction to the prejudice the case filed against him.
exclusion of other tribunals exercising concurrent
jurisdiction. [Office of the Ombudsman v. Rodriguez (2010)] Length of Preventive Suspension
Until the case is terminated by the Office of the Ombudsman
Who is salary grade 27 and above? [Sec. 443-486, LGC] but not more than six (6) months,
(1) without pay,
Municipalities Munipical Mayor (2) when the delay in the disposition of the case by the
Ombudsman is due to the fault, negligence or petition
City Mayor, Vice-Mayor, and Sanggunian of the respondent, the period of such delay shall not be
Cities Panglungsod members of highly- counted in computing the period of suspension herein
urbanized cities provided.

Governor, Vice-Governor, and Sanggunian The suspension issued by the Ombudsman is not limited
Provinces
Panlalawigan members. by the LGC. Unlike the Sandiganbayan and the Office of
the President/Sanggunians, the Ombudsman is endowed
PREVENTIVE SUSPENSION with unique safeguards to ensure immunity from political
UNDER THE LGC pressure. [Miranda v. Sandiganbayan (2005)]
By whom imposed: Upon an elective local official of: Preventive Suspension under Preventive Suspension
RA 6770 under the LGC
province, highly urbanized city, or
The President
independent component city;
(1) the evidence of guilt is (1) there is reasonable
The governor Component city, or municipality strong; AND ground to believe
(2) that any of the ff. are that the respondent
The Mayor Barangay; present: has committed the
(a) the charge against act or acts
the officer or complained of
When Imposed: Any time the issues are joined, when the employee should (2) the evidence of
evidence of the guilt is strong and that there is great involve dishonesty, culpability is strong
probability that the continuance in office of the respondent oppression or grave (3) the gravity of the
could influence the witnesses or threaten the misconduct or offense so warrants;
safety/integrity of the records or evidence; neglect in the or
performance of duty; (4) the continuance in
Rules on Length of Preventive Suspension (b) the charges should office of the
(1) Not longer than 60 days; warrant removal respondent could
(2) Cannot be imposed 90 before an election; if imposed from office; or influence the
before said period but extends to such, automatically (c) the respondent’s witnesses or pose a
lifted upon start of the 90 day period; continued stay in threat to the safety
(3) Cannot be suspended for more than 90 days within a office would and integrity of the
single year on the same grounds existing and known at prejudice the case records and other
the time of the first suspension; filed against him evidence
(4) Once lifted, official deemed reinstated without Maximum period: 6 mos. Maximum period: 60
prejudice to the continuance of the proceedings days
against him; [Sec. 62-63, LGC]
UNDER THE SANDIGANBAYAN
Effect/ Right of Pending Preventive Suspension The suspension pendente lite imposed by the
(1) No salary paid during period of suspension, but if Sandiganbayan is mandatory under RA 3019 upon the
subsequently exonerated and reinstated, he shall be filing of a valid information against the erring official. The
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purpose of such suspension is not only to prevent the
accused from hampering or influencing the investigation,
but also to allow the prosecution opportunity to gather
evidence under conditions which would ensure non-
intervention and non-interference. [Bunye v. Escareal
(1993)]
The suspension is not automatic, but requires the
determination of the presence of a valid information. Upon
determination of validity, it is the court's ministerial duty to
issue an order of preventive suspension. The length of the
suspension cannot be infinite nor unreasonable, such is
limited by the applicable law governing the accused. For
elective local officials, the LGC provides a limit of 60 days;
for public officers under the Civil Service Code, the limit is
90 days. [Segovia v. Sandiganbayan (1999)]
REMOVAL
An elective local official may be removed by order of the
proper court. [Sec. 60, LGC]
The penalty of removal from office as a result of
administrative investigation shall be considered a bar to
the candidacy of the respondent for any elective position.
[Sec. 66(c), LGC]
[cf. effect of penalty of suspension]
Proper court order
Local legislative bodies and/or the Office of the President
cannot validly impose the penalty of dismissal or removal
from service on erring local elective officials. It is clear from
Sec. 60 of LGC that an elective local official may be
removed from office on the grounds enumerated above
only by order of the proper court.
Art. 124 (b), Rule XIX of the Rules and Regulations
Implementing the LGC, which states that “an elective local
official may be removed from office by order of the proper
court or the Disciplining Authority whichever first acquires
jurisdiction to the exclusion of the other” is void for being
repugnant to Sec. 60, LGC.
But if it’s appointive, the OP may remove. [Pablico v.
Villapando (2002)]
Petitioners contest the administrative action as being
violative of Sec. 60, which mandates that an elective
local official may be removed from office only by order of
the court, since the duration of the suspension being 12-
20 months exceeded their remaining terms. The
suspension was allegedly tantamount to a removal.
An administrative offense means every act or conduct or
omission which amounts to, or constitutes, any of the
grounds for disciplinary action. The offenses for which
suspension may be imposed are enumerated in Section
60.
Assuming for the moment that the Office of the
President is correct in its decisions in each of the subject
four administrative cases:
It committed no grave abuse of discretion in imposing
the penalty of suspension, although the aggregate
thereof exceeded six months and the unexpired portion
of the petitioners’ term of office.
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What is important is that the suspension imposed for
each administrative offense did not exceed six months.
[Salalima v. Guingona (1996)]
Administrative Appeal
PERIOD FOR APPEAL
30 days from reciept of the decision;
TO WHOM APPEALABLE
Decision from Appeal to
Sangguniang Panglungsod Sangguniang Panlalawigan
of component cities, and
Sangguniang Bayan
Sangguniang Panlalawigan Office of the President
and Sangguniang
Panglungsod of highly
urbanized cities/indepedent
component cities
Office of the President Final and executory;
EFFECT OF APPEAL
Shall not prevent a decision from being final and
executory. Respondent is considered to have been placed
under preventive suspension during the pendency of the
appeal in the event he wins, and shall be paid his salary
that accrued during the pendency of the appeal.
The phrase “decision is final and executory” means that
the Sanggunian decision is immediately executory, but still
subject to appeal to the Office of the President or the
Sangguniang Panlalawigan respectively. [Don v. Lacsa
(2007)]
DOCTRINE OF CONDONATION
A public official cannot be removed for administrative
misconduct committed during a prior term, since his re-
election to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
application to criminal cases, as these are violations
against the state itself. [Aguinaldo v. Santos (1992)]
Subsequent re-election cannot be deemed a condonation
if there was already a final determination of his guilt before
the re-election. [Reyes v. COMELEC (1996)]
DISCIPLINE OF APPOINTIVE OFFICIALS
The power to discipline is specifically granted by the
Revised Administrative Code to heads of departments,
agencies, and instrumentalities, provinces, and cities. The
appointing authority is generally the disciplinary authority.
DISCIPLINARY JURISDICTION
Except as otherwise provided, the local chief executive may
impose:
(1) Removal from service
(2) Demotion in rank
(3) Suspension for not more than 1 year without pay
(a) If less than 30 days, unappealable
(b) If 30 days or more, appealable to the CSC
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(4) Fine not exceeding 6 months pay Election on recall (1) Barangay, city, or municipal
(5) Reprimand officials: not later than 30 days
(6) Otherwise discipline subordinate official and employees from completion
under his jurisdiction. [Sec. 87, LGC] (2) Provincial officials: not later
than 45 days from completion
RESIGNATION OF APPOINTIVE OFFICIALS Effects to official Not allowed to resign while recall
Although a resignation is not complete without an sought to be process is in progress
acceptance thereof by the proper authority, an office may recalled Automatically considered as
still be deemed relinquished through voluntary
candidate and is entitled to be
abandonment which needs no acceptance.
voted upon.
On Resignation: Under established jurisprudence, Effectivity of recall Upon election and proclamation of
resignations, in the absence of statutory provisions as to a successor. If the official sought to
whom they should be submitted, should be tendered to be recalled receive the highest
the appointing person or body. (In the CAB, BP 337 did not number of votes, confidence in him
provide to whom Sangguniang Bayan members should
is affirmed and he shall continue in
submit their resignation letters). Private respondent,
therefor, should have submitted his letter of resignation to office.
the President or to his alter ego, the DILG Secretary. Limitations on Local elective official may be
Recall subject of a recall election only
On Abandonment: Abandonment is “voluntary once during his term of office for
relinquishment of an office by the holder, with the loss of confidence.
intention of terminating his possession and control No recall shall take place within
thereof.” It is a species of resignation. Two elements must
one year from the date of the
concur:
(1) Intention to abandon official’s assumption to office or
(2) Overt or external act by which the intention is carried one year immediately preceding a
into effect [Sangguniang Bayan of San Andres v. CA (1998)] regular local election.
(Asked in 2000)
The law states “upon petition of at least 25% of registered
Requisites to constitute Essential elements of voters” and not “signed by 25% of the registered voters.”
resignation: abandonment: The petition must be filed not by one person but at least by
25% of the total number of registered voters.
(1) Intention to relinquish a (1) Intent to abandon
part of the term (2) Overt act by which the While the initiatory recall petition may not yet contain the
(2) Act of relinquishment intention is to be carried signatures of at least 25% of the total number of registered
(3) Acceptance by the proper into effect voters, the petition must contain the names of at least 25%
authority of the total number of registered voters in whose behalf
only one person may sign the petition in the meantime.
RECALL [Angobung v. COMELEC (1997)]
REQUISITES [SECTION 69-75, LGC AND REPUBLIC ACT NO.
9244] PROCEDURE [SEC. 70, LGC]
Ground for recall: Loss of confidence Petition by a registered voted in the LGU concerned to
Right given to: Registered voters of a LGU to which the COMELEC, supported by the necessary amount of
the local elective official subject to registered voters.
recall belongs
Commencement of By a Petition of a registered voter
recall process: supported by
(1) 25% of registered voters if LGU Within 15 days from filing of the petition, the COMELEC
must certify the sufficiency of the required number of
has population not more than signatures. Failure to obtain the required number shall
20,000 result in the automatic nullification of the petition.
(2) 20% of registered voters if LGU
has voting population of
20,000 to 75,000. In no case
shall petitioners be less than
Within 3 days from certification of sufficiency, COMELEC
5,000.
shall
(3) 15% of registered voters if LGU
(1) provide the official subject of recall with a copy of the
has voting population of
petition
75,000 to 300,000. In no case
(2) cause its publication for 3 weeks in a national
shall petitioners be less than
newspaper and a local newspaper of general circulation
15,000.
(3) cause its posting for 10 to 20 days at conspicuous
(4) 10% of registered voters if LGU
places
has voting population of more
than 300,000. In no case shall
petitioners be less than
45,000.
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COMELEC verifies and authenticates the signatures.
COMELEC announces the acceptance of candidates for
the recall election, the official subject of the recall being
automatically included in the list.
COMELEC shall set the election within 30 days upon
completion of the above procedure, LGC in barangays,
cities, and municipalities; or within 45 days in provinces.
LIMITATIONS ON RECALL
(1) Any elective official may be the subject of recall election
only once during his term of office for loss of
confidence.
(2) No recall election shall take place within 1 year from the
assumption of office of the official concerned, nor
within 1 year immediately preceding the date of a
regular election.
The phrase “regular local election” refers to an election
where the office held by the local elective official sought to
be recalled will be contested and be filled by the
electorate. [Paras v. COMELEC (1996)]
Sec. 74 speaks of limitations on “recall” which, according
to Sec. 69 is a power which shall be exercised by the
registered voters of a local government unit. Since the
voters do not exercise such right except in an election, it is
clear that the initiation of recall proceedings is not
prohibited within the one-year period provided in
paragraph (b).
The phrase “immediately preceding a regular local election”
in Sec. 74(b) refers to the day of regular election not the
election period which is normally at least 45 days
immediately preceding the day of the election. [Claudio v.
COMELEC (2000)]
Term Limits
LENGTH OF TERM
FOR ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS
(1) 3 years, starting from noon of June 30, 1992
(2) all local officials first elected during the local elections
immediately following the ratification of the 1987
Constitution shall serve until noon of June 30, 1992.
FOR ELECTIVE BARANGAY OFFICIALS AND MEMBERS OF THE
SANGGUNIANG KABATAAN
3 years, which shall begin after the regular election of
barangay officials on the second Monday of May 1994.
RA 9164: SYNCHRONIZED BARANGAY AND
SANGGUNIANG KABATAAN ELECTIONS (2002)
Term of office of barangay and sangguniang kabataan
officials: 3 years
No barangay elective official shall serve for more than 3
consecutive terms in the same position
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(1) Reckoned from the 1994 barangay elections
(2) Voluntary renunciation of office for any length of time
shall not be considered as an interruption [Sec. 2]
RA 9006: FAIR ELECTION ACT (2001)
An elective official running for any office other than the one
which he is holding in a permanent capacity, is no longer
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy. [Sec. 14]
Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP
881 or the Omnibus Election Code which states that “any
elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.”
Section 14 of RA 9006 did not repeal Section 66 of the
Omnibus election Code, leaving intact Section 66 thereof
which imposes a limitation to appointive officials and
considers them ipso facto resigned from office upon filing
of their certificate of candidacy
By the repeal of Section 67, an elective official who runs for
office other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his
certificate of candidacy. Elective officials continue in public
office even as they campaign for reelection or election for
another elective position. On the other hand, Section 66
has been retained; thus, the limitation on appointive
officials remains - they are still considered ipso
facto resigned from their offices upon the filing of their
certificates of candidacy.
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any
partisan political activity or take part in any election except
to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are
obviously expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper
to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position other
than those occupied by them.
Since the classification justifying Section 14 of Rep. Act No.
9006, i.e., elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions and all
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the persons belonging under the same classification are for a term more than what is allowed by law [Latasa v.
similarly treated, the equal protection clause of the COMELEC (2003)]
Constitution is, thus, not infringed. [Fariñas v. Executive
Secretary (2003)] EFFECT OF PREVENTIVE SUSPENSION
Strict adherence to the intent of the three-term limit rule
LIMITATION OF CONSECUTIVE TERMS demands that preventive suspension should not be
No local elective official shall serve for more than three (3) considered an interruption that allows an elective official’s
consecutive terms in the same position. stay in office beyond three terms. A preventive suspension
cannot simply be a term interruption because the
WHAT CONSTITUTES A TERM OF OFFICE suspended official continues to stay in office although he is
To recapitulate, the term limit for elective officials must be barred from exercising the functions and prerogatives of
taken to refer to the right to be elected as well as the right the office within the suspension period. The best indicator
to serve in the same elective position. Consequently, it is of the suspended official’s continuity in office is the
not enough that an individual has served three consecutive absence of a permanent replacement and the lack of the
terms in an elective local office, he must also have been authority to appoint one since no vacancy exists.
elected to the same position for the same number of times
before the disqualification can apply. To allow a preventively suspended elective official to run
for a fourth and prohibited term is to close our eyes to this
2 Conditions for the application of the disqualification [Borja reality and to allow a constitutional violation through
v. COMELEC (1998)]: sophistry by equating the temporary inability to discharge
(1) Elected for three consecutive times the functions of office with the interruption of term that the
(2) Fully served three consecutive terms constitutional provision contemplates. [Aldovino v.
COMELEC (2008)]
RULES FOR “FULLY SERVED” TERM
(1) Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service.
(2) The conversion of a municipality to a city without
interruption of the term of an elective official is not
considered an interruption in the continuity of service.
[Latasa v. COMELEC (2003)]
(3) Election via a recall election does not satisfy a “fully-
served” term. [Lonzanida v. COMELEC (1999)]
(4) The imposition of preventive suspension should not be
considered an interruption that allows an elective
official to stay in office for more than 3 terms. [Aldovino
v. COMELEC (2008)]

EFFECT OF JUDICIAL DECLARATION THAT THE OFFICIAL’S

PROCLAMATION IS VOID
His assumption of office in 1995 cannot be deemed to have
been by reason of a valid election. Also, he did not fully
serve the 1995-98 mayoral term by reason of involuntary
relinquishment of office as he was ordered to vacate his
post before the expiration of the term. Although he served
the greater portion of the said term, he should not be
considered disqualified because he did not serve three full
consecutive terms. [Lonzanida v. COMELEC (1999)]

EFFECT OF RECALL ELECTIONS

An official has served for three consecutive terms. He was
elected in the recall election for the term of his
predecessor. There was no violation of the 3-term rule.

The Constitution does not require that the interruption be

a full term of 3 years. The clear intent of the framers of the
law is that interruption for any length of time is sufficient
to break an elective local official’s continuity of service.
[Socrates v. COMELEC (2002)]

EFFECT OF CONVERSION OF THE LGU

The mayor of a municipality held his post for three terms.
During his last term, the municipality became a city and he
was declared hold-over mayor by the charter. The said
mayor should not be allowed to run again. If he were
allowed to do so, he would have served the same people

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Concepts (2) Law on genocide

(3) Principle of Self-Determination
(4) Prohibition against apartheid
FORMAL SOURCES V. MATERIAL SOURCES (5) Crimes against humanity
FORMAL SOURCES MATERIAL SOURCES (6) Prohibition against slavery and slave trade
(7) Piracy [Brownlie, Magallona]
The methods and It supplies the substantive
procedures for the creation evidence of the existence of In the 2012 case Questions Concerning the Obligation to
of rule of general the norms. Prosecute or Extradite [Belgium v. Senegal (2012)], the ICJ
application which are affirmed the obligation of states parties to the Convention
legally binding upon against Torture and Other Cruel, Inhuman or Degrading
States. Treatment or Punishment (CAT) to either prosecute
It confers the force of law It supplies the substance of alleged perpetrators or extradite them to another country
upon a norm. the rule. with jurisdiction for prosecution (the Grotian aut dedere,
aut punire principle).
LEX LATA v. LEX FERENDA
LEX LATA LEX FERENDA The case involved Hissène Habré, the former president of
What the law is; “the The progressive Chad, who stands charged in Belgian courts for torture,
current law” development of international war crimes, and crimes against humanity against
law; “what the law should thousands of victims during his term in office from 1982–
be” 1990. Habré, who has been residing in Senegal as a
political asylee since he was ousted from power two
OBLIGATIONS ERGA OMNES decades ago, was being sought for extradition by Belgium.
An international obligation owed to the “international The ICJ in this case observed that t “the prohibition on
community” as a whole and is demandable of any state. torture is part of customary international law and has
An international obligation of such character and become a peremptory norm (jus cogens).” However, the
importance that their violation by any State allows any obligation to prosecute alleged perpetrators of torture only
other State to invoke the violators liability, even if only one arises after the Convention has entered into force for that
state or only a few states incurred direct material damage. state party. The ICJ said, after noting that a number of
It usually has to do with issues on standing before a court complaints regarding serious offenses committed by
or tribunal. Other scholars further make a distinction Habré after that date for which Senegal is obligated to
between obligations erga omnes omnium, which is strictly prosecute, said Belgium is entitled to invoke Senegal’s
speaking, the obligation owed to the international compliance with the Convention beginning in 1999; in fact,
community as a whole, and erga omnes partes, which Beligum has been requesting Senegal’s compliance since
pertains to obligations owed by states under a multi- 2000 when the first complaint against Habré was filed in
lateral treaty. However, it may also be the case that a Senegal.
multi-lateral treaty partakes of both sets of obligations,
inasmuch as the same merely restates norms already held The ICJ, in this landmark decision, affirms that member-
as binding under customary international law [cf. North states to the CAT may demand performance of obligations
Sea Continental Shelf Cases (1969), Nicaragua v. US (1984), under the the same, even if the alleged torture occurred
Kuroda v. Jalandoni (1949] before the applicant state joined the Convention and even
if the alleged torturer or victims have no connection with
BARCELONA TRACTION LIGHT AND POWER CO. CASE the applicant state. The ruling therefore allows the
(1970): The grant of standing to sue because of violations enforcement of universal jurisdiction for torture. Thus it
of erga omnes obligations is premised on the idea that the held that “States parties to the Convention have a
maintenance of some norms are of interest to the entire common interest to ensure . . . that acts of torture are
world community, their violation being an injury to the prevented and that, if they occur, their authors do not enjoy
interest of not only the state directly offended, but also of impunity, ” stressing that these obligations partake of the
all states. nature of ‘obligations erga omnes partes’ in the sense that
each State party has an interest in compliance with them
ILLUSTRATIONS: in any given case.” Thus, any state party may make a claim
(1) Outlawing of acts of aggression and of genocide for the cessation of any breach by another state party,
(2) Principles and rules concerning the basic rights of the whether or not the applicant state has any connection at
human person, including protection from slavery and all to the victims.
racial discrimination [Barcelona Traction Case (1970)]
(3) The right to self-determination [East Timor case (1994), In the 2007 case of Application of the Convention on the
the Wall Opinion case] Prevention and Punishment of the Crime of Genocide
[Bosnia and Herzegovina v. Serbia and Montenegro (2007)],
JUS COGENS the ICJ finally erased all doubts as to the existence of a
A preemptory norm which States cannot derogate or duty to prevent genocide separate from the duty to punish
deviate from in their agreements. It is a mandatory norm its perpetrators under the Genocide Convention.
and stands on a higher category than a jus dispositivum
norm which States can set aside or modify by agreement. In the controversial Vinuya (2010) case, the Philippine
Supreme Court dismissed a petition by the Malaya Lolas -
Illustrations: a group of Filipino Comfort Women – seeking state
(1) The prohibition against the use of force under the U.N. espousal of their claims against Japan.
Charter [Nicaragua Case]

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Towards the end of its Judgment of April 28, 2010, the
Supreme Court expressed its great sympathy for
Petitioners, saying its members “cannot begin to
comprehend the unimaginable horror they underwent at
the hands of the Japanese soldiers.” And then it goes on to
say that it is “deeply concerned” that – in “apparent
contravention of fundamental principles of law” – the
Malaya Lolas “appear to be without a remedy to challenge
those that have offended them before appropriate fora.”
The High Court had rejected the Petitioner’s claim that
rape and other sexual crimes committed against them
were already prohibited as violations of jus cogens norms
during World War II.
In their pending Motion for Reconsideration, the
Petitioners argue that early on, there has developed as a
binding customary norm in international law an absolute
prohibition on rape. Before San Francisco Peace Treaty in
1951, it was already penalized as a war crime and as a
crime against humanity in the 1949 Geneva Conventions,
as a crime against humanity in German Courts that tried
war criminals of World War II and as a war crime in the
International Military Tribunal in the Far East that tried
Japanese war criminals of World War II. In fact, they assert
that right after World War I, a Preliminary Conference at
Versailles created a Commission on Responsibility of the
Authors of War and on Enforcement of Penalties.
Too, the 15-member Commission – of which Japan was
part – submitted a report to the Conference on the
responsibility of belligerent states in which it included a list
of punishable war crimes as violations of the laws and
customs of war. These included, among other crimes, (1)
rape, (2) abduction of girls and women for the purpose of
enforced prostitution, (3) deportation of civilians, (4)
internment of civilians under inhuman conditions and and
(5) forced labor of civilians in connection with the military
operations.
The Philippine Supreme Court’s decision sparked a
massive controversy when significant portions of it were
discovered to have been lifted from various sources
without proper attribution. In addition to the plagiarism –
which is a word for word lifting of pages from the three
articles without the proper attribution – it appears that
these stolen passages were also twisted to support the
court’s erroneous conclusion that the Filipina comfort
women of World War Two have no further legal remedies.
All three plagiarized articles by foreign authors –an article
published in 2009 in the Yale Law Journal of International
Law, a book published by the Cambridge University Press
in 2005, and, an article published in 2006 in the Western
Reserve Journal of International Law – argue otherwise.
A Motion for Reconsideration and a Supplemental Motion
for Reconsideration subsequently filed by lawyers on
behalf of the Malaya Lolas highlighting the alleged
plagiarism and twisting of sources are pending with the
Court. The Malaya Lolas, in their Supplemental Motion for
Reconsideration said the High Court’s ruling, penned by
Justice Mariano Del Castillo, "made it appear that these
sources support the assailed judgment's arguments for
dismissing instant petition when, in truth, the plagiarized
sources even make a strong case for the petition's claims."
CONCEPT OF EX AEQUO ET BONO
Literally meaning “what is equitable and good”, it is a
standard that a court may apply to decide a case when the
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parties to the dispute so agree. This means simply that the
court may reach a fair compromise in balancing the
interests of the parties.
Judgment will not be on the basis of the sources of
international law, as listed in Art. 38(1) of the ICJ Statute,
but on the grounds of fairness and justice. The court may
have to rely on its own understanding of the broader
context of equity and outside the accepted norms of law
under Art. 38(1).
But in the North Sea Continental Shelf cases, the ICJ found
a situation where the Parties were under an obligation to
act in such a way that in the particular case, and taking all
the circumstances into account, equitable principles were
applied, which meant that its decision on the applicability
of the equitadistance principle in the delimitations
proceeding was not founded on ex aequo et bono. It said
thus: “[i]t was precisely a rule of law that called for the
application of equitable principles, and in such cases as
the present ones the equidistance method could
unquestionably lead to inequity.”
International and National
Law
Municipal or National Law deals with the conduct or status
of individuals, corporations, and other ‘private’ entities
within states. Public International Law may be
distinguished from it in that it prescribes rules and
processes that govern the relations of states with each
other, and the rights of other entities insofar as they
implicate the community of states.
RELATIONSHIP OF PUBLIC INTERNATIONAL LAW
WITH MUNICIPAL LAW
Although distinct, PIL and Municipal are interrelated:
THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL
ORDER
Norms or principles of international law may be
incorporated or transformed into national law and applied
or enforced within the territorial jurisdiction of a State as
part of “the law of the land.”
(1) Incorporation – norms of international law are deemed
part of national law
(2) Transformation – defines the requisite act which must
be fulfilled before they become part of national law
THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL
REGULATION
A State cannot invoke its own national law to resist an
international claim or excuse itself from breach of duty
under international law [Polish Nationals in Danzig Case;
VICLOT; Draft Article on State Responsibility, Art. 6]
THEORETICAL VIEWS ON THE RELATIONSHIP
BETWEEN PIL AND MUNICIPAL LAW – [CARTER AND
TRIMBLE]:
MONIST VIEW: International and municipal legal systems are
fundamentally part of one legal order. This view considers
international law to be superior, with municipal law being
a mere subset of international law.
Thus, international norms are applicable within municipal
system seven without some positive act of the State.
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DUALIST VIEW: International law and municipal law are
separate systems. Only those problems affecting
international relations are within the scope of international
law.
Thus, before an international norm can have an effect within
a municipal legal system, that norm must be transformed,
or adopted into the municipal system through a positive
act by a State organ. (Exception: Customary International
Law and General Principles of International Law)
MONIST-NATURALIST VIEW: PIL is superior to municipal law,
and that both systems are but a part of a higher system of
natural law.
COORDINATIONIST VIEW: International law and municipal
law operate in different spheres, but municipal law is
(generally) obliged to be in conformity with international
law.
Sources
PRIMARY SOURCES [ARTICLE 38, ICJ STATUTE]
(1) International Conventions, whether general or
particular, establishing rules expressly recognized by
the contracting states (Treaties);
(2) International Custom, as evidence of a general custom
accepted as law;
(3) General Principles of Law recognized by civilized nations;
SUBSIDIARY SOURCES
(1) Judicial Decisions; and
(2) Teachings of the most highly qualified publicists of the
various nations. [Art. 38, ICJ Statute]
(a) Treaties, Customs and General Principles (Primary
Sources) create law; while court decisions publicists’
teachings constitute evidence of what is the law.
(b) With respect to the three primary sources, the order
the enumeration does not provide a hierarchy in all
cases.
NOTE: Although treaties are mentioned first, they are not
ipso facto superior to customs and general principles.
TREATY AS SOURCE OF LAW
DEFINITION OF TREATY
An international agreement concluded between States in
written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation"
[Art.2(1), Vienna Convention on the Law of Treaties (VCLOT)]
Under the VCLOT, the term “treaty” includes all
agreements between states, regardless of how they are
called. Thus, for purposes of international law, treaties,
executive agreements, exchanges of notes, etc. are all
treaties.
Note: Philippine law makes a distinction between treaties
and executive agreements. Although they are equally
binding, only treaties require the concurrence of the
Senate to be effective. [Sec. 21, Art. VII, 1987 Constitution]
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Pacta sunt servanda: A state party to a treaty is bound to
comply with the obligations it assumed under such treaty
in good faith. [Art. 26, VCLOT]
Pacta tertiis nec nocet nec prosunt: Treaty Obligation is
based on consent. No state may be bound by a treaty
obligation unless it has so consented. [Art. 34, VCLOT]
NOTE: As a general rule, treaties do not bind non-parties
to the treaty.
Treaties shall be further discussed on the Chapter on the Law
of Treaties.
CUSTOMARY INTERNATIONAL LAW
DEFINITION: Norms of international law are those that result
from a general and consistent practice of states which they
follow under a sense of legal obligation. For custom to
exist, it requires the concurrence of 2 elements: State
Practice and Opinio juris.
Unlike treaties, customary norms are legally binding upon
states regardless of whether they consent, subject to the
Persistent Objector rule.
ELEMENTS:
(1) State Practice
For custom to exist, the customary practice must be both
consistent and general
(a) Consistency requires substantial uniformity, and not
necessarily complete uniformity in practice.
(b) Generality likewise does not require universality.
The absence of protest could be considered evidence of the
binding nature of customary practice. [Akehurst]
Acts Evidencing State Practice:
(1) Diplomatic correspondence
(2) Policy statements
(3) Press releases
(4) Opinions of official legal advisers
(5) Official manuals on legal decisions (executive decisions
and practices; government comments on drafts by the
ILC)
(6) International and national judicial decisions
(7) Recitals in treaties and international instruments
(8) Practice of international organs [Harris]
UN General Assembly Resolutions are generally just
recommendations. They have no binding effect under the
Charter, save in limited fields like budgetary concerns.
However, such resolutions may nonetheless be an evidence
of state practice that is relevant in the development of
custom.
Opinio juris sive necessitatis
The belief on the part of States that a particular practice is
required by law, and not because of courtesy or political
expediency. It is the existence of opinio juris that
distinguishes binding custom from mere usage, from
comity, and from courtesy or protocol.
Opinio juris means that general practice embodied in a
rule must have been done out of a recognition that it is a
legal norm and therefore obligatory. [North Sea
Continental Shelf Case, ICJ Reports, 1969]
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Note: It is not a “maxim,” it is an element required in order
for custom to crystallize into a binding norm in
international law.
Scope:
Custom may be:
(1) General binding upon all or most states or
(2) Particular binding between only two or among a few
states.
In cases it has decided, the ICJ has indeed recognized the
possibility of regional custom (Asylum Case) and of bilateral
custom. [Right of Passage over Indian Territory Case]
No particular length of time is required for the formation of
customary norms. What becomes necessary is such length
of time as to make manifest the existence of the two
elements of custom. [North Sea Continental Cases (1969),
Magallona]
NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING
PART OF PHILIPPINE LAW
(1) Rules and principles of land warfare and of
humanitarian law under the Hague Convention and the
Geneva Convention [Kuroda v. Jalandoni (1949)]
(2) Pacta sunt servanda [La Chemise Lacoste v. Fernandez
(1984)]
(3) Human Rights as defined under the Universal
Declaration of Human Rights [Reyes v. Bagatsing
(1983)]
(4) The principle of restrictive sovereign immunity [Sanders
v. Veridiano (1988)]
(5) The principle in diplomatic law that the receiving State
has the special duty to protect the premises of the
diplomatic mission of the sending State [Reyes v.
Bagatsing (1983)]
(6) The right of a citizen to return to his own country
[Marcos v. Manglapus (1989)]
(7) The principle that “a foreign army allowed to march
through friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt
from criminal jurisdiction of the place”. [Raquiza v.
Bradford (1945)]
(8) The principle that judicial acts not of a political
complexion of a de facto government established by
the military occupant in an enemy territory, is valid
under international law. [Montebon v. Director of
Prisons (1947)]
(9) The principle that private property seized and used by
the enemy in times of war under circumstances not
constituting valid requisition does not become enemy
property and its private ownership is retained, the
enemy having acquired only its temporary use. [Noceda
v. Escobar (1950)]
(10) The principle that a State has the right to protect itself
and its revenues, a right not limited to its own territory
but extending to the high seas [Asaali v. Commissioner
(1968)]
(11) Albeit an erroneous understanding of the elements
that make a customary norm of international law, the
Supreme Court has held in Mijares v. Rañada (2005)– a
case involving claims against the Marcos estate – that
the enforcement of a foreign judgment is customary in
nature
PRINCIPLE OF PERSISTENT OBJECTOR
When a State has continuously objected to a new
customary norm at the time when it is yet in the process of
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formation, by such persistent objection the norm will not
be applicable as against that State. [Magallona]
The ten-mile rule [in the delimitation of territorial waters
cross bays] would appear to be inapplicable as against
Norway, inasmuch as she has always opposed any attempt
to apply it to the Norwegian coast. [Anglo-Norwegian
Fisheries Case (1951)]
DUALITY OF NORMS
It is possible for a norm of international law to exist both as
a customary norm and a conventional norm (ex. The
Prohibition against the Use of Force). Such norms are said
to be of dual character.
Norms of dual character come into being through any of
the following ways:
(1) A treaty provision may simply restate a customary norm
(as is true of many of the provisions in the VCLOT;
(2) A treaty provision may constitute evidence of custom;
(3) A treaty provision may crystallize into a customary
norm.
For a treaty provision to crystallize into custom, the
provision must be norm-creating. The treaty must be law-
making, creating legal obligations which are not dissolved
by their fulfillment.
The number of parties, the explicit acceptance of rules of
law, and, in some cases, the declaratory nature of the
provisions produces a strong law-creating effect at least as
great as the general practice considered sufficient to
support a customary rule. [Brownlie]
The customary norm retains a separate identity even 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 erring state responsible
for the breach of the identical customary norm. [Nicaragua
v. US Case (1984)]
GENERAL PRINCIPLES OF LAW
Refer to those general principles in municipal law
(particularly those of private law) that may be appropriated
to apply to the relations of states. [Oppenheim]
Unlike custom, it does not require to be supported by state
practice that is consistent and virtually uniform; it being
sufficient that such principle is found in a number of legal
jurisdictions. [Roque]
Illustrations:
Principles in Roman Law – estoppel, res judicata, res inter
alios acta, prescription.
When Thailand did not object to, and has in fact benefited
from, the Treaty of 1904 for 50 years, it is deemed to have
accepted said treaty. It is thereby precluded from
questioning Annex I thereof, which showed that the
Temple of Preah Vihear was within Cambodian territory
[Temple of Preah Vihear Case (1962)]
Procedural Rules – the use of circumstantial evidence,
hearsay evidence (press reports).
Press reports can be used to corroborate the existence of a
fact; and, when they demonstrate matters of public
knowledge which have received extensive press coverage,
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
they can be used to prove a fact to the satisfaction of the
court. [Nicaragua v. US Case (62—63)]
Circumstantial evidence is admitted as indirect evidence in
all systems of law and its use is recognized by international
decisions. Such circumstantial evidence, however, must
consist of a series of facts or events that lead to a single
conclusion. [Corfu Channel Case (1949)]
Substantive – duty to make reparations, principle of
reciprocity, pacta sunt servanda, separate corporate
personality [Barcelona Traction Case (1970)]
The Standard of “Full” Reparations: Every breach of an
engagement (international obligation) entails the
obligation to make reparation. The amount of reparation
required is that amount which is necessary to bring the
injured party back to the situation had the wrong not
occurred. [Chorzow Factory Case (1927)]
Jurisdictional Principles – The power of a tribunal to
determine the extent of its own jurisdiction (competence de
la competence).
NOTE: International tribunals have not been consistent in
their manner of determining whether a principle in
municipal law constitutes a general principle. In some
instances they have examined different legal systems; in
others, they merely declared a principle in municipal law as
constituting a general principle of international law.
SUBSIDIARY SOURCE: JUDICIAL DECISIONS
International law does not follow the rule on stare decisis.
Art. 59 of the ICJ State (which Art.38(1)(d) makes reference
to) expressly limits the effect of a decision only to the
parties to the case.
Be that as it may, decisions of international tribunals
exercise considerable influence as impartial and well-
considered statements of the law by (qualified) jurists
made in light of actual problems. Decisions of
international tribunals constitute evidence of the state of
the law. [Brownlie]
SUBSIDIARY SOURCE: PUBLICISTS
Writings of highly qualified publicists likewise constitute
evidence the state of the law. The problem, though, is that
some publicists may be expressing not what the law is (lex
lata), but what they think the law should be or will be (lex
ferenda).
OTHER SOURCES
(1) Ex Aequo et Bono the court may apply this standard
of “what is equitable and good” to decide a case when
the parties to the dispute so agree.
(2) Equity  refers to the application of standards of
justice that are not contained in the letter of existing
law. It has often been applied in cases involving
territorial disputes and maritime delimitations.
(3) Unilateral Declarations declarations made by way of
unilateral acts, concerning legal or factual situations,
may have the effect of creating legal obligations.
Nothing in the nature of a quid pro quo, nor any
subsequent acceptance, nor even any reaction from other
states is required for such declaration to take effect. Verily,
unilateral declarations bind the State that makes them.
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Eastern Greenland case (1931-33): The ICJ held that
Denmark not only had a superior claim over the contested
territory, but that Norway was further bound by the Ihlen
Declaration not to oppose Denmark’s claim. The Ihlen
Declaration is a statement made by the Norwegian Foreign
Minister, Nils Claus Ihlen, on the topic of Denmark's
sovereignty over Greenland, which Mr. Ihlen declared
verbally to the Danish Minister that “the plans of the Royal
[Danish] Government respecting Danish sovereignty over
the whole of Greenland would be met with no difficulties
on the part of Norway.”
Also in the Nuclear Test cases (1974), France declared that
it would cease atmospheric nuclear tests. This signaled
that there had ceased to be a dispute, since it had bound
itself to do what Australia and New Zealand wanted.
Subjects
Subjects of International Law refer to entities:
(1) capable of possessing international rights and duties;
and
(2) having the capacity to maintain these rights by bringing
international claims [Reparations for Injuries Advisory
Opinion (1949)]
A State is a quintessential example of a subject of
international law.
By contrast, an Object of International Law is the person or
thing in respect of which rights are held and obligations
are assumed by the subject. It is, therefore, not directly
governed by the rules of international law. Its rights may
be asserted and its responsibilities imposed indirectly,
through the instrumentality of an intermediate agency (the
subject).
For example, individuals are objects in respect of which
human rights obligations are imposed upon States. When
an individual’s human rights is violated by another State,
the aggrieved person’s State of nationality may “espouse”
his claim and invoke the erring state’s responsibility (see:
Discussion on Diplomatic Protection in Chapter 5, Part V).
The distinction between subject and object is found in
traditional international law, when states had the
monopoly as far as law-making is concerned. Scholars like
Higgins however posit that the distinction is not helpful as
increasingly the international legal order features non-
state actors like civil society organizations pushing the
boundaries of law-making at the international level.
Hence she prefers to refer to entities engaged in
international legal processes as “actors” in international
law.
Today, individuals, in key areas, already have standing to
bring suits on their own, as in the field of international
criminal law and international human rights law.
STATES
A group of people, more or less numerous, permanently
living in a definite territory, under an independent
government organized for political ends and capable of
entering into legal relations with other states [Art. 1,
Montevideo Convention on the Rights and Duties of States
(1933)]
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
There is no accepted definition of what the state is in
international law. The Montevideo Convention merely
enumerates what are the elements by which one may say
that a state exists.
States remain the most important actors in international
law. It possesses objective or erga omnes personality, not
merely by virtue of recognition on the part of particular
states.
Objective (general) international personality – exists
wherever the rights and obligations of an entity are
conferred by general international law, e.g. states
Special (particular) international personality – exists where
an entity is established by particular States for special
purposes
REQUISITE ELEMENTS:
People
The term “people” refers to an aggregate of individuals of
both sexes who live together as a community despite racial
or cultural differences. Although no minimum number is
provided, they should be permanent, and sufficient to
maintain and perpetuate themselves.
Territory
State territory is that defined portion of the surface of the
globe which is subjected to the sovereignty of the State.
[Oppenheim]
A state must exercise control over a certain area. It need
not be exactly defined by metes and bounds, so long as
there exists a reasonable certainty of identifying it. No
minimum land area is required.
Modes of acquiring territorial sovereignty
(1) Occupation of a territory not subject to the sovereignty
of any other state (original); this refers not to mere
discovery but effective exercise of sovereignty over a
territory which is terra nullius
Effective occupation means continued display of authority
which involves 2 elements each of which must be shown to
exist: (a) the intention and will to act as sovereign [animus
occupandi], and (b) some actual exercise or display of such
authority. [Eastern Greenland Case (1931-33)]
Animus occupandi must be demonstrated and evidenced
by some administrative or political acts in relation to the
territory in question and such acts must be under titre de
souverain (title of sovereignty).
To constitute effective occupation, exercise of sovereignty
must be peaceful, actual, continuous and sufficient to
confer valid title to sovereignty.
(2) Cession – the transfer of territory from one state to
another by treaty (derivative); only bilateral mode of
acquisition
The validity of cession depends on the valid title of the
ceding state; the cessionary state cannot have more rights
than what the ceding state possessed. [Magallona]
(3) Prescription – title is acquired by through continuous
and undisturbed exercise of sovereignty over a period
of time (derivative)
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The requisites for acquiring territorial soreveignty by
prescription are. — (1) Possession that must be exercised
titre de souverain; (2) Peaceful and uninterrupted; (3)
Public; and (4) Endure for a certain length of time
[Johnson]
(4) Accession or accretion – the natural process of land
formation resulting in the increase of territory (original)
Government
Government is the physical manifestation of a state.
Government must be organized, exercising control over
and capable of maintaining law and order within its
territory.
Note: Under the Rules on Succession of States, even
changes of entire governments do not affect the identity
and personality of the state. Once statehood is
established, neither invasion nor disorder alone can
remove its character as a state. [Brownlie]
“Effective” Government
Although an effective government is the best evidence of
the existence of a State, an effective government is not
always strictly necessary [Brownlie].
The requirement of effective government is not strictly
applied when the State, already long-existing, happens to
undergo a period of civil strife or internal chaos due to
natural disaster or invasion.
Thus, with the collapse of their governments, Afghanistan
and Somalia were deemed failed states, but they remained
states.
Further, some states were deemed states even before their
governments were "very well organized" (ex. Poland,
Burundi, and Rwanda).
Governments de facto & de jure
A government de jure is a government from law, that is, one
with a color of legitimacy.
A government de facto is one that governs without a
mandate of law. So long as it is in place, it may command
obedience from the inhabitants of the occupied area. The de
facto ruler may suspend laws and enact new ones.
Note: The establishment of a de facto government does not
by itself abolish all laws and structures established by the
deposed government. Only “laws of political nature
affecting political relations” are suspended ipso facto; laws
that enforce public order and regulate social and
commercial life remain in effect unless they are changed
by the de facto sovereign. Conversely, the re-
establishment of the de jure government does not void the
acts of the preceding de facto government.
Three kinds of de facto government:
(1) Government de facto in the strict legal sense is that
which usurps – either by force or the will of the majority
– the legal government and maintains and control
against it;
(2) Government by paramount force is that which results
from the occupation of a state or a part thereof by
invading forces in time of war; and
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
(3) Government established as an independent government
by inhabitants of a country who rise in insurrection
against the parent state.
Independence or Sovereignty
Refers to the capacity to enter into relations with other
states. A state must be free from outside control in
conducting foreign and internal affairs. It has, however,
been advanced that the fact that a State “may be acting
under the direction of another State” is not of concern to
international law. [Salonga]
The practice of states has been to ignore—so far as the
issue of statehood is concerned—various forms of political
and emotional blackmail and interference directed against
the weaker members of the community."
Thus, it is sufficient for a State to possess external
appearance of capacity to enter into international relation.
[Brownlie]
The issue of statehood, or of the criteria of possession of
the status of a state under international law –traditionally
defined as “effectiveness”- is closely linked to the concept
of sovereignty, although the latter is not itself a criterion
for statehood but is, in international law, the “totality of
international rights and duties recognized by international
law” as embodied in an independent territorial unit that is
the State.
In other words, an entity endowed with statehood has
sovereignty, but sovereignty itself is not a precondition but
only an attribute, or “an incident or consequence of
statehood, namely the plenary competence that States
prima facie possess.”
In its advisory opinion in Accordance with International
Law of the Unilateral Declaration of Independence In
Respect of Kosovo, the ICJ dealt for the first time with the
question of the legality of a unilateral declaration of
independence brought to it by the General Assembly. This
case arose from the 2008 Kosovo declaration of
independence amidst conflicting claims
between Serbia and the Republic of Kosovo established by
the said declaration. The ICJ, in an advisory opinion that
received mixed reactions, declared that "the declaration of
independence of the 17 February 2008 did not violate
general international law because international law
contains no 'prohibition on declarations of independence.'"
Yet it stopped short of saying what the legal implications
were of the same declaration.
Notes on Sabah and the question of self-determination:
In his separate opinion to the Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ
in 2002, ad hoc judge Thomas Franck had this to say, in
his rejection of the Philippine intervention:
Accordingly, in light of the clear exercise by the people of
North Borneo of their right to self-determination, it cannot
matter whether this Court, in any interpretation it might
give to any historic instrument or efficacy, sustains or not
the Philippines claim to historic title. Modern international
law does not recognize the survival of a right of sovereignty
based solely on historic title; not, in any event, after an
exercise of self- determination conducted in accordance
with the requisites of international law, the bona fides of
which has received international recognition by the
political organs of the United Nations. Against this, historic
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claims and feudal pre-colonial titles are mere relics of
another international legal era, one that ended with the
setting of the sun on the age of colonial imperium.”
This is strong language, with the tenor of definitiveness.
The ICJ's pronouncements in Barcelona Traction, East
Timor and Wall Opinion cases have indeed acknowledged
the binding nature of this by now well-recognized principle
of self-determination. The question for the Philippines,
however, is whether the factual characterization by Judge
Franck of the exercise by the people of North Borneo of
this right is borne by historical reality.
First, from the very beginning, the Philippines committed
itself to welcome the creation of the new state of Malaysia
subject to the final outcome of its claim over Sabah. This is
clearly supported by the following:
The Report and Recommendations of the Conference of
Foreign Ministers of the Federation of Malaya, the
Republic of Indonesia and the Republic of the Philippines
to their respective Heads of Government, dated 1 June 963.
What is important in this document, especially Para. 12,
states that both Malaysia and Indonesia recognized the
Philippine position that it had a right to pursue its claim
according to international law and the peaceful settlement
of disputes and all three agreed that the inclusion of
North Borneo in the federation would not prejudice either
the claim or any right arising from it.
The Manila Accord of 31 July 1963, signed by President
Macapagal, President Sukarno and Prime Minister Tunku
Abdul Rahman, adopted in toto the report of the Foreign
Ministers earlier referred to.
The Joint Statement of 5 August 1963 by the Three Heads
of Government, especially its para. 8, which referred to the
Manila Accord, and reiterated their joint view that they
agreed to seek a just and expeditious solution to the
dispute between the British government and the
Philippines over Sabah through negotiations, conciliation,
arbiration or judicial settlement, or other peaceful means
of resolving the issue. In addition, they affirmed that they
take cognizance of the Philippine claim to Sabah "after the
establishment of the Federation of Malaysia as provided
under para. 12 of the Manila Accord, that is, the inclusion
of Sabah in the Federation of Malaysia does not prejudice
either the claim or any right thereunder."
In 1966, when relations between them normalized,
Malaysia and the Philippines, in a joint Communique of 3
June 1966, "agreed to abide by the Manila Accord of 31 July
1963 and with the Joint Statement accompanying it, for the
peaceful settlement of the Philippine claim to Sabah." they
further agreed that to the need to sit together to clarify the
claim and reach a satisfactory resolution to the issue.
And then, following the proclamation of the creation of the
Federation of Malaysia on 16 September 1963, Manila and
Kuala Lumpur engaged in a series of exchages of Joint
Communiques, aides memoirs, Notes Verbale or
diplomatic notes, all expressing the sense that both parties
have remained committed to the terms of the Manila
Accord of 1962. These exchanges ran from 1964 to 1968.
It is important to note that these are not mere unilateral
declarations but are tripartite and bilateral documents
that are binding upon the signatories under international
law. In the case of the Joint Statement, they all agreed that
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
the Philippines will continue to pursue it claim even after
the inclusion of Sabah in the Malaysian Federation. In the
case of the 1966 joint Communique, Malaysia without a
doubt, by its consent to it, forfeited any advantage it might
have acquired through the UN ascertainment of 1963.
From the very beginning, the Philippines has demanded
that any referendum in Sabah on the question of its
inclusion in the Malaysian Federation be authentic and
bonafide, and under circumstances that ensured the free
and enlightened expression of the Sabahan's will.
But the so-called Sabah referendum was anything but a
representative referendum. Only the election of local
officials was concerned in the proceedings. The question of
whether the people of Sabah wished to remain with
Malaysia or to join the Philippines was not at all asked in
the ballots issued to voters.
Moreover, much to the embarassment of UN officials,
Malaysia announced the date of the creation of the
federation even before the results of the so-called
referendum could be released, as if it had already been
predetermined.
In the wake of the Lahad Datu incident, the Malaysian
government made the claim that two-thirds of the people
of Sabah agreed to be part of Malaysia in 1962.
Sabah opposition leaders like Jeffrey Kitingan however
dispute this, arguing that what actually took place was a
referendum of less than four percent of the people. If at all,
Kitingan's statement confirms the Philippines' position
from the very beginning.
Moreover, he also argues that all the relevant parties,
including the Sabahans, should find a peaceful solution to
the dispute under the ambit of Great Britain and the
United Nations. In any case, today's adamant refusal by
Malaysian authorities to consider a joint submission with
the Philippines on the Sabah question to an international
tribunal is a complete turnaround from its previous
position on the matter. They cannot however, deny
documents to which Malaysia was a willing party and that
are binding under international law.
In the Sipadan and Ligitan case (2002), the ICJ denied the
Philippine bid to be allowed to intervene, saying it did not
show any specific legal interest in the dispute. However,
what proved important to the Philippines is the declaration
by the ICJ that it recognizes the existence of the Philippine
position on Sabah, as well as the positions taken by
Indonesia and Malaysia on it.
This was the very first time the Philippines was able to
articulate its claim to Sabah before an international
tribunal, although the Court ruled that its claim was not at
issue in the proceedings. What exactly is this claim by the
Philippines?
As we argued in the Case Concerning Sovereignty Over
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ours
“is a territorial claim on a portion of Sabah which properly
belongs to the Philippines on the basis of a sound title jure
gentium and which Malaysia is improperly occupying on
the basis of a faulty title which had been transferred to it
by a prior faulty title holder."
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Indeed, the Philippines is not claiming all of Sabah or
contesting its political legitimacy. We are simply claiming a
piece of territory in North Borneo on the basis of a clear
chain of title. At its heart is the claim that the1878 contract
entered into between the Sultan of Sulu and the
prospectors Dent and Overbeck is one of lease and not of
transfer of sovereignty.
This lease contract was later passed on by the prospectors
to the British North Borneo Company (BNBC), which in
turn, sold its rights under the contract to the British
Crown. As in international law, sovereignty can only be
ceded to sovereign entities or to inviduals acting for any
sovereign entity Overbeck and Dent did not have the power
to pass on to BNBC sovereignty over the properties of the
Sultanate of Sulu over portions of North Borneo, they
being neither sovereign entities nor individuals acting for
any sovereign entity.
In fact, in 1903, the BNBC would sign with the Sultanate of
Sulu a confirmatory Deed to the origina terms of the 1878
lease. From 1878 to just before the1946 Cession, the British
Crown has always recognized the 1878 contract as no more
than a lease. The British Foreign Minister, Lord Granville,
assuring the Spaniards that the BNBC is not acquiring
dominion and sovereignty in North Borneo, stated thus:
The Crown assumes no dominion or sovereignty over the
territories occupied by the company nor does it purport
to grant to the Company any powers of government
thereover; it merely confers upon the persons associated
the status and incidents of a body corporate and
recognize the grants of territory and the powers of
government made and delegated by the Sultan in whom
the sovereignty remains vested.
The British Foreign Minister would go on to say the BNBC
was merely an administrator. To the same effect, the
Prime Minister, Mr. William Gladstone, in the debates in
the House of Commons, gave an important speech. Thus
Malaysia acquired no more than a derivative title from the
British crown, which could not be any better than what the
BNBC acquired from Overbeck and Dent.
And Malaysia's continuing payment of pajak to the heirs of
the Sultan of Sulu, on the basis of the 1939 probate of the
will of Sultan Jamalul Kiram by North Boreo Chief Justice
Macaskie, in the amount of 5, 300 dollars annualy, further
affirm the Philippine position.
The Chief Justice, in his decision dated 18 December 1939,
thus said:
It is abundantly plain that the succesors in Sovereignty
of the Sulta of Sulu are the Goverment of the Philippine
islands, but Mr. De Leon contends that the decsion of
the Philippine courts in the administration suit relating
to the late Sulta's estate precludes that govenrment
from assertingg any claim to the cession monies. In my
view, this is correct. The Philippine government allowed
Sultan Jamalul Kiram to enjoy cession monies as a
private person sine 1915; they have made no claim on his
death and by a judgment of a Philippine court
recognized the right of the private heirs ofthe Sultan to
receive the cession monies. ( based on the Maxwell-
Gibson translation of 1878)
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
Justice Macaskie here has two aspects of the question in
mind. First, he recognizes that there are rights to
sovereignty which now pertain to the Government of the
Philippines and there are proprietary rights that accrue to
the heirs of the Sultan of Sulu. This distinction may
provide an alternative that could be most beneficial to all
concerned, that is, given the difficulties of raising a full
sovereignty claim, it is perhaps more practical for the
Philippines to pursue the proprietary aspect to it.
In the MOA-AD case, the Philippine Supreme Court held
that the right to self-determination does not automatically
mean the right of secession.
Referencing the Canadian Supreme Court’s holding in the
Quebec case, the High Court discussed the distinction
between Internal self-determination and External Self-
Determination:
(1) Through internal self-determination – the state
recognizes a people's pursuit of its political, economic,
social and cultural development within the framework
of an existing state.
(2) A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of
cases and, even then, under carefully defined
circumstances.
What are the exceptions that give rise to a right to external
self-determination?
(1) Vienna Declaration and UN Declaration of Friendly
Relation of states: massive violation of human rights
and deprivation of political representation can be a
basis for right to secession.
(2) if a decision to secede is "freely determined by a
people;" that is to say, by a cross-section of the entire
population of the state to be divided and not only the
inhabitants of the region wishing to secede [Quebec
case (1998)].
(3) and if, following armed conflict, national boundaries are
redrawn as part of the peace treaty.
Prof. Johan Van Der Vyver:
“Self-determination of peoples is thus a matter of national
independence in the case of peoples subject to colonial rule
or foreign domination, participation in the political
processes of a country in cases where the people concerned
have been denied such participation on a discriminatory
basis, and sphere sovereignty of peoples that uphold a
strong (sectional) group identity within a political
community. Not one of these manifestations of self-
determination amounts to the disruption of national
borders of a territorially defined political community.”
In Quebec, the Canadian Supreme Court thus held that:
the decision rests with a cross-section of the entire
population of the state to be divided and not only the
inhabitants of the region wishing to secede.
RECOGNITION
An act by which a state acknowledges the existence of
another state, government or belligerent community and
indicates willingness to deal with the entity as such under
international law.
As a public act of state, recognition is an optional and
political act and there is no legal duty in this regard.
Legal functions of recognition
The typical act of recognition has 2 legal functions:
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(1) The determination of statehood as a question of law
which may have evidential effect before a tribunal, and
(2) A condition of the establishment of formal, optional,
and bilateral relations, including diplomatic relations
and the conclusion of treaties; also described by some
jurists as constitutive.
Declaratory View v. Constitutive View
The Declaratory View (Prevailing View) posits that
recognition is a mere declaration or acknowledgement of
an existing state of law and fact, legal personality having
been previously conferred by operation of law.
The Constitutive View (Minority View) posits that the
political act of recognition is a precondition to the
existence of legal rights of a state. In its logical extreme,
this is to say that the very personality of a state depends on
the political decision of other states. [Brownlie]
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the Bar) – precludes
recognition of government established by revolution, civil
war, coup d’etat or other forms of internal violence until
freely elected representatives of the people have organized a
constitutional government [US President Woodrow Wilson,
1913 and Ecuadorian FM, 1907]
Stimson Doctrine – precludes recognition of any
government established as a result of external aggression
[US Sec. of State Henry Stimson (1932)]
Estrada Doctrine (Asked 1 time in the Bar) – dealing or not
dealing with the government established through a political
upheaval is not a judgment on the legitimacy of the said
government [Mexican Minister Genaro Estrada (1930)]
Effects of recognition:
(1) Diplomatic relations
(2) Right to sue in courts of recognizing state
(3) Right to possession of properties of predecessor in the
recognizing state
(4) All acts of the recognized state or government are
validated retroactively, preventing the recognizing
state from passing upon their legality in its own court.
INTERNATIONAL ORGANIZATIONS
The status and powers of an IO is determined by
agreement and not by general or customary international
law.
IO’s are considered subjects of international law “if their
legal personality is established by their constituent
instrument (charter).”
Further, its constituent rights and duties, or capacities and
immunities, are limited to those set forth in the treaty
creating the international organization. Thus, legal
personality in this context is a relative concept. [Magallona]
PRECONDITIONS FOR INTERNATIONAL PERSONALITY
(1) It must constitute a permanent association of states,
with lawful objects, equipped with organs;
(2) There must be a distinction, in terms of legal powers
and purposes, between the organization [and] its
member states; and
(3) It must have legal powers that it may exercise on the
international plane and not solely within the national
systems of one or more states.
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
CAPACITY TO BRING A CLAIM FOR REPARATION
An IO such as the United Nations (UN) must be deemed to
have such powers which, though not expressly granted in
its Charter, are conferred upon it by necessary implication as
being essential to the performance of its duties.
Thus, though the UN Charter did not expressly clothe the
UN with the capacity to bring an international claim for
reparations, the UN nevertheless possessed functional
personality. [Reparations for Injuries Advisory Opinion, ¶147]
IO’s are deemed to have powers not expressly granted in
their charters where these unstated powers are either:
(1) implicitly bestowed in their charters or
(2) necessary to effect powers expressly granted.
INDIVIDUALS
While States have traditionally been deemed to be subject
of international law, individuals have likewise become in
some degree subjects of that law. However, individuals
may assume the status of subjects of international law only
on the basis of agreement by states and in specific context,
not in accordance with general or customary IL.
Illustrations:
(1) Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the
Sea-Bed Disputes Chamber of the ITLOS extends to
disputes between parties to contracts relating to the
exploitation of the Area. Parties to such contracts may
be natural or juridical persons.
(2) Claims Settlement Declaration of 1981 between US and
Iran: Direct access to the Iran-US Claims Tribunal is
given to individuals for the settlement of their claims
involving more than $250,000 either against Iran or
the US.
(3) Mixed Claims Tribunals established in the Treaties of
Peace concluded at the end of WWI: Individuals
enjoyed locus standi in actions against States relating
to contracts, debts, and property adversely affected by
the war.
(4) London Agreement of the International Military
Tribunal at Nuremberg: In crimes against peace, war
crimes and crimes against humanity, international law
imposes duties and liabilities upon individuals as well
as upon States.
(5) Art. VI of the Convention on the Prevention and
Punishment of the Crime of Genocide: “Parties charged
with genocide” refers to individuals whose
responsibility is thus under international law.
Diplomatic and Consular Law
Diplomatic Intercourse, also referred to as the Right of
Legation, is the right of the State to send and receive
diplomatic missions, which enables States to carry on
friendly intercourse.
AGENTS OF DIPLOMATIC INTERCOURSE
HEAD OF STATE
The head of State represents the sovereignty of the State,
and enjoys the right to special protection for his physical
safety and the preservation of his honor and reputation.
Upon the principle of exterritoriality, his quarters, archives,
property and means of transportation are inviolate.
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He is immune from criminal and civil jurisdiction, except
when he himself is the plaintiff, and is not subject to tax or
exchange or currency restrictions.
THE FOREIGN OFFICE
The body entrusted with the conduct of actual day-to-day
foreign affairs.
It is headed by a Secretary or a Minister who, in proper
cases, may make binding declarations on behalf of his
government. [Legal Status of Eastern Greenland Case
(1933)]
THE DIPLOMATIC CORPS
Refers to the collectivity of all diplomatic envoys accredited
to a State.
It is composed of:
(1) Head of Mission – classified into:
(a) Ambassadors or nuncios – accredited to Heads of
State, and other heads of mission of equivalent
rank;
(b) Envoys, Ministers and Internuncios – accredited to
Heads of State;
(c) Charges d’affaires – accredited to Ministers of
Foreign Affairs.
(2) Diplomatic Staff – those engaged in diplomatic
activities and are accorded diplomatic rank.
(3) Administrative and Technical Staff – those employed in
the administrative and technical service of the mission.
(4) Service Staff – those engaged in the domestic service of
the mission [Nachura]
NOTE: In the Philippines, the President appoints (Sec. 16,
Art.VII, Constitution), sends and instructs the diplomatic
and consular representatives.
Functions and Duties:
(1) Represent the sending State in the receiving State;
(2) Protect in the receiving State the interests of the
sending State and its nationals, within the limits
allowed by international law;
(3) Negotiate with the government of the receiving State;
(4) Ascertain, by all lawful means, the conditions and
developments in the receiving State and reporting the
same to the sending State;
(5) Promote friendly relations between the sending State
and receiving State, and developing their economic,
cultural and scientific relations [Art. 3(1), VCDR]
(6) If diplomatic relation is severed, entrust the protection
of its nationals to the diplomatic mission of a third
State acceptable to the receiving State [Art. 45, VCDR]
(7) May protect the interest of a third State by agreement
with the receiving State, if there is no diplomatic
relations between the third State and the receiving
State [Art. 46, VCDR]
DIPLOMATIC IMMUNITIES AND PRIVILEGES (ASKED 9
TIMES IN THE BAR)
THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES AND IMMUNITIES
(1) Extraterritoriality theory – the premises of the
diplomatic mission represent a sort of extension of the
territory of the sending State
(2) Representational theory – the diplomatic mission
personifies the sending State
(3) Functional necessity theory – privileges and immunities
are necessary to enable the diplomatic mission to
perform its functions
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PERSONAL INVIOLABILITY
Personal inviolability consists of 2 aspects:
(1) The duty of the receiving State to refrain from exercising
its sovereign rights, in particular law enforcement
rights against the diplomat; and
(2) The duty to treat him with due respect and protect his
person, freedom or dignity from physical interference
by other persons.
The receiving State shall treat him with due respect and
take all steps to prevent any attack on his person,
freedom or dignity. [Art. 29, VCDR]
The diplomatic representative shall not be liable to any
form of arrest or detention.
In the Hostage Case, however the ICJ held the diplomatic
envoy, however, may be arrested temporarily in case of
urgent danger, such as when he commits an act of violence
which makes it necessary to put him under restraint for the
purpose of preventing similar acts [Case Concerning the US
Diplomatic and Consular Staff in Tehran, ICJ Reports, 1980]
INVIOLABILITY OF PREMISES AND ARCHIVES
Consist of 2 elements:
(1) The duty of the receiving State to refrain from entering
the premises, except with the consent of the head of
the mission; and
(2) The “special duty of the receiving state to protect the
premises against any intrusion or damage and to
prevent any disturbance of the peace of the mission or
impairment of its dignity.
Note: The principle of inviolability continues to apply even
if diplomatic relations are broken off, or if a mission is
permanently or temporarily recalled. In that case, the
receiving state must respect and protect the premises of
the mission, together with its property and archives. [Art.
45, VCDR]
What does the “premises of the mission” include?
In the first place, it means “the buildings or parts of the
buildings and the land ancillary thereto, irrespective of
ownership, used for the purposes of the mission including
the residence of the head of the mission.
The mission need not be the owner of the premises
The expression “premises of the mission” includes the
buildings for the purposes of the mission, whether they are
owned by the Sending state or by a third party acting for its
account or are leased and are rented. [ILC Yearbook, vol II,
p.95, 1958]
The premises occupied by a diplomatic mission, including
the private residence of the diplomatic agent, are inviolable.
[Art. 30, VCDR]
Note: Such premises cannot be entered or searched, and
neither can the goods, records and archives be detained by
local authorities even under lawful process. The envoy
must consent to such entry, except in extreme cases of
necessity (ex. When there is imminent danger that a crime
of violence is to be perpetrated in the premises; when the
premises are on fire).
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The service of writs, summons, orders or processes within
the premises of mission or residence of the envoy is
prohibited. Even if a criminal takes refuge within the
premises, the peace officers cannot break into such
premises to apprehend the same.
The fugitive should, however, be surrendered upon
demand by local authorities, except when the right of
asylum exists.
RIGHT OF OFFICIAL COMMUNICATION
The envoy is entitled to fully and freely communicate with
his government.
(1) The receiving state shall permit and protect free
communication on the part of the mission for all official
purposes.
(2) The mission may employ all appropriate means to send
and receive messages by any of the usual modes of
communication or by diplomatic courier, which shall
enjoy inviolability;
(3) The official correspondence of the mission is inviolable;
and
(4) The diplomatic bag shall not be opened or detained.
[Art. 27, VCDR]
IMMUNITY FROM LOCAL JURISDICTION
As to criminal jurisdiction
A diplomatic agent enjoys immunity from criminal
jurisdiction of the receiving State. [Art. 31, VCDR]
He may not be arrested, prosecuted, prosecuted or
punished for any offense he may commit, unless his
immunity is waived.
Note: This privilege, however, only exempts a diplomatic
agent from local jurisdiction; it does not import immunity
from legal liability.
As to civil and administrative jurisdiction
The diplomatic agent also enjoys immunity from the civil
and administrative jurisdiction of the receiving State, even
with respect to his private life. [Art. 31, VCDR]
But there are exceptions:
(1) A real action relating to private immovable property
situated in the territory of the receiving state, unless he
holds it in behalf of the sending state for the purposes
of the mission.
(2) An action relating to succession in which the
diplomatic agent involved as executor, administrator,
heir or legatee as a private person and not on behalf of
the sending state.
(3) An action relating to any professional or commercial
activity exercised by the diplomatic agent in the
receiving state outside his official functions. [Art. 31(1),
VCDR]
His properties are not subject to garnishment, seizure for
debt, execution and the like.
The diplomatic agent also cannot be compelled to testify,
not even by deposition, before any judicial or
administrative tribunal in the receiving State without the
consent of his government.
Who are the persons entitled to immunity from jurisdiction?
(1) Diplomatic agent
(2) Members of the family of the diplomatic agent forming
part of his household, who are not nationals of the
receiving State
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(3) As to criminal jurisdiction, members of the
administrative and technical staff of the diplomatic
mission, as well as members of their families forming
part of their respective households, who are not
nationals of or permanent residents in the receiving
state. But as to civil and administrative jurisdiction,
immunity shall not extend to “acts performed outside
the course of their duties’; and
(4) Members of the service staff of the diplomatic mission,
who are not nationals of or permanent residents in the
receiving state, with respect to ‘acts performed in the
course of their duties’. [Art. 37, VCDR]
EXEMPTION FROM TAXES AND CUSTOMS DUTIES
Exemption from taxation has 2 aspects, one, pertaining to
the sending state and another, pertaining to the
diplomatic agent.
As to the sending state
Exemption applies to “premises of the mission” whether
owned or leased, with respect to “all national, regional or
municipal dues and taxes”. [Art 23, VCDR]
As to Diplomatic agents
Are exempt from all dues and taxes, whether personal or
real, national, regional or municipal. [Art. 34, VCDR]
NOTE: He is also exempt from all customs duties of articles
for the official use of the mission and those for the
personal use of the envoy or members of the family
forming part of his household, including articles intended
for his establishment.
Baggage and effects are entitled to free entry and are
usually exempt from inspection.
Exception to Tax Exemption:
As to sending state
Exemption does NOT include dues or taxes which
represent payment for specific services rendered. [Art.
23(1), VCDR]
As to diplomatic agents:
(1) Indirect taxes incorporated in the price of goods
purchased or services availed
(2) Dues and taxes on private immovable property situated
in the receiving State
(3) Estate, succession or inheritance taxes levied by the
receiving State
(4) Dues and taxes on private income sourced within the
receiving State
(5) Capital taxes on investments in commercial ventures in
the receiving State
(6) Charges levied for specific services rendered
(7) Registration, court or record fees, mortgage dues and
stamp duty, with respect to immovable property. [Art.
34, VCDR]
Who are entitled to exemption from taxation in addition to
the diplomatic agent?
(1) Members of the family of the diplomatic agent forming
part of his household, who are not nationals of the
receiving State
(2) Members of the administrative and technical staff of
the diplomatic mission, as well as members of their
families forming part of their respective households,
who are not nationals of or permanent residents in the
receiving state.
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(3) Members of the service staff of the diplomatic mission,
who are not nationals of or permanent residents in the
receiving state, with respect to ‘emoluments they
receive by reason of their employment’
(4) Private servants of members of the mission if they are
not nationals or permanent residents of the receiving
state, with respect to ‘emoluments they receive by
reason of their employment’. [Art. 37, VCDR]
Duration of Immunities and Privileges
These privileges are enjoyed by the envoy from the
moment he enters the territory of the receiving State, and
shall cease when he leaves the country. With respect to
official acts, immunity shall continue indefinitely.
Waiver of Immunities
Diplomatic privileges may be waived. Such waiver may be
made only by the government of the sending State if it
concerns the immunities of the head of the mission. In
other cases, the waiver may be made either by the
government or by the chief of the mission.
CONSULAR RELATIONS
Consuls are State agents residing abroad for various
purposes but mainly:
(1) in the interest of commerce and navigation,
(2) issuance of visa (permit to visit his country), and
(3) such other functions as are designed to protect
nationals of the appointing State.
RANKS
Consul General: heads several consular districts, or one
exceptionally large consular district
Consul: in charge of a small district or town or port
Vice Consul: assists the consul
Consular agent: one entrusted with the performance of
certain functions by the consul
FUNCTIONS
Consular functions include the following:
(1) Protecting the interests of the sending state in the
territory of the receiving state;
(2) Protecting and assisting the nationals of the sending
state;
(3) Furthering the development of commercial, economic,
cultural and scientific relations between the sending
state and the receiving state and promoting friendly
relations between them;
(4) Ascertaining by all lawful means the conditions and
developments in the commercial, economic, and
cultural and scientific life of the receiving state,
reporting thereon to the government of the sending
state, and giving information to persons interested;
(5) Issuing passports and travel documents to nationals of
the sending state and visas and travel documents to
persons wishing to travel to the sending state;
(6) Acting as notary, civil registrar and similar
administrative capacities; and
(7) Exercising rights of supervision and inspection
pertaining to the sending state as flag state and state
of registry of aircraft.
According to the Swiss arbitrator Max Huber in the Las
Palmas case, one state's sovereignty over its territory
comes with the concomitant obligations towards the rights
of other States:
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
Territorial sovereignty, as has already been said, involves
the exclusive right to display the activities of a State. This
right has as corollary a duty: the obligation to protect
within the territory the rights of other States, in particular
their right to integrity and inviolability in peace and in war,
together with the rights which each State may claim for its
nationals in foreign territory. Without manifesting its
territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty. Territorial
sovereignty cannot limit itself to its negative side, i.e. to
excluding the activities of other States; for it serves to
divide between nations the space upon which human
activities are employed, in order to assure them at all
points the minimum of protection of which international
law is the guardian.
In other words, the fact that one has sovereign claims over
a piece of territory does not entitle it to wanton ill-
treatment of foreigners found within that territory, even
assuming for the sake of argument that these foreigners
are alleged to have committed acts inimical to the
interests of the state.
In both the La Grand (2001) and Avena (2004) Cases, the
International Court of Justice (ICJ) has laid down the
positive duty of states to accord consular privileges to
sending states whose nationals have run into trouble in the
jurisdiction of the receiving states, pursuant to Art. 36 of
the Vienna Convention,.
The right of a state to claim rights for its nationals abroad
is referred to as “diplomatic protection”. Here, the duty of
the state is to ensure that states treat their nationals
abroad in a manner that complies with human standards
recognized under the International Covenant on Civil and
Political rights, among others documents.
Art. 36 (1)(b) states thus:
If he so requests, the competent authorities of the
receiving State shall, without delay, inform the consular
post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison or
to custody pending trial or is detained in any other manner.
Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall also
be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without
delay of his rights under this subparagraph.
In the La Grand case, the facts were: Walter La Grand and
his brother, who were German nationals residing in the
United States, were arrested and sentenced to death in
Arizona in 1982 in connection with armed robbery and
murder. However, they were not informed of their rights
under the Vienna Convention on Consular Relations, a
multilateral treaty to which both Germany and the United
States are states parties.
Their court-appointed counsel did not raise the issue of
non-compliance with the Vienna Convention of the United
States in the brothers’ case, either at the court of origin or
on appeal. The matter was only raised in a federal habeas
corpus petition, by which time it was already too late.
On the merits, the ICJ ruled that the US had breached its
obligations to Germany under article 36, paragraphs (1)(a)
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and (c) of the Convention, which give consular officers the
right to communicate with nationals of the sending state
and to have access to them, and give consular officers the
right to visit a national of the sending state who is in
prison, custody or detention. The World Court also held
that under the same article, the brothers had individual
rights that may be invoked before it by Germany.
In the Avena case, Mexico sued the United States before
the ICJ over the latter’s alleged failure to comply with the
Vienna Convention in 54 different cases involving Mexican
nationals who had been convicted and sentenced to death
by American courts. On March 31, 2004, the ICJ issued its
ruling in the case, holding that the United States.
The ICJ held that the United States had breached its
obligations under the Vienna Convention thus:
(1) by failing to inform, without delay, 51 Mexican nationals
of their rights under the Vienna Convention;
(2) by failing to inform, without delay, the appropriate
Mexican consular post of the detention of 49 Mexican
nationals, thereby depriving Mexico of the right to
render assistance to its nationals;
(3) by depriving Mexico of the right to communicate with,
and have access to, 49 Mexican nationals in a timely
manner;
(4) by depriving Mexico of the right to arrange for legal
representation of 34 Mexican nationals in a timely
manner; and
(5) by not permitting the review and reconsideration, in
light of the rights set forth in the Vienna Convention, of
the convictions and sentences of three Mexican
nationals currently awaiting execution.
Court held by way of providing a remedy to Mexico that the
United States must provide "by means of its own choosing,
review and reconsideration of the convictions and
sentences of the Mexican nationals." It added that to
satisfy the Court's judgment, the US must take into
account the rights set forth in Article 36 as well as the
relevant portions of the Court's opinion on this issue. The
Court indicated that review and reconsideration must be
effective and must provide "a procedure which guarantees
that full weight is given to the violation of the rights set
forth in the Vienna Convention, whatever may be the
actual outcome of such review and reconsideration." In the
end, the ICJ denied Mexico's request to hold that a Vienna
Convention violation must automatically result in the
partial or total annulment of conviction or sentence.
NECESSARY DOCUMENTS
The following documents are necessary for the assumption
of Consular functions:
(1) Letters Patent (letter de provision) – the letter of
appointment or commission which is transmitted by
the sending state to the Secretary of Foreign Affairs of
the country where the consul is to serve.
(2) Exequatur – the authorization given to the consul by the
sovereign of the receiving State, allowing him to
exercise his function within the territory.
IMMUNITIES AND PRIVILEGES
Freedom of communication;
(1) The receiving state shall permit and protect freedom of
information on the part of the consular post for all
official purposes;
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(2) In communicating with the government, the diplomatic
missions and other consular posts of the sending state,
the consular post may employ all appropriate means,
including diplomatic or consular bags and messages in
code or cipher;
(3) The official correspondence of the consular post shall
be inviolable;
(4) The consular bag shall neither be opened nor detained.
Scope of personal inviolability of consular officials
(a) They are not liable to arrest or detention pending trial,
except in case of a grave crime and pursuant to a
decision of a competent judicial authority.
(b) They shall not be committed to prison nor be subject to
any other form of restriction to personal freedom,
except in the case of grave crime pursuant to a decision
of competent judicial authority, or in the execution of a
final judicial decision. [Sec. 41, VCCR]

But, may the receiving state request that the consular bag be
opened?
YES, if the authorities have serious reasons to believe that
the bag contains something other than correspondence,
documents or articles “intend exclusively for official use”.
If the request is accepted – the bag may be opened in the
presence of the authorized representative of the sending
state.
If the request is refused – the bag shall be returned to its
place of origin. [Art. 35, VCCR]
Are consular officers and employees entitled to immunity
from the jurisdiction of administrative and judicial
authorities in the receiving state?
YES, but this immunity shall not apply to a civil action
either:
(a) arising out of a contract by a consular officer or
employee, which he did not conclude expressly or
impliedly as an agent of the sending state; or
(b) by a third party for damage arising from an accident
caused by vehicle, vessel or aircraft in the receiving
state. [Art. 43, VCCR]

Inviolability of archives;
Inviolability is unconditional. They shall be inviolable at all
times and wherever they may be. [Art. 33, VCCR] Treaties
Inviolability of premises; A 'treaty' is:
What is the scope of the inviolability of consular premises? (1) an international agreement
(1) Authorities of the receiving state shall not enter that (2) concluded between States
part of the consular premises exclusively used for (3) in written form and
consular work, except with the consent of the head of (4) governed by international law,
the consular post, his designee, or the head of the (5) whether embodied in a single instrument or in two or
diplomatic mission; but consent of the consular head more related instruments and
“may be assumed in case of fire or other disaster (6) whatever its particular designation [Art.2(1), Vienna
requiring prompt protective action; Convention on the Law of Treaties or VCLOT]
(2) The receiving state has the special duty to take all
appropriate steps to protect the consular premises Under the VCLOT, the term “treaty” includes all
against intrusion or damage and to prevent any agreements between states, regardless of how they are
disturbance of peace of the consular post or called. Thus, for purposes of international law, treaties,
impairment of its dignity executive agreements, exchanges of notes, etc. are all
(3) Consular premises, their furnishings, the property of the treaties. Note, however, that Philippine law makes a
consular post and its means of transport shall be distinction between treaties and executive agreements.
immune from any form of requisition “for purposes of Both are equally binding, but only treaties require the
national defense or public utility”. concurrence of the Senate to be effective.
(4) In case of consular premises, their furnishings, the
property of the consular post and its means of Treaty Executive Agreements
transport are expropriated for national defense or
public utility, “all possible steps shall be taken to avoid Subject Matter
impending the performance of consular functions, and (1) Political Issues (1) Transitory effectivity
prompt, adequate and effective compensation shall be (2) Changes in national (2) Adjusts details to carry
paid to the sending state. [Art. 31, VCCR] policy out well-established
(3) Involves international national policies and
Consular premises agreements of a traditions
“The buildings or parts of buildings and the land ancillary permanent character (3) Temporary
thereto, irrespective of ownership, used exclusively for the (4) Implements treaties,
purposes of consular post”. statutes, policies
Ratification
Consular Premises have: Requires ratification by Does not require
(1) Exemption from local jurisdiction for offenses the 2/3 of the Senate to concurrence by Senate to be
committed in the discharge of official functions, but not be valid and effective (Art. binding
for other offense except for minor infractions; VII, Sec. 21)
(2) Exemption from testifying on official communications
or on matters pertaining to consular functions; In the Northrail case, [China National Machinery &
(3) Exemption from taxes, customs duties, military or jury Equipment Corp. (Group) v. Sta. Maria, et al. (2012)] the
service. Supreme Court held that the Contract Agreement in
(4) Personal inviolability of consular officials question does not partake the nature of an executive
agreement on the following discussion:

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Article 2(1) of the Vienna Convention on the Law of Treaties
(Vienna Convention) defines a treaty as follows:
[A]n international agreement concluded between States
in written form and governed by international law,
whether embodied in a single instrument or in two or
more related instruments and whatever its particular
designation.
In Bayan Muna v. Romulo (2011), this Court held that an
executive agreement is similar to a treaty, except that
the former (a) does not require legislative concurrence;
(b) is usually less formal; and (c) deals with a narrower
range of subject matters.
Despite these differences, to be considered an executive
agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur:
(a) the agreement must be between states; (b) it must
be written; and (c) it must governed by international law.
The first and the third requisites do not obtain in the
case at bar.
First, the Supreme Court said that CNMEG, the Chinese
contractor, is neither a government nor a government
agency, noting that Contract Agreement was not
concluded between the Philippines and China, but
between Northrail and CNMEG. Indeed, By the terms of
the Contract Agreement, Northrail is a government-owned
or -controlled corporation, while CNMEG is a corporation
duly organized and created under the laws of the People’s
Republic of China. Thus, both Northrail and CNMEG
entered into the Contract Agreement as entities with
personalities distinct and separate from the Philippine and
Chinese governments, respectively.
Second, neither can it be said that CNMEG acted as agent
of the Chinese government. The fact that the Chinese
Ambassador to Manila, in his letter dated 1 October
2003, described CNMEG as a "state corporation" and
declared its designation as the Primary Contractor in the
Northrail Project, did not mean it was to perform
sovereign functions on behalf of China. That label was only
descriptive of its nature as a state-owned corporation, and
did not preclude it from engaging in purely commercial or
proprietary ventures.
Finally, the Contract Agreement itself expressly stated that
is to be governed by Philippine law, while as defined in the
VCLOT, a treaty or an executive agreement is governed by
international law.
But contrast the holding of the Court in Northrail with its
ruling in the earlier case of Abaya v. Ebdane (2007), where
the High Court ruled that a loan agreement, coupled with
an exchange of notes between two governments,
constitutes an Executive Agreement. The Exchange of
Notes indicated that the two governments have reached
an understanding concerning Japanese loans to be
extended to the Philippines and that these loans were
aimed at promoting our country’s economic stabilization
and development efforts.
An Exchange of Notes is a record of a routine agreement
that has many similarities with the private law contract.
The agreement consists of the exchange of two
documents, each of the parties being in the possession of
the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text
of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or
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departmental heads. The technique of exchange of notes
is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.
The Supreme Court held that "treaties, agreements,
conventions, charters, protocols, declarations, memoranda
of understanding, modus vivendi and exchange of notes"
all refer to "international instruments binding at
international law." Both the 1969 Vienna Convention and
the 1986 Vienna Convention do not distinguish between
the different designations of these instruments. Instead,
their rules apply to all of those instruments as long as they
meet the common requirements.
Agreements concluded by the President which fall short of
treaties are commonly referred to as executive agreements
and are no less common in our scheme of government
than are the more formal instruments: treaties and
conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents
denominated "agreements" or "protocols".
REQUISITES FOR VALIDITY
(1) Treaty Making Capacity
Possessed by all states as an attribute of sovereignty.
International organizations also possess treaty-making
capacity, although limited by the organization’s
purpose.
(2) Competence of the Representative/Organ Making the
Treaty
Generally exercised by the head of state.
Full Powers
Refers to the authority of a person to sign a treaty or
convention on behalf of a state.
Plenipotentiary
Persons other than the head of state, head of
government or foreign minister must produce such
instrument in order to sign a treaty binding their
government. Such a person is called a plenipotentiary.
(3) Parties Must Freely Give Consent: If consent was given
erroneously, or it was induced by fraud, the treaty shall
be voidable.
(4) Object and Subject Matter Must be Lawful
(5) Ratification in Accordance with the Constitutional
Process of the Parties Concerned
THE TREATY-MAKING PROCESS
NEGOTIATION
State representatives discuss the terms and provisions of
the treaty.
ADOPTION [ART. 9, VCLOT]
It means that the form and content have been settled by
the negotiating States. It is preparatory to the
authentication of the text of the treaty and to its
signature.
AUTHENTICATION OF THE TEXT (ART. 10, VCLOT)
It means that the stage where the definitive text of the
treaty is established as the correct and authentic one.
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
EXPRESSION OF CONSENT TO THE BOUND BY THE TREATY [ART. 11,
VCLOT]
REGISTRATION WITH UN
Consent to be bound by the terms of a treaty may be
expressed through:
(1) Signature, when the negotiator is authorized to sign the
treaty;
Signature alone would be sufficient to bind the state to the
obligations under the treaty if:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States
agreed that signature should have that effect; or
(c) if the State can be shown to have had the intention to
be bound by the signature (look at full powers of its
representative). [Art. 12(1), VCLOT]
(2) Ratification, the formal consent to the treaty given by
the Head of State, sometimes in conjunction with the
legislature; or
Under international law, ratification is necessary when:
(a) the treaty provides for such consent to be expressed by
means of ratification;
(b) it is otherwise established that the negotiating States
agreed that ratification should be required;
(c) The representative of the State has signed the treaty
subject to ratification [Art.14 (1), VCLOT], that is, when
the intent was to make it subject to ratification.
(3) Exchange of instruments Constituting the Treaty
(4) Acceptance
(5) Approval
(6) Accession - The method by which a State, under certain
conditions, becomes a party to a treaty of which it is not
a signatory and in the negotiation of which it did not
take part
(7) By any other means agreed by the parties
DOCTRINE OF TRANSFORMATION
In Philippine Law, treaties have to be transformed in order
to be part of Philippine law.
A treaty is “transformed” when a treaty is ratified after it
has been concurred in by the Senate [Sec. 21, Art.VII,
Constitution]. After ratification, a treaty shall be deemed as
if legislated by our Legislature.
La Chemise Lacoste v. Fernandez (1984): Lacoste, a French
corporation, sued local counterfeiters before Philippine
courts. When the counterfeiters challenged its legal
personality to sue before Philippine courts, the Court held
that the Philippines has ratified international conventions
for the protection of intellectual property, and it would
frustrate the object of these conventions if Lacoste is
barred from filing its claims directly in Philippine courts.
PHILIPPINE LAW
In the Philippines, the negotiation of treaties and their
ratification are executive functions, subject to concurrence
of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the
Constitution, treaties must receive the concurrence of the
Senate before they may be effective.
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Pimentel v. Executive Secretary (2005) : The power to ratify
is vested in the President, subject to the concurrence of the
Senate. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification.
Although the refusal of a state to ratify a treaty which has
been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of
the President alone, which cannot be encroached by SC via
a writ of mandamus. SC has no jurisdiction over actions
seeking to enjoin the President in the performance of his
official duties.
AMENDMENT OR MODIFICATION OF TREATY
General Rule: Consent of all parties is required.
Exception: If the treaty itself so allows, two States may
modify a provision only insofar as their relationship inter se.
RESERVATIONS
A unilateral statement made by a state upon entering a
treaty whereby it purports to exclude or modify the legal
effect of certain provision/s of the treaty in their application
to the reserving state [Art. 19, VCLOT].
Exceptions: A reservation shall not operate to modify or
exclude the provisions of a treaty:
(1) Where the treaty expressly prohibits reservations in
general;
(2) Where the treaty expressly prohibits that specific
reservation being made; or
(3) Where the reservation is incompatible with treaty’s
object and purpose [Reservation to the Genocide
Conventions Advisory Opinion]
INVALID TREATIES
(1) If the treaty violates a jus cogens norm of international
law (void);
(2) If the conclusion of a treaty is procured by threat or use
of force (void);
(3) Error of fact, provided that such fact formed an essential
basis of a state’s consent to be bound;
(4) If the representative of a state was corrupted to consent
by another negotiating state;
(5) If consent was obtained through fraudulent conduct of
another negotiating state;
(6) If the representative consented in violation of specific
restrictions on authority, provided:
(a) the restriction was notified to the other negotiating
States
(b) prior to the representative expressing such consent;
(7) If consent was given in violation of provisions of internal
law regarding competence to conclude treaties that is
manifest and of fundamental importance.
GROUNDS FOR TERMINATION
(1) Expiration of the term, or withdrawal of a party in
accordance with the treaty;
(2) Extinction of a party to the treaty, when the treaty rights
and obligations would not devolve upon the successor-
state;
(3) Mutual agreement of parties;
(4) Denunciation or desistance by a party;
(5) Supervening impossibility of performance;
(6) Conclusion of a subsequent inconsistent treaty;
(7) Loss of subject matter;
(8) Material breach or violation of treaty
(9) Fundamental Change of Circumstance (Rebus sic
stantibus)
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A contracting state may unilaterally withdraw from a treaty
when a vital or fundamental change of circumstance
occurs such that the foundation upon which its consent to
be bound initially rested has disappeared. [Art. 62, VCLOT]
Requisites of rebus sic stantibus:
(a) Change is so substantial that the foundation of the
treaty has altogether disappeared
(b) Change was unforeseen or unforeseeable at the
time of the treaty’s perfection
(c) Change was not caused by the party invoking the
doctrine
(d) Doctrine was invoked within a reasonable time
(e) Treaty’s duration is indefinite
(f) Doctrine cannot operate retroactively (it must not
adversely affect provisions which have already been
complied with prior to the vital change)
(10) Outbreak of war between the parties, unless the treaty
relates to the conduct of war (ex. The Four Geneva
Conventions).
(11) Severance of diplomatic relations (if such relationship is
indispensable for the treaty’s application).
(12) Jus Cogens Application: Emergence of a new
peremptory norm of general international law which
renders void any existing, conflicting treaty.
Nationality and Statelessness
NATIONALITY
The tie that binds and individual to his state, from which he
can claim protection and whose laws he is obliged to obey.
It is membership in a political community with all its
concomitant rights and obligations.
Why important in international law
An individual ordinarily can participate in international
relations only through the instrumentality of the state to
which he belongs, as when his government asserts a claim
on his behalf for injuries suffered by him in a foreign
jurisdiction. This remedy would not be available to a
stateless individual.
ACQUISITION
BY BIRTH
(1) Jus soli – nationality of the state where he is born
(2) Jus sanguinis – nationality of his parents
BY NATURALIZATION
A process by which a foreigner acquires, voluntarily or by
operation of law, the nationality of another state
2 Types of Naturalization
(1) Direct
(a) by individual proceedings, usually judicial, under
general naturalization laws
(b) by special act of legislature
(c) by collective change of nationality as a result of
cession or subrogation (naturalization en masse)
(d) by adoption (in some cases)
(2) Derivative – usually subject to stringent restrictions and
conditions
(a) on the wife of the naturalized husband
(b) on the minor children of the naturalized parent
PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(c) on the alien woman upon marriage to a national
Note: An alien woman married to a Filipino shall acquire
his citizenship only if she herself might be lawfully
naturalized. [Yao v. Commissioner of Immigration (1971)]
Multiple Nationality – acquired as the result of the
concurrent application to an individual of the conflicting
municipal laws of two or more states claiming him as their
national
Illustrations
(1) A child born in the United States of Filipino parents
would be an American national under jus soli and a
Filipino national under jus sanguinis
(2) A woman marrying a foreigner may retain her own
nationality under the laws of her state while also
acquiring the nationality of her husband under the laws
of his state
Doctrine of indelible allegiance - an individual may be
compelled to retain his original nationality
notwithstanding that he has already renounced or forfeited
it under the laws of a second state whose nationality he
has acquired
A state conferring honorary citizenship upon an individual
HAGUE CONVENTION OF 1930 ON CONFLICT OF NATIONALITY
LAWS
Any question as to whether a person possesses the
nationality of a particular state shall be determined in
accordance with the law of that state. These laws shall be
recognized by other states so long as they are consistent
with international conventions, international customs and
the principles of law generally recognized with regard to
nationality.
PRINCIPLE OF EFFECTIVE NATIONALITY
Within a third state, a person having more than one
nationality shall be treated as if he had only one. The third
state shall recognize conclusively in its territory either the
nationality of the country in which he is habitually and
principally present or the nationality of the country with
which he appears to be in fact most closely connected.
The courts of third States...seek to resolve the conflict by
having recourse to international criteria and their
prevailing tendency is to prefer the real and effective
nationality. [Nottebohm Case , Leichtenstein v. Guatemala
(1955)]
LOSS OF NATIONALITY
VOLUNTARY
(1) Renunciation (express or implied)
(2) Request for release
INVOLUNTARY
(1) Forfeiture as a result of some disqualification or
prohibited act
(2) Substitution of one nationality for another
STATELESSNESS
The condition or status of an individual who is born without
any nationality or who loses his nationality without
retaining or acquiring another. [Cruz]
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
(1) Everyone has the right to a nationality.
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(2) No one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.
COVENANT RELATING TO THE STATUS OF STATELESS PERSONS
A stateless person is entitled to, among others, the right to
religion and religious instruction, access to courts,
elementary education, public relief and assistance and
rationing of products in short supply, as well as treatment
of no less favorable than that accorded to aliens.
State Responsibility
DOCTRINE OF STATE RESPONSIBILITY
It is a set of principles for when and how shall become
responsible for breaches of international obligation and
who shall be held responsible for such.
Every internationally wrongful act of a State entails the
international responsibility of that State [Article 1, Draft
Articles on the Responsibility of States for Internationally
Wrongful Acts or “Draft Articles”]
ELEMENTS [ARTICLE 2, DRAFT ARTICLES]:
There is an internationally wrongful act of a State when
conduct consisting of an action or omission:
(1) Is attributable to the State under international law; and
(2) Constitutes a breach of an international obligation of a
State
Note: The characterization of an act of a State as
internationally wrongful is governed by international law.
Such characterization is not affected by the
characterization of the same act as lawful by internal law.
[Article 3, Draft Articles]
ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT
ARTICLES
(1) Conducts of organs of a State [Art. 4]
(2) Conducts of persons or entities exercising elements of
governmental authority [Art. 5]
(3) Conducts of organs places at the disposal of a State by
another State [Art. 6]
(4) Acts done in excess of authority or in contravention of
instructions [ultra vires acts] [Art. 7]
(5) Conduct directed or controlled by a State [Art. 8]
(6) Conduct carried out in the absence or default of the
official authorities [Art. 9]
(7) Conduct of an insurrectional or other movements [Art.
10]
(8) Conduct acknowledged and adopted by a State as its
own [Art. 11]
CONSEQUENCES OF STATE RESPONSIBILITY
The State responsible for the wrongful act is under the
obligation to:
(1) Cease the act if it is still continuing; and
(2) Offer appropriate assurances and guarantees of non-
repetition [Art. 30, Draft Articles]
DUTY TO MAKE REPARATIONS [ART. 31, DRAFT ARTICLES]
(1) The responsible State is under an obligation to make
full reparation for the injury caused by the
internationally wrongful act.
(2) Injury includes any damage, whether material or moral,
caused by the internationally wrongful act of a State.
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Note: Under Art. 32, the responsible State may not rely on
the provisions of its internal law as justification for failure
to comply with its obligations to make reparations.
Reparation for the taking of property requires
compensation. Reparation is due when there is a breach of
an obligation.
When an expropriation is legal, the amount of the
reparation is the logistical value of the property taken at
the time of the expropriation. However, when there is an
unlawful taking, the amount of reparation includes the
intangible assets (loss of profits).
But a state may not be compelled to enforce a concession
agreement with a private entity through an action for
specific performance:
“The impossibility of restitution and specific performance.
The claim would not even be realistic; such an action,
which has the effect of turning back the clock would upset
the current situation too profoundly and would have
unforeseeable practical consequences. Furthermore, if
awarded now and the contract would still be allowed to
exist indefinitely, the amount would be so great it would be
absurd.
A rule of reason therefore dictates a result which conforms
to international law, evidenced by state practice and the
law of treaties, and to governing principles of English and
American contract law. The conclusion is thus: when by
exercise of sovereign power a State committed a
fundamental breach of a concession agreement by
repudiating it through a nationalization of the enterprise
and its assets in a manner which implies finality, the
concessionaire is not entitled to call for specific
performance by the Government of the agreement and
reinstatement of his contractual rights, but his sole remedy
is an action for damages” [BP v. Libya (1973-74].
FORMS OF REPARATION
Restitution [Art. 35]
A State responsible for an internationally wrongful act is
under an obligation to make restitution, that is, to re-
establish the situation which existed before the wrongful
act was committed, provided and to the extent that
restitution:
(1) is not materially impossible;
(2) does not involve a burden out of all proportion to the
benefit deriving from restitution instead of
compensation.
Compensation [Art. 36]
The State responsible for an internationally wrongful act is
under an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by
restitution.
The compensation shall cover any financially assessable
damage including loss of profits insofar as it is established.
Satisfaction [Art. 37]
The State responsible for an internationally wrongful act is
under an obligation to give satisfaction for the injury
caused by that act insofar as it cannot be made good by
restitution or compensation.
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Satisfaction may consist in an acknowledgement of the
breach, an expression of regret, a formal apology or
another appropriate modality.
Satisfaction shall not be out of proportion to the injury and
may not take a form humiliating to the responsible State.
Jurisdiction of States
The power of a State under international law to govern
persons and property by its municipal law. This may be
criminal or civil, and may be exclusive or concurrent with
other States. [Harris]
PRINCIPLES OF STATE JURISDICTION
(1) Territoriality Principle: Jurisdiction is determined by
reference to the place where the act occurred or was
committed
(2) Nationality Principle: A court has jurisdiction if the
offender is a national of the forum State
(3) Protective Principle: A court is vested with jurisdiction if a
national interest or policy is injured or violated
(4) Universality Principle: Jurisdiction is asserted with
respect to acts considered committed against the
whole world, like piracy. [People v. Lo-lo and Saraw,
(1922)]
(5) Passive Personality Principle: A court has jurisdiction if
the victim of the act is a national of the forum State.
[S.S. Lotus Case (1927)]
RESERVED DOMAIN OF DOMESTIC JURISDICTION
It is the domain of State activities where the jurisdiction of
the State is not bound by international law. The extent of
this domain depends on international law and varies
according to its development, i.e. when a norm crystallizes
into custom).
The reservation of this domain, however, is without
prejudice to the use of enforcement measures under
Chapter VII of the U.N. Charter.
DOCTRINE OF STATE IMMUNITY
It refers to a principle by which a State, its agents, and
property are immune from the jurisdiction of another State
[Magallona]. This principle is premised on the juridical
equality of States, according to which a State may not
impose its authority or extend its jurisdiction to another
State without the consent of the latter through a waiver of
immunity. For example, domestic courts must thus decline
to hear cases against foreign sovereigns out of deference
to their role as sovereigns.
Absolute Sovereign Immunity- A Sate cannot be sued in a
foreign court no matter what the act it is sued for
Restrictive Sovereign Immunity- A State is immune from
suits involving governmental actions (jure imperii), but not
from those arising from commercial or non-governmental
activity (jure gestionis).
In its February 3, 2012 decision in the case of Germany v.
Italy, the International Court of Justice held that the
principle of sovereign immunity from suits is a customary
norm of international law that holds, unless waived by the
state concerned. The ICJ stressed that such immunity
applies even if the claim against the state is for violation of
a peremptory norm – a jus cogens norm – in international
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law. It also ruled that state assets are also immune from
execution in connection with such claim.
The case arose from a series of Italian domestic court
decisions awarding civil damages against Germany for
forced labor committed during World War II. While
Germany has acknowledged that it committed grave
breaches of international humanitarian law during the war,
it nonetheless insisted that claims against it should be
brought pursuant to its domestic law authorizing payment
of compensation to individuals for these breaches and
before German courts. However, German courts closed
that option as well, because they held that there can be no
compensation for forced labor for individuals held as
POWs. Germany has insisted that under the Geneva
Conventions, POWs may be compelled to work by the
detaining power.
The ICJ ruled in favor of Germany by saying that under
customary international law, the rule remains that a state
is absolutely immune from suits for acts committed by its
military troops in the territory of the claimant state. Thus, it
ruled a violation of a jus cogens norm, even if was
acknowledged by Germany, cannot trump state immunity
and does not constitute its waiver. The principle of state
immunity deriving from the principle of sovereign equality
of states is much too established in international law to be
set aside, according to the ICJ.
Roque’s critique: “In ruling in the manner that it did, the
ICJ applied an already disregarded notion that
international law is only about the application of legal
rules. In fact, bulk of the Court’s opinion was devoted to an
examination of what the law is, assuming perhaps that
what is may be divorced from why it is law and what it
seeks to accomplish. International law is law only because
states accept it as such. While states may have varying
reasons why they acknowledge it to be law, the fact
remains that like all laws, international law forms part of
normative system. It prescribes conduct deemed beneficial
to all of humanity and prohibits conducts that are
otherwise.
This means that in the application of rules, the Court
should have considered what is more beneficial to
humanity: the cold application of the principle of sovereign
immunity or the primacy of protecting civilian and POWS in
times of armed conflict. While it is true that sovereign
equality of states is a foundational principle of the law, the
same is true also of the principle that that human rights
have also ceased to be purely domestic issue.
The fact that the ICJ gave primacy to the principle of
sovereign immunity from suits ignores why these rules
exist in the first place; that is, to protect the interests of
individuals and not the interest of an artificial being that is
a state. As some have noted, international law protects for
instance, the environment—not because the ocean or the
air should be protected as such. We do so ultimately
because human beings require clean water and air.
True, the Court expressly said that its ruling does not affect
the liability of state agents when they themselves commit
egregious acts. But why should there be a distinction?
Precisely because a state can only act only though its
agent, there should be no distinction hence between suits
against the state itself and against its agents.”
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In the Northrail case [China National Machinery &
Equipment Corp. (Group) v. Sta. Maria, et al. (2012)]: The
Supreme Court, on the question of which agency
determines whether an entity is immune from suit in
Philippine jurisdiction, held that:
“The question now is whether any agency of the Executive
Branch can make a determination of immunity from suit,
which may be considered as conclusive upon the courts.
This Court, in Department of Foreign Affairs (DFA) v.
National Labor Relations Commission (NLRC), emphasized
the DFA’s competence and authority to provide such
necessary determination, to wit:
The DFA’s function includes, among its other mandates,
the determination of persons and institutions covered by
diplomatic immunities, a determination which, when
challenge, (sic) entitles it to seek relief from the court so
as not to seriously impair the conduct of the country's
foreign relations. The DFA must be allowed to plead its
case whenever necessary or advisable to enable it to
help keep the credibility of the Philippine government
before the international community. When international
agreements are concluded, the parties thereto are
deemed to have likewise accepted the responsibility of
seeing to it that their agreements are duly regarded. In
our country, this task falls principally of (sic) the DFA as
being the highest executive department with the
competence and authority to so act in this aspect of the
international arena. (Emphasis supplied.)
Further, the fact that this authority is exclusive to the DFA
was also emphasized in this Court’s ruling in Deutsche
Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his
rulings, noted that it was imperative for petitioners to
secure from the Department of Foreign Affairs “a
certification of respondents’ diplomatic status and
entitlement to diplomatic privileges including immunity
from suits.” The requirement might not necessarily be
imperative. However, had GTZ obtained such certification
from the DFA, it would have provided factual basis for its
claim of immunity that would, at the very least, establish
a disputable evidentiary presumption that the foreign
party is indeed immune which the opposing party will
have to overcome with its own factual evidence. We do
not see why GTZ could not have secured such certification
or endorsement from the DFA for purposes of this
case. Certainly, it would have been highly prudential for
GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this
juncture, we do not see any evidence that the DFA, the
office of the executive branch in charge of our diplomatic
relations, has indeed endorsed GTZ’s claim of immunity. It
may be possible that GTZ tried, but failed to secure such
certification, due to the same concerns that we have
discussed herein.
Would the fact that the Solicitor General has endorsed GTZ’s
claim of State’s immunity from suit before this Court
sufficiently substitute for the DFA certification? Note that
the rule in public international law quoted in Holy See
referred to endorsement by the Foreign Office of the State
where the suit is filed, such foreign office in the Philippines
being the Department of Foreign Affairs. Nowhere in the
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Comment of the OSG is it manifested that the DFA has
endorsed GTZ’s claim, or that the OSG had solicited the
DFA’s views on the issue. The arguments raised by the
OSG are virtually the same as the arguments raised by
GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on
the issue. The Comment filed by the OSG does not inspire
the same degree of confidence as a certification from the
DFA would have elicited.(Emphasis supplied.)
In the case at bar, CNMEG offers the Certification executed
by the Economic and Commercial Office of the Embassy of
the People’s Republic of China, stating that the Northrail
Project is in pursuit of a sovereign activity. Surely, this is not
the kind of certification that can establish CNMEG’s
entitlement to immunity from suit, as Holy
See unequivocally refers to the determination of the
“Foreign Office of the state where it is sued.”
Further, CNMEG also claims that its immunity from suit
has the executive endorsement of both the OSG and the
Office of the Government Corporate Counsel (OGCC),
which must be respected by the courts. However, as
expressly enunciated in Deutsche Gesellschaft, this
determination by the OSG, or by the OGCC for that matter,
does not inspire the same degree of confidence as a DFA
certification. Even with a DFA certification, however, it
must be remembered that this Court is not precluded from
making an inquiry into the intrinsic correctness of such
certification. “
In the same case, the High Court said that an agreement to
arbitrate is an implied waiver of immunity:
“In the United States, the Foreign Sovereign Immunities
Act of 1976 provides for a waiver by implication of state
immunity. In the said law, the agreement to submit
disputes to arbitration in a foreign country is construed
as an implicit waiver of immunity from suit. Although
there is no similar law in the Philippines, there is reason
to apply the legal reasoning behind the waiver in this
case….
All disputes or controversies arising from this Contract
which cannot be settled between the Employer and the
Contractor shall be submitted to arbitration in accordance
with the UNCITRAL Arbitration Rules at present in force
and as may be amended by the rest of this Clause. The
appointing authority shall be Hong
Kong International Arbitration Center. The place of
arbitration shall be in Hong Kong at Hong Kong
International Arbitration Center (HKIAC).
Under the above provisions, if any dispute arises between
Northrail and CNMEG, both parties are bound to submit
the matter to the HKIAC for arbitration. In case the HKIAC
makes an arbitral award in favor of Northrail, its
enforcement in the Philippines would be subject to the
Special Rules on Alternative Dispute Resolution (Special
Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2
and 13.3 of the Special Rules, the party to arbitration
wishing to have an arbitral award recognized and enforced
in the Philippines must petition the proper regional trial
court (a) where the assets to be attached or levied upon is
located; (b) where the acts to be enjoined are being
performed; (c) in the principal place of business in the
Philippines of any of the parties; (d) if any of the parties is
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an individual, where any of those individuals resides; or (e)
in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed
that it will not be afforded immunity from suit. Thus, the
courts have the competence and jurisdiction to ascertain
the validity of the Contract Agreement.”
May a state’s naval vessel be proceeded against to answer
for the former’s financial liabilities to a third party? In the
2012 The “ARA Libertad” Case [Argentina v. Ghana(2012)],
the International Tribunal on the Law of the Sea (ITLOS)
held that , “in accordance with general international law, a
warship enjoys immunity” and that “any act which prevents
by force a warship from discharging its mission and duties
is a source of conflict that may endanger friendly relations
among States”. This is pursuant to Art. 32 of the UNCLOS,
which states that: “Immunities of warships and other
government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and
in articles 30 and 31, nothing in this Convention affects the
immunities of warships and other government ships
operated for non-commercial purposes.”
Treatment of Aliens
General Rule: An alien cannot claim a preferred position
vis-a-vis the national of the state.
INTERNATIONAL STANDARD OF JUSTICE
The standard of the reasonable state and calls for
compliance with the ordinary norms of official conduct
observed in civilized jurisdictions
DOCTRINE OF STATE RESPONSIBILITY (WITH
SPECIFIC REGARD TO TREATMENT OF ALIENS)
A state may be held responsible for
(1) an international delinquency
(2) directly or indirectly imputable to it
(3) which causes injury to the national of another state
Liability will attach to the state where its treatment of the
alien falls below the international standard of justice or
where it is remiss in according him the protection or
redress that is warranted by the circumstances.
As early as the 1928 Las Palmas case, international law has
recognized that states have concomitant obligations with
their rights as sovereigns over their territories. As held by
the lone arbitrator Max Huber: “Territorial sovereignty, as
has already been said, involves the exclusive right to
display the activities of a State. This right has a corollary, a
duty: the obligation to protect within the territory the rights
of other States, in particular their right to integrity and
inviolability in peace and in war, together with the rights
which each State may claim for its nationals in foreign
territory”.
In the 2007 Application of the Convention on the Prevention
and Punishment of the Crime of Genocide [Bosnia and
Herzegovina v. Serbia and Montenegro], the ICJ held that
the Respondent could not be held responsible under the
Genocide Convention Convention for the conduct of
Serbian forces not under its control and direction, (thus
affirming the effective control test, and not the over-all
control test favored by the applicant).
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However the Court said the Respondent is responsible for
failing to prevent Serbian forces from committing the
genocide in Srebrenica. Consequently, the question arose
as to whether the Respondent is also liable to pay
reparations for damages suffered by the Applicant for its
failure to abide by its duty to prevent genocide. The Court
said there should be a ‘sufficiently direct and certain causal
nexus’ between the damage incurred by the Applicant and
the Respondent’s breach of the obligation to prevent
genocide. Moreover, such a nexus obtains if it is able to
establish ‘from the case as a whole and with a sufficient
degree of certainty that the genocide at Srebrenica would
in fact have been averted if the Respondent had acted in
compliance with its legal obligations.’ To do this, it must
ask itself ‘whether, and to what extent’ the injury asserted
by the Applicant is the result of wrongful conduct by the
Respondent. Its conclusion: a financial award cannot be
done, as no such nexus can be established. However, the
Court ruled that satisfaction in the form of a declaration
that the Respondent failed to perform its duty to prevent
genocide under the Convention is in order.
Applicant argued that genocide is such a complex crime
involving so many specific acts that it requires a
reexamination of the effective control test established in
the Nicaragua case (the need to establish specific direction
and control by the state of alleged agents who perpetrated
the crime), and proposed instead the “over-all control test”
reached in the Tadic case by the International Tribunal on
the Former Yugoslavia (ICTY). How did the Court address
this?
The ICJ said the “over-all control test” was only relevant in
in so far as the question of the characterization of the
Yugoslav conflict as an international armed conflict or
whether or not the conflict has been internationalized; it is
not relevant in so far but not to the task of determining
whether a state is responsible for the acts of certain non-
state organs involved in that same international armed
conflict. The ICJ said applying the new test in a question of
state responsibility is improper, as the test was employed
in a case that pertained mainly to individual criminal
responsibility, in contrast to the case before it, which
pertains chiefly to state responsibility: thus to do so would
stretched it too far, almost to the breaking point, the
connection which must exist between the conduct of a
State’s organs and its international responsibility
How? Because under the law on state responsibility, a
state is responsible only for the acts of its organs and pace
the Nicaragua case, for those non-state actors over which it
exercised “effective control”; that is, it should have
instructions or provided the direction pursuant to which
the perpetrators of the wrongful act acted.
CONDITIONS FOR THE ENFORCEMENT OF STATE RESPONSIBILITY:
(1) Exhaustion of local administrative remedies
(2) Must be represented in the international claim for
damages by his own state
Calvo clause – a stipulation by virtue of which an alien
waives or restricts his right to appeal to his own state in
connection with any claim arising from a contract with a
foreign state and limits himself to the remedies available
under the laws of that state
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The propriety of governmental acts should be put to the
test of international standards. The treatment of an alien,
in order to constitute an international delinquency, should
amount to an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and
impartial man would readily recognize its insufficiency.
[Neer Claim (1926)]
EXTRADITION
The surrender of a person by one state to another state
where he is wanted for prosecution or, if already convicted,
for punishment. [Cruz]
PD 1086: The removal of an accused from the Philippines
with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government
to hold him in connection with any criminal investigation
directed against him in connection with any criminal
investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of
the requesting state or government.
Basis: Treaty between the state of refuge and the state of
origin.
FUNDAMENTAL PRINCIPLES
Extradition is based on the consent of the state of the state
of asylum as expressed in a treaty or manifested as an act
of goodwill.
Principle of speciality – a fugitive who is extradited may be
tried only for the crime specified in the request for
extradition and included in the list of offenses in the
extradition.
Any person extradited, whether he be a national of the
requesting state, of the state of refuge or of another state.
Political and religious offenders are generally not subject
to extradition.
In the absence of special agreement, the offense must
have been committed within the territory or against the
interests of the demanding state.
If there is a prima facie case, a warrant of surrender will be
drawn and the fugitive will be delivered to the state of
origin.
The evaluation process partakes of the nature of a criminal
investigation, having consequences which will result in
deprivation of liberty of the prospective extradite. A favorable
action in an extradition request exposes a person to
eventual extradition to a foreign country, thus exhibiting the
penal aspect of the process.
The evaluation process itself is like a preliminary
investigation since both procedures may have the same
result – the arrest and imprisonment of the respondent.
The basic rights of notice and hearing are applicable in
criminal, civil and administrative proceedings. Non-
observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, may claim the
right to appear therein and present their side. [Secretary of
Justice v. Lantion (2000)]
AS DISTINGUISHED FROM DEPORTATION
Deportation – is the expulsion of an alien who is considered
undesirable by the local state, usually but not necessarily
to his own state. It is usually a unilateral act of the local
state and is made in its own interests.
International Human Rights
Law
Definition (asked 3 times in the bar): Human rights are
those fundamental and inalienable rights which are
essential for life as a human being. They pertain to rights
of an individual as a human being which are recognized by
the international community as a whole through their
protection and promotion under contemporary
international law.

Rule of double criminality: The act for which the extradition CLASSIFICATION OF HUMAN RIGHTS
is sought must be punishable in both the requesting and (1) First generation – consists of civil and political rights;
requested states. (2) Second generation – consists of economic, social and
cultural rights;
Procedure (3) Third generation – refers to right to development, right
Surrender of refugee is sought: to peace, and right to environment.
Request for his extradition is presented through
diplomatic channels to the state of refuge, with the First generation Second generation
necessary papers for identification.
Obligatory Force under International Law
strictly (or objectively) relatively obligatory: States
obligatory, whatever the are required to
Receipt of the request economic or other progressively achieve the
conditions of the states full realization of these
obligated rights “to the maximum of
their available resources”
A judicial investigation will be conducted by the state of Derogation/ Restriction, when allowed
refuge to ascertain if the crime is covered by the
extradition treaty and if there is a prima facie case may only be derogated may be restricted for the
against the fugitive according to its own laws. in a public emergency general welfare, with or
without an “emergency
that threatens the
independence or security
of a State Party.”

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UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
The UDHR is the first comprehensive catalogue of human
rights proclaimed by an international organization.
NOTE: The UDHR is not a treaty. It has no obligatory
character because it was adopted by the UN GA as
Resolution 217A (III). As a resolution, it is merely
recommendatory.
Despite this, the UNDHR is considered a normative
instrument that creates binding obligations for all States
because of the consensus evidenced by the practice of
States that the Declaration is now binding as part of
international law [Juan Carillo Salcedo, Human Rights,
Universal Declaration].
The UDHR embodies both first and second generation
rights. The civil and political rights enumerated include:
(1) The right to life, liberty, privacy and security of person;
(2) Prohibition against slavery;
(3) The right not to be subjected to arbitrary arrest,
detention or exile;
(4) The right to fair trial and presumption of innocence;
(5) The right to a nationality;
(6) The right to freedom of thought, conscience and
religion;
(7) The right to freedom of opinion and expression;
(8) Right to peaceful assembly and association;
(9) The right to take part in the government of his country.
Economic, social and cultural rights enumerated in the
UDHR include:
(1) The right to social security;
(2) The right to work and protection against
unemployment;
(3) The right to equal pay for equal work;
(4) The right to form and join trade unions;
(5) The right to rest and leisure.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS (ICCPR) (ASKED 1 TIME IN THE BAR)
The ICCPR is an international covenant and is binding on
the respective State Parties.
It embodies the first generation of human rights, although it
lists more rights than the UDHR:
(1) The right to own property;
(2) The right to seek in other countries asylum from
prosecution;
(3) The right of members of ethnic, religious or linguistic
groups not to be denied to enjoy their own culture, to
profess and practice their own religion, or to use their
own language;
(4) The right to compensation in case of unlawful arrest;
(5) The right to legal assistance in criminal prosecution;
(6) The right against self-incrimination;
(7) Protection against double jeopardy;
(8) Right to review by higher tribunal in case of criminal
conviction;
(9) Right of every child to nationality;
(10) Right to protection of a child as required by his status
as a minor;
(11) Right of persons below 18 years old not to be
sentenced to death for crimes;
(12) Right against the carrying out of death sentence on
the part of a pregnant woman.
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OBLIGATIONS OF THE STATE PARTIES
(1) Under the ICCPR, State Parties undertake to respect
and to ensure to all individuals within their territory the
rights enumerated therein, without distinction of any
kind, such as race, color, sec, language, religion,
political or other opinion, national or social origin, birth
or other status.
(2) State Parties are required to take the necessary steps to
adopt legislative or other measures that are necessary
to give effect to the rights recognized in the ICCPR.
(3) State Parties must ensure that any person whose rights
or freedoms are violate have an effective remedy,
notwithstanding that the violation has been committed
by persons action in an official capacity.
(4) State Parties must ensure that any person claiming
such remedy shall have his right thereto determined by
competent judicial, administrative or legislative
authority, and that they shall enforce the remedy when
granted.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS (ICESCR)
The ICESCR, like the ICCPR, is an international covenant
and is binding on the respective State Parties. It embodies
the second generation of human rights, although it lists
more rights than the UDHR:
(1) Right to health;
(2) Right to strike;
(3) Right to be free from hunger;
(4) Rights to enjoy the benefits of scientific progress;
(5) Freedom for scientific research and creativity.
OBLIGATION OF STATE PARTIES
State Parties are required to undertake the necessary steps
to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
enumerated in the covenant by all appropriate means.
Note: Unlike the ICCPR, the states under the ICESCR
merely agree to take steps to the maximum of its available
resources.
COMMON PROVISIONS IN THE ICCPR AND THE ICESCR
The common provisions of the two Covenants deal with
collective rights, namely:
(1) The right of self-determination of peoples;
(2) The right of peoples to freely dispose of their natural
wealth and resources;
(3) The right not of peoples not to be deprived of their own
means of subsistence
Note: These rights are not covered by the UDHR.
International Humanitarian
Law and Neutrality
IHL is the branch of public international law which governs
armed conflicts to the end that the use of violence is
limited and that human suffering is mitigated or reduced
by regulating or limiting the means of military operations
and by protecting those who do not or no longer
participate in the hostilities.
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
IHL has Two Branches:
(1) Law of The Hague, which establishes the rights and
obligations of belligerents in the conduct of military
operations, and limits the means of harming the
enemy; and
(2) Law of Geneva, which is designed to safeguard military
personnel who are no longer taking par in the fighting
and people not actively engaged in hostilities (i.e.
civilians) (INTERNATIONAL COMMITTEE OF THE RED
CROSS [“ICRC”]).
Note: The two branches draw their names from the cities
where each was initially codified. With the adoption of the
Additional Protocols of 1977, which combine both
branches, that distinction is now of merely historical and
instructive value (ICRC).
CATEGORIES OF ARMED CONFLICT
INTERNATIONAL ARMED CONFLICTS
An Armed Conflict exists when there is resort to the use of
force
(1) between two states (international armed conflict), or
(2) between government authorities and an organized
armed group, or
(3) between such groups within the same territory (non-
international armed conflict) [Prosecutor v. Dusko Tadic
(1995)]
Note: Wars of National Liberation have been classified as
international armed conflicts (ICRC)
Mere internal disturbances and tensions, or riots or
isolated or sporadic acts of armed violence does not
amount to an armed conflict [Tadic]
Note: Cases of this type are governed by the provisions of
human rights law and the relevant domestic laws.
INTERNAL OR NON—INTERNATIONAL ARMED CONFLICT
Conventions are the only provision applicable to non-
international armed conflicts. It defines the following
obligations:
(1) Persons taking no active part in the hostilities, including
(a) members of the armed forces who have laid down
their arms and
(b) those placed hors de combat, shall in all instances
be treated humanely without any adverse
distinction founded on race, color, religion or faith,
sex, birth or wealth, or any other similar criteria.
(2) With respect to the persons mentioned above, the
following acts shall remain prohibited:
(a) Violence to life and person, in particular, murder of
all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular
humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of
executions without previous judgment pronounced
by a regularly constituted court, affording all the
judicial guarantees which are recognized as
indispensable by civilized peoples.
(3) The wounded and the sick shall be collected and cared
for.
The application of provisions above does not affect the
legal status of the parties to the conflict. Hence, an
insurgent or a rebel group does not assume belligerency
status.
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Article 3 is indifferent to the legal character of such group.
It must be noted that Article 3 is to be applied as a
minimum.
Common Article 3 and Protocol II
Protocol II develops and supplements common Article 3
[Art. 1, Protocol II]. It applies to:
(1) all armed conflicts which take place in the territory of a
State Party,
(2) between its armed forces and dissident armed forces or
other organized groups
(3) which, under responsible command, exercise such
control over a part of its territory
(4) as to enable to carry out sustained and concerted
military operations and to implement the Protocol.
Application of Article 3 and Protocol II
The rules in Article 3 are recognized as customary norms of
international law, and therefore applicable to all States.
However, Protocol II is a treaty and binding only States that
are parties to it.
Its rules, however, may still develop into customary norms
binding on all states, by the general practice of states
coupled with their acceptance of them as law (opinio juris).
Control-of-Territory
The test of whether a dissident armed force has control of
territory is when such armed force can (1) carry out
sustained and concerted military operations, and whether
it has (2) the capacity to comply with the provisions of the
Protocol.
In a non-international armed conflict where the dissident
armed forces do not exercise such control over territory,
Article 3, and not Protocol II may be applicable. The result
is that this situation may give rise to two categories of non-
international armed conflicts: one where only Article 3
applies, and the other where both Article 3 and Protocol II
apply.
WAR OF NATIONAL LIBERATION
An armed conflict may be of such nature in which peoples
are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of
their right to self-determination.
This conflict, however, is considered an international armed
conflict under Art. 1, par. 3 and 4 of Protocol I.
Note: Article 2 common to the four Geneva conventions
provides that “all cases of declared war or any other armed
conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not
recognized by one of them.” Hence, the Geneva
conventions and Protocol I govern wars of national
liberation.
Wars by peoples against racist, colonial and alien
domination "for the implementation of their right to self-
determination and independence is legitimate and in full
accord with principles of international law," and that any
attempt to suppress such struggle is unlawful (Resolution
3103 [XXVIII]).
When peoples subjected to alien domination resort to
forcible action in order to exercise their right to self-
determination, they "are entitled to seek and to receive
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
support in accordance with the purposes and principles of
the Charter (1970 Resolution 2625 [XXV])
PRINCIPLES OF INTERNATIONAL HUMANITARIAN
LAW
Combatants: Members of the armed forces of a Party to a
conflict [Art. 3(2), Protocol 1]. They have the right to
participate directly and indirectly in hostilities. [Art 43(2)
Protocol 1]
Note: Only combatants are allowed to engage in hostilities.
A combatant is allowed to use force, even to kill, and will
not be held personally responsible for his acts, as he would
be where he to the same as a normal citizen [Gasser]
Hors de combat: Under Art. 41(2) of Protocol I, a person is
hors de combat if he:
(1) Is in the power of an adverse party to the conflict;
(2) He clearly expresses an intention to surrender; or
(3) He has been rendered unconscious or is otherwise
incapacitated by wounds or sickness, and is therefore
incapable of defending himself, provided that in any of
these cases, he abstains from any hostile act and does
not attempt to escape.
Persons hors de combat shall be protected and treated
humanely without any adverse distinction. Their right to
life and physical and moral integrity shall be respected
Protected Persons: They are those who enjoy or are entitled
to protection under the Geneva Conventions. Categories of
protected persons include:
(1) The wounded, the sick, and shipwrecked;
(2) Prisoners of War
(3) Civilians
For purposes of protection, civilians are further classified
as:
(1) Civilians who are victims of conflict in countries involved
(2) Civilians in territories of the enemy;
(3) Civilians in occupied territories;
(4) Civilians internees
TREATMENT OF CIVILIANS
Fundamental Principles of IHL
(1) Parties to an armed conflict, together with their armed
forces, do not have unlimited choice of methods or
means of warfare. They are prohibited from employing
weapons or means of warfare that cause unnecessary
damage or excessive suffering.
(2) Parties to an armed conflict shall, at all times,
distinguish between civilian population and the
combatants (Principle of Distinction). Civilians shall be
spared from military attacks which shall be directed
only against military objectives.
(3) Persons hors de combat are those who have been
injured in the course of hostile battle action and are no
longer able to directly take part in hostilities. They shall
be protected and treated humanely without any
adverse distinction. Their right to life and physical and
moral integrity shall be respected.
(4) It is prohibited to kill or injure an enemy who is hors de
combat or who surrenders.
(5) The wounded and the sick shall be protected and cared
for by the party to the conflict which has them in its
power. Protection shall also apply to medical
personnel, establishments, transports and material.
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(6) Combatants and civilian who are captured by authority
of the party to a dispute are entitled to respect for their
right to life, dignity, conviction, and other personal
rights. They shall be protected against acts of violence
or reprisals. [Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion by the ICJ]
PRISONERS OF WAR
Article 4, Geneva Convention: Prisoners of war are persons
belonging to one of the following categories:
(1) Members of the armed forces of a Party to the conflict,
including militias or volunteer corps
(2) Militias or volunteer corps operating in or outside their
own territory, even if such territory is occupied
provided:
(a) They are being commanded by a person responsible for
his subordinates
(b) Have a fixed distinctive sign recognizable at a distance
(c) Carries arms openly
(d) Conducts their operations in accordance with the laws
and customs of war
(3) Members of regular armed forces who profess
allegiance to a government or authority not recognized
by the Detaining Power
(4) Civilians who accompany the armed forces, provided
that they have received authorization from the armed
forces which they accompany
(5) Members of crews of merchant marine and the crews of
civil aircraft of the Parties to the conflict
(6) Inhabitants of a non-occupied territory who on the
approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to
form themselves into regular armed units, provided
they carry arms openly and respect the laws and
customs of war
(7) Persons belonging to the armed forces of the occupied
territory
LAW ON NEUTRALITY
Neutrality is the legal status of a State in times of war, by
which it adopts impartiality in relation to the belligerents
with their recognition.
The Hague Convention Respecting the Rights and Duties of
Neutral Powers (Oct. 18, 1907) governs the status of
neutrality by the following rules:
(1) The territory of the neutral Power is inviolable;
(2) Belligerents are forbidden to move troops or munitions
of war and supplies across the territory of a neutral
Power;
(3) A neutral power is forbidden to allow belligerents to
use its territory for moving troops, establishing
communication facilities, or forming corps of
combatants.
(4) Troops of belligerent armies received by a neutral
Power in its territory shall be interned by away from the
theatre of war;
(5) The neutral Power may supply them with food, clothing
or relief required by humanity;
(6) If the neutral Power receives escaped prisoners of war,
it shall leave them at liberty. It may assign them a
place of residence if it allows them to remain in its
territory;
(7) The neutral power may authorize the passage into its
territory of the sick and wounded if the means of
transport bringing them does not carry personnel or
materials of war
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The Third Geneva Convention (Prisoners of War) allows
neutral Powers to cooperate with the parties to the armed
conflict in making arrangements for the accommodation in
the former’s territory of the sick and wounded prisoners of
war.
Interned persons among the civilian population, in
particular the children, the pregnant women, the mothers
with infants and young children, wounded and sick, may be
accommodated in a neutral state in the course of
hostilities, by agreement between the parties to the
conflict.
PROTECTING POWER
A protecting power is a State or an organization:
(1) not taking part in the hostilities,
(2) which may be a neutral state,
(3) designated by one party to an armed conflict with the
consent of the other
(4) to safeguard or protect its humanitarian interests in the
conflict, the performance of which IHL defines specific
rights and duties.
Q: In an armed conflict, isn’t the use of nuclear weapons
illegal, pursuant to Article 6, ICCPR, which safeguards the
right to life?
A: While it is true that ICCPR protection does not cease in
times of war, except certain derogations allowed under Art.
4 in times of emergency, what applies in an armed conflict
is the lex specialis, which is the law on armed conflict (IHL).
It determines whether the taking of life in times of war has
been arbitrary.
RA 9851 - PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL
HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST
HUMANITY (DEC. 11, 2009)
(1) The Philippines renounces war as an instrument of
national policy, adopts the generally accepted
principles of international law as a part of the law of
the land.
(2) The state adopts the generally accepted principles of
international law, including the Hague Conventions of
1907, the Geneva Conventions on the protection of
victims of war and international humanitarian law, as
part of the law our nation

.
Crimes and Penalties
Crime Definition/Category Specific Acts Punishable Penalty*
War Crimes or In case of an (1) Willful killing; Reclusion Temporal in
Crimes against international armed (2) Torture or inhuman treatment, including its medium to maximum
International conflict , grave breaches biological experiments; period and a fine
Humanitarian Law of the Geneva (3) Willfully causing great suffering , serious ranging from One
[Section 4] Conventions of 12 injury to body or health; hundred thousand pesos
August 1949, committed (4) Extensive destruction and appropriation of (Php 100,000.00) to
against persons or property not justified by military necessity Five hundred thousand
property protected by and carried out unlawfully and wantonly; pesos (Php
relevant Geneva (5) Willfully depriving a prisoner of war or other 500,000.00).
Convention protected person of the rights of fair and Reclusion Perpetua and
regular trial; a fine ranging from Five
(6) Arbitrary deportation or forcible transfer of hundred thousand pesos
population or unlawful confinement; (Php 500,000.00) to
(7) Taking of hostages; One million pesos (Php
(8) Compelling a prisoner a prisoner of war or 1,000,000.00) shall be
other protected person to serve in the forces imposed - When justified
of a hostile power; and by the extreme gravity of
(9) Unjustifiable delay in the repatriation of the crime (e.g., results in
prisoners of war or other protected persons, death or serious physical
against persons taking no active part in the injury, or constitutes
hostilities, including member of the armed rape)
forces who have laid down their arms and [Section 7]
those placed hors de combat by sickness,
wounds, detention or any other cause
In case of a non- (1) Violence to life and person, in particular, Reclusion Temporal in
international armed willful killings, mutilation, cruel treatment its medium to maximum
conflict, serious and torture; period and a fine
violations of common (2) Committing outrages upon personal dignity, ranging from One
Article 3 to the four (4) in particular, humiliating and degrading hundred thousand pesos
Geneva Conventions of treatment; (Php 100,000.00) to
12 August 1949 (3) Taking of hostages; and Five hundred thousand
(4) The passing of sentences and the carrying pesos (Php
out of executions without previous judgment 500,000.00).
pronounced by a regularly constituted court… Reclusion Perpetua and
a fine ranging from Five
hundred thousand pesos
(Php 500,000.00) to
One million pesos (Php
1,000,000.00) shall be
imposed - When justified
by the extreme gravity of
the crime (e.g., results in
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Crime Definition/Category Specific Acts Punishable Penalty*

death or serious physical
injury, or constitutes
rape)
[Section 7]
Other serious violations (1) Internationally directing attacks against the Reclusion Temporal in
of the laws and customs civilian population as such or against its medium to maximum
applicable in armed individual civilians not taking direct part in period and a fine
conflict, within the hostilities; ranging from One
established framework (2) Intentionally directing attacks against civilian hundred thousand pesos
of intentional law objects, that is, object which are not military (Php 100,000.00) to
objectives; Five hundred thousand
(3) Intentionally directing attacks against pesos (Php
buildings, material, medical units and 500,000.00).
transport, and personnel using the distinctive Reclusion Perpetua and
emblems of the Geneva Conventions or a fine ranging from Five
Additional Protocol III in conformity with hundred thousand pesos
intentional law; (Php 500,000.00) to
(4) Intentionally directing attacks against One million pesos (Php
personnel, installations, material, units or 1,000,000.00) shall be
vehicles involved in a humanitarian imposed - When justified
assistance or peacekeeping mission in by the extreme gravity of
accordance with the Charter of the United the crime (e.g., results in
Nations, as long as they are entitled to the death or serious physical
protection given to civilians or civilian objects injury, or constitutes
under the international law of armed conflict; rape)
(5) Launching an attack in the knowledge that (Section 7)
such attack will cause incidental loss of life or
injury to civilians or damage to civilian objects
or widespread, long-term and severe damage
to the natural environment which would be
excessive in relation to the concrete and
direct military advantage anticipated;
(6) Launching an attack against works or
installations containing dangerous forces in
the knowledge that such attack will cause
excessive loss of life, injury to civilians or
damage to civilian objects, and causing death
or serious injury to body or health.
(7) Attacking or bombarding, by whatever
means, towns, villages, dwelling or building
which are undefended and which are not
military objectives, or making non-defended
localities or demilitarized zones the object of
attack;
(8) Killing or wounding a person in the
knowledge that he/she is hors de combat,
including a combatant who, having laid down
his/her arms or no longer having means of
defense, has surrendered at discretion…
(9) Making improper use of a flag of truce, of the
flag or the military insignia and uniform of
the enemy or of the United Nations, as well
as of the distinctive emblems of the Geneva
Conventions or other protective signs under
International Humanitarian Law, resulting in
death, serious personal injury or capture;
(10) Internationally directing attacks against
buildings dedicated to religion, education,
art, science or charitable purposes, historic
monuments, hospitals and places where the
sick and wounded are collected, provided
they are not military objectives…
(11) Subjecting persons who are in the power of
an adverse party to physical mutilation or to
medical or scientific experiments of any kind,
or to removal of tissue or organs for
transplantation, which are neither justified by
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Crime Definition/Category Specific Acts Punishable Penalty*

the medical, dental or hospital treatment of
the person concerned nor carried out in
his/her interest, and which cause death to or
seriously endanger the health of such person
or persons;
(12) Killing, wounding or capturing an adversary
by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy's property
unless such destruction or seizure is
imperatively demanded by the necessities of
war;
(15) Pillaging a town or place, even when taken
by assault;
(16) Ordering the displacements of the civilian
population for reasons related to the conflict,
unless the security of the civilians involved or
imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the
occupying power of parts of its own civilian
population into the territory it occupies, or the
deportation or transfer of all or parts of the
population of the occupied territory within or
outside this territory;
(18) Committing outrages upon personal dignity,
in particular, humiliating and degrading
treatments;
(19) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence also constituting a grave breach of
the Geneva Conventions or a serious violation
of common Article 3 to the Geneva
Conventions;
(20) Utilizing the presence of a civilian or other
protected person to render certain points,
areas or military forces immune from military
operations;
(21) Intentionally using starvation of civilians as a
method of warfare by depriving them of
objects indispensable to their survival,
including willfully impeding relief supplies as
provided for under the Geneva Conventions
and their Additional Protocols;
(22) In an international armed conflict,
compelling the nationals of the hostile party
to take part in the operations of war directed
against their own country, even if they were in
the belligerent's service before the
commencement of the war;
(23) In an international armed conflict, declaring
abolished, suspended or inadmissible in a
court of law the rights and actions of the
nationals of the hostile party;
(24) Committing any of the following acts:
(i) Conscripting, enlisting or recruiting
children under the age of fifteen (15)
years into the national armed forces;
(ii) Conscripting, enlisting or recruiting
children under the age of eighteen (18)
years into an armed force or group other
than the national armed forces; and
(iii) Using children under the age of eighteen
(18) years to participate actively in
hostilities; and
(25) Employing means of warfare which are
prohibited under international law, such as:

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Crime Definition/Category
Genocide Acts with intent to
(Section 5(a)) destroy, in whole or in
part, a national, ethnic,
racial, religious, social or
any other similar stable
and permanent group
Inciting to Genocide Directly and publicly
[Section 5, b] inciting others to commit
genocide.
Other Crimes Acts committed as part
Against Humanity of a widespread or
[Section 6] systematic attack
directed against any
civilian population, with
knowledge of the attack
PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Specific Acts Punishable Penalty*
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases,
and all analogous liquids, materials or
devices;
(iii) Bullets which expand or flatten easily in
the human body…
(iv) Weapons, projectiles and material and
methods of warfare which are of the
nature to cause superfluous injury or
unnecessary suffering or which are
inherently indiscriminate in violation of
the international law of armed conflict.
(1) Killing members of the group; Reclusion Temporal in
(2) Causing serious bodily or mental harm to its medium to maximum
members of the group; period and a fine
(3) Deliberately inflicting on the group ranging from One
conditions of life calculated to bring about its hundred thousand pesos
physical destruction in whole or in part; (Php 100,000.00) to
(4) Imposing measures intended to prevent Five hundred thousand
births within the group; and pesos (Php
(5) Forcibly transferring children of the group to 500,000.00).
another group. Reclusion Perpetua and
a fine ranging from Five
hundred thousand pesos
(Php 500,000.00) to
One million pesos (Php
1,000,000.00) shall be
imposed - When justified
by the extreme gravity of
the crime (e.g., results in
death or serious physical
injury, or constitutes
rape)
[Section 7]
Directly and publicly inciting others to commit Prision mayor in its
genocide. minimum period and a
fine ranging from Ten
thousand pesos (Php
10,000.00) to Twenty
thousand pesos (Php
20,000.00).
[Section 7]
(a) Willful killing; Reclusion Temporal in
(b) Extermination; its medium to maximum
(c) Enslavement; period and a fine
(d) Arbitrary deportation or forcible transfer of ranging from One
population; hundred thousand pesos
(e) Imprisonment or other severe deprivation of (Php 100,000.00) to
physical liberty in violation of fundamental Five hundred thousand
rules of international law; pesos (Php
(f) Torture; 500,000.00).
(g) Rape, sexual slavery, enforced prostitution, Reclusion Perpetua and
forced pregnancy, enforced sterilization, or a fine ranging from Five
any other form of sexual violence of hundred thousand pesos
comparable gravity; (Php 500,000.00) to
(h) Persecution against any identifiable group or One million pesos (Php
collectivity on political, racial, national, 1,000,000.00) shall be
ethnic, cultural, religious, gender, sexual imposed - When justified
orientation or other grounds that are by the extreme gravity of
universally recognized as impermissible the crime (e.g., results in
under international law, in connection with death or serious physical
any act referred to in this paragraph or any injury, or constitutes
crime defined in this Act; rape)
(i) Enforced or involuntary disappearance of [Section 7]
persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character
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Crime Definition/Category
intentionally causing great suffering, or
serious injury to body or to mental or physical
health.
*Accessory Penalty: Forfeiture of proceeds, property and
assets derived, directly or indirectly, from that crime,
without prejudice to the rights of bona fide third (3rd)
parties. Plus, corresponding accessory penalties under the
RPC, especially where the offender is a public officer.
Criminal Responsibility
Principal – if he/she acts:
(1) Commits such a crime, whether as an individual, jointly
with another or through another person, regardless of
whether that other person is criminally responsible;
(2) Orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted;
(3) In any other way contributes to the commission or
attempted commission of such a crime by a group of
person acting with a common purpose. Such
contribution shall be intentional and shall either:
(a) be made with the aim of furthering the criminal activity
or criminal purpose of the group, where such activity or
purpose involves the commission of a crime defined in
this Act; or
(b) be made in the knowledge of the intention of the group
to commit the crime. [Sec. 8(a)]
Accomplice - facilitates the commission of a crime defined
and penalized in this Act by aiding, abetting or otherwise
assisting in its commission or attempted commission,
including providing the means for its commission. [Sec.
8(b)]
Attempt to commit the crimes specified (in attempted
stage) is also punishable. [Sec. 8(c)]
This Act shall apply equally to all persons without any
distinction based on official capacity. [Sec. 9]
A superior shall be criminally responsible as a principal for
such crimes committed by subordinates under his/her
effective authority and control as the case may be, as a
result of his/her failure to properly exercise control over
such subordinates, where:
(1) That superior either knew… or should have known that
the subordinates were committing or about to commit
such crimes;
(2) That superior failed to take all necessary and
reasonable measures within his/her power to prevent
or repress their commission or to submit the matter to
the competent authorities for investigation and
prosecution.
Crimes defined and penalized under RA 9851 do not
prescribe. [Sec. 11]
Orders from Superior - The fact that a crime defined and
penalized under this Act has been committed by a person
pursuant to an order of a government or a superior,
whether military or civilian, shall not relieve that person of
criminal responsibility unless the person was under a legal
obligation to obey orders of the government or the
superior in question, did not know that the order was
unlawful, and the order was not manifestly unlawful.
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Specific Acts Punishable Penalty*
For the purposes of this section, orders to commit
genocide or other crimes against humanity are manifestly
unlawful. [Sec. 12]
Protection of Witnesses and Victims [Sec. 13 and 14]
The Philippine court shall take appropriate measures to
protect the safety, physical and physiological well-being,
dignity and privacy of victims and witnesses.
As an exception to the general principle of public hearings,
the court may, to protect the victims and witnesses or an
accused, conduct any part of the proceedings in camera or
allow the presentation of evidence by electronic or other
special means.
Where the disclosure of evidence or information pursuant
to this Act may lead to the grave endangerment of the
security of a witness for his/her family, the prosecution
may, for the purposes of any proceedings conducted prior
to the commencement of the trial, withhold such evidence
or information and instead submit a summary thereof.
The court shall follow the principles relating to the
reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation. The court
may make an order directly against a convicted person
specifying appropriate reparations to, or in respect of,
victims, including restitution, compensation and
rehabilitation.
States Jurisdiction Over the Person of the Accused
Requirement (any of the following):
(1) The accused is a Filipino citizen;
(2) The accused, regardless of citizenship or residence, is
present in the Philippines; or
(3) The accused has committed the said crime against a
Filipino citizen.
Philippine authorities may dispense with the investigation
or prosecution if another court or international tribunal is
already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may
surrender or extradite suspected or accused persons in the
Philippines to the appropriate international court.
No criminal proceedings shall be initiated against foreign
nationals if they have been tried by a competent court
outside the Philippines in respect of the same offense and
acquitted, or having been convicted, already served their
sentence. [Sec. 17]
Where to file cases? RTC. The Supreme Court shall
designate special courts to try cases involving crimes
punishable under this Act. [Sec. 18]
Law of The Sea
The Convention on Law of the Sea (UNCLOS) is the body of
treaty rules and customary norms governing the use of the
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. [Magallona]
It is the branch of PIL which regulates the relations of
states with respect to the use of the oceans.
BASELINES
The line from which a breadth of the territorial sea and
other maritime zones, such as the “contiguous zone” and
the “exclusive economic zone” is measured. Its purpose is
to determine the starting point to begin measuring
maritime zones boundary of the coastal state.
NORMAL BASELINE – the territorial sea is the low-water line
along the coast as marked on large-scale charts officially
recognized by the coastal state. [Art. 5, UN Convention on
the Law of the Sea, or UNCLOS]
STRAIGHT BASELINE– where the coastline is deeply indented
or cut into, or if there is a fringe of islands along the coast
in its immediate vicinity, the method of straight lines
joining the appropriate points may be employed in drawing
the baseline from which the breadth of the territorial sea is
measured [Art. 7, UNCLOS]
ARCHIPELAGIC STATES
It is a state made up of wholly one or more archipelagos. It
may include other islands.
An archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural features
which are so closely related that such islands, waters and
natural features form an intrinsic geographical, economic
and political entity, or which historically have been
regarded as such.
TWO KINDS OF ARCHIPELAGOS:
(1) Coastal — situated close to a mainland and may be
considered part thereof, i.e. Norway
(2) Mid-Ocean — situated in the ocean at such distance
from the coasts of firm land, i.e. Indonesia (note: The
Archipelagic State provisions apply only to mid-ocean
archipelagos composed of islands, and NOT to a partly
continental state.)
STRAIGHT ARCHIPELAGIC BASELINES
Straight baselines join the outermost points of the
outermost islands and drying reefs of an archipelago,
provided that within such baselines are included the main
islands and an area in which the ratio of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to
1. Such are called straight archipelagic baselines.
Territorial sea and other maritime zones – the breadth of
the territorial sea, the contiguous zone, and the EEZ is
measured from the straight archipelagic baselines.
ARCHIPELAGIC WATERS
These are the waters enclosed by the straight archipelagic
baselines, regardless of their depth or distance from the
coast.
It is subject to the sovereignty of the archipelagic state, but
subject to the right of innocent passage for the ships of all
states.
ARCHIPELAGIC SEA LANES PASSAGE
Other Rights with Respect to Archipelagic Waters
(1) Rights under existing agreement on the part of third
states should be respected by the archipelagic state.
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(2) Within its archipelagic waters, the archipelagic state
shall recognize traditional fishing rights and other
legitimate activities of immediately adjacent
neighboring states.
(3) The archipelagic state shall respect existing submarine
cables laid by other states and “passing through its
waters without making a landfall”.
(4) Right of archipelagic sea lanes passage: It is the right of
foreign ships and aircraft to have continuous,
expeditious, and unobstructed passage in sea lanes and
air routes through or over archipelagic waters and the
adjacent territorial sea of the archipelagic state.
Note: the archipelagic state designates the sea lanes as
proposals to the “competent international organization”. It
is the International Marine Organization (IMO) which
adopts them through Art. 53(9) of the UNCLOS which
states that “the Organization may adopt only sea lanes
and traffic separation schemes as may be agreed with the
archipelagic state, after which such state may designate,
prescribe or substitute them.”
Special Issue: Under Art. 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are characterized as
forming part of “the internal waters of the Philippines.”
However, under the UNCLOS, archipelagic waters consist
mainly of the “waters around, between, and connecting the
islands of the archipelago, regardless of breadth or
dimension.”
Thus, conversion from internal waters under the
Constitution into archipelagic waters under the UNCLOS
gravely derogates the sovereignty of the Philippine state.
Remember that sovereignty over internal waters precludes
the right of innocent passage and other rights pertaining
to archipelagic waters under the UNCLOS.
Also, under Art. 47 of the UNCLOS, it is not mandatory
upon concerned states to declare themselves as
archipelagic states; the Philippines did, under its new
baselines law, RA 9522 – a legislative act upheld as
constitutional by the Supreme Court in Magallona v.
Executive Secretary. The result could be disastrous, at
least, in Dean Magallona’s view.
INTERNAL WATERS (ASKED 1 TIME IN THE BAR)
These are waters of lakes, rivers, and bays landward of the
baseline of the territorial sea. However, in case of
archipelagic states, waters landward of the baseline other
than those rivers, bays and lakes, are archipelagic waters.
NOTE: Internal waters are treated as part of a State's land
territory, and is subject to the full exercise of sovereignty.
Thus, the coastal state may designate which waters to
open and which to close to foreign shipping.
TERRITORIAL SEA (ASKED 1 TIME IN THE BAR)
These waters stretch up to 12 miles from the baseline on
the seaward direction. They are subject to the jurisdiction
of the coastal state, which jurisdiction almost
approximates that which is exercised over land territory,
except that the coastal state must respect the rights to (1)
innocent passage and, in the case of certain straits, to (2)
transit passage.
Innocent passage: Navigation through the territorial sea
w/o entering internal waters, going to internal waters, or
coming from internal waters and making for the high seas.
It must:
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION

(1) involve only acts that are required by navigation or by Geographically disadvantaged states (those who have no
distress, and EEZ of their own or those coastal states whose
(2) not prejudice the peace, security, or good order of the geographical situations make them dependent on the
coastal state. exploitation of the living resources of the EEZ of other
states) and land-locked states have the right to participate,
Transit passage —The right to exercise freedom of on equitable basis, in the exploitation of the surplus of the
navigation and over flight solely for the purpose of living resources in the EEZ of coastal states of the same sub
continuous and expeditious transit through the straights region or region.
used for international navigation. The right cannot be
unilaterally suspended by the coastal state. Note: a coastal state whose economy is overwhelmingly
dependent on the exploitation of its EEZ is not required to
Innocent Passage Transit Passage share its resources.
Pertains to navigation of Includes the right of over JURISDICTION OF COASTAL STATE OVER EEZ:
ships only flight (1) establishment and use of artificial islands, installations
Requires submarines and Submarines are allowed to and structures,
other underwater vehicles navigate in “normal mode” (2) scientific research,
to navigate on the surface – i.e. submerged (3) the preservation and protection of marine environment.
and show their flag.
Can be suspended, but Cannot be suspended Under Art. 58 of the UNCLOS, all states enjoy the freedom
under the condition that it of navigation, over flight, and laying of submarine cables
does not discriminate and pipelines in the EEZ of coastal states.
among foreign ships, and
such suspension is The coastal state has the right to enforce all laws and
essential for the protection regulations enacted to conserve and manage the living
of its security, and resources in its EEZ. It may board and inspect a ship, arrest
suspension is effective only a ship and its crew and institute judicial proceedings
after having been duly against them.
published (Art. 25,
UNCLOS) Note: In detention of foreign vessels, the coastal state has
In the designation of sea Designation of sea lanes the duty to promptly notify the flag state of the action
lanes and traffic separation and traffic separation taken.
schemes, the coastal state schemes is subject to
shall only take into account adoption by competent Conflicts regarding the attribution of rights and jurisdiction
the recommendations of international organization in the EEZ must be resolved on the basis of equity and in
the competent upon the proposal and the light of all relevant circumstances, taking into account
international organization. agreement of states the respective importance of the interests involved to the
bordering the straits. parties as well as to the international community as a
whole. [Art. 59, UNCLOS]
EXCLUSIVE ECONOMIC ZONE (ASKED 1 TIME IN THE
BAR) CONTINENTAL SHELF
A stretch of area up to 200 miles from its baselines. EXTENDED CONTINENTAL SHELF
Within this zone, a State may regulate nonliving and living It is the seabed and subsoil of the submarine areas
resources, other economic resources, artificial installations, extending beyond the territorial sea of the coastal state
scientific research, and pollution control. throughout the natural prolongation of its lands territory up
to
NOTE: Under the UNCLOS, states have the sovereign right (1) the outer edge of the continental margin, or
to exploit the resources of this zone, but shall share that (2) a distance of 200 nautical miles from the baselines of
part of the catch that is beyond its capacity to harvest. the territorial sea where the outer edge of the
continental margin does not extend up to that
Resources covered by sovereign rights of coastal states in distance.
the EEZ include living and non-living resources in the
waters of the seabed and its subsoil. Continental margin  the submerged prolongation of the
land mass of the continental state, consisting of the
Note: Coastal states have the primary responsibility to continental shelf proper, the continental slope, and the
utilize, manage and conserve the living resources within continental rise
their EEZ, i.e. ensuring that living resources are not
endangered by overexploitation, and the duty to promote LIMITS OF THE CONTINENTAL SHELF
optimum utilization of living resources by determining Juridical or Legal Continental Shelf: 0-200 nautical miles
allowable catch. from baselines.

If after determining the maximum allowable catch, the
coastal state does not have the capacity to harvest the
entire catch, it shall give other states access to the surplus
by means of arrangements allowable under the UNCLOS.
The UNLCOS, however, does not specify the method for
determining “allowable catch.” Hence, states may
establish illusory levels.
Extended Continental Shelf: 200-350 nautical miles from
baselines depending on geomorphologic or geological
data and information
When the continental shelf extends beyond 200 nautical
miles, the coastal state shall establish its outer limits.

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UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION

At any rate, the continental shelf shall not extend beyond Compulsory Procedures that States Parties Can Choose
350 nautical miles from the baseline of the territorial sea, From:
*
or 100 nautical miles from the 2500-meter isobath (or the (1) International Tribunal for the Law of the Sea ;
point where the waters are 2500 meters deep). (2) International Court of Justice;
*
(3) Arbitral Tribunal ;
*
RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF (4) Special Arbitral Tribunal ;
The continental shelf does not form part of the territory of
the coastal state. The choice of the State Parties must be expressed in a
written declaration, which is revocable and replaceable.
It only has sovereign rights with respect to the exploration
and exploitation of its natural resources, including the Jurisdiction of Court or Tribunal
mineral and other non-living resources of the seabed and The court or Tribunal has jurisdiction over:
subsoil together with living organisms belonging to the (1) any dispute submitted to it concerning the application
sedentary species. or interpretation of UNCLOS
(2) any dispute concerning the interpretation or application
For example, the coastal state has the exclusive right to of an international agreement:
authorize and regulate oil-drilling on its continental shelf. (a) related to the purposes of the UNCLOS
(b) when such dispute is submitted to it in accordance with
These rights are exclusive in the sense that when the that agreement.
coastal state does not explore its continental shelf or
exploit its resources, no one may undertake these activities Composition of the International Tribunal for the Law of the
without the coastal state’s consent. Sea (ITLOS)
It is composed of 21 “independent members elected from
NOTE: In instances where the continental margin is more among persons enjoying the highest reputation for fairness
than 200 nautical miles from the baselines, and hence and integrity and of recognized competence in the field of
extends beyond the EEZ, the coastal state has the the law of the sea”.
exclusive right to exploit mineral and non-living resources
in the “excess area.” The composition shall also be representative of the world’s
principal legal systems and of equitable geographical
RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS. EEZ distribution.
Continental Shelf EEZ
Jurisdiction of ITLOS
Duty to No duty Coastal state is Its jurisdiction covers all disputes submitted to it in
manage obliged to manage accordance with the UNCLOS. It also includes matters
and and conserve living submitted to it under any other agreement.
conserve resources in the
living EEZ Applicable Laws in Settlement of Disputes by the ITLOS
resources The Tribunal shall apply the UNLCOS and other rules of
Rights of Relate to mineral Have to do with international law not incompatible with the UNCLOS. It
the coastal and other non- natural resources of may also decide a case ex aequo et bono (what is equitable
state as to living resources of both waters super and just) if the parties so agree.
natural the seabed and the adjacent to the
resources subsoil seabed and those Notes on the Philippine Arbitral Case Over the Chinese
of the seabed and Nine-Dash Claim
subsoil
Rights of Apply only to Do not pertain to CHINESE NINE-DASH LINE CLAIM
the coastal sedentary species sedentary species This declaration, first made known internationally in 1947,
state as to of such living features a map with a series of nine dashes or dotted lines
living resources forming a U-shaped enclosure and covering about 90
resources percent of the South China Sea. Included in the Chinese
claim are areas that, under the UNCLOS, would normally
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE pertain to the maritime entitlements of the other states in
SEA (ITLOS) the region, with the Philippines and Vietnam being its
most vocal critics.
SETTLEMENT OF DISPUTES
Peaceful Settlement of Disputes Practically all the coastal states – with the possible
Under par. 3, Art. 2 of the UN Charter, States have the duty exception of Indonesia – reject the Chinese Nine-Dash Line
to settle disputes by peaceful means. This obligation claim as a legally-definitive maritime boundary for China in
extends to State Parties of the UNCLOS, underscoring the the South China Sea. In 1995, Ali Alatas, then the
right of the parties to resort to peaceful means of their own Indonesian Foreign Minister obtained assurances from
choice on which they can agree any time. Beijing that it has no quarrel with Indonesia. This served as
basis for Indonesia’s exploitation of the Natuna gas fields
Compulsory Settlement of Disputes with nary a protest from the Chinese.
Where no successful settlement can be achieved, or if the
parties are unable to agree on the means of settlement of
a dispute concerning the application of UNCLOS, such
dispute may be governed by the principle of compulsory
settlement, where procedures entail binding decisions.
*
As established under the UNCLOS.

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UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
In 2009, China formally submitted a map to the UN
showing the areas in the area it claims under the
declaration.
One observer says the situation is compounded by the lack
of clarity in the territorial and maritime assertions being
made by China through its Nine-Dash Line
claim, stressing that “China has chosen to leave the nine-
dash line ambiguous (with no map coordinates), because
the ambiguity gives greater room for manoeuvre.”
Growing Chinese naval presence in SCS
Since 2012 China has been stepping up its presence in the
area with new warships – including its very first aircraft
carrier – and expanded naval patrols and swarms
of quasi-governmental fishing vessels. While, just a few
months ago, amid much fanfare, China put up a new
administrative structure to govern areas it has occupied
and those it claims, much to the protestations of the other
claimants.
It has also engaged the Philippines in a standoff over the
Scarborough Shoal (also known to Filipinos as Panatag
Shoal and Bajo De Masinloc), a rock and coral reef
formation about 220 kilometers off Masinloc town in the
Philippine coastal province of Zambales and about 840
kilometers from the nearest point of the Chinese coast.
The shoal has been tacked to Philippine territory by a
Treaty between London and Washington in the year 1900
and declared by the Philippines in a 2009 new baselines
law to be an island regime as defined under article
number 121 of the UNCLOS.
As early as 1913, Manila courts have heard cases of
shipwrecks in the vicinity. With Philippine permission, the
shoal was also used for live-fire exercises by the US Navy
while it ran its largest naval facility outside the US
mainland at Subic Bay until the early 1990s. The US and
the Philippines still maintain a Mutual Defense
Treaty signed in 1951 and regularly hold joint training
exercises under a Visiting Forces Agreement.
Yet China designates the shoal Huangyan Island
and asserts historic entitlements over it because it falls
inside the Nine-Dash Line claim.
One expert observer argues that Scarborough shoal
occupies a central place in the Chinese plans to enforce its
sovereignty claims over what it calls the “Zhongsha
Qundao”‘, which consists of Macclesfield Bank, Truro
Shoal, Saint Esprit Shoal, Dreyer Shoal and Scarborough
Shoal.
Except for Scarborough, all banks and shoals of Zhongsha
Qunda are underwater for the most part. Without
Scarborough, it is said that the Chinese cannot assert
ownership over the entirety of Zhongsha Qundao, thus
making the Nine-Dash Line claim useless.
In June last year, China established Sansha City on
Yongxing Island in its southernmost province of Hainan to
administer the Spratlys, the Paracels and Macclesfield
Bank, with provision for a deployment of troops there.
To be sure, China has also resorted to deceptively
innocuous but no less rankling ways, such as printing new
passports with a map of territories it claims (to include
land areas India also considers its own ), and
perhaps, even exporting to unsuspecting bookstores in the
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Philippines educational globes indicating
China’s expansive territorial claims.
PHILIPPINES TAKES CHINA TO ARBITRATION
In late January this year, the Philippines brought matters
to a head by bringing China to arbitration over the latter’s
Nine Dash Line claim.
As expected, China while insisting on bilateral negotiations
immediately rejected the arbitration proceedings. This
raises questions over the viability of arbitration under the
UNCLOS on the Law of the Sea as a binding procedure.
Truth to tell, UNCLOS procedures for binding arbitrations
are complicated and tricky. Membership means a state’s
acceptance of compulsory and binding dispute mechanism
procedures provided in the treaty.
However, the treaty also allows member-states to opt out
of these binding dispute mechanisms under Article
number 298 exceptions, which, among other things,
pertain to disputes concerning military activities, including
military activities by government vessels and aircraft
engaged in non-commercial service, and disputes
concerning law enforcement activities in regard to the
exercise of sovereign rights or jurisdiction as well as sea
boundary delimitations, or those involving historic bays or
titles.
China has made such an exception in a formal declaration
on 25 August 2006.
For this reason, the Philippines was emphatic in
its Notification and Statement of Claims against China,
that its arbitral challenge does not cover any of the items
in the Chinese reservations.
Among others things, the Philippines wants the arbitral
tribunal to rule on the compatibility of the Nine-Dash Line
Claim with China’s internal waters, territorial sea, or
exclusive economic zone under the UNCLOS.
In other words, the Philippine submission asks whether
properly interpreted, the Chinese declaration complies
with the maritime regimes set under the UNCLOS. In
addition, it also questions Chinese occupation of reefs
which are underwater – namely Mischief, McKeenan,
Gaven and Subi – asking the tribunal to rule that since
these are neither “rocks” nor “islands”under the UNCLOS,
these should be interpreted as part of the Philippine
continental shelf. As for Scarborough Shoal, which consists
of six small rocks now conceded as uninhabitable islands,
the Philippines claims it as part of its EEZ.
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW
Madrid Protocol and the Paris
Convention for the Protection
of Industrial Property
1
MADRID PROTOCOL
The Protocol Relating to the Madrid Agreement
Concerning the International Registration of Marks, or The
Madrid Protocol is one of two treaties comprising the
Madrid System for international registration of trademarks
and it deals more with the procedure for filing than with
substantive rights.
Purpose: It provides a cost-effective and efficient way for
trademark holders -- individuals and businesses -- to
ensure protection for their marks in multiple countries
through the filing of one application with a single office, in
one language, with one set of fees, in one currency.
While an International Registration may be issued, it
remains the right of each country or contracting party
designated for protection to determine whether or not
protection for a mark may be granted. Once the
trademark office in a designated country grants protection,
the mark is protected in that country just as if that office
had registered it.
The Madrid Protocol also simplifies the subsequent
management of the mark, since a simple, single
procedural step serves to record subsequent changes in
ownership or in the name or address of the holder with
World Intellectual Property Organization's International
Bureau. The International Bureau administers the
Madrid System and coordinates the transmittal of
requests for protection, renewals and other relevant
documentation to all members.
THE PARIS CONVENTION FOR THE PROTECTION OF
INDUSTRIAL PROPERTY
The treaty was signed in 1883 and it is one of the first
treaties dealing with intellectual property and its
protection.
2
SUBSTANTIVE PROVISIONS : approach shall be widely applied by States according to
National Treatment: requires that each member state grant
the same quality and quantity of protection to eligible
foreigners as it grants to its own nationals in respect to the
intellectual property enumerated in the Convention.
THE RIGHT OF PRIORIY:
It provides that an applicant eligible for Convention
benefits who files a first regular patent or trademark
application in any of the countries of the Union, can then
file subsequent applications in other countries of the Union
for a defined period of time which subsequent applications
will have an effective filing date as of the first filed
application.
1 3
United States Patent and Trademark Office,
http://www.uspto.gov/trademarks/law/madrid/index.jsp
2
Reiss, http://www.lex-ip.com/Paris.pdf
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International and
Environmental Law
The branch of public international law comprising those
substantive, procedural, and institutional rules which have
as their primary objective the protection of the
environment
Sustainable development – development that meets the
needs of the present without compromising the ability of
future generations to meet their own needs (Case
Concerning the Gabcikovo-Nagymaros Project)
US v. Canada (Trail Smelter Case): No state has the right to
use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious
consequence and the injury is established by clear and
convincing evidence
PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
BASIC PRINCIPLES:
Principle of Common but Differentiated Responsibility
(Principle 7, Rio Declaration): States shall cooperate in a
spirit of global partnership to conserve, protect and restore
the health and integrity of the Earth's ecosystem. In view of
the different contributions to global environmental
degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to
sustainable development in view of the pressures their
societies place on the global environment and of the
technologies and financial resources they command.
Precautionary Principle (Principle 15, Rio Declaration): In
order to protect the environment, the precautionary
their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
International Economic Law
A field of international law that encompasses both the
conduct of sovereign states in international economic
relations, and the conduct of private parties involved in
3
cross-border economic and business transactions .
4
FIELDS : International Economic Law covers, among
others, the following:
(1) International Trade Law
(2) International Financial Law
(3) Regional Economic Integration
http://www.law.cornell.edu/wex/international_economic_law
4
Wenger, http://www.asil.org/iel1.cfm (American Society of
International Law)
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION

(4) International Development Law

(5) International Business Regulation
(6) Intellectual Property law

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