Constitutional Law 2

POLITICAL LAW REVIEWER

CONSTITUTIONAL LAW 2

Constitutional Law 2 Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

POLITICAL LAW Fundamental Powers of the State Private Acts and the Bill of Rights Due Process Equal Protection Searches and Seizures Privacy of Communications and Correspondence G. Freedom of Expression H. Freedom of Religion I. Liberty of Abode and Freedom of Movement J. Right to Information K. Right to Association L. Eminent Domain M. Contract Clause N. Legal Assistance and Free Access to Courts O. Rights of Suspects P. Rights of the Accused Q. Writ of Habeas Corpus R. Writ of Amparo S. Self-Incrimination Clause T. Involuntary Servitude and Political Prisoners U. Excessive Fines and Cruel and Inhuman Punishments V. U.Non-Imprisonment for Debts W. Double Jeopardy X. Ex Post Facto Laws and Bills of Attainder A. B. C. D. E. F.

A. Fundamental Powers of the State 1. 2. 3. 4.

Concept and Application Requisites for Valid Exercise Similarities and Differences Delegation

1. Concept and Application Police Power a.

Definition

It is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort, safety and welfare of society. [ErmitaMalate Hotel and Motel Operators Association, Inc. vs. Mayor of Manila (1967)] b.

Scope and Limitations

General Coverage "The police power of the State," one court has said, "is a power coextensive with self-protection, and is not inaptly termed the 'law of overruling necessity.' [Rubi vs. Provincial Board (1919)] It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of

society." [Lake View vs. Rose Hill Cemetery Co. (1873)] …the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to all kinds of restraints and burdens, in order to secure the general comfort health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated. [Ortigas & Co., Limited Partnership vs. Feati Bank and Trust Co. (1979)] ...has been properly characterized as the most essential, insistent and the least limitable of powers, [Ermita-Malate Hotel and Motel Operators Assoc. vs. Mayor of Manila (1967) Cf. Ichong v. Hernandez, (1957)] extending as it does "to all the great public needs." [Noble State Bank vs. Haskell, 219 U.S. 412] Police Power cannot be bargained away through treaty or contract. [Ichong v. Hernandez (1957)] Taxation may be used as an implement of police power [Lutz v. Araneta (1955); Tiu v. Videogram Regulatory Board, 151 SCRA 208; Gaston v. Republic Planters Bank, 158 SCRA 626; Osmena v. Orbos, 220 SCRA 703] Eminent domain may be used as an implement to attain the police objective [Association of Small Landowners v. Secretary of Agrarian Reform (1989)] Police power prevails over contracts. [PNB v. Office of the President (1996)] Specific Coverage (1) Public Health (2) Public Morals (3) Public Safety (4) Public Welfare Test of Reasonability (1) Lawful subject (2) Lawful means (3) Least restrictions of individual right. The limit to police power is reasonability. The Court looks at the test of reasonability to decide whether it encroaches on the right of an individual. So long as legitimate means can reasonably lead to create that end, it is reasonable. [Morfe vs. Mutuc (1968)] The legislative determination “as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court.‖ [US vs. Toribio (1910) citing Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S., 133, 136)] The proper exercise of Police Power requires compliance with the following requisites: (a) the interests of the public generally, as distinguished from those of a particular class, require the interference by the State; and (b) the means employed are reasonably necessary for the

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CONSTITUTIONAL LAW 2 attainment of the object sought and not unduly oppressive upon individuals. [Lucena Grand Central Terminal v. JAC Liner (2005)] The SC Upheld the validity of Administrative Orders which converted existing mine leases and other mining agreements into production-sharing agreements within one year from effectivity. The subject sought to be governed by the AOs are germane to the object and purpose of E.O. 279 and that mining leases or agreements granted by the State are subject to alterations through a reasonable exercise of police power of the State. [Miners Association of the Philippines v. Factoran, 240 SCRA 100] c.

Illustrations on the Exercise of Police Power

General Welfare RA 9257, the Expanded Senior Citizens Act of 2003, is a legitimate exercise of police power. Administrative Order No. 177 issued by the Department of Health, providing that the 20% discount privilege of senior citizens shall not be limited to the purchase of unbranded generic medicine but shall extend to both prescription and non-prescription medicine, whether branded or generic, is valid. When conditions so demand, as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by the due process clause, must yield to the general welfare. [Carlos Superdrug Corporation v. DSWC et al. G.R. No. 166494, June 29, 2007] National Security SC upheld the constitutionality of RA 1180 (An Act to Regulate the Retail Business) which sought to nationalize the retail trade business by prohibiting aliens in general from engaging directly or indirectly in the retail trade. Aliens did not question the exercise of police power; they claim, however, that there was a violation of the due process and equal protection clauses. [Ichong vs. Hernandez (1957)] Scope of the police power: Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. Police power and national security: ―The disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business; the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future.‖

vehicles to install specific early warning devices to reduce road accidents. Agustin already installed warning devices in his car but they were not the same ones specified in the LOI. He argued that the said LOI violated the police power of the state for being oppressive, arbitrary and unconscionable. Police power, public safety: The Court identified police power as a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare. According to the Court, a heavy burden lies in the hands of the petitioner who questions the state‘s police power if it was clearly intended to promote public safety. [Agustin vs. Edu, (1979)] Public Morals Ermita Malate Hotel and Motel Operations Assoc. assails the constitutionality of Ordinance No. 4760. The grounds adduced were: (1) unreasonable and violative of due process insofar as it would impose different fees for different classes of hotels/motels and prohibit 18 year-olds from being accepted in such hotels, unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion more than twice every 24 hours, and (2) invasion of the right to privacy and the guaranty against self-incrimination because it requires clients to fill up the prescribed form in a lobby open to public view at all times and in his presence, wherein personal information are mandated to be divulged. Police power, public morals: The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. Police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society xxx There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. [Ermita-Malate Motel and Motel Operators Assn. vs. City Mayor of Manila (1967)]

Public Safety

The case of White Light vs. City of Manila was termed by Justice Tinga as a ―middle case‖. It was meant to identify its case within a spectrum of cases decided by the Supreme Court which dealt with ordinances which has for its view the regulation of public morals.

Agustin questions President Marcos‘ Letter of Instruction No. 229 compelling owners of motor

It is called a ―middle case‖ because unlike its predecessors where the issue is either a wholesale

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CONSTITUTIONAL LAW 2 ban against hotels and motels or a reasonable regulatory device as the one found in Ermita-Malate vs. City of Manila, this is a case where the ordinance in question severely restricts the services of the abovementioned establishments. The rationale started with an outline of the test of a valid ordinance i.e. it must be within the corporate powers of the local government to enact and pass and it must conform with substantive requirements. A reading of the ordinance at bar would yield that it prohibits two practices: the wash-up rate admission and renting out a room more than twice per day. These prohibitions are anchored in the power of the LGU to implement ordinances hinged on the general welfare clause—the devolved aspect of police power. This case churned out three standards for judicial review: the STRICT SCRUTINY TEST for laws dealing with freedom of the mind and curtailment of political process and the RATIONAL BASIS STANDARD OF REVIEW for economic legislation. A third standard was created known as the IMMEDIATE SCRUTINY for evaluating standards based on gender and legitimacy. The Supreme Court justified the application of the strict scrutiny test to this particular ordinance despite its lack of political significance by saying that it is not gravitas alone which is sheltered by the Bill of Rights. It is precisely these reflexive exercises of fundamental acts which best reflect the degree of liberty enjoyed. Sexual behavior is one of these fundamental acts covered by the penumbra of rights. While the reality of illicit activity is judicially recognized, it cannot be denied that sexual behavior between consenting adults is constitutionally protected. Apart from the right to privacy, the ordinance also proscribes other legitimate activities most of which are grounded on the convenience of having a place to stay during the short intervals between travels. The Ordinance was struck down as an arbitrary intrusion to private rights. It made no distinction between lodgings and placed every establishment as susceptible to illicit patronage. [Cf. White Light Corporation, et al vs. City of Manila (2009)]

Eminent Domain a.

Definition and Scope

The power of eminent domain is the inherent right of the State to condemn private property to public use upon payment of just compensation. It also known as the power of expropriation. It is well settled that eminent domain is an inherent power of the state that need not be granted even by the fundamental law. Sec. 9, Art. III merely imposes a limit on the government‘s exercise of this power. [Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].

b. Who may exercise the power Congress and, by delegation, the President, administrative bodies, local government units, and even private enterprises performing public services may exercise the power of eminent domain. The exercise of the right of eminent domain, whether directly by the state or by its authorized agents, is necessarily in derogation of private rights. Hence, strict construction will be made against the agency exercising the power. [Jesus is the Lord Christian School Foundation v. Mun. of Pasig, G.R. No. 152230, Aug. 9, 2005]

Taxation a.

Definition and Scope

It is the enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of the government and for all public needs. It is as broad as the purpose for which it is given. Purpose: (1) To raise revenue (2) Tool for regulation (3) Protection/power to keep alive Tax for special purpose [Sec. 29 (3), Art. VI]: Treated as a special fund and paid out for such purpose only; when purpose is fulfilled, the balance, if any shall be transferred to the general funds of the Government. See: Osmena v. Orbos, 220 SCRA 703 Scope and Limitation General Limitations (1) Power to tax exists for the general welfare; should be exercised only for a public purpose (2) might be justified as for public purpose even if the immediate beneficiaries are private individuals (3) Tax should not be confiscatory: If a tax measure is so unconscionable as to amount to confiscation of property, the Court will invalidate it. But invalidating a tax measure must be exercised with utmost caution, otherwise, the State‘s power to legislate for the public welfare might be seriously curtailed (4) Taxes should be uniform and equitable [Sec. 28(1), Art. VI] The legislature has discretion to determine the nature, object, extent, coverage, and situs of taxation. But where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for despite all its plenitude, the power to tax cannot override constitutional prescriptions. [Tan v. del Rosario, 237 SCRA 324]

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CONSTITUTIONAL LAW 2 Specific Limitations (1) Uniformity of taxation: GENERAL RULE: simply geographical uniformity, meaning it operates with the same force and effect in every place where the subject of it is found EXCEPTION: rule does not prohibit classification for purposes of taxation, provided the ff requisites are met: (SNAGAE) (a) standards used are substantial and not arbitrary (b) if the classification is germane to achieve the legislative purpose (c) if that classification applies to both present and future conditions, other circumstances being equal (d) applies equally to members of the same class. [Pepsi Cola v. City of Butuan]. (2) Tax Exemptions No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of Congress [Sec. 28 (4), Art. VI] A corollary power but must be for a public purpose, uniform and equitable and in conformity with the equal protection clause Tax exemptions are granted gratuitously and may be revoked at will, except when it was granted for valuable consideration May either be constitutional or statutory If statutory, it has to have been passed by majority of all the members of Congress [sec. 28 (4), Art. VI] Constitutional exemptions [sec. 28(3), Art. VI] (a) Educational institutions (both profit and non-profit): Benefits redound to students, but only applied to property taxes and not excise taxes

POLITICAL LAW REVIEWER (b) Charitable institutions: Religious and charitable institutions give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped (c) Religious property: Charitable Institutions, churches, and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings and improvements, actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation. [Sec. 28 (3), Art. VI]

2. Requisites for Valid Exercise Police Power Tests for Validity of Exercise of Police Power (1) LAWFUL SUBJECT: Interest of the general public (as distinguished from a particular class required exercise). This means that the activity or property sought to be regulated affects the general welfare. [see Taxicab Operators v. Board of Transportation, 119 SCRA 597] (2) LAWFUL MEANS: Means employed are reasonably necessary for the accomplishment of the purpose, and are not unduly oppressive. [see Tablarin v. Gutierrez, 152 SCRA 730] (3) Least restrictions of individual rights. Additional Limitations when police power is delegated. (1) Express grant by law [e.g. Secs. 16, 391, 447, 458 and 468, R.A. 7160, for LGUs] (2) Limited within its territorial jurisdiction [for local government units] (3) Must not be contrary to law.

Eminent Domain

All revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties. xxx Proprietary educational institutions, including those co-operatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. [Sec. 4(3), Art. XIV]

a. Requisites for a valid taking [Republic v. Castelvi, 58 SCRA 336]: (1) The expropriator must enter a private property

Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax.

(2) Entry must be for more than a momentary period (3) Entry must be under warrant or color of legal authority

All private property capable of ownership may be expropriated, except money and choses in action. [Republic v. PLDT, 26 SCRA 620]

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CONSTITUTIONAL LAW 2 (4) Property must be devoted to public use or otherwise informally appropriated or injuriously affected Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property When is there taking in the constitutional case? When the owner is deprived of his proprietary rights there is taking of private property. Examples: (1) The imposition of a right-of-way easement was held to be taking. The exercise of the power of eminent domain does not always result in the taking or appropriation of title to the expropriated property; it may also result in the imposition of a burden upon the owner of the condemned property, without loss of title or possession. [NPC v. Gutierrez, 193 SCRA 1] (2) May include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended. [Ayala de Roxas v. City of Manila, 9 Phil 215] (3) A municipal ordinance prohibiting a building which would impair the view of the plaza from the highway was likewise considered taking. [People v. Fajardo, 104 Phil. 44]

Delegated tax legislation: Congress may delegate law-making authority when the constitution itself specifically authorizes it.

3. Similarities and Differences Similarities (Nachura) (1) Inherent in the State (Exercised even without need of express constitutional grant) (2) Necessary and indispensable (State cannot be effective without them) (3) Method by which state interferes with private property (4) Presuppose equivalent compensation (5) Exercised primarily by the legislature Differences Police Power None (The altruistic feeling that one has contribute d to the public good [NACHURA ])

Eminent Domain Just compensat ion (Full and fair equivalent of the property taken) required.

Use of Property

Not appropria ted for public use

Appropriat ed for public use

Objective

To destroy noxious property or to restrain the noxious use of property Liberty and Property

Property taken for public use; it is not necessarily noxious

Compensat ion

b. Adequacy of compensation The full and fair equivalent of the property taken; it is the fair market value of the property. Fair market value – is the sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given and received therefore. However, where only a PORTION of the property is taken, the owner is entitled only to the market value of the portion actually taken and the consequential damage to the remaining part. Note: Just compensation means not only the correct amount to be paid but also payment within reasonable time from its taking. [Esteban v. De Onorio, G.R. No. 146062, June 28, 2001]

Taxation Equal protection clause: taxes should be uniform (persons or things belonging to the same class shall be taxed at the same rate) and equitable (taxes should be apportioned among the people according to their ability to pay) Progressive system of taxation: The rate increases as the tax base increases, with basis as social justice  Taxation as an instrument for a more equitable distribution of wealth

Coverage

Property rights only

Taxation None (The protection given and public improveme nts instituted by the State because of these taxes [NACHURA] ) Use taxing power as an implement for the attainment of a legitimate police objective— to regulate a business or trade Earn revenue for the governmen t

Property rights only

Police power is the power of the State to promote public welfare by restraining and regulating the use of liberty and property. The power of eminent domain is the inherent right of the state to condemn

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CONSTITUTIONAL LAW 2 private property to public use upon payment of just compensation. Although both police power and eminent domain have the general welfare for their object, and recent trends show a mingling of the two with the latter being used as an implement of the former, there are still traditional distinctions between the two. Property condemned under police power is usually noxious or intended for a noxious purpose, hence no compensation is paid. Likewise in the exercise of police power, property rights of individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the State. Where a property interest is merely restricted because the continued use thereof would be injurious to public interest, there is no compensable taking. However, when a property interest is appropriated and applied to some public purpose, there is need to pay just compensation. In the exercise of police power, the State restricts the use of private property, but none of the property interests in the bundles of rights which constitute ownership is appropriated for use by or for the benefit of the public. Use of the property by the owners is limited, but no aspect of the property used or for the benefit of the public. The deprivation of use can, in fact, be total, and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein. If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. [Dipidio Earth-Savers Multipurpose Association v. Gozun, G.R. No. 157882, March 30, 2006] If the generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax, but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. [Gerochi v. Department of Energy, G.R. No. 159796, July 17, 2007] License Fee v. Tax License Fee is paid for the privilege of doing something, and may be revoked when public interest so requires; Tax is imposed on persons of property for revenue. [Compania General de Tabaco v. City of Manila, 8 SCRA 367] Amount collected for a license fee is limited to the cost of permit and reasonable police regulation [Except when the license fee is imposed on a nonuseful occupation, such as the practice of hygienic and aesthetic massage in Physical Therapy Organization v. Municipal Board of Manila (1957)].

4. Delegation Police Power

a.

Legislature

Police power is lodged primarily in the national legislature. b.

Executive

By virtue of a valid delegation of legislative power, it may also be exercised by the president, administrative bodies, and lawmaking bodies of LGUs. [sec. 16, R.A. 7160] ...this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. [Churchill and Tait vs. Rafferty (1915)] Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and all its functions are administrative in nature. [MMDA v. Bel-Air Village Association, G.R. No. 135962, March 27, 2000] BUT it is not precluded—and in fact is duty-bound— to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. [MMDA vs. Garin (2005); Sec. 3(b), Rep. Act No. 7924]

Eminent Domain The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority is a question which the courts have the right to inquire into. [City of Manila vs. Chinese Community of Manila, G.R. No. L-14355, October 31, 1919]

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CONSTITUTIONAL LAW 2 When a statute or charter or by general law has conferred the right of eminent domain upon a private entity. [Tenorio vs. Manila Railroad Co., G.R. No. L-6690, March 29, 1912]

Extent of Power

Question of Necessity

AS EXERCISED BY CONGRESS Pervasive and allencompassing

Political question

Re: Private Property

AS EXERCISED BY DELEGATES Can only be as broad as the enabling law and the conferring authorities want it to be Justiciable question. RTC has to determine whether there is a genuine necessity for its exercise, as well as what the property‘s value is. If not justiciable, there‘s grant of special authority for special purpose Delegate cannot expropriate private property already devoted to public use

 It is generally self-executing  Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. (1) Civil rights – rights that belong to an individual by virtue of his citizenship in a state or community (e.g. rights to property, marriage, freedom to contract, equal protection, etc.) (2) Political rights – rights that pertain to an individual‘s citizenship vis-àvis the management of the government (e.g. right of suffrage, right to petition government for redress, right to hold public office, etc.) (3) Social and economic rights – rights which are intended to insure the well-being and economic security of the individual (4) Rights of the accused – civil rights intended for the protection of a person accused of any crime

2. Bases and Purpose a.

(1) Importance accorded to the dignity and worth of the individual. (2) Protection against arbitrary actions of government and other members of society

Taxation (1) legislature (primarily) (2) local legislative bodies [Sec. 5, Art. X] (3) President (to a limited extent, when granted delegated tariff powers under Sec. 28 (2) Art. VI)

B. Private Acts & the Bill of Rights 1. In General 2. Bases and Purpose 3. Accountability

1. In General It is a declaration and enumeration of a person's fundamental civil and political rights. It also imposes safeguards against violations by the government, by individuals, or by groups of individuals. ―The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.‖ (Sponsorship Speech of Commissioner Bernas, Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied) [People vs. Marti, G.R. No. 81561, January 18, 1991]

Bases:

b.

Purpose: (1) To preserve democratic ideals (2) To safeguard fundamental rights (3) To promote the happiness of an individual

The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles." (Justice Cardozo, Nature of Judicial Process, 90-93; Tanada and Fernando, Constitution of the Philippines, 1952 ed., 71.) [Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc. (1973)] In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." [West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638]

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3. Accountability Sec. 2 Art III shall apply only against law officials or people working as agents of government concerned about being able to procure evidence. [People vs. Marti (1991)] Section 3 of Article XIII of the Constitution requires the State to give full protection to labor. We cannot be faithful to this duty if we give no protection to labor when the violator of its rights happens to be private parties like private employers. A private person does not have a better right than the government to violate an employee's right to due process. To be sure, violation of the particular right of employees to security of tenure comes almost always from their private employers. [Serrano vs. NLRC (2000)]

C. Due Process 1. 2. 3. 4. 5. 6.

Relativity of Due Process Procedural and Substantive Due Process Constitutional and Statutory Due Process Hierarchy of Rights Judicial Standards of Review Void for Vagueness Doctrine

Art. III, Sec. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. In General Due process of law simply states that ―[i]t is part of the sporting idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment.‖ [Ynot vs. IAC (1987)] It covers any governmental action which constitutes a deprivation of some person's life, liberty, or property. Definition ―A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial‖ [Darthmouth College v. Woodward, 4 Wheaton 518] ―Responsiveness to the supremacy of reason, obedience to the dictates of justice‖ [Ermita-Malate

POLITICAL LAW REVIEWER Hotel & Motel Operators Association v. City of Manila, 20 SCRA 849] Life includes the right of an individual to his body in its completeness, free from dismemberment, and extends to the use of God-given faculties which make life enjoyable [Justice Malcolm Malcolm, Philippine Constitutional Law, pp. 320-321; See Buck v. Bell, 274 US 200] Liberty ―includes the right to exist and the right to be free from arbitrary personal restraint or servitude.xxx (It) includes the right of the citizen to be free to use his faculties in all lawful ways xxx‖ [Rubi v. Provincial Board of Mindoro, 39 Phil 660] Property is anything that can come under the right of ownership and be the subject of contract. It represents more than the things a person owns; it includes the right to secure, use and dispose of them. [Torraco v. Thompson, 263 US 197] Scope and Limitations Universal in application to all persons without regard to any difference in race, color or nationality. Artificial persons are covered by the protection but only insofar as their property is concerned [Smith Bell & Co. v. Natividad, 40 Phil. 163] The guarantee extends to aliens and includes the means of livelihood. [Villegas v. Hiu Chiong, 86 SCRA 275] Minimum Requirements Due process of law guarantees: (1) notice and (2) opportunity to be heard (3) to persons who would be affected by the order or act contemplated. Noted Exceptions to Due Process (1) The conclusive presumption, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. (2) There are instances when the need for expeditious action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. (3) Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. (4) The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. (5) Filthy restaurants may be summarily padlocked in the interest of the public

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CONSTITUTIONAL LAW 2 health and bawdy houses to protect the public morals. [Ynot vs. IAC (1987)] In such instances, previous judicial hearing may be omitted without violation of due process in view of: 1) the nature of the property involved; or 2) the urgency of the need to protect the general welfare from a clear and present danger.

1. Relativity of Due Process 2. Procedural and Substantive Due Process a. Scope Procedural Due Process Procedural due process is that aspect of due process which serves as a restriction on actions of judicial and quasi-judicial agencies of the government. It refers to the method or manner by which a law is enforced. Concerns with government action on established process when it makes intrusion into the private sphere

Substantive Due Process Substantive due process, asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. [City of Manila vs. Laguio (2005)] In other words, substantive due process looks to whether there is a sufficient justification for the government‘s action. Substantive due process is an aspect of due process which serves as a restriction on the law-making and rule-making power of the government. The law itself, not merely the procedures by which the law would be enforced, should be fair, reasonable, and just. It guarantees against the arbitrary power even when exercised according to proper forms and procedure.

b. Requisites Procedural Due Process In Civil Proceedings Requisites (1) An impartial court of tribunal clothed with judicial power to hear and determine the matter before it. (2) Jurisdiction must be lawfully acquired over the person of the defendant and over the property subject matter of the proceeding [Banco Español vs. Palanca (1918)]

POLITICAL LAW REVIEWER Note: NOTICE is an essential element of due process, otherwise the Court will not acquire jurisdiction and its judgment will not bind the defendant. To be meaningful, it must be both as to time and place. Service of summons is not only required to give the court jurisdiction over the person of the defendant but also to afford the latter the opportunity to be heard on the claim made against him. Thus, compliance with the rules regarding the service of summons is as much an issue of due process as of jurisdiction. [Sarmiento v. Raon, G.R. No. 131482, July 3, 2002] (3) The defendant must opportunity to be heard

be

given

an

Due process is satisfied as long as the party is accorded the opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violating the constitutional guarantee. [Bautista v. Court of Appeals, G.R. No. 157219, May 28, 2004] The Supreme Court reiterated that the right to appeal is not a natural right nor part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. [Alba v. Nitorreda, 254 SCRA 753] (4) Judgment must be rendered upon lawful hearing and must clearly explain its factual and legal bases... [Sec. 14, Art. VIII; Banco Español-Filipino vs. Palanca (1918)] Note: The allowance or denial of motions for extension rests principally on the sound discretion of the court to which it is addressed, but such discretion must be exercised wisely and prudently, with a view to substantial justice. Poverty is recognized as a sufficient ground for extending existing period for filing. The right to appeal is part of due process of law. [Reyes vs. CA (1977)] In Administrative Agencies The Ang Tibay Rules: (1) Right to a hearing to present own case and submit evidence in support thereof. (2) Tribunal must consider the evidence presented. (3) Decision rendered must have support. (4) Evidence which supports the finding or conclusion is substantial (such relevant evidence as a reasonable mind accept as adequate to support a conclusion). (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The tribunal or any of its judges, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.

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CONSTITUTIONAL LAW 2 (7) The tribunal should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. [Ang Tibay vs. CIR (1940)] In Criminal Proceedings See Rights of the Accused, Topic 1 Criminal Due Process In Academic Disciplinary Proceedings Requisites (1) The students must be informed in writing of the nature and cause of any accusation against them; (2) They shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) They shall be informed of the evidence against them; (4) They shall have the right to adduce evidence in their own behalf; (5) The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case [Non vs. Judge Dames (1990)]

Substantive Due Process Laws which interfere with life, liberty or property satisfy substantive due process when there is: (1) Lawful object i.e. the interests of the public in general (as distinguished from those of a particular class) require the intervention of the State, and (2) Lawful means i.e. means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. [US vs. Toribio (1910)] Publication of laws is part of substantive due process. [Tañada vs. Tuvera (1986)]

3. Constitutional and Statutory Due Process Due process under the Labor Code, like constitutional due process, has two aspects: substantive (i.e. the valid and authorized causes of employment termination), and procedural (i.e. the manner of dismissal). . . Breaches of these due process requirements violate the Labor Code, not the Constitution. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being

POLITICAL LAW REVIEWER unjustly terminated without just cause after notice and hearing. [Agabon v. NLRC (2004)] The Labor Code requires twin requirements of notice and hearing for a valid dismissal. However, the Court in Serrano v. NLRC clarified that this ―procedural due process‖ requirement is not constitutional but merely statutory, thus a violation of such requirement does not render the dismissal void. There are three reasons why violation by the employer of the notice requirement cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or layoff. xxx The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power, such as the termination of employment under the Labor Code. x x x The second reason is that notice and hearing are required under the Due Process Clause before the power of organized society are brought to bear upon the individual. This is obviously not the case of termination of employment under Art. 283. x x x The third reason why the notice requirement under Art. 283 cannot be considered a requirement of the Due Process Clause is that the employer cannot really be expected to be entirely an impartial judge of his own cause. [Serrano v. NLRC (2000)]

4. Hierarchy of Rights When the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are ―delicate and vulnerable, as well as supremely precious in our society‖ and the ―threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,‖ they ―need breathing space to survive,‖ permitting government regulation only ―with narrow specificity.‖ [Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc (1973)] If the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider. [Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila (1967)] Under the present provision, understood in the light of established jurisprudence on the position of property in the hierarchy of constitutional values, property stands a good chance of serving and enhancing the life and liberty of all. Running through various provisions of the Constitution are various provisions to protect property—but always with the explicit or implicit reminder that property has a social dimension and that the right to property is weighted with a social obligation. [Bernas]

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5. Judicial Standards of Review a. ―Rational Basis Test‖ The classification should bear a reasonable relation to government's purpose, and the legislative classification is presumed valid. Notes:  Important when there is no plausible difference between the disadvantaged class and those not disadvantaged.  Also important when the government attaches a morally irrelevant and negative significance to a difference between the advantaged and the disadvantaged.

b. ―Strict Scrutiny Test‖ This test is triggered when a fundamental constitutional right is limited by a law. This requires the government to show an overriding or compelling government interest so great that it justifies the limitation of fundamental constitutional rights (the courts make the decision of WON the purpose of the law makes the classification necessary).

necessarily guess at its meaning and differ as to its application." It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. Like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. A facial review of PP 1017 on the ground of vagueness is unwarranted. Petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. [David vs. Arroyo (2006)] VOID FOR VAGUENESS DOCTRINE: An accused is denied the right to be informed of the charge against him and to DUE PROCESS where the statute itself is couched in such INDEFINITE LANGUAGE that it‘s not possible for men of ordinary intelligence to determine therefrom what acts/omissions are punished. [People vs. Nazario (1988)]

D. Equal Protection 1. Concept 2. Requisites for Valid Classification

Applied also when the classification has a "suspect" basis (Suspect Classes – classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.)

1. Concept

c. Intermediate Scrutiny Test

Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. Immediate scrutiny was adopted by the U.S. Supreme Court in Craig. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. [White Light Corporation vs. City of Manila (2009)]

6. Void-for-Vagueness Doctrine Void for Vagueness: An act is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. The statute is repugnant to the constitution in 2 respects: (1) It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid, (2) It leaves law enforcers an unbridled discretion in carrying out its provisions. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must

Definition Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.

The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. [City of Manila vs. Laguio (2005) citing Ichong vs. Hernandez (1957)] Scope Natural and juridical Persons (the equal protection clause extends to artificial persons but only insofar as their property is concerned.)  A corporation as an artificial person is protected under the Bill of Rights against denial of due process, and it enjoys the equal protection of the law. [Smith, Bell & Co., vs. Natividad (1919)]  A corporation is also protected against unreasonable searches and seizures. [See Stonehill vs. Diokno (1967)]  It can only be proceeded against by due process of law, and is protected against unlawful discrimination. [Bache & Co. vs. Ruiz (1971)]

2. Requisites for Valid Classification (1) It must rest on substantial distinctions which make real differences;

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CONSTITUTIONAL LAW 2 (2) It must be germane to the purpose of the law; (3) It must not be limited to existing conditions only. An ordinance was declared void because it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company and none other, such that if a new sugar central is established in Ormoc, it would not be subject to the ordinance. [Ormoc Sugar Co. vs Treasurer of Ormoc City (1968)] (4) Apply equally to all members of the same class [People vs. Cayat (1939)] Serrano v. Gallant Maritime introduced a modification in equal protection jurisprudence by using the three-level review/scrutiny used in due process cases. So that, in effect, the level of review when it comes to equal protection challenges may follow the following format: (1) Whether the State was justified in making a classification at all. (three level scrutiny) (a) Rational basis test – the classification should bear a reasonable relation to the government‘s purpose (b) Strict scrutiny test – in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. It is applied when the classification has a ―suspect basis‖ (suspect classes – classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. (c) Intermediate scrutiny test – Court accepts the articulated purpose of the legislation but it closely scrutinizes the relationship between the classification and the purpose based on a spectrum of standards, by gauging the extent to which constitutionally guaranteed rights depend upon the affected individual interest. In which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest Applicable to certain sensitive but not suspect classes; certain important but not fundamental interest. (2) Whether the classification was valid. (test of valid classification in People v. Cayat)

Examples of Valid Classification All classifications made by law are generally presumed to be valid unless shown otherwise by petitioner. [Lacson vs. Executive Secretary (1999)]

Aliens GENERAL RULE: The general rule is that a legislative act may not validly classify the citizens of the State on the basis of their origin, race or parentage. EXCEPTIONS (1) In times of great and imminent danger, such as a threatened invasion or war, such a classification is permitted by the Constitution when the facts so warrant (e.g. discriminatory legislation against Japanese citizens during WWII). (2) The political rights of aliens do not enjoy the same protection as that of citizens. (3) Statutes may validly limit to citizens exclusively the enjoyment of rights or privileges connected with the public domain, the public works, or the natural resources of the State. The rights and interests of the state in these things are not simply political but also proprietary in nature; and so the citizens may lawfully be given preference over aliens in their use or enjoyment. The Court upheld the Retail Trade Nationalization Law despite the objection that it violated the EP clause, because there exists real and actual, positive and fundamental differences between an alien and a national. [Ichong vs, Hernandez (1957)]

Filipino Female Domestics Working Abroad They are a class by themselves because of the special risks to which their class was exposed. [Phil Association of Service Exporters vs. Drilon (1988)]

Land-based vs. Sea-based Filipino Overseas Workers There is dissimilarity as to work environment, safety, danger to life and limb, and accessibility to social, civil and spiritual activities. [Conference of Maritime Manning Agencies vs. POEA (1995)]

Qualification for Elective Office Disqualification from running in the same elective office from which he retired of a retired elective provincial/municipal official who has received payment of retirement benefits and who shall have been 65 y.o. at the commencement of the term of office to which he seeks to be elected is valid. [Dumlao vs. Comelec (1980)]

Office of the Ombudsman Allowing the Ombudsman to start an investigation based on an anonymous letter does not violate EP clause. The Office of the Ombudsman is different from other investigatory and prosecutory agencies of government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss

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Print vs. Broadcast Media There are substantial distinctions between the two to warrant their different treatment under BP 881 [Telecommunications and Broadcast Attorneys of the Phil vs. COMELEC (1998)]

E. Searches and Seizures 1. 2. 3. 4. 5. 6.

Concept Warrant Requirement Warrantless Searches Warrantless Arrests Administrative Arrests Drug, Alcohol and Blood Tests

1. Concept ART. III, SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Nature Personal It may be invoked only by the person entitled to it. [Stonehill vs. Diokno (1967)] It may be waived expressly or impliedly only by the person whose right is invaded, not by one who is not duly authorized to effect such waiver. [People vs. Damaso (1992)] Directed Against the Government and Its Agencies (State Action Requirement) The right cannot be set up against acts committed by private individuals. The right applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. The protection cannot extend to acts committed by private individuals so as to bring them within the ambit of alleged unlawful intrusion by the government. [People vs. Marti (1991)] What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. [Valmonte v. De Villa, 178 SCRA 211] Objections to the warrant of arrest must be made before the accused enters his plea. [People v. Codilla, 224 SCRA 104; People v. Robles, G.R. No. 101335, June 8, 2000]

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Scope Natural Persons It protects all persons including aliens [Qua Chee Gan vs. Deportation Board (1963)] Artificial Persons Artificial persons are protected to a limited extent. [Bache & Co. Inc vs. Ruiz (1971)] The opening of their account books is not protected, by virtue of police and taxing powers of the State.

2. Warrant Requirement Must refer to one specific offense. [Asian Surety v. Herrera, 54 SCRA 312; Castro v. Pabalan, 70 SCRA 477] The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into ―prohibited‖ and ―regulated‖ drugs, and defines and penalizes categories of offenses which are closely related or which belong to the same class or species; thus, one search warrant may be validly issued for several violations thereof. [People v. Dichoso, 223 SCRA 174] The doctrine was reiterated in People v. Salanguit, G.R. No. 133254055, April 19, 2001.

Requisites (1) Existence of probable cause Warrant of Arrest Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof. [People v. Syjuco, 64 Phil. 667; Alvarez v. CFI, 64 Phil 33] Search Warrant Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. [Burgos v. Chief of Staff, 133 SCRA 800] (2) Determination of probable cause personally by the judge.  Issuance of a warrant of arrest is not a ministerial function of the judge. [Placer v. Villanueva 126 SCRA 463; Lim v. Judge Felix, 194 SCRA 292] (3) After personal examination under oath or affirmation of the complainant and the witnesses he may produce. How it is done: In the form of searching questions and answers, in writing and under oath (Rule 126, Sec. 6, ROC)  Mere affidavits of the complainant and his witnesses are thus not sufficient.  The examining Judge has to take depositions in writing of the complainant and the

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witnesses he may produce and attach them to the record.  Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false  It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established.  The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Roan vs. Gonzales (1984)]

conducted surveillance and test-buy ops before obtaining the SW and subsequently implementing it. They had personal knowledge of the identity of the persons and the place to be searched, although they did not specifically know the names of the accused. [People vs. Tiu Won Chua (2003)]

(4) On the basis of their personal knowledge of the facts they are testifying to.

Conduct of the Search (Sec. 7, Rule 126, ROC)  In the presence of a lawful occupant thereof or any member of his family, OR  If occupant or members of the family are absent, in the presence of 2 witnesses of sufficient age discretion residing in the same locality  Force may be used in entering a dwelling if justified by Rule 126 ROC.

(5) The warrant must describe particularly the place to be searched and the persons or things to be seized. Requirement is primarily meant to enable the law enforcers serving the warrant to (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. [People v. Tee, G.R. Nos. 140546-47, January 20, 2003] PLACE TO BE SEARCHED The search warrant issued to search petitioner‘s compound for unlicensed firearms was held invalid for failing to describe the place with particularity, considering that the compound was made up of 200 buildings, 15 plants, 84 staff houses, 1 airstrip etc spread out over 155 hectares. [PICOP vs. Asuncion (1999)] DESCRIPTION OF PLACE/THINGS The description of the property to be seized need not be technically accurate or precise. Its nature will vary according to whether the identity of the property is a matter of concern. The description is required to be specific only in so far as the circumstances will allow. [Kho vs. Judge Makalintal (1999)]

GENERAL WARRANT: One that (1) does not describe with particularity the things subject of the search and seizure; and (2) where probable cause has not been properly established. It is a void warrant. [Nolasco vs. Paño (1985)] EXCEPTION TO GENERAL WARRANTS: General descriptions will not invalidate the entire warrant if other items have been particularly described. [Uy vs. BIR (2000)]

Failure to comply with Sec. 7 Rule 126 invalidates the search. [People vs. Gesmundo (1993)] FORCIBLE ENTRY JUSTIFIED: Occupants of the house refused to open the door despite the fact that the searching party knocked several times, and the agents saw suspicious movements of the people inside the house. [People vs. Salanguit (2001)] UNLAWFUL SEARCH: Police officers arrived at appellant‘s residence and ―side-swiped‖ (sinagi) appellant‘s car (which was parked outside) to gain entry into the house. Appellant‘s son, who is the only one present in the house, opened the door and was immediately handcuffed to a chair after being informed that they are policemen with a warrant to search the premises. [People vs. Benny Go (2003)]

3. Warrantless Searches

A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow. [People v. Rubio, 57 Phil 384] or when the description expresses a conclusion of fact, not of law, by which the warrant officer may be guided in making the search and seizure; or when the tings described are limited to those which bear direct relation to the offense for which the warrant is being issued. [Bache & Co. v. Ruiz, 37 SCRA 823]

GENERAL RULE Areas within the reach and control of the accused are the permissible areas of search for both stopand-frisk and search-incident-to-a-valid-arrest. [Espano vs. CA; People vs. Cubcubin (2001)]

DESCRIPTION OF PERSONS SEARCHED Search warrant is valid despite the mistake in the name of the persons to be searched. The authorities

Evidence obtained in violation of Sec. 2 Art. III shall be inadmissible for any purpose and in any proceeding. [Stonehill vs, Diokno (1967)]

EXCEPTION Sec. 3(2), Art. III, 1987 CONSTI. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

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CONSTITUTIONAL LAW 2 Once the primary source is shown to have been unlawfully obtained, any secondary or derivative evidence is also inadmissible. [Nardone vs. US (1939)] It was alleged that Parliamentary Club was a gambling house; search warrant was obtained. Veloso read the warrant and said that he was not ―John Doe‖. The Court ruled that the John Doe search warrant was valid and held that there is nothing to prevent issue and service of warrant against a party whose name is unknown. Besides, the officers had the right to arrest the persons engaged in prohibited game. An officer making an arrest may take from the person arrested any money / property found upon his person, w/c was used in commission of crime, or was the fruit of the crime, or w/c may furnish the person w/ means of committing violence or escaping, or w/c may be used as evidence on trial, but not otherwise. [People vs. Veloso (1925)] Other specific situations: Quick Look: a. Search is an Incident to a Lawful Arrest. b. Search of Moving Vehicles c. Plain View Doctrine d. Stop and Frisk Searches e. Valid Express Waiver f. Customs search g. Visual Search at Checkpoints h. Conduct of ―Aerial Target Zoning‖ ―saturation drive‖ i. Exigent and Emergency Circumstances

Aguilar-Roque and Nolasco, allegedly connected w/ the CPP-NPA and accused of rebellion and subversion, assert that the search warrant in this case is void because (1) it doesn‘t sufficiently describe things subject of the search & seizure and (2) probable cause hasn‘t been established for lack of searching questions propounded to applicant‘s witness. Court ruled that the search warrant is void. However, the Court also ruled that the search in question did not need a search warrant. Under the Rules of Court, a person charged w/ an offense may be searched for dangerous weapons or anything w/c may be used as proof of the commission of the offense. As an incident of an arrest, the premises where the arrest was made can also be searched w/o search warrant. [Nolasco vs Cruz Paño (1985)] In this Motion for Partial Reconsideration of the 1985 decision, the petitioners submit that a warrantless search can be justified only if it‘s an incident to a lawful arrest and that since Aguilar wasn‘t lawfully arrested, a search w/o warrant couldn‘t be made. The SolGen offered no objection to declaration that the search was illegal and to the return of the seized items. The Motion for Partial Reconsideration is granted. [Nolasco vs. Paño on M.R. (1987)]

b. Search of Moving Vehicles and

a. Search is an incident to a lawful arrest. Sec. 12, Rule 126, Rules of Court. Search incident to lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.  The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested.  It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this case, the extent and reasonableness of the search must be decided on its own facts and circumstances.  What must be considered is the balancing of the individual‘s right to privacy and the public‘s interest in the prevention of crime and the apprehension of criminals. [Nolasco vs. Pano (1985)]

Test for validity  Item to be searched was within the arrester‘s custody;  Search was contemporaneous with the arrest

Securing a search warrant is not practicable since the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought [Papa vs. Mago (1968)]

c. Plain View Doctrine: Things seized are within plain view of a searching party Requisites (1) Prior valid intrusion into a place; (2) Evidence:  inadvertently discovered  by police who had the right to be where they were; (3) Evidence must be immediately apparent and (4) Noticed without further search [People vs. Musa; People vs. Sarap (2003)] An object is in ―plain view‖ if the object itself is plainly exposed to sight. Where the seized object is inside a closed package, the object is not in plain view and, therefore, cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the content are in plain view, and may be seized. [Caballes v. Court of Appeals, G.R. No. 136282, January 15, 2002] If the package is such that it contains prohibited articles, then the article is deemed in plain view. [People v. Nuevasm G.R. No. 170233, February 22, 2007]

d. Stop and Frisk Searches

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CONSTITUTIONAL LAW 2 There should be a genuine reason to ―stop-and-frisk in the light of the police officer’s experience and surrounding conditions to warrant a belief that the person detained has weapons concealed. [Malacat vs. CA (1997) citing Terry vs. Ohio] The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter‘s outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officer‘s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons or contraband concealed about him. [People v. Sy Chua, G.R. Nos. 136066-67, February 4, 2003]

e. Valid Express Waiver made Voluntarily and Intelligently Requisites (1) Must appear that right exists; (2) Person involved had actual/ constructive knowledge of the existence of such right; (3) Said person had an actual interest to relinquish the right; (4) Waiver is limited only to the arrest; (5) Waiver does not extend to search made as an incident thereto, or to any subsequent seizure of evidence found in the search. [People vs. Peralta (2004)] It was ruled that the right to be secure from unreasonable search may be waived. Waiver may be express or implied. When one voluntarily submits to a search or consents to have it made of his person / premises, he is precluded from later complaining. In this case, the appellant neither made objection nor even muttered a bit of protest when the search was conducted on his person. Also, as held in Weeks v. United States, when the search of the person detained or arrested and seizure of effects found in his possession are incidental to an arrest made in conformity w/ the law, they cannot be considered unreasonable, much less unlawful. [People vs. Kagui Malasugui (1936)] It is the State that has the burden of proving, by clear and convincing evidence, that the necessary consent was obtained and that it was voluntarily and freely given. [Caballes v. Court of Appeals, G.R. No. 136292, January 15, 2002] When accused checked in his luggage as passenger of a plane, he agreed to the inspection of his luggage in accordance with customs laws and regulations, and thus waived any objection to a warrantless search. [People v. Gatward, 267 SCRA 785]

f.

Customs Search

Searches of vessel and aircraft for violation of immigration and smuggling laws [Papa vs. Mago (1968)]

g. Visual Search at Checkpoints ―Stop and search‖ without a warrant at military or police checkpoints, which has been declared not to be illegal per se so long as it is required by exigencies of public order and conducted in a way least intrusive to motorists. [Valmonte vs. de Villa, 178 SCRA 211] For a mere routine inspection, the search is normally permissible when it is limited to a mere visual search, where the occupants are not subjected to physical or body search. On the other hand, when the vehicle is stopped and subjected to a physical or body search. On the other hand, when the vehicle is stopped and subjected to an extensive search, it would be constitutionally permissible only If the officers conducting the search had reasonable or probable cause to believe, before the search, that either the motorist is a law offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. [Caballes v. Court of Appeals, G.R. No. 136292, Januarcy 15, 2002,; People v. Libnao, G.R. No. 136860, January 20, 2003]

h. Conduct of ―aerial target zoning‖ and ―saturation drive‖ in the exercise of the military powers of the President [Guanzon vs. de Villa (1990)] i.

Exigent and Emergency Circumstances

The raid and seizure of firearms and ammunition at the height of the 1989 coup-de-etat, was held valid, considering the exigent and emergency situation. The military operatives had reasonable ground to believe that a crime was being committed, and they had no opportunity to apply for a search warrant from the courts because the latter were closed. Under such urgency and exigency, a search warrant could be validly dispersed with. [People vs. de Gracia, 233 SCRA 716]

j. Search and seizure incident to a lawful arrest Arresting officer may take from the arrested individual any money or property found upon the latter‘s person --- that which was used in the commission of the crime or was the fruit of the crime, or which may provide the person arrested with the means of committing violence or escaping, or which may be used in evidence in the trial of the case. The search, must, however, be contemporaneous to the arrest and made within a permissible area of search. [People v. Estella, G.R. Nos. 138539-40, January 21, 2003]

Properties Subject to Seizure GENERAL RULE: Only the articles particularly described in the warrant may be seized.  Property subject of an offense

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CONSTITUTIONAL LAW 2  Stolen or embezzled property and other proceeds or fruits of an offense  Used or intended to be used as a means of committing an offense (Sec. 2 Rule 126, ROC) Where the warrant authorized only the seizure of shabu, and not marijuana, the seizure of the latter was held unlawful. [People vs. Salanguit, supra] It is not necessary that the property to be searched or seized should be owned by the person against whom the warrant is issued; it is sufficient that the property is within his control or possession. [Burgos vs. Chief of Staff (1984)] Comparison of Procedures in Obtaining Search Warrants and Arrest Warrants R112, Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence [NOTE: THIS IS NOT FOUND IN THE PROCEDURE FOR A SEARCH WARRANT] within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. Rule 126, Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines

4. Warrantless Arrests Requisites for Issuance of a Valid Arrest Warrant What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is NOT required to personally examine the complainant and his witnesses.

POLITICAL LAW REVIEWER Following established doctrine and procedure, he shall: (1) Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) If he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. [Beltran vs. Makasiar (1988)] Existence of probable cause: Such facts and circumstances which would lead a reasonably discreet and prudent mean to believe that an offense has been committed by the person sought to be arrested. [Webb vs. De Leon (1995)] Determination of probable cause personally by the judge as to warrant of arrest: (1) On the basis of the witnesses‘ personal knowledge of the facts they are testifying to. (2) The arrest warrant must describe particularly the person to be seized.  By stating the name of the person to be arrested.  If not known, then a ―John Doe warrant‖ may be issued, with some descriptio persona that will enable the officer to identify the accused. JOHN DOE WARRANT: Warrants issued against 50 John Does, none of whom the witnesses could identify, were considered as ―general warrants‖ and thus void. [Pangandaman vs. Casar (1988)]

Requisites of a Valid Warrantless Arrest (Rule 113, Sec. 5, Rules on Criminal Procedure) 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (in flagrante delicto) Rebellion is a continuing offense. Therefore a rebel may be arrested w/o a warrant at any time of the day or the night as he is deemed to be in the act of committing rebellion. [Umil vs. Ramos (1991)] Though kidnapping w/ serious illegal detention is deemed a continuing crime, it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another. [Parulan vs. Dir of Prisons (1968)] HOT PURSUIT: The arrest of the accused inside his house following hot pursuit of the person who committed the offense in flagrante was held valid. [People vs. De Lara (1994)] BUY-BUST: A buy-bust operation is a valid in flagrante arrest. The subsequent search of the person arrested and the premises within his

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CONSTITUTIONAL LAW 2 immediate control is valid as an incident to a lawful arrest. [People vs. Hindoy (2001)] EXCEPTION TO BUY-BUST: Instead of arresting the suspect after the sale in a buy-bust op, the officer returned to the police headquarters and filed his report. It was only in the evening that he, without warrant, arrested the suspect at his house where dried marijuana leaves were found and seized. This is unlawful arrest. [People vs. Rodrigueza] 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

Requisites: (1) Offense had JUST been committed; (2) Person making the arrest has probable cause to believe based on PERSONAL KNOWLEDGE. Note: There must be a large measure of immediacy between the time the offense is committed and the time of the arrest. If there was an appreciable lapse of time between arrest and commission of crime, warrant of arrest must be secured. (NACHURA) Warrantless arrest of accused for selling marijuana 2 days after he escaped is invalid. [People vs Kimura (2004)] The police saw the victim dead at the hospital and when they inspected the crime scene, they found the instruments of death. The eyewitnesses reported the happening and pointed to Gerente as one of the killers. Here the warrantless arrest only 3 hrs after the killing was held valid since personal knowledge was established as to the fact of death and facts indicating that Gerente killed the victim. [People vs Gerente (1993)] PERSONAL KNOWLEDGE: Experience of an officer which gives the idea that there is probable cause that the person caught is responsible. It has been ruled that ―personal knowledge of facts‖ in arrests without a warrant must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. [Cadua v. Court of Appeals, G.R. No. 123123, Aug. 19, 1999] Burgos was convicted for the crime of Illegal Possession of Firearms in Furtherance of Subversion. Masamlok claimed that he had been forcibly recruited by Burgos to the NPA, threatening him with the use of firearm against his life and family. Masamlok was also allegedly threatened to attend an NPA seminar. The next day the authorities went to arrest Burgos without a warrant. They found him in his residence plowing his field. Burgos denied the accusation, but his wife pointed to a place below their house where a gun was buried in the ground. After the firearm was recovered, Burgos allegedly pointed to a stock pile of cogon where he had hidden subversive documents. The prosecution presented an

POLITICAL LAW REVIEWER extrajudicial confession made by Burgos. However, Burgos claimed that he had been mauled and hit repeatedly until he would admit and sign an extrajudicial confession. Exceptions to warrant of arrest: Art. IV, Sec. 3 of the Constitution safeguards against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers, and effects. Rule 113, Sec. 6 of the Rules of Court provides the exceptions to the warrant requirement. However, the instant case does not fall under any of the exceptions in Rule 113, Sec. 6. First, it requires that the officer arresting a person who has committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must be committed in his presence or within his view. In the instant case:  The knowledge as to the offense was furnished by Masamlok.  The location of the firearm was given by the Burgos‘ wife.  At the time of the arrest, Burgos was not in actual possession of any firearm or subversive document.  Neither was he committing any act which could be described as subversive. He was in fact plowing his field at the time of his arrest. It is clear that the arresting officers had no personal knowledge of the commission of the offense because such information was only supplied to them by an informant. Neither has Burgos committed any offense in their presence as he was merely plowing his field at the time of arrest. On the other hand, Sec. 6 (b) of Rule 113 requires that a crime must in fact or actually have been committed first. It is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. That a crime has actually been committed is an essential precondition. In the instant case, it was not even established that indeed a crime has been committed. The information that a crime was probably committed was supplied by Masamlok who did not even give his testimony under oath. Finally, the Court finds no compelling reason for the haste of the arresting officers to arrest Burgos if indeed he committed a crime. There is no showing that there was real apprehension that Burgos was on the verge of flight or escape and that his whereabouts are unknown. [People vs. Burgos (1986)] 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. ADDITIONAL EXCEPTIONS (NOT IN THE RULES): (1) When the right is voluntarily waived (estoppel).

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CONSTITUTIONAL LAW 2 (2) Violent insanity. Appellant is estopped from questioning the illegality of the arrest when he voluntarily submitted himself to the jurisdiction of the court by entering a plea of not guilty and by participating in the trial. [People vs. Salvatierra (1997)] SCOPE OF WAIVER: Waiver is limited to the illegal arrest. It does not extend to the search made as an incident thereto, or the subsequent seizure of evidence allegedly found during the search [People vs. Peralta (2004]]

5. Administrative Arrests Under the express terms of our Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And if one suspected of having committed aim is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the President obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas. [Vivio v. Montesa (1968)] The Supreme Court distinguished between administrative arrest in the execution of a final deportation order and arrest as preliminary to further administrative proceedings: "Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such a legal order of

deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation." [Morano vs. Vivo, L-22196, 30 June 1967, 20 SCRA, 562; PHILD. 1967B, page 741]

6. Drug, Alcohol and Blood Tests The Court held that Randomized Drug Testing (RDT) for students and employees doesn‘t violate the right to privacy in the Constitution. Students do not have rational expectation of privacy since they are minors and the school is in loco parentis. Employees and students in universities, on the other hand, voluntarily subject themselves to the intrusion because of their contractual relation to the company or university. It is unconstitutional to subject candidates for public office and criminals to RDT. The Constitution clearly provides the requirements for candidates, and adding RDT would violate or amend the Constitution. Criminals subjected to RDT would violate their right against self-incrimination since it would not be random anymore. [SJS v. Dangerous Drugs Board (2008)]

F. Privacy of Communications and Correspondence 1. Private and Public Communications 2. Writ of Habeas Data

SEC. 3, ART. III, 1987 CONSTITUTION (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

1. Private and Public Communications Intrusion, When Allowed a.

By lawful order of the court

Probable cause in Sec. 2, Art. III should be followed for the court to allow intrusion. Particularity of description is needed for written correspondence, but if the intrusion is done through wire-taps and the like, there is no need to describe the content. However, identity of the person or persons whose communication is to be intercepted, and the offense or offenses sought to be prevented, and the period of the authorization given can be specified. b.

When public safety or public order requires otherwise, as may be provided by law:

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CONSTITUTIONAL LAW 2 Intrusion has to be based upon a non-judicial government official‘s assessment that public safety and order demands such intrusion, limited to the provisions of law. To hold otherwise would be to opt for a government of men, and not of laws. Public order and safety is defined as the security of human lives, liberty and property against the activities of invaders, insurrectionist and rebels. [1971 Constitutional Convention, Session of November 25, 1972]

Forms of Correspondence Covered (1) (2) (3) (4)

letters messages telephone calls telegrams, and the like (BERNAS)

Private Communication Revised Penal Code, Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1)

A private communication made by any person to another in the performance of any legal, moral or social duty; x x x

A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remarks." [Borjal vs. CA (1999)] Anti-wire tapping act (RA 4200), clearly and unequivocably makes it illegal for any person, not authorized by all the parties to any private communication, to secretly record such communications by means of a tape recorder. The law does not make any distinction. [Ramirez v.Court of Appeals, 248 SCRA 590] Right may be invoked against the wife who went to the clinic of her husband and there took documents consisting of private communications between her husband and his alleged paramour [Zulueta v. Court of Appeals, 253 SCRA 699]

G. Freedom of Expression 1. Concept and Scope 2. Content-Based and Content-Neutral Regulations 3. Facial Challenges and the Overbreadth Doctrine 4. Tests 5. State Regulation of Different Types of Mass Media 6. Commercial Speech 7. Private v. Government Speech

1. Concept and Scope Basis Sec. 4, Art. 3. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Sec. 18. (1), Art. 3 No person shall be detained solely by reason of his political beliefs and aspirations. All are indispensable to the ―uninhibited, robust and wide-open debate in the free marketplace of ideas.‖ [Abrams vs. US (1919)] While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff, this Court however believes that the alleged defamatory articles fall within the purview of a qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving malice is accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by ill-will in what they caused to be printed and published, with a design to carelessly or wantonly injure the plaintiff. [U.S. vs. Bustos (1909)] Components Speech, expression, and press include: (1) Written or spoken words (recorded or not) (2) Symbolic speech (e.g. wearing armbands as symbol of protest) (3) Movies (BERNAS) Scope of Protected Freedoms Any and all modes of protection are embraced in the guaranty. It is reinforced by Sec. 18(1), Art. 3.

Prior Restraint (Censorship) Concept Censorship conditions the exercise of freedom of expression upon the prior approval of the government.

2. Writ of Habeas Data

The censor serves therefore as the political, moral, social and artistic arbiter for the people, usually applying only his own subjective standards in determining what is good and what‘s not.

See Annex A.

GENERAL RULES

Public Communication

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CONSTITUTIONAL LAW 2 (1) Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to show justification for the imposition of such restraint. (New York vs. United States 1971) (2) There need not be total suppression. Even restriction of circulation constitutes censorship [Grosjean vs. American Press Co., 297 US 233] Examples of Unconstitutional Prior Restraint (1) COMELEC prohibition against radio commentators or newspaper columnists from commenting on the issues involved in a scheduled plebiscite [Sanidad vs. COMELEC (1990)] (2) Arbitrary closure of a radio station (Eastern Broadcasting vs. Dans (1985)) (3) COMELEC resolution prohibiting the posting of decals and stickers in mobile units like cars and other moving vehicles [Adiong vs. COMELEC (1992)] (4) Search, padlocking and sealing of the offices of newspaper publishers (We Forum) by military authorities [Burgos vs. Chief of Staff, supra] (5) An announcement of a public figure to prohibit the media to issue a specific kind of statement amounts to prior restraint, which is violative of the right to free press. [Chavez vs. Gonzales (2006)] Examples of Constitutional Prior Restraint: (1) Law which prohibits, except during the prescribed election period, the making of speeches, announcements or commentaries for or against the election of any candidate for office [Gonzales vs. COMELEC (1969)] (2) Prohibition on any person making use of the media to sell or to give free of charge print space or air time for campaign or other political purposes except to the COMELEC. Ratio: police power of State to regulate media for purpose of ensuring equal opportunity, time and space for political campaigns. [National Press Club vs. COMELEC, G.R. NO. 1026653, March 5, 1992; Osmena vs. COMELEC] (3) Movie censorship: the power of the MTCRB can be exercised only for purposes of reasonable classification, not censorship. [NACHURA citing Gonzalez vs. Katigbak (1985) and Ayer vs. Judge Capulong] (4) Near vs. Minnesota, (1931): (a) When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right (b) Actual obstruction to the government‘s recruiting service or the publication of the sailing dates of transports or the number and location of troops (c) Obscene publications

POLITICAL LAW REVIEWER (d) Incitements to acts of violence and the overthrow by force of orderly government

Subsequent Punishment Concept: Freedom of speech includes freedom after speech. Without this assurance, the citizen would hesitate to speak for fear he might be provoking the vengeance of the officials he has criticized (chilling effect). If criticism is not to be conditioned on the government’s consent, then neither should it be subject to the government‘s subsequent chastisement. Examples of Valid Subsequent Restraints: (1) Libel. Every defamatory imputation is presumed to be malicious. [Alonzo vs. CA (1995)] Exceptions to this presumption are found in Art. 354 of the RPC. (2) Obscenity. The determination of what is obscene is a judicial function. [Pita vs. CA (1989)] Accused was convicted for exhibiting nude painting and pictures, notwithstanding his claim that he had done so in the interest of art. Court said that the purpose was commercial, not merely artistic, because he charged admission fees to the exhibition. [U.S. vs. Kottinger (1923)] (3) Contempt for criticism/publications tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding (sub judice) [People vs. Alarcon (1939)] (4) Being a public figure does not automatically destroy in toto a person's right to privacy. The limits of freedom of expression are reached when it touches upon matters of private concern [Lagunzad vs. Gonzales (1979)] (5) Right of students to free speech in school premises must not infringe on the school‘s right to discipline its students [Miriam College Foundation vs. CA (2000)] EXCEPTIONS (1) Fair comment on matters of public interest. Fair comment is that which is true or, if false, expresses the real opinion of the author based upon reasonable degree of care and on reasonable grounds. (2) Criticism of official conduct is given the widest latitude. [US vs. Bustos (1918)]

2. Content-Based and Content-Neutral Regulations Content-Based Restrictions

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CONSTITUTIONAL LAW 2 Specific Instances Freedom of Expression and National Security Espuelas was convicted in the lower court of the crime of inciting to sedition. Espuelas had his picture taken, making it to appear as if he were hanging lifeless at the end of a piece of rope suspended from the limb of a tree, when in truth and in fact, he was merely standing on a barrel. After securing copies of his photograph, he sent copies to several newspapers and weeklies of general circulation throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it was written by a fictitious suicidee, Alberto Reveniera and addressed to the latter's supposed wife. These reasons point to the Roxas administration, his disappointments and humiliations because of the former and his lack of power to put under Juez de Cuchillo all the Roxas people in power. Finally, the letter instructed the wife to teach their children to burn pictures of Roxas if they come across one. Espuelas admitted the fact that he wrote the letter and caused its publication and that he had impersonated one Alberto Reveniera and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree. Freedom of Expression, national security: The letter is a scurrilous libel against the Government. It suggests or incites rebellious conspiracies or riots and tends to stir up the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. Such writings are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself. Malicious endeavors to stir up public strife are prohibited. Our Legislature has spoken in article 142 of the RPC and the law must be applied. This kind of legislation must be weighed carefully vis-à-vis the fundamental right to freedom of speech. Such freedom, although secured by the Constitution, does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. The privilege of any citizen to criticize his government and government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market" is not to be restrained. However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government…. When

POLITICAL LAW REVIEWER the use of irritating language centers not on persuading the readers but on creating disturbance, the rationale of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty. [Espuelas vs. People (1951)] Freedom of Expression and Libel NATIONAL COMMUNITY STANDARD AS BASIS OF WHAT IS DEFAMATORY: An article in Phil. Panorama described Amir Mindalano as not belonging to a royal house. The Court held that there is no libel. Such a description cannot be regarded as defamatory, an imputation of a vice or defect, or tending to cast dishonor, discredit or contempt or to blacken the memory of one who is dead. In a community like ours which is both republican and egalitarian, such an ascription, whether correct or not, cannot be defamatory. It is to the standards of the national community, not to those of the region that a court must refer especially where a newspaper is national in reach and coverage. [Bulletin Publishing vs. Noel (1988)] REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND COVERED BY PRESS FREEDOM: Where the defamation is alleged to have been directed at a group/class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. Also, the report in the Newsweek article referring as it does to an official act performed by an elective public official (i.e. that the victim had been arrested by members of special police unit brought by the mayor of Kabankalan who incidentally is a sugar planter), is w/in the realm of privilege and is protected by the constitutional guarantees of free speech and press. [Newsweek vs. IAC (1986)] Islamic Da‘Wah Council of the Philippines, Inc., a local federation of more than 70 Muslim religious organizations, filed a complaint for damages against MVRS Publications, Inc., arising from an article, which says that the pig is sacred for the Muslims. Freedom of Expression, Libel: As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.

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CONSTITUTIONAL LAW 2 Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "all ideas are treated equal in the eyes of the First Amendment - even those ideas that are universally condemned and run counter to constitutional principles."

through a letter addressed to the Presidential Complaints and Actions Commission (PCAC). A contempt charge was brought against him for sending that letter which tended to degrade the lower court in the eyes of the President and of the people. SC reversed the ruling which cited him in contempt.

Under the right to free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."

Freedom of Expression and the Administration of Justice: For his act (of sending his letter to the President and not to the Sec of Justice or SC) to be contemptuous, the danger must cause a serious imminent threat to the administration of justice. We cannot infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance. [Cabansag vs. Fernandez (1957)]

Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press. [MVRS v. Islamic Da’Wah Council of the Phil (2003)] Freedom of Expression and the Right to Privacy Being a public figure does not automatically destroy in toto a person‘s right to privacy. The right to invade a person‘s privacy to disseminate public info does not extend to a fictional representation of a person, no matter how public a figure he/she may be. In the case at bar, petitioner admits that he included a little romance in the film about Moises Padilla (despite efforts to present the true-to-life story of the latter) because w/o it, it would be a drab story of torture and brutality. [Lagunzad vs. Soto (1979) The TC issued a writ of preliminary injunction against petitioners ordering them to desist from producing the movie ―The Four-Day Revolution‖, a docu-drama of EDSA I, on the ground that it violated the right to privacy of Juan Ponce Enrile who was featured in the documentary. The Court held that Freedom of speech and expression includes freedom of filming and producing motion pictures and to exhibit them. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression. The right to privacy cannot be involved to resist publication and dissemination of matter of public interest. The intrusion is no more than necessary to keep the film a truthful historical account. Enrile is a public figure because of his participation as a principal actor in the culminating events of the revolution. There must be no knowing or reckless disregard of truth in depicting the participation of Enrile in EDSA I. Also, there must be no presentation of his private life and no revelation of intimate or embarrassing personal facts. [Ayer Productions vs. Capulong (1988)] Freedom of Expression and the Administration Of Justice Due to the delay in the disposition of his original case, Cabansag asked for help from the President

Content-Neutral Restrictions Freedom of Assembly The right to freedom of speech and to peaceably assemble, and petition the government for redress of grievances are fundamental personal rights of the people guaranteed by the constitutions of democratic countries. City or town mayors are not conferred the power to refuse to grant the permit, but only the discretion in issuing the permit to determine or specify the streets or public places where the parade may pass or the meeting may be held. [Primicias vs. Fugoso (1948)] The Court held here that freedom of speech and freedom to peaceably assemble is entitled to be accorded utmost deference and respect, and cannot be limited or denied unless there is showing of a clear and present danger of a substantive evil that the State has a right to prevent. For the constitutional right to be invoked, riotous conduct, injury to property and acts of vandalism must be avoided. Furthermore, absent any clear and present danger of a substantive evil, peaceable assembly in public places like streets or parks cannot be denied. [J.B.L. Reyes vs. Bagatsing (1983)] The CPR, insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID. CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance. B.P. 880 not unconstitutional. B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law is not vague or overbroad. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places.

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CONSTITUTIONAL LAW 2 Freedom Parks. B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the law‘s effectivity in 1985, or 20 years ago. Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. According to the SolGen (Nachura), however, he is aware of only ONE declared freedom park - Fuente Osmena in Cebu City. Without such alternative forum, to deny the permit would in effect be to deny the right. Hence, local governments are given a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the office of the mayor to allow proper coordination and orderly activities. Permit Application. There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. Conclusion. For this reason, the so-called calibrated pre-emptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, ―maximum tolerance‖ is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard. [Bayan vs. Ermita (2006)]

Freedom of Association and Self-Organization SEC. 17. Human Security Act Proscription of Terrorist Organizations, Association, or Group of Persons. – Any organization, association,

POLITICAL LAW REVIEWER or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court. The right to associate is not absolute. [People vs. Ferrer (1972)] Sec. 2 (5), Art 9-B. 1987 Constitution. The right to self-organization shall not be denied to government employees. Sec. 8, Art. 3, 1987 Constitution. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

3. Facial Challenges and the Overbreadth Doctrine Overbreadth Doctrine: A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (1) Claims of facial overbreadth are entertained in cases involving statutes which by their terms seek to regulate only spoken words. Such claims have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. (2) A facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression.

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CONSTITUTIONAL LAW 2 (3) Also, the challenger must establish that there can be no instance when the assailed law may be valid. (4) Used on freedom of expression, when on the face of a regulation, it appears sweeping. A plain reading of PP 1017 shows that it is not primarily directed to speech / speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. Petitioners did not show WON there‘s an instance when PP1017 may be valid. [David vs. Arroyo (2006)]

4. Tests Dangerous Tendency Test If the words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable. [Cabansag vs. Fernandez (1957)] It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. [People vs. Perez (1956)]

Clear and Present Danger Test The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. [Schenck vs. United States (1919)] This rule requires that ―the danger created must not only be clear and present but also traceable to the ideas expressed‖. [Gonzales vs. COMELEC (1969)] Note: This test has been adopted by the Philippine SC lock, stock and barrel and is the test most applied to cases re: freedom of expression.

Balancing of Interest Test When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional and partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection. [American Communications Assoc. vs. Douds, 339 US 282] The test is applied when two legitimate values not involving national security crimes compete. [Gonzales vs. COMELEC (1969)]

Direct Incitement Test In this case, the Petitioner was charged with violation of the Revised Anti-Subversion Act after being apparently implicated by a certain Victor

POLITICAL LAW REVIEWER Lovely as being involved in the series of bombings in Metro Manila. Direct Incitement Test: In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg vs. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. [Salonga vs. Cruz Paño (1986)]

Grave-But-Improbable Danger Test In this case, the Petitioners, leaders of the Communist Party in this country, were indicted in a federal district court under § 3 of the Smith Act for (1) wilfully and knowingly conspiring to organize as the Communist Party a group of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) to knowingly and wilfully advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. [Dennis vs. U.S. (1951)] Grave-But-Improbable Danger Test: To determine the clear and present danger of the utterances bringing about the evil which that legislature has the power to punish, "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." In this case, an attempt to overthrow the Government by force is a sufficient evil for Congress to prevent. It is the existence of the conspiracy which creates the danger.

5. State Regulation of Different Types of Mass Media Art. XVI Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations,

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CONSTITUTIONAL LAW 2 cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. The Court pronounced that the freedom of broadcast media is lesser in scope than the press because of their pervasive presence in the lives of people and because of their accessibility to children.

Movie Censorship Gonzales was the producer of the movie Kapit sa Patalim w/c the Board of Review for Motion Pictures and Televisions classified as fit ―For Adults Only.‖ Here the Court held that the power of the Board is limited to the classification of films. For freedom of expression is the rule and restrictions the exception. Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, morals, health or any other legit public interest: (1) There should be no doubt what is feared may be traced to the expression complained of. (2) Also, there must be reasonable apprehension about its imminence. It does not suffice that the danger is only probable. [Gonzales vs. Kalaw Katigbak (1985)] Limited intrusion into a person‘s privacy is permissible when that person is a public figure and the information sought to be published is of a public character. What is protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs of an individual which are outside the realm of public concern. [Ayer Productions vs Capulong, supra]

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By the clear terms of the law, the Board has the power to ―approve, delete, or prohibit the exhibition and/or television broadcasts of television programs. The law also directs the Board to apply contemporary Filipino culture values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of a violence or of a wrong or a crime. According to Iglesia ni Cristo vs. CA: The law gives the Board the power to screen, review and examine ALL ―television programs‖ whether religious, public affairs, news documentary, etc. (Ubi lex non distinguit nec distinguere debemos-when the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it). Also, the fact that freedom of religion has been accorded a preferred status, still the Court did not exempt Iglesia ni Cristo‘s program from MTRCB‘s power to review. Freedom of expression and of the press has not been declared of preferred status. [MTRCB vs. ABS-CBN (2005)] The Supreme Court could not compel TV stations and radio stations, being indispensable parties, to give UNIDO free air time as they were not impleaded in this case. UNIDO must seek a contract with these TV stations and radio stations at its own expense. [UNIDO vs COMELEC (1981)] The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public. Considering the prejudice it poses to the defendant‘s right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of the court proceedings shall not be allowed. No video shots or photographs shall be permitted during the trial proper. Video footages of court hearings for news purposes shall be limited and restricted as above indicated. [Secretary of Justice vs Sandiganbayan (2001)]

Radio Censorship

Television Censorship

The Supreme Court does not uphold claim that Far Eastern had no right to require the submission of the manuscript. It is a duty of Far Eastern to require the submission of a manuscript as a requirement in broadcasting speeches. Besides, laws provide for such actions:

P.D. 1986 gives the petitioner the power to screen, review and examine all television programs.

Act 8130. Franchise for Far Eastern; radio to be open to the general public but subject to regulations

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CONSTITUTIONAL LAW 2 Comm. Act 98. Sec. of Interior and/or the Radio Board is empowered to censor what is considered ―neither moral, educational or entertaining, and prejudicial to public interest.‖ The Board can forfeit the license of a broadcasting station. Sec. of the Interior, Dept. Order 13. Requires submission of daily reports to Sec. of Interior/Radio Board re: programs before airing. For speeches, a manuscript or short gist must be submitted. [Santiago vs. Far Eastern Broadcasting (1941)]

6. Commercial Speech Commercial speech is unprotected speech. Commercial Advertising in the U.S. has been accorded First Amendment protection but it not in the same level of protection given to political speech. One case set down the requirements for protection of commercial speech: (1) speech must not be false, misleading or proposing an illegal activity; (2) government interest sought to be served by regulation must be substantial; (3) the regulation must advance government interest; and (4) the regulation must not be overbroad. [BERNAS]

7. Private v. Government Speech Parliamentary immunity guarantees the members the freedom of expression without fear of being made responsible in criminal or civil actions before courts or forum outside of Congress. But this does not protect them from responsibility from the legislative body. The members may nevertheless be questioned in Congress itself. For unparliamentary conduct, members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. [Osmeña v. Pendatun (1960)]

8. Heckler’s Veto An attempt to limit unpopular speech. For example, an unpopular group wants to hold a rally and asks for a permit. The government isn't allowed to refuse the permit based upon the beliefs of the applicants. But the government can deny the permit, reasoning that it isn't because the government disapproves of the group's message, it's just afraid that so many people will be outraged that there might be violent protests. Under the Free Speech Clause of Sec. 4 Art III, the government may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which isn't easy to prove.

H. Freedom of Religion 1. Non-Establishment Clause 2. Free Exercise Clause

Art. III, Sec. 5. No law shall be made respecting an establishment of religion; or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

1. Non-Establishment Clause Concept The clause prohibits excessive government entanglement with, endorsement or disapproval of religion [Victoriano v. Elizalde Rope Workers Union (1974); Lynch v. Donnelly, 465 US 668 (1984) O'Connor, J., concurring); Allegheny County v. Greater Pittsburg ACLU (1989)]

Basis Rooted in the separation of Church and State [Sec. 2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]

Acts NOT permitted by Non-establishment Clause (1) Prayer and Bible-reading in public schools [Engel v. Vitale (1967); Abington School District v. Schemp (1963)] (2) Financial subsidy for parochial [Lemon vs. Kurtzman (1971)]

schools

(3) Religious displays in public spaces: Display of granite monument of 10 commandments in front of a courthouse is unconstitutional for being unmistakably non-secular. Nothing in its setting de-emphasizes its religious nature. It engenders in viewers a sense that Christianity is endorsed by the government. [Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. 2003)] (4) Mandatory religious subjects or prohibition of secular subjects (evolution) in schools [Epperson vs. Arkansas (1968)] (5) Mandatory bible reading in school (a form of preference for belief over non-belief) [School District vs. Schempp (1963)] (6) Word ―God‖ in the Pledge of Allegiance: Mandatory recitation in school of such a Pledge of Allegiance would tend to discriminate against students who are atheists. [Newdow vs. US (2003)]

Acts Permitted by the Establishment Clause (1) Tax exemption Sec. 28 (3), Art. 6. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and

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CONSTITUTIONAL LAW 2 exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (2) Operation of sectarian schools Sec. 4(2), Art. 14. Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens… (3) Religious instruction in public schools Sec. 3(3), Art. 14. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. Civil Code, Art. 359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: (1) Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian. xxx (4) Public aid to religion Sec. 29 (2), Art. 6. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (5) Postage stamps depicting Philippines as the site of a significant religious event Postage stamps which promote a Catholic event are constitutional. The benefit to religious sect is incidental to promotion of Philippines as a tourist destination. [Aglipay vs. Ruiz, (64 Phil. 201)] (6) Government sponsorship of town fiestas. Traditions which used to be purely religious but have now acquired secular character are permissible [Garces vs. Estenzo (1981)] (7) Book lending program for students in parochial schools. The benefit redounds to students and parents and not to any particular sect. [Board of Education vs. Allen, 392 U.S. 236] (8) Display of crèche in a secular setting

Crèche is displayed in a secular manner, and merely depicts the origins of the holiday. The Constitution mandates accommodation and not merely tolerance. Instead of an absolutist approach, court inquires if the law or conduct has a secular purpose. [Lynch vs. Donnely (1984)] (9) Financial support for secular academic facilities WON a law that grants financial support for expansion of educational facilities in parochial schools is constitutional. HELD: Yes, secular purpose – facilities to be used for secular activities. The facilities built here were a library and a science center. [Tilton vs. Richardson (403 U.S. 672)] (10) Exemption from zoning requirements to accommodate unique architectural features of religious buildings WON zoning law giving exemption to religious sect (Mormons building a tall pointed steeple) is constitutional. HELD: Yes, court may not determine whether architectural features are necessary for a particular religion, e.g. steeple pointing upwards into heaven for Mormons. [Martin vs. Corporation of the Presiding Bishop (434 Mass. 141)]

Test Lemon Test (1) Statute must have a secular legislative purpose. (2) Primary effect must be one that neither advances nor inhibits religion. (3) Must not foster excessive entanglement between government and religion. [Lemon vs. Kurtzman, (403 U.S. 602)]

2. Free Exercise Clause Dual Aspect (1) Freedom to believe - absolute (2) Freedom to act on one‘s belief – subject to regulation

Laws Justified under Free Exercise Clause (1) Exemption from flag salute Conscientious Objectors cannot be compelled to salute the flag on pain of being dismissed from one's job or of being expelled from school. [Ebralinag vs. Division Superintendent of Schools of Cebu (1993)] (2) Freedom to propagate religious doctrines The power to tax the exercise of the privilege is the power to control or suppress its enjoyment. Those who can tax the exercise of religious practice can make its exercise so costly as to

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CONSTITUTIONAL LAW 2 deprive it of the resources necessary for its maintenance. [American Bible Society vs. City of Manila (1957)] (3) Exemption from union shop Neither does the law constitute an establishment of religion. It has been held that in order to withstand objections based on this ground, the statute must have a secular purpose and that purpose must not directly advance or diminish the interest of any religion. Congress acted merely to relieve persons of the burden imposed by union security agreements. The free exercise of religious profession or belief is superior to contract rights. [Victoriano vs. Elizalde Rope Workers Union (1974)] (4) Non-disqualification from local government office For lack of votes, law disqualifying religious leaders from public office is held valid. As per free exercise clause, it is invalid for it requires a religious test for qualification. [Pamil vs. Teleron (1978)] Dean Pangalangan: There should be no distinction between ordinary believer and the Pope; if the former can hold office, why not the latter.

I. Liberty of Abode and Freedom of Movement 1. Limitations 2. Return to One’s Country Sec. 6, Art. III: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.

make them live together and the noble intention of the Government of organizing them politically will come to naught. Furthermore, their relocation (and the imposition that they are not allowed to emigrate to some other places under penalty of imprisonment) is a proper restraint to their liberty, they being taught and guided in Tigbao to improve their living conditions, and improve their education. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. [Rubi vs. Provincial Board (1919)] The executive of a municipality does not have the right to force citizens of the Philippine Islands to change their domicile from one locality to another. Law defines power, and there is no law nor regulation that allows a mayor or a police chief to restrain the liberty of abode of citizens of the Philippines. [Villavicencio vs. Lukban (1919)]

1. Limitations Right to Travel RIGHT NOT ABSOLUTE: The Constitutional Right to Travel under Sec. 5, Art. IV of the 1973 Constitution is not an absolute right, and can only be impaired upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. Releasing the petitioner on bail and that as a condition, he make himself available at all times is a valid restriction on his right to travel. To allow him to travel, especially abroad will make the order of the court nugatory as the court's jurisdiction cannot extend beyond the Philippines. [Manotok vs. CA (1986)]

2. Return to One’s Country

The right of the individual is necessarily subject to reasonable restraint by general law for the common good. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power.

The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. The President has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. One of her duties is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and, subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. [Marcos vs. Manglapus (1989)]

None of the rights of the citizen can be taken away except by due process of law.

J. Right to Information

"Liberty" as understood in democracies, is not license; it is "Liberty regulated by law."

The government's measure in relocating the Manguianes, a nomadic people with a wayfaring life and without permanent individual property is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provided for, you cannot

1. 2. 3. 4.

Limitations Publication of Laws and Regulations Access to Court Records Right to Information Relative to…

Art. II Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

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CONSTITUTIONAL LAW 2 Art. III Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Art. XVI Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

Scope Right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Otherwise, the people can never exercise the right if no contract is consummated, or if one is consummated, it may be too late for the public to expose its defects. However, if the right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. [Chavez v. PEA and Amari, G.R. No. 133250, July 9, 2002]

1. Limitations The right does not extend to matters recognized as privileged information rooted in separation of powers, nor to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused. [Chavez v. PEA and Amari, supra] Media practitioners requested information from the GM of GSIS regarding clean loans granted to certain members of the defunct Batasang Pambansa on the guaranty of Imelda Marcos shortly before the Feb 1986 elections. Request was refused on the ground of confidentiality. The right to information is not absolute. It is limited to matters of public concern and is subject to such limitations as may be provided by law. That the GSIS was exercising a proprietary function would not justify its exclusion of the transactions from the coverage of the right to info. But although citizens have such right and, pursuant thereto, are entitled to ―access to official records,‖ the Constitution does not accord them the right to compel custodians of official records to prepare lists, summaries and the like in their desire to get info on matters of public concern. [Valmonte vs. Belmonte (1989)]

POLITICAL LAW REVIEWER While the Constitution guarantees access to information on matters of public concern, access is subject to reasonable regulation for the convenience of and for order in the office that has custody of the documents. [Baldoza vs Dimaano (1976)] While the public officers in custody or in control of public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying.‖ [Lantaco vs Llamas (1981)]

2. Publication of Laws and Regulations We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, x x x. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. [Tañada vs Tuvera (1986)]

3. Access to Court Records Canon II Confidentiality Code of Conduct for Court Personnel (AM No. 03-06-13-SC) SECTION 1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them while employed in the judiciary, whether such information came from authorized or unauthorized sources.

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CONSTITUTIONAL LAW 2 Confidential information means information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any justice or judge relating to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers. The notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or order shall remain confidential even after the decision, resolution or order is made public. Decisions are matters of public concern and interest. Pleadings and other documents filed by parties to a case need not be matters of public concern or interest. They are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interest. Access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. [Hilado, et al vs Judge (2006)]

4. Right to Information Relative to Government Contract Negotiations The constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government, and should not cover recognized exceptions. [Chavez v. Philippine Estate Authority (2002)] The limitations recognized to the right of information are: (1) National security matter including state secrets regarding military and diplomatic matters, inter-government exchanges prior to the conclusion of treaties and executive agreements. (2) Trade secrets and banking transactions (3) Criminal Matters (4) Other confidential matters. [Neri vs Senate (2008) citing Chavez vs President Commission on Good Government]

Diplomatic Negotiations Diplomatic negotiations have a privileged character. [Akbayan vs Aquino cited in Neri vs Senate (2008)]

Court Hearings When the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its

POLITICAL LAW REVIEWER proceedings in ensuring a fair and impartial trial race against another, jurisprudence tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind unbridled by running emotions or passions. [Re: Request for Live Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases against former President Joseph Ejercito Estrada, Secretary of Justice Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-03-SC, June 29, 2001]

K. Right to Association 1. Labor Unionism 2. Communist and Similar Organizations 3. Integrated Bar of the Philippines Sec. 8, Art. III. The right of the people, including those employed in the public and private sectors, to form unions, association, or societies for purposes not contrary to law shall not be abridged. Sec 2(5), Art. IX-B. The right to self-organization shall not be denied to government employees. Sec. 3, Art. XIII. x x x. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. The limitation "for purposes not contrary to law" should be interpreted as another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies. [Gonzales vs COMELEC (1969)] Note: The right is recognized as belonging to people whether employed or unemployed, and whether

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CONSTITUTIONAL LAW 2 employed in the government or in the private sector. It also recognizes that the right to form associations includes the right to unionize It should be noted that the provision guarantees the right to associations. It does not include the right to compel others to form an association. But there may be situations in which, by entering into a contract, one may also be agreeing to join an association. [BERNAS] If a land buyer who buys a lot with an annotated lien that the lot owner becomes an automatic member of a homeowners‘ association thereby voluntarily joins the association. [Bel-Air Village Association vs Diokno (1989)]

1. Labor Unionism The right to form associations does not necessarily include the right to be given legal personality. However, if the law itself should make possession of legal personality a pre-condition for effective associational action, involved would be not just the right to have legal personality but also the right to be an association. [Philippine Association of Free Labor Unions vs Secretary of Labor (1969)] The right of association of managerial employees is denied because of Article 245 of the Labor Code which provides that managerial employees are not eligible to join, assist or form any labor organization. This is because Art III Sec 8 is subject to the condition that its exercise is for the purposes not contrary to law. [United Pepsi-Cola Supervisory Union (UPSU) vs Laguesma (1998)]

2. Communist and Similar Organizations This is a question of the constitutionality of the AntiSubversion Act which declares the Communist Party of the Philippines (CPP) and similar organizations ―illegal and outlawed.‖ Although the Supreme Court upheld the validity of the statute, ―we cannot overemphasize the need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of freedom of expression and belief.‖ The basic guidelines for prosecution under the Act, are the following elements for the crime to be established: (1) In case of subversive organizations other than the CPP, (a) that the purpose of the organization is to overthrow the present Government of the Philippines and to establish in this country a totalitarian regime under the domination of a foreign power; (b) that the accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and (2) In the case of the CPP, (a) that the CPP continues to pursue the objectives which led Congress in 1957 to declare it to be an

organized conspiracy for the overthrow of the Government by illegal means for the purpose of placing the country under the control of a foreign power; (b) that the accused joined the CPP; (c) that he did so willfully, knowingly and by overt acts. [People vs Ferrer (1972)]

3. Integrated Bar of the Philippines Compulsory membership of a lawyer in the integrated bar of the Philippines does not violate the constitutional guarantee. [In Re: Edillon, 84 SCRA 554]

L. Eminent Domain 1. Concept 2. Expansive Concept of ―Public Use‖ 3. Just Compensation 4. Abandonment of Intended Use and Right of Repurchase 5. Miscellaneous Application

1. Concept It is the right of the government to take private property with just compensation. The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not, by implication, grant the power to the government of the state, but limit a power which would otherwise be without limit. (citations omitted) [Visayan Refining Co. vs. Camus, G.R. No. L-15870, December 3, 1919] Generally (1) Taking of Private Property (2) for Public Use, (3) with Just Compensation, and (4) Due Process. Specifically (LGUs, Sec. 19, Local Government Code) (1) Ordinance by a local legislature council is enacted authorizing local chief executive to exercise eminent domain, (2) For public use, purpose or welfare or for the benefit of the poor and of the landless, (3) Payment of just compensation, (4) Valid and definite offer has been previously made to owner of the property sought to be expropriated but such offer was not accepted [Municipality of Parañaque vs. VM Realty (1998)] Jurisdiction over a complaint for eminent domain is with the Regional Trial Court. While the value of the property to be expropriated is estimated in monetary terms – for the court is duty bound to determine the amount of just compensation to be

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CONSTITUTIONAL LAW 2 paid for the property – it is merely incidental to the expropriation suit [Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor, G.R. No. 138869, June 20, 2000; Bardillion v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003] The issuance of a writ of possession becomes ministerial upon the (1) filing of a complaint for expropriation sufficient in form and substance, and (2) upon deposit made by the government of the amount equivalent to 15% of the fair market value of the property sought to be expropriated per current tax declaration. [Biglang-Awa v. Judge Bacalla, G.R. Nos. 139927-139936, November 22, 2000; Bardillon v. Barangay Masili of Calamba, Laguna, Laguna, G.R. No. 146886, April 30, 2003] Scope and Limitations All Private Property capable of ownership may be expropriated, except money and choses in action. Even services may be subject to eminent domain. [Republic v. PLDT, 26 SCRA 620] The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. Hence, strict construction will be made against the agency exercising the power. [Jesus is Lord Christian School Foundation v. Municipality of Pasig, G.R. No. 152230, August 9, 2005] Necessity The foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of public character. Government may not capriciously or arbitrarily choose which private property should be expropriated. [Lagcao v. Judge Labra, G.R. No. 155746, October 13, 2004] When the power is exercised by the legislature, the question of necessity is generally a political question. [Municipality of Meycauyan, Bulacan v. Intermediate Appellate Court, 157 SCRA 640] The RTC has the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity for it. [Bardillon v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003] Private Property Private property already devoted to public use cannot be expropriated by a delegate of legislature acting under a general grant of authority. [City of Manila v. Chinese Community, 40 Phil 349] Taking The exercise of the power of eminent does not always result in the taking or appropriation of title to the expropriated property; it may only result in the imposition of a burden upon the owner of the condemned property, without loss of title or possession. [National Power Corporation v. Gutierrez, 193 SCRA 1] Requisites for a valid taking:

POLITICAL LAW REVIEWER (1) The expropriator must enter a private property (2) Entry must be for more than a momentary period (3) Entry must be under warrant or color of legal authority (4) Property must be devoted to public use or otherwise informally appropriated or injuriously affected Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. [Republic v. Castelvi, 58 SCRA 336] Due Process The defendant must be given an opportunity to be heard. In the case of Belen v. Court of Appeals, the Supreme Court declared two Presidential Decrees unconstitutional for violating due process because they did not provide for any form of hearing or procedure by which the propriety of the expropriation or the reasonableness of the compensation. ―Taking‖ via eminent domain vs. ―taking‖ under social justice clause Agrarian Reform (Art. XIII, Sec. 4): This provision is an exercise of the police power of the State through eminent domain (Association of Small Landowners vs. Secretary of Agrarian Reform) as it is a means to regulate private property. The Comprehensive Agrarian Reform Law prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the constitution. But in carrying out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also taking under the power of eminent domain. The taking contemplated is not a mere limitation on the use of the land, but the surrender of the title to and physical possession of the excess and all beneficial rights accruing to the owner in favor of the beneficiary. [Sta. Rosa Realty & Development Corp. v. Court of Appeals, G.R. No. 112526, October 12, 2001]

2. Expansive Concept of ―Public Use‖ Definition The idea that "public use" means "use by the public" has been discarded. At present, whatever may be beneficially employed for the general welfare satisfies the requirement of public use. [Heirs of Juancho Ardona vs. Reyes, 123 SCRA 220] That only a few benefit from the expropriation does not diminish its public-use character, inasmuch as pubic use now includes the broader notion of indirect public benefit or advantage [Filstream International vs. CA, 284 SCRA 716] ―Public use‖ is the general concept of meeting public need or public exigency. It is not confined to actual use by the public in its traditional sense. The

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CONSTITUTIONAL LAW 2 idea that ―public use‖ is strictly limited to clear cases of ―use by the public‖ has been abandoned. The term ―public use‖ has now been held to be synonymous with ―public interest‖, ―public benefit‘, ―public welfare‖ and ―public convenience‘. [Reyes v. National Housing Authority, G.R. No. 147511, January 20, 2003] The practical reality that greater benefit may be derived by Iglesia ni Cristo members than most others could well be true, but such peculiar advantage still remains merely incidental and secondary in nature. That only few would benefit from the expropriation of the property does not necessarily diminish the essence and character of public use [Manosca v. Court of Appeals, 252 SCRA 412]

3. Just Compensation Definition It is the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. Full and fair equivalent of the property taken; it is the fair market value of the property. It is settled that the market value of the property is ―that the sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given and received therefor‖ [Province of Tayabas vs. Perez (1938)]

Determination BASIS: Fair Market Value Price fixed by a buyer desirous but not compelled to buy and a seller willing but not compelled to sell. Must include consequential damages (damages to other interest of the owner attributable to the expropriation) and deduct consequential benefits (increase of value of other interests attributable to new use of the former property). CHOICE OF PROPERTY TO BE EXPROPRIATED IS SUBJECT TO JUDICIAL REVIEW AS TO REASONABLENESS: Under Section 2, Article IV of the Philippine Constitution, the Republic of the Philippines can take private property upon payment of just compensation. However, private property to be taken cannot be chosen arbitrarily and capriciously, as the landowner is entitled to due process. The Department of Public Highways originally established the extension in Cuneta Avenue, and it is assumed that they made extensive studies regarding it. The change from Cuneta Avenue to Fernando Rein-Del Pan Streets cannot be justified on the ground of social impact, as the properties to be affected along Cuneta Avenue are mostly motels. [De Knecht vs. Bautista (1980)] The Presidential Decrees merely serve as a guide or a factor for the courts in determining amount of just compensation (which should be the fair and full

POLITICAL LAW REVIEWER value of the property at time of taking). The courts have the power and authority to determine just compensation, independent of what the decrees state, and thus may appoint commissioners to help in determining just compensation. [EPZA vs. Dulay, 148 SCRA 305] While commissioners are to be appointed by the court for the determination of just compensation, the latter is not bound by the commissioners‘ findings. [Republic v. Santos, 141 SCRA 30; Republic (MECS) v. IAC, 185 SCRA 572] The court may substitute its own estimate of the value of the property only for valid reasons: (a) the commissioners have applied illegal principles to the evidence submitted to them; (b) they have disregarded a clear preponderance of evidence; or (c) where the amount allowed is either grossly inadequate or excessive. [National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007] Non-payment of just compensation in an expropriation proceeding does not entitle the private landowners to recover possession of the expropriated lots, but only to demand payment of the fair market value of the property. [Republic of the Philippines v. Court of Appeals, G.R. No. 146587, July 2, 2002; Reyes v. National Housing Authority, G.R. No. 147511, Janaury 29, 2003] The Republic was ordered to pay just compensation twice: first, in the expropriation and then, in the action for recovery of possession but it never did. 57 years have lapsed since the expropriation case was terminated but the Republic never paid the owners. The court construed the failure to pay as a deliberate refusal on the part of the Republic. When the government fails to pay just compensation within five years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. [Republic of the Philippines v. Vicente Lim, G.R. No. 161656, June 29, 2005]

Effect of Delay Just compensation means not only the correct amount to be paid to the owner of the land but also payment within a reasonable time from its taking [Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001] The filing of the case generally coincides with the taking. When the filing of the case coincides with the taking, and the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. Otherwise the owner would gain undeserved profit. But if the value increased independently of what the expropriator did, then the value is that of the later filing of the case. Also, between the time payment is due and the actual payment, legal interest (6%) accrues. [NAPOCOR v. CA (1996)]

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POLITICAL LAW REVIEWER use" is strictly limited to clear cases of "use by the public" has been discarded.

4. Abandonment of Intended Use and Right of Repurchase If the expropriator (government) does not use the property for a public purpose, the property reverts to the owner in fee simple. [Heirs of Moreno vs. Mactan-Cebu International Airport (2005)]

5. Miscellaneous Application What the due process clause requires is that the landowner must be given reasonable opportunity to be heard and to present his claim or defense. Although due process does not always necessarily demand that a proceeding be had before a court of law, it still mandates some form of proceeding wherein notice and reasonable opportunity to be heard are given to the owner to protect his property rights. Although there are exceptional situations when in the exercise of the power of eminent domain, the requirement does not need judicial process, when it is alleged that the landowner‘s right to due process of law has been violated in the taking of his property, the courts can probe and check on the alleged violation. [Manotok vs. NHA (1987)] The performance of the administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the Sovereign or other Chief Executive. Where the Legislature has expressly conferred the authority to maintain expropriation proceedings upon the Chief Executive, the right of the latter to proceed therein is clear. Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent. (citations omitted) [Visayan Refining Co. vs. Camus, G.R. No. L-15870, December 3, 1919] The particular mention in the Constitution of agrarian reform and the transfer of utilities and other private enterprises to public ownership merely underscores the magnitude of the problems sought to be remedied by these programs. They do not preclude nor limit the exercise of the power of eminent domain for such purposes like tourism and other development programs. There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control or irrigation systems is valid. However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public

Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using public streets and highways do not diminish in the least bit the public character of expropriations for roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies, and other private concerns. [Heirs of Ardona vs. Reyes, G.R. Nos. L-60549, 60553 to 60555, October 26, 1983) Art. III, Sec. 9. Private property shall not be taken for public use without just compensation. Art. XII, Sec. 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the government. Art. XIII, Sec. 4 The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary landsharing. Art. XIII, Sec. 9 The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Art XIV, Sec. 13. The National assembly may authorize, upon payment of just compensation, the

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CONSTITUTIONAL LAW 2 expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens.

M. Contracts Clause 1. Application of the Contracts Clause 2. Contemporary Application of the Contracts Clause 3. Limitations Art. III Section 10 (1987 Constitution): No law impairing the obligation of contracts shall be passed.

1. Application

of the Contract Clause

Impairment is anything that diminishes the efficacy of the contract. There is substantial impairment when the law changes the terms of a legal contact between the parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms. [Clements v. Nolting, 42 Phil. 702]

2. Contemporary Application of the Contract Clause As to Tax: GENERAL RULE: Power of taxation may not be used to violate the constitutional right of every person to be secured against any statute that impairs the obligation of contracts. EXCEPTION: But if the statute exempts a party from any one class of taxes, the imposition of a different tax is not an impairment of the obligation of contracts. A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those already in existence. Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of the police power. [Ortigas & Co. v. CA, G.R. No. 126102, December 4, 2000] New regulations on loans making redemption of property sold on foreclosure more strict are not allowed to apply retroactively. [Co v. Philippine National Bank (1982)] Limitations on the use of land imposed by a contract to yield to a reasonable exercise of police power are affirmed. Thus, zoning regulations are superior to contractual restrictions on the use of property. [Presley v. Bel-Air Village Association (1991)] A separation pa law can be given retroactive effect to apply to existing contracts. [Abella v. National Labor Regulations Commission (1987)]

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The charter of a bank, even if a contract, is no obstacle to liquidation done under police power. [Philippine Veterans Bank Employees Union v. Philippine Veterans Bank (1990)] Contracts also yield to the requirements of the freedom of religion. [Victoriano v. Elizalde Rope Workers (1974)] Timber licenses, permits, and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. They may be validly amended, modified, replaced, or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause. [Oposa v. Factoran (1993)] A rehabilitation plan approved by statute which merely suspends the actions for claims does not violate the contract clause. [GSIS v. Kapisanan (2006)] The SEC‘s approval of the Rehabilitation Plan did not impair BPI‘s right to contract. The impairment clause is a limit on the exercise of legislative power and not of judicial or quasi-judicial power. The SEC…was acting as a quasi-judicial body, and its order approving the plan cannot constitute an impairment of the right and the freedom to contract. Besides, the mere fact that the Rehabilitation Plan proposes a dacion en pago approach does not render it defective on the ground of impairment of the right to contract. The undertaking really partakes in a sense of the nature of sale. As such, the essential elements of a contract of sale must be present. Being a form of contract, the dacion en pago agreement cannot be perfected without the consent of the parties involved. [China Banking Corporation v. ADB Holdings (2008)] The amount of rental is an essential condition of any lease contract. The change of its rate in the Rehabilitation Plan is not justified as it impairs the stipulation between the parties. [Leca Realty v. Manuela Corporation (2007)] The non-impairment clause is a limit on legislative power, and not of judicial or quasi-judicial power. The approval of the Rehabilitation Plan by the Securities and Exchange Commission is an exercise of adjudicatory power by an administrative agency and thus the non-impairment clause does not apply. Neither does it impair the power to contract. [BPI v. SEC (2007)] Laws prohibiting premature campaigning are intended to level the playing field for candidates to public office, to equalize the situation between popular or rich candidates, on one hand, and lesserknown or poorer candidates, on the other, by preventing undue advantage in exposure and publicity on account of their resources and

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CONSTITUTIONAL LAW 2 popularity. Such laws might affect advertising contracts, the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. [Chavez v. COMELEC (2004)] The Court has imposed 2 essential requisites in order that RA 7641 (Retirement Law) may be given retroactive effect. First, the claimant for retirement benefits must still be in the employ of the employer at the time the statute took effect. Second, the claimant must have complied with the requirements for eligibility for such retirement benefits under the statute. [Universal Robina Sugar v. Cabaleda (2008)]

3. Limitations It is ingrained in jurisprudence that the constitutional prohibition does not prohibit every change in existing laws. To fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. Moreover, the law must effect a change in the rights of the parties with reference to each other, and not with respect to non-parties. [Philippine Rural Electric Cooperatives Association v. Secretary, DILG, G.R. No. 143076, June 10, 2003]

N. Legal Assistance and Free Access to Courts Sec. 11 Art. III: Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Rules of Court Rule 141 Sec. 18: SEC. 18. Indigent litigants exempt from payment of legal fees.—Indigent litigants (a) whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorably to the indigent litigant, unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, nor they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit. Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to strike out the pleading of that party, without

prejudice to whatever criminal liability may have been incurred. Rules of Court Rule 3 Sec. 21: Indigent party.—A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If the payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose. Those protected include low paid employees, domestic servants and laborers. [Cabangis v. Almeda Lopez (1940)] The difference between ‗paupers‘ and ‗indigent‘ persons is that the latter are ―persons who have no property or sources of income sufficient for their support aside from their own labor though selfsupporting when able to work and in employment.‖ [Acar v. Rosal (1067)] The new rule applies even to litigation pending at the time of its enactment. The retroactive application of the new rule has been found to be more in keeping with Section 11 of Article III. The previous rule, denied the right to litigate as paupers in appellate courts. [Martinez v. People (2000)] Note: The significance of having an explicit ―free access‖ provisions in the Constitution may be gathered from the rocky road which ―free access‖ seems to have traveled in American jurisprudence. The American constitution does not have an explicit free access provision and, hence, its free access doctrine has been developed as implicit from both the equal protection clause and the due process clause. [BERNAS]

O. Rights of Suspects 1. Availability 2. Requisites 3. Waiver

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CONSTITUTIONAL LAW 2 ART. III, SEC. 12, 1987 CONSTITUTION 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. 3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 4. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

The SC reversed the lower court‘s imposition of death penalty because ―the accused was not even informed at the start of the investigation of his right to counsel, much less afforded the service of counsel notwithstanding his insistence.‖ He was given the unacceptable excuse that there were no available lawyers.

In Miranda vs. Arizona: The Federal Supreme Court made it clear that what is prohibited is the "incommunicado interrogation of individuals in a police dominated atmosphere, resulting in selfincriminating statements without full warnings of constitutional rights.‖

RA 7438, Rights of Persons under Custodial Investigation;

MIRANDA RIGHTS: The person under custodial investigation must be warned that— (1) He has a right to remain silent, (2) That any statement he makes may be used as evidence against him, and (3) That he has a right to the presence of an attorney, either retained or appointed.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –

The long question during the appraisal of Galit‘s constitutional rights followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. In this case, the accused is from Samar and there is no showing that he understands Tagalog. Furthermore, waiver of the right to counsel must be done in the presence of counsel, otherwise, the procured statements will be inadmissible. [People vs. Galit (1985)] ―Inasmuch as the prosecution in this case failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence.‖ Accused repudiated his alleged oral confession during trial. Since, the SC found that the procedure set out in the Miranda case was not followed, oral confession of accused to police station commander is inadmissible in evidence. (enshrined in Art. III, Sec. 12 of the 1987 Constitution) [People vs. Duero (1985)]

As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. [People vs. Andag (1980)] NOTE: These rights were further reiterated under RA 7438, otherwise known as AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense: (1) shall inform the latter, in a language known to and understood by him, (2) of his rights to remain silent and (3) to have competent and independent counsel, preferably of his own choice, (4) who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. (5) If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

1. Availability   

When the person is already in custody Custodial investigation involves any questioning initiated by law enforcement During ―critical pre-trial stages‖ in the criminal process

The rights under Sec. 12, Art. 3 are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect, as when the suspect has been taken into police custody and the police carries out a process of interrogation that lends itself to

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CONSTITUTIONAL LAW 2 eliciting incriminating statements. [People vs. Mara (1994)]

communication which results in the subject/accused understanding what is conveyed.

An out-of-court identification may be made in a ―show up‖ (accused is brought face to face with the witness for identification), or ―police line-up‖ (suspect is identified by witness from a group of persons gathered for that purpose). [People vs. Escordial (2002)]

a. Right to Remain Silent

Neither the lineup itself nor anything required therein violated respondent's Fifth Amendment privilege against self-incrimination, since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment. HOWEVER, the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. [U.S. vs. Wade, 388 U.S. 218 (1967)] During custodial investigations, these types of identification have been recognized as “critical confrontations of the accused by the prosecution, necessitating presence of counsel for the accused. Otherwise, the identification will be inadmissible in evidence. Note: INVITATIONS - Sec. 2, RA 7438 provides that custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed. Ordinarily, an invitation to attend a hearing and answer some questions which the person invited may heed or refuse is not unconstitutional. Under certain circumstances, however, such an invitation can easily assume a different appearance. Here, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken not as a strictly voluntary invitation but as an authoritative command which one can only defy at his peril, especially where the invitation carries the ominous seaming that "failure to appear . . . shall be considered as a waiver…and this Committee will be constrained to proceed in accordance with law." [Babst vs. NBI (1984)]

2. Requisites People vs. Agustin (1995): This carries the correlative obligation on the part of the investigator to explain, and contemplates effective

 The warning is needed simply to make the person under custodial investigation aware of the existence of the right;  This warning is the threshold requirement for an intelligent decision as to its exercise.  More importantly, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere.  Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.

b. Right against Self-Incrimination Art. III, Sec. 12

under

 The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.  This warning is needed in order to make him aware not only of the privilege to remain silent, but also of the consequences of forgoing it.

c. Right to Counsel RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel; otherwise the waiver shall be null and void and of no effect.  The Miranda doctrine was modified to qualify the right to counsel to mean competent and independent counsel preferably of the suspect's own choice.  An individual need not make a preinterrogation request for a lawyer.  While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver.  No effective waiver of the right to counsel during interrogation can be recognized unless specifically made AFTER the warnings have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel.  If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.  In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an

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CONSTITUTIONAL LAW 2 attorney, but also that if he is indigent a lawyer will be appointed to represent him. The right to counsel does not mean that the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is engaged by anyone acting on behalf of the person under investigation, or appointed by the court upon petition by said person or by someone on his behalf. [People v. Espiritu, G.R. No. 128287, February 2, 1999] POLICE LINE-UPS When petitioner was identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel.

POLITICAL LAW REVIEWER

Rule on Waiver SEC. 12, ART. III: (1) Must be in writing (2) Made in the presence of counsel RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

Burden of Proving Voluntariness of Waiver

Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer. [Escobedo vs. Illinois of the United States Federal Supreme Court (1964)]

Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver.

However, given the clear constitutional intent in the 1987 Constitution, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel. [Gamboa vs. Cruz (1988)]

Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused: (1) Willingly and voluntarily submitted his confession and (2) Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession.

d. Rights to Visitation and Conference

P. Rights of the Accused

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with: (1) any member of his immediate family, or (2) any medical doctor; (3) priest or religious minister chosen by him; or (4) by his counsel; or (5) by any national non-governmental organization duly accredited by the Commission on Human Rights or (6) by any international non-governmental organization duly accredited by the Office of the President. (7) The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

3. Waiver What Cannot be Waived (1) The right to remain silent and the right to counsel may be waived. (2) What CANNOT be waived is THE RIGHT TO BE GIVEN THE MIRANDA WARNINGS.

(People vs. Jara, 1986)

1. Criminal Due Process 2. Bail 3. Presumption of Innocence 4. Right to be Heard 5. Assistance of Counsel 6. Right to be Informed 7. Right to Speedy, Impartial and Public Trial 8. Right to Confrontation 9. Compulsory Process 10. Trials in Absentia SEC. 14, ART. III, 1987 CONSTITUTION. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. ROC. RULE 115. RIGHTS OF ACCUSED

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CONSTITUTIONAL LAW 2 Section 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law.

1. Criminal Due Process Requisites [People vs. Vera (1937)] (1) Accused is heard by a court of competent jurisdiction;

(2) Accused is proceeded against under the orderly process of law; (3) Accused is given notice and opportunity to be heard; (4) Judgment rendered is within the authority of a constitutional law. (Mejia vs. Pamaran, 1988)

2. Bail Sec. 13, Art. III. All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Definition [Sec. 1, Rule 114, ROC] Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as may be required. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. [Dela Camara vs. Enage (1971)] The military men who participated in the failed coup d‘ etat should be denied release on bail. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable, given that the officers and members of the military are not similarly situated with others. They are allowed a fiduciary use of firearms and can easily continue their insurgent activities against the government. National security considerations should impress upon the Court that release on bail of respondents constitutes a damaging precedent. [Comendador vs. De Villa (1991)] It has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. Senator

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CONSTITUTIONAL LAW 2 Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. ―Since the evidence in this case is hearsay, the evidence of guilt is not strong, bail is allowed.‖ [Enrile vs. Perez (En Banc Resolution, 2001)]

Bail as a Matter of Right vs. Matter of Discretion Matter of right Bail is a matter of right in all cases not punishable by reclusion perpetua.

Matter of Discretion 1. In case the evidence of guilt is strong. In such a case, according to People vs. San Diego (1966), the court's discretion to grant bail must be exercised in the light of a summary of the evidence presented by the prosecution. Thus, the order granting or refusing bail must contain a summary of the evidence for the prosecution followed by the conclusion on whether or not the evidence of guilt is strong (Note: it is not the existence of guilt itself which is concluded but the strength of the probability that guilt exists). 2. In extradition proceedings. Extradition courts do not render judgments of conviction or acquittal so it does not matter WON the crimes the accused is being extradited for is punishable by reclusion perpetua [US Gov’t. vs. Judge Puruganan and Mark Jimenez (2002)]

When Available General rule: From the very moment of arrest (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgment (which means after appeal).

POLITICAL LAW REVIEWER No charge need be filed formally before one can file for bail, so long as one is under arrest. [Heras Teehankee vs. Rovica (1945)] Arraignment of the accused is not essential to the approval of the bail bond. When bail is authorized, it should be granted before arraignment. Otherwise the accused may be precluded from filing a motion to quash. Also, the court will be assured of the presence of the accused at the arraignment precisely by grating bail and ordering his presence at any stage of the proceeding. [Lavides vs CA (2000)] Exceptions: (1) When charged with an offense punishable by reclusion perpetua. (2) Traditionally, the right to bail is not available to the military, as an exception to the bill of rights. [People v. Reyes, 212 SCRA 402]

Standards for Fixing Bail RULE 114. Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. The constitution prohibits ―excessive bail.‖ Where the lower court fixed bail at P 1, 195, 200.00, it rendered the right to bail nugatory. "Discretion is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. [Dela Camara v. Enage (1971)] STANDARDS FOR FIXING BAIL: Guidelines in the fixing of bail are: (1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is

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under bond for appearance at trial in other cases." [Villaseñor vs. Abano (1967)]

These rights cannot be waived except in writing and in the presence of counsel.

Right to Bail and Right to Travel Abroad

It means the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. It is an efficient and truly decisive legal assistance, and not simply a perfunctory representation. [People v. Bermas, G.R. No. 120420, April 21, 1999]

The main issue in this case is WON a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. The Court held that the ―constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. The Court considered the order of the TC releasing petitioner on bail as a lawful order contemplated by the above-quoted constitutional provision. [Manotok vs CA (1986)]

3. Presumption of Innocence The requirement of proof beyond reasonable doubt is a necessary corollary of the constitutional right to be presumed innocent. [People vs. Dramavo (1971)] The accused cannot present evidence before the prosecution does so, even if the accused pleads guilty. It violates the presumption of innocence. [Alejandro vs. Pepito (1980)] The presumption of regularity (in official duties) cannot by itself prevail over the presumption of innocence of the accused. But where it is not the sole basis for conviction, the presumption of regularity of performance of official functions may prevail over the constitutional presumption of innocence. [People vs. Acuram (2000)] EQUIPOISE RULE: Where the evidence adduced by the parties is evenly balanced, the constitutional presumption of innocence should tilt the balance in favor of the accused. [Corpuz vs. People (1991)] In order that circumstantial evidence may warrant conviction, the following requisites must concur: (1) There is more than one circumstance (2) The facts from which the inferences are derived are proven (3) The combination of all the circumstances is such as to produce conviction beyond reasonable doubt. [People v. Bato, G.R. No. 113804, January 16, 1998]

4. Right to be Heard SEC. 12, ART. III. 1987 CONSTITUTION. 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.

5. Assistance of Counsel RA 7438. Rights of Persons under Custodial Investigation. SEC. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel; Elements of the Right to Counsel (1) Court‘s duty to inform the accused of right to counsel before being arraigned; (2) It must ask him if he desires the services of counsel; (3) If he does, and is unable to get one, the Court must give him one; if the accused wishes to procure private counsel, the Court must give him time to obtain one. (4) Where no lawyer is available, the Court may appoint any person resident of the province and of good repute for probity and ability.

6. Right to be Informed Procedural due process requires that the accused must be informed why he is being prosecuted and what charge he must meet. [Vera vs. People, supra]

7. Right to Speedy, Impartial and Public Trial ART. III. SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. ART. III. SEC. 3. Civilian authority is, at all times, supreme over the military. xxx Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution – No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2), Article III, of the 1987 Constitution. IMPARTIAL TRIAL: A civilian cannot be tried by a military court so long as the civil courts are open and operating, even during Martial Law. [Olaguer vs. Military Commission (1987)]

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CONSTITUTIONAL LAW 2 Dismissal based on the denial of the right to speedy trial amounts to an acquittal. [Acevedo vs. Sarmiento (1970)] Note: RA 8493 provides: a 30-day arraignment within the filing of the information or from the date the accused appeared before the court; trial shall commence 30 days from the arraignment, as fixed by the court. The entire trial period shall not exceed 180 days, except as otherwise authorized by the SC Chief Justice. The right to a speedy trial is violated only when the proceeding is attended by vexatious, capricious and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. [dela Rosa v. Court of Appeals, 253 SCRA 499; Tai Lim v. Court of Appeals, G.R. No. 131483, October 26, 1999] The different interests of the defendant which the right to speedy trail are designed to protect are: (1) To prevent oppressive pre-trail incarceration, (2) To minimize anxiety and concern of the accused, (3) To limit the possibility that the defense will be impaired. But the right to speedy trail cannot be invoked where to sustain the same would result in a clear denial of due process to the prosecution. In essence, the right to a speedy trial does not preclude the people‘s equally important right to public justice. [Uy v. Hon. Adriano, G.r. No. 159098, October 27, 2006] RA 8493 is a means of enforcing the right of the accused to a speedy trial. The spirit of the law is that the accused must go on record in the attitude of demanding a trial or resisting delay. If he does not do this, he must be held, in law, to have waived the privilege. [Uy v. Hon. Adriano, G.R. No. 159098, October 27, 2006]

8. Right of Confrontation This is the basis of the right to cross-examination. Testimony of a witness who has not submitted himself to cross examination is not admissible in evidence. The affidavits of witnesses who are not presented during the trial, hence not subjected to cross examination, are inadmissible because they are hearsay. [People v. Quidate, G.R. No. 117401, October 1, 1998; Cariago v. Court of Appeals, G.R. No. 143561, June 6, 2001]

9. Compulsory Process (1) Right to Secure Attendance of Witness (2) Right to Production of Other Evidence

POLITICAL LAW REVIEWER Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition. [Caamic v. Galapon, 237 SCRA 390] Before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present: (1) The books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy), and (2) Such books must be reasonably described by the parties to be readily identified (test of definiteness). [Roco v. Contreras, G.R. No. 158275, June 28, 2005]

10. Trials In Absentia WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused failed to appear for trial despite postponement and notice to his bondsmen. The Court then allowed prosecution to present evidence despite the fact that accused had not been arraigned. Petitioner was found guilty. The issue is WON the court has jurisdiction. The Court held that because accused was not arraigned, he was not informed of the nature and cause of accusation against him, Therefore, the Court has no jurisdiction. The indispensable requisite for trial in absentia is that it should come after arraignment. [Borja vs. Mendoza (1977)] After arraignment, during which accused pleaded not guilty, case was set for hearing but the accused escaped. He was tried in absentia. Lower court held the proceedings against him in abeyance to give him the opportunity to cross examine witnesses against him and present his evidence. The Court held that abeyance of proceedings was invalid. Such right to cross examine and present evidence on his behalf is waived by failure to appear during the trial of which he had notice. [Gimenez vs. Nazareno (1988)] When Presence of the Accused is a DUTY (1) Arraignment and Plea (2) During Trial, for identification (3) Promulgation of Sentence (Exception: Light offense -> can be via counsel) Petitioner challenges the jurisdiction of military commissions to try him (for murder, illegal possession of firearms and for violation of the AntiSubversion Act) arguing that he being a civilian, such trial during martial law deprives him of his right to due process. An issue has been raised as to WON petitioner could waive his right to be present during trial. On a 7-5 voting: SEVEN justices voted that petitioner may waive his right to be present at ALL stages of the proceedings while FIVE voted that this waiver is

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CONSTITUTIONAL LAW 2 qualified, he cannot waive when he is to be identified. Trial in Absentia: As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. Considering Art IV, Sec 19, 1973 Constitution (trial of a capital offense may proceed even in the absence of the accused) and the absence of any law specifically requiring his presence at all stages of his trial, there appears, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right was conferred upon him for his protection and benefit. [Aquino vs. Military Commission (1975)]

Q. Writ of Habeas Corpus Habeas Corpus SEC. 15. ART. III. 1987 CONSTITUTION The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. SEC. 18. ART. VII. 1987 CONSTITUTION The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twentyfour hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

POLITICAL LAW REVIEWER The Supreme Court may: 1) review, 2) in an appropriate proceeding; 3) filed by any citizen, 4) the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and 5) must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. The true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. [Villavicencio vs. Lukban (1919)] Petitioners were arrested without warrants and detained, upon the authority of Proclamation 889 (Which suspended the privilege of the Writ of Habeas Corpus) and subsequently filed a petition for writ of habeas corpus, assailing the validity of the said Proclamation and their detention. The Court upheld the violation of the Proclamation and dismissed the petitions. The Supreme Court held that the authority to suspend the privilege of the writ is circumscribed, confined and restricted, not

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CONSTITUTIONAL LAW 2 only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. Thus, the Court has the authority to inquire into the existence of the factual bases for the proclamation in order to determine its constitutional sufficiency. The test for such judicial inquiry is whether or not the Executive acted arbitrarily in issuing the Proclamation. The test is not correctness, but arbitrariness. For the suspension of the privilege of the writ to be valid, (a) there must be "invasion, insurrection or rebellion" or, pursuant to paragraph (2), section 10 of Art. VII of the Constitution, "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No. 889, as amended, that both conditions are present, and the Supreme Court agreed. The President did not act arbitrarily; the Court acknowledged the existence of a sizeable group of men (Communists and the NPA) who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. [Lansang vs. Garcia (1971)] It is not physical restraint alone which can be inquired into by means of the writ of habeas corpus. In this case, the petition is valid as petitioner‘s temporary release from detention is accompanied with restrictions w/ the ff effects: 1) curtailed freedom of movement by the condition that he must get approval of respondents for any travel outside Metro Manila, 2) abridged liberty of abode because prior approval of respondent is required in case petitioner wants to change place of residence, 3) abridged freedom of speech due to prohibition from taking any interviews inimical to national security, and 4) petitioner is required to report regularly to respondents or their reps. [Moncupa vs. Enrile (1986)] It being undeniable that if the Hernandez ruling were to be given retroactive effect, petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? YES. Cruz vs. Director of Prisons (1910): "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess. The rule is that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release.‖ [Gumabon vs. Director of Prisons (1971)]

POLITICAL LAW REVIEWER

Sombong claims that she is the mother of the child Christina, who is under the custody of Neri, and filed a petition for the issuance of the writ of habeas corpus. The Supreme Court denied the petition. In order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. However, habeas corpus may still be resorted to even if the restraint is voluntary in cases where the rightful custody of any person is withheld from the person entitled thereto. The said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the child is in the custody of a third person of her own free will. Sombong does not have the right of custody over the child, because the evidence adduced does not warrant the conclusion that Christina is the same person as her child Arabella. [Sombong vs. CA (1990)] Larkins was arrested after a certain Alinea filed a complaint-affidavit for rape against him before the NBI. There was no warrant. A complaint for rape was subsequently filed before the RTC. His common-law wife filed a petition for habeas corpus. The Supreme Court held that even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. The court must thus look into the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events are: (1) The issuance of a judicial process preventing the discharge of the detained person. (2) Another is the filing of a complaint or information for the offense for which the accused is detained. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted an offense in the Philippines." It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. [Velasco vs. CA (1995)]

R. Writ of Amparo Definition The petition for a writ of amparo is a remedy available to any person whose right to life, liberty

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CONSTITUTIONAL LAW 2 and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. [Sec. 1, The Rule on the Writ of Amparo] Basis The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, xxx. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. xxx [Sec. 5, Art. VIII, 1987 Consti]

Petition for Writ Form The petition shall be signed and verified. [Sec. 5] Contents The petition shall allege the following: (a) The personal circumstances of the petitioner (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission (f) The relief prayed for. The petition may include a general prayer for other just and equitable reliefs. [Sec. 5] Where to file The petition may be filed on any day and at any time [Sec. 3] Filing RTC of the place where the threat, act or omission was committed or any of its elements occurred Sandiganbayan or any of its

Enforceability

Returnable Before the issuing court or judge

Anywhere in the Philippines (1) Before the issuing court or

justices Court of Appeals or any of its justices

SC or any of its justices

any justice thereof, OR (2) Any RTC of the place where the threat, act or omission was committed or any of its elements occurred (1) Before the issuing court or any justice thereof (2) Before the Sandiganbayan or CA or any of their justices, OR (3) Any RTC of the place where the threat, act or omission was committed or any of its elements occurred

Docket fees The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. [Sec. 4] Return Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: (a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission (b) The steps or actions taken by the respondent to determine the date or whereabouts of the aggrieved party and the person/s responsible for the threat, act or omission (c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party (d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (i) To verify the identity of the aggrieved party (ii) To recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person/s responsible

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CONSTITUTIONAL LAW 2 (iii) To identify witnesses and obtain statements from them concerning the death or disappearance (iv) To determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance (v) To identify and apprehend the person/s involved in the death or disappearance (vi) To bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. [Sec. 9] Hearing The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. [Sec. 13] Burden of proof The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. [Sec. 17] The Manalo brothers were abducted, detained, and tortured repeatedly by the military. After their escape, they filed a petition for the privilege of the Writ of Amparo. The Supreme Court granted the petition and held that there was a continuing violation of the Manalos‘ right to security. Considering that they only escaped from captivity and have implicated military officers, there is still a threat to their lives, liberty, and security. The threat vitiates their free will and they are forced to limit their movements and activities. The government also failed to provide them protection because the military themselves perpetrated the abduction, detention, and torture. The government also failed to provide an effective investigation.

As regards the relief granted, the Court held that the production order under the Amparo rule is different from a search warrant and may be likened to the production of documents or things under Rule27.1, ROC. They also said that the disclosure of the present places of assignment of the implicated military officers would not jeopardize the exercise of the military functions of the officers. Such disclosure is relevant in ensuring the safety of the Manalo brothers. [Secretary of National Defense vs. Manalo (2008)]

S. Self-Incrimination Clause 1. Scope and Coverage 2. Application 3. Immunity Statutes

1. Scope and Coverage Sec. 17, Art. 3. No person shall be compelled to be a witness against himself. Only applies to compulsory testimonial, and doesn‘t apply to material objects [Villaflor vs. Summers (1920)] It refers therefore to the use of the mental process and the communicative faculties, and not to a merely physical activity. If the act is physical or mechanical, the accused can be compelled to allow or perform the act, and the result can be used in evidence against him. Examples (1) Handwriting in connection with a prosecution for falsification is NOT allowed, for this involves the use of the mental processes [Beltran vs. Samson, 53 Phil 570; Bermudez vs. Castillo (1937)] (2) Re-enactment of the crime by the accused is NOT allowed, for this also involves the mental process. (3) The accused can be required to allow a sample of a substance taken from his body [U.S. vs. Tan The (1912)], or be ordered to expel the morphine from his mouth [U.S. vs. Ong Sio Hong (1917)] (4) Accused may be made to take off her garments and shoes and be photographed [People vs. Otadura, 96 Phil 244, 1950]; compelled to show her body for physical investigation to see if she is pregnant by an adulterous relation [Villaflor vs. Summers (1920)] (5) Order to give a footprint sample to see if it matches the ones found in the scene of the crime is allowed [People vs. Salas and People vs. Sara]

Foreign Laws

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CONSTITUTIONAL LAW 2 The privilege which exists as to private papers, cannot be maintained in relation to ―records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. [Shapiro v. US (1948)] In recent cases, the US Supreme Court has struck down certain registration requirements that presented real and appreciable risk of selfincrimination. These involved statues directed at inherently suspect groups in areas permeated by criminal statutes, a circumstance which laid the subjects open to real risk of self-incrimination. [BERNAS] The great majority of persons who file income tax returns do not incriminate themselves by disclosing their occupation. The requirement that such returns be completed and filed simply does not involve the compulsion to incriminate considered in Mackey. [US v. Sullivan (1927)]

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

Use and Fruit of Immunity ―Use immunity‖ prohibits use of a witness‘ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, ―transactional immunity‖ grants immunity to witness from prosecution for an offense to which his compelled testimony relates. [Galman vs. Pamaran (1985)]

T. Involuntary Servitude and Political Prisoners

2. Application

SEC. 18, ART. III. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

GENERAL RULE: The privilege is available in any proceedings, even outside the court, for they may eventually lead to a criminal prosecution.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

It extends to administrative proceedings which possess a criminal or penal aspect. A doctor who was being investigated by a medical board for alleged malpractice who would lose his license if found guilty, could not be compelled to take the witness stand without his consent. [Pascual vs. Board of Medical Examiners (1969)]

Involuntary Servitude

It extends to a fact-finding investigation by an ad hoc body. A person can be compelled to testify provided he is given immunity co-extensive with the privilege against self-incrimination [Galman vs. Pamaran (1985)]

The term of broadest scope is possibly involuntary servitude. It has ben applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. [Bailey v. Alabama (1910) in Rubi v. Provincial Board of Mindoro (1919)]

Effect of Denial of Privilege EXCLUSIONARY RULE under SEC. 17, ART. III in relation to SEC. 12: When the privilege against selfincrimination is violated outside of court (e.g. police), then the testimony, as already noted, is not admissible. OUSTED OF JURISDICTION: When the privilege is violated by the Court itself, that is, by the judge, the court is ousted of its jurisdiction, all its proceedings, and even judgment are null and void. [Chavez vs. CA (1968)]

3. Immunity Statutes Transactional Immunity ART. XIII. SEC. 18. 1987 CONSTITUTION. The Commission on Human Rights shall have the following powers and functions: xxx

Slavery and involuntary servitude, together with their corollary peonage, all denote ―a condition of enforced, compulsory service of one to another.‖ [Hodges v. US (1906) in Rubi v. Provincial Board of Mindoro (1919)]

A private person who contracts obligations of this sort toward the Army cannot, by law that we know of, either civil or military be compelled to fulfill them by imprisonment and deportation from his place of residence, we deem it wholly improper to sustain such means of compulsion which are not justified either by law or by the contract. [In Re Brooks (1901)] While the constitutional prohibition operated to nullify agreements violative of it, suppletory legislation was required to give the prohibition penal effect. [US v. Cabanag (1907)] Domestic services are always to be remunerated, and no agreement may subsist in law in which it is stipulated that any domestic service shall be absolutely gratuitous, unless it be admitted that slavery may be established in this country through a covenant entered into between interested parties. [de los Reyes v. Alojado (1910)]

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CONSTITUTIONAL LAW 2 A former court stenographer may be compelled under pain of contempt to transcribe stenographic notes he had failed to attend to while in service. x x x such compulsion is not the condition of enforced compulsory service referred to by the Constitution. Fernando, J. concurring opinion: The matter could become tricky should a stenographer stubbornly refuse to obey and the court insist on keeping him in jail. The detention could then become punitive and give rise to the issue of involuntary servitude. [Aclaracion v. Gatmaitan (1975)]

Political Prisoners Although they may also be considered as military prisoners as indicated in the second "Whereas", are in fact civil prisoners, accused of offenses of political character, not amenable to military justice but to the ordinary administration of justice in civil courts. If the petitioners are political prisoners subject to the civil jurisdiction of ordinary courts of justice if they are to be prosecuted at all, the army has no jurisdiction, nor power, nor authority, from all legal standpoints, to continue holding them in restraint. They are entitled, as a matter of fundamental right, to be immediately released, any allegation as to whether the war was ended or not. [Raquiza v. Bradford (1945)] Sec. 19 of CA No. 682 authorizes that the political prisoners in question "may be released on bail, even prior to the presentation of the corresponding information," and this may be done "existing provisions of law to the contrary notwithstanding." We must assume that the discretion granted must be construed in the sense that the same may be exercised in cases wherein it was not heretofore granted by law. And it is reasonable to assume that the discretion granted is to the effect that the People's Court may exercise jurisdiction to order the release on bail of political prisoners "even prior to the presentation of the corresponding information." [Duran v. Abad Santos (1945)] Petitioner has also contended that his arrest was partly motivated by political reasons, and has endeavored to show that, due to his oratorical ability, he became very popular and contributed "to the bad licking" of political opponents in Davao. Petitioner also called our attention to the fact that of the thousands of other prisoners who were released by the Japanese by pardon or otherwise, no one except him has been re-arrested. Thus, Camasura was released from confinement. [Camasura v. Provost Marshal (1947)]

U. Excessive Fines and Cruel and Inhuman Punishments

POLITICAL LAW REVIEWER

SEC. 19. ART. III. 1987 CONSTITUTION 1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. 2. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. In this case the Court took into account, in lowering the penalty to reclusion perpetua of the accused most of whom were already death row convicts, the deplorable sub-human conditions of the National Penitentiary where the crime was committed. [People vs. dela Cruz (1953)] RA 9346 (June 24, 2006): An Act Prohibiting the Imposition of Death Penalty in the Philippines: Sec. 1. The imposition of the penalty of death is hereby prohibited. Accordingly, R.A. No. 8177, otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. R.A. No. 7659, otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly. The import of the grant of power to Congress to restore the death penalty requires: (1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly motivated by ―compelling reasons involving heinous crimes.‖ For a death penalty bill to be valid, a positive manifestation in the form of higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty [is not required in Sec. 19 (1)]. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. [People v. Echegaray (1997)] The Golez resolution, signed by 113 congressman as of January 11, 1999 (House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659, which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary

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CONSTITUTIONAL LAW 2 and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law.") House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. [Echegaray v. Secretary (1998)] To be prohibited by this provision the punishment must not only be unusual but it must also be cruel. There is no reason why unusual punishments which were not cruel should have been prohibited. If that had been done it would have been impossible to change the punishments that existed when the Constitution was adopted. A law which changes a penalty so as to make it less severe would be unconstitutional if the new penalty were an unusual one. Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. The constitutional limit must be reckoned on the basis of the nature and mode of punishment measured in terms of physical pain. [Legarda v. Valdez (1902)] ―Cruel and unusual‖ as found in the Constitution, do not have the same meaning as ―clearly excessive‖ found in Article 5 of the Penal Code. It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. ―The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.‖ x x x the punishment must be ―flagrantly and plainly oppressive,‖ ―wholly disproportionate to the nature of the offense as to shock the moral sense of the community [for it to be banned].‖ [People v. Estoista (1953)] Sec 19 (2) as worded, already embodies constitutional authorization for the Commission on Human Rights to take action in accordance with Art XIII Sec 18. There is a command addressed to Congressed to pass whatever civil or penal legislation might be required for the subject. [BERNAS]

V. Non-Imprisonment for Debts ART. III. SEC. 20. 1987 CONSTITUTION No person shall be imprisoned for debt or nonpayment of a poll tax. Santos refused to pay 16 pesos for Ramirez‘s cedula as payment for what Santos owed Ramirez. Thus, Ramirez was convicted and imprisoned for estafa. Upon demand for release, the Court held that the imprisonment was correct since it was for estafa and

not involuntary servitude or imprisonment for debt. [Ramirez v. de Orozco (1916)] The obligation incurred by the debtor, as shown by the receipt, was yp [ay an ordinary contractual obligation. Since the guardianship proceeding was civil in nature, the Court did not allow enforcement of the civil obligation by an order of imprisonment. [In re Tamboco (1917)] No person may be imprisoned for debt in virtue of a civil proceeding. [Makapagal v. Santamaria (1930)] A person may be imprisoned as a penalty for a crime arising from a contractual debt and imposed in a proper criminal proceeding. Thus, the conversion of a criminal fine into a prison term does not violate the provision because in such a case, imprisonment is imposed for a monetary obligation arising from a crime. [Ajeno v, Judge Insero (1976)]

W. Double Jeopardy 1. Requisites 2. Motions for Reconsideration and Appeals 3. Dismissal with Consent of Accused SEC. 21. ART. III. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Termination of Jeopardy (1) By acquittal (2) By final conviction (3) By dismissal without express consent of accused (4) By ―dismissal‖ on the merits

1. Requisites (1) Court of competent jurisdiction; (2) A Complaint/Information sufficient in form and substance to sustain a conviction; (3) Arraignment and plea by the accused; (4) Conviction, acquittal, or dismissal of the case without the express consent, of the accused. [Rule 117, Sec. 7; People vs. Obsania (1968)] When Subsequent Prosecution is Barred (1) Same offense (2) Attempt of the same offense (3) Frustration of the same offense (4) Offense necessarily included in the 1st offense (All the elements of the 2nd constitute some of the elements of the 1st offense) (5) Offense that necessarily includes the 1st offense (All the elements of the 1st constitute some of the elements of the 2nd offense) Exceptions (1) The graver offense developed due to "supervening facts" arising from the same

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CONSTITUTIONAL LAW 2 act or omission constituting the former charged. (2) The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information. (3) The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party. When Defense of Double Jeopardy is Available (1) Dismissal based on insufficiency of evidence; (2) Dismissal because of denial of right to speedy trial; (3) Accused is discharged to be a state witness.

2. Motions for Reconsideration and Appeals The accused cannot be prosecuted a second time for the same offense and the prosecution cannot appeal a judgment of acquittal. [Kepner v. US (1904)] Provided, that the judge considered the evidence, even if the appreciation of the evidence leading to the acquittal is erroneous, an appeal or motion for reconsideration by the prosecution will not be allowed. [People v. Judge Velasco (2000)] No error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed. [People v. Ang Cho (1945) citing State v. Rook] A mere verbal dismissal is not final until written and signed by the judge. [Rivera, Jr. v. People (1990)] When an accused appeals his conviction, he waives his right to the plea of double jeopardy. If the accused had been prosecuted for a higher offense but was convicted for a lower offense, he has technically been acquitted of the higher offense. His appeal would give the Court the right to impose a penalty higher than that of the original conviction imposed on him. [Trono v. US (1905)] Double jeopardy provides three related protections: (1) Against a second prosecution for the same offense after conviction; (2) Against a second prosecution for the same offense after conviction; and (3) Against multiple punishments for the same offense. [People v. Dela Torre, G.R. No. 1379-58, March 11, 2002]

3. Dismissal with Consent of Accused RULE 117. Sec. 8, par 1. Provisional dismissal.—A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

POLITICAL LAW REVIEWER When the case is dismissed other than on the merits, upon motion of the accused personally, or through counsel, such dismissal is regarded as ―with express consent of the accused‖, who is therefore deemed to have waived the right to plea double jeopardy.

X. Ex Post Facto and Bills of Attainder SEC. 22. ART. III. 1987 CONSTITUTION No ex post facto law or bill of attainder shall be enacted. RA 1700 which declared the Communist Party of the Philippines a clear and present danger to Philippine security, and thus prohibited membership in such organization, was contended to be a bill of attainder. Although the law mentions the CPP in particular, its purpose is not to define a crime but only to lay a basis or to justify the legislative determination that membership in such organization is a crime because of the clear and present danger to national security. [People vs. Ferrer (1972)]

Ex Post Facto Laws—Defined (1) Makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action. (2) Aggravates a crime or makes it greater than when it was committed. (3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed. (4) Alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. (Mekin v. Wolfe, 1903) (5) Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful. (6) Deprives a person accused of a crime of some lawful protection of a former conviction or acquittal, or a proclamation of amnesty. [In re Kay Villegas Kami (1970)] The prohibition applies only to criminal legislation which affects the substantial rights of the accused. [Phil. National Bank v. Ruperto (1960)] It applies to criminal procedural law prejudicial to the accused. [US v. Gomez (1908)] It is improper to apply the prohibition to an executive proclamation suspending the privilege of

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CONSTITUTIONAL LAW 2 the writ of habeas corpus. [Montenegro v. Castañeda (1952)]

Bills of Attainder—Defined A bill of attainder is a legislative act which inflicts punishment without judicial trial. If the punishment be less than death, the act is termed a bill of pains

and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. [Cummings v. Missouri (1867)] It is a general safeguard against legislative exercise of the judicial function, or trial by legislature. [US v. Brown (1965)]

Annex A QUERY What is the writ of habeas data?

What rule governs petitions for and the issuance of a writ of habeas data? What is the Supreme Court‘s basis in issuing the Rule? When does the Rule take effect? Who may file a petition for the issuance of a writ of habeas data?

Where can the petition be filed?

How much is the docket or filing fees for the petition? Instead of having the hearing in open court, can it be done in chambers?

HABEAS DATA Remedy Available to any person Whose right to life, liberty, and security has been violated or is threatened with violation By an unlawful act or omission of a public official or employee, or of a private individual or entity Engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights.       

(Constitution, Art. VIII, Sec. 5[5]). The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general circulation.  The aggrieved party.  However, in cases of extralegal killings and enforced disappearances, the petition may be filed by Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. Regional Trial Court  where the petitioner or respondent resides,  or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. Supreme Court; Court of Appeals; Sandiganbayan: when the action concerns public data files of government offices. No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition. Yes. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character

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UP L AW BAR REVIEWER

2012

POLITICAL

Law on Public Officers BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble • Moises Ronette Colobong Contributors| Alferri Bayalan • Cielo Gono • Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

POLITICAL LAW REVIEWER

LAW ON PUBLIC OFFICERS

Law on Public Officers Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

POLITICAL LAW A. General Principles B. Modes of Acquiring Title to Public Office C. Modes and Kinds of Appointment D. Eligibility and Qualification Requirements E. Disabilities and Inhibitions of Public Officers F. Powers and Duties of Public Officers G. Rights of Public Officers H. Liabilities of Public Officers I. Immunity of Public Officers J. De Facto Officers K. Termination of Official Relation L. The Civil Service M. Accountability of Public Officers N. Term Limits

A. General Principles I. Concept and Application II. Public Officer III. Classification of Public Officers and Public Officers

I. Concept and Application 1. Definition The term "public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. [Fernandez v. Sto. Tomas (1995)] Breakdown of the definition:  (nature) right, authority and duty  (origin) created and conferred by law  (duration) by which for a given period – either: 1) fixed by law or 2) enduring at the pleasure of the appointing power  an individual is invested with some portion of the sovereign functions of the government  (purpose) to be exercised by him for the benefit of the public.

2. Purpose  to effect the end for the government‘s institution : common good;  NOT profit, honor, or private interest of any person, family or class of persons [63 Am Jur 2d 667]

3. Nature Philippine Constitution, Art. XI Sec. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to

the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. Public office is a responsibility, not a right. [Morfe v. Mutuc (1968)]

4. Elements i.

Created by law or by authority of law  Public office must be created by: o Constitution o National Legislation o Municipal or other body‘s legislation, via authority conferred by the Legislature  The first element defines the mode of creation of a public office while the other elements illustrate its characteristics.

ii. Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public There are certain GOCCs which, though created by law, are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature), and thus may not be considered as a Public Office. iii. Powers conferred and duties imposed must be defined, directly or impliedly iv. Duties must be performed independently and without the control of a superior power other than the law, UNLESS for duties of an inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body 

Defined as unhindered performance.

v.

Must have permanence and continuity



Note: The elements of permanence and continuity are dispensable. On the dispensability of the element of permanence: an example is the public office of the Board of Canvassers, yet its duties are only for a limited period of time. On the dispensability of the element of continuance: Mechem in one case states that the ―the most important characteristic‖ in characterizing a position as a public office is the DELEGATION to the individual of some of the sovereign functions of government. o Here, the court held that Laurel, as chair of the National Centennial Commission (NCC), is a public officer. The public office of NCC was delegated and is performing executive functions: it enforces the conservation and promotion of the nation‘s historical and cultural heritage. o Such delegated function is a policy embodied in the Constitution. It is inconsequential





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POLITICAL LAW REVIEWER

LAW ON PUBLIC OFFICERS that Laurel was not compensated during his tenure. A salary is a usual (but not necessary) criterion for determining the nature of a position. Also, the element of continuance is not indispensable. [Laurel v. Desierto (2002)]  as in the case of Ad Hoc Bodies or commissions

5. Public Office v. Public Employment  



Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. Public employment as a position lacks either one or more of the foregoing elements of a public office. (Bernard v. Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9])1 o created by contract rather than by force of law the most important characteristic which distinguishes an office from an employment is that: o the creation and conferring of an office involves a delegation to the individual of ome of the sovereign functions of government, to be exercised by him for the benefit of the public, and o that the same portion of the sovereignty of the country, either legislative, executive or judicial, attached, for the time being, to be exercised for the public benefit.

Unless the powers so conferred are of this nature, the individual is not a public officer. [Laurel v. Desierto (2002)]

6. Public Office v. Public Contract How Created Object

Subject Matter

Scope

1

Public Office Incident of sovereignty. Sovereignty is omnipresent. To carry out the sovereign as well as governmental functions affecting even persons not bound by the contract. A public office embraces the idea of tenure, duration, continuity, and the duties connected therewith are generally continuing and permanent. Duties that are generally continuing and permanent.

Public Contract Originates from will of contracting parties. Obligations imposed only upon the persons who entered into the contract. Limited duration and specific in its object. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. Duties are very specific to the contract.

ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE

Where duties are defined

The law

Contract

7. No vested right to public office. GENERAL RULE: A public office, being a mere privilege given by the State, does not vest any right in the holder of the office. This rule applies when the law is clear. EXCEPTION: When the law is vague, the person‘s holding of the office is protected and he should not be easily deprived of his office. 

A public office is neither property nor a public contract. Yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear. [Segovia v. Noel (1925)]

8. Public Office is not Property. A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution.  It is a public trust/agency. Due process is violated only if an office is considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office. [Cornejo v. Gabriel (1920)]  It is personal. Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. [Abeja v. Tañada (1994)] Exceptions:  In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office  In an action for recovery of compensation accruing by virtue of the public office

9. Creation of Public Office Modes of Creation of Public Office  by the Constitution  by statute / law  by a tribunal or body to which the power to create the office has been delegated How Public Office is Created  GENERAL RULE: The creation of a public office is PRIMARILY a Legislative Function.  EXCEPTIONS: o where the offices are created by the Constitution;

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LAW ON PUBLIC OFFICERS o where the Legislature validly delegates such power. Legislature should Validly Delegate the Power to Create a Public Office  Or else, the office is inexistent. The President‘s authority to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. [UST v. Board of Tax Appeals (1953)] Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts." [Art. VIII sec. 2, 1987 Constitution]



Except when the public official is constrained to accept because the non-acceptance of the new appointment would affect public interest. (no abandonment) [Zandueta v. De La Costa (1938)]

12. Estoppel in Denying Existence of Office A person is estopped from denying that he has occupied a public office when he has acted as a public officer; more so when he has received public monies by virtue of such office. [Mendenilla v. Onandia (1962)]

II. Public Officer 1.

Definition  (What he is) He performs governmental public functions / duties which involve the exercise of discretion ( not clerical or manual)

But note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. [Art. VI, sec. 30, 1987 Constitution]

 (How he became Public Officer) by virtue of direct provision of law, popular election, or appointment by competent authority.

10. Methods of Organizing Public Offices

 (Who ARE Public Officers)

Method Singlehead

Composition one head assisted by subordinates

Board System

collegial body for formulating polices and implementing programs

11. Modification Office

and

Efficiency Swifter decision and action but may sometimes be hastily made Mature studies and deliberations but may be slow in responding to issues and problems

Abolition

of

Public

GENERAL RULE The power to create an office includes the power to modify or abolish it (i.e. Legislature generally has this power) EXCEPTIONS  Where the Constitution prohibits such modification / abolition;  Where the Constitution gives the people the power to modify or abolish the office [i.e. Recall]  Abolishing an office also abolishes unexpired term. The legislature‘s abolition of an office (i.e. court) also abolishes the unexpired term. The legislative power to create a court carries with it the power to abolish it. [Ocampo v. Sec. of Justice (1955)] Is Abandonment equivalent to Abolition? When a public official voluntarily accepts an appointment to an office newly created by law -- which new office is incompatible with the former -- he will be considered to have abandoned his former office.

Administrative Code, Sec. 2. (14) The term ―officer‖ includes any government employee, agent, or body authorized to exercise governmental power in performing particular acts or functions Revised Penal Code Art 203. Who are public officers—for the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official of any rank or class, shall be deemed to be a public officer Persons in authority and their agents (Art. 152, RPC)  A PERSON IN AUTHORITY is any person, either an individual or a member of a governmental body, who is directly vested with jurisdiction. o The barrio captains and barangay chairpersons are included. o For RPC Articles 148 [Direct Assaults] and 151 [Resistance and Disobedience], teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities are included.  An AGENT of a person in authority is charged with the maintenance of public order and the protection and security of life and property.

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LAW ON PUBLIC OFFICERS o They become such either by direct provision of law, by election or by a competent authority‘s appointment. o Examples are barrio captain, barrio councilman, barrio policeman, barangay leader, and any person who comes to the aid of persons in authority.

officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a DELEGATION of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. [Villegas v. Subido (1971)]

Temporary performer of public functions A person performing public functions – even temporarily – is a public official. Here, a laborer temporarily in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203.

III. Classification of Public Offices and Public Officers

According to the Court, the law is comprehensive: ―who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class [Maniego v. People (1951)]

Department of government to which their functions pertain

Money order-sorter and –filer. A person sorting and filing money orders in the Auditor's Office of the Bureau of Posts is obviously doing a public function or duty. Such person here was convicted for infidelity in the custody of documents. [People v. Paloma (1997)] Who are NOT Public Officers  Special policemen salaried by a private entity and patrolling only the premises of such private entity [Manila Terminal Co. v. CIR (1952)]  Concession forest guards [Martha Lumber Mill v. Lagradante (1956)]  Company cashier of a private corporation owned by the government [Tanchoco v. GSIS (1962)]

Creation Public Body Served

Nature of functions Exercise of Judgment or Discretion Legality of Title to office Compensation

B. Modes of Acquiring Title to Public Office Modes of Commencing Official Relation 1. 2. 3.

Election Appointment Others: a. Succession by operation of law; b. Direct provision of law, e.g. ex-officio officers

2. A Person Cannot be Compelled to Accept a Public Office.

1. Election

EXCEPTIONS  When citizens are required, under conditions provided by law, to render personal military or civil service (see Sec. 4, Art. II, 1987 Const.);  When a person who, having been elected by popular election to a public office, refuses without legal motive to be sworn in or to discharge the duties of said office. This is a felony.  Art 234, RPC: Refusal to discharge elective office- the penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.

2. Appointment

3. Public Officer’s Power is Delegated (not Presumed) A public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its

Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary

Selection or designation by popular vote

(a) Definition Designation Definition Imposition of additional duties upon existing office Extent of Powers Security of tenure? Is prior/1st office abandoned when… 

Limited

Appointment Appointing authority selects an individual who will occupy a certain public office Comprehensive

No.

Yes.

…a 2nd designated position is assumed? NO

…a 2nd appointive position is assumed? Usually YES

Political. Appointment is generally a political question so long as the appointee fulfills the

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LAW ON PUBLIC OFFICERS minimum qualification requirements prescribed by law. 

 (No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY; o an ―acting‖ appointment is a temporary appointment and revocable in character. [Marohombsar v. Alonto (1991)] o A temporary appointee is like a designated officer – they:  occupy a position in an acting capacity and  do not enjoy security of tenure. [Sevilla v. CA (1992)] o Even a Career Service Officer unqualified for the position is deemed temporarily-appointed. Thus he does not enjoy security of tenure – he is terminable at will. o A public officer who later accepts a temporary appointment terminates his relationship with his former office. [Romualdez III v. CSC (1991)] o EXCEPT Fixed-Period Temporary Appointments: may be revoked ONLY at the period‘s expiration. Revocation before expiration must be for a valid cause.  (Duration) until a permanent appointment is issued.

Vacancy for Validity. For the appointment to be valid, the position must be vacant [Castin v. Quimbo (1983)] (b) Nature of Power to Appoint The power to appoint is intrinsically an executive act involving the exercise of discretion. [Concepcion v. Paredes (1921)]





Must be unhindered and unlimited by Congress. Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, EXCEPT those: o requiring the concurrence of the Commission on Appointments; and o resulting from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. [Manalang v. Quitoriano (1954)]



The President‘s power to appoint under the Constitution should necessarily have a reasonable measure of freedom, latitude, or discretion in choosing appointees. [Cuyegkeng v. Cruz (1960)]



Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature of appointment itself. [Flores v. Drilon (1993)]

II. Steps in Appointment Process For Appointments requiring confirmation  Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts. 

C. Modes and Kinds of Appointment I. Classification of Appointments II. Steps in Appointment Process III. Presidential Appointees IV. Discretion of Appointing Official V. Effectivity of Appointment VI. Effects of a Complete, Final and Irrevocable Appointment

For Appointments Not Requiring Confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts.

I. Classification of Appointments 1)

2)



Permanent:  The permanent appointee: o must be qualified o must be eligible o is constitutionally guaranteed security of tenure  (Duration) until lawful termination.  Note: Conditional appointments are not permanent. Temporary:  an acting appointment;  the temporary appointee qualified or eligible;

NEED

NOT

Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.

be

Note: If a person is appointed to the career service of the Civil Service, the Civil Service Commission must bestow attestation.

III. Presidential Appointees Who can be nominated and appointed only WITH the Commission on Appointments’ consent? (Art. VII, Sec. 16, 1987 Const.)  Heads of the executive departments;  Ambassadors;  Other public ministers and consuls;  Officers of the armed forces from the rank of colonel or naval captain;

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LAW ON PUBLIC OFFICERS 

the Constitutional prohibition on temporary or acting appointments of COMELEC Commissioners.

Other officers whose appointments are vested in him by the Constitution, including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).

Who can the President appoint WITHOUT CA’s approval?  All other officers of the government whose appointments are not otherwise provided for by law;  Those whom he may be authorized by law to appoint;  Members of the Supreme Court;  Judges of lower courts;  Ombudsman and his deputies Kinds of Presidential Appointments  Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments, and continues until the end of the term.  Ad interim: made while Congress is not in session, before confirmation by the Commission on Appointments; immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. This is a permanent appointment and it being subject to confirmation does not alter its permanent character. o Efficient. Recess appointment power keeps in continuous operation the business of government when Congress is not in session. The individual chosen may thus qualify and perform his function without loss of time. o Duration. The appointment shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. o Permanent. It takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. [Matibay v. Benipayo (2002)] o Not Acting. An ad interim appointment is distinguishable from an ―acting‖ appointment which is merely temporary, good until another permanent appointment is issued. o Applicable to COMELEC Commissionsers, being permanent appointments, do not violate

o By-passed Appointee may be Reappointed. Commission on Appointments‘ failure to confirm an ad interim appointment is NOT disapproval. An ad interim appointee disapproved by the COA cannot be reappointed. But a by-passed appointee, or one whose appointment was not acted upon the merits by the COA, may be appointed again by the President.

IV. Discretion of Appointing Official  Presumed. Administrators of public officers, primarily the department heads should be entrusted with plenary, or at least sufficient, discretion. Their position most favorably determines who can best fulfill the functions of a vacated office. There should always be full recognition of the wide scope of a discretionary authority, UNLESS the law speaks in the most mandatory and peremptory tone, considering all the circumstances. [Reyes v. Abeleda (1968)]  Discretionary Act. Appointment is an essentially discretionary power. It must be performed by the officer in whom it is vested, the only condition being that the appointee should possess the qualifications required by law. [Lapinid v. CSC (1991)] 

Scope. The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of the appointment intended (i.e., whether the appointment is permanent or temporary).



Inclusive Power. The appointing authority holds the power and prerogative to fulfill a vacant position in the civil service.



The exercise of the power to transfer, reinstate, reemploy or certify is widely used (need not state reason)

To hold that the Civil Service Law requires filling up any vacancy by promotion, transfer, reinstatement, reemployment, or certification IN THAT ORDER would be tantamount to legislative appointment which is repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible. [Pineda v. Claudio (1969)] 

Promotion of “next-in-rank” career officer is not Mandatory. The appointing authority should

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POLITICAL LAW REVIEWER

LAW ON PUBLIC OFFICERS be allowed the choice of men of his confidence, provided they are qualified and eligible.

IV. Eligibility Presumed V. Qualifications Prescribed By Constitution VI. Religious Test or Qualification is not Required VII. Qualification Standards and Requirements under the Civil Service Law

 When abused, use Mandamus. Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. [Gesolgon v. Lacson (1961)]

I. Definition 

 “Upon recommendation” is not Merely Advisory. Sec. 9. Provincial/City Prosecution Offices. [par. 3] All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary.

Eligibility: endowment/requirement/accomplish-ment that fits one for a public office.



Qualification: endowment/act which a person must do before he can occupy a public office.



Note: Failure to perform an act required by law could affect the officer‘s title to the given office. Under BP 881, the office of any elected official who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant unless said failure is for cause or causes beyond his control. o An oath of office is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all, and for as long as he has not qualified, the holdover officer is the rightful occupant. [Lecaroz v. Sandiganbayan (1999)] o Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. [Mendoza v. Laxina (2003)]



The phrase ―upon recommendation of the Sec. of Justice‖ should be interpreted to be a mere advice. It is persuasive in character, BUT is not binding or obligatory upon the person to whom it is made.

V. Effectivity of Appointment Immediately upon appointing authority‘s issuance (Rule V, Sec. 10, Omnibus Rules)

VI. Effects of a Complete, Final and Irrevocable Appointment GENERAL RULE An appointment, once made, is irrevocable and not subject to reconsideration.  It vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process).  It may be issued and deemed complete before acquiring the needed assent, confirmation, or approval of some other officer or body. EXCEPTIONS  Appointment is an absolute nullity [Mitra v. Subido (1967)];  Appointee commits fraud [Mitra v. Subido, supra];  Midnight appointments o GENERAL RULE: A President or Acting President shall not appoint 2 months immediately before the next presidential elections until his term ends. (Art. VII, Sec. 15, 1987 Const.) o EXCEPTION: Temporary appointments to executive positions when continued vacancies will prejudice public service or will endanger public safety.

D. Eligibility and Qualification Requirements I. Definition II. Power to Prescribe Qualifications III. Time of Possession of Qualifications

II. Power to Prescribe Qualifications 

GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office.



In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon, 23)



RESTRICTIONS on the Power of Congress to Prescribe Qualifications: o Congress cannot exceed its constitutional powers; o Congress cannot impose conditions of eligibility inconsistent with constitutional provisions; o The qualification must be germane to the position ("reasonable relation" rule); o Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution

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LAW ON PUBLIC OFFICERS expressly or impliedly gives the power to set qualifications. o Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment: it is unconstitutional and therefore void for being a usurpation of executive power – examples:  Extensions of the terms of office of the incumbents;  A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City; [Flores v. Drilon (1993)]  Designating an unqualified person. The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice.; [Vargas v. Rilloraza (1948)]  Automatic transfer to a new office. A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created; [Manalang v. Quitorano (1954)]  Requiring inclusion in a list. A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association as one of the qualifications for appointment; and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list; [Cuyegkeng v. Cruz (1960)]

o Citizenship requirement should be possessed on start of term (i.e. ≠ on filing candidacy). The Local Government Code does not specify any particular date or time when the candidate must possess the required citizenship, unlike for residence and age. The requirement is to ensure that no alien shall govern our people and country or a unit of territory thereof. An official begins to govern or discharge his functions only upon proclamation and on start of his term. This liberal interpretation gives spirit, life and meaning to our law on qualifications consistent with its purpose. [Frivaldo v. COMELEC (1996)]

IV. Eligibility is Presumed  IN FAVOR of one who has been elected or appointed to public office.  The right to public office should be strictly construed against ineligibility. (De Leon, 26)

V. Qualifications Prescribed By Constitution 1.

For President (Sec. 2, Art. VI, Constitution) and Vice President (Sec. 3, Art. VII, Constitution)  Natural-born citizen  40 years old on election day  Philippine resident for at least 10 years immediately preceding election day

2.

For Senator (Sec. 3, Art. VI, Constitution)  Natural-born citizen  35 years old on election day  able to read and write  registered voter  resident of the Philippines for not less than two years immediately preceding election day

3.

For Congressmen (Sec. 6, Art. VI, Constitution)  Natural-born citizen  25 years old on election day  able to read and write  registered voter in district in which he shall be elected  resident thereof for not less than one year immediately preceding election day

4.

Supreme Court Justice  Natural born citizen  at least 40 years old  15 years or more as a judge or engaged in law practice  of proven competence, integrity, probity and independence (C.I.P.I.)

5.

Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)

III. Time of Possession of Qualifications 

At the time specified by the Constitution or law.



If time is unspecified, 2 views: a. qualification during commencement of term or induction into office; b. qualification / eligibility during election or appointment (De Leon, 26-27)



Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, the public officer forfeits the office. o No estoppel in ineligibility. Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. [Castaneda v. Yap (1952)]

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6.

7.

Natural-born citizen 35 years old at time of appointment proven capacity for public administration not a candidate for any elective position in election immediately preceding appointment

COMELEC Commissioners (Sec. 1[1], Art. IXC)  Natural-born citizen  35 years old at time of appointment  college degree holder  not a candidate for elective position in election immediately preceding appointment  chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years

VI. Religious Test or Qualification is not Required Philippine Constitution, Art. III Sec. 5. … No religious test shall be required for the exercise of civil or political rights.

VII. Qualification Standards and Requirements under the Civil Service Law 1.

COA Commissioners  Natural-born citizen  35 years old at time of appointment  CPA with >10 year of auditing experience or  Bar member engaged in practice of law for at least 10 years  Not candidates for any elective position in election immediately preceding appointment.

Notes:  “Practice of Law” defined. Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill. [Cayetano v. Monsod (1991)]  In the dissenting opinion of Justice Padilla in the case of Cayetano v. Monsod, citing Agpalo, he stated that engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer  “Residency” defined. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. [Aquino v. COMELEC (1995)]  Presumption in favor of domicile of origin. Domicile requires the twin elements of actual habitual residence and animus manendi (intent to permanently remain). Domicile of origin is not easily lost; it is deemed to continue absent a clear and positive proof of a successful change of domicile. [Marcos v. COMELEC (1995)]

Qualification Standards  It enumerates the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, Administrative Code)  The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules)  Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office (ibid)  It shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules)

2. Political Qualifications for an Office (i.e. membership in a political party) GENERAL RULE Political qualifications are NOT Required for public office. EXCEPTIONS  Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.);  Party-list representation;  Commission on Appointments;  Vacancies in the Sanggunian (Sec. 45, Local Government Code) 3. No Property Qualifications Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate‘s wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. [Maguera v. Borra and Aurea v. COMELEC (1965)] 4.

Citizenship  Aliens not eligible for public office.  The purpose of the citizenship requirement is to ensure that no alien, i.e., no person

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LAW ON PUBLIC OFFICERS owing allegiance to another nation, shall govern our people and country or a unit of territory thereof. [Frivaldo v. COMELEC (1996)] 5. Effect of Removal of Qualifications During the Term Termination from office 6. Effect of Pardon upon the Disqualification to Hold Public Office (Asked in 1999)

Public Officer The President, Vice President, the Members of the Cabinet and their deputies or assistants

Senator or Member of the House of Representatives

GENERAL RULE Pardon will not restore the right to hold public office. (Art. 36, Revised Penal Code) EXCEPTIONS  When the pardon‘s terms expressly restores such (Art. 36, RPC);  When the reason for granting pardon is noncommission of the imputed crime. [Garcia v. Chairman, COA (1993)]

Effect: or else he forfeits his seat

E. Disabilities and Inhibitions of Public Officers Disqualifications to Hold Public Office  IN GENERAL: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public office are ineligible (i.e. disqualified from holding such office). 



Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications do not violate the Constitution. General Constitutional Disqualifications 1. Losing candidates cannot be appointed to any governmental office within one year after such election. (Art. IX-B Sec. 6) 2. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B Sec. 7(1)) 3. Appointive officials shall not hold any other governmental position. o Unless otherwise allowed by law or his position‘s primary functions (Art. IX-B Sec 7 (2)) o Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one can‘t receive compensation or other honoraria anyway), as provided by law and as required by the primary functions of his office. [ National Amnesty Commission v. COA (2004)]

Specific Constitutional Disqualifications Public Officer Disqualifications

Disqualifications shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution, (Art. VII, Sec. 13) may not hold during his term any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government owned or -controlled corporations or their subsidiaries

Members of the Supreme Court and other courts established by law Members of the Constitutional Commission Ombudsman and his Deputies Members of Constitutional Commissions, the Ombudsman and his Deputies

Members of Constitutional Commissions, the Ombudsman and his Deputies The President‘s spouse and relatives by consanguinity or affinity within the fourth civil degree

Shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Art. VI, Sec 13) shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12) shall not hold any other office or employment [during their tenure]. (Art. IX-A, Sec. 2) (Art. XI, Sec. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8) are appointed to 7-year term, without reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11) shall not be appointed during President‘s tenure as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned-or -controlled

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Other Disqualifications 1. Mental or physical incapacity 2. Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. 3. Impeachment 4. Removal or suspension from office: not presumed  non-imposable when such ineligibility is not constitutional or statutory declared. 5. Previous tenure of office: for example, an appointed Ombudsman is absolutely disqualified for reappointment (Article XI, Constitution). 6. Consecutive terms limit: i. Vice-President = 2 consecutive terms ii. Senator = 2 consecutive terms iii. Representative = 3 consecutive terms iv.Elective local officials = 3 consecutive terms (Sec. 8, Art. X, Constitution)  Public officer‘s voluntary renunciation of office for any length of time = an interruption in the continuity of his service for the full term for which he was elected. 7.

Holding more than one office: to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their holding of dual positions. Civil Liberties Union v. Executive Secretary (1991):  Section 7, Article IX-B of the Constitution generally prohibits elective and appointive public officials from holding multiple offices or employment in the government unless they are otherwise allowed by law or by the primary functions of their position. This provision does NOT cover the President, Vice-President and cabinet members – they are subject to a stricter prohibition under Section 13 of Article VII.  To apply the exceptions found in Section 7, Article IX-B to Section 13, Article VII would obliterate the distinction set by the framers of the Constitution as to the highranking officials of the Executive branch.  However, public officials holding positions without additional compensation in exofficio capacities as provided by law and as required by their office‘s primary functions are not covered by the Section 13, Article VII prohibition.

8.

or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law.  Section 7 of RA 6713 also generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions.

Disqualifications corporations. (Art. VIII, Sec. 13)

Holding of office in the private sector:  Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own, control, manage,

9.

Relationship with the appointing power  General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: i. appointing authority; ii. recommending authority; iii. chief of the bureau office; or iv. person exercising immediate supervision over the appointee  Relative: related within the third degree of either consanguinity or of affinity.  Exceptions to rule on nepotism: o persons employed in a confidential capacity o teachers o physicians o members of the Armed Forces of the Philippines

10. Under the Local Government Code (sec. 40) i. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; ii. Removed from office as a result of an administrative case; iii. Convicted by final judgment for violating the oath of allegiance to the Republic; iv.Dual citizenship; Mercado v. Manzano (1999):  Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.  Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual‘s volition.

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

[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase ―dual citizenship‖ in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to ―dual allegiance.‖ v. Fugitive from justice in criminal or nonpolitical cases here or abroad; vi.Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; vii. Insane or feeble-minded.

F. Powers and Duties of Public Officers I. Classification of Powers and Duties II. Source of Powers and Authority III. Duties of Public Officers



2. As to the Obligation of the Officer to Perform his Powers and Duties a. Mandatory Powers conferred on public officers are generally construed as mandatory although the language may be permissive, where they are for the benefit of the public or individuals b. Permissive 



I. Classification of Powers and Duties (De Leon, 2008)

1. As to Nature









Official duty is ministerial when it is absolute, certain and imperative involving merely execution of a specific duty arising from fixed and designated facts. Where the officer or official body has no judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law, their acts are ministerial only. Performance of duties of this nature may, unless expressly prohibited, be properly delegated to another. Thus, a ministerial act which may be lawfully done by another officer may be performed by him through any deputy or agent willfully created or appointed. Where the law expressly requires the act to be performed by the officer in person, it cannot, though ministerial, be delegated to another.

Statutory provisions define the time and mode in which public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system and dispatch in public business are generally deemed directory. If the act does not affect third persons and is not clearly beneficial to the public, permissive words will not be construed as mandatory.

3. As to the Relationship of the Officer to his subordinates a. Power of Control

a.Ministerial 

The presumption is that the public officer was chosen because he was deemed fit and competent to exercise that judgment and discretion. Unless the power to substitute another in his place has been given to him, a public officer cannot delegate his duties to another.

It implies the power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter. b. Power of Supervision 



Supervisory power is the power of mere oversight over an inferior body which does not include any restraining authority over such body. A supervising officer merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.

II. Source of Powers and Authority

b. Discretionary

(De Leon, 2008)

They are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature, the function is quasijudicial.





Under our political system, the source of governmental authority is found in the people. Directly or indirectly through their chosen representatives, they create such offices and agencies as they deem to be desirable for the administration of the public functions and declare in what manner and by what persons they shall be exercised. Their will, in these respects, finds its expression in the Constitution and the laws. The right to be

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

a public officer, then, or to exercise the powers and authority of a public office, must find its source in some provision of the public law. Nothing is better settled in the law than that a public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. [Villegas v. Subido (1969)]



2. Duty to make public disclosure statements of assets and liabilities 

III. Duties of Public Officers (De Leon, 2008)

1. Duties as Trustees for the Public 



a. To obey the law It is the duty of an officer to obey the general laws and the laws which prescribe the duties of his office, and a public officer has no power to vary or waive any statutory law. As a general rule, a public officer must obey a law found on the statute books until its constitutionality is judicially passed upon in a proper proceeding.

b. To accept and continue in office It is the duty of every person having the requisite qualifications, when elected or appointed to a public office, to accept it. The theory is that the public has the right to command the services of any citizen in any official position which it may designate. c. To accept the burden of office One who accepts a public office does so with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office. d. As to diligence and care Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. e. As to choice and supervision of subordinates  It is the duty of a public officer having an appointing power to make the best available appointment.  The degree of care required in selecting subordinates must depend upon the nature of the work to be performed and the circumstances of each case. 

f. Ethical duties Every public officer is bound to perform the duties of his office honestly, faithfully and to

the best of his ability, in such a manner as to be above suspicion of irregularities, and to act primarily for the benefit of the public. As to outside activities: It is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties

of

Public officials and employees have an obligation under the Code of Conduct and Ethical Standards for Public Officials and Employees to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under 18 years of age living in their household.

3. Transparency of transactions and access to information

G. Rights of Public Officers I. In General II. Right to Compensation III. Other Rights

I. In General (De Leon, 2008)

1. Rights incident to public office The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed.

2. Rights as a citizen a. Protection from publication commenting on his fitness and the like  

The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and the laws. However, by reason of the public character of his employment or office, a public officer is, in general, held not entitled to the same protection from publications commenting on his fitness and the like, as is accorded to the ordinary citizen. b. Engaging in certain political and business activities

The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties.

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II. Right to Compensation (De Leon, 2008)  





The power to fix the compensation of public officers is not inherently and exclusively legislative in character. Unless the Constitution expressly or impliedly prohibits Congress from doing so, it may delegate the power to other government bodies or officers. The salary of a public officer may not, by garnishment, attachment or order of execution, be seized before being paid to him and, appropriated for the payment of his debts. The rationale behind this doctrine is obvious consideration of public policy. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. [De la Victoria v. Burgos, (1995)]

Basis of Right to Compensation  The relation between an officer and the public is not the creation of contract, nor is the office itself a contract. Hence, his right to compensation is not the creation of contract. It exists as the creation of law and belongs to him not by force of any contract but because the law attaches it to the office.  The right to compensation grows out of the services rendered. After services have been rendered, the compensation thus earned cannot be taken away by a subsequent law.  As a general proposition, a public official is not entitled to any compensation if he has not rendered any service. [Acosta v. CA, (2000)]

III. Other Rights (De Leon, 2008)

Employees in the government given temporary appointments do not enjoy security of tenure. They shall be given such protection as may be established by law to prevent indiscriminate dismissals and to see to it that their separation or replacement is made only for justifiable reasons c.

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. [Sec. 11, Art. VI, Constitution] d.



2. Rights under the Civil Service Decree and the New Administrative Code a. Right to preference in promotion b. Right to present complaints and grievances c. Right not to be suspended or dismissed except for cause as provided by law and after due process d. Right to organize

3. Next-in-Rank Rule 



Right to self-organization

The right to self-organization shall not be denied to government employees. [Sec. 2(5), Art. IX-B, Constitution]. Government employees in the civil service are granted the right to form unions enjoyed by workers in the private sector However, the constitutional grant to government workers of the right to form labor organizations or unions does not guarantee them the right to bargain collectively with the government or to engage in concerted activities including the right to strike, which are enjoyed by private employees. They are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass actions which will result in temporary stoppage or disruption of public services b.

Right to protection of temporary employees

Right not to be removed or suspended except for cause provided by law

Implicit in the constitutional prohibition against removal or suspension except for cause, is the existence of a charge, due hearing, and the finding of guilt by the proper authority.

1. Rights under the Constitution a.

Freedom of members of Congress from arrest and from being questioned





This rule specifically applies only in cases of promotion. It neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. One who is ―next-in-rank‖ to a vacancy is given preferential consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed. Reason for the rule: The preference given assumes that employees working in an office for longer period have gained not only superior skills but also greater dedication to the public service provided that the acts of the appointing power are bona fide for the best interest of the public service and the person chosen has the needed qualifications.

4. Personnel Actions

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Any action denoting the movement or progress of personnel in the civil service is known as personnel action. It includes: o appointment through certification o promotion o transfer o reinstatement o reemployment o detail o reassignment o demotion and o separation

5. Rights under the Revised Government Service Insurance Act Covered employees are entitled to retirement benefits, separation benefits, unemployment or involuntary separation benefits, disability benefits, survivorship benefits, funeral benefits and life insurance benefits.

6. Right to Reimbursement and Indemnity 



When a public officer, in the due performance of his duties, has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and not attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public for which he should be reimbursed. Within the same limits, the officer is entitled to be indemnified by the public against the consequences of acts which he has been expressly or impliedly required to perform upon the public account, and which are not manifestly illegal and which he does not know to be wrong.

7. Right to Reinstatement and Back Salary 

 

Reinstatement means the restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal Back salary or wages is a form of relief that restores the income that was lost by reason of unlawful dismissal For a plaintiff to succeed in seeking reinstatement to an office, he must prove his right to the office. Unless this right is shown, the action must fail even if the appointment of the successor is first in issue.

8. Rights to Property, Devices and Inventions  

Title to a public office carries with it the right, during the incumbency of the officer, to the insignia and property thereof. The question whether records, discoveries, inventions, devices, data and the like, made or prepared by an officer while he is occupying the

POLITICAL LAW REVIEWER office, belong to the public, must be determined wit reference to the facts of each case. o where such are indispensable in the proper conduct of the office, the officer may not take them as his own property. o if, not being required by law, they are prepared by the officer apart from his official duties and are not indispensable in the proper conduct of the office, the officer may acquire a property right therein.

H. Liabilities of Public Officers I. Preventive Suspension and Back Salaries II. Illegal Dismissal, Reinstatement and Back Salaries The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. (De Leon, 2008) Three-fold Responsibility of Public Officers (De Leon, 2008) A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission:  Civil Liability: if the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party  Criminal Liability: if he law has attached a penal sanction, the officer may be punished criminally  Administrative Liability: such violation may also lead to imposition of fine, reprimand, suspension or removal from office. This administrative liability is separate and distinct from the penal and civil liabilities. (Agpalo, 2005) Civil Liability (Agpalo, 2005)  A public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. An officer who acts within his authority is not liable for damages as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent.  Statutory basis of liability: o Under the Administrative Code: Sec. 38. Liability of Superior Officers. - (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. (2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law. (3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.

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LAW ON PUBLIC OFFICERS Sec. 39. Liability of Subordinate Officers. -No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors. o Under Article 27 of the Civil Code: Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken. The provision contemplates a refusal or neglect without just cause by a public servant or employee to perform his official duty. Where there is just cause, he may not be held liable. o Under Article 32 of the Civil Code: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such

confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. 

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This provision renders a public officer civilly liable for damages for directly or indirectly obstructing, defeating, violating or in any manner impeding or impairing civil liberties guaranteed by the Constitution. Under this provision, it is not necessary that the public officer acted with malice or bad faith. To be liable, it is enough that there was a violation of the constitutional rights of the aggrieved party, even on the pretext of justifiable motives or good faith in the performance of one‘s duties. Good faith is not a defense

Criminal Liability (De Leon, 2008)  The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability.  Crimes peculiar to certain public officers: 1. Revised Penal Code 2. Anti-Graft and Corrupt Practices Act 3. Code of Conduct and Ethical Standards 4. Forfeiture of Unexplained Wealth Act 5.Civil Service Decree 6. Government Auditing Code 7. Local Government Code 8. National Internal Revenue Code 9. Omnibus Election Code

I. Preventive Suspension and Back Salaries Kinds of Preventive Suspension a. preventive suspension pending investigation  The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation, if the charge against such

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b.

officer involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from service (De Leon, 2008)  No compensation is due for the period of preventive suspension pending investigation because such is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. (De Leon, 2008) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated [Caniete v. Secretary of Education, (2000)]  Employees are entitled to compensation for the period of their suspension pending appeal if they are found innocent. Such suspension is actually punitive so that a public officer should be reinstated with full pay for the period of the suspension.

II. Illegal Dismissal, Reinstatement and Back Salaries  

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Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. Where an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office, it was held that he might recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. He may recover the full amount notwithstanding that during the period of his removal, the salary has been paid to another appointed to fill the vacancy unlawfully created. The ―no work, no pay‖ principle does not apply where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and carrying out his duties If the illegal dismissal is found to have been made in bad faith by the superior officers then they will be held personally accountable for back salaries of the illegally dismissed employee. The award of backwages is limited to a maximum period of 5 years and not to full back salaries from illegal termination up to reinstatement [David v. Gania, (2003)]

I. Immunity of Public Officers Doctrine of Official Immunity from Liabilities for Public Officers  Rationale: promotion of fearless, vigorous and effective administration of policies of government.  It is generally recognized that public officers and employees would be unduly hampered,

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deterred and intimidated in the discharge of their duties, if those who act improperly, or even exceed the authority given them, were not protected to some reasonable degree by being relieved from private liability. The threat of suit could also deter competent people from accepting public office. Other public policy considerations: o loss of valuable time caused by such actions o unfairness of subjecting officials to personal liability for the acts of their subordinates o a feeling that the ballot and removal procedures are more appropriate methods of dealing with the misconduct in public office.

Official Immunity Distinguished from State Immunity  The immunity of public officials is a more limited principle than governmental immunity since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function.  The doctrine of sovereign immunity principally rested upon the tenuous ground that the king could do no wrong. It served to protect the impersonal body politic or government itself from tort liability.  Official Immunity serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. Official Immunity not Absolute  A public officer enjoys only qualified, not absolute immunity. The protection afforded by the doctrine generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt.  But acts of a public officer are protected by the presumption of good faith. Even mistakes concededly committed by such a public officer in the discharge of his official duties are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith.  A public officer may be sued as such to compel him to do an act required by law

J. De Facto Officers I. De Facto Doctrine II. De Facto Officer Defined III. Elements of a De Facto Officership IV. Office created under an unconstitutional statute V. Legal Effect of Acts of De Facto Officers VI. Liability of De Facto Officers VII. Right to Compensation of De Facto Officer

I. De Facto Doctrine

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It is the doctrine that a person who is admitted and sworn into office by the proper authority is deemed to be rightfully in such office until: (a) he is ousted by judicial declaration in a proper proceeding; or (b) his admission thereto is declared void. Doctrine‘s Purpose: to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him.

a.

Officer De Jure v. Officer De Facto (Asked in 2000, 2004)

Requisites

He is legally qualified for the office;

II. De Facto Officer Defined 

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One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law. [Torres v. Ribo (1948)] He must have: o acted as an officer for such length of time, o under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, o as to afford a presumption of election or appointment, and o induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action. A person is a de facto officer when the duties of his office are exercised under ANY of the following circumstances: 1. There is no known appointment or election, but people are induced by circumstances of reputation or acquiescence to suppose that he is the officer he assumes to be. Consequently, people do not to inquire into his authority, and they submit to him or invoke his action; 2. He possessed public office under color of a known and valid appointment or election, but he failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); 3. He possessed public office under color of a known election or appointment, but such is VOID because: o He‘s ineligible; o The electing or appointing body is not empowered to do such; o His exercise of his function was defective or irregular; o (Important) The public does NOT KNOW of such ineligibility, want of power, or defect being. He possessed public office under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. o What is unconstitutional is the officer’s appointment to an office not legally existing, (not creation of an unconstitutional office). [Norton v. County of Shelby (1886)]

De Jure A de jure office exists;

He is lawfully chosen to such office;

Basis of Authority

He undertakes to perform the duties of such office according to law‘s prescribed mode. Right: He has the lawful right / title to the office

How ousted

Cannot be ousted.

Validity of official acts

Valid, subject to exceptions (e.g., acting beyond his scope of authority, etc.) Rightfully entitled to compensation;

Rule on Compensation

The principle "No work, no pay" is inapplicable to him.

De Facto De jure office; He assumed office under color of right or general acquiescence by the public; He actually and physically possessed the office in good faith.

Reputation: He possesses office and performs its duties under color of right, but he is not technically qualified to act in all points of law In a direct proceeding (quo warranto); (collaterally) Valid as to the public until his title to the office is adjudged insufficient. Conditionally entitled to receive compensation: only when no de jure officer is declared; He is paid only for actual services rendered.

b.

Officer De Facto v. Intruder

Nature

Basis of authority

De Facto He becomes officer under any of the 4 circumstances discussed under Part II (above). Color of right or title to office

Intruder He possesses office and performs official acts without actual or apparent authority. None. Neither lawful title nor color of right to

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Rule on compensation

Valid as to the public until his title to the office is adjudged insufficient

Entitled to receive compensation only when no de jure officer is declared and only for actual services rendered.

Intruder office. Absolutely void; His acts can be impeached at any time in any proceeding (unless and until he continues to act for a long time, creating a presumption of his right to act) (De Leon, 119) Not entitled to compensation at all.

An intruder / usurper may be presumed a de facto officer with the passage of time, when the public presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer.

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IV. Office created under an unconstitutional statute The prevalent view is that a person appointed or elected in accordance with a law later declared to be unconstitutional may be considered de facto at least before the declaration of unconstitutionality.

V. Legal Effect of Acts of De Facto Officers [Monroy v. CA (1967)] 

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III. Elements of a De Facto Officership i. A validly existing public office; ii. Actual physical possession of the office in good faith; iii. Color of title to the office: a. Reputation or acquiescence; b. Known and valid appointment or election but the officer failed to conform to a legal requirement c. Known appointment or election but void because of ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public d. Known appointment or election pursuant to an unconstitutional law before declaration of unconstitutionality Who are NOT considered De Facto Officers?  A judge who has accepted an appointment as finance secretary and yet renders a decision after his acceptance: if he has ceased to be judge by actually accepting and entering into some other office and has actually entered upon the performance of the duties of the other office, it is difficult to understand how he can still be considered as actually occupying and performing the duties of the office which he had abandoned and vacated. An abandonment and a vacation of an office is inconsistent and repugnant to the idea of actually continuing

to perform the duties of such office; [Luna v. Rodriguez (1917)] A judge whose position has already been lawfully abolished, and yet promulgates a decision in a criminal case after the abolition and over the fiscal‘s objection [People v. So (1995)]

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As regards the officers themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. o RATIONALE: The doctrine is intended not for the protection of the public officer, but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office. De Facto Officer‘s Official Acts are not subject to collateral attack o RULE: A de facto officer‘s and his acts‘ validity cannot be collaterally questioned (in proceedings where he is not a party, or were not instituted to determine the very question). o REMEDY: Quo warranto proceedings filed by:  The person claiming entitlement to the office;  The Republic of the Philippines (represented by the Solicitor-General or a public prosecutor).

VI. Liabilities of De Facto Officers (De Leon, 130-131)  

A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer. The de facto officer may be liable for all imposable penalties for ANY of the following acts: o usurping or unlawfully holding office; o exercising the functions of public office without lawful right; o ineligibility for the public office as required by law

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The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status.

VI. Abandonment of office VII. Prescription of right to office VIII. Removal IX. Impeachement X. Abolition of office XI. Conviction of a crime XII. Recall

VII. Right to Compensation of De Facto Officer GENERAL RULE None. A de facto officer cannot sue for the recovery of salary, fees or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are void. (63A Am. Jur. 2d 1094-1095) The rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure, even though he entered into the office in good faith and under color of title.[ Monroy v CA (1967) EXCEPTIONS  Where there is no de jure public officer, the officer de facto who in good faith has had possession of the office and has discharged the duties pertaining thereto is legally entitled to the emoluments of the office. [Monroy v. CA [1967])  In Civil Liberties Union v. Executive Secretary (1991), even as EO No. 284 was declared unconstitutional because it allowed Cabinet members to hold multiple offices in direct contravention of the Constitution, it was held that during their tenure in the questioned positions, the respondents may be considered de facto officers and as such entitled to the emoluments of the office/s for actual service rendered.  A de facto officer, not having good title, takes the salaries at his risk and must account to the de jure officer (when there is one) for whatever salary he received during the period of his wrongful tenure, even if he occupied the office in good faith. o BUT when the de jure officer assumed another position under protest, for which she received compensation: while her assumption to the said position and her acceptance of the corresponding emoluments do not constitute abandonment of her rightful office, she cannot recover full back wages for such. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. [Gen. Manager, Philippine Ports Authority v. Monserate (2002)]

I. Expiration of the term or tenure of office 

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II. Reaching the age limit (retirement) This mode results in the compulsory and automatic retirement of a public officer

III. Death or permanent disability 

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The death of the incumbent of an office, which is by law to be filled by one person only, necessarily renders the office vacant. The public official cease to hold office upon his death and all his rights, duties and obligations pertinent to the office are extinguished Permanent disability covers both physical or mental disability.

IV. Resignation 

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K. Termination of Official Relation I. Expiration of the term or tenure of office II. Reaching the age limit (retirement) III. Death or permanent disability IV. Resignation V. Acceptance of an incompatible office

Upon the expiration of the officer‘s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must ipso facto cease Term of office means the time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall succeed one another. It is a fixed and definite period of time to hold office, perform its functions and enjoy its privileges and emoluments until the expiration of said period Tenure of office represents the period during which the incumbent actually holds office.

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Resignation is the formal renunciation or relinquishment of a public office. It implies an expression by the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish his right to the office and its acceptance by competent and lawful authority. To constitute resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. A written resignation, delivered to the board or officer authorized to receive it and fill the vacancy thereby created, is prima facie, but not conclusive evidence of the intention to relinquish the office. Acceptance by the proper authority is necessary for a resignation to be operative and effective.

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V. Acceptance of an incompatible office   

It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. One who, while occupying one office, accepts another incompatible with the first, ipso facto, absolutely vacates the first office. When Incompatible o Incompatibility is to be found in the character of the offices and their relation to each other, in the subordination of one to the other and in the nature of the functions and duties which attach to them o It exists where:  There is conflict in such duties and functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both  One is subordinate to te other and is subject in some degree to its supervisory power for obviously in such a situation, the design that one acts as a check on the other would be frustrated  The Constitution of the law itself declares the incompatibility even though there is no inconsistency in the nature and functions of the offices

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VI. Abandonment of office Abandonment means the voluntary relinquishment of an office by the holder of all right, title, or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof.

IX. Impeachment  

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X. Abolition of office  

VII. Prescription of right to office 

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Under the Rules of Court, quo warranto is the proper remedy against a public officer for is ouster from office which should be commenced within one year after the cause of such ouster or the right of the plaintiff to hold such office or position arose; otherwise, the action will be barred Rationale for the one year period: Title to public office should not be subjected to uncertainties but should be determined as speedily as possible.

VIII. Removal  

Removal entails the ouster of an incumbent before the expiration of his term. It implies that the office exists after the ouster. Removal from office may be express or implied.

Impeachment has been defined as a method of national inquest into the conduct of public men. Its purpose is to protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Sec. 2, Art. XI, Constitution) The House of Representatives has the sole power to initiate all cases of impeachment while the Senate sits as a court for the trial of impeachment cases. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law. (Sec. 3, Art. XI, Constitution)

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To consider an office abolished, there must have been an intention to do away with it wholly and permanently. As a general rule, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. Such power may be exercised at any time and even while the office is occupied by a duly elected or appointed incumbent. Absent any constitutional prohibition, an office created by Congress may be abolished by it during the term of the incumbent. The fundamental principle afforded to civil service employees against removal ―except for cause as provided by law‖ does not protect them against abolition of the positions held by them in the absence of any other provision expressly or impliedly prohibiting abolition thereof. [Castillo v. Pajo, (1958)]

XI. Conviction of a crime 

When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime, termination of official relation results, for one of te effects of the imposition of said penalties is the deprivation of the public office which the offender may have held.

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Conviction means conviction in a trial court. It contemplates a court finding guilt beyond reasonable doubt followed by a judgment upholding and implementing such finding.

XII. Recall Through recall, an elective official may be removed at any time during his term by the vote of the people at an election called for such purpose or at a general election.

L. The Civil Service I. Scope II. Appointments to the Civil Service III. Personnel Actions

I. Scope Civil Service Commission’s (CSC’s) Jurisdiction 

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Exclusive Jurisdiction o Disciplinary cases o Cases involving ―personnel action‖ affecting the Civil Service employees  Appointment through certification  Promotion  Transfer  Reinstatement  Reemployment  Detail, reassignment  Demotion  Separation o Employment status o Qualification standards Recall of appointment o Includes the authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations. o as opposed to Recall under Sec 69-75 of the Local Government Code:  Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)]

 Review Appointee’s Qualifications. The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. [Lapinid v. CSC (1991)] 

What it cannot do. o It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. [Lapinid v. CSC (1991)]

POLITICAL LAW REVIEWER o The CSC cannot co-manage or be a surrogate administrator of government offices and agencies. o It cannot change the nature of the appointment extended by the appointing officer. [ Luego v. CSC (1986)]

II. Appointments to the Civil Service SCOPE Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service 1. Career Service – Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure. 2. Non-career Service – Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project. (i.e. elective officials, Department Heads and Members of Cabinet) Requisites:  Appoint only according to merit and fitness, to be determined as far as practicable.  Require a competitive examination. o Exceptions: (Positions where Appointees are exempt from Competitive Examination Requirements)  Policy determining in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries  Primarily Confidential – denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state (―Proximity Rule‖ as enunciated in De los Santos v Mallare [1950])  Highly Technical – requires possession of technical skill or training in a superior degree. (i.e. City Legal Officer) NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly technical

III. Personnel Actions Other Personnel Actions  Promotion is a movement from one position to another with increase in duties and

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LAW ON PUBLIC OFFICERS responsibilities as authorized by law and is usually accompanied by an increase in pay. o Next-in-rank Rule.  The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated.  BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the ―special reason or reasons‖ for not appointing the officer next-inrank. o Automatic Reversion Rule.  All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission.  The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions.  However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code)  Requisites: 1. series of promotions 2. all promotional appointments are simultaneously submitted to the Commission for approval 3. the Commission disapproves the appointment of a person to a higher position. 

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No commission of delinquency or misconduct, and is not separated. o Same effect as Executive Clemency, which completely obliterates the adverse effects of the administrative decision which found him guilty of dishonesty. He is restored ipso facto upon grant of such. Application for reinstatement = unnecessary. 

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Detail is the movement of an employee from one agency to another without the issuance of an appointment. o Only for a limited period. o Only for employees occupying professional, technical and scientific positions. o Temporary in nature.

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Reassignment. An employee may be reassigned from one organizational unit to another in the SAME agency. o It is a management prerogative of the CSC and any dept or agency embraced in the Civil Service. o It does not constitute removal without cause. o Requirements:  NO reduction in rank, status or salary.  Should have a definite date or duration (c.f. Detail). Otherwise, a floating assignment = a diminution in status or rank.

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Reemployment. Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.

Appointment through Certification is issued to a person who is: o selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles o qualified

M. Accountability of Public Officers

Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service. o This may be imposed as an administrative remedy. o If UNconsented = violates security of tenure. o EXCEPTIONS:  Temporary Appointee  Career Executive Service Personnel whose status and salaries are based on ranks (≠ positions)

I. Impeachment

Reinstatement. It is technically the issuance of a new appointment and is discretionary on the part of the appointing power. o It cannot be the subject of an application for a writ of mandamus. o Who may be reinstated to a position in the same level for which he is qualified:  Any permanent appointee of a career service position

I. Impeachment II. Ombudsman III. Sandiganbayan IV. Ill-Gotten Wealth

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Impeachment has been defined as ―a criminal proceeding against a public officer, before a quasi-judicial political court, instituted by written accusation called ‗articles of impeachment.‘‖ (Agpalo, 2005) Its purpose is to protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic. (De Leon, 2008)

Grounds (Sec. 2, Art. XI, Constitution) 1. culpable violation of the Constitution 2. treason 3. bribery 4. graft and corruption

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LAW ON PUBLIC OFFICERS 5. other high crimes 6. betrayal of public trust  

The acts which are impeachable grounds must be committed in the performance of the official‘s public office. (Agpalo, 2005) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (Sec. 3, Art. XI, Constitution) o ―Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution.‖ [Francisco, Jr. v. House of Representatives, (2003)]

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II. Ombudsman (Agpalo, 2005) Disciplinary Power Over Public Officers  The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries. (Sec. 21, RA 6770)  The disciplinary power of the Ombudsman is not exclusive but is shared with other disciplinary authorities of the government.  The disciplinary power of the Ombudsman over elective officials is concurrent with the power vested in the officials specified in the Local Government Code of 1991. [Hagad v. DozoDadole, (1995)]

misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. (Sec. 24, RA 6770) The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Sec. 24, RA 6770) Prior notice and hearing is not required before suspension may be meted out. Suspension is not a punishment or penalty but only a preventive measure to prevent the respondent from using his position or office to influence or intimidate prospective witnesses or tamper with the records which may be vital in the prosecution of the case against them.

(1) Judicial Review in Administrative Proceedings 



Decisions or resolutions of the Ombudsman in administrative cases absolving the respondent of the charge or imposing upon him the penalty of public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, is final and unappealable. (Agpalo, 2005) Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. [Fabian v. Ombudsman, (1998)]

(2) Judicial Review in Penal Proceedings

Exceptions to Ombudsman’s Disciplinary Power  The Ombudsman has no disciplinary power over the following (Sec. 21, RA 6770): 1. Officials who may be removed only by impeachment 2. Members of Congress 3. Members of the Judiciary

In all other cases, the decision shall become final after the expiration of 10 days from receipt thereof by the respondent, unless a motion for reconsideration or a petition for review is file with the CA pursuant to Rule 43 of the Rules of Court. (Agpalo, 2005)



III. Sandiganbayan

However, the Office of the Ombudsman has the power to investigate any serious misconduct in office committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Sec. 22, RA 6770)

Power to Preventively Suspend  The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave

Exclusive Original Jurisdiction over (a) violations of R.A. No. 3019 and No. 1379 (b) crimes committed by public officers and employees embraced in Title VIII of the Revised Penal Code (c) other offenses or felonies (whether simple or complexed with other crimes) committed by public officers and employees in relation to their office, where the penalty prescribed by law is higher than prision correccional or

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LAW ON PUBLIC OFFICERS imprisonment for six (6) years, or a fine of P6,000; and (d) Civil and criminal cases filed pursuant to and in connection with Executive Orders No. 1,2, 14, and 14-a issued in 1986 



In the absence of any allegation that the offense charged was necessarily connected with the discharge of the duties or functions of a public officer, the ordinary court, not the Sandiganbayan, has jurisdiction to hear and decide the case. What is controlling is not whether the phrase "committed in relation to public office" appears in the Information. What determines the jurisdiction of the Sandiganbayan is the specific factual allegation in the Information that would indicate close intimacy between the discharge of the accused's official duties and the commission of the offense charged in order to qualify the crime is having been committed in relation to public office. The relation between the crime and the office must be direct and not accidental, that is, the relation has to be such that, in the legal sense, the offense cannot exist without the office.

Officials and private individuals subject to its jurisdiction 

Under Section 4(a, b) of PD No. 1606, as amended, the Sandiganbayan shall exercise exclusive original jurisdiction over the cases mentioned in (a), (b), and (c) above where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity at the time of the commission of the offense: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (R.A. No. 6758), specifically including: 1) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; 2) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; 3) Officials of the diplomatic service occupying the position of consul and higher; 4) Philippine army and air force colonels, naval captains, and all officers of higher rank; 5) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; 6) City and provincial prosecutors and their assistants, and officials and



prosecutors in the Office of the Ombudsman and special prosecutor; b) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (c) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (d) Members of the judiciary without prejudice to the provisions of the Constitution; (e) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (f) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classificafion Act of 1989. In case private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees, including those employed in government-owned or -controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

Exclusive Appellate Jurisdiction The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction.

IV. Ill-Gotten Wealth 

Ill-gotten wealth means any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) by receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; (3) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries, (4) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

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

(5) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests, or (6) by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Sec. 1, RA 7080) Section 2 of Republic Act No. 7080 punishes the crime of plunder. It provides that any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other person, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts in the aggregate amount or total value of at least seventy-five million pesos (P75,000,000.00), shall be guilty of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with the said officer in the commission of plunder shall likewise be punished. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (Agpalo, 2005)

N. Term Limits All elective local officials, except barangay officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC)  Term of office: 3 years from noon of June 30, 1992 or the date provided by law 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;  No official shall serve for more than 3 consecutive terms for the same position;  Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Sec. 2. Term of Office  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 o Reckoned from the 1994 barangay elections o Voluntary renunciation of office for any length of time shall not be considered as an interruption

POLITICAL LAW REVIEWER

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2012

POLITICAL

Administrative Law BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble • Moises Ronette Colobong Contributors| Alferri Bayalan • Cielo Gono • Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

POLITICAL LAW REVIEWER

ADMINISTRATIVE LAW

Administrative Law Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

A. B. C. D.

POLITICAL LAW General Principles Administrative Agencies Powers of Administrative Agencies Judicial Recourse and Review

A. General Principles I. Definitions Administrative Law is that branch of modern law under which the executive department of the government, acting in a quasi-legislative or quasijudicial capacity, interferes with the conduct of the individual for the purpose of promoting the wellbeing of the community (DEAN ROSCOE 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.

II. 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 vs Public Service Commission (1940)]

Philippine Patent Office, Games and Amusement Board, Board of Energy, and Insurance Commission) 3) Executive Orders/ Authorities of law (E.g. Fact-finding Agencies)

II. 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.

III. 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); (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).

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)

C. Powers of Administrative Agencies

B. Administrative Agencies I. Modes of Creation of Administrative Agencies II. When is an agency administrative? III. Type of Administrative Agencies

The powers of administrative agencies are: (1) Quasi-legislative (Rule-making) (2) Quasi-judicial (Adjudicatory) and (3) Determinative powers

I. Modes of Creation of Administrative Agencies

I. Quasi-Legislative (Rule Making) Power

1) 1987 Constitution (E.g. CSC, COMELEC, COA, CHR, Commission on Appointments, Judicial and Bar Council and NEDA) 2) Legislative Enactments (E.g. NLRC, SEC, PRC, Social Security Commission, Commission on Immigration and Deportation,

I. Quasi-Legislative (Rule-Making) Power II. Quasi-Judicial (Adjudicatory) Power III. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

(Asked 5 times in the Bar) Definition The authority delegated by the law-making body to the administrative agency to adopt rules and regulations intended to carry out the provisions of a law and implement a legislative policy. Non-delegation doctrine

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ADMINISTRATIVE LAW 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 vs Ermita (2005)] Forms of the sufficient standard: (1) Express (2) Implied [Edu vs Ericta (1970)] (3) Embodied in other statutes on the same matter and not necessarily in the same law being challenged. [Chiongbian vs Orbos (1995)]

(1) Kinds of Administrative Rules and Regulations a. Supplementary legislation Pertains to rules and regulations to fix details in the execution of a policy in the law. e.g. IRRs of the Labor Code. b. Interpretative legislation Pertains to rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed, i.e. BIR Circulars. GENERAL DISTINCTIONS Legislative Rules Promulgated pursuant to its quasi-legislative / rule-making functions. Create a new law, a new policy, with the force and effect of law. Need publication. So long as the court finds that the legislative rules are within the power of the administrative agency to pass, as seen in the primary law, then the rules bind the court. The court cannot question the wisdom or correctness of the policy contained in the rules.

FROM LEGISLATIVE RULES Interpretative Rules Passed pursuant to its quasi-judicial capacity. Merely clarify the meaning of a pre-existing law by inferring its implications. Need not be published. The court may review their correctness of the interpretation of the law given by the administrative body, and substitute its own view of what is correct to the administrative body. If it is not within the scope of the administrative agency, court can only invalidate the same but not substitute its decision or

Legislative Rules Due process involves whether the parties were afforded the opportunity to be notified and heard before the issuance of the ruling.

Interpretative Rules interpretation or give its own set of rules. Due process means that the body observed the proper procedure in passing rules.



Restrictions on interpretative regulations: (a) does not change the character of a ministerial duty, (b) does not involve unlawful use of legislative or judicial power.



Administrative interpretations: may eliminate construction and uncertainty in doubtful cases. When laws are susceptible of two or more interpretations, the administrative agency should make known its official position.



Administrative construction/ interpretation not controlling as to the proper construction of a statute, but generally it is given great weight, has a very persuasive influence and may actually be regarded by the courts as the controlling factor.



Administrative interpretation is merely advisory; Courts finally determine what the law means.

c. Contingent legislation Pertains to rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends.

(2) Requisites for Validity Requisites of a valid administrative rule (WRAP) (1) Within the scope or authority of law (2) Authorized by law (3) Reasonableness (4) Promulgated in accordance with prescribed Procedure Publication Rules (1) Administrative rules and regulations are subject to the publication and effectivity rules of the Admin Code in relation to the Civil Code. (2) EO 200 requires publication of laws in the Official Gazette or in a newspaper of general circulation. Publication is indispensable, especially if the rule is general. EXCEPTIONS: (a) Interpretative rules (b) Internal regulations (i.e. regulating personnel) (c) Letters of instructions issued by administrative superior to subordinates (3) Effectivity: 15 days after publication, not 15 days from date of filing with the UP Law Center.

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ADMINISTRATIVE LAW EXCEPTIONS: (a) Different date is fixed by law or specified in the rule. (b) In case of imminent danger to public health, safety and welfare. Penal Rules Sec. 6, 1987 Administrative Code. Omission of Some Rules. – (2) Every rule establishing an offense or defining an act which, pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text. (1) The law itself must declare the act as punishable and must also define or fix the penalty for the violation. (2) Can administrative bodies make penal rules? NO. Penal statutes are exclusive to the legislature and cannot be delegated. Administrative rules and regulations must not include, prohibit or punish acts which the law does not even define as a criminal act. [People vs Maceren (1977)] (3) If a rule is penal, it must be published before it takes effect. [People vs Que Po Lay (1954)]

II. Quasi-Judicial (Adjudicatory) Power (Asked 4 times in the Bar) Definition The power of the administrative agency to determine questions of fact to which the legislative policy is to apply, in accordance with the standards laid down by the law itself Source Incidental to the power of regulation but is often expressly conferred by the legislature through specific provisions in the charter of the agency DISTINCTIONS FROM JUDICIAL PROCEEDINGS Kind of Administrative Judicial Proceedings Nature of Inquisitorial Adversarial Proceedings Rules of Liberally Follow technical Procedure applied rules in the Rules of Court Nature and Decision Decision Extent of limited to includes Decision matters of matters brought general as issue by the concern parties Parties The agency The parties are itself may be a only the private party to the litigants proceedings before it Requisites for a Valid Exercise (1) Jurisdiction (2) Due process

General Rule A tribunal, board or officer exercising judicial functions acts without jurisdiction if no authority has been conferred to it by law to hear and decide cases (1) Jurisdiction to hear is explicitly or by necessary implication, conferred through the terms of the enabling statute. (2) Effect of administrative acts outside jurisdiction—VOID.

(1) Administrative Due Process 1. Due Process 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 Cardinal Primary Rights: Ang Tibay v CIR (1950) lays down the cardinal primary rights: (1) Right to a hearing (Includes the right of a party to present his own case and submit evidence in support thereof) (2) The tribunal must consider the evidence presented (3) Decision must be supported by evidence. (4) Evidence must be substantial. Substantial Evidence: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise (5) Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected (6) Independent consideration of judge (Must not simply accept the views of a subordinate) (7) Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered. 

Due process does not always entail notice and hearing prior to the deprivation of a right. Hearing may occur after deprivation, as in emergency cases, in which case, there must be a chance to seek reconsideration. [UP Board of Regents vs CA (1999)]



Presence of a party at a trial is not always the essence of due process. All that the law requires is the element of fairness; that the parties be given notice of trial and (a) an opportunity to be heard (b) in administrative proceedings, an opportunity to seek reconsideration (c) an opportunity to explain one‘s side



The law, in prescribing a process of appeal to a higher level, contemplates that the reviewing officer is a person different from the one who issued the appealed decision. Otherwise, the

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ADMINISTRATIVE LAW review becomes a farce; it is rendered meaningless. [Rivera vs CSC (1995)] (2) 

Is a trial necessary? NO. WON to hold an adversarial trial is discretionary. Parties cannot demand it as a matter of right. [Vinta Maritime v NLRC (1978)].



The right of a party to confront and cross-examine opposing witness is a fundamental right which is part of due process. If without his fault, this right is violated, he is entitled to have the direct examination stricken off the record. [Bachrach Motors vs CIR (1978)]



Evidence on record must be fully disclosed to the parties. [American InterFashion vs Office of the President (1991)] BUT respondents in administrative cases are not entitled to be informed of findings of investigative committees but only of the decision of the administrative body. [Pefianco v Moral (2000)]

Due process is violated when: (1) There is failure to sufficiently explain the reason for the decision rendered; or (2) If not supported by substantial evidence; (3) And imputation of a violation and imposition of a fine despite absence of due notice and hearing. [Globe Telecom v NTC (2004)]. Self-incrimination The right against self-incrimination may be invoked by the respondent at the time he is called by the complainant as a witness. However, if he voluntarily takes the witness stand, he can be cross examined; but he may still invoke the right when the question calls for an answer which incriminates him for an offense other than that charged. [People vs Ayson (1989)] 2.

Notice and Hearing

When required: (1) When the law specifically requires it. (2) When it affects a person‘s status and liberty. When not required: (1) Urgent reasons. (2) Discretion is exercised by an officer vested with it upon an undisputed fact. (3) If it involves the exercise of discretion and there is no grave abuse. (4) When rules to govern future conduct of persons or enterprises, unless law provides otherwise. (5) In the valid exercise of police power.

(2) 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

(3)

(4)

(5)

(6)

subordinate where determinations are made at lower levels of the same administrative system; 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; 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; 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; 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 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.

(3) 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. vs 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 vs CTA (1963), Firestone Ceramics vs CA (1999), DBP vs CA (2001)] 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

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ADMINISTRATIVE LAW once judicially authorities.

determined

by

competent

III. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers 1. 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 vs. Moreno(1963)] 2. 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 3. Licensing Function Sec. 17, 1987 Administrative Code. Licensing 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. 18, 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. 2(10), 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(11), 1987 Administrative Code. ―Licensing‖ includes agency process involving the grant, renewal, denial, revocation, suspension, annulment,

withdrawal, limitation, amendment, modification or conditioning or a license. 

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 vs Central bank (1976)]

4. Fixing of rates, wages, prices Sec. 2(3), 1987 Administrative Code. ―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. 9, 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. 

Generally, the power to fix rates is a quasilegislative 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 vs 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 vs Public Utility Commissioner (1922)]

D. Judicial Recourse and Review I. Doctrine of Primary Administrative Jurisdiction II. Doctrine of Exhaustion of Administrative Remedies III. Doctrine of Finality of Administrative Action

I. Doctrine of Primary Administrative Jurisdiction GENERAL RULE Courts will not intervene if the question to be resolved is one which requires the expertise of

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ADMINISTRATIVE LAW 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 vs 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 vs 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 vs ABS CBN (2005)]

POLITICAL LAW REVIEWER

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 (4) Administrative agency is performing a quasijudicial or adjudicatory function (not rulemaking or quasi-legislative function [Smart vs NTC (2003)] Rationale: It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, would decide the same correctly, or correct any previous error committed in its forum [Caballes v Sison (2004)] When the Doctrine is Inapplicable: (1) If the agency has exclusive jurisdiction (2) When the issue is not within the competence of the administrative body to act on. (3) When the issue involved is clearly a factual question that does not require specialized skills and knowledge for resolution to justify the exercise of primary jurisdiction. Effect The case is not dismissed, but merely suspended until after the matters within the competence of the administrative agency are threshed out and determined. [Vidad vs RTC (1993)]

II. Doctrine of Exhaustion of Administrative Remedies GENERAL RULE Where the law has delineated the procedure by which administrative appeal or remedy could be effected, the same should be followed before recourse to judicial action can be initiated. [Pascual vs Provincial Board (1959)] Requisites: (1) The administrative agency is performing a quasijudicial function. (2) Judicial review is available. (3) The court acts in its appellate jurisdiction. Rationale: (1) Legal reason: The law prescribes a procedure. (2) Practical reason: To give the agency a chance to correct its own errors [and prevent unnecessary and premature resort to the courts (3) Reasons of comity: Expedience, courtesy, convenience. EXCEPTIONS to the Doctrine of Exhaustion of Remedies: (1) Purely legal questions. [Castro vs Secretary (2001)] (2) Steps to be taken are merely matters of form. [Pascual vs Provincial Board (1959)]

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POLITICAL LAW REVIEWER

ADMINISTRATIVE LAW (3) Administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy. [Pascual vs Provincial Board (1959)] (4) Validity and urgency of judicial action or intervention. [Paat vs CA (1997)] (5) No other plain, speedy, adequate remedy in the ordinary course of the law. [Paat v CA (1997)t; Information Technology Found’n v COMELEC (2004)] (6) Resort to exhaustion will only be oppressive and patently unreasonable. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] (7) Where the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings. [Corpuz vs Cuaderno (1962)] (8) Application of the doctrine will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] (9) When it involves the rule-making or quasilegislative functions of an administrative agency. [Smart vs NTC (2003)] (10) Administrative agency is in estoppel. [Republic vs Sandiganbayan (1996)] (11) Doctrine of qualified political agency (12) Subject of controversy is private land in land case proceedings. [Paat vs CA (1997)] (13) Blatant violation of due process. [Paat vs CA (1997); Pagara vs CA] (14) Where there is unreasonable delay or official inaction. [Republic vs Sandiganbayan (1996)] (15) Administrative action is patently illegal amounting to lack or excess of jurisdiction. [Paat vs CA (1997)] (16) Resort to administrative remedy will amount to a nullification of a claim. [DAR vs Apex Investment (2003); Paat vs CA (1997)] (17) No administrative review provided for by law. [Estrada vs CA (2004)] (18) Issue of non-exhaustion of administrative remedies rendered moot. [Estrada vs CA (2004)] (19) In quo warranto proceedings. [Corpus vs Cuaderno (1962)] (20) Law expressly provides for a different review procedure. [Samahang Magbubukid vs CA (1999)] Effect of Remedies:

Failure

to

Exhaust

Administrative

It does not affect jurisdiction of the court. The only effect of non-compliance is it that will deprive complainant of a cause of action, which is a ground for a motion to dismiss. But if not invoked at the proper time, this ground is deemed waived. [Republic vs Sandiganbayan (1996)]

III. Doctrine of Finality of Administrative Action No resort to the courts will be allowed unless the administrative action has been completed and there is nothing left to be done in the administrative structure. The Doctrine of Finality of Administrative Action is a broader doctrine which encompasses the Doctrine of Exhaustion of Administrative Remedies. It is a prerequisite for judicial review.

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UP L AW BAR REVIEWER

2012

POLITICAL

Election Law BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble • Moises Ronette Colobong Contributors| Alferri Bayalan • Cielo Gono • Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

POLITICAL LAW REVIEWER

ELECTION LAW

Election Law Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

POLITICAL LAW A. Suffrage B. Qualification and Disqualification of Voters C. Registration of Voters D. Inclusion and Exclusion Proceedings E. Political Parties F. Candidacy G. Campaign H. Board of Canvassers I. Remedies and Jurisdiction in Election Law J. Prosecution of Election Offenses

A. Suffrage The right to vote in the election of officers chosen by the people and in determination of questions submitted to the people.

I. 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 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. 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. Referendum: submission of a law pass 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. 3a, 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.

II. 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.]

B. Qualification and Disqualification of Voters I. Qualifications II. Overseas Absentee Voter

I. Qualifications [Art. V, Sec. 1, 1987 Const.] Citizenship: Filipino citizen by birth or naturalization Age: at least 18 at the time of the election Residency: (3) Resident of the Philippines for at least 1 year and (4) 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)] 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:

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POLITICAL LAW REVIEWER

ELECTION LAW (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. (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 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 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

II. Overseas Absentee Voter 1. Qualifications (1) All Filipino citizens abroad (2) Not otherwise disqualified by law (3) At least 18 years of age on the day of elections [Sec. 3f, R.A. 9189] 2. Disqualifications (1) have lost their Filipino citizenship in accordance with Philippine laws (2) have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country (3) 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 (4) 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: (a) he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his/her registration and (b) 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. (5) 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]

C. Registration of Voters I. Definition II. System of Continuing Registration of Voters III. Illiterate or disabled voters IV. Election Registration Board V. Change of residence or address VI. Challenges to right to register VII. Deactivation of Registration VIII. Reactivation of Registration IX. Certified List of Voters X. Annulment of Book of Voters XI. Overseas Absentee Voter

I. Definition Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer 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. 3a, R.A. 8189]

II. 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] PALATINO VS COMELEC G.R. No. 189868, December 15. 2009 Facts: COMELEC Resolution 8585 set the deadline for voter registration to 31 October 2009. Petitioners asked the SC to declare the resolution null and void, and to require COMELEC to extend the voter registration until 9 January 2010, the day before the 120-day period prior to the 10 May 2010 regular elections. COMELEC argued that it is authorize under the law to fix other dates for pre-election acts which include voter registration and in Akbayan-Youth vs. COMELEC, the SC denied a similar prayer for extension of deadline for voter registration for the 14 May 2001 elections.

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POLITICAL LAW REVIEWER

ELECTION LAW Issue: WON COMELEC Resolution 8585 should be declared void. Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself 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. The case is different from Akbayan-Youth vs. COMELEC, wherein the 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.

III. 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] R.A. 9369 The Poll Automation Law now defines a disabled voter as ―a person with impaired capacity to use the Automated Election System (AES)‖ (Sec. 2, Par. 11)

IV. Election Registration Board Composition: (1) Chairman: Election Officer If disqualified, COMELEC shall designate an acting Election Officer (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 incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. [Sec. 15, R.A. 8189]

V. 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, R.A. 8189] Change of address in the same municipality or city – voter shall immediately notify the Election Officer in writing. [Sec. 13, R.A. 8189]

VI. Challenges to right to register Who may challenge application for registration: Any voter, candidate or representative of a registered political party Form: (1) (2) (3) (4)

In writing State the grounds therefor Under oath and Attached to the application, together with the proof of notice of hearing to the challenger and the applicant

When: must be filed not later than the 2nd Monday of the month in which the same is scheduled to be heard or processed by the ERB [Sec. 18, R.A. 8189]

VII. Deactivation of Registration (1) 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: (2) Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty) (3) shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence as certified by clerks of courts (4) 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 the right to vote upon the expiration of 5 years after the service of sentence (5) Insane or incompetent persons as declared by competent authority (6) Did not vote in the 2 successive preceding regular elections (excluding SK elections) (7) Registration has been ordered excluded by the Court and (8) Lost his Filipino citizenship. [Sec. 27, R.A. 8189]

VIII. Reactivation of Registration Any voter whose registration has been deactivated may file with the Election Officer a sworn

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POLITICAL LAW REVIEWER

ELECTION LAW 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, R.A. 8189]

IX. Certified List of Voters 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, R.A. 8189]

X. 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 No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election. [Sec. 39, R.A. 8189]

XI. Overseas Absentee Voter a.

Definitions

Absentee Voting: process by which qualified citizens of the Philippines abroad exercise their right to vote. [Sec. 3a, R.A. 9189, The Overseas Absentee Voting Act] Overseas Absentee Voter: citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. [Sec. 3f, R.A. 9189] b. Coverage Elections for president, vice-president, senators and party-list representatives [Sec. 3f, R.A. 9189] c. Personal Overseas Absentee Registration Registration as an overseas absentee voter shall be done in person. [Sec.5, R.A. 9189] d. National Registry of Overseas Absentee Voters Definition: the consolidated list prepared, approved and maintained by the COMELEC, of overseas absentee voters whose applications for registration as absentee voters, including those registered voters who have applied to be certified as absentee voters, have been approved by the Election Registered Board. [Sec. 3e, R.A. 9189]

Grounds for cancellation/amendment of entries therein: (1) When the overseas absentee voter files a letter under oath addressed to the Comelec that he/she wishes to be removed from the Registry of Overseas Absentee 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 Overseas Absentee Voters for his/her failure to exercise his/her right to vote under R.A. 9189 for 2 consecutive national elections. [Sec. 9, R.A. 9189]

D. Inclusion and Exclusion Proceedings Exclusion Proceedings 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, R.A. 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, R.A. 8189] Petition for Inclusion of Voters in the List: When: any time except 105 days prior to a regular election or 75 days prior to a special election. Who may file: (1) One whose application for registration has been disapproved by the Board of Election Inspectors or (2) One whose name has been stricken out from the list [Sec. 34, R.A. 8189] Petition for Exclusion of Voters in the List: When: any time except 100 days prior to a regular election or 65 days prior to a special election. Who may file: (1) Any registered voter; (2) Any representative of a political party; (3) the Election Officer Overseas Absentee Voter Petition for Inclusion of Voters in the List: When: within 5 days from receipt of the notice of disapproval Who may file: applicant or his authorized representative [Sec. 6.7, R.A. 9189] Petition for Exclusion:

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POLITICAL LAW REVIEWER

ELECTION LAW When: any time not later than 210 days before the day of the elections Who may file: any interested person [Sec. 6.7, R.A. 9189]

E. Political Parties I. Party System II. Definitions III. Purpose IV. Procedure for Registration V. Who May Not be Registered VI. Grounds for refusal and/or cancellation of registration VII. Parameters in Allocation of Seats for PartyList Representatives VIII. Effect of Change of Affiliation

I. Party System A free and open party system shall be allowed to evolve according to the free choice of the people. [Art. IX-C, Sec. 6, Const.] No votes cast in favor of a political party, organization, coalition shall be valid, except for those registered under the party-list system. [Art. IX-C, Sec. 7, Const.]

II. Definitions 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. Political party: An organized group of citizens advocating an ideology or platform, principles and policies for the general conduct 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. 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]

III. 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]

IV. Procedure for Registration (1) 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 (2) COMELEC shall publish the petition in at least 2 national newspapers of general circulation (3) 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]

V. Who May Not be Registered (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]

VI. Grounds for refusal and/or cancellation of registration (1) 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: (2) Religious sect or denomination, organization or association, organized for religious purposes (3) Advocates violence or unlawful means to seek its goal

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POLITICAL LAW REVIEWER

ELECTION LAW (4) Foreign party or organization (5) 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 (6) Violates or fails to comply with laws, rules or regulations relating to elections (7) Declares untruthful statements in its petition (8) Ceased to exist for at least 1 year (9) Fails to participate in the last 2 preceding elections or (10) 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, R.A. 7941]

VII. Parameters in Allocation of Seats for Party-List Representatives 20% allocation – the combined number of all partylist congressmen shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party-list. Number available to party-list representatives actually obtained, is entitled to a maximum of 3 seats; one qualifying and of seats available to legislative districts .80

x 20 =

Number of seats available to party-list representatives

2% threshold – only those parties garnering a minimum of 2% of the total votes cast for the partylist system shall be entitled to one guaranteed seat each. Proportional representation – the additional seats shall be computed in ―proportion to their total number of votes‖. 3-seat limit – each party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats; one qualifying and 2 additional seats. BANAT VS. COMELEC GR NO. 179271, July 8. 2009 Held: In computing the allocation of additional seats, the continued operation of the 2% threshold for the distribution of the additional seats as found in the second clause of Sec. 11(b) of R.A. 7941 which provides that ―those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes‖ is unconstitutional. The 2% threshold frustrates the attainment of the permissive ceiling that 20% of the members of the HR shall consist of party-list representatives.

There are 2 steps in the second round of seat allocation: 1) The percentage of votes garnered by each partylist candidate is multiplied by the remaining available seats. The whole integer of the product corresponds to a party‘s share in the remaining available seats Formula for remaining available seats = No. of seats available to x Guaranteed seats party-list representatives of the twopercenters Formula for percentage of votes garnered by each party-list candidate = No. of votes garnered by Total no. of each party votes cast for party-list candidates

÷

2) Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed.

VIII. Effect of Change of Affiliation Any elected party-list representative who changes his political party or sectoral affiliation:  during his term of office shall forfeit his seat  within 6 months before an election shall not be eligible for nomination as party-list representative under his new party or organization [Sec. 15, R.A. 7941]

IX. Nomination of Party-List Representative Each registered party, organization or coalition shall submit to the COMELEC not later 45 days before the election a list of at least 5 names from which partylist representatives shall be chosen 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 No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except where the nominee: (1) dies (2) withdraws in writing his nomination or (3) becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list Incumbent sectoral representatives in the HR who are nominated in the party-list system shall not be considered resigned. [Sec. 8, R.A. 7941]

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ELECTION LAW

F. Candidacy I. Qualifications of Candidates II. Filing of Certificates of Candidacy

I. Qualifications of Candidates 1.

Candidate, Definition

Any person who files his certificate of candidacy within prescribed period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. [Sec. 15, R.A. 9369, Poll Automation Law] Unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. [Sec. 15, R.A. 9369] Any registered national, regional, or sectoral party, organization or coalition thereof that has filed a manifestation to participate under the party-list system which has not withdrawn or which has not been disqualified before the start of the campaign period. [Comelec Res. 8758, Feb. 4, 2010] 2. Qualifications Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure [Frivaldo v. COMELEC (1989); Labo v. COMELEC (1989)]. 3.

Disqualifications

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

POLITICAL LAW REVIEWER (Sec. 86) (12) Coerced, intimidated, compelled, or influenced any of his subordinates, members, or employees to aid, campaign or vote for or against any candidate or aspirant for the nomination or selection of candidates (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, (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, (February 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

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ELECTION LAW 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, (November 2008)] (5) Fugitive from justice in criminal and nonpolitical cases here and abroad (6) Insane or feeble-minded

II. 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  declare under oath the office for which he desires to be eligible and  cancel the certificate of candidacy for the other office/s [Sec. 73, B.P. 881]

(1) Effect of Filing 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]

POLITICAL LAW REVIEWER 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] 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. QUINTO VS COMELEC (MR Ruling) GR 189698, February 22. 2010 Held: The SC reversed its earlier ruling (1 Dec. 2009) and upheld the constitutionality of 3 provisions in election laws – Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881 and Sec. 4(a) COMELEC Resolution 8678 - that deemed appointive officials automatically resigned once they filed their certificates of candidacy. Ratio: By repealing Section 67 but retaining Section 66 of B.P. 881, 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. It is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of R.A. 9006 is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

(2) 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. (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] Duty of COMELEC [Sec. 76, B.P. 881] GENERAL RULE: The COMELEC shall have the

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ELECTION LAW 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 (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)]

(3) Nuisance Candidates Petition to declare a duly registered candidate as a nuisance candidate [Sec. 5, R.A. 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 representative with the COMELEC

duly

authorized

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

(4) Petition to Deny or Certificates of Candidacy

Cancel

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. Decision: Shall be decided, after due notice and hearing, not later than 15 days before the election. [Sec. 78, B.P. 881]

SALIC MARUHOM VS COMELEC GR NO. 179430, July 27. 2009 Held: 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.

(5) 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 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. 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, R.A. 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

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ELECTION LAW (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]

(6) 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.

G. Campaign I. Premature Campaigning II. Prohibited Contributions

I. 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, B.P. 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, R.A. 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] PENERA VS COMELEC G.R. No. 181613, November 25. 2009 Facts: On 11 September 2009, the SC affirmed the COMELEC‘s decision to disqualify Penera as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in election campaign outside the campaign period, in violation of Sec. 80 of B.P. 881. Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed premature campaigning, since under Sec. 15 of R.A. 9369 one is not officially a candidate until the start of the campaign period.

Issue: WON Penera‘s disqualification for engaging in premature campaigning should be reconsidered. Held: 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 R.A. 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.

1. 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] 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. (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, B.P. 881] Persons Prohibited from Campaigning: (1) Members of the board of election inspections [Sec. 173, B.P. 881] (2) Civil service officers or employees [Art. IXB, Sec. 2 (4), Const.] (3) Members of the military [Art. XVI, Sec. 5 (3), Const.] (4) Foreigners, whether juridical or natural persons.

2. 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, R.A. 7166]

3. 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

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ELECTION LAW 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  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, R.A. 9006]  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, R.A. 9006]  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, R.A. 9006, cf. Sec. 6.3, R.A. 9006] (6) All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001. [Sec. 3, R.A. 9006, The Fair Election Act]

4. Prohibited Acts

Note: Sec. 85 ―Prohibited election propaganda‖ of B.P. 881 was repealed by Sec. 14 R.A. 9006.

5. 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.

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, B.P. 881]

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

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, B.P.881]

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 (2) is portrayed by an actor or media personality who is himself a candidate. [Sec. 6, R.A. 9006]

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, B.P. 881)

6. 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

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ELECTION LAW 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, R.A. 9006]

7. Application for Rallies, Meetings and Other Political Activity (a) 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. (b) 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. (c) 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. (d) 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, B.P. 881]

II. Prohibited Contributions 1. Definitions Contribution: gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute  WON legally enforceable  made for influencing the results of the elections  excludes services rendered without compensation by individuals volunteering their time in behalf of a candidate or political party  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, B.P. 881] Expenditures: payment of money or anything of value or a contract, promise or agreement to make an expenditure  for the purpose of influencing the results of the election  includes the use of facilities personally owned by the candidate, the money value of the use of

POLITICAL LAW REVIEWER which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]

2. 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. [Sec. 95 and 96, B.P. 881]

3. 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.

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ELECTION LAW 97, B.P. 881]

H. Board of Canvassers

4. 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: voter

I. Composition of Board of Canvassers II. Prohibitions on BOC III. Canvass by the BOC IV. Certificate of Canvass and Statement of Votes V. Proclamation

I. Composition of Board of Canvassers [Sec. 20, R.A. 6646]

P5 for every Chairman

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]

5. 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

Vice Chairman Member

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

Province Provincial election supervisor or lawyer in the COMELEC regional office

Provincial fiscal Provincial superinten dent of schools

City City election registrar or a lawyer of COMELEC; In cities with more than 1 election registrar, COMELEC shall designate City fiscal City superinten dent of schools

6. 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 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, B.P. 881]

Municipality Election registrar or COMELEC representa tive

Municipal treasurer Most senior district school supervisor or in his absence, a principal of the school district or elementary school

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members, COMELEC may appoint the following as substitutes, in the order named: Chairman

Vice Chairman

Province Ranking lawyer of the COMELEC -Provincial auditor -Registrar of Deeds -Clerk of Court nominated by the Executive Judge of the RTC; -Any other available appointive provincial official

City Ranking lawyer of the COMELEC -City auditor or equivalent; -Registrar of Deeds; -Clerk of Court nominated by the Executive Judge of the RTC; -Any other available appointive city official

Municipality Ranking lawyer of the COMELEC -Municipal Administrat or; -Municipal Assessor; -Clerk of Court nominated by the Executive Judge of the MTC; -Any other available appointive municipal

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ELECTION LAW Member

Same as for ViceChairman

Same as for ViceChairman

official Same as for ViceChairman

II. Prohibitions on BOC (1) Chairman and members shall not be related within the 4th civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. [Sec. 222, B.P. 881] (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, B.P. 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, B.P. 881]

III. 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, R.A. 9369]

IV. 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, R.A. 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, R.A. 9369]

(3) 30 copies shall be distributed in accordance to Sec. 21, R.A. 9369. National BOC for president and vice-president Composition: The Senate and the Representatives in joint public session.

House

of

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: (3) canvass all the results for president and vicepresident and (4) proclaim the winning candidates. [Sec. 22, R.A. 9369] National BOC for Representatives

Senators

and

Party-List

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, R.A. 9369]

V. 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, B.P. 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, R.A. 7166] Election resulting in a tie: BOC, by resolution, upon 5 days notice to all tied candidates, shall hold a

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ELECTION LAW 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, B.P. 881] There is a tie when: (1) 2 or more candidates receive an equal and highest number of votes; or (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, R.A. 8295, Law on Proclamation of Solo Candidates]

I. Remedies and Jurisdiction in Election Law I. Petition Not to Give Due Course to Certificate of Candidacy II. Petition to Declare Failure of Elections III. Pre-Proclamation Controversy IV. Election Protest V. Quo Warranto

I. Petition Not to Give Due Course to Certificate of Candidacy Cancellation of Certificate of Candidacy 1. Grounds (1) False material representation in the certificate of candidacy; (2) 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

II. Petition to Declare Failure of Elections

POLITICAL LAW REVIEWER 1. 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.

2. 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 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, B.P. 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, B.P. 881]

3. Declaration of Failure of Election It is neither an election protest nor a preproclamation 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

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POLITICAL LAW REVIEWER

ELECTION LAW 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.

III. Pre-Proclamation Controversy (asked in 1987, 1988, 1996) 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]

1. Jurisdiction COMELEC has exclusive jurisdiction over preproclamation 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]

2. When Not Allowed For the positions of President, VP, Senator, and Member of the House of Representatives [Sec. 15, R.A. 7166]

3. Nature of Proceedings Heard summarily by the COMELEC after due notice and hearing. This is because canvass and proclamation should be delayed as little as possible.

4. 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) (b) (c) (d)

Incompelte Contain material defects; Appear to be tampered with or falsified; 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). (6) Manifest errors in the Certificates of Canvass or Election Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]

5. 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)]

6. Procedure a. 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], 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. (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]

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ELECTION LAW b. 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.

7. Effect of Filing of Pre-Proclamation Controversy (1) The period to file an election contest shall be suspended during the pendency of the preproclamation contest in the COMELEC or the Supreme Court. (2) The right of the prevailing party in the preproclamation 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.

8. 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.

9. 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)]

POLITICAL LAW REVIEWER

IV. 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 an election protest or a quo warranto which, although two distinct remedies, would have one objective in view: to dislodge the winning candidate from office. 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 preproclamation 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)] Who may file: A candidate who has duly filed a certificate of candidacy and has been voted for. When: within ten days after the proclamation of the results of the election. 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]

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POLITICAL LAW REVIEWER

ELECTION LAW (3) MeTC or MTC – over election contests involving barangay officials [Sec. 252. BP 881]

complainant may file the complaint with the fiscal or the Department of Justice, if warranted. [Sec. 265, B.P. 881]

Effect of filing petition to annual or to suspend the proclamation. - The filing with the Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. [Sec. 248. BP 881]

I. Jurisdiction over Election Offenses

V. Quo Warranto

II. Preferential Disposition of Election Offenses

A petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. [Samad v. Comelec, (1993)] In a quo warranto proceeding, the petitioner is not 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. Who may file: Any voter When: within ten days after the proclamation of the results of the election. Who has jurisdiction: (1) Comelec – over petitions for quo warranto involving regional, provincial and city officials [Sec. 253. BP 881] (2) RTC - over petitions for quo warranto involving municipal officials [Sec. 253. BP 881] (3) MeTC or MTC – over petitions for quo warranto involving barangay officials [Sec. 253. BP 881]

J. Prosecution of Election Offenses I. Jurisdiction over Election Offenses II. Preferential Disposition of Election Offenses III. Election Offenses IV. Arrests in Connection with Election Campaign V. Prescription VI. Prohibited Acts under RA 9369 The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. [Sec. 2 (6), Art. IX-C, 1987 Const] However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman. In the event that the COMELEC fails to act on any complaint within 4 months from its filing, the

RTCs have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. [Sec. 268, B.P. 881]

(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.

III. Election Offenses 1. Registration (1) Failure of the Board of Election Inspectors to post the list of voters in each precinct. [Sec. 9, R.A. 7166]; (2) Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter [Sec. 4, R.A. 8189]

2. Certificate of Candidacy (1) Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate [Sec. 27f, R.A. 6646] (2) Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate [Sec. 27f, R.A. 6646]; (3) Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election [Sec. 5, R.A. 8295]

3. Election Campaign (1) Appointment or use of special policemen, special agents or the like during the campaign period [Sec. 261m, B.P. 881] (2) Use of armored land, water or aircraft during the campaign period [Sec. 261r, B.P. 881] (3) Unlawful electioneering [Sec. 261k, B.P. 881]

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ELECTION LAW

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(4) Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period [Sec. 261t, B.P. 881]

service within the election period without the prior approval of the COMELEC [Sec. 261h, B.P. 881]

(5) Removal, destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof [Sec. 83, B.P. 881 vis-à-vis Sec. 262, B.P. 881]

(3) Intervening of public officers and employees in the civil service in any partisan political activity [Sec. 261i, B.P. 881]

4. Voting

(4) Use of public funds for an election campaign [Sec. 261o, B.P. 881]

(1) Vote-buying and vote-selling [Sec. 261a, B.P. 881]

(5) Illegal release of prisoners before and after election [Sec. 261n, B.P. 881]

(2) Conspiracy to bribe voters [Sec. 261b, B.P. 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 of promoting the election of such candidate. [Sec. 28, R.A. 6646]

(6) Release, disbursement or expenditure of public funds during the prohibited period [Sec. 261v, B.P. 881]

(3) Coercion of subordinates to vote for or against any candidate [Sec. 261d, B.P. 881] (4) Dismissal of employees, laborers, or tenants for refusing or failing to vote for any candidate [Sec. 261d(2), B.P. 881] (5) Being a flying voter [Sec. 261z (2), B.P. 881]

5. Counting of Votes (1) Tampering, increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors [Sec. 27b, R.A. 6646]  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. 27c, R.A. 6646]

(7) Construction of public works, etc. during the prohibited period [Sec. 261w, B.P. 881] (8) Suspension of elective local officials during the election period without prior approval of the COMELEC [Sec. 261x, B.P. 881]

8. Coercion, Intimidation, Violence (1) Coercion of election officials and employees (2) Threats, intimidation, terrorism, use of fraudulent devices or other forms of coercion [Sec. 261e, B.P. 881] (3) Use of undue influence [Sec. 261j, B.P. 881] (4) Carrying deadly weapons within the prohibited area [Sec. 261p, B.P. 881] (5) Carrying firearms outside residence or place of business [Sec. 261q, B.P. 881] (6) Organization or maintenance of reaction forces, strike forces, or similar forces during the election period [Sec. 261u, B.P. 881]

9. Other Prohibitions

6. Canvassing

(1) Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC [Sec. 27a, R.A. 6646 ] (2) Wagering upon the results of elections [Sec. 261c, B.P. 881]

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. 27e, R.A. 6646]

(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. 261dd (1), B.P. 881]

7. Acts of Government or Public Officers

(4) Opening booths or stalls within 30 meters of any polling place [Sec, 261dd (2), B.P. 881]

(1) Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period [Sec. 261g, B.P. 881] (2) Transfer of officers and employees in the civil

(5) Holding fairs, cockfights, etc. on election day [Sec. 261dd (3), B.P. 881] (6) Refusal to carry election mail during the

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ELECTION LAW election period [Sec. 261dd (4), B.P. 881]. In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise.

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

(7) Discrimination in the sale of air time [Sec. 261dd (5), B.P. 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.

(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

10. Penalties For individuals (1) Imprisonment of not less than 1 year but not more than 6 years, without probation [Sec. 264, B.P. 881] (2) Disqualification to hold public office (3) Deprivation of the right of suffrage

(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

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

(6) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns and

For a Political Party Payment of a fine not less than P10,000 after a 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, B.P. 881]

(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

IV. 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

V. Prescription 5 years from the date of their commission. If the discovery of the offense be made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. [Sec. 267, B.P. 881]

VI. Prohibited Acts Under R.A. 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

(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 and  the tampering, increase and/ or decrease votes refusal to credit the correct votes or to deduct tampered votes, 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

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ELECTION LAW  

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 BEIs or BOCs involved, shall be meted the same penalty of life imprisonment.

POLITICAL LAW REVIEWER

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UP L AW BAR REVIEWER

2012

POLITICAL

Local Governments BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble • Moises Ronette Colobong Contributors| Alferri Bayalan • Cielo Gono • Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

POLITICAL LAW REVIEWER

LOCAL GOVERNMENTS

Local Governments Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

A. B. C. D.

POLITICAL LAW Public Corporations Municipal Corporations Principles of Local Autonomy Powers of Local Government Units (LGUs)

A. Public Corporations 1. Concept 2. Classifications

1. Concept Distinguished from Government-Owned or Controlled Corporations (GOCCs) As to purpose A municipal corporation in its strict sense is the body politic constituted by the inhabitants of a city or town for the purpose of local government thereof. It is the body politic established by law particularly as an agency of the State to assist in the civil government of the country chiefly to regulate the local and internal affairs of the city or town that is incorporated. Non-municipal corporations, on the other hand, are public corporations created as agencies of the State for limited purposes to take charge merely of some public or state work other than community government. [National Waterworks & Sewerage Authority v. NWSA Consolidated Unions (1964)] As to personality (The National Coconut Corporation) was given a corporate power separate and distinct from our government, for it was made subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned. [Bacani v. National Coconut Corporation (1956)] It is an independent agency of the government although it is placed, for administrative purposes, under the Department of Public Works and Communications. It has continuous succession under its corporate name and may sue and be sued in court. It has corporate powers to be exercised by its board of directors; it has its own assets and liabilities; and it may charge rates for its services. [National Waterworks & Sewerage Authority v. NWSA Consolidated Unions (1964)] The mere fact that the Government happens to be a majority stockholder does not make it a public corporation. [Bacani v. National Coconut Corporation (1956)] By becoming a stockholder in the National Coal Company, the Government divested itself of its sovereign character so far as respects the

transactions of the corporation. Unlike the Government, the corporation may be sued without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government. [Bacani v. National Coconut Corporation (1956)] Nature and Status Definition A Local Government Unit (LGU) is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. Remaining to be an intra sovereign subdivision of a sovereign nation, but not intended to be an imperium in imperio, the LGU is autonomous in the sense that it is given more powers, authority, responsibilities and resources. [Alvarez vs Guingona (1996)] ―Local government‖ is ―municipal corporation‖

interchangeable

with

2. Classifications Municipal Corporation vs. Quasi-municipal corporation A municipal corporation exists by virtue of, and is governed by, its charter. A quasi-municipal corporation operates directly as an agency of the state to help in the administration of public functions. [Singco (1955)]

B. Municipal Corporations 1. Elements 2. Nature and Functions 3. Requisites for Creation, Conversion, Division, Merger or Dissolution LGC Sec. 14. Beginning of Corporate Existence The election and qualification of (1) chief executive AND (2) majority of the members of the Sanggunian UNLESS some other time is fixed therefore by the law or ordinance creating it. Note: Art.14 applies when the law creating it is SILENT as to the beginning of its corporate existence.

1. Elements Elements of a Municipal Corporation (1) A LEGAL creation or incorporation (2) A CORPORATE NAME by which the artificial or legal entity is known and in which all corporate acts are done (3) INHABITANTS constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents (4) A place or TERRITORY within which the local civil government and corporate functions are exercised.

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POLITICAL LAW REVIEWER

LOCAL GOVERNMENTS

2. Nature and Functions Dual Nature Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. [Sec. 15, LGC] The obligations of the old City of Manila survives the cession of the Philippines to the U.S. because of the corporate nature of the city. [Villas vs Manila (1921)] As a body politic with governmental functions, the LGU has the duty to ensure the quality of the environment (Sec. 16, LGC). It cannot claim exemption from PD 158 which imposes the same duty. [Republic vs Davao (2002)] Sec. 15. Political and Corporate Nature of LGUs Local government unit created or recognized under this Code is a (1) Body politic AND (2) Corporate endowed with powers to be exercised by it in conformity with law Exercise of power (as a): (1) Political subdivision of the national government AND (2) Corporate entity representing the inhabitants of its territory Implications A municipal corporation performs twin functions. Firstly, it serves as an instrumentality of the State in carrying out the functions of a government. Secondly, it acts as an agency of the community in the administration of local affairs. It is in the latter character that it is a separate entity acting for its own purposes and not a subdivision of the state. [Lidasan v COMELEC (1967)] 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. [Torio v Fontanilla (1978)] Difference Between the Political Nature and Corporate Nature of LGUs Political/Governmental Corporate/Municipal Political subdivision of Corporate entity national government representing inhabitants of its territory Includes the legislative, Includes those which are judicial, public and ministerial, private and political corporate LGU cannot be held Can be held liable ex liable except: contractu or ex delicto (1) If statute provides otherwise (2) Art. 2189, Civil Code

Political/Governmental Examples: (1) Regulations against fire, disease (2) Preservation of public peace (3) Maintenance of municipal plaza (4) Establishment of schools, post offices, etc.

Corporate/Municipal Examples: (1) Municipal waterworks (2) Slaughterhouses (3) Markets (4) Stables (5) Bathing establishments (6) Wharves (7) Fisheries (8) Maintenance of parks, golf courses, cemeteries, airports

3. Requisites for Creation, Conversion, Division, Merger or Dissolution Creation/Conversion [Art. X, 1987 Consti] a. General Provisions No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except:  in accordance with the criteria established in the Local Government Code and  subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. [Sec. 10, LGC] Local government units may: (1) group themselves, (2) consolidate or coordinate their efforts, services, and resources for purposes: (1) commonly beneficial to them (2) in accordance with law. [Sec. 13, LGC] The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions: (1) for purposes of administrative decentralization (2) to strengthen the autonomy of the units therein and (3) to accelerate the economic and social growth and development of the units in the region. [Sec. 14, LGC] b.

Specific Requirements

Metropolitan Political Subdivisions The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall: (1) retain their basic autonomy and (2) be entitled to their own local executive and legislative assemblies.

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LOCAL GOVERNMENTS The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. [Sec. 11, LGC]

within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. [Sec. 6, LGC]

Highly Urbanized Cities and Independent Component Cities Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province.

The authority to create municipal corporations is essentially legislative in nature. [Pelaez v. Auditor General (1965)]

The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. [Sec.12, LGC] Autonomous Regions There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. [Sec. 15, LGC] The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. [Sec. 16, LGC] All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. [Sec. 17, LGC] The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. [Sec.18, LGC]

Authority to Create Local Government Units c.

A local government unit may be  created, divided, merged, abolished, or its boundaries substantially altered either - by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, OR - by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located

The enactment of a LGC is not a condition sine qua non for the creation of a municipality, and before the enactment of such code, the power remains plenary except that the creation should be approved by the people concerned in a plebiscite called for the purpose. [Torralba v. Sibagat (1987)] The SC held that sec. 19 of RA 9054 insofar as it grants ARMM Regional Assembly the power to create provinces and cities is void. (Constitution allows delegation of creating municipalities and barangays only.) [Bai Sema v. COMELEC (2008)] Creations under Sec. 68, Admin Code The alleged power of the President to create municipalities under Sec. 68 of the Admin Code amounts to an undue delegation of legislative power. The authority to create municipal corporations is essentially legislative in nature. The power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. It does not include the authority either to abolish or create such. [Pelaez v. Auditor General (1965)] Effect if created under Sec 68, Admin Code: The municipality is non-existent. It cannot be a party to any civil action [Mun. of Kapalong v. Moya (1988)] De Facto Corporations De facto municipal corporation: There is defect in creation; legal existence has been recognized and acquiesced publicly and officially. Requisites: (LACA) (1) valid law authorizing incorporation; (2) attempt in good faith to organize it; (3) colorable compliance with law; and (4) assumption of corporate powers. There can be no color of authority in an unconstitutional statute. An unconstitutional act confers no rights, imposes no duties, affords no protection, and creates no office. However, even if the EO was invalid, it does not mean that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity. This is because the existence of the EO is ‗an operative fact which cannot justly be ignored.‘ [Malabanan v Benito (1969)] The Municipality of Sinacban2 possesses legal personality. Where a municipality created as such by 2

Sinacban was created by EO 258 of then President Elpidio Quirino, pursuant to Sec. 68 of the Revised Administrative Code of 1917.

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LOCAL GOVERNMENTS executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. 3

Sinacban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacban part of the Second District of Misamis Occidental. Above all, Sec. 442(d) of the LGC of 1991 must be deemed to have cured any defect in the creation of Sinacban. Since Sinacban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution. Attack Against Validity of Incorporation When the inquiry is focused on the legal existence of a body politic, the action is reversed to the state in a proceeding for quo warranto or any other direct proceeding. Collateral attacks shall not lie. Proceeding must be: (RST) (1) Brought in the name of the Republic of the Philippines (2) Commenced by the Sol Gen or the fiscal when directed by the president (3) Timely raised [Municipality of San Narciso v Mendez (1994)] The municipality can still be considered to have attained at least a status closely approximating that of a de facto corporation despite the invalidity of the EO creating it. This is because the State itself recognized the continued existence of San Andres when it classified it as a 5th class municipality. And, more importantly, Sec. 442(d) of the LGC cured whatever defect there was in its creation. [Municipality of San Narciso v. Mendez] Municipal Corporation by Prescription Existence is presumed where the community 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)] The municipality was created under a void law (Sec. 68, Admin Code). But it should be considered a de jure personality because it existed 1 year before the Pelaez case, and various governmental acts indicate the State‘s recognition of its existence. [Mun. of Candijay v. CA (1995)] 3

De jure: by virtue of the ordinance appended to the 1987 Constitution; Sec. 442 (d), LGC curative. Sec. 442(d), LGC: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.

d.

Requirements (1) In accordance with the criteria established in the LGC (2) Majority of the votes cast in a plebiscite in the political units directly affected.

Purpose of plebiscite: to prevent gerrymandering (i.e. the practice of creating legislative districts to favor a particular candidate or party) and creation or abolition of units for purely political purposes. Criteria [Sec. 7, LGC] As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: (IPL) (1) Income. - must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population. (2) Population. - total number of inhabitants within the territorial jurisdiction of the local government unit concerned. (3) Land Area. - must be:  Contiguous, unless it comprises two or more islands OR is separated by a LGU independent of the others;  Properly identified by metes and bounds with technical descriptions; and  Sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance attested to by: (1) Department of Finance (DOF) (2) National Statistics Office (NSO) (3) Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). Illustrations The requirement on metes and bounds was meant merely as a tool in the establishment of LGUs. So long as the territorial jurisdiction of a city may be reasonably ascertained, the intent behind the law (i.e., the determination of the territorial jurisdiction over which governmental powers may be exercised) has been sufficiently served. A cadastral type description is not necessary. [Mariano v. COMELEC (1995)]  NOTES: The ruling in Mariano is an exception to the general rule of proper identification because of its peculiar facts: (1) the legislature deliberately omitted the description in metes and bounds because of the pending litigation between Makati and Taguig over Fort Bonifacio; (2) RA 7854 provided that the territory of the City of Makati will be the same as that of the Municipality of Makati, thus making the territorial jurisdiction of Makati ascertainable (subject, of course, to the result of the unsettled boundary dispute).

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LOCAL GOVERNMENTS Compliance with population OR land area, in addition to income, is sufficient to satisfy the requirements in the creation of a city. [Samson v. Aguirre (1999)] Internal Revenue Allocations (IRAs) form part of the income of LGUs. The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue to the general fund of the LGU and are used to finance its operations subject to specified modes of spending the same as provided for in the LGC and its implementing rules and regulations. As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the LGU, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. [Alvarez v. Guingona (1996)] NOTES: For provinces and cities, the income requirement must be satisfied; and EITHER population OR territory. In the creation of barangays, there is no minimum requirement for area and income. As to the income requirement, average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

Plebiscite No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless there is: (1) Law or ordinance (2) Approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. (3) Said plebiscite shall be conducted by the commission on elections (COMELEC) within 120 days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. [Sec. 10, LGC] Illustrations When the law states that the plebiscite shall be conducted ―in the political units directly affected‖, it means that the residents of the political entity who would be economically dislocated by the separation of a portion thereof have the right to vote in said plebiscite. What is contemplated by the phrase ―political units directly affected‖ is the plurality of political units which would participate in the plebiscite. [Padilla v. COMELEC (1992)] The downgrading of Santiago City from an independent component city to a component city falls within the meaning of creation, division, merger, abolition, or substantial alteration of boundaries; hence, ratification in a plebiscite is

necessary. There is material change in the political and economic rights of the LGUs directly affected as well as the budget preparation, which budget should reflect the estimates of people therein. It is therefore but reasonable to require the consent of the people to be affected. Effects of downgrading: (ART) (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. [Miranda v. Aguirre (1999)] The creation of a separate congressional district of Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highlyurbanized city but is a natural and logical consequence of its conversion…The Court found no need for the people of San Juan to participate in the plebiscite. They had nothing to do with the change of status of neighboring Madaluyong. [Tobias v. Abalos (1994)]

Beginning of Corporate Existence When a new local government unit is created, its corporate existence  shall commence upon the election and qualification of its chief executive and a majority of the members of its sanggunian,  unless some other time is fixed therefor by the law or ordinance creating it. [Sec. 14, LGC]

Summary: Creation of Specific LGUs 4 See Annex A.

Division and Merger; Abolition Division and Merger Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation:  Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code:  Provided, further, That the income classification of the original local government unit or units shall not fall below its current classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein. [Sec. 8, LGC] Effects of Merger (1) Legal existence of LGU to be annexed is dissolved 4

For creation of specific LGUs, please check LGC 385‐386, 441‐442, 449‐450, 460‐461

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LOCAL GOVERNMENTS (2) Laws and ordinance of the annexing LGU prevails (3) The right of office in the annexed LGU is terminated (4) Title to property is acquired by the annexing LGU (5) Debts are assumed by the annexing LGU [Martin, supra] Effects of division (1) The legal existence of the original municipality is extinguished (2) Property, rights and powers are acquired by the dividing LGUs [Martin, supra]

Abolition A local government unit may be abolished:  when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. [Sec. 9, LGC] When there is no dissolution (1) Non-user or surrender of charter (2) Failure to elect municipal officers (3) Change of sovereignty (4) Change of name

C. Principles of Local Autonomy 1. 2. 3. 4.

State Policy, Principles of Decentralization Local Autonomy Decentralization Devolution

1. State Policy, Principles of Decentralization Art. X, 1987 Constitution Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. The Congress shall enact a local government code which shall (1) provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, (2) allocate among the different local government units their powers, responsibilities, and resources, (3) and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials,

POLITICAL LAW REVIEWER (4) and all other matters relating to the organization and operation of the local units. [Sec. 3, LGC] The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. [Sec. 4, LGC] Each LGU shall have the power to create its own sources of revenues and to levy taxes, fees and charges, (1) subject to such guidelines and limitations as the Congress may provide, (2) consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. [Sec. 5, LGC] Local Government Code (RA 7160) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with: (1) appropriate local government units, (2) nongovernmental and people's organizations, (3) and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. [Sec. 2(c), LGC]

2. Local Autonomy The principle of local autonomy under the 1987 Constitution simply means decentralization (discussed below). [Basco vs PAGCOR (1991)] Illustrations The CSC cannot declare the provision ―upon recommendation of the local chief executive concerned‖ as merely directory. Such provision is in consonance with local autonomy. [San Juan vs CSC (1991)] An A.O. may not compel LGUs to reduce their total expenditures. Supervising officials may not lay down or modify the rules. These rules were made in furtherance of local autonomy. [Pimentel vs Aguirre (2000)] HOWEVER, the Constitution did not intend, for the sake of local autonomy, to deprive the legislature of all authority over LGUs, in particular, concerning discipline. [Ganzon vs CA (1991)]

3. Decentralization NOTE: Decentralization is a means to achieve local autonomy. Autonomy is either (1) decentralization administration or (2) decentralization of power.

of

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LOCAL GOVERNMENTS There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power. Purpose: to relieve the central government of the burden of managing local affairs and enable it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. [Limbona v. Mangelin (1989)] Cf. Decentralization of power is the abdication of political power in favor of LGUs declared to be autonomous. There is self-immolation where autonomous government is accountable, not to the central government, but to its constituents. (Note: not allowed by our Constitution.) Sec. 1 of AO 372 (Adoption of Economy Measures in Government for FY 1998), insofar as it ―directs‖ LGUs to reduce expenditures by at least 25%, is a valid exercise of the President‘s power of general supervision over LGUs as it is advisory only. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. [Pimentel v. Aguirre, supra]

4. Devolution (asked in 1999) Refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities [Sec. 17, LGC]; the transfer of power and authority from the National Government to LGUs to enable them to perform specific functions and responsibilities. [Art. 24, IRR of the LGC]

D. Powers of Local Government Units (LGUs) 1. Police Power (General Welfare Clause) 2. Eminent Domain 3. Taxing Power 4. Closure and Opening of Roads 5. Legislative Power 6. Corporate Powers 7. Liability of LGUs 8. Settlement of Boundary Disputes 9. Succession of Elective Officials 10. Discipline of Local Officials 11. Recall Powers in General Sources of Powers of LGUs (1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art. X (2) Statutes, e.g. LGC (3) Charter (particularly of cities)

POLITICAL LAW REVIEWER (4) Doctrine of the right of self-government, but applies only in States which adhere to the doctrine Classification of Powers of LGUs (1) Express, Implied, Inherent (2) Public or Governmental, Proprietary (3) Intramural, Extramural (4) Mandatory, Directory; Discretionary

Private

or

Ministerial,

Execution of Powers Where statute prescribes the manner of exercise, the procedure must be followed. Where statute is silent, LGUs have discretion to select reasonable means and methods of exercise. Power to generate and apply resources Local government units shall have the power and authority to: (1) Generate and apply resources (2) Establish an organization responsible for implementation of development plans, program objectives, and priorities (3) Own sources of revenues (Sec.5, Art. X, Constitution; Sec.18 LGC) which include: (a) Power to create own sources (b) Levy taxes, fees and charges  Shall accrue exclusively for their own use and disposition  Limitation: guidelines Congress may provide (c) Just share in national taxes (Sec.6, Art. X, Constitution; Sec.18 LGC)  Determined by law  Automatically and directly released (d) Equitable share in utilization and development of national wealth (Sec.7, Art. X, Constitution; Sec.18 LGC)  Within respective territorial jurisdictions  In the manner provided by law  Sharing with inhabitants by way of direct benefits (e) Acquire, develop, lease, encumber, alienate, or otherwise dispose of property (Sec.18 LGC)  Real or personal property  Made in a proprietary capacity (f) Apply resources and assets (Sec.18 LGC)  Purpose: productive, development, or welfare purposes  In the exercise of their governmental or proprietary powers and functions [Sec.18, LGC]

1. Police Power (General Welfare Clause) Preservation of peace and order within respective regions [Sec.21, Art. X, Constitution]

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LOCAL GOVERNMENTS (1) Responsibilities of local police agencies (2) Local police shall be organized, maintained, supervised and utilized in accordance with applicable laws. Defense and security of regions [Sec.21, Art. X, Constitution] (1) Responsibility of National Government General (1) (2) (3)

Welfare Clause [Sec.16 LGC] Powers expressly granted Powers necessarily implied Powers necessary, appropriate or incidental for efficient and effective governance (4) Powers essential to the promotion of general welfare (5) Shall ensure and support: (a) Preservation and enrichment of culture (b) Promotion of health and safety (c) Enhancement of the right of the people to a balance ecology (d) Development of self reliant scientific and technological capabilities (e) Improvement of public morals (f) Economic prosperity and social justice (g) Promotion of full employment among residents (h) Maintenance of peace and order (i) Preservation of the comfort and convenience of inhabitants

Nature The police power of a municipal corporation extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. 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)] To constitute ―public use‖:  The public in general should have equal or common rights to use the land or facility involved on the same terms  The number of users is not the yardstick in determining whether property is properly reserved for public use or public benefit [Republic v. Gonzales] 2 Branches of the GWC The General Welfare Clause has 2 branches: (1) the general legislative power which authorizes municipal councils to enact ordinances and make regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law; (2) The police power, which authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitants, and for the protection of their property.

POLITICAL LAW REVIEWER

Ordinances imposing the licenses and permits for any business establishments, for purposes of regulation enacted by the municipal council of Makati, falls under the 1st branch. [Rural Bank of Makati, Inc v Municipality of Makati (2004)] Limitations (1) The General Welfare Clause cannot be used to justify an act that is not specifically authorized by law. (2) Powers of the LGUs under the general welfare clause [Sec.16, LGC] (a) Powers expressly granted to the LGU (b) Power necessarily implied therefrom (c) Powers necessary, appropriate, or incidental for its efficient and effective governance (3) For ordinance to be valid exercise of police power [Tatel v. Mun. of Virac (1992)]: (a) Not contrary to the Constitution and/or statute (b) Not unfair or oppressive (c) Must not be partial or discriminatory (d) Not prohibit but may regulate trade (e) General and consistent with public policy (f) Not unreasonable Illustrations: Police Power Applies  A municipal ordinance prescribing the zonification and classification of merchandise and foodstuff sold in the public market [Eboňa v Municipality of Daet (1950)]  A proclamation reserving parcels of the public domain for street widening and parking space purposes [Republic v Gonzales]  Condemnation and demolition of buildings found to be in a dangerous or ruinous condition within the authority provided for by municipal ordinances [Chua Huat vs CA (1991)]  Regulation and operation of tricycles-for-hire and to grant franchises for the operation thereof. However, this power is still subject to the guidelines prescribed by the DOTC. Moreover, the newly delegated powers pertain to the franchising and regulatory powers therefore exercised by the LTFRB. [LTO vs City of Butuan (2000)]  The declaration of an area as a commercial zone through a municipal ordinance. Corollary thereto, the state may interfere with personal liberty with property, business, and occupations. [Patalinhug vs CA (1994)]  Demolition of stalls causing traffic and deteriorated sanitation [Villanueva vs Castaneda (1987)]

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LOCAL GOVERNMENTS  Deny an application for permit or avoid the injury to the health of residents. [Technology Developers vs CA (1991)]  Provide for burial assistance to the poor. [Binay vs Domingo, supra]  Abatement of a public nuisance because stored inflammable materials created a danger to the people within the neighbourhood [Tatel vs Mun. of Virac (1992)]  Rescind contracts [Tamin vs CA (1994)]  Enforcement of fishery laws in municipal waters including the conservation of mangroves. [Tano vs Socrates (1997)] Illustrations: Police Power Does Not Apply  The LGU has no power to prohibit the operation of night clubs, a lawful trade or pursuit of occupation. It may only regulate. [De La Cruz vs Paras (1983)]  ―Anxiety, uncertainty and restiveness‖ among stallholders and traders cannot be a ground to revoke the mayor‘s permit. The General Welfare claim is too amorphous. [Greater Balanga vs Mun. of Balanga (1994)]  Butuan city board passes an ordinance requiring that the sale of tickets to movies, exhibitions or other performances to children between 7-12 years of age should be at half price. The said ordinance was declared void. The theater operators are merely conducting their legitimate business. There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. [Balacuit v CFI (1988)]  The power of the municipal government to issue fishing privileges is only for revenue purposes. BUT the power of the LLDA to grant permits is for the purpose of effectively regulating and monitoring activities in the lake region and is in the nature of police power. [Laguna Lake Development Authority v. CA (1995)]

2. Eminent Domain [Sec. 19, LGC] Eminent Domain -- It is the ultimate right of the sovereign power to appropriate not only public but private property of citizens within the territorial sovereignty to public purpose [Charles River Bridge vs. Warren Bridge, (1837)] Requisites for a Valid Exercise of Eminent Domain (COP-JO) (1) Through the Chief Executive of LGU (2) Acting pursuant to an ordinance (3) For the purposes of:

Public use or welfare For the benefit or the poor and the landless (4) Payment of just compensation  Amount determined by proper court  Based on fair market value at the time of the taking (5) Valid and definite offer made  

Right by the State to immediately take possession: (1) Upon filing of expropriation proceedings (2) Upon deposit with proper court of at least 15% of the fair market value of the property Offer to buy private property for public use or purpose shall be in WRITING. It shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered. If the owner‘s accept the offer in its entirety, a contract of sale shall be executed and payment made. If the owner/s are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the Sanggunian, or in his absence, any member of the Sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. The contract of sale shall be supported by the following documents: (1) Resolution of the Sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract. (2) Ordinance appropriating the amount specified in the contract, and (3) Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disturbed or spent for any purpose other than to pay for the purchase of the property involved. [Article 35 IRR of LGC] Illustrations of Eminent Domain  There is no need to get DAR approval before expropriation [Camarines Sur vs CA (1993)]  There must be genuine necessity of a public character. There is no genuine necessity if another road more ideal is available. [Meycauyan vs IAC (1988)]  The ordinance which requires cemeteries to set aside a portion of their lots to paupers is not an exercise of police power, but a taking without compensation. [QC vs Ericta (1983)]

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LOCAL GOVERNMENTS  Eminent domain may be exercised over easements (property rights), not just lands or personal property. [NPC vs Jocson (1992)]  Necessity does not contemplate the economic relief of a few families devoid of any other public advantage [Manila vs Arellano (1950)]  Eminent domain requires an ordinance, not just a resolution. Res judicata does not apply to expropriation cases [Paranaque vs VM Realty (1998)]  Just compensation shall be determined at the time of taking, NOT at the time of filing complaint Although the general rule in determining just compensation in eminent domain is the value of the property as of the date of filing of the complaint, the rule admits of an exception: where the SC fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings. Finally, while sec.4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation, such law cannot prevail over the Local Government Code, which is substantive law. [Cebu vs Apolonio (2002)]  It

is possible that the purpose for expropriation is changed after such is granted. [Republic vs CA (2002)]

Immediate Entry by the LGU Requisites: (1) Filing of complaint for expropriation sufficient in form and substance (2) The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on the current tax declaration [Bardilion v Masili (2003)] Upon compliance with the requirements for immediate entry, the issuance of a writ of possession becomes ministerial. No hearing is required for the issuance of the writ. The LGC did not put a time limit as to when a LGU may immediately take possession of the property. As long as the expropriation proceedings have been commenced and the deposit made, the LGU cannot be barred from praying for the issuance of writ of possession. [City of Iloilo v Legaspi (2004)] Socialized Housing The UDHA and the Expropriation by the LGUs i.e. Sec.9 of the Urban Land and Housing Act, which speaks of PRIORITIES in acquisition) should be read in connection with Sec.10 (MODES of acquisition). If the land sought to be expropriated is located in urban areas and fall under the UDHA, the LGU must allege compliance with Secs. 9 and 10 for their suit to prosper. Otherwise, it would be premature.

POLITICAL LAW REVIEWER Jurisprudence Under the Urban Land and Housing Act, there is a priority in expropriation of which the properties of the government or any of its subdivision rank number one and privately owned properties ranked last. Also, the said act provides that expropriation should be the last alternative, giving way to other modes of acquisition like community mortgage and swapping. Otherwise it would be deprivation of property. [Filstream International Inc v CA (1998)] The UDHA introduced a limitation on the size of the land sought to be expropriated for socialized housing. It exempted ―small property owners‖. The elements of small property owners are: (1) Those owners of real property which consists of residential lands with an area of not more than 300 sq. meters in highly urbanized cities (800 in other urban cities); and (2) They do not own real property other than the same. [City of Mandaluyong v Aguilar (2001)]

3. Taxing Power [Sec. 18, LGC] Sources of LGU funds: (O-TIU) (1) Own sources of revenues (2) Taxes, fees and charges: which shall accrue exclusively for their use and disposition and which shall be retained by them (3) Just share in national taxes which shall be automatically and directly released to them without need for any further action (Internal Revenue Allotments) (4) Equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits Fundamental principles governing the exercise of the taxing and other revenue-raising powers of LGUs [Sec. 130, LGC] (PE-PUB) (1) Taxation shall be uniform in each LGU; (2) Taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayer’s ability to pay; levied and collected only for public purposes; not unjust, excessive, oppressive, or confiscatory; not contrary to law, public policy, national economic policy, or in restraint of trade; (3) The collection of local taxes, fees, charges and other imposition shall in no case be left to any private person; (4) The revenue shall inure solely to the benefit of, and be subject to disposition by, the LGU, unless otherwise specifically provided herein; and (5) Each LGU shall, as far as practicable, evolve a progressive system of taxation. Common Limitations on the Taxing Powers of LGUs [Sec. 133, LGC]

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LOCAL GOVERNMENTS (1) Income tax (except when levied on banks and financial institutions) (2) Documentary stamp tax (3) Estate tax (4) Customs duties, registration fees of vessels and all other kinds of customs fees and charges (5) Taxes, fees and charges and other impositions upon goods carried in or out of, or passing through, the territorial jurisdiction of local government units in the 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 (6) Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen (7) Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for a period of 6 and 4 years, respectively, from date of registration (8) Excise taxes (9) Percentage taxes or VAT (10) Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight, and common carriers (11) Taxes on premiums paid by way of reinsurance or retrocession (12) Taxes, fees, charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles (13) Taxes, fees, or other charges in Phil. products actually exported, except as otherwise provided therein (14) Taxes, fees or charges, on Countryside and Barangay Enterprises and cooperatives duly registered under RA 6810 and the Cooperative Code (15) Taxes, fees, or charges of any kind on the National Government, its agencies and instrumentalities Fundamental principles governing the financial affairs, transactions and operations of LGUs [Sec. 305, LGC] (1) No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; (2) Local government funds and monies shall be spent solely for public purposes; (3) Local revenue is generated only from sources expressly authorized by law or ordinance, and collection thereof shall at all times be acknowledged properly; (4) 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; (5) 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; (6) Every officer of the LGU whose duties permit or require the possession or custody

POLITICAL LAW REVIEWER 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; (7) Local governments shall formulate sound financial plans, and the local budgets shall be based on functions, activities, and projects, in terms of expected results; (8) Local budgets shall operationalize approved local development plans; (9) LGUs shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units; (10) 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; (11) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units; and (12) The LGU shall endeavor to have a balanced budget in each fiscal year of operation Jurisprudence Sec. 234 withdrew all exemptions from real property taxes, even GOCCs when the beneficial use of the property has been granted to a taxable person for consideration or otherwise. MCIAA is a GOCC and an instrumentality, therefore, RPT exemption granted under its charter is withdrawn [MCIAA vs Marcos (1997)] Tax exemption of property owned by the Republic refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). The properties of NDC belong to the Government. [NDC vs Cebu, (1992)] LGUs, in addition to administrative autonomy, also enjoy fiscal autonomy. LGUs have the power to create their own sources and revenue, in addition to their equitable share in the national taxes as well as the power to allocate resources in accordance with their own priorities. A basic feature of local fiscal autonomy is the automatic release of the shares of the LGUs in the national internal revenue. This is mandated by no less than the constitution. Any retention is prohibited. [Pimentel v Aguirre (2000)]

4. Closure and Opening of Roads [Sec. 21, LGC] What roads are subject, those within jurisdiction of LGU (1) Local road (2) Alley (3) Park (4) Square

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LOCAL GOVERNMENTS Permanently close or open (1) Ordinance: Vote of at least 2/3 of all members of the Sanggunian (2) When necessary, an adequate substitute for the public facility should be provided (3) Make provision for public safety (4) If permanently withdrawn from public use (5) May be used or conveyed for any purpose for which other real property belonging in LGU may be lawfully used or conveyed (6) Freedom park: must have provision for relocation to new site Temporary close or open (1) Ordinance (2) May be done:  During actual emergency  Fiesta celebrations  Public rallies  Agricultural or industrial fairs  Undertaking of public works and highways, telecommunications, and waterworks projects (3) Duration specified in written order by local chief executive (4) If for athletic, cultural, or civic activities: must be officially sponsored, recognized, or approved by LGU. Temporary closure and regulation of any local street, road, thoroughfare, or any other public place  By any city, municipality, or barangay  Where shopping malls, Sunday, flea or night markets, or shopping areas may be established  Where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold Illustrations A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. The right of the public to use the city street may not be bargained away through contract. The authorization given for the use of the city street as a vending area for stallholders who were granted licenses by the City Government contravenes the general law that reserves city streets and roads for public use. It may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve. [Dacanay vs Asistio (1992)] The provincial council has the authority to determine whether or not a certain property (in this case a provincial road) is still necessary for public use [Cabrera vs CA (1991)] The power of the LGU to enact zoning ordinances for the general welfare prevails over the deed of restrictions. [Sangalang vs IAC(1989)]

POLITICAL LAW REVIEWER The closure of roads under police power is not eminent domain. No grant of damages is awarded. [Cabrera vs CA (1991)] Effect: The determination of the location of the camino vecinal through an ordinance will defeat the testimonies of witnesses as to the location of said passageway. [Pilapil vs CA (1992)] The MMDA does not have police power, but the LGUs do. There should have been an ordinance by the LGU to effect an opening of roads. [MMDA vs Bel Air (2000)]

5. Legislative Power [Secs. 48-59, LGC] Exercised by: (1) Sangguniang panlalawigan for the province (2) Sangguniang panlungsod for the city (3) Sangguniang bayan for the municipality (4) Sangguniang barangay for the barangay [Sec. 48, LGC] Presided by: (1) Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because he is not a member of the Sanggunian. [Perez vs Dela Cruz (1969)] (2) The incumbent local chief executive acting as the chief executive may not preside over the sessions of the Sanggunian. Why? To ensure better delivery of public services and provide a system of checks and balances between the executive and legislative. [Gamboa vs Aguirre, supra] In case of inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer who shall certify within 10 days from the passage of the ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided [Sec. 49, LGC] Internal Rules of Procedure  Adopted/update on the 1st regular session following election of its members- within 90 days  Provides for: Organization of the Sanggunian and the election of its officers Standing Committees Creation (Including the committees on appropriations, women and family, human rights, youth and sports development, environmental protection, and cooperatives; the general jurisdiction of each committee Election of the chairman and members of each committee  Order and calendar of business for each session  Legislative process

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LOCAL GOVERNMENTS -

-

-

-

Parliamentary procedures (including the conduct of members during sessions) Discipline of members for disorderly behavior and absences (without justifiable cause for 4 consecutive sessions) Penalty: censure, reprimand, or exclusion from the session, suspension for not more than 60 days or expulsion Suspension or expulsion: requires concurrence of at least 2/3 vote of all Sanggunian members A member convicted by final judgment to imprisonment of at least 1 year for any crime involving moral turpitude shall be automatically expelled from the Sanggunian Other rules as the Sanggunian may adopt [Sec. 50, LGC]

Quorum Majority of all members of the Sanggunian who have been elected and qualified If a question of quorum is raised: the presiding officer shall immediately proceed to call the roll of the members and announce the results. If there is NO quorum: (1) The presiding officer may declare a recess until such time as a quorum is constituted OR a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by arresting the absent member and present him at the session (2) No business shall be transacted [Sec. 53, LGC] Sessions Regular sessions: fixed by resolution on 1st day of the session immediately following the election of its members  Minimum numbers of regular sessions: once a week (panlalawigan, panlungsod, bayan) and twice a month for the Sangguniang Barangay Special session: may be called by the local chief executive or by a majority of the members of the Sanggunian-cause: when public interest demands  Written notice: served personally at the member‘s usual place of residence at least 24 hours before the session  Unless otherwise concurred in by 2/3 vote of the Sangguniang members present, there being a quorum, no other matters may be considered except those stated in the notice Sessions are open to the public, UNLESS a closeddoor session is ordered by: (1) an affirmative vote of a majority of the members present (there being a quorum)

(2) In the public interest or for reasons of secrecy, decency or morality

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No 2 sessions may be held in a single day. Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the Sanggunian concerned [Sec. 52, LGC] How many votes required GENERAL RULE: Majority constituting a quorum

of

the

members

Exception: When the enactment itself specifies the number of votes required, such requirement will govern over the general rule specified in the charter or the LGC, when such enactment is to be amended. Why? Because the municipal authorities are in a better position to determine the votes required. [Casino vs CA (1991)] Approval, Veto and Review of Ordinances Every ordinance shall be presented to the governor or mayor, as the case may be  Approves: affix his signature on each and every page  Disapproves: veto it and return the same with his objections to the Sanggunian Override: 2/3 vote of all its members making the ordinance effective even without the approval of the local chief executive concerned Veto communicated to the Sanggunian within 15 days in the case of a province, and 10 days in the case of a city or a municipality; otherwise, the ordinance shall be deemed approved Veto power: The local chief executive may veto any ordinance on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons for writing  Right to veto may be exercised only once  Local chief executive (except the punong barangay) has the power to veto any particular item or items of an Appropriations ordinance Ordinance or resolution adopting a local development plan and public investment program Ordinance directing the payment of money or creating liability In such a case, the veto shall not affect the item/s which are not objected to. The vetoed item/s shall not take effect unless the sanggunian overrides the veto; otherwise, the item/s in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted. Review of Ordinances

(Component)

City

or

Municipal

Within 3 days after approval, the secretary shall forward to the Sangguniang Panlalawigan for review,

LOCAL GOVERNMENTS copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils  Within 30 days after the receipt of copies, the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for examination.  The provincial attorney or prosecutor shall, within 10 days from receipt, inform the Sanggunian in writing of his comments or recommendations.  If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken.  If no action has been taken by the sangguniang panlalawigan within 30 days after submission, the ordinance or resolution shall be presumed consistent with the law and therefore valid. Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval, shall be sufficient ground for the suspension or dismissal of the official or employee. [Sec. 58, LGC] Review of Barangay Ordinances by Sangguniang Panlungsod or Bayan [Sec. 57, LGC] Ordinance enacted by the Sangguniang barangay shall upon approval by the majority of all its members, be signed by the punong barangay.  Within 10 days after its enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan concerned for review.  No action for 30 days from receipt: ordinance shall be deemed approved  If the sangguniang panlungsod or sangguniang bayan finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within 30 days from receipt, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment, or modification  Effectivity: suspended until such time as the revision called for is effected

Summary of review of ordinances See Annex B.

POLITICAL LAW REVIEWER Effectivity of Ordinances or Resolutions GENERAL RULE: the same shall take effect after 10 days from the date a copy is posted EXCEPTION: unless otherwise stated in the ordinance or the resolution approving the local development and public investment program  Ordinances with penal sanctions: gist shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs  Absence of any newspaper: posting shall be made in all municipalities and cities of the province where the sanggunian of origin is situated.  Highly urbanized and independent component cities: the main features of the ordinance or resolution in addition to being posted, shall be published in a local newspaper of general circulation within the city  Absence of local newspaper: any newspaper of general circulation [Sec. 59, LGC] Full disclosure of Financial and Business Interests of Sanggunian Members Every sanggunian member shall, upon assumption of office, make a full disclosure of: (1) His business and financial interests (2) Professional relationship or any relation by affinity or consanguinity within the fourth civil degree which he may have with any person, firm, or entity affected by any ordinance or resolution which relationship may result in conflict of interest including: (a) Ownership of stock or capital, or investment, in the entity or firm to which the ordinance or resolution may apply (b) Contracts or agreements with any person or entity which the ordinance or resolution under consideration may affect conflict of interest. [Sec. 51, LGC] Conflict of interest: One where it may be reasonably deduced that a member of a sanggunian may not act in the public interest due to some private, pecuniary, or other personal considerations that may tend to affect his judgment to the prejudice of the service or the public Jurisprudence The LGC does not mandate that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that ―on the 1st‖ regular session, the sanggunian concerned shall adopt or update its existing rules or procedures‖. Until the completion of the adopted or updated rules, the rules of the previous year may be used. [Malonzo v Zamora (1999)] Disclosure shall:  Be made in writing and submitted to the secretary of the sanggunian

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LOCAL GOVERNMENTS  Form part of the record of the proceedings and shall be made in the following manner: Made before the member participates in the deliberations on the ordinance or resolution under consideration If the member did not participate during the deliberations, the disclosure shall be made before voting on the ordinance or resolution on second and third readings Made when a member takes a position or makes a privilege speech on a matter that may affect the business interest, financial connections, or professional relationship Updated rules, the rules of the previous year may be used. The signature of the mayor is not a mere ministerial act, but involves the exercise of discretion on the part of the local chief executive. [Delos Reyes v Sandiganbayan (1997)] Incidents of Law-Making (Legislative) Power Posting and Publication of: (1) Tax ordinances and Revenue measures  Within 10 days after approval  Certified true copies of all provincial, city, or municipal tax ordinances or revenue measures  Published in full for 3 consecutive days  In a newspaper of local circulation Where no such newspaper: posted in at least 2 conspicuous and publicly accessible places [Sec. 188, LGC] (2) Ordinance with penal sanctions  At prominent places in the provincial capitol, city, municipal or barangay hall  Minimum period: 3 consecutive weeks  Publication in a newspaper of a general circulation w/in territorial jurisdiction, except barangay ordinances  Effectivity: unless otherwise provided on the day following its publication or at the end of period of posting, whichever is later  Violation by public officer or employee May be meted administrative disciplinary action Without prejudice to filing of appropriate civil or criminal action  Duty of Secretary of Sanggunian: Shall transmit official copies to the chief executive of Official Gazette Within 7 days following approval of ordinance Purpose for publication If with penal sanction: for archival and reference purposes [Sec. 511, LGC] Judicial Intervention Actions involving the validity of a local government ordinance:

 Prosecutor or attorney of the LGU involved shall be notified and entitled to be heard;  Alleged to be unconstitutional: Solicitor General shall also be notified and entitled to be heard. [Sec. 4, Rule 63] The failure of the SolGen to appear in the lower court to defend the constitutionality of an ordinance is not fatal to the case. The determination of the question of WON the SolGen should be required to appear ―in any action involving the validity of any treaty, law, executive order, rule or regulation‖ is a matter left to the discretion of the Court. Inasmuch as the said requirement is not mandatory, but discretionary, noncompliance therewith affected neither the jurisdiction of the trial court nor the validity of the proceedings. [Homeowner’s Association of the Phil. Inc. v Municipal Board of Manila (1968)]

Requisites for Valid Ordinance For an ordinance to be valid exercise of police power, it must: (1) Not be contrary to the Constitution and/or statute (2) Not be unfair or oppressive (3) Must not be partial or discriminatory (4) Not prohibit but may regulate trade (5) Be General and consistent with public policy (6) Not be unreasonable [Tatel v. Mun. of Virac (1992)]

Local Initiative and Referendum Definition NOTE: Both a resolution and an ordinance may be the proper subjects of an initiative or a referendum. [Garcia v COMELEC (1994)] (Based on LGC Sec. 120-127 and RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM) Initiative: legalprocess whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance. Referendum: legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian. Who may exercise — all registered voters of the provinces, cities, municipalities and barangays

Requirements Referendum or initiative affecting a resolution or ordinance passed by the legislative assembly of a province or city: (1) petition must be signed by at least 10% of the registered voters in the province or city, (2) of which every legislative district must be represented by at least 3% of the registered voters therein;

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LOCAL GOVERNMENTS (3) Provided, however, that if the province or city is composed only of 1 legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein. Referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3% of the registered voters therein Referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay

Procedure 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 legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution  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  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  If the required number of signatures is obtained, the COMELEC shall then set a date for the initiative for approval of the proposition within 60 days from the date of certification by the COMELEC in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays [Sec. 122, LGC]

Effectivity of Local Propositions If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC. [Sec. 123, LGC]

Limitations on Initiatives (1) The power of local initiative shall not be exercised more than once a year.

(2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. (3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. [Sec. 124, LGC]

Limitations Upon Local Legislative Bodies Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall: (1) not be repealed, modified or amended, by the local legislative body concerned within 6 months from the date therefrom, and (2) may be amended, modified or repealed by the local legislative body within 3 years by a vote of 3/4 of all its members: Provided, however, that in case of barangays, the period shall be 18 months after the approval. [Sec. 125, LGC] Local Referendum — Any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. A local referendum shall be held under the control and direction of the COMELEC within 60 days in case of provinces and cities, 45 days in case of municipalities and 30 days in case of barangays. The COMELEC shall certify and proclaim the results of the said referendum [Sec. 126, LGC] Courts are not precluded from declaring null and void any proposition approved for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. [Sec. 127, LGC] Jurisprudence

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A resolution may be the subject of an initiative or referendum. [Garcia vs COMELEC (1994)]

justified from its inherent power to administer what it owns privately. [NAWASA v Dator (1967)]

Initiative: power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly.

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. In which case, the municipality cannot be deprived of it without due process and payment of just compensation. [Province of Zamboanga v City of Zamboanga (1968)]

Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become law. These law-making powers belong to the people and the COMELEC only exercises administration and supervision of the process. Hence, COMELEC cannot control or change the substance or the content of the legislation. COMELEC should have prepared for an initiative, not a referendum. [SBMA v. COMELEC (1996)]

6. Corporate Powers Every LGU, as a corporation has the following powers: (SC-PCSO) (1) To have continuous succession in its corporate name (2) To sue and be sued (3) To have and use a corporate seal (4) To acquire and convey real or personal property (5) To enter into contracts (6) To exercise such other powers as are granted to corporations [Sec. 22, LGC] Limitations: as provided in LGC and other laws Corporate Seal LGUs may continue using, modify, or change their existing corporate seals.

Authority to Negotiate and Secure Grants Who may negotiate: Local Chief Executive (upon authority of Sanggunian) What are negotiated (1) Financial grants or donations in kind in support of basic services or facilities (2) From local and foreign assistance agencies Approval by national agency concerned General rule: No necessity of securing clearance from national agency Exception: IF with national security implications  Shall be approved by national agency concerned  Failure to act on request for approval within 30 days from receipt: deemed approved Reporting duty: local chief executive shall report to both Houses of Congress and the President (1) Nature (2) Amount (3) Terms (4) Within 30 days upon signing of grant agreement or deed of donation [Sec. 23, LGC]

Ultra Vires Contracts

Newly established LGUs or those without corporate seals (1) May create own corporate seals (2) Registered with the DILG

A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. [Dacanay vs Asistio (1992)]

Change of corporate seal shall be registered with the DILG.

7. Liability of LGUs

Requisites

Specific Provisions making LGUs Liable

Requisites of Contracts entered into by local chief executive on behalf of LGU (1) Prior authorization by Sanggunian (2) Legible copy of contract posted at a conspicuous place in the  Provincial capitol or  City, municipal or barangay hall

LGUs and their officials are not exempt from liability for death or injury to persons or damage to property. [Sec. 24, LGC]

Jurisprudence The authority of a municipality to fix and collect rents for water supplied by its waterworks system is expressly granted by law. However, even without these provisions the authority of the municipality to fix and collect fees from its waterworks would be

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. [Art. 34, CC] The obligation imposed by Article 2176 is demandable not only for one‘s own acts or

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LOCAL GOVERNMENTS omissions, but also for those of persons for whom one is responsible. X X X The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. [Art. 2180(6), CC] Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. [Art. 2189, CC]

Liability for Torts, Violation of the Law and Contracts WHEN LGU CASE If LGU fails to perform a governmental function (e.g., maintenance of roads under Art. 2189, CC or rendering aid and protection under Art. 34, CC) If engaged in proprietary functions,

IS LIABLE DEFENSE Exercise of due diligence in the selection and supervision is not a defense.

Defense of due diligence in the selection and supervision available only if the function involved is a corporate function.

RATIO: because this defense is available only to private employers. WHEN LGU IS NOT LIABLE If damage resulted from an act of LGU in the performance of governmental functions Illustrations On Contract 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 which it has the general power to contract [Cebu vs IAC, 147 SCRA 447] BUT 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 vs Mun. Of Naujan, 107 Phil 112] 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 [Palafox vs Ilocos Norte (1958)]

 If in the performance of a proprietary function, the LGU is liable The improper grant of a ferry service franchise [Mendoza vs 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 vs de Leon (1916)] Deaths caused by a collapsed stage in a town fiesta [Torio vs 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 Provision of Law (1) Article 2189, CC When a person falls in an open manhole in the city streets. [Manila vs Teotico (198)] When a person steps on a rusted nail in a flooded public market. [Jimenez vs Manila, 150 SCRA 510] 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 vs Dagupan, 171 SCRA 382] 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)] (2) Article 2180, CC When the State acts through a special agent [Merritt vs Government, 34 Phil 311] 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 vs Ilagan, Isabela (198)]

Personal Liability of Public Official RULE: The public official is personally liable if he acts beyond the scope of his powers OR if he acts with bad faith Illustrations

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LOCAL GOVERNMENTS Mayor exceeding authority in vetoing a resolution passed by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol (1984)] - [Note that under CC27, a public servant is personally liable 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 vs CA, 21 SCRA 90] When officials illegally dismiss an employee [Rama vs CA, 148 SCRA 49] When the official defies an order of reinstatement of an illegally dismissed employee [Correa vs CFI, 92 SCRA 312] The Mayor pays for the back salaries of an illegally dismissed employee [Nemenzo vs Sabillano, 25 SCRA 1] The Governor pays for moral damages for refusing the reinstatement of an employee [San Luis vs 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;  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  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.

8. Settlement of Boundary Disputes (Asked in 2005) Boundary dispute—when a portion or the whole of the territorial area of an LGU is claimed by two or more LGUs. Policy: Boundary disputes between or among LGUs shall, as much as possible, be settled amicably. [Sec. 118-119, LGC]

Jurisdictional Responsibility for Settlement of Boundary Dispute If the LGUs involved are: two or more barangays in the same city or

Boundary disputes shall be referred for settlement to: sangguniang panlungsod or sangguniang bayan

municipality two or more municipalities within the same province municipalities or component cities of different provinces

concerned. sangguniang panlalawigan concerned.

a component city or municipality on the one hand and a highly urbanized city on the other; or two or more highly urbanized cities,

jointly referred for settlement to the respective sanggunians of the parties.

jointly referred to the sanggunians of the provinces concerned.

In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

Appeal Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. [Sec. 119, LGC]

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] The power of provincial boards to settle boundary disputes is limited to implementing the law creating a municipality. 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. Baz (1996)] The conduct of plebiscites, to determine whether or not a barangay is to be created, should be suspended or cancelled in view of a pending boundary dispute between two local governments. Precisely because territorial jurisdiction is an issue raised in the pending boundary dispute, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. [City of Pasig v. COMELEC (1999)]

9. Succession of Elective Officials

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LOCAL GOVERNMENTS Rules on Succession a. Successors in permanent vacancies in office of local chief executive Permanent vacancy entails that an elective local official: (DR VaReReQI) (1) fills a higher vacant office; (2) refuses to assume office; (3) fails to qualify; (4) dies; (5) is removed from office; (6) voluntarily resigns; or (7) is otherwise permanently incapacitated to discharge the functions of his office. [Sec. 44, LGC: (Asked in 1995, 1996, 2002, 2008)] Office where Permanent Vacancy Occurs Governor Mayor Office of the governor or [and] vice-governor, mayor or [and] vicemayor

Office of the Punong Barangay

Who Succeeds into Office Vice-governor Vice-mayor  Highest ranking sanggunian member;  In case of his permanent inability, the 2nd highest ranking sanggunian member;  Subsequent vacancies are filled automatically by the other sanggunian members according to their ranking.  Highest ranking sanggunian barangay member;  In case of his permanent inability, the 2nd highest ranking sanggunian member.

A tie between/among the highest ranking sanggunian members is resolved by drawing of lots.

Office where Permanent Vacancy Occurs Member of Sangguniang Panlungsod of component cities and the Sangguniang Bayan Member of the Sangguniang Barangay

Representation of the youth and the barangay in the sanggunian

Who Succeeds into Office Person appointed by the governor Person appointed by the mayor, upon recommendation of the Sangguniang Barangay concerned Official next in rank of the organization concerned [Sec. 45, LGC (Asked in 1996, 2002)]

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. The appointee under Sec. 45 serves the unexpired term of the vacant office.  Exception: Sangguniang barangay.

Successors under Sec. 44, LGC serve only for the unexpired terms of their predecessors.

If the vacancy pertains to barangay or youth representation in the sanggunian, the vacancy is automatically filled by the official next in rank of the organization concerned.

The ranking in the sanggunian is based on the immediately preceding local election:

c. Temporary vacancy in the office of the local chief executive.

Votes obtained by the winning candidate Total number of registered voters in each district

Examples of local chief executive‘s temporary incapacity to perform duties for physical/legal reasons: (1) leave of absence; (2) travel abroad; (3) suspension from office. [Sec. 46, LGC] (Asked in 2002)

b.

Permanent vacancies in the sanggunian

If automatic succession as provided in Sec. 44 does not apply, vacancy is to be filled in by appointment made as follows: Office where Permanent Vacancy Occurs Member of Sanggunian Panlalawigan or Sangguniang Panlungsod of highly urbanized cities and ICCs

Who Succeeds into Office Person appointed by the President, through the Executive Secretary

GENERAL RULE: Vice-governor, city/ municipal vicemayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive. EXCEPTION: The power to appoint/suspend/dismiss employees can be exercised only if the period of temporary incapacity exceeds 30 working days.

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LOCAL GOVERNMENTS 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 authorization shall specify the powers and functions that the officer-in-charge shall exercise. EXCEPTION: The power to appoint, suspend and dismiss employees. GENERAL RULE: If the local chief executive fails/refuses to issue the authorization, the vicegovernor, city/municipal vice-mayor, or highest ranking sangguniang barangay member has right to assume the powers, duties, and functions of the office on the 4th day of absence. EXCEPTION: The power to appoint/ suspend/dismiss employees. Office where Temporary Vacancy Occurs Governor Mayor Punong barangay Local chief executive traveling within the country but outside his territorial jurisdiction for a period not exceeding three consecutive days

Who Temporarily Succeeds into Office Vice-governor (automatically) Vice-mayor (automatically) Highest ranking sanggunian member (automatically) 1) Person designated in writing by the said local chief executive  Authorization shall specify the powers and functions that the designate will exercise, except the power to appoint, suspend, or dismiss employees 2) Vice-governor, vicemayor or highest Sangguniang Barangay member, if the local chief executive fails or refuses to designate  In this case, assumption into office shall be on the 4th day of absence of the local chief executive (automatically)

Jurisprudence The LGC is silent on the mode of succession when there is a temporary vacancy in the office of the vice-governor. In this case, there was a vacancy when the vice-governor automatically assumed the governorship pending the determination of who is the local chief executive. Because of such circumstances, the President, through the Secretary

of Local Government, may make the temporary appointment. [Menzon v. Petilla (1991)] A vice-governor who is concurrently an acting governor is actually a quasi-governor. Being the acting governor, the vice-governor can no longer continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the governor hinders him from discharging his duties for such office. Hence, there is an ―inability‖ on the part of the regular presiding officer, the vicegovernor, to preside during the sanggunian sessions, which calls for the election of a temporary presiding officer. [Gamboa v. Aguirre (1999)] The governor has the power to fill a vacancy in the Sangguniang Bayan caused by a member not belonging to any political party. It is the same manner as where the member belonged to a political party. Where there is no political party to make the nomination, the Sanggunian where the vacancy occurs must be considered authority for making the recommendation. The appointing authority is limited to the appointment of those recommended to his office. The recommendation is a condition sine qua non for the validity of the appointment. [Fariñas v. Barba (1996)] d.

Termination of the Temporary Incapacity

Upon submission to the sanggunian of a written declaration that he has reported back to office If the temporary incapacity is due to legal causes, he must also submit the necessary documents showing that the legal causes no longer exist. e.

Approval of Leaves of Absence.

LOCAL OFFICIAL  governors;  mayors of 1)highly urbanized cities or 2)independent component cities  vice-governors;  city/municipal vicemayors city/municipal mayors of component cities/municipalities  sanggunian panlalawigan, panlungsod and bayan members;  its employees  punong barangays  sangguniang barangay members

LOA APPROVED BY: The President or his duly authorized representative

The local chief executive The governor The Vice-governor or city/municipal vicemayor The city/municipal mayor The punong barangay

If the application for LOA is not acted upon within 5 working days after receipt, the application is deemed approved. [Sec. 47, LGC]

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LOCAL GOVERNMENTS

10. Discipline of Local Officials Elective Officials Administrative Action AO 23, as amended by AO 159 (1994) and AO 66 (1999): Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Coverage: administrative disciplinary charges against: (1) the governors, and members of the sangguniang panlalawigan; (2) the mayors, vice mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent component cities, and component cities; and (3) the mayors, vice mayors, and members of the sangguniang panlungsod or bayan of cities or municipalities in Metropolitan Manila Disciplining Authority — The President, who may act through the Executive Secretary  May still constitute a Special Investigating Committee in lieu of the DILG Secretary;  Nothing shall prevent the President from assuming jurisdiction at any stage of the proceedings over cases to be preliminarily investigated by the DILG; in such an event, the same shall immediately be forwarded to the Special Investigating Committee after it may have been constituted by the Disciplining Authority. Investigating Authority — DILG Secretary (1) may constitute an Investigating Committee in the DILG for the conduct of investigation

Grounds Grounds for administrative action (discipline, suspension, removal): MAD-VAD-CO (1) Disloyalty to the Republic of the Philippines; (2) Culpable violation of the Constitution; (3) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (4) Commission of any offense involving moral turpitude or any offense punishable by at least prision mayor, which is from 6 years and 1 day to 12 years imprisonment; (5) Abuse of authority; (6) Unauthorized absence for 15 consecutive working days in case of local chief executives and 4 consecutive sessions in the case of members of the sanggunian; (7) Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of another country; and (8) Such other grounds as may be provided by the Local Government Code of 1991; Republic Act No. 6713; Republic Act No. 3019; Administrative Code of 1987; Revised

Penal Code; and all other general and special laws.

applicable

How Initiated (1) by any private individual or any government officer or employee by filing a sworn written complaint (verified) (2) by the Office of the President or any government agency duly authorized by law to ensure that LGUs act within their prescribed powers and functions Elective Official against whom Administrative Complaint is Filed Provincial or city official Municipal official Barangay official

Where to File Complaint Office of the President Sangguniang Panlalawigan Sangguniang Panlungsod or Sangguniang Bayan

Jurisprudence Supervision and discipline. The President is not devoid of disciplinary powers because he merely has supervisory powers under the Constitution. Supervision is not incompatible with disciplining authority. [Ganzon vs CA (1991)] Valid delegation. Under AO 23, the delegation of the power to investigate to the Sec of Interior is valid. What cannot be delegated is the power to discipline. [Joson vs Torres, 290 SCRA 279] Prejudicial question? The administrative investigation can proceed even during the pendency of an appeal of audit findings to the Commission on Audit [Salalima vs Guingona, 257 SCRA 55]

Jurisdiction Power of Tribunals (1) The Ombudsman (Asked in 1999, 2003) The Ombudsman and the Office of the President have concurrent jurisdiction to conduct administrative investigations over local elective officials. The LGC did not withdraw the power of the Ombudsman under RA 6770. [Hagad v. Gozo-Dadole (1993)] Preventive Suspension under RA 6770 1. the evidence of guilt is strong; AND 2. that any of the ff. are present: a. the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; b. the charges should warrant removal

Preventive Suspension under the LGC 1. there is reasonable ground to believe that the respondent has committed the act or acts complained of 2. the evidence of culpability is strong 3. the gravity of the offense so warrants; or 4. the continuance in office of the respondent could influence the

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LOCAL GOVERNMENTS from office; or c. the respondent‘s continued stay in office would prejudice the case filed against him Maximum period: 6 mos.

witnesses or pose a threat to the safety and integrity of the records and other evidence Maximum period: 60 days

It is not only the Ombudsman, but also his Deputy, who may sign an order preventively suspending officials. Also, the length of the period of suspension within the limits provided by law and the evaluation of the strength of the evidence both lie in the discretion of the Ombudsman. It is immaterial that no evidence has been adduced to prove that the official may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility. [Castillo-Co v. Barbers (1998)] (2) The Courts RA 3019: The term ―office‖ in Sec. 13 of RA 3019 (pertaining to mandatory preventive suspension) applies to any office which the officer might currently be holding and not necessarily the particular office in relation to which the official is charged. The imposition of the suspension, though mandatory, is not automatic or self-operative. A precondition is the existence of a valid Information, determined at a pre-suspension hearing. [Segovia v. Sandiganbayan (1999)] (3) Sandiganbayan PD 1606, as amended by RA 8249 It is the official‘s grade that determines his or her salary, and not the other way around. An official‘s grade is not a matter of proof but a matter of law which the court must take judicial notice. Under Sec. 444(d) of the LGC, the municipal mayor shall receive a minimum monthly compensation corresponding to SG 27. Thus, the cases filed against the petitioner are within the exclusive jurisdiction of the Sandiganbayan. [Llorente v. Sandiganbayan (2000)] If the law states that a certain officer is within the jurisdiction of the Sandiganbayan, the fact that the officer's SG is below 27 does not divest jurisdiction. [Inding v. Sandiganbayan (2004)] RA 8249 provides that as long as one of the accused is an official of the executive branch occupying the position otherwise classified as SG 27 and higher, the Sandiganbayan exercises exclusive original jurisdiction. To vest Sandiganbayan with jurisdiction, public office must be an element of the crime OR that without the public office, the crime could not have been committed. [Rodriguez v. Sandiganbayan (2004)]

Preventive Suspension [Sec. 63, LGC] (Asked in 1990, 1996) Sole Objective: to prevent the accused official from hampering the investigation with his influence and authority over possible witnesses and keep him off

the records and other evidence. [Ganzon v. CA, (1991)]

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[cf. suspension as a penalty] It may be imposed by the Disciplining Authority in cases where the respondent is an elective official: Local Elective Official of:  provinces  highly urbanized cities  independent component cities  municipalities  component city  barangay

Who may impose: President, through the DILG Secretary Provincial Governor Mayor

The governor shall, upon the direct Disciplining Authority, preventively elective official of a component city, formal administrative investigation by the President.

order of the suspend an who is under the Office of

When imposed: May be imposed at any time after the issues are joined (after respondent has answered the complaint) BUT no preventive suspension shall be imposed within 90 days immediately prior to any local election. If the preventive suspension has been imposed prior to the 90-day period immediately preceding a local election, it shall be deemed automatically lifted upon the start of the period. Grounds for Preventive Suspension: (1) when the evidence of guilt is strong and, (2) given the gravity of the offense, there is a great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Period: Any single preventive suspension of local elective officials shall not extend beyond 60 days; Provided that, in the event that several administrative cases are filed against an elective official:  he cannot be preventively suspended for more than 90 days within a single year  on the same ground or grounds existing and known at the time of the first suspension. Expiration: the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him [which shall be terminated within 120 days from formal notice of the case]. HOWEVER, if the delay in the proceeding of the case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. [Sec. 63 (c)] Compensation: officer shall receive no salary or compensation during such suspension; BUT, upon subsequent exoneration and reinstatement, he shall

LOCAL GOVERNMENTS be paid his full salary or compensation, including such emoluments accruing during such suspension. [Sec. 64, LGC] The provincial governor is authorized to preventively suspend the municipal mayor any time after the issues have been joined and any of the following grounds were shown to exist: (1) When there is reasonable ground to believe that the respondent has committed the act or acts complained of (2) When the evidence of culpability is strong (3) When the gravity of the offense so warrants (4) When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. There is nothing improper in suspending an officer before the charges are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. When a local government official believes that he has been wrongfully suspended, the proper procedure is to exhaust administrative remedies, i.e. seek relief from the DILG Secretary, and not to file a case in court. [Espiritu v. Melgar (1992)] Piecemeal suspensions should not be issued. If there are several administrative cases against a public official, these cases should be consolidated for the purpose of ordering preventive suspension, instead of issuing an order of suspension for each case. Elective local officials should be given the benefit of simultaneous service of suspension. [Ganzon v. CA (1991)] NOTE: The ruling in this case as to simultaneous service of suspension is more of an exception than the rule, because of the following circumstances:  Three separate orders of 60-day preventive suspension were issued against Ganzon  Another order of preventive suspension was issued before the SC promulgated the decision ruling that suspension should not be issued piecemeal  The simultaneous service of suspension will lessen the harsh effects of whatever ill motive may be behind the successive suspension orders issued Rights of the Respondent Official: Full opportunity to: (1) Appear and defend himself in person or by counsel

POLITICAL LAW REVIEWER (2) Confront and cross-examine the witnesses against him (3) Require attendance of witnesses and the production of documentary evidence in his favor through subpoena or subpoena duces tecum. [Sec. 65, LGC] Due process. The petitioner has the right to a formal investigation under AO 23. Where the Sec denied the motion for a formal investigation and decided the case on the basis of position papers, the right of the petitioner was violated. [Joson vs Torres, 290 SCRA 279] Form and Notice of Decision (1) Shall be terminated within 90 days from start thereof. (2) Office of the President or Sanggunian concerned to render decision  Within 30 days from end of investigation  In writing  Stating clearly facts and reasons (3) Furnish copies to respondent and interested parties. [Sec. 66(a), LGC] NOTE: Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. [Nachura] Penalty of Suspension Limitations: The penalty of suspension: (1) shall not exceed the unexpired term of the respondent (2) shall not exceed a period of 6 months for every administrative offense (3) shall not be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. [Sec. 66, LGC] When the respondent has been meted 2 or more penalties of suspension for 2 or more administrative offenses, such penalties shall be served successively [AO No. 159, Amending AO 23, Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials, 1994]

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

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LOCAL GOVERNMENTS on the grounds enumerated above only by order of the proper court.

An appeal shall not prevent a decision from becoming final or executory.

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)]

If respondent wins the appeal, he shall be considered as having been placed under preventive suspension during the pendency of the appeal.

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. What is important is that the suspension imposed for each administrative offense did not exceed six months. [Salalima v. Guingona (1996)]

Administrative Appeal Within 30 days from receipt of decisions: Decisions of:  Sangguniang Panlungsod of component cities  Sangguniang Bayan  Sangguniang Panlalawigan  Sangguniang Panlungsod of: - highly urbanized cities - independent component cities Office of the President

May be appealed before: Sangguniang Panlalawigan

If the appeal results in an exoneration, he shall be paid his salary and other emoluments during the pendency of appeal. [Sec. 68, LGC] Sec. 68 of the LGC merely provides that an ―appeal shall not prevent a decision from becoming final or executory.‖ As worded, there is room to construe the provision as giving discretion to the reviewing officials to stay the execution of the appealed decision. [Berces v. Guingona (1995)] The phrase ―final or executory‖ in Secs. 67 and 68 simply means that administrative appeal will not prevent the enforcement of the decision. [Mendoza vs Lacsina (2003)] Effect of Re-election (Asked in 2000) Re-election renders the administrative complaint against the local official moot and academic. A public official cannot be removed for administrative misconduct committed during a prior term, since the re-election to office operates as a condonation of the officer‘s previous misconduct to the extent of cutting off the right to remove him therefore. But this rule is applicable only to administrative cases, not to criminal cases. [Aguinaldo v. Santos (1992)]

Doctrine of Condonation When re-election considered a condonation: if the proceedings are abated due to elections. In this case, there is no final determination of misconduct [Malinao v. Reyes (1996)] 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)]

Appointive Officials The appointing authority is generally the disciplining authority.

Office of the President

final and executory; may not be appealed [Sec. 67, LGC]

Disciplinary Jurisdiction [Sec. 87, LGC] Except as otherwise provided by law, the local chief executive may impose: (1) Removal from service (cf. elective officials) (2) Demotion in rank (3) Suspension for not more than 1 year w/o pay  If not more than 30 days—not appealable  If more than 30 days—appealable to the CSC (4) Fine not exceeding 6 months‘ salary (5) Reprimand (6) Or otherwise discipline subordinate officials and employees under his jurisdiction.

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LOCAL GOVERNMENTS No remedy of appeal if the decision of the administrative case exonerated the office or employee. ―Party adversely affected‖ in PD 807 or ―The Philippine Civil Service Law‖ only refers to the government employee against which the case is filed. [Mendez vs. CSC (1991)] The City Treasurer has authority to discipline his subordinates. The power to discipline is specifically granted by the Revised Administrative Code to heads of departments, agencies and instrumentalities, provinces and cities. The power to commence administrative proceedings against subordinate officers is granted by the Omnibus Rules to the secretary of department, head of office, head of LGU, chief of agency, regional director, or person with sworn written complaint. The City Treasurer may also motu proprio institute disciplinary proceedings against subordinates. These rules must be reconciled with the LGC, which gives the mayor the authority to institute administrative and judicial proceedings against any official or employee of the city. In cases involving employees of the city treasurer‘s office, the mayor must file his complaint with the treasurer‘s office or with the DOF. [Garcia vs. Pajaro (2002)] [Sangguniang Bayan of San Andres v. CA (1998)]: (Asked in 2000) Requisites to constitute resignation: (1) Intention to relinquish a part of the term (2) Act of relinquishment (3) Acceptance by the proper authority

Essential elements of abandonment: (1) Intent to abandon (2) Overt act by which the intention is to be carried into effect

Removal In interpreting its own rules as it did, the CSC was acting within its constitutionally delegated power to interpret its own rules. The CSC, by ruling that the employee took an automatic leave of absence, was merely interpreting its own rule on requirement of approved leave. [City Government of Makati City v. CSC (2002)]

11. Recall (Asked in 2002) Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)] Who has the power of recall: Power of recall for loss of confidence is exercised by the registered voters of the LGU. [Sec. 69, LGC] Effectivity: Upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election

on recall. Thus, if the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office. [Sec. 72, LGC] Prohibition on resignation: An Elective local official sought to be recalled is not allowed to resign while the recall process is in progress. [Sec. 73, LGC] Expenses: The Annual General Appropriations Act contains a provision for a contingency fund at the disposal of the COMELEC. [Sec. 75, LGC] RA 9244: An Act Eliminating the Preparatory Recall Assembly as a Mode of Instituting Recall of Elective Local Government Officials, Amending for the Purpose sec. 70-71 of the LGC of 1991. Sec. 70. Initiation of the Recall Process (PCPVA) Petition of a registered voter in the LGU concerned, supported by a percentage of registered voters during the election in which the local official sought to be recalled was elected. (Percentage decreases as population of people in area increases. Also, the supporting voters must all sign the petition)  Within 15 days after filing, the COMELEC must certify the sufficiency of the required number of signatures. Failure to obtain the required number automatically nullifies the petition.  Within 3 days from certification of sufficiency, COMELEC provides the official with a copy of the petition and causes its publication for 3 weeks (once a week) in a national newspaper and a local newspaper of general circulation. Petition must also be posted for 10 to 20 days at conspicuous places. PROTEST SHOULD BE FILED AT THIS POINT and ruled with finality 15 days after filing.  COMELEC verifies and authenticates the signatures.  COMELEC announces acceptance of candidates Election on Recall COMELEC sets election within 30 days upon completion of previous section in barangay/city/municipality proceedings (45 days in case of provinces). Officials sought to be recalled are automatically candidate. [Sec. 71, LGC] Jurisprudence A petition for recall that is signed only by the petitioner but does not bear the names of the citizens who have allegedly lost confidence in the official should be dismissed. [Angobung vs Comelec (1997)] Whether or not the electorate of the municipality has lost confidence in their incumbent mayor is a

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LOCAL GOVERNMENTS political question. Loss of confidence is the formal withdrawal by the electorate of their trust in a person‘s ability to discharge his office previously bestowed on him by the same electorate. [Evardone v. COMELEC (1991)] Recall is a mode of removal of a public official by the people before the end of his term of office. The people‘s prerogative to remove a public official is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. [Garcia v. COMELEC (1993)] The Liga ng mga Barangay and the Preparatory Recall Assembly are entirely different entities even if they may have the same members. [Malonzo vs Comelec (1997)] NOTE: Under RA 9244, the Congress removed the Preparatory Recall Assembly as a mode of recall. A Regular local election is necessary in order to replace the local elective official who is sought to be recalled. This does not include SK elections. [Paras v. COMELEC (1996)] Limitations on the Holding of Recalls Any elective official may be the subject of a recall election only once during his term of office for loss of confidence.

12. Term Limits (Asked in 1995, 2001, 2005, 2006, 2008) All elective local officials, except barangay officials [Sec. 8, Art. X; Sec. 43 LGC] Term of office: 3 years from noon of June 30, 1992 or the date provided by law 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; No official shall serve for more than 3 consecutive terms for the same position; Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected Barangay officials and members of the Sangguniang Kabataan Term of office: 3 years After the regular election of barangay officials on the second Monday of May 1994 [Sec. 43, LGC] Existing sub-provinces converted into regular provinces

No recall shall take place: (1) Within 1 year from the date of assumption of office of the official concerned Rationale: to provide a reasonable basis for judging the performance of an elective local official

New legislative districts continue to be represented in Congress by the duly-elected representatives of the original districts out of which the new provinces or districts were created until their own representatives are elected in the next regular congressional elections and qualified

(2) Within 1 year immediately preceding a regular local election Rationale: a recall election is potentially disruptive of the normal working of the LGU necessitating additional expenses [Sec. 74, LGC]

Vacancy in the offices occupied by incumbent elected officials or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results:  by appointment of the President;  appointees shall hold office until their successors are elected in the regular local elections following the plebiscite

Note: ―Recall‖, as used in par. b, sec. 74 prescribing the 1year limitation, refers to the ―election‖ itself (not the process of initiating the recall proceedings). The purpose of the 1-year limitation from assumption is to prevent premature action without having sufficient time to evaluate the official‘s performance. As long as the election is held outside the 1-year period, the preliminary proceedings to initiate recall can be held even before the end of 1 year from assumption. The 1-year period before regular local election does not include the campaign period. [Claudio v. COMELEC (2000)]

After conversion of the newly-created province, President shall appoint: (1) Governor (2) Vice-governor (3) Members of the sangguniang panlalawigan who shall hold office until their successors are elected in the next regular local elections and qualified. [Sec. 462 LGC] Qualified appointive officials and employees in the career service of the subprovinces at the time of their conversion into regular provinces shall continue in office in accordance with civil service law, rules and regulations.

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LOCAL GOVERNMENTS RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Term of office of barangay kabataan officials: 3 years

and

sangguniang

No barangay elective official shall serve for more than 3 consecutive terms in the same position  Reckoned from the 1994 barangay elections  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-avis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. [Fariñas v. Executive Secretary (2003)] What constitutes term of office? The Constitution contemplates service by local officials for three consecutive terms as a result of an election. The term limits for elective local officials must be taken to refer to: (1) the right to be elected and (2) the right to serve in the same elective position. Consequently, it is not enough that an individual has fully served three consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. [Borja v. COMELEC (1998)] 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 199598 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)]

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LOCAL GOVERNMENTS 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 for a term more than what is allowed by law [Latasa v. COMELEC (2003)] Effect of Preventive Suspension: Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective official‘s stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official‘s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. [Aldovino v. COMELEC, G.R. No. 182867, November 25, 2008]

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Annex A Requirements

Province LGC 460-461 Average annual income, as certified by the DOF, of not less than P20,000,000 based on 1991 constant prices

City RA 9009 (2001) Average annual income, as certified by the DOF, of at least P100,000,000 for the last 2 consecutive years based on 2000 constant prices

Population

250,000 inhabitants

150,000 inhabitants

Municipality LGC 441-442 Average annual income, as certified by the provincial treasurer, of at least P2,500,000 for the last two consecutive years based on 1991 constant prices 25,000 inhabitants

Territory

contiguous territory of at least 2,000km2

contiguous territory of at least 100km2

contiguous territory of at least 50km2

territory need not be contiguous if it comprises 2 or more islands or is separated by a chartered city or cities which do not contribute to the income of the province

Same as CITY.

Territory need not be contiguous if it comprises 2 or more islands

By an Act of Congress

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

By law or by an ordinance of the sangguniang panlalawigan or panlungsod; In case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary By an Act of Congress, to enhance the delivery of basic services in indigenous cultural communities Approval must be by majority of the votes cast; plebiscite shall be held within such period of time as may be determined by the law or ordinance creating said barangay.

Income

Manner of Creation

By an Act of Congress

requirement on land area shall not apply where the city proposed to be created is composed of 1 or more islands; the territory need not be contiguous if it comprises 2 or more islands By an Act of Congress

Plebiscite (in LGUs directly affected)

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

Barangay LGC 385-386 No minimum requirement for income

2,000 inhabitants 5,000 inhabitants, in cities and municipalities within MM and other metropolitan political subdivisions or highly urbanized cities No minimum requirement for area

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Annex B Reviewed by Furnish copies of ordinances or resolution within

Period to examine documents

Ground to invalidate ordinance or resolution

Component City or Municipality Ordinances and Resolutions Sangguniang panlalawigan 3 days after approval of ordinance or resolution approving the local development plans and public investment programs formulated by the local development councils 30 days after receipt of copies, after which the ordinance or resolution is presumed valid if no action is taken. Within 30 days, it may also be transmitted to the provincial attorney or prosecutor for examination; said atty. or prosecutor shall give his written recommendations within 10 days from receipt of document Ordinance or resolution is beyond the power conferred upon the Sanggunian concerned

Barangay Ordinances Sangguniang panlungsod or sangguniang bayan 10 days after enactment of ALL ordinances

30 days after receipt of copies, after which ordinance is presumed valid if no action is taken

Ordinance is inconsistent with law and city or municipal ordinances In such case, the sangguniang barangay may adjust, amend or modify the ordinance within 30 days from receipt from the sangguniang panlungsod or sangguniang bayan

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Public International Law BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

LAW POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble • Moises Ronette Colobong Contributors| Alferri Bayalan • Cielo Gono • Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

POLITICAL LAW REVIEWER

PUBLIC INTERNATIONAL LAW

Public International Law Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

POLITICAL LAW Concepts International and National Law Sources Subjects Diplomatic and Consular Law Treaties Nationality and Statelessness Treatment of Aliens International Human Rights Law International Humanitarian Law (IHL) and Neutrality K. Law of the Sea L. International Environment Law A. B. C. D. E. F. G. H. I. J.

A. Concepts 1. Obligations Erga Omnes 2. Jus Cogens 3. Concept of Aeguo Et Bono Formal Sources vs. Material Sources Formal sources consist of the methods and procedures for the creation of rules of general application which are legally binding upon States. Material sources, upon the other hand, are the substantive evidence of the existence of the norms.

directly offended, but of all states (i.e. outlawing acts of genocide or aggression).

2. Jus Cogens Definition A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement. Illustrations  The prohibition against the use of force under the UN Chater [Nicaragua Case]  Law on genocide  Principle of self-determination  Principle of racial non-discrimination  Crimes against humanity  Prohibition against slavery and slave trade  Piracy [Brownlie; Magallona]

3. Concept of Aequo Et Bono 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.

Lex lata vs. Lex ferenda Lex lata – what the law is

Judgment will not be on the basis of the sources of international law listed in Art. 38(1), ICJ Statute, but on grounds of fairness and justice. The Court may have to rely on its understanding of the broader context of equity and outside the accepted norms of law under Art. 38(1), ICJ Statute.

Lex ferenda – what jurists think the law should be or will become

This may mean simply that the Court may reach fair compromise in balancing the interests of the parties.

1. Obligations Erga Omnes

B. International and National Law

Material sources supply the substance of the rule, while formal sources confer upon it the force of law.

Erga Omnes Norms International obligations of such character and importance that: (1) their violation by any state allows any other state to invoke the violator's liability, (2) even if only one state or only a few incurred direct material damage. It usually has to do with issues on standing. Illustrations  Outlawing of acts of aggression and of genocide  Principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination [Barcelona Traction Case] In the Barcelona Traction Light and Power Co. Case, the grant of standing to sue because of violations of an erga omnes obligation is premised on the idea that the maintenance of some norms are of interest to the entire world community, their violation being an injury to the interest, not only of the state

Municipal Law deals with the conduct or status of individuals, corporations, and other ‗private‘ entities within states. PIL may be distinguished therefrom in that it prescribes rules and processes that govern the relations of states with each other, and the rights of other entities insofar as they implicate the community of states (note: whom it governs). (vs. PIL, Asked 1 time in the Bar)

Relationship between PIL and Municipal Law Although distinct, PIL and Municipal are interrelated: (1) 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.‖ (a) Incorporation – norms of international law are deemed part of national law

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PUBLIC INTERNATIONAL LAW (b) Transformation – defines the requisite act which must be fulfilled before they become part of national law (2) 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] Below are the four theoretical views on how they are related [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.

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.

C. Sources 1. 2. 3. 4. 5.

Treaty as Source of Law Customary International Law General Principle of Law Subsidiary Source: Judicial Decisions Subsidiary Source: Publicists

Primary Sources (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; [Article 38, ICJ Statute]

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. Thus, although treaties are mentioned first, they are not ipso facto superior to customs and general principles.

1. Treaty as Source of Law A 'treaty' means 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, however, that 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] 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] 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.

2. Customary International Law Norms of international law are those that result from a general and consistent practice of states which

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they follow under a sense of legal obligation. For custom to exist, it requires the concurrence of 2 elements: (1) State Practice and (2) Opinio juris.

Custom may be:  General  binding upon all or most states or  Particular  binding between only two or among a few states.

Unlike treaties, customary norms are legally binding upon states regardless of whether they consent, subject to the Persistent Objector rule.

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]

Elements State Practice For custom to exist, the customary practice must be both consistent and general. (1) Consistency requires substantial uniformity, and not necessarily complete uniformity in practice. (2) Generality likewise does not require universality. 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 Refers to 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] Note: It is not a ―maxim,‖ it is an element required in order for custom to come into fruition. Scope

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. [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)] Principle of Persistent Objector When a State has continuously objected to a new customary norm at the time when it is yet in the

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PUBLIC INTERNATIONAL LAW process of 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]

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 produce a strong lawcreating 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 vs. US Case]

3. 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] 

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, they can be used to prove a fact to the satisfaction of the court [Nicaragua vs. 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] 

Substantive – duty to make reparations, principle of reciprocity, pacta sunt servanda, separate corporate personality [Barcelona Traction Case]

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] 

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.

4. Subsidiary Source: Judicial Decisions Preliminary note: 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]

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5. Subsidiary Source: Publicists

A State is a quintessential example of a subject of international law.

Writings of highly qualified publicists likewise constitute evidence the state of the 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 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. Eastern Greenland case: 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, 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.

D. Subjects 1. States 2. International Organizations 3. Individuals 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)]

Notwithstanding this distinction, both subjects and objects are considered actors in international law. They are:

1. States 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 A state is defined as a group of people, more or less numerous, permanently living in a definite territory, under an independent government organized for political ends and capable of entering into legal relations with other states [Art. 1, Montevideo Convention on the Rights and Duties of States (1933)]

Requisite Elements a. 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. b. 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.

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an effective government is not always strictly necessary (BROWLIE).

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

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.

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, and (b) some actual exercise or display of such authority. [Eastern Greenland Case] 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) Requisites: (a) Possession that must be exercised titre de souverain (b) Peaceful and uninterrupted (c) Public (d) 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) c. 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] i.

“Effective” Government Although an effective government is the best evidence of the existence of a State,

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). ii.

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. 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:  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;  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  Government established as an independent government by inhabitants of a country who rise in insurrection against the parent state.

d. Independence or Sovereignty (Asked 1 time in the Bar)

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PUBLIC INTERNATIONAL LAW 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]

Recognition Act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under international law. 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: (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 vs. Constitutive View (Asked 1 time in the Bar). The Declaratory View (Prevailing recognition is a mere acknowledgement of an existing fact, legal personality having conferred by operation of law.

View) posits that declaration or state of law and been previously

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.

2. 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.

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

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POLITICAL LAW REVIEWER 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.

3. Individuals While States are 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  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.  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.  Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of WW I: Individuals enjoyed locus standi in actions against States relating to contracts, debts, and property adversely affected by the war.  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.  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. (Please refer to the Chapter on Human Rights)

E. Diplomatic and Consular Law 1. Agents of Diplomatic Intercourse 2. Diplomatic Immunities and Privileges 3. Consular Relations 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.

1. 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

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 dayto-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]

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] In the Philippines, the President appoints (Sec. 16, Art.VII, Constitution), sends and instructs the diplomatic and consular representatives. Functions and Duties The main functions of a diplomatic mission are the following: (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]

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PUBLIC INTERNATIONAL LAW (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]

2. 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

Personal Inviolability Personal inviolability consist 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.

POLITICAL LAW REVIEWER 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] 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). 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 communicate with his government.

and

freely

(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]

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Immunity from Local Jurisdiction

Exemption from Taxes and Customs Duties

As to criminal jurisdiction - A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving State. [Art. 31, VCDR]

Exemption from taxation has 2 aspects, one, pertaining to the sending state and another, pertaining to the diplomatic agent.

He may not be arrested, prosecuted, prosecuted or punished for any offense he may commit, unless his immunity is waived.

(1) 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]

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 (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]

(2) As to Diplomatic agents - are exempt from all dues and taxes, whether personal or real, national, regional or municipal. [Art. 34, VCDR] 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. (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‘

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PUBLIC INTERNATIONAL LAW (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.

3. 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.

POLITICAL LAW REVIEWER (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.

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 (1) Freedom of communication; (a) The receiving state shall permit and protect freedom of information on the part of the consular post for all official purposes; (b) 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; (c) The official correspondence of the consular post shall be inviolable; (d) The consular bag shall neither be opened nor detained.

Consular agent: one entrusted with the performance of certain functions by the consul.

BUT, may the receiving state request that the consular bag be opened?

Functions

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.

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;

If the request is refused – the bag shall be returned to its place of origin. [Art. 35, VCCR] (2) Inviolability of archives; (a) Inviolability is unconditional. They shall be inviolable at all times and wherever they may be. [Art. 33, VCCR] (3) Inviolability of premises;

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PUBLIC INTERNATIONAL LAW What is the scope of the inviolability of consular premises? (a) Authorities of the receiving state shall not enter that part of the consular premises exclusively used for consular work, except with the consent of the head of the consular post, his designee, or the head of the diplomatic mission; but consent of the consular head ―may be assumed in case of fire or other disaster requiring prompt protective action; (b) The receiving state has the special duty to take all appropriate steps to protect the consular premises against intrusion or damage and to prevent any disturbance of peace of the consular post or impairment of its dignity (c) Consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition ―for purposes of national defense or public utility‖. (d) In case of consular premises, their furnishings, the property of the consular post and its means of transport are expropriated for national defense or public utility, ―all possible steps shall be taken to avoid impending the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending state. [Art. 31, VCCR] Consular premises – ―the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of consular post‖. (4) Exemption from local jurisdiction for offenses committed in the discharge of official functions, but not for other offense except for minor infractions; (5) Exemption from testifying on official communications or on matters pertaining to consular functions; (6) Exemption from taxes, customs duties, military or jury service.

judicial authority, or in the execution of a final judicial decision. [Sec. 41, 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]

F. Treaties 1. 2. 3. 4. 5.

Definition Requisites for Validity Treaty-Making Process Invalid Treaties Grounds for Termination

1. Definition A 'treaty' is: (1) an international agreement (2) concluded between States (3) in written form and (4) governed by international law, (5) whether embodied in a single instrument or in two or more related instruments and (6) whatever its particular designation [Art.2(1), 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, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective. Treaty

(7) Personal inviolability of consular officials 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

Subject Matter

1. Political Issues 2. Changes in national policy 3. Involves international agreements of a permanent character

Executive Agreements 1. Transitory effectivity 2. Adjusts details to carry out wellestablished national policies and traditions 3. Temporary 4. Implements treaties, statutes,

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PUBLIC INTERNATIONAL LAW Treaty

Ratification

Requires ratification by the 2/3 of the Senate to be valid and effective (Art. VII, Sec. 21)

Executive Agreements policies Does not require concurrence by Senate to be binding

Expression of Consent to be bound by the Treaty (Article 11, VCLOT) Consent to be bound by the terms of a treaty may be expressed through: (1) Signature, when the negotiator authorized to sign the treaty;

2. Requisites for Validity a. 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.

b. 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.

c. Parties Must Freely Give Consent If consent was given erroneously, or it was induced by fraud, the treaty shall be voidable.

d. Object and Subject Matter Must be Lawful e. Ratification in Accordance with the Constitutional Process of the Parties Concerned

is

Art. 12(1), VCLOT. 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) (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

3. The Treaty-Making Process

(5) Approval

Negotiation State representatives discuss provisions of the treaty.

It means that the stage where the definitive text of the treaty is established as the correct and authentic one.

the

terms

and

Adoption (Article 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 (Article 10, VCLOT)

(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]

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PUBLIC INTERNATIONAL LAW After ratification, a treaty shall be deemed as if legislated by our Legislature. La Chemise Lacoste v. Fernandez: 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.

Registration with the UN 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. 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 Definition: A unilateral statement made by a state upon entering a treaty whereby it purports to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state (Art.19. VCLOT). Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: (1) Where the treaty expressly prohibits reservations in general; (2) Where the treaty expressly prohibits that specific reservation being made; or (3) Where the reservation is incompatible with treaty‘s object and purpose [Reservation to the Genocide Conventions Advisory Opinion]

4. 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:  the restriction was notified to the other negotiating States

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. 

5. 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) [Art.62, VCLOT] 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. Requisites: (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.

G. Nationality and Statelessness 1. Nationality 2. Statelessness

1. Nationality Definition (Cruz): The tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey.

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PUBLIC INTERNATIONAL LAW 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  by individual proceedings, usually judicial, under general naturalization laws  by special act of legislature  by collective change of nationality as a result of cession or subrogation (naturalization en masse)  by adoption (in some cases) (2) Derivative – usually subject to stringent restrictions and conditions  on the wife of the naturalized husband  on the minor children of the naturalized parent  on the alien woman upon marriage to a national An alien woman married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized. [Yao vs. Commissioner of Immigration] 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  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  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 vs. Guatemala]

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

2. Statelessness Definition (Cruz): The condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. 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 favourable than that accorded to aliens.

H. Treatment of Aliens 1. Extradition 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

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Doctrine of State Responsibility: 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

Any person extradited, whether he be a national of the requesting state, of the state of refuge or 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.

In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state.

Conditions for the enforcement of the doctrine 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 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)]

1. Extradition Definition (Cruz): The surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. 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.

Political and religious offenders are generally not subject to extradition.

Rule of double criminality: The act for which the extradition is sought must be punishable in both the requesting and requested states.

Procedure If the surrender of a fugitive is sought, a request for his extradition is presented through diplomatic channels to the state of refuge, with the necessary papers for identification. Upon a receipt of the request, the state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive according to its own laws. If there is, 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 vs. Lantion]

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.

I. International Human Rights Law 1. Universal Declaration of Human Rights 2. International Covenant on Civil and Political Rights (ICCPR) 3. International Covenant on Economic, Social and Cultural Rights (ICESCR)

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binding as part of international law (Juan Carillo Salcedo, Human Rights, Universal Declaration).

Definition of Human Rights (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.

Classification of Human Rights First generation – consists of civil and political rights; Second generation – consists of economic, social and cultural rights; Third generation – refers to right to development, right to peace, and right to environment.

Obligatory Force under International Law

Derogation/ Restriction, when allowed

First generation strictly (or objectively) obligatory, whatever the economic or other conditions of the states obligated may only be derogated in a public emergency

Second generation relatively obligatory: States are required to progressively achieve the full realization of these rights ―to the maximum of their available resources‖ may be restricted for the general welfare, with or without an ―emergency that threatens the independence or security of a State Party.‖

1. Universal Declaration of Human Rights The UDHR is the first comprehensive catalogue of human rights proclaimed by an international organization. It must be noted, however, that 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

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.

2. 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. Obligations of State Parties

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PUBLIC INTERNATIONAL LAW (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.

3. 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. Obligations 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 and differences 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.

J. International Humanitarian Law

(IHL) and Neutrality 1. 2. 3. 4.

Categories of Armed Conflicts Core International Obligations of States in IHL Principles of IHL Law on 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. 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 the (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).

1. Categories of Armed Conflicts International Armed Conflicts Definition of ―Armed Conflict‖ 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 vs. Tadic] 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 is the only provision applicable to noninternational 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

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PUBLIC INTERNATIONAL LAW (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. 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. 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 support in accordance with the purposes and principles of the Charter (1970 Resolution 2625 [XXV])

2. Core International Obligations of States in IHL 3. Principles of IHL Definition of Concepts and Phrases Combatants Combatants are 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]

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PUBLIC INTERNATIONAL LAW In fact, only combatants are allowed to engage in hostilities. According to one commentator, 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 Protected persons 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.

POLITICAL LAW REVIEWER (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. (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

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4. 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 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  not taking part in the hostilities,  which may be a neutral state,  designated by one party to an armed conflict with the consent of the other  to safeguard or protect its humanitarian interests in the conflict, the performance of which IHL defines specific rights and duties.

K. Law of the Sea 1. 2. 3. 4.

Baselines Archipelagic States Internal Waters Territorial Sea

5. Exclusive Economic Zone 6. Continental Shelf 7. Tribunal of the Law of the Sea The Law of the Sea (LOS) is the body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. [Magallona] It is the branch of PIL which regulates the relations of states with respect to the use of the oceans. (Asked 1 time in the Bar)

1. Baselines Definition 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. (See Appendix 1) Normal baseline – the territorial sea is the lowwater 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]

2. Archipelagic States Definition 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.

Straight Archipelagic Baselines Baselines of archipelagic states Straight baselines join the outermost points of the outermost islands and drying reefs of an archipelago, provided that within such baselines are included the main islands and an area in which the ratio of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. Such are called straight archipelagic baselines. Two Kinds of Archipelagos

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PUBLIC INTERNATIONAL LAW 1. 2.

Coastal – situated close to a mainland and may be considered part thereof, i.e. Norway 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.)

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 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. (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.

3. Internal Waters (Asked 1 time in the Bar) Definition 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. 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.

4. Territorial Sea (Asked 1 time in the Bar) Definition These waters stretch up to 12 miles from the baseline on the seaward direction. They are subject to the jurisdiction of the coastal state, which jurisdiction almost approximates that which is exercised over land territory. Except that the coastal state must respect the rights to (1) innocent passage and, in the case of certain straits, to (2) transit passage. (Asked 1 time in the Bar) Innocent passage  navigation through the territorial sea w/o entering internal waters, going to internal waters, or coming from internal waters and making for the high seas. It must (a) involve only acts that are required by navigation or by distress, and (b) not prejudice the peace, security, or good order of the coastal state. Transit passage  the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straights used for international navigation. The right cannot be unilaterally suspended by the coastal state. INNOCENT PASSAGE Pertains to navigation of ships only Requires submarines and other underwater vehicles to navigate on the surface and show

TRANSIT PASSAGE Includes the right of overflight Submarines are allowed to navigate in ―normal mode‖ – i.e. submerged

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PUBLIC INTERNATIONAL LAW INNOCENT PASSAGE their flag. Can be suspended, but under the condition that it does not discriminate among foreign ships, and such suspension is essential for the protection of its security, and suspension is effective only after having been duly published (Art. 25, UNCLOS) In the designation of sea lanes and traffic separation schemes, the coastal state shall only take into account the recommendations of the competent international organization.

TRANSIT PASSAGE Cannot be suspended

POLITICAL LAW REVIEWER right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same subregion or region. Note: a coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ is not required to share its resources.

Designation of sea lanes and traffic separation schemes is subject to adoption by competent international organization upon the proposal and agreement of states bordering the straits.

5. Exclusive Economic Zone (Asked 1 time in the Bar) A coastal state may establish an EEZ that may stretch up to 200 miles from its baselines. Within this zone, a State may regulate nonliving and living resources, other economic resources, artificial installations, scientific research, and pollution control. Under the UNCLOS, states have the sovereign right to exploit the resources of this zone, but shall share that part of the catch that is beyond its capacity to harvest. Resources covered by sovereign rights of coastal states in the EEZ include living and non-living resources in the waters of the seabed and its subsoil. Coastal states have the primary responsibility to utilize, manage and conserve the living resources within their EEZ, i.e. ensuring that living resources are not endangered by overexploitation, and the duty to promote optimum utilization of living resources by determining allowable catch. 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. Note however that the UNLCOS does not specify the method for determining ―allowable catch.‖ Hence, states may establish illusory levels. Geographically disadvantaged states (those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked states have the

The coastal state has jurisdiction over the (1) establishment and use of artificial islands, installations and structures, (2) scientific research, (3) the preservation and protection of marine environment. Under Art. 58 of the UNCLOS, all states enjoy the freedom of navigation, overflight, and laying of submarine cables and pipelines in the EEZ of coastal states. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. Note: In detention of foreign vessels, the coastal state has the duty to promptly notify the flag state of the action taken. Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. [Art. 59, UNCLOS]

6. Continental Shelf Extended Continental Shelf Definition It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to (1) the outer edge of the continental margin, or (2) a distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance. Continental margin  the submerged prolongation of the land mass of the continental state, consisting of the continental shelf proper, the continental slope, and the continental rise

Limits of the Continental Shelf Juridical or Legal Continental Shelf: 0-200 nautical miles from baselines

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POLITICAL LAW REVIEWER

PUBLIC INTERNATIONAL LAW Extended Continental Shelf: 200-350 nautical miles from baselines depending on geomorphological or geological data and information

state as to living resources

When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits.

7. Tribunal of the Law of the Sea

At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea, or 100 nautical miles from the 2500meter isobath (or the point where the waters are 2500 meters deep).

Rights of the Coastal Continental Shelf

State

over

the

of such resources

living

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Peaceful Settlement of Disputes Under par. 3, Art. 2 of the UN Charter, States have the duty to settle disputes by peaceful means. This obligation extends to State Parties of the UNCLOS, underscoring the right of the parties to resort to peaceful means of their own choice on which they can agree any time.

The continental shelf does not form part of the territory of the coastal state.

Compulsory Settlement of Disputes

It only has sovereign rights with respect to the exploration and exploitation of its natural resources, including the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species.*

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.

For example, the coastal state has the exclusive right to authorize and regulate oil-drilling on its continental shelf. These rights are exclusive in the sense that when the coastal state does not explore its continental shelf or exploit its resources, no one may undertake these activities without the coastal state‘s consent.

Compulsory Procedures that States Parties Can Choose From: (1) International Tribunal for the Law of the Sea*; (2) International Court of Justice; (3) Arbitral Tribunal*; (4) Special Arbitral Tribunal*;

Note: In instances where the continental margin is more than 200 nautical miles from the baselines, and hence extends beyond the EEZ, the coastal state has the exclusive right to exploit mineral and non-living resources in the ―excess area‖.

The choice of the State Parties must be expressed in a written declaration, which is revocable and replaceable.

Rights with Respect to Continental Shelf vs. EEZ

The court or Tribunal has jurisdiction over: (1) any dispute submitted to it concerning the application or interpretation of UNCLOS (2) any dispute concerning the interpretation or application of an international agreement: (a) related to the purposes of the UNCLOS (b) when such dispute is submitted to it in accordance with that agreement.

Duty to manage and conserve living resources Rights of the coastal state as to natural resources

Rights of the coastal

Continental Shelf No duty

Relate to mineral and other nonliving resources of the seabed and the subsoil

Apply only to sedentary species

EEZ Coastal state is obliged to manage and conserve living resources in the EEZ Have to do with natural resources of both waters superadjacent to the seabed and those of the seabed and subsoil Do not pertain to sedentary species

Jurisdiction of Court or Tribunal

Composition of the International Tribunal for the Law of the Sea (ITLOS) It is composed of 21 ―independent members elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea‖. The composition shall also be representative of the world‘s principal legal systems and of equitable geographical distribution.

Jurisdiction of ITLOS *

Sedentary species are organisms which, at the harvestable state, are either immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or subsoil.

*

As established under the UNCLOS.

PUBLIC INTERNATIONAL LAW Its jurisdiction covers all disputes submitted to it in accordance with the UNCLOS. It also includes matters submitted to it under any other agreement.

Applicable Laws in Settlement of Disputes by the ITLOS The Tribunal shall apply the UNLCOS and other rules of international law not incompatible with the UNCLOS. It may also decide a case ex aequo et bono (what is equitable and just) if the parties so agree.

L. International Environment Law Definition (Magallona) The branch of public international law comprising those substantive, procedural, and institutional rules which have as their primary objective the protection of the environment

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 vs. 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 Stockholm Declaration States have, in accordance with the Charter of the 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. 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 approach shall be widely applied

POLITICAL LAW REVIEWER by States according to 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.

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