nachura

Nachura Notes – Constitutional Law

I. GENERAL PRINCIPLES

A. Political Law – branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory.

B. Scope/Division1. Constitutional Law – study of the maintenance of the proper balance between authority as represented by the 3 inherent powers of the State and liberty as guaranteed by the Bill of Rights2. Administrative Law – Fixes the organization of the government;

Determines the competence of the administrative authorities who execute the law; and

Indicates to the individuals remedies for the violation of his right.3. Law on Municipal Corporations4. Law of Public Officers5. Election Law

C. Basis of the Study1. 1935 and 1973 Constitution2. 1986 Constitution3. Other organic laws made to apply in the Philippines4. Statutes, EOs and decrees, judicial decisions5. US Constitution

II. THE PHILIPPINE CONSTITUTION

A. Nature of the Constitution1. Definitiona. The body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.b. That written instrument enacted by the direct action of the people,

by which the fundamental powers of the government are established, limited and defined;

and by which those powers are distributed among several departments for

their safe and useful exercise for the benefit of the body politic.2. Purposea. Prescribe permanent framework of a system of government;b. Assign to several departments their respective powers and dutiesc. Establish certain first principles on which the government is founded3. Classificationa. Written – precepts are embodied in one document/ set of documents

Unwritten – rules which have not been integrated into a single, concrete form but are scattered in various sources (statutes, judicial decisions, commentaries, customs and traditions, common law principles).b. Enacted (Conventional) – formally struck off at a definite time and place following a conscious or deliberate effort taken by a constituent body or ruler.

Evolved (Cumulative) – result of political evolution, changing by

accretion rather than by any systematic method.c. Rigid – amended only by formal and usually difficult process

Flexible – changed by ordinary legislation4. Qualities of a good written Constitutiona. Broad – comprehensive enough to provide for every contingencyb. Brief – confine to basic principles to be implementedc. Definite – to prevent ambiguity5. Essential parts of a good written Constitutiona. Constitution of Liberty – sets forth the civil and political rights of the citizens and imposing limitations on the powers of the governmentb. Constitution of Government – outlines the organization of the government;

1


enumerates its powers; and lay down rules relative to its administrationc. Constitution of Sovereignty – points out the mode or procedure in accordance with formal changes in the fundamental law may be brought about6. Interpretation/Construction of the Constitutiona. Verba legis: given their ordinary meaning except where technical terms are employedb. Ratio legis et anima: ambiguity intent of the framers, bearing in mind the objects sought to be accomplished and evils sought to be prevented; doubtful provision shall be examined in light of the history of the times and the conditions and circumstances under which the Constitution was framedc. Ut magis valeat quam pereat: Constitution to be interpreted as a whole- Safer to construe the Constitution from what “appears upon its face.” If, however, the plain meaning of the word is not found to be clear, resort to other aids is available.- In case of doubt, consider provisions as self-executing; mandatory rather than directory; and prospective rather than retroactive.- Self-executing provisions: one that lays down principle is usually not self-executing. That which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing.- Self-executing if the nature and extent of the right conferred and liability imposed are fixed by the Constitution itself.- Section 26, Article II of the Constitution does NOT contain judicially enforceable constitutional rights.B. Brief Constitutional History1. Malolos Constitution2. American Regime and Other Organic Acts

3. 1935 Constitution4. Japanese Occupation5. 1973 Constitution6. 1987 Constitution

C. Amendment1. Amendment – isolated or piecemeal change in the Constitution

Revision – revamp or rewriting of the entire instrument2. Legislative Power – merely provides details for implementation3. Stepsa. Proposal- Congress, ¾ of ALL its members… understood as ¾ of Senate and ¾ of HRs- Constitutional Convention, called into existence by 2/3 a vote of all the members of Congress with the question of whether or not to call a convention to be resolved by the people in a plebiscite- People through Power of Initiative, petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for that purpose Limitation: No amendment w/in 5 years following the ratification of this Constitution nor more than once every five years thereafter. 3 systems of initiative: (1) Initiative on the Constitution(2) Initiative on Statutes(3) Initiative on Local Legislation- Choice of method of proposal is within the full discretion of the legislature- 3 Theories on the position of a Constitutional Convention vis-à-vis the regular departments of government(1) Theory of Conventional Sovereignty(2) Convention is inferior to other departments

2


(3) Independent of and co-equal to the other departmentsb. Ratification - Ratified by a majority of the votes cast in a plebiscite held not earlier than 60 nor later than 90 days after the approval of the proposal by Congress or the Constitutional Convention, or after the certification by the COMELEC of the sufficiency of the initiative.- Doctrine or proper submission: Constitution prescribes the time frame within which the plebiscite is to be held, there can no longer be any question on whether the time given to the people to determine the merits and demerits of the proposed amendment is adequate. - Plebiscite may be held on the same day as a regular election.- Entire Constitution must be submitted for ratification at one plebiscite only.- The people have to be given a “proper frame of reference” in arriving at their decision.4. Judicial Review of Amendments – issue is whether or not the constitutional provisions had been followed.

E. The Power of Judicial Review1. Judicial Review – power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution.- Power is inherent in the Constitution.- Section 1, Article VII of the Constitution: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.2. Who may exercise- Power of the SC to decide constitutional questions.

- Constitutional appellate jurisdiction of the SC and implicitly recognizes the authority of lower courts to decide questions involving the constitutionality of laws, treaties, agreements, etc.- Notice to SolGen is mandatory to enable him to decide whether or not his intervention in the action is necessary.3. Functions of Judicial Review(1) Checking(2) Legitimizing(3) Symbolic4. Requisites(1) Actual case or controversy(2) Constitutional question must be raised by the proper party

- A party’s standing in court is a procedural technicality which may be set aside by the Court in view of the importance of the issues involved; paramount public interest/transcendental importance- “Present substantial interest” – such interest of a party in the subject matter of the action as will entitle him under substantive law, to recover of the evidence is sufficient, or that he has a legal title to defend and the defendant will be protected in payment to or recovery from him.- A taxpayer, or group of taxpayers, is a proper party to question the validity of a law appropriating public funds.- 2 Requisites for Taxpayer’s Suit:(1) Public funds are disbursed by a political subdivision or instrumentality(2) A law is violated or irregularity is committed(3) Petitioner is directly affected by the ultra vires act- The Government is a proper party to question the validity of its own laws, because more than any one, it should be concerned with the constitutionality of its acts

3


The established rule is that a party can question the validity of a statute only if, as applied to him, it is unconstitutional. Exception: Facial Challenge, when it operates in the area of freedom of expression. Overbreadth Doctrine: permits a party to challenge the validity of a statute even though, as applied to him, it is not unconstitutional, but it might be if applied to other not before the Court whose activities are constitutionally protected. Invalidation of the statute “on its face”, rather than “as applied” is permitted in the interest of preventing a “chilling effect” on freedom of expression. Facial challenge is the most difficult challenge because the challenge must establish that no set of circumstances exists under which the act would be valid.- The constitutional question must be raised at the earliest possible opportunity- The decision on the constitutional question must be determinative of the case itself.- Bars judicial inquiry into a constitutional question unless the resolution is indispensable to the determination of the case.- Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution.

5. Effects of Declaration of Unconstitutionality- Orthodox View: unconstitutional act is not a law, it confers no rights and imposes no duties; it affords no protection, creates no office; it is inoperative as if it had not been passed at all.- Modern View: certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized.6. Partial Unconstitutionality

- Legislature must be willing to retain the valid portions separability clause- Valid portion can stand independently as law

III. THE PHILIPPINES AS A STATEState: a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control and possessing a government to which a great body of inhabitants render habitual obedience.

State is a legal or juristic concept; nation is an ethnic or racial concept.Government is an instrumentality of the State through which the will of the State is implemented and realized.

Elements:(1) People(2) Territory

Components:1) Terrestrial2) Fluvial3) Maritime4) Aerial(3) Government(4) Sovereignty

Archipelago Doctrine: the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

Straight Baseline Method: Imaginary straight lines are drawn joining the outermost points of outermost islands of the archipelago, enclosing an area the ratio of which should not be more than 9:1; provided that the drawing of the baselines shall not depart, to any appreciable extent, from the general configuration of the archipelago.

Functions of the Government:

4


(1) Constituent – mandatory for the Government to perform because they constitute the very bonds of society(2) Ministrant – intended to promote the welfare, progress and prosperity of the people and which are merely optional for Government to perform

Doctrine of Parens Patriae: parents of the people; the Government may act as guardian of the rights of the people who may be disadvantaged or suffering from some disability or misfortune.

Classification(1) De jure

De facto – Kinds1) Takes possession or control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;2) Established by the inhabitants of a territory who rise in insurrection against the parent state; and3) Established by invading forces of an enemy who occupy a territory in the course of war (de facto government of paramount force).(2) Presidential – separation of executive and legislative powers

Parliamentary – fusion of both executive and legislative in Parliament; actual

exercise of executive powers is vested in a Prime Minister who is chosen by, and

accountable to the Parliament(3) Unitary

Federal

Sovereignty: supreme and uncontrollable power inherent in a State by which that State is governed

Kinds:1) Legal – power to issue final commands Political – sum total of all the influences which lie behind the law

2) Internal – supreme power over everything within the territory External/Independence – freedom from external control

Characteristics:1) Permanence2) Exclusiveness3) Comprehensiveness4) Absoluteness5) Indivisibility6) Inalienability7) Imprescriptibility

Effects of Change in Sovereignty: Political laws are abrogated; municipal laws

remain in force

Effects of Belligerent Occupation: No change in sovereignty. Political laws, except the law on treason, are suspended; Municipal laws remain in force unless repealed by belligerent occupant; At the end of belligerent occupation, political laws shall automatically become effective again (doctrine of jus postliminium)

Dominium – capacity to acquire or own property

Imperium – authority possessed by the State embraced in the concept of

sovereignty

JurisdictionTerritorial: power of the State over

persons and things within its territory.Exemption:

(1) Foreign states, head of states, diplomatic representatives and consuls to a certain degree;(2) Foreign state property, including embassies, consulates and public vessels engaged in non-commercial activities;(3) Acts of state

5


(4) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry such as arrival under stress(5) Foreign armies passing through or stationed in its territory with its permission; and(6) Other persons or property, including organizations like the UN, over which it may, by agreement, waive jurisdiction.

Personal: power of the State over its nationals, which may be exercised by the State even of the individual is outside the territory of the State.

Extraterritorial: power exercised by the State beyond its territory,

example:(1) Assertion of its personal jurisdiction over its nationals abroad or the exercise of its right to punish offenses committed outside its territory against its national interests even if the offenders are non-resident aliens;(2) By virtue of its relations with other states/territories (as when it establishes a colonial protectorate or a condominium or administers a trust territory or occupies enemy territory in the course of war);(3) Local state waives jurisdiction over persons and things within its territory;(4) Principle of extraterritoriality(5) Enjoyment of easements or servitudes (easement of innocent passage or arrival under stress)(6) Exercise of jurisdiction by the state in the high seas over its vessels, over pirates, in the exercise of the right to visit and search, and under doctrine or hot pursuit; (7) Exercise of limited jurisdiction over the contiguous zone and the patrimonial sea, to prevent infringement of its customs, fiscal, immigration or sanitary regulations.

State Immunity from Suit: The State cannot be sued without its consent.

Royal Prerogative of Dishonesty: There can be no legal right against the authority which makes the law on which the right depends. It may be sued if its gives consent. Par in parem non habet imperium: Immunity is enjoyed by other States. The Head of the State, who is deemed the personification of the State, is inviolable and enjoys immunity.

Test to Determine if Suit is Against the State Whether it requires an affirmative act from the state.

Suit against Government Agencies1. Incorporated – if the charter provides that the agency can sue and be sued, then suit will lie, including one for tort. The provision in the charter constitutes express consent on the part of the State to be sued. Municipal corporations, agencies of the state when they are engaged in governmental functions and should enjoy sovereign immunity from suit. They are subject to suit even in the performance of such functions because their respective charters provide that they can sue and be sued. (Section 22 LGC)2. Unincorporated – inquire into the principal functions If governmental: no suit without consent If proprietary: suit will lie, because when the State engages in principally proprietary functions, then it descends to the level of a private individual, and may therefore be vulnerable to suit.

Suit Against Public Officers: The doctrine of state immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority.

Exceptions: (may be sued without prior consent from State)1. to compel him to do an act required by law;

6


2. to restrain him from enforcing an act claimed to be unconstitutional;3. to compel the payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose;4. to secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him;5. where government itself has violated its own laws, because the doctrine of state immunity “cannot be used to perpetrate an injustice”

Where a public officer has committed an ultra vires act, or there is a showing of bad faith, malice or gross negligence, then the officer can be held personally accountable.

In order that suit may lie against the state, there must be consent. Where no consent is shown, state immunity from suit may be invoked as a defense by the courts sua sponte at any stage of the proceedings.

Express consent: general law or special law

Implied consent1. state commences a litigation2. state enters into a business contract

Scope of consent: consent to be sued does not include consent to the execution of judgment against it. Such execution will require another waiver.

Suability is not equated with outright liability. Liability will have to be determined by the court on the basis of the evidence and the applicable law.

IV. FUNDAMENTAL POWERS OF THE STATEInherent powers of the State1. Police Power2. Eminent Domain

3. Power of Taxation

Similarities1. inherent in the state, without need of express constitutional grant2. necessary and indispensable3. methods by which the state interferes with private property4. presupposes equivalent compensation5. exercised primarily by legislature

Distinctions1. Police power regulates liberty and property

Eminent domain and taxation affects only property rights2. Police power and taxation are exercised only by government

Eminent domain may be exercised by private entities3. Property taken in police power is usually noxious or intended for noxious purposes and may be destroyed

In eminent domain and taxation, the property is wholesome and devoted to public

use/purpose.4. Compensation in police power is the intangible, altruistic feeling that the individual has contributed to the public good;

In eminent domain, it is the full and fair equivalent of the property taken;

In taxation, it is the protection given and/or public improvements instituted by

government for taxes paid.

Limitations1. Bill of Rights2. Courts may annul improvident exercise of police power

Police Power Power of promoting public welfare by restraining and regulating the use of liberty and property.

7


Most pervasive, least limitable and most demanding of the three powers. Justification: salus populi est suprema lex and sic utere tuo ut alienum non laedas

Who may exercise? Inherently vested in Legislature Congress may validly delegate this power to the President, administrative bodies and to lawmaking bodies of LGUs. LGUs exercise this power under the general welfare clause

Limitations (test for valid exercise) Lawful subject: interest of the public; activity or property sought to be regulated affects the general welfare; if it does then the enjoyment of the rights flowing therefrom may have to yield to the interest of the greater number. Lawful means: means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. Express grant by law Within territorial limits (for LGUs except when exercised to protect water supply) Must not be contrary to law

For Municipal Ordinances to be Valid:(1) Must not contravene the Constitution or the statute(2) Must not be unfair or oppressive(3) Must not be partial or discriminatory(4) Must not prohibit but may regulate trade(5) Must not be unreasonable (6) Must be general in application and consistent with public policy

Power of Eminent Domain (Power of Expropriation)

Jurisdiction RTC

Who may exercise the power Congress By delegation, the President, administrative bodies, LGUs and even private enterprises performing public services

Requisites(1) Necessity(2) Private Property, except money and choses in action(3) Taking in the constitutional sense(4) Public use(5) Just Compensation – full and fair equivalent of the property taken; fair market value of the property

Judicial Prerogative Ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative.

Form of Compensation Paid in money and no other form. In agrarian reform, payment is allowed to be made partly in bonds because under the CARP, “we do not deal with the traditional exercise of the power of eminent domain; we deal with a revolutionary kind of expropriation.”

Reckoning point of market value of the property Date of the taking or the filing of the complaint, whichever comes first.

Principal criterion in determining just compensation Character of the land at the time of the taking

Entitlement of owner to interest When there is delay in the payment of just compensation, the owner is entitled to payment of interest if claimed; otherwise, interest is deemed waived;

8


Interest is 6% per annum, prescribed in Article 2209 of the CC, NOT 12% per annum under Central Bank Circular No. 416, latter applies to loans or forbearances of money, goods or credits or judgments involving such loans or forbearance of money, goods or credits. The kind of interest here is by way of damages. In some expropriation cases, the court imposes 12% damages for delay in payment which, in effect, makes the obligation on the part of government one of forbearance.

Who else may be entitled to just compensation Owner Those who have lawful interest

Title to the property Does not pass until after payment

Right of landowner in case of non-payment of just compensation Does not entitle to recover possession of the expropriated lots Only to demand payment of the FMV of the property

Due process of law Defendant must be given an opportunity to be heard

Writ of Possession, ministerial upon:(1) Filing of complaint for expropriation sufficient in form and substance(2) Upon deposit by the government of the amount equivalent to 15% of the FMV of the property per current tax declaration

The plaintiff’s right to dismiss the complaint has always been subject to Court

approval and to certain conditions, because the landowner may have already

suffered damages at the start of the taking.

Right to repurchase or re-acquire the property Property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator: if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned, the property shall revert to the former owner, the former owner can re-acquire the property.

Lands for socialized housing are to be acquired in the following order:(1) Government lands(2) Alienable lands of the public domain(3) Unregistered, abandoned or idle lands;(4) Lands within the declared Areas for Priority Development, Zonal Improvement Program sites, Slum Improvement and Resettlement sites which have not yet been acquired;(5) BLISS sites which have not yet been acquired; and(6) Privately owned lands

The mode of expropriation is subject to 2 conditions:(1) Resorted to only when the other modes of acquisition have been exhausted(2) Parcels owned by small property owners are exempt from such acquisition

Small property owners:(1) Owners of residential lots not more than 300 sq. m. in highly urbanized cities and not more than 800 sq. m. in other urban areas(2) They do not own residential property other than the same

Power of Taxation

Who may exercise Legislature Local legislative bodies

9


To a limited extent, the President, when granted delegated tariff powers

Limitations on the exercise Due process of law, must not be confiscatory Equal protection clause, must be uniform and equitable Public purpose

Double taxation Additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose.

Tax Exemptions No law granting tax exemption shall be passed without the concurrence of a majority of all the Members of Congress. 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 exempt Revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes exempt Proprietary educational institutions may be exempt subject to limitations provided by law Grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes exempt

Police Power vs. Taxation License fee v. Tax license fee is a police measure; tax is revenue measure 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 non-useful occupation);

amount of tax may be unlimited provided it is not confiscatory License fee is paid for the privilege of doing something and may be revoked when public interest so requires; tax is imposed on persons or property for revenue

Kinds of license fee(1) For useful occupation/enterprises(2) Non-useful occupation/enterprises (when used to discourage, it may be a bit exorbitant)

V. PRINCIPLES AND STATE POLICES

Preamble Does not confer rights nor impose duties Indicates authorship of the Constitution Enumerates the primary aims and aspirations of the framers Serves as an aid in the construction of the Constitution

Republicanism The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them. Essential features(1) Representation(2) Renovation Manifestations(1) Government of law and not of men(2) Rule of majority(3) Accountability of public officials(4) Bill of rights(5) Legislature cannot pass irrepealable laws(6) Separation of powers

Purpose To prevent concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of republican institutions.

10


Principle of Blending of Powers Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments.

Principle of Checks and Balances This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments.

Doctrine of Necessary Implication Absence of express conferment, the exercise of the power may be justified under this doctrine, that the grant of an express power carries with it all other powers that may be reasonably inferred from it.

A purely justiciable question implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law for said breach of right.

Political question is a question of policy. It refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. It is concerned with issues dependent upon wisdom, not legality of particular measure.

Delegation of powers Potestas delegate non potest delegare Delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. Permissible delegation(1) Tariff powers to the president(2) Emergency powers to the president (in times of war or national emergency)

(3) Delegation to the people – specific provisions where the people have reserved to themselves the function of legislation Referendum: power of the electorate to approve or reject legislation through an election called for the purpose; referendum on statutes and referendum on local law Plebiscite: electoral process by which an initiative on the Constitution is approved or rejected by the people.(4) Delegation to LGUs(5) Delegation to Administrative Bodies – power of subordinate legislation Tests for valid delegation(1) Completeness test: the law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it.(2) Sufficient standard test: intended to map out the boundaries of the delegates’ authority by defining the legislative policy and indicting the circumstances under which it is up be pursued and effected; the standards usually indicated in the law delegating legislative power.

The Incorporation Clause The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the police of peace, equality, justice, freedom, cooperation and amity with all nations. Independent foreign policy and nuclear-free Philippines Expiration of Bases Agreement Renunciation of War(1) Covenant of the League of Nations(2) Kellogg-Briad Pact of 1928(3) Charter of the United Nations Doctrine of Incorporation – our courts have applied the rules of international law in a number of cases even of such rules had not

11


previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws.

Civilian Supremacy Civilian authority is, at all times supreme over the military. The AFP is the protector of the people and the State. Its goal is to secure the sovereignty pf the State and integrity of the national territory.

Duty of Government; people to defend the State The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Right to Bear Arms: statutory, not constitutional right.

Separation of Church and State Freedom of religion clause Religious sect cannot be registered as political party No sectoral representative from the religious sector Prohibition against appropriation for sectarian benefit

Exceptions(1) Section 28(3), Article 6: Exemption from taxation(2) Section 29(2), Article 6: Prohibition against sectarian benefit, except when priest is assigned to the armed forces or to any

penal institution or government orphanage or leprosarium(3) Section 3(3), Article 14: Optional religious instruction for public elementary and high school studies(4) Section 4(2), Article 14: Filipino ownership requirement to educational institutions, except those established by groups and mission boards

Independent Foreign Policy and Nuclear-free Philippines State shall pursue an independent foreign policy. In relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest and the right to self-determination. The Philippines consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Just and dynamic social order State shall promote a just and dynamic social order that will ensure prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all.

Promotion of Social Justice Promote social justice in all phases of national development

Respect for human dignity and human rights State values the dignity of every human person and guarantees full respect for human rights.

Family and Youth The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of

12


the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive support of the Government. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Fundamental equality of men and women State recognizes the role of women in nation-building and shall ensure the fundamental equality before the law of men and women.

Promotion of health and ecology State shall protect and promote the right to health of the people and instill health consciousness among them. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Priority to education, science, technology, etc. State shall give priority to education, science and technology, arts, culture and sports, to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

Protection to Labor State affirms labor as a primary social economic force. It shall protect the rights or workers and promote their welfare.

Self-reliant and independent economic order State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

The State recognizes the indispensable role of the private sector, encourages private enterprise, and provide incentives to needed investments.

Land reform State shall promote comprehensive rural development and agrarian reform.

Indigenous cultural communities State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Independent people’s organizations State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

Communication and information in nation-building State recognizes the vital role of communication and information in nation-building.

Autonomy of local governments State shall ensure the autonomy of local governments. Decentralization and does not make the local governments sovereign within the State or an imperium in imperio. Decentralization of administration: delegation of administrative powers to the LGU in order to broaden the base of governmental powers. Decentralization of power: abdication by the national government of governmental powers.

Equal access of opportunities for public service State shall guarantee equal access of opportunities for public service and prohibit political dynasties as may be defined by law.

13


Honest public service and full public disclosure State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

VI. BILL OF RIGHTS

Definition Set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government. Generally, any government action in violation of the Bill of Rights is void. Generally self-executing.

Civil Rights Right that belong to every citizen of the state or country and are not connected with the organization or administration of government.

Political Rights Right to participate, directly or indirectly, in the establishment or administration of government.

Due Process of Law: No person shall be deprived of life, liberty or property without due process of law

Definition A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.

Who are protected Universal in application to all persons Artificial persons are covered by the protection only insofar as their property is concerned

Guarantee extends to aliens and includes the means of livelihood

Meaning of life, liberty and property Life: right of an individual to his body in its completeness, free from dismemberment and extends to the use of God-given faculties which makes life enjoyable Liberty: the right to exist and the right to be free from arbitrary personal restraint or servitude; includes the right to be free to use his faculties in all lawful ways Property: anything that can come under the right of ownership and can be subject of contract; the right to secure, use and dispose them.

Aspects of due process1. Substantive – restriction on government’s law- and rule-making powers Requisites:1. interest of the public2. means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals2. Procedural – restriction on actions of judicial and quasi-judicial agencies of government Requisites:1. impartial court or tribunal clothed with judicial power to hear and determine the matter before it2. jurisdiction must be lawfully acquired over the person of the defendant and over the property which is the subject matter of the proceeding3. the defendant must be given an opportunity to be heard4. judgment must be rendered upon lawful hearing

Publication as part of due process Publication is imperative to the validity of laws, PDs and Eos, administrative rules

14


and regulation and is an indispensable part of due process.

Appeal and due process Appeal is not a natural right nor is it part of due process; it may be allowed or denied by legislature in its discretion. But where the Constitution gives a person the right to appeal, denial of such constitutes a violation of due process.

Preliminary investigation and due process Right to preliminary investigation is not a constitutional right, but it is merely a right conferred by statute. But where there is a statutory grant of the right to preliminary investigation, denial of such constitutes a violation of due process.

Administrative due process Requisites(1) Right to a hearing, includes the right to present one’s case and submit evidence in support thereof;(2) Tribunal must consider the evidence presented;(3) Decision must have something to support itself;(4) Evidence must be substantial;(5) Decision must be rendered on the evidence presented or at least contained in the records and disclosed to the parties;(6) Tribunal or any of its judges must act on its own or his own independent consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision; and(7) The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding will know the various issues involved, and the reason for the decision.

Equal Protection of the LawsMeaning

All persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Natural and juridical persons are entitled to this guarantee. With respect to juridical persons, they enjoy the protection only insofar as their property is concerned.

Scope of Equality Economic(1) Free access to courts(2) Marine wealth reserved for Filipino citizens(3) Reduction of social, economic and political inequalities Political(1) Free access to courts(2) Bona fide candidates being free from harassment/discrimination(3) Reduction of social, economic and political inequalities Social

Valid Classification(1) Substantial distinctions(2) Germane to the purpose of the law(3) Not limited to existing conditions only(4) Must apply equally to all members of the same class

Searches and SeizuresScope

Available to all persons, including aliens, whether accused of a crime or not. Artificial persons are also entitled to the guarantee, although they may be required to open their books of accounts for examination by the State in the exercise of police and taxing powers. Right is personal

Objection must be raised before the accused enters his plea

15


Procedural Rules1. warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the person arrested submits to arraignment without any objection;2. where a criminal case is pending, the Court wherein it is filed, or the assigned branch, has primary jurisdiction to issue the search warrant;3. where no criminal case has been filed, the executive judges or their lawful substitutes, in the areas and for the offense contemplated shall have primary jurisdiction;4. moment the information is filed with the RTC, it is that court which must issue the warrant of arrest;5. the judge may order the quashal of a warrant he issued even after the same had already been implemented, particularly when such quashal is based on the finding that there is no offense committed items seized shall be inadmissible in evidence

Only a judge may issue a warrant Exception: order of arrest may be issued by administrative authorities but only for the purpose of carrying out a final finding of a violation of law, e.g. an order of deportation or an order of contempt but not for the sole purpose of investigation or prosecution.

Requisites for a Valid Warrant(1) Probable cause(2) Determination of probable cause personally by the judge(3) After examination under oath or affirmation of the complainant and the witnesses he may produce(4) Particularity of description

The judge 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 on the basis thereof, he finds no probable cause, he may disregard the prosecutor’s report band require the submission of supporting affidavits of witnesses.

Principles:(1) The determination of probable cause is a function of the judge(2) The preliminary inquiry made by the prosecutor does not bind the judge, as it is the report, affidavits, the transcript of stenographic notes and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge in his determination of probable cause(3) Judges and prosecutors should distinguish the preliminary inquiry which determines probable cause for the issuance of the warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or be released(4) Only a judge may issue a warrant of arrest

Judge himself conducts the preliminary investigation, for him to issue a warrant of arrest, the investigating judge must:(1) Have examined, under oath, the complainant and the witnesses;(2) Be satisfied that there is probable cause; and(3) That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice

Particularity of Description:(1) Readily identify the properties to be seized and thus prevent them from seizing the wrong items; and

16


(2) Leave peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.

Warrant of Arrest particularly describe the person to be seized if it contains the name/s of the person/s to be seized.John Doe warrant descriptio persona

Search Warrant description is as specific as the circumstances will ordinarily allow or when description expresses a conclusion of fact (not of law) by which the warrant officer may be guided in making the search; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.

Properties Subject of Seizure:(1) Subject of the offense(2) Stolen or embezzled property and other proceeds or fruits of the offense; and(3) Property used or intended to be used as means for the commission of an offense

Conduct of the Search(1) Lawful occupant(2) Any member of his family(3) 2 witnesses, of sufficient age and discretion, residing in the same locality

Warrantless arrests by a peace officer or a private person:(1) When the person to be arrested has committed, is actually committing or is attempting to commit an offense in his presence;(2) When the offense had just been committed and there is probable cause to believe, based on his personal knowledge of facts and of other circumstances, that the person to be arrested has committed the offense;(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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another; and(4) When the right is voluntarily waived.

Buy-bust operation is a valid in flagrante arrest.

In flagrante arrests:(1) The person to be arrested must execute an overt act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and(2) Such overt act is done in the presence or within the view of the arresting officer.

In (2):(1) there must be immediacy between the time the offense is committed and the time of the arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured and(2) the person making the arrest has personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime.

Question the validity of the arrest before entering plea; failure to do so would constitute a waiver of his right against unlawful restraint of his liberty. However, waiver is limited to the illegal arrest. It does not extend to the search made as an incident thereto, or to the subsequent seizure if evidence allegedly found during the search.

17


Valid Waiver of Constitutional Right(1) Right exists(2) That the person involved had knowledge, either actual or constructive of the existence of such right; and(3) That the person had an actual intention to relinquish the right.

Searches of Passengers at Airports- When the accused checked in his luggage as a 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.- Search made pursuant to routine airport security is allowed under RA 6235, which provides that every airline ticket shall contain a condition that hand-carried luggage, etc., shall be subject to search, and this condition shall form part of the contract between the passenger and the air carrier.

Stop and Frisk- Vernacular designation of the right of a police officer to stop a citizen on the street,

interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be afoot.- Requisites:1. police officer should properly introduce himself and make initial inquiries2. approach and restrain a person who manifests unusual and suspicious conduct in order to check the latter’s outer clothing for possible concealed weapon3. must have a genuine reason, in accordance with experience and the surrounding conditions, to warrant the belief that the person to be held has weapons or contraband concealed about him4. search and seizure should precede the arrest

Exception: People vs. Sucro – warrantless search and seizure can be made

without necessarily being preceded by an arrest provided that the said search is effected on the basis of probable cause.- People vs. Chua Ho San: contemporaneous search of a person arrested may be effected for dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid arrest must preceded a search.

Where the search (and seizure) is an incident to a lawful arrest;- Search must be contemporaneous to arrest and made within a permissible area of search.- Requisites: 1. arresting officer must have probable cause in effecting the arrest; and 2. probable cause must be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed.

Warrantless Searches(1) When the right is voluntarily waived;(2) When there is a valid reason to “stop-and-frisk”;(3) Where the search (and seizure) is an incident to a lawful arrest;(4) Search of vessels and aircrafts;(5) Search of moving vehicles;(6) Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations;(7) Where prohibited articles are in plain view;(8) Search and seizure under exigent and emergency circumstances; and(9) Conduct of areal target zoning or saturation drive/s as valid exercise of military powers of the President (Guanzon vs. de Villa)

18


Permissible area of search- may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control.

Seizure of allegedly pornographic material(1) criminal charge must be brought against the person/s for purveying the pornographic material/s;(2) application for a search and seizure warrant obtained from a judge (who shall determine the existence of probable cause);(3) material confiscated brought to the court in the prosecution of the accused for the crime charged;(4) court will determine whether the confiscated items are really pornographic; and(5) judgment of acquittal or conviction rendered by the court accordingly

Fishing vessel found to be violating fishery laws may be seized without a warrant:(1) usually equipped with powerful motors that enable them to elude pursuit and(2) seizure would be incident to a lawful arrest

Search of moving vehicles- justified on the ground that it is not practicable to secure a warrant because the vehicle can be moved quickly out of the locality or jurisdiction in which the warrant may be sought.- Prevent violations of smuggling or immigration laws, provided that such searches are made at borders or constructive borders (e.g. checkpoints near the boundary lines of the state).

“Stop and search” without a warrant at a military or police checkpoints- Not illegal per se so long as it is required by the exigencies of public order and conducted in a way least intrusive to motorists. (Valmonte vs. de Villa)

Checkpoint Search(1) Mere routine inspection: the search is normally permissible when it is limited to a mere visual search, where the occupants are not subjected to a physical or body search.(2) Extensive search: constitutionally permissible 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.

Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations- Exercise of police power of the State- Must be conducted during reasonable hours

Prohibited articles are in plain view- Objects in plain view of the officer who has the right to be in the position to have that view.- Police officer is not searching but inadvertently comes upon an incriminating object.- Requisites:(1) Prior valid intrusion based on a valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(2) Evidence was inadvertently discovered by the police who have the right to be where they are;(3) Evidence must be immediately apparent; and(4) “Plain view” justified the seizure of the evidence without any further search.

Plain View- Object is plainly exposed to sight.- Where the object seized is inside a closed package, the object is not in plain

19


view and, therefore, cannot be seized without a warrant.- Package proclaims its contents transparency, distinctive configuration or contents are obvious to an observer.- People vs. Salanguit: once the valid portion of the search warrant has been executed, the “plain view” doctrine can no longer provide any basis for admitting the other items subsequently found… (marijuana was also wrapped in newspaper which was not transparent….warrant for shabu and drug paraphernalia, found the shabu first)- Doctrine is not an exception to the warrant. It serves to supplement the prior justification. It is a recognition that of the fact that when executing police officers come across immediately incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. It would be needless to require the police to obtain another warrant.

Immediately apparent test- Does not require an unduly high degree of certainty.- Requires merely that the seizure be presumptively reasonable assuming that there is probable cause to associate the property with criminal activity. - Nexus exists between the viewed object and the criminal activity.

Exclusionary Rule: Evidence obtained in violation of Section 2, Article 3 shall be inadmissible for any purpose in any proceeding because it is “the fruit of the poisoned tree.”- Property illegally seized may be used in evidence in the case filed against the officer responsible for the illegal seizure.

Privacy of Communications and Correspondence- 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.- Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Inviolability- Exceptions:(1) Lawful order of the court;(2) Public safety or order requires otherwise, as may be provided by law.- Includes tangible and intangible objects.- RA 4200: 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. Telephone extension was not among the devices covered by this law.

Freedom of Expression- No law shall be passed abridging the freedom of speech, of expression nor of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.- Scope: Any and all modes of expression.

Aspects:(1) Freedom from censorship or prior restraint- Need not be total suppression, even restriction of circulation constitutes censorship.- Section 11 (b), RA 66461: legitimate exercise of the police power of the State to regulate media or communication and information for the purpose of ensuring 1 Prohibited 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.

20


equal opportunity, time and space for political campaigns. Unrelated to suppression of speech as it is only incidental and no more than is necessary to achieve the purpose of achieving the purpose of promoting equality. - Movie censorship: movie, compared to other media of expression, have a greater capacity for evil and must, therefore, be subjected to a greater degree of regulation.- Power of MTRCB can be exercised only for purposes of “classification” not censorship.- Primacy of freedom of expression over Enrile’s “right to privacy” because Enrile was a “public figure” and a public figure’s right to privacy is narrower than that of an ordinary citizen. (Ayer Productions vs. Judge Capulong)- Board of Review for Motion Pictures and Television (BRMPT) “X-rating” when the program would create a clear and present danger of an evil which the State has the right to prevent. (Inglesi ni Cristo vs. CA)- No law prohibiting the holding and reporting of exit poll. (ABS-CBN Broadcasting Corporation vs. COMELEC)- Test for the validity of government regulation, valid if (O’Brien Test):1. within the constitutional power of government;2. furthers an important or substantial government interest;3. government interest is unrelated to the suppression of free expression; and4. incidental restriction on the freedom is no greater than is essential to the furtherance of that interest.- Overbreadth Doctrine: prohibits government from achieving its purpose by “means that sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity.”(2) Freedom from subsequent punishment

- Without this assurance, the individual would hesitate to speak for fear that he might be held accountable for his speech, or that he might be provoking the vengeance of the officials he may have criticized.- Not absolute and may be properly regulated in the interest of the public.- State may validly impose penal and/or administrative sanctions, such as:1. Libel- Public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead. - Oral defamation is called slander.- Every defamatory imputation is presumed to be malicious. Exceptions:1. a private communication made by any person to another in the performance of any legal, moral or social duty; and2. fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of a confidential nature, or of any statement, report or speech delivered in said proceedings, or of any act performed by public officers in the exercise if their functions.- Public has the right to be informed on the mental, moral and physical fitness of candidates for public officer. The rule applies only to fair comments on matters of public interest, fair comment being 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. Obscenity- Determination of what is obscene is a judicial function.3. Criticism of official conduct

21


- US vs. Bustos: individual is given the widest latitude in criticism of official conduct.- Publication that tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable by contempt. It is not necessary to show that the publication actually obstructs the administration of justice; it is enough that it tends to do so.- Freedom of press is subordinate to the decision, authority, integrity and independence of the judiciary and the proper administration of justice.4. Right of students to free speech in school premises not absolute- Campus Journalism Act provides that a student shall not be expelled or suspended solely on the basis of articles he or she has written, the same should not infringe on the school’s right to discipline its students.- The school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when such article materially disrupts class work or involves substantial disorder or invasion of rights of others.

Test of valid government interference(1) Clear and Present Danger Rule- Whether the words are used in such circumstances and of such nature as to create a clear and present danger that they will bring about the substantive evils that the State has the right to prevent.- The substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.- Rule: the danger created must not only be clear and present but also traceable to the ideas expressed.- “clear”: seems to point to a causal connection with the danger of the

substantive evil arising from the utterance questioned- “present” refers to the time element, identified with imminent and immediate danger- The danger must not only be probable, but very likely inevitable.(2) Dangerous Tendency Rule- Words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable.- 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.(3) Balancing of Interests Test- When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional or partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented.- Requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation.

Assembly and Petition- Right to assemble is not subject to prior restraint.- It may not be conditioned upon prior issuance of a permit or authorization from government authorities.- It must be exercised in such a way as will not prejudice the public welfare.- PUBLIC PLACE: permit for the use of such place, and not for the assembly itself, may be validly required. The power of local officials is merely one of regulation.- Permit to hold public assembly shall not be necessary where the meeting is to be held in a PRIVATE PLACE. Public Assembly Act: a permit shall not be necessary where the meeting is to be held

22


in a private place, in the campus of the government-owned or –operated educational institution, or in a freedom park. Where permit is required, written application shall be filed with the mayor’s office at least 5 days before the scheduled meeting and shall be acted upon within 2 days. Otherwise, permit shall be deemed granted. Denial shall be justified only upon clear and convincing evidence that the public assembly will create a cleat and present danger to public order, safety, convenience, morals and health. Action shall be communicated within 24 hours to the applicant… may appeal to appropriate courts. Decision must be reached within 24 hours. The law permits law enforcement agencies to detail a contingent under a responsible officer at least 100 meters away from the assembly in case it becomes necessary to maintain order.- Academic freedom of institutions of higher learning cannot be utilized to discriminate against those who exercise their constitutional rights.- Right to free assembly and petition prevails over economic rights.- Education of the youth occupies a preferred position over the freedom of assembly and petition.- Tests priorly applied by the court:1. purpose test2. auspice test

Freedom of Religion- 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.- 2 guarantees:1. non-establishment clause2. freedom of religious profession and worship- Non-establishment clause: separation of Church and State1. cannot be registered as a political party;2. no sectoral representative from the religious sector; and3. prohibition against the use of public money or property for the benefit of any religion, or of any priest, minister or ecclesiastic.- Exceptions:1. exception from taxation of properties actually, directly and exclusively used for religious purposes;2. citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards; 3. optional religious instruction in public elementary and high schools expressed in writing by the parents/guardians, taught within regular class hours; and without additional costs on the Government; and4. appropriation allowed where the minister or ecclesiastic is employed in the armed forces, penal institution or in the government-owned orphanage or leprosarium.- Scope: 1. State cannot set up a Church2. nor pass laws which aid one religion, aid all religion or prefer one over another;3. nor force nor influence a person to go to or remain away from church against his will;4. or force him to profess a belief or disbelief in any religion.- The term “Non-Christian tribes” does not refer to religious belief but to degree of civilization. (People vs. Cayat)- Laws, e.g. Article 133 of the RPC, do not violate freedom of religion.

23


- Freedom of religion is accorded preferred status, designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs and to live as he believes he ought to live, consistent with liberty of others and with the common good.- Intramural religious disputes: Where a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right and nothing more. “Ecclesiastical Affair” is one that concerns doctrine, creed, or forum of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. It is not for the Court to exercise control over Church authorities in the performance of their discretionary and official functions; it is for the members of religious institutions/organizations to conform to just church regulations.- Free Exercise Clause Aspects of freedom of religious profession and worship:1. right to believe, which is absolute2. right to act according to one’s belief, which is subject to regulation. Constitutional guarantee of free exercise pf religious profession and worship carries with it the right to disseminate religious information, and any restraint of such right can be justified only on the ground that there is a clear and present danger of an evil which the State has the right to prevent.- The compelling State interest test: Estrada vs. Escritor (administratively charged with immorality for living with a married man, not her husband; conjugal arrangement was in conformity with their religious beliefs)

“Benevolent Neutrality” recognizes that government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interest. 2 steps:1) Whether respondent’s right to religious freedom has been burdened and2) Ascertain respondents sincerity in his beliefs.- State regulations imposed on solicitations for religious purposes do not constitute an abridgment of freedom of religion; but are NOT covered by PD 1564 (Solicitation Permit Law) which required prior permit from DSWD in solicitations for charitable or public welfare purposes;- Free exercise clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. Resulting burden is so incidental as to make it difficult to differentiate it from any other economic imposition that might make the right to disseminate religious doctrines costly.

Liberty of Abode and of Travel- 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.- Limitations:1) On liberty of abode: lawful order of the court Caunca vs. Salazar: maid has the right to transfer to another residence even if she had not yet paid the amount advanced for her

24


transportation from the province by an employment agency; Rubi vs. Provincial Board of Mindoro: requiring some members of the non-Christian tribes to reside only within a reservation, valid… to promote their better education, advancement and protection. Universal Declaration of Human Rights: everyone has the right to leave any country, including his own and to return to his country. Covenant on Civil and Political Rights: no one shall be arbitrarily deprived of the right to enter his own country.2) On right to travel: national security, public safety or public health, as may be provided by law- Lawful order of the court is a valid restriction.- Court may validly refuse to grant the accused permission to travel abroad, even if the accused in out on bail. (Manotoc vs. CA)- Liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations.- Principles:1) The Hold-departure Order is but an exercise of the court’s inherent power to preserve and maintain the effectiveness of its jurisdiction over the case and over the person of the accused;2) By posting bail, the accused holds himself amenable at all times to the orders and processes of the court, thus, she may be legally prohibited from leaving the country during the pendency of the case; and3) Parties with pending cases should apply for permission to leave the country from the very same courts which, in the first instance, are in the best position to pass upon such applications and to impose appropriate conditions therefore, since they are conversant with the facts of the cases and the ramifications or implications thereof.

- The persons right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. Whether the accused should be permitted to leave the country for humanitarian reasons is a matter addressed to the court’s discretion.

Right to Information- 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 pr 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.- Scope of the Right: right to information contemplates inclusion of negotiations leading to consummation of the transactions. The right only affords access, which means the opportunity to inspect and copy them at his expense. Subject to regulations: to protect integrity of public records and to minimize disruption of government operations.- Exceptions:1) Privileged communications rooted in separation of powers2) Information on military and diplomatic secrets3) Information affecting national security4) Information on investigations of crimes by law enforcement agencies before the prosecution of the accused.- Need for publication of law reinforces this right.- The manner of examining public records may be subject to reasonable regulation by the government agency in custody. - The duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the

25


part of said agencies. Its performance may be compelled by mandamus.- In Re: Request for Live Radio-TV Coverage of the Trial in the SB of the Plunder Case against Former Pres. Joseph Ejercito Estrada, Secretary of Justice Hernando Perez vs. Joseph Ejercito Estrada: 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 proceedings in ensuring a fair and impartial trial race against another, jurisprudence tells us that the right of the accused must be preferred (losing not only his liberty but also the very life of an accused).

Right to Form Associations- 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.- Scope: includes the right not to join or to disaffiliate from one.- Right to Strike: members of the civil service may not declare a strike to enforce economic demands.- The ability to strike is not essential to the right of association. - The right of the sovereign to prohibit strikes or work stoppages by public employees is clearly recognized at common law. Modern rule merely incorporate or reasserts said common law.- Right is not absolute. Anti-Subversion Act Managerial employees: receive information that is not only confidential but also generally not available to the public.

Non-impairment Clause

- No law impairing the obligation of contracts shall be passed.- To fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial.- Change in the rights of the parties with reference to each other and not with respect to non-parties.- Impairment: anything that diminishes the efficacy of the contract - Substantial impairment when the law changes either1) Time of performance2) Mode of performance3) Imposes new conditions4) Dispenses with those expressed5) Authorizes for its satisfaction something different from that provided in its terms- Limitations:1) Police power – public welfare is superior to private rights2) Eminent domain3) Taxation- Franchises, privileges, licenses, etc do not come within the context of the provision Subject to amendment alteration, or repeal by the Congress when common good so requires.

Free Access to Courts- Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.- Social justice provision providing for pauper suits.

Miranda Doctrine- 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.

26


- 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 the counsel.- 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.- Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him.- The law shall provide for penal and civil sanctions for violations of this section, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.- Rights are available only during custodial investigation. Custodial investigation or in-custody interrogation of accused person: any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Investigation ceases to be a general inquiry into an unsolved crime and direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements.- Does not apply to spontaneous statement5s.- Does not apply to admissions/confessions made by a suspect before he was placed under custodial investigation.- Custodial investigation includes 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.- Police Line-up Not considered part of custodial investigation because it is conducted before that stage of investigation is reached. Process has not yet shifted from the investigatory to the accusatory stage.- People vs. Escordial Out-of-court identification may be made in a “show-up” (where the accused is brought face to face with the witness for identification) or in a police line-up (where the suspect is identified by a witness from a group of persons gathered for that purpose). During custodial investigation, these have been described as “critical confrontations of the accused by the prosecution” necessitating the presence of counsel. This is because the result of these pre-trial proceedings might well settle the fate of the accused and reduce the trial to a mere formality. Merely photographed or paraffin test, not yet under custodial investigation.- Investigations not considered as custodial interrogations.- Arrested person signs a booking sheer and an arrest report at the police station, he does not admit the commission of an offense nor confess to any incriminating circumstance. Said booking sheet is merely a statement of how the arrest was made and has no probative value as an EJ statement of the person detained.- Rights guaranteed by this provision refers only to testimonial compulsion.- What rights are available1) To remain silent; No adverse inference from his refusal to answer.2) To competent and independent counsel (preferably of his own choice; at all stages of the proceeding); Attaches upon the start of the investigation;

27


Lawyer should never prevent a person from telling the truth. RA 7438: Accused’s parent, older bro and sis, spouse, Mayor, Municipal Judge, district school supervisor, or priest or minister of the gospel as chosen by the accused, may appear in lieu of the counsel during the taking of an EJ confession IF:1) Counsel of accused is absent and2) Valid waiver had been executed. “competent and independent” willing to safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine peremptory and meaningless recital of the individual’s constitutional rights. Mere pro forma appointment of a counsel de officio who fails to genuinely protect the interests of the accused merits disapprobation. Independent Counsel: not special counsel, City legal officer, Mayor, public/private prosecutor, counsel of the police, or a municipal attorney, whose interest is admittedly adverse to the accused. “Preferably of his own choice” does not mean that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Choice of lawyer when accused cannot afford – final say is still with the accused who may reject said lawyer; deemed engaged by the accused when he does not object. Confession obtained after charges had already been filed: The right to counsel still applies in certain pre-trial proceedings that are considered critical stages in the criminal process. Custodial interrogation before or after charges have been filed, and non-custodial interrogation after the accused has been formally charged, are considered “critical pre-trial stages” in the criminal process.

3) To be informed of such rights; Transmission of meaningful information rather than just ceremonial and perfunctory recitation of an abstract constitutional principle. P must show that the accused understood what he read and the consequences of his waiver. Right to be informed carries with it the correlative obligation on the part of the investigator to explain and contemplates an effective communication which results in the subject understanding what is conveyed. (degree of explanation depends on the personal circumstances of the accused)4) Rights cannot be waived except in writing and signed by the person in the presence of his counsel;5) No torture, force, violence, etc. which vitiates free will shall be used;6) Secret detention places, etc. are prohibited; and7) Confessions/admissions obtained in violation of rights are inadmissible in evidence. 2 Kinds of Involuntary/Coerced Confession1) Coerced confession, the product of third degree methods2) Uncounselled statements, without the benefit of the Miranda warning Alleged infringement of the constitutional rights of the accused during custodial investigation is relevant and material only where an extrajudicial confession/admission from the accused becomes the basis of conviction. 1973 Constitution does not distinguish between verbal and non-vernal confession. A person suspected of having committed a crime and subsequently charged with its commission has the following rights in the matter of his testifying or producing evidence:1) Before case is field in court or with public prosecutor for preliminary

28


investigation, but after having been taken into custody or otherwise deprived of his liberty and on being interrogated by the police To remain silent Right to counsel To be informed of such right Not to be subjected to torture, violence, threat, intimidation or any other means which vitiates free will and To have evidence obtained in violation of these rights rejected and inadmissible.2) After the case is filed in court To refuse to be a witness Not to have nay prejudice by such refusal To testify in his own behalf, subject to cross-examination While testifying, refuse to answer an incriminating question- Waiver(1) Must be in writing and made in the presence of the counsel(2) No retroactive effect – no application to waivers made prior to APRIL 26, 1983, the promulgation of Morales.(3) Burden of proof – burden of proving valid waiver is with the prosecution. Presumption that official duty has been regularly performed cannot prevail over the presumption of innocence.(4) What may be waived Right to remain silent Right to counsel NOT the right to be informed of these rights.- Guidelines for Arresting/Investigating Officers (People vs. Mahinay)(1) Person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for his arrest and must be shown the warrant of arrest, if any.

(2) He must be warned that he has the right to remain silent and that any statement he makes may be used as evidence against him.(3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice.(4) He must be informed that if he has no lawyer or cannot afford one, a lawyer will be provided for him; and that a lawyer may also be engaged by any person in his behalf or may be appointed by the Court upon petition of the person or one acting in his behalf.(5) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver.(6) The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means with his lawyer, any member of his immediate family, or any medical doctor, priest or minister chose by him or anyone of his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-governmental organization. It shall be the responsibility of the officer to ensure that this is accomplished.(7) He must be informed that he has the right to waive any said rights provided it is made voluntarily, knowingly and intelligently, and ensure that he understood the same.(8) If the person arrested waives his right to a lawyer, he must be informed that this must be done in writing and in the presence of the counsel, otherwise he must be warned that the waiver is void even if he insists in his waiver and chooses to speak.(9) The person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with a warning that

29


once he makes such indication the police may not interrogate him if the same had not yet commenced or the interrogation must cease if it had already begun.(10) The person arrested must be informed that the initial waiver of his right to remain silent, the right to counsel or to any other rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements.(11) He must be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, inculpatory or exculpatory, in whole or in part, shall be inadmissible.- Exclusionary Rule: Confession/Admission obtained in violation of Section 12 and 17, Article III of the Constitution shall be inadmissible in evidence.- Confession: declaration made voluntarily and without compulsion or inducement by a person acknowledging that he has committed or participated in the commission of a crime.- Any allegation of force, duress, undue influence or other forms of involuntariness in exacting such confession must be proved y clear, convincing and competent evidence by the defense. Otherwise, the confession’s full probative value may be used to demonstrate the guilt of the accused.- Fruit of the Poisonous Tree: (Justice Frankfurter Nardone vs. US) Once the primary source is shown to have been unlawfully obtained, any secondary or derivative evidence derived from it is also inadmissible. Basis: evidence illegally obtained by the State should not be used to gain other evidence.- Receipt of Seized Property if signed by the accused without assistance of counsel

and not having been informed of his constitutional rights is inadmissible. People vs. Linsangan: initialed the P10 bill that the police found tucked in his waist. Valid. Because possession of marked bills did not constitute a crime, the subject if the prosecution being his act of selling marijuana cigs.- Re-enactment of the Crime – before, must be appraised of his constitutional rights.- Res Gestae – admissible.- Waiver of Exclusionary Rule: failure to object to offer in evidence.

Right to Bail- All persons except those charged with an offense punishable by RP, when 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.- 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.- Any person under detention, even if no formal charge have yet been field, can invoke the right to bail.- When bail is authorized, it should be granted before arraignment, otherwise, the accused may be precluded from filing a motion to quash.- Exceptions:1. when charged with an offense punishable by RP (or higher) and evidence of guilt is strong2. traditionally, not available to military- Duty of the Court when accused is charged with an offense punishable by RP or higher.

30


Hearing on the motion for bail must be conducted by the judge. Prosecution must be given an opportunity to present all the evidences. Applicant having right of cross-examination and to introduce evidence in rebuttal. If prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt or lack of it.- The hearing on the petition for bail need not at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.- Court’s order granting or refusing bail must contain summary of evidence for the prosecution.- The assessment of the evidence presented during bail hearing is only for the purpose of granting or denying an application for the provisional release of the accused liberal in their approach, not being a final assessment.- Bail is either:1) A matter of right Before or after conviction by MeTC, MTC MTC in Cities, MCTC Before conviction by RTC of an offense not punishable by death, RP or life imprisonment.2) Judges discretion Upon conviction by RTC of an offense not punishable by death, RP or life imprisonment. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the

period to appeal, subject to consent of bondsman. If court imposes penalty of imprisonment of 6-20 years, accused shall be denied bail or bail previously granted cancelled, upon showing by prosecution that:1) The accused is a recidivist, quasi-recidivist, habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;2) The accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification;3) The accused committed the offense while on probation, parole or under conditional pardon;4) Circumstances of the accused or his case indicate the probability of flight if released on bail; and5) Undue risk that during pendency of the appeal, the accused may commit another crime.3) Denied Accused is charged with a capital offense or an offense punishable by RP or higher and evidence of guilt is strong. Principle denying bail to an accused charged with a capital offense where evidence of guilt is strong, applies with equal force to the appellant who, though convicted of an offense not punishable by death, RP, or life imprisonment was nevertheless originally charged with a capital offense.- Standards for fixing bail1) Financial ability of the accused2) Nature and circumstances of the offense3) Penalty for the offense charged4) Character and reputation of the accused5) Penalty for the offense charged6) Weight of the evidence against him7) Age and health8) Probability of appearing at the trial9) Forfeiture of other bonds by him

31


10) Fact that he was a fugitive from justice when arrested11) Pendency of other cases in which he is under bond- Right to Bail and Extradition (Government of the U.S. vs. Judge Purungan and Mark Jimenez) The constitutional provision on bail applies only when a person is arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of acquittal or conviction. It flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom unless his guilt is proved beyond reasonable doubt. The constitutional provision on bail will not apply to a case of extradition where the presumption of innocence is not an issue. Extradition proceedings are separate and distinct from the trial of the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. After a potential extradite has been arrested and placed under custody of the law, bail may be applied for and granted as an exception, only after clear and convincing showing that a. Once granted bail, the applicant will not be a flight risk or a danger to the community, andb. There exists special, humanitarian and compelling circumstances.- Waiver of the Right to Bail – personal to the accused.- The right to bail is not impaired by the suspension if the privilege of the writ of habeas corpus.

Constitutional Rights of the Accused

- No person shall be held to answer for a criminal offense without due process of law.- 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 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 the witnesses and the production of evidence in his behalf.- After arraignment, trial may proceed notwithstanding the absence of the accused, provided that he has been duly notified and the failure to appear is unjustifiable.- Criminal due process: 1) accused has been heard in a court of competent jurisdiction2) accused is proceeded against under the orderly processes of law3) accused has been given notice and the opportunity to be heard4) judgment rendered was within the authority of a constitutional law- Unreasonable delay in resolving complaint is violation of the right to due process and to speedy trial dismissal of complaint. Exception: petitioner’s own acts or complexity of the issues involved.- Hearing before an impartial and disinterested tribunal. Bias must be shown by clear and convincing evidence.- Right to a hearing- Plea of guilt to a capital offense. Mandatory that:1) TC must conduct a searching inquiry into the voluntariness of the plea and the full comprehension of the consequences;2) Prosecution should present evidence to prove the guilt of the accused and the precise degree of his culpability; and

32


3) Accused must be asked if he desires to present evidence in his behalf and should be allowed to do so if he desires.- The State and the offended party are entitled to due process- Presumption of Innocence: every circumstance favoring the innocence of the accused must be taken into account. Will NOT apply if there is some logical connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrarily mandate. Can be invoked only by an individual accused of a criminal offense. Corporate entity has no personality to invoke the same.- Presumption that official duty was regularly performed cannot, by itself, prevail over the constitutional presumption of innocence. Exception: when it is not the sole basis for conviction.- Constitutional presumption may be overcome by contrary presumptions based on experience of human conduct. (e.g. unexplained wealth)- Circumstantial evidence in order to warrant conviction:1) More than one circumstance2) Facts from which the inference are derived are proven3) Combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.- Equipose Rule: applicable only when the evidence adduced by the parties are evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused.- Right to be heard by himself and counsel: efficient and truly decisive legal assistance. Proceeds from fundamental principle of due process.

Right to counsel during the trial is not subject to waiver because even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel. He may be convicted not because he is guilty but because he does not know how to establish his innocence. Failure of the record to disclose affirmatively that the TC advised the accused of his right to counsel is not sufficient ground to reverse conviction. The TC must be presumed to have complied with the procedure prescribed by law for the hearing and trial of the cases, and such presumption can be overcome only by an affirmative showing to the contrary.- Right to counsel is not indispensable to due process of law. Exceptions: cannot be waived during trial. But this is not absolute. Option cannot be used to sanction reprehensible dilatory tactics, to trifle with ROC, or prejudice the equally important rights of the State and the offended party to speedy and adequate justice.- “Preference in the choice of counsel” pertains more aptly and specifically to a person under custodial investigation rather than one who is accused in a criminal prosecution. Such preferential discretion cannot partake of discretion so absolute and arbitrary as would make the choice of counsel refer exclusively to the prediction of the accused.- General Rule: a client is bound by the mistakes of his lawyer Exceptions: when the negligence or incompetence of counsel is deemed gross as to have prejudiced the constitutional right of the accused to be heard. - Right to be informed of the nature and cause of accusation against him. Reasons:

33


1. furnish the accused with such a description of the charge against him as will enable him to prepare for his defense;2. avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and3. to inform the Court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction.- When a judge is informed or discovers that an accused is apparently in a condition of insanity or imbecility, it is within his discretion to investigate the matter.- Requisites: The information must state:1. name of the accused2. designation of the offense given by statute3. statement of acts or omissions so complained of as constituting the offense4. name of the offended party5. approximate time and date of the commission of the offense6. place where the offense has been committed7. facts and circumstances that have a bearing on the culpability and liability of the accused- Every element of the offense must be alleged in the complaint or information, because the accused is presumed to have no independent knowledge of the facts that constitute the offense charged.- Not necessary to state the precise time when the offense was committed except when time is a material ingredient of the offense.- Description not the designation of the offense controls.- Accused can be convicted only of the crime alleged or necessarily included in the allegations in the information.- While a TC can hold a joint trial of 2 or more criminal case and can render a consolidated decision, it cannot convict the accused of the complex crime constitutive of the various crimes of the 2 informations.

- Void for Vagueness Rule: the law is deemed void where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine what acts or omissions are punishable.- The right to be informed of the nature and cause of the accusation against may not be waived but the defense may waive the right to enter a plea and let the court enter a plea of not guilty.- Indictment must fully state the elements of the specific offenses alleged to have been committed. An accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information. Different matter if the accused themselves refused to be informed of the nature and cause of the accusation against them.- Accused may be convicted of as many offenses charged in the information and proved during the trial, where he fails to object to such duplicitous information during the arraignment.- Information which lacks certain material allegations may sustain a conviction if the accused fails to object to its sufficiency during trial and deficiency is cured by competent evidence presented therein.- Right to Speedy, Impartial and Public Trial Speedy Trial Free from vexatious, capricious and oppressive delays. Accused entitled to dismissal, equivalent to acquittal, if trial is unreasonably delayed. Relative – subject to reasonable delays and postponements arising from illness, medical attention, body operations, etc. Aggrieved party also has the same rights as the accused. Separate trial is in consonant with the right of the accused to a speedy trial. RA 8493 (Speedy Trial Act):

34


o Arraignment of the accused – w/in 30 days from the filing of the information or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs.o If plea of not guilty – has 15 days to prepare for trial.o Trial shall commence w/in 30 days from arraignment as fixed by the court.o No case shall the entire trial period exceed 180 days from the first day of trial, except as otherwise authorized by the Chief Justice of the SC. Impartial Trial “cold neutrality of an impartial judge” – for the benefit of the litigants and is also designed to preserve the integrity of the judiciary and to gain and maintain the people’s faith in the institution s they have erected when they adopted the Constitution. Pervasive publicity is not per se prejudicial to the right of the accused to a fair trial. Trial judges must be accorded a reasonable leeway in asking questions as may be essential to elicit relevant facts and to bring out the truth. This is not only a right but also duty of the judge. Public Trial Intended to prevent abuses that may be committed against accused. Not absolute. Not synonymous to publicized trial. Means that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe trial processes.- Right to Meet the Witnesses Face to Face – right to cross-examine the complainant and the witnesses. Testimony of the witness who has not submitted himself to cross-examination is not admissible in evidence being hearsay. This right can be waived.

- Right to Compulsory Process to secure the attendance of witnesses and the production of evidence. Subpoeana – 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. 2 kinds:1. subpoena ad testificandum: compel a person to testify2. subpoena duces tecum: compel the production of books, records, things or documents o test of relevancy: books, documents or other things requested must appear prima facie relevant to the issue subject of the controversyo test of definiteness: such books must be reasonably described by the parties to be readily identified- Requisites:1. evidence is really material2. accused is not guilty of neglect in previously obtaining the production of such evidence3. the evidence will be available at the time desired4. no similar evidence can be obtained.- Trial in absentia Purpose is to speed up the disposition of criminal cases. Mandatory upon the court whenever the accused has been arraigned, notified of the date/s of hearing/s and his absence is unjustified. After the accused has waived further appearance during trial, he can still be ordered arrested by the court for non-appearance upon summons to appear for purposes of identification. Presence of the accused is mandatory:1. arraignment and plea2. during trial, for purposes of identification

35


3. promulgation of sentence, except for light offense wherein accused may appear by counsel/representative Accused who escapes from confinement, jumps bail or flees to a foreign country, loses his standing in court and unless he surrenders or submits himself to the jurisdiction of the court, he is deemed to waive his right to seek relief from the court.

Habeas Corpus- The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when public safety requires it.- Definition: a writ issued by a court directed to a person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption/detention, to do, to submit to and to receive whatever the court/judge awarding the writ shall consider in his behalf.- When available: restores the liberty of an individual subjected to physical restraint. It secures to the prisoner the right to have the cause of his detention examined and determined by the courts; and to have the issue ascertained as to whether he is held under lawful authority.- May also be availed of where, as a consequence of a judicial proceeding:1. there has been deprivation of constitutional rights2. the court has no jurisdiction to impose the sentence3. excessive penalty has been imposed, since such sentence is void as to the excess.- The writ will not issue where the person alleged to be restrained on liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so.- Even if the detention is at its inception illegal, supervening events such as the issuance of a judicial process, may prevent the discharge of the detained person.

- That the preliminary investigation was invalid and that the offense had already prescribed is not a ground to grant the issuance of habeas corpus. Remedy: motion to quash the WOA or file a motion to quash the information based on prescription.- Desaparecidos (disappeared persons), persons in whose behalf the writ was issued could not be found Remedy: refer the matter to the Commission on Human Rights In case of doubt, the burden of proof rests on the officers who detained them and who claim to have effected the release of the detainees.- All courts of competent jurisdiction may entertain petitions for HC to consider the release of petitioners convicted of violation of the Dangerous Drugs Act, provided they have served the maximum term of the applicable penalties newly prescribed by RA 7659.- HC lies only where the restraint of the person’s liberty has been judicially adjudged to be illegal or unlawful.- Loss of judicial records, after 12 years of detention in the service of the sentence imposed upon conviction, will not entitle him to be released on HC. Remedy: reconstitution of judicial records.- Have to comply with the writ. Disobedience constitutes contempt of court.

- In case of invasion or rebellion, when the public safety requires it, the President may for a period not exceeding 60 days, suspend the privilege of the writ of HC.- W/in 48 hours from the suspension, the President shall submit a report, in person or in writing, to Congress.- Congress, voting jointly by a majority vote of at least a majority of all its members in regular or special session may revoke such proclamation or suspension, such revocation shall not be set aside by the President.

36


- Upon initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persists and public safety requires it.- SC may review, in appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law and the suspension of the privilege of the HC or the extension thereof.- SC must promulgate its decision w/in 30 days from filing.- The suspension of the privilege of the writ shall apply only to persons charged for rebellion or offenses inherent in or directly connected with invasion.- During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, otherwise he shall be released.

- Suspension of the privilege does not suspend the right to bail.

Speedy Disposition of Cases- All persons shall have the right to a speedy disposition of cases before all judicial, quasi-judicial or administrative bodies.- Not limited to the accused in a criminal proceedings, but extends to all cases, including civil and administrative cases and in all proceedings including judicial and quasi-judicial hearings.- Like right to speedy trial, this right is violated only when the proceedings are 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.

- Unlike right to speedy trial, this right is available not only during trial but also when the case has already been submitted for decision.- Right extends to all citizens, including those in the military, and covers the period before, during and after trial.- Right can be waived failure to seasonably assert this right.

Self-incrimination- No person shall be compelled to be a witness against himself.- Right is available not only in criminal prosecutions but also in all other government proceedings, including civil actions and administrative or legislative investigations.- It may be claimed not only by the accused but also by any witness to whom a question calling for an incriminating answer is addressed.- General Rule: it may be invoked only when and as the question calling for an incriminating answer is asked. This applies only to ordinary witness. In criminal prosecution accused may not be compelled to take the witness stand. Similarly applicable to a respondent in an administrative proceeding.- Scope: not against all compulsion, but testimonial compulsion only. (not the inclusion of his body in evidence when it may be material) Prohibition extends to the compulsion for the production of documents, papers and chattels that may be used as evidence against the witness, except where the State has a right to inspect the same such as the books of accounts of corporations, under the police or taxing power or where a government official is required to produce official documents/public records which are in their possession. Also protects the accused against any attempt to compel him to furnish a specimen

37


of his handwriting in connection with a prosecution for falsification.- Immunity:1) Transactional Immunity: witness immune from any criminal prosecution for an offense to which his compelled testimony relates.2) Use and Fruit Immunity: prohibits the use of the witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness.- Those granted this privilege paid a high price – the surrender of their right to remain silent. Should be given a liberal interpretation.- Waiver: either directly or by failure to invoke it, provided that the waiver is certain and unequivocal and intelligently made.

Non-detention by Reason of Political Beliefs or Aspirations- No person shall be detained solely by reason of his political beliefs or aspirations.

Involuntary Servitude- No involuntary servitude in any form exist except as a punishment for a crime whereof the party shall have been duly convicted.- Exceptions:1) Punishment for a crime whereof one has been duly convicted;2) Patria potestas3) Posse comitatus4) Return to work order in industries affected by public interest5) Service in defense of the state6) Naval (merchant marine) enlistment

Prohibited Punishment- 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 RP.- 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.- Mere severity does not constitute cruel or unusual punishment.- The penalty must be flagrantly and plainly oppressive, wholly disproportionate to the nature of the offense as to shock the moral sense of the community.- Death penalty is not a cruel or unusual punishment. It is an exercise of the State’s power to secure society against the threatened and actual evil.Automatic review in death penalty cases shall proceed even in the absence of the accused, considering that nothing less than life is at stake and any court decision must be error-free as possible.

Non-imprisonment for Debt- No person shall be imprisoned for debt or non-payment of a poll tax.- While the debtor cannot be imprisoned for failure to pay his debt, he can be validly punished in a criminal action if he contracted his debt through fraud, as his responsibility arises not from the contract of loan, but from the commission of the crime.

Double Jeopardy- No person shall be twice put in jeopardy of punishment for the same offense.- If an act is punished by law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.- Requisites:1. valid complaint or information

38


does not attach in preliminary investigation.2. filed before a competent court mistake has been made in charging the proper offense, the first charge shall be dismissed to pave the way for the filing of the proper offense. The dismissal of the first case will not give rise to double jeopardy inasmuch as the court does not have jurisdiction over the case,3. to which defendant had pleaded no arraignment = no double jeopardy grant of motion to quash, filed before the accused makes his plea, can be appealed by the prosecution because the accused has not yet been placed in jeopardy.4. defendant was previously acquitted or convicted, or the case dismissed or otherwise terminated without his express consent promulgation of only one part of the decision is not a bar to the promulgation of the other part, the imposition of the criminal accountability and does not constitute a violation of the proscription against double jeopardy.- Dismissal of action1. permanent dismissal1) termination of the case on the merits resulting in either conviction or acquittal2) dismissal of the case because of the prosecution’s failure to prosecute3) dismissal on the ground of unreasonable delay in violation of the right to speedy trial2. provisional dismissal – dismissal without prejudice to reinstatement before order of dismissal becomes final or to subsequent filing of a new information within the periods allowed by law.- Express consent – directly given, either viva voce or in writing, a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning.- When dismissal is made at the instance of the accused, there is no double jeopardy.

- When the ground for motion to dismiss is insufficiency of evidence (grant of demurrer) equivalent to an acquittal and any further prosecution would violate the constitutional proscription against double jeopardy.- When the proceedings have been unreasonably prolonged as to violate the right of the accused to speedy trial double jeopardy- Revival of the case provisionally dismissed – time-bar for the revival of criminal cases provisionally dismissed with the express consent of the accused and with prior notice to the offended party:1) 2 years if the offense charged is penalized by more than 6 years imprisonment2) 1 years if the penalty imposed does not exceed 6 years imprisonment or a fine in whatever amount- Prohibits the state from appealing or filing a petition for review if judgment of acquittal that was based on the merits of the case. Certiorari will lie to correct errors of judgment.- Double jeopardy provides three related protections:1) Against 2nd prosecution for the same offense after acquittal;2) Against a 2nd prosecution for the same offense after conviction; and3) Against multiple punishments for the same offense.- Instances when prosecution may appeal1) Prosecution is denied due process, such denial results in loss or lack of jurisdiction and this appeal may be allowed2) Accused has waived or is estopped from invoking his right against double jeopardy- No double jeopardy1) Mistrial2) State is deprived of fair opportunity to prosecute and prove its case3) Dismissal of information/complaint is purely capricious

39


4) Lack of proper notice to be heard5) Accused waives or is estopped from invoking his right against double jeopardy.6) Dismissal/acquittal is made with grave abuse of discretion- Discharge of co-accused to be utilized as government witness – - Accused cannot be prosecuted anew for an identical offense, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the original complaint or information.- Doctrine of Supervening Event – the accused may still be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted. The conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the original complaint or information when:a. Graver offense developed due to supervening facts arising from the same act or omission;b. Facts constituting the graver offense or were discovered only after the filing of the former complaint or information; orc. The plea of guilty to a lesser offense was made without the consent of the fiscal or the offended party.

Ex post facto law and Bill of attainder- No ex post facto law or bill of attainder shall be enacted.- Ex post facto law Kindsa. Law that makes criminal an action done before the passage of the law and which was innocent when done, and punishes such action;b. Law that aggravates a crime, or makes it greater than it was when committed;

c. Law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed;d. Law that alters 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 offender;e. Law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful;f. Law which deprives a person accused of a crime of some lawful protection to which they have been entitled Characteristicsa. Retroactiveb. Works to the prejudice of the accusedc. Refers to criminal matters- Bill of attainder Definition: legislative act that inflicts punishment without trial. Substitutes legislative fiat for a judicial determination of guilt. It is only when the statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial that it becomes a bill of attainder. Anti-Subversion Act is not a bill of attainder. simply declares that the Communist Party is an organized conspiracy to overthrow the Government and for definitional purposes only.

VII. CITIZENSHIP- Definition: membership in a political community which is personal and more or less permanent in character.- Nationality is membership in any class or form of political community. It does not necessarily include the right/privilege of exercising civil or political rights.- Modes of acquiring:1) Marriage

40


2) Birth- Jus soli- Jus sanguinis3) Naturalization- Natural-born citizens – citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.- Marriage by Filipino to an alien – citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.- Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.- Dual citizenship as a disqualification under the LGC must refer to dual allegiance.- For candidates with dual citizenship, it is sufficient that they elect Philippine citizenship upon the filing of their certificate of candidacy to terminate their status as persons with dual citizenship. Filing of certificate of candidacy is sufficient to renounce foreign citizenship.- Attack on one’s citizenship may be made only through a direct and not collateral attack.- Doctrine of res judicata does not ordinarily apply to questions of citizenship. Exception:1) Person’s citizenship is resolved by a court or an administrative body as a material issue in the controversy, after full-blown hearing2) Active participation of the SolGen or his representative3) Finding of citizenship is affirmed by the SC- Citizens of the Philippines1) Citizens of the Philippines at the time of the adoption of the 1987 Constitution2) Whose fathers or mothers are citizens of the Philippines3) Born before January 17, 1973, of Filipino mothers, who elect Philippines

citizenship upon reaching the age of majority Election stated in a statement to be signed and sworn to by the party concerned before any official authorized to administer oath. Filed with the nearest Civil Registry Accompanied with the Oath of Allegiance to the Constitution and the Government Within 3 years from reaching the age of majority except when there is justifiable reason for delay. Doctrine of Implied Election – exercise of right of suffrage and participation in the election exercises Right is available to the child as long as the mother was a Filipino citizen at the time of the marriage to the alien, even if by reason of such marriage, she lost her Philippine citizenship and even if the mother was not a citizen at time of birth. Right to elect Philippine citizenship is an inchoate right During his minority, child is an alien. Apply only to legitimate children. If the child is illegitimate, he follows the status and citizenship of his known parent, the mother.4) Naturalization

- Modes of Naturalization Direct1) Judicial or administrative proceedings2) Special act of legislature3) Collective change of nationality, resulting from cession or subjugation4) Adoption of orphan minors as nationals of the State where they were born Derivative1) Alien woman upon marriage to a national2) Minor children of naturalized person3) Wife of naturalized husband- Doctrine of Indelible Allegiance: individual may be compelled to retain his

41


original nationality even if he has already renounced or forfeited it under the laws of the second State whose nationality he has acquired.- Qualifications:1) Not less than 21 at the date of the hearing;2) Resided in the Philippines for a continuous period of 10 years Reduced to 5 years IF1) Born in the Philippines2) Honorably held office in Government3) Introduced a useful invention or established a new industry4) Engaged as a teacher in the Philippines, public or private school (except those established for the exclusive instruction of persons of a particular nationality) or in any branches of education or industry for a period of not less than 2 years3) Good moral character; believes in the underlying principles of the Constitution; conducted himself in a proper and irreproachable manner during his residency4) Own real estate in the Philippines not less than P5,000, have some lucrative trade, profession or lawful occupation5) Speak and write English/Spanish/any principal Philippine languages6) Enrolled his minor children of school age to public/private schools recognized by the Government, where Philippine history, government and civic are taught- Disqualifications:1) Opposed to organized government or affiliated with any association of groups/persons who uphold and teach doctrines opposing all organized governments2) Defending or teaching the propriety of violence, personal assault, assassination for the success or predominance of ideals3) Polygamists or believers4) Convicted of a crime involving moral turpitude

5) Suffering from mental alienation or incurable contagious disease6) Who, during the period of their residence, have not mingled socially with Filipinos or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos7) Citizens and subjects of nations with whom the Philippines is at war, during the period of such war8) Citizens and subjects of foreign country whose law does not grant Filipinos the right to become naturalized citizens- Procedure1) File declaration of intention with SolGen – one year prior to the filing of the petition Exception:1) Born in the Philippines and received primary and secondary education in public or private schools recognized by the Government and not limited to particular race2) Resided in the Philippines for 30 years or more before the petition and enrolled his children to elementary and high schools recognized by the Government and not limited to particular race3) Widow and minor children if an alien who has declared his intention to become a citizen of the Philippines and dies before he is actually naturalized.2) File petition + affidavit of 2 credible persons, citizens of the Philippines who personally know the petitioner, as character witness3) Publication of petition Jurisdictional Published in OG or in a newspaper of general circulation once a week for three consecutive weeks4) Actual residence during the entire proceedings5) Hearing6) Promulgation of the decision7) Hearing after 2 years (Probation period of 2 years)

42


Not left the Philippines Dedicated himself continuously to a lawful calling/profession Not been convicted of any offense or violation of rules Not committed any act prejudicial to the interest of the nation or contrary to any Government-announced policies8) Oath taking and issuance of certification

- Effects1) Vests citizenship on wife if she herself may be naturalized2) Minor children born in the Philippines before naturalization shall also be considered citizens3) Minor children born outside the Philippines but residing in the Philippines at the time of naturalization shall also be considered citizens4) Minor children born outside the Philippines shall be citizens only during minority, unless he begins to reside permanently in the Philippines5) Child born outside the Philippines, after the naturalization of the parents shall be considered citizens, Provided he registers as such before any Philippine consulate within one year after attaining majority age and takes his oath of allegiance

- Grounds for Denaturalization1) Naturalization certificate obtained fraudulently or illegally2) Invalid declaration of intention3) Minor children failed to graduate through the fault of parents4) Allowed himself to be used as dummy5) If within 5 years he returns to his native country or some foreign country and establishes residence there- 1-year stay in native country or 2-year stay in a foreign country is prima facie evidence of intent to take up residence- Effects of Denaturalization: if the ground affects the intrinsic validity of the

proceedings, the denaturalization will divest wife and children; if ground is personal to the denaturalized Filipino, his wife and children shall retain Philippine citizenship.- Naturalization by direct legislative action – discretionary on Congress; usually for aliens who made outstanding contributions to the country- Administrative Naturalization – grant Philippine citizenship by administrative proceedings to aliens born and residing in the Philippines Special Committee on Naturalization - SolGen (Chairman), Sec of FA and National Security Adviser power to approve, reject or deny applications Qualifications1) Born in the Philippines and residing therein since birth2) Not less than 18 at the time of filing3) Good moral character; believes in the underlying principles of the Constitution; conducted himself in a proper and irreproachable manner during his residency4) Received primary and secondary education in any public/private school recognized by DECS, where Philippine history, government and civics is taught and not limited to any race/nationality; Provided that where he has minor children, must be enrolled in similar schools5) Known trade, business, profession or lawful occupation from which he derives income sufficient to support himself and family N/A to college degree holders who are disqualified from practicing their profession due to citizenship requirements6) Able to read, write and speak Filipino or any of the dialects7) Mingled with Filipinos and evinced a sincere desire to learn and embrace the customs and traditions and ideals of the Filipino people- Procedure1) File with Special Committee a petition

43


2) Publication of pertinent portions of the petition once a week for 3 consecutive weeks in newspaper of general circulation3) Posting of copies in public or conspicuous areas4) Furnish copies to following agencies who shall post copies of the petition in any public or conspicuous areas in their building officers and premises and within 30 days submit to Committee a report stating whether or not petitioner has any derogatory record on file DFA Bureau of Immigration and Deportation Civil registrar of petitioner’s place of residence NBI5) Within 60 days from receipt of agencies’ report, Committee shall consider and review all information. 6) If Committee receives any adverse information, Committee shall allow petitioner to answer, explain or refute the petition7) Deny or Approve petition8) Within 30 days from approval, petitioner pays P100,000, take oath of allegiance and certificate of naturalization shall issue.9) Within 5 days from taking oath, BoI shall forward copy of oath to the proper local civil registrar and cancel petitioner’s alien certificate of registration.- Status of Alien Wife and Minor Children May filed a petition for cancellation of their alien certificate of registration. If applicant is a married woman, husband may not benefit. But minor children may avail of the right to seek the cancellation of alien certificate of registration.- Cancellation of the Certificate of Naturalization1) Naturalized person or representative made any false statement or misrepresentation or obtained citizenship

fraudulently or illegally or committed any violation of the law, rules or regulations2) w/in 5 years shall establish permanent residence in a foreign countryo 1-year stay in native country or 2-year stay in a foreign country is prima facie evidence of intent to take up residence3) Allowed himself, wife or children with acquired citizenship to be used as dummy4) He, his wife or children commits any act inimical to national interest

Loss and Reacquisition of Philippine Citizenship- Loss of Citizenship1) Naturalization in a foreign country- RA 92252) By express renunciation of citizenship3) By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining 21 years of age- Principle of Indelible Allegiance – Filipino may not divest himself of Philippine citizenship in this manner while Philippines is at war with any country4) By rendering service or accepting commission in the armed forced of a foreign country- Exceptions:1) Philippines has a defensive and/or offensive pact of alliance with the said foreign country2) Foreign country maintains armed forces in the Philippine territory with consent of the Republic5) By cancellation of the certificate of naturalization6) By having been declared by competent authority a deserter of the Philippine armed forces in time of war- Reacquisition of Citizenship1) Taking the oath of allegiance required of former natural-born Philippine citizens who may have lost their citizenship by reason of

44


their acquisition of the citizenship of a foreign country2) Naturalization provided that he possesses none of the disqualifications3) Repatriation or deserters of the Army, Navy or Air Corps; a woman who has lost her citizenship by reason of marriage may be repatriated after termination of marital status- Repatriation takes effect as of the date of filing of his application.- Effect of repatriation is to allow the person to recover or return to his original status before he lost his Philippine citizenship.4) Direct act of Congress

VIII. THE LEGISLATIVE DEPARTMENT- Legislative power – the power to propose, enact, amend and repeal laws- Vested in Congress except to the extent reserved to the people by the provision in initiative and referendum People can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition thereof signed by at least 10 per centum of the total number of registered voters, of which every legislative district must be represented by at least 3 per centum of the registered voters. Initiative – power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for that purpose.1) Initiative on the Constitution2) Initiative on Statutes3) Initiative on local legislation Indirect Initiative – exercise of initiative by the people through a proposition sent to Congress or local legislative body for action Referendum – power of the electorate to approve or reject legislation through an election called for that purpose.

1) Referendum on Statutes2) Referendum on local legislation- Prohibited measures1) Petition embracing more than one subject2) Involving emergency measures, the enactment of which is specifically vested in Congress by the Constitution, cannot be subject to referendum, until 90 days after effectivity- Local Initiative, Not less than 2,000 registered voters in case of autonomous regions 1,000 in provinces and cities 100 in municipalities 50 in baranagays File a petition with Regional Assembly or local legislative body- Limitation on Local Initiative1) Exercised not more than once a year2) Extend only to subjects or matters which are within the legal powers of the local legislative body to enact3) 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

- Composition of Congress: Senate and House of Representative- Senate: 24 senators, elected at large by qualified voters Qualifications1) Natural-born2) On the day of the election, at least 35 years of age 3) Able to read and write4) Registered voter5) Resident of the Philippines for not less than 2 years immediately preceding the day of the election Term: 6 years, commencing at noon on 30th day of June next following their election

45


Limitation: no senator shall serve for more than 2 consecutive terms. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which elected.- House of Representatives: not more than 250, unless otherwise provided by law Composition1) District representative2) Party-list representative3) Sectoral representative Apportionment of legislative district is a justiciable questiono (Provinces and cities and Metro Manila area) Apportionment shall be made in accordance with the number of respective inhabitants on the basis of a uniform and progressive ratio.o Each city with not less than 250,00 inhabitants entitled to at least 1 repo Each province, irrespective of number of inhabitants entitled to at least 1 rep Each legislative district shall comprise, as far as practicable, compact, contiguous and adjacent territory. Congress to make reapportionment of legislative districts within 3 years following return of every census. Constitution does not preclude Congress from increasing its membership by passing a law other than a general apportionment law. Reapportionment of legislative districts may be made through a special law. Qualifications:1) Natural-born Filipino citizen2) At the day of the election, at least 25 years old3) Able to read and write4) Except the party-list representative, a registered voter in the district in which he shall be elected5) Resident thereof for not less than 1 year immediately preceding the day of the election Principles

1) Minor follows domicile of parents2) Domicile of origin is lost only when there is a. actual removal or change of domicileb. bona fide intention of abandoning the former residence and establishing a new onec. acts which corresponds with the purpose3) Wife does not automatically gain husband’s domicile THEORY OF LEGAL IMPOSIBILITY J. Francisco (Aquino v. Comelec) Immigration to the US by virtue of a “green card” constitutes abandonment of domicile in the Philippines. (Caasi vs. COMELEC) Term: 3 years, commencing at noon on the 30th day of June next following their election, Limitation: shall not serve for more than 3 consecutive terms.- Party-List System: mechanism for proportional representation Party: political party, sectoral party or coalition of parties Political Party: 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 and supports certain of its leaders and members as candoidates for public office. National Party: constituency is spread over the geographical territory of at least a majority of the regions. Regional Party: constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. Sectoral Party: (LUFEP-WHIP-VY) organized group of citizens belonging to any of the following: labor, urban poor, fisherfolk, elderly, peasants, women, handicapped, indigenous cultural communities, overseas workers and professionals, veterans and youth.

46


Sectoral Organization: group of citizens or a coalition of groups of citizens who share similar physical attributes, characteristics, employment, interest or concern. Coalition: aggrupation of duly registered national, regional, sectoral parties or organization for political and/or election purposes. - Registration/Manifestation to Participate in the Party-List System 90 days prior to election, petition verified by its President or Secretary If already registered, file instead a manifestation of its desire to participate in the party-list system- Refusal and/or Cancellation of Registration (motu proprio or upon verified complaint filed by any interested party; after due notice and hearing)1) Religious sect/denomination2) Advocate violence to attain goal3) Foreign party/organization4) Receives support from foreign party/org5) Declares untruthful statement in its petition6) Violates or fails to comply with election laws, rules and regulations7) Failed to participate in the last 2 preceding elections or 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 registered8) Ceased to exist for at least 1 year- Nomination of a party-list representative: each registered party, organization or coalition must submit a list of names to the COMELEC not later than 45 days before the election. Not less than 5 Only persons who have given their consent may be included in the list Not include any candidate for elective position, or who lost the immediately preceding election No change allowed except:

1) Dies2) Withdraws in writing3) Becomes incapacitated Incumbent who are nominate are NOT considered resigned.- Qualifications of a Party-list nominee1) Natural-born citizen2) Able to read and write3) Registered voter4) Resident of the Philippines at least 1 year immediately preceding the day of the election5) Bona fide member of the party/organization which he seeks to represent at least 90 days preceding the day of the election6) At least 25 years old at the day of the election7) Youth sector – at least 25 but not more than 30. If during his term reaches the age of 30, he shall be allowed to continue until expiration of term.- Manner of Voting – every voter entitled to two votes, 1 for member of the House and 1 for the party, organization or coalition.- Number – 20% of the total number of the members of the House including those under the party-list. In determining the allocation of seats for the second vote:1) Parties, organizations and coalitions shall be ranked from the highest to the lowest cased on the number of votes they garnered during the election2) Parties, organizations and coalitions receiving at least 2% of the total votes cast for the party-list system shall be entitled to 1-seat each, those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes3) Each party, organization or coalition shall be entitled to not more than 3 seats 4 inviolable parameters:

47


1) 20% allocation: combined number of all party-list congressmen shall not exceed 20% of the total membership of the House2) 2% threshold: only those parties garnering a minimum of 2% of the total valid votes cast for the party-list system are qualified to have a seat3) 3-seat limit: each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats4) Proportional representation: additional seats which a qualified party is entitled to shall be computed “in proportion to their number of votes.” In order that a political party registered under the party-list system may be entitled to a seat in the House:1) Represent the marginalized and under-represented sector2) Major political parties must comply with this statutory policy3) Constitutional prohibition against religious sect4) Not disqualified under RA79415) Not adjunct or project funded by government6) Party and its nominees must comply with the requirements of the law7) Nominee must also represent the marginalized and under-represented sector8) Nominee must be able to contribute to the formulation and enactment of appropriate legislation- Choosing Party-List Representative: proclaimed by COMELEC based on a list of names submitted by respective parties, according to their ranking in the list. - Effect of Change of Affiliation Changes affiliation during term forfeiture of seat IF w/in 6 months before election, he shall not be eligible for nomination under new party- Vacancy – automatically filled by the next rep from the list of nominees and shall serve for the unexpired term. If the list is

exhausted, the party, organization or coalition shall submit additional nominees.- Term of Office: term of 3 years and shall be entitled to same salaries and emoluments as regular members of the House.

Election Regular: 2nd Monday of May Special: to fill a vacancy; serve for the unexpired term

Salaries Determined by law. No increase in said compensation shall take effect until after the expiration of the term of all the members of the Senate and House approving such increase.

Privileges1) Freedom from Arrest Offenses punishable by not more than 6 years imprisonment, be privileged from arrest while Congress is in session.2) Privilege of Speech and of Debate Not be questioned nor be held liable in any other place for any speech/debate in the Congress or in any committee. Held to account for such speech or debate by the House to which he belongs

Disqualifications1) Incompatible Office Not hold any other office or employment Forfeiture of the seat in Congress automatically upon assumption of incompatible office. N/A if he holds the government office in an ex officio capacity2) Forbidden Office Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Last only for the duration of the term for which the member of Congress was elected.

48


Other Inhibitions not personally appear as counsel before any court, ET, quasi-judicial or other administrative bodies not be directly or indirectly interested financially in any contract with, or any franchise or special privilege granted by the Government not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Session Regular: convene once a year on the 4th

Monday of July unless a different date is fixed by law; and shall continue for such number of days as it may determine until 30 days before the opening of its next regular session, exclusive of Saturdays, Sundays and legal holidays. Special: call by president usually to consider legislative measure which the President may designate in his call Joint1) Voting Separatelya. Choosing the presidentb. Determine disability of the presidentc. Confirming nomination of VPd. Declaration of the existence of a state of ware. Proposing constitutional amendments2) Voting Jointlya. Revoke/extend proclamation suspending the privilege of the writ of HCb. Or placing the Philippines under martial law Adjournment – neither House during the sessions of the Congress shall, without the consent of the other adjourn for more than 3 days nor to any other place than that in which the 2 Houses shall be sitting.

Officers Senate elects its President House elects its Speaker

Each nay choose such other officers as it may deem necessary

Quorum Majority of each House But a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may determine Quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate.

Rules of Proceedings Each House determined the rules of its proceedings.

Discipline of Members House may punish its members for disorderly behavior, and with concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member. Determination of acts which constitute disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question.

Records and Books of Accounts Preserve and open to public Books shall be audited by COA which shall publish annually an itemized list of amounts paid to and expenses incurred by each member.

Legislative Journal and Congressional Records Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security;

49


And the yeas and nays on any question shall, at the request of 1/5 of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. Matters which under the Constitution are to be entered in the journal:a. Yeas and nays on 3rd and final reading of a billb. Veto message of the Presidentc. Yeas and nays on the repassing of a bill vetoed by the Presidentd. Yeas and nays on any question at the request of 1/5 of members present. Enrolled Bill Theory: enrolled bill is one duly introduced and finally passed by both Houses, authenticated by the proper officers of each and approved by the President. Enrolled Bill prevails, except to matters which under the Constitution must be entered in the Journal.

Electoral Tribunals Compositiona. 3 SC Justices designated by CJ, the senior justice shall be the chairmanb. 6 members of the house, chosen on the basis of proportional representation from the political parties registered Non-partisan court; independent of Congress Termination of Membership:a. Expiration of congressional termb. Deathc. Resignation from political partyd. Formal affiliation to another political partye. Removal for other valid causes Cannot disqualify senator-member just because election contest is filed against him. (Abbas vs. Senate ET) Doctrine of Primary Administrative Jurisdiction, prior recourse to the House is necessary before the case may be brought to the Court.

Power: sole judge of all contests relating to the election, returns and qualifications of their respective members. HRET may assume jurisdiction only when after the winning candidate shall have been duly proclaimed, has taken oath of office, and has assumed functions of the office. Decisions may be reviewed by SC by showing grave abuse of discretion in a petition for certiorari filed under R65.

Commission on Appointment Compositiona. Senate President, ex-officio chairmanb. 12 senatorsc. 12 house* b and c elected by each House on the basis of proportional representation from the political parties registered. Powers – act on all appointments submitted to it within 30 session days of Congress from their submission. Shall rule by majority vote of its members Meet only while Congress is in session At the call of its Chairman or majority of all its members Independent of the 2 Houses and has the power to promulgate its own rules of proceedings.

Powers of Congress1. General (plenary) legislative power- Limitations:1. Substantive- Expressa. Bill of rightsb. Appropriationsc. Taxationd. Constitutional appellate jurisdiction of SCe. No law granting a title of royalty or nobility shall be passed- Implied

50


a. Non-delegation of powersb. Prohibition against the passage if irrepealable laws2. Procedurala. Only one subject to be expressed in the title- Title is not required to be an index of the contents of the bill- Sufficient compliance if the title expresses the general subject and all the provisions of the statute are germane to thee subject- Sufficient if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve.- Rider is a provision not germane to the subject matter of the bill.b. Three readings on separate days- Printed copies of bill in its final form distributed to Members 3 days before its passage- EXCEPT when the President certifies to its immediate enactment to meet a public calamity or emergency- Upon last reading, no amendment allowed, and vote thereon taken immediately and the yeas and nays entered in the journal- Presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days.3. Legislative Process- Requirements as to bill Only 1 subject to be expressed in the title Appropriation, revenue bills, tariff bills, bills of local application, bills authorizing increase of public debts and private bills shall originate exclusively in the House of Representative. It is not the law, but the bill, which is required to originate exclusively in the House, because the bill may undergo such extensive changes in the Senate that the result may be a rewriting of the whole.

The Constitution does not prohibit the filing in the Senate of a “substitute bill” in anticipation of its receipt of the bill from the House, so long as the action by the Senate as a body is withheld pending receipt of the House bill.- Procedure: passed 3 readings on separate days, and printed copies in its final form have been distributed to its Members 3 days before its passage EXCEPT when President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Courts are denied the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of any showing that there was a violation of constitutional requirements or the rights of private individuals. It is within the Bicameral Conference Committee to include in its report an entirely new provision that is not found either in the House or Senate bill. If the Committee can propose an amendment consisting of 1 or 2 provisions, there is no reason why it cannot propose several provisions, collectively considered as “an amendment in the nature of a substitute” so long as the amendment is germane to the subject of the bills before the Committee.” Jurisdiction of the Conference Committee is not limited to resolving differences between the Senate and the House versions of the bill. It may propose an entirely new provision.- Approval of Bills The bill becomes a law in the following cases:a. President approves the same and signs it.b. Congress overrides the Presidential veto – if the President disapproves the bill, he shall return the same, with his objections contained in his Veto message to the House of origin (which shall enter the objections at

51


large in its Journal). The veto is overridden upon a vote of 2/3 of all members of the House of origin and the other House. Yeas and Nays entered in the Journal of each House.o No pocket veto.o Partial veto, as a rule, is invalid. It is allowed only for particular items in an appropriation, revenue or tariff bill. The President cannot veto part of an item in an appropriation bill while approving the remaining portion of the item.o Legislative Veto – a congressional veto is a means whereby the legislature can block or modify administrative action taken under a statute. It is a form of legislative control in the implementation of particular executive action. It may be negative (subjecting the executive action to disapproval by Congress) or affirmative (requiring approval of the executive action by Congress)c. When the President fails to act upon the bill for 30 days from receipt thereof, the bill shall become a law as if he had signed it.2. Power of Appropriation Spending power called the “power of the purse” belongs to Congress subject only to the veto power of the President. It is the President who proposes the budget, the final say on the matter of appropriation is lodged in Congress. The power of appropriation carries with it the power to specify the project/activity to be funded under the appropriation law. Need for appropriation – “NO money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” Indispensable requisites or condition sine qua non for the execution of government contracts:a. Existence of appropriationb. Availability of funds Appropriation law – a statute the primary and specific purpose of which is to

authorize the release of public funds from the Treasury. Classification:1) General Appropriations Law – passed annually, for the financial operations of the government.2) Special Appropriations Law – for specific purpose Implied Limitation on Appropriation Measures1) Appropriation must be devoted to public purpose2) Sum authorized to be released must be determinate or at least determinable Decree do not specify the specific amounts to be paid, the amounts are nevertheless made certain by the legislative parameters provided in the decrees. The mandate being only to pay the principal, interest, taxes and other normal banking charges. Constitutional Limitation on Special Appropriation Measure1) Specify the public purpose for which the sum is intended2) Must be supported by funds actually available as certified to by the National Treasurer or to be raised by a corresponding revenue proposal included therein. Constitutional Rules on General Appropriations Law: Congress may not increase the appropriations recommended by the President for the operation of the Government. The form, content and manner of preparation of the budget shall be prescribed by law. No provision or enactment shall be embraced unless it relates specifically to some particular appropriation. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. This is intended to prevent riders or irrelevant provisions included in the bill to ensure its approval.

52


i. Procedure for approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (to prevent sub rosa appropriation by Congress)ii. Prohibition against transfer of appropriations Exception:1) President2) Senate President3) Speaker4) Chief Justice5) Heads of Constitutional Commission By law, be authorized to augment any item in the general appropriation law for their respective offices from savings in other items of their respective appropriations.

iii. Prohibition against appropriation for sectarian benefit Exception: priest, preacher, minister or dignitary is assigned to the armed forces or to any penal institution or government orphanage or leposarium.

iv. Automatic reappropriation If Congress failed to pass the general appropriations bill for the ensuing year, the general appropriations bill for the preceding fiscal year shall be deemed re-enacted until said bill is passed. Impoundment –the refusal by the President for whatever reason to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type. Appropriation Reserves – the Administrative Code authorizes the Budget Secretary to establish reserves against appropriations to provide for contingencies and emergencies which may arise during the year. This is “expenditure deferral” not suspension, since the agencies concerned can still draw on the reserves if the fiscal outlook improves.3. Power of Taxation

Limitations1. uniform and equitable – evolve a progressive system of taxation2. charitable institutions, etc. and all lands, buildings and improvements actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation.3. all revenues and assets of non-stock, non-profit educational institutions used directly, actually and exclusively for educational purposes shall be exempt from taxation.4. Law granting tax exemptions shall be passed only with concurrence of majority of all members of Congress4. Power of Legislative Investigation Conduct inquiries in aid of legislation. Rights of persons appearing in or affected by such inquiries shall be respected. Limitations1. in aid of legislation2. in accordance with duly published rules of procedure3. Rights of persons appearing in, or affected by such inquiry shall be respected Power to punish for contempt: Senate being a continuing body may order imprisonment for an indefinite period, but principles of due process and equal protection will have to be considered.5. Question Hour Heads of the departments may upon their own initiative with the consent of the President OR upon the request of wither House, as the rules of each House shall provide, appear before and be heard by the House on any matter pertaining to their departments. Written questions submitted to the Senate P or Speaker, 3 days before the scheduled appeared. Interpellations shall not be limited to the written questions, may cover matters related thereto.

53


When the security of the State or the public interest so requires, may be held in executive session.6. War Powers Declaration of the existence of state of war – 2/3 of both Houses in joint session, voting separately7. Power to act as Board of Canvassers in election of President8. Power to call a Special Election for President and VP9. Power to judge the President’s physical fitness to discharge the functions of Presidency10. Power to revoke or extend suspension of the privilege of the writ of HC or declaration of martial law11. Power to concur in Presidential amnesties Concurrence of majority of all members of the Senate12. Power to concur in treaties or international agreements 2/3 of all the members of the Senate13. Power to confirm certain appointments by the President in the event of vacancy in the Office of VP, from among members of Congress confirmed by majority vote of all the Members of both Houses of Congress, voting separately. Nominations by President under Sec 16, Article 7 confirmed by Commission on Appointments14. Power to impeachment15. Power relative to natural resources16. Power to propose amendments to the Constitution

IX. EXECUTIVE DEPARTMENT

The President

Qualifications1. natural-born citizen2. registered voter

3. able to read and write4. on the day of the election, at least 40 years old5. resident of the Philippines for at least 10 years immediately preceding such election

Election- Regular Election: 2nd Monday of May- Congress as Board of Canvassers Returns of every election for President and VP, duly certified by Board of Canvassers of each province or city shall be transmitted to Congress directed to Senate President. SP, upon receipt, shall not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and House in joint public session. Congress upon determination of the authenticity and due execution, shall canvass the votes. Congress shall promulgate its own rules. 2 or more candidates shall have an equal and highest number of votes, one of them shall be chosen by a majority vote of all members of Congress.- Congress has the authority to proclaim the winning candidates for the position of President and Vice President- Congress may delegate the initial determination of the authenticity and due execution of the certificate of canvass to a Joint Congressional Committee, composed of members of the House and Senate- The decisions and final report of the Committee shall be subject to the approval of the joint session of both Houses if Congress, voting separately.- Even if Congress has adjourned its regular session it may continue to perform this Constitutional duty of canvassing the presidential and vice-presidential election results without need of any call for a special session by the President.

54


- The joint public session cannot adjourn sine die until it has accomplished its constitutionally mandated task.- No constitutional or statutory basis for COMELEC to undertake a separate and an “unofficial” tabulation of results descends to the level of private organization while using public funds, violates exclusive prerogative of NAMFREL and taints integrity of envelopes containing ER and the ERs themselves.- SC as Presidential Electoral Tribunal SC, en banc Sole judge of all contests relating to the election, returns and qualifications of the President or VP Promulgate its own rules

Term of Office: 6 years- No re-election- No person who has succeeded as President and has served for more than 4 years shall be qualified for election to the same office at any time

Privileges1. Official Residence2. Salary- Determined by law- Shall not be decreased during tenure- No increase shall take effect until after expiration of the term of the incumbent during which such increase was approved.3. Immunity from Suit- President is immune from suit - May not be prevented from instituting a suit- Immune from civil liability- After tenure, cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which was not performed in the exercise of official duties.- Department Secretaries, though alter egos, cannot invoke President’s immunity from suit.

Prohibitions/Inhibitions1. Not receive any other emoluments from the government or nay other source2. Not hold any other office or employment, unless provided in this Constitution- VP may be appointed to the Cabinet without need of confirmation from Commission on Appointment- Secretary of Justice is ex-officio member of Judicial and Bar Council- Secretary of Labor ex-officio member of BOD of PEZA- Secretary of TC ex-officio Chairman of PPA and LRTA- Prohibition must not be construed as applying to poses occupied by Executive officials without additional compensation in an ex-officio capacity, as provided by law and as required by the primary functions of the said official’s office. These posts do not comprise “any other office” but is an imposition of additional duties and functions on said official.3. Not directly or indirectly practice any other profession, participate in any business or be financially interested in any contract, franchise or special privilege4. Strictly avoid conflict of interest in the conduct of their office5. May not appoint Spouse or Relatives by consanguinity or affinity within the fourth civil degree asa. Members of Constitutional Commissionsb. Office of the Ombudsmanc. Secretariesd. Undersecretariese. Chairman/heads of bureaus/offices/GOCCs/subsidiaries

Rules on Succession- Vacancy at the BEGINNING of term

DEATH or PERMANENT

VP-elect shall become President

55


DISABILITY of President – electPresident-elect fails to qualify

VP-elect shall act as President until President-elect shall have qualified

President shall not have been chosen

VP-elect shall act as President until President-elect shall have been chosen and qualified

No President and VP:- Chosen- Qualified- Both died- Both become permanently disabled

Senate President or in case of his disability, the Speaker of the House shall act as President until a President or VP shall been chosen and qualified.In case of inability of both, Congress shall, by law provide for the manner by which one who is to act as President shall be selected until a President or VP shall have qualified.

- Vacancy DURING the term Death, permanent disability, removal from office or resignation of President VP shall become President Elements of Valid Resignation:1. intent to resign2. act of relinquishment

- Temporary Disability President transmits to Senate President and Speaker

His written declaration that he is unable to discharge the powers and duties of his office Until he transmits a written declaration to the contrary Powers and duties shall be discharged by the VP as Acting President Majority of the members of the Cabinet transmit to Senate President and Speaker Written declaration that the President is unable to discharge the powers and duties of his office VP shall IMMEDIATELY assume the powers and duties of the office as Acting President IF President shall transmit written declaration that no such disability exists He shall reassume the powers and duties of his office IF majority of the members of the Cabinet transmit within 5 days to SP and Speaker their written declaration that the President is unable to discharge the powers and duties of his office, Congress shall decide the issue Congress shall convene within 48 hours, if not in session w/in 10 days from receipt of last declaration OR if not in session w/in 12 days after it is required to assemble Congress determines by 2/3 vote of both Houses, voting separately that President is unable VP shall act as President; Otherwise, President shall continue exercising the powers and duties of his office.

Constitutional Duty of Congress in case of Vacancy in the Offices of President and VP- 10:00am, 3rd day after the vacancy occurs- Congress shall convene without need of call - w/in 7 days enact a law calling for a special election to elect a President and VP

56


- election held not earlier than 45 days nor later than 60 days from time of such call- bill shall be deemed certified and shall become law upon approval on 3rd reading by Congress- convening cannot be suspended- election cannot be postponed- IF vacancy occurs w/in 18 months before the date of the next presidential election NO special election

Removal of President: Impeachment

Vice-President

Qualifications1. natural-born citizen2. registered voter3. able to read and write4. on the day of the election, at least 40 years old5. resident of the Philippines for at least 10 years immediately preceding such election

Term: No VP shall serve for more than 2 successive terms.

Vacancy in VP- President shall nominate a VP from among members of Senate and House- Assume office upon confirmation by a majority vote of all Members of both Houses of Congress, voting separately

Powers of the President1) Executive Power2) Power of Appointment3) Power of Control4) Military Powers5) Pardoning Power6) Borrowing Power7) Diplomatic Power8) Budgetary Power9) Informing Power10) Othersa. Call Congress to special session

b. Power to approve or veto bollsc. Consent to deputation of government personnel by COMELECd. Discipline such deputiese. Emergency powers, by delegation from Congressf. General supervision over LGs and autonomous regional governments

Executive Power- Executive Power: power to enforce and administer the laws- Power of carrying out the laws into practical operation and enforcing their due observance- Authority to Reorganize the Office of the President “to achieve simplicity, economy and efficiency.”- Power to reorganize the OP under Section 31 (1) of EO 292 (Administrative Code) President can reorganize the OP proper by abolishing, consolidating or merging units or by transferring functions from one unit to another- Power to reorganize the OP under Section 31 (2) and b(3) of EO 292 (Administrative Code) power of the President to reorganize offices outside of the OP proper is limited to merely transferring functions/agencies from OP to Departments/Agencies and v.v.- It is not for the President to determine the validity of the law, it is the function of the judiciary. Unless and until such law is declared unconstitutional, President has the duty to execute it.

Power of Appointment- Nominate and with consent of the Commission on Appointments, appoint:a. Heads of the executive departmentsb. Ambassadorsc. Other public ministers and consulsd. Officers of the armed forces from the rank of colonel or naval captain

57


e. Other officers whose appointments are vested in him in this Constitution- Appoint all other officers of the Government whose appointments are not otherwise provided by law- Appoint those whom he may be authorized by law to appoint.- Congress may by law, vest appointment of other officers lower in rank in the a. President alone, b. Courts c. Heads of departments/agencies/commissions/boards- Appointment: selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. Designation: imposition of additional duties, usually by law, to one who is already in public service Commission: written evidence of appointment- Classification of Appointmentsa. Permanent – extended to persons possessing the requisite eligibility and are protected by security of tenureb. Temporary – extended to persons without requisite eligibility, revocable at will, without necessity of just cause or valid investigation Not subject to confirmation by Commission on Appointment If confirmation erroneously given, will not make it a permanent appointment Designation is considered only an acting or temporary appointmentc. Regular – made by President while Congress is in session Takes effect upon confirmation of Commission on Appointment Once approved, continues until end of term of the appointeed. Ad interim – made by President while Congress is not in session Takes effect immediately but ceases to be valid if disapproved by the Commission

on Appointments or upon next adjournment of Congress (by-passed through inaction) Intended to prevent interruptions in vital government services Permanent and cannot be withdrawn by the President once the appointee has qualified If disapproved by the Commission on Appointments can no longer be extended a new appointment; decision of the Commission is final and binding If by-passed President is free to renew the ad interim appointment- Officials who are appointed by the President Does NOT require confirmation by COAa. Commissioner of Customsb. Philippine Coast Guardc. Chairman of Commission of Human Rightsd. NLRC Chairman and Commissioners- Congress cannot by law require confirmation of appointments of government officials other than those mentioned in the Constitution- Steps in the Appointing Powera. Nomination by Presidentb. Confirmation by COAc. Issuance of the Commission - Appointment is deemed complete upon acceptance; pending such acceptance, the appointment may still be validly withdrawn- Discretion of Appointing Authority – includes the determination of the nature ad character of appointment- In case of vacancy in an office occupied by an alter ego of the President, e.g. Department Secretary, the President necessarily appoint the alter ego of his choice. Congress, cannot by law, compel the President to appoint automatically the undersecretary as his temporary alter ego. An alter ego, temporary or permanent, holds a position of great trust and confidence.- Special Limitations on the President’s Appointing Power

58


1. may not appoint his spouse or relatives by consanguinity or affinity, within the 4th

civil degree as a. members of Constitutional Commissionb. Ombudsmanc. Secretariesd. Undersecretariese. Chairmen/heads of bureaus/offices/GOCCs2. appointments made by acting president shall remain effective unless revoked by elected President w/in 90 days from assumption of office3. 2 months immediately before the next presidential election and up to the end of his term, a President or acting President shall not make appointments EXCEPT temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety No law that prohibits local executive officials4. Congress power to prescribe qualifications5. Judiciary may annul an appointment made by President of the appointee is not qualified or has not been validly confirmed.- Power of Removal Implied from power of appointment President cannot remove officials appointed by him where the Constitution prescribes certain methods for separation of such officers from service Chairman and commissioners of Constitutional Commissions impeachment Judges disciplining authority of SC Where power of removal is lodged in President:a. Cause as may be provided by lawb. Prescribed administrative procedure Members of career service of the Civil Service who are appointed by the President may be directly disciplined by him Members of Cabinet and Officers whose continuity in office depends upon pleasure

of President replaced any time; separation is not by removal but EXPIRATION of term.

Power of Control- President shall have control of all Executive departments Bureaus Offices - Control: power of an officer to alter, modify, set aside, or nullify what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Supervision: overseeing; the power of an officer to see that subordinate officers perform their duties, and if the latter fails or neglects to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties.- Alter Ego Principle/Doctrine of Qualified Political Agency All executives and administrative organizations are adjuncts of the Executive department The heads of the various executive departments are assistants and agents of the Chief Executive And, except in cases where the Chief Executive is required by the Constitution or law to act personally OR the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, And the acts of Secretaries, performed and promulgated in the regular course of business are, unless disapproved or reprobated are presumptively the acts of the Chief Executive.- President may exercise powers conferred by law upon Cabinet members or subordinate executive officers.

59


- Power of the president to reorganize the National Government may validly be delegated to his Cabinet members exercising control over a particular executive department.- Appeal to the President from decisions of executive officers, including Cabinet members, complete the exhaustion of administrative remedies. Exception: Doctrine of Qualified Political Agency applies, in which case the decision of Cabinet Secretary carries the presumptive approval of the President, thus there is no need to appeal to the President.- Power of control may be exercised over the acts, NOT over the actors- Power of control of Secretary of Justice over prosecutors Decisions/Resolutions of prosecutors are subject to appeal to the Secretary of Justice who exercises power of direct control and supervision over prosecutors. Where Secretary exercises power of review only after an information is filed, TC should defer or suspend arraignment and other proceedings until appeal is resolved. HOWEVER, the TC is not ipso facto bound by the resolution of the Secretary, because jurisdiction, once acquired is not lost despite the resolution of the Secretary to withdraw the information or to dismiss the case.- Power of general supervision over local governments.- President can only interfere in the affairs and activities of a local government unit of he finds that the latter had acted contrary to law. Otherwise, violative of local autonomy.- Local fiscal autonomy: automatic release of LGU shares in the national internal revenue.-Military Powers- Commander-in-Chief of all armed forces of the Philippines

- If necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.- In case of invasion or rebellion, when public safety requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of HC or place the Philippines or any part thereof under martial law.- Commander-in-Chief Clause Conduct of saturation drives or areal target zoning Exercises discretionary power Only criterion, “whenever it becomes necessary” Discretionary authority to declare state of rebellion Court may only look into the sufficiency of the factual basis for the exercise of the power. Mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights Power to organize courts martial for the disciple of members of the armed forces Power to create military commissions for the punishment of war criminals Military tribunals cannot try civilians when civil courts are open and functioning Members of the PNP are not within the jurisdiction of the military court RA 7055, lawmakers intended to return to civilian courts jurisdiction over offenses that have traditionally within their jurisdiction but did not divest the military courts jurisdiction over cases mandated by the Article of Wara. Disrespect towards the Presidentb. Disrespect towards Superior Officerc. Sedition/Mutinyd. Conduct Unbecoming an Officer and a Gentlemane. General Articles of the Articles of War- Suspension of the privilege of the writ of HC Grounds: invasion or rebellion, when public safety requires it

60


Duration: not to exceed 60 days, unless extended by Congress Duty of President to Report action to Congress: w/in 48 hours, personally or in writing Congress may revoke or extend by a majority vote of all its members, voting jointly SC may review upon proceeding filed by any citizen, as to the sufficiency of factual basis. It must promulgate its decision w/in 30 days from its filing. Suspension does not impair the right to bail. Suspension applies to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion During suspension, any person thus arrested shall be judicially charged w/in 3 days, otherwise he shall be released.- Martial Law NOT Suspend operation of the Constitution NOT Supplant the functioning of civil courts or legislative assemblies NOT authorize conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function NOT automatically suspend the privilege of the writ

Pardoning Power- Except in cases of IMPEACHMENT or AS OTHERWISE PROVIDED IN THE CONSTITUTION- May grant, after conviction by final judgmenta. Reprievesb. Commutationsc. Pardonsd. Remit fines and forfeitures- May grant Amnesty with concurrence of a majority of all members of the Congress

- Pardon: act of grace which exempts the individual from punishment that the law inflicts upon the crime he has committed- Commutation: reduction or mitigation of penalty- Reprieve: postponement of sentence/ stay of execution- Parole: release from imprisonment but still in custody of law although not in confinement- Amnesty: act of grace, with concurrence of legislature, usually extended to group of persons who committed political offenses, puts into oblivion the offense itself- Discretionary exercise by the President- Cannot be controlled by Legislature or reversed by courts unless there is a constitutional violation.- Limitations:1) Cannot be granted in cases of impeachment2) Cannot be granted in cases of violation of election offenses w/o favorable recommendation of COMELEC3) Cannot be granted in cases of legislative contempt or civil contempt4) Cannot absolve civil liability5) Cannot restore public offices forfeited- Exceptions: on consideration of justice and equity, entitled to reinstatement (Sabello vs. DECS)6) Only after conviction by final judgment- Classification of Pardon:1) Plenary or partial2) Absolute or conditional Conditional pardon is in the nature of a contract between the Chief Executive and the convicted criminal. By the pardonee’s consent to the terms stipulated in the contract, the pardonee has placed himself under the supervision of the Chief Executive or his delegate who is duty bound to see to it that the pardonee complied with the conditions of the pardon President is authorized to order the arrest or re-incarceration of such a person, if he

61


fails to comply with the conditions of his pardon. Such exercise of Presidential judgment is beyond judicial scrutiny.- Amnesty Stands before the law precisely as though he had committed no offense Criminal liability is totally extinguished To avail of the benefit, must admit the guilt of the offence covered by the proclamation

AMNESTY PARDON Addressed to political offenses

Infractions of peace of the state

Classes of persons IndividualNo need for distinct acts of acceptance

Acceptance needed

Concurrence by Congress

Nope

Public act which courts may take judicial notice

Private act which must be pleaded and proved

Looks back and puts into oblivion the offense itself

Looks forward and relieves pardonee of the consequences of the offenses

Borrowing Power- Contract or guarantee foreign loans on behalf of the Republic, with prior concurrence of Monetary Board and subject to such limitations as may be provided by law.- MB, shall w/in 30 days from end of every quarter, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government/GOCC which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.Diplomatic Power- No treaty or international agreement shall be valid and effective unless concurred

in by at least 2/3 of all members of the Senate.- Treaties vs. International Agreements

Treaties International Agreements

Formal documents require ratification

Become binding through executive action

International agreements which involve political issues or changes of national policy

International agreements involving adjustments of details carrying out well established national policies and traditions

Involving arrangements of permanent character

Involving arrangements of a more or less temporary nature

- It is immaterial whether US treats the VFA as merely an executive agreement because, under international law, an executive agreement is just as binding as a trearty.

Budgetary Power- Submit to Congress within 30 days from opening of its regular session- A budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures- As basis of the general appropriations act

Informing Power- Address Congress at the opening of its regular session- May appear before it at any other time

X. JUDICIAL DEPARTMENT

Judicial Power- Duty of the courts of justice to settle actual controversies involving rights which

62


are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.- Political questions forbidden territory of courts- Inherent power of Courts to amend and control its processed and orders so as to make them comformable with law and justice.- Right to reverse itself.

Where vested- 1 SC- Such lower courts as may be established by law

Jurisdiction- Power to hear and decide a case- Congress shall have the power to define, prescribe and apportion the jurisdiction of various courts, but may not deprive SC of its jurisdiction over cases enumerated in Section 5, Article VIII- No law shall be passed increasing appellate jurisdiction of SC without its advice and concurrence

Constitutional Safeguards to Insure Independence of SC1. SC is a constitutional body; it may not be abolished by legislature2. members of SC are removable only by impeachment3. SC may not be deprived of its original and appellate jurisdiction; Appellate jurisdiction may not be increased without its consent and concurrence4. SC has administrative supervision over all inferior courts and personnel5. SC has exclusive power to discipline judges and justices of inferior courts6. members of Judiciary have security of tenure

7. members of Judiciary may not be designated to any agency performing quasi-judicial or administrative functions8. salaries of judges may not be reduced; Judiciary enjoys fiscal autonomy9. SC alone may initiate ROC10. SC alone may order temporary detail judges11. SC can appoint officials and employees of judiciary

Qualifications- Proven competence, integrity, probity and independence +- SC1) Natural-born2) At least 403) 15 years or more a judge of a lower court or engaged in the practice of law in the Philippines

- Lower Collegiate Courts1) Natural-born2) Member of Philippine Bar3) Congress may prescribe other qualifications

- Lower Courts1) Citizen2) Member of Philippine Bar3) Congress may prescribe other qualifications

Procedure for Appointment- Appointed by the President from a list of nominees prepared by Judicial and Bar Council- Lower Courts: appointed by President w/in 90 days from submission of list

Judicial and Bar Council- Composition Ex-officio Members1) CJ as Chairman2) Justice Secretary3) Representative of Congress

63


Regular Members1) Representative of IBP2) Professor of Law3) Retired justice of SC4) Representative of private sector Secretary ex-officio: clerk of SC

- Appointment: regular members shall be appointed by President for a term of 4 years, with consent of COA; shall receive emoluments as determined by SC- Powers/Functions: Principal function: recommending appointees to Judiciary Exercise such other functions and duties as SC may assign

Supreme Court Composition 1 CJ 14 Associate Justices May sit en banc or in its discretion, in divisions of 3, 5 or 7 members Vacancy shall be filled within 90 days from occurrence En Banc – concurrence of a majority of the members who took part in the deliberations and voted1) Constitutionality of a treaty, international or executive agreement, or law2) All others required by ROC3) Constitutionality, application or operation of PDs, orders, instructions, ordinances and other regulations Division - concurrence of a majority of the members who took part in the deliberations and voted and in no case without the concurrence of at least 3 such members When required number is not obtained case shall be decided en banc (case – decided NOT matters - resolved) No doctrine or principle of law laid by a court sitting en banc or in a division, may be modified or reversed except by the court sitting en banc

Powers of the SC1) Original Jurisdiction2) Appellate Jurisdiction3) Temporary Assignment of judges of LCs to other stations as public interest may require4) Order change of venue or place of trial, to avoid miscarriage of justice5) Rule-Making Power6) Power of Appointment7) Power of Administrative Supervision8) Annual Report

Original Jurisdiction1) Cases affecting ambassadors, public ministers and consuls2) Petition for certiorari, prohibition, mandamus3) Quo warranto4) Habeas corpus

Appellate Jurisdiction – review, revise, reverse, modify, or affirm on appeal or certiorari as the ROC may provide final judgments and orders of lower courts in:1) All cases involving constitutionality/validity of any treaty, international or executive agreements, law, PD, proclamation, order, instruction ordinance or regulation is in question2) All cases involving legality of any tax, impost, assessment or toll or any penalty imposed in relation thereto3) Jurisdiction of lower court is in issue4) All criminal cases in which penalty imposed is RP or higher5) All cases in which only an error or question of law is involved

- Does not include power of SC to review decisions of administrative bodies- Penalty is RP, accused must appeal. Otherwise, judgment of conviction will become final and executory

64


- If death, TC shall forward records for automatic review- Question of Law: correct application of law or jurisprudence to a certain set of facts; when the issue does not call for an examination of the probative value of the evidence, the truth or falsehood of the facts being admitted.

Temporary Assignment of judges of LCs to other stations as public interest may require

Order change of venue or place of trial, to avoid miscarriage of justice

Rule-Making Power- Promulgate rules:1) Protection and enforcement of constitutional rights2) Pleadings3) Practices4) Procedure in all courts5) Admission to practice of law6) Admission to TB7) Legal assistance to underprivileged- Limitations:1) Simplified and inexpensive procedure2) Uniform in all courts of the same grade3) Not diminish, increase or modify substantive rights- Integrated Bar State-organized bar to which each lawyer must belong Official unification of entire lawyer population, where each lawyer is given the opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his portion of its responsibilities Requires membership and financial support of every atty as a condition sine qua non to the practice Payment of dues is a necessary consequence of membership in the IBP, of which no one is exempt

Practice of law is a privilege and as such must bow to the inherent regulatory power if the SC- Writ of Amparo: writ that may be issued by the courts, based on the constitutional power of the SC to promulgate rules, for the protection and enforcement of constitutional rights.- Congress cannot amend the ROC- Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC

Power of Appointment- Appoint all officials and employees of the Judiciary in accordance with Civil Service Law

Power of Administrative Supervision- Administrative supervision over all courts and personnel- Ombudsman may not initiate or investigate a criminal or administrative complaint before his office against a judge, he must first indorse the case to the SC- Administrative proceedings before the SC are confidential in nature.

Annual Report- Submit, within 30 days from opening of each regular session of Congress to the President and to Congress an annual report on the operations and activities of the Judiciary.

Consultations/Decisions of SC1) Conclusions in any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion of the Court. A certification to this effect signed by the CJ shall be issued.- N/A to administrative cases- Applicable to lower collegiate bodies- Votes are equally divided and majority is not obtained, petition shall nbbe dismissed

65


2) The decision shall state clearly and distinctly the facts and the law on which it is based.- N/A to:1) Minute resolution dismissing a petition for HC, certiorari and mandamus2) Administrative cases- Decision need not be a complete recital of the evidence presented- Factual and legal basis are clearly and distinctly set forth- Imperative that decision is not limited to dispositive part; must 1) State nature of the case2) Summarize the facts w/ reference to record3) Contain statement of applicable law and jurisprudence4) Tribunal’s statement and conclusion of the case3) No petition for review or MR shall be refused due course or denied without stating the legal basis.

Tenure of Judges/Justices- SC: Justices may be removed only by impeachment Special Prosecutor has no authority to conduct an investigation on charges against a member of the SC, in view of filing a criminal information. Because if found guilty, he will be removed from office violation of his security of tenure.- LC: Judges shall hold office during GOOD BEHAVIOR until they reach the age of 70 or become INCAPACITATED to discharge the duties of their offices. SC en banc shall have the power to discipline judges of LCs, or order their dismissal by a vote of a majority of the members who took part in the deliberations and voted NOTE: only cases involving dismissal of judges of LCs are required to be decided by the Court en banc.

First clause: declaration of grant of the disciplining power to and the determination of the procedure in the exercise by the Court en banc Grounds for the removal of a judicial officer should be established beyond reasonable doubt, particularly where the charges on which removal is sought are misconduct in office, willful neglect, corruption, incompetence, etc. Judges cannot be disciplined for every erroneous order or decision rendered in the absence of a clear showing of ill motive, malice or bad faith. The absence of bad faith or malice will not totally exculpate them from charges of incompetence and ignorance of the law when they render decisions that are totally bereft of factual and legal bases.- No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members.

Salaries- Fixed by law- May not be decreased during their continuance in office- Imposition of income tax on salaries of judges does not violate the constitutional prohibition against decrease in salaries

Periods of Decisions- All cases filed after the effectivity of the Constitution must be decided and resolved, from date of submission 24 months – SC 12 months – lower collegiate courts 3 months – all other lower courts- Unless in the 2 latter cases, the period is reduced by the SC- Certification to be signed by the Chief Justice/Presiding Justice shall be issued stating the reason for delay- Must not sacrifice for expediency’s sake the fundamental requirements of due process

66


- “sin perjuicio” judgment without a statement of the facts in support of its conclusions, to be later supplemented by the final judgment.- Designed to prevent delay in the administration of justice.- Failure to decide cases within the prescribed period is not excusable and constitute gross inefficiency which is a ground for administrative sanction against the defaulting judge.- Judges who cannot comply with this mandate should ask for additional time, explaining in their request the reasons for the delay.- Despite expiration of the mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted to it without further delay.- Court does not lose jurisdiction despite the lapse of the mandatory period.

XI. CONSTITUTIONAL COMMISSION

Independent Constitutional Commission1. Civil Service Commission2. COMELEC3. Commission on Audit

Safeguards Insuring the Independence of the Commission1. constitutionally created, and not be abolished by statute2. expressly described as “independent”3. conferred certain powers and functions which cannot be reduced by statute4. enjoy fiscal autonomy “no report, no release” policy may not be validly enforced against offices vested with fiscal autonomy. Automatic release of approved annual appropriations to a constitutional commission vested with fiscal autonomy should be construed to mean that no

condition to fund releases to it may be imposed. Provision in Section 3, Article VIII, prohibiting the reduction in the appropriation for the Judiciary below the amount appropriated for the previous year does not appear in Section 5, Article IX-A…. Congress is not prohibited from reducing the appropriations Constitutional Commissions below the amount appropriated for them for the previous year.5. promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (subject to disapproval by the SC)6. appoint their own officials and employees in accordance with Civil Service Law7. Chairman and members removed only by impeachment8. Chairman and members are given a fairly long term of 7 years9. Chairman and members may not be reappointed or appointed in an acting capacity10. salaries of Chairman and members are relatively high and may not be decreased during continuance in office11. Chairman and members are subject to certain disqualification calculated to strengthen their integrity

Inhibitions/Disqualifications1. not hold any other office or employment, during tenure2. not engage in the practice of any profession3. not engage in the active management or control of any business which in any way may be affected by the functions of his office4. not be financially interested, directly or indirectly, in any contract or in any franchise or privilege granted by the Government

Rotational Scheme of Appointments

67


- First appointees serve terms of 7, 5 and 3 years.- After the first commissioners are appointed, the rotational scheme is intended to prevent the possibility of one President appointing all the Commissioners.- Rotational plan requires:1. terms of the first commissioners should start on a common date2. any vacancy due to death, resignation or disability before the expiration of the term should only be filled for the unexpired balance of the term.

Decisions1. Each Commission shall decide by a majority vote of all its members any case or matter brought before it w/in 60 days from the date of its submission for decision or resolution.- Majority vote of ALL members and not only of those who participated in the deliberations and voted thereon.- Retired prior to promulgation of decision votes should be considered withdrawn, as if they had not signed the resolution; only the votes of the remaining commissioners shall be counted.- Treat the procedural requirements on deadlines realistically.2. Aggrieved party may bring the decision to the SC on certiorari w/in 30 days from receipt of copy- When Court reviews a decision of the COMELEC, the Court exercises extraordinary jurisdiction; thus the proceeding is limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and does not ordinarily empower the Court to review factual findings.- Certiorari under R65 is the appropriate remedy.- Judgment of the COA are not reviewable by ordinary writ of error or appeal by certiorari to the SC. Only when COA acts

without or in excess of jurisdiction, or with GAD amounting to lack or excess of jurisdiction, may this court entertain a petition for certiorari under R65.- Decisions of the CSC shall be appealable by certiorari to the CA w/in 15 days from receipt of a copy. From the decision of the CA, the party adversely affected thereby shall file a petition for review on certiorari under R45.

Enforcement of Decision- Final decision of the CSC are enforceable by writ of execution which CSC may itself issue.

CIVIL SERVICE COMMISSION

Composition- Chairman- 2 Commissioners

Qualifications1. Natural-born2. at the time of the appointment at least 35 years old3. proven capacity for public administration 4. not have been candidates for any elective position in the election immediately preceding their appointment

Term- Appointed by the President with the consent of the Commission on Appointments- Term of 7 years, without reappointment- In no case shall any member be appointed or designated in temporary or acting capacity.

Constitutional Objective/Function1. central personnel agency of the Government2. establish a career service

68


3. adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service4. strengthen merit and reward system5. integrate all human resources development programs for all levels and ranks6. institutionalize a management climate conducive to public accountability

- Granting civil service eligibility to employees under provisional or temporary status who have rendered 7 years of efficient service is DISCRETIONARY on the CSC and may not be compelled by mandamus to issue such eligibility.- CSC cannot validly abolish Career Executive Service Board- Power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments.- Power to recall an appointment initially approved in disregard of the applicable provisions of the Civil Service law and regulations.- Original jurisdiction to hear and decide a complaint for cheating in the CS examinations by a government employee.- Decisions of lower level officials in cases involving personnel actions be appealed to the agency head then to the CSC. (not RTC)- CSC does not have appellate jurisdiction over a case of separation from government service under Section 2, Article II of the Provisional Constitution.

Scope of the CS- Embrace ALL branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charter- “with original charter” refers to corporation chartered by special law as

distinguished from corporations organized under the Corporation Code- Includes:1. Economic Intelligence and Information Bureau2. Jose M. Rodriguez Hospital3. Philippine National Red Cross4. UP5. Morong Water District- N/A:1. National Housing Corporation

Classes of Service1. Career Servicea. Description- Entrance based on merit and fitness, as far as practicable by competitive examinations- Or based on highly and technical qualifications- Opportunity for advancement to higher career positions- Security of tenureb. Includes:1) Open Career Service- Prior qualification in an appropriate examination is required2) Closed Career Service- Scientific or highly technical3) Career Executive Service- Undersecretaries, bureau directors, etc.4) Positions in the Armed Forces of the Philippines- Governed by a different merit system5) Career Officers- Other than those belonging to Career Executive Service, appointed by President, e.g. foreign service6) Personnel of GOCC w/ original charters7) Permanent laborers (skilled, semi-skilled or unskilled)c. Incumbents of positions which are declared to be CES positions for the first time who hold permanent appointments shall remain under permanent status in their position. Upon promotion or transfer to

69


other CES positions, these incumbents shall be under temporary status in said other CES positions until qualify,d. Mere fact that a position belongs to the CES does not automatically confer security of tenure on the applicant. Such right will have to depend on the nature of his appointment which depends on his eligibility or lack of it.e. A person who does not have the requisite qualifications for the position cannot be appointed.- Exception: acting capacity in the absence of appropriate eligibles.f. Security of Tenure in the CES – pertains only to RANK and not to the office or the position to which they may be appointed.1) Career executive service eligibility2) Appointment to the appropriate career executive service rank2. Non-Career Servicea. Description- Entrance on bases other than those of the usual tests utilized for the career service - Tenure1) limited to a period specified by law or 2) which is co-terminous with that of the appointing authority or 3) subject of his pleasure or 4) which is limited to the duration of a particular project for which purpose the employment was made.b. Includes:1) Elective officials, personal and confidential staff2) Department Heads and officials of Cabinet rank who holds office at the pleasure of the President, personal and confidential staff3) Chairmen and members of commissions/boards w/ fixed terms of office, personal and confidential staff4) Contractual personnel/ those whose employment in government is in accordance with a special contract to undertake a specific work or job requiring special or

technical skills not available in employing agency, to be accomplished within a period not exceeding 1 year, under his own responsibility, with minimum direction and supervision5) Emergency and seasonal personnel

- Under Administrative Code, the CSC is expressly empowered to declare positions in the CS as primarily confidential.- Enumeration in the Civil Service decree, which defined the non-career service is not an exclusive list

Appointments in Civil Service- According to merit and fitness to be determined, as far as practicable by competitive examination- Except to positions which are:1) Policy-determining2) Primarily confidential or3) Highly technical- Principles1) Classification of a particular position as policy-determining, primarily confidential or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position2) The exemption provided pertains only to exemption from competitive examination to determine merit and fitness to enter the civil service- Exempt from competitive examination to determine merit and fitness:1) Policy-determining Officer lays down principal or fundamental guidelines or rules E.g. department head2) Primarily confidential Not only confidence in the aptitude if the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayal on confidential matters of state

70


NATURE of the position which determined whether a position is primarily confidential, policy-determining or highly technical “proximity rule” – can be considered as confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust or confidential matters of the State. Where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant, and cannot be classified as primarily confidential.3) Highly technical – requires possession of technical skill in a superior degree.

Discretion of the Appointing Authority Where the appointee possesses the minimum qualification requirements prescribed by law for the position, the appointing authority has discretion who to appoint. Even if officers and employees in the career service of the Civil Service enjoy preference in the promotion, it is not mandatory that the vacancy be filled by promotion. Discretion of the appointing authority is not only in the choice of the person who is to be appointed, but also in the nature or character of the appointment issued. CSC cannot convert temporary appointment to a permanent one arrogation of power belonging to appointing authority. May approve as merely temporary an appointment intended to be permanent when the appointee does not possess the requisite eligibility and the exigency of the service demands that the position be filled even in a temporary capacity.

Role of the CSC Check if the appointee possesses the qualifications and appropriate eligibility; if he does, appointment is approved; if he doesn’t, appointment is disapproved. Selection or placement is made through the Placement Committee, the members of which are the representatives of the head of the agency as well as representatives of the employees. Said Committee’s work is merely recommendatory. Appointment should be submitted to the CSC w/in 30 days from issuance; otherwise, it shall be ineffective. CSC Memorandum Circular – only the appointing authority has the right to challenge the CSC’s disapproval of an appointment. Abella, Jr. vs. CSC both the appointing authority and the appointee are the real parties in interest and both have legal standing Challenge to the appointing authority’s discretion While appointee has no vested right to the position, it was his elgibility that was being questioned; he has a personal stake in the outcome

Disqualifications1) Lost in any election within 1 year preceding the appointment2) Elective official during tenure3) Appointive official, except when allowed by law or the primary functions of his position Ex-officio capacity

Security of Tenure- Removed and suspended for case provided by law.- Ground, procedure for investigation and the discipline of career service officers and EEs Career Service Law; Non-

71


compliance constitutes denial of the right to security of tenure- Presidential appointee direct disciplinary authority of the President- Reassignment does not offend the constitutional guarantee- Reinstatement – deemed not to have left his office; entitled to payment of back salaries, notwithstanding silence. Payment of back wages during the period of suspension of a civil servant who is subsequently reinstated is proper only if he is found innocent of the charges and the suspension is unjustified. BUT where the reinstatement is ordered not as a result of exoneration but merely as an act of liberality, the claim for back wages was not allowed. It follows the general rule that the public official is not entitled to compensation if he has not rendered any service.- Valid abolition of office does not violate the constitutional guarantee of security of tenure.- ROC, career service officer or employee who has been unlawfully ousted from his office has 1 year within which to file an action in court to recover office. Exception: Cristobal vs. Melchot grounds of equity- Appellate jurisdiction of the CSC only over Merit System Protection Board’s decisions in administrative disciplinary cases involving the imposition of the penalty of suspension, fine, demotion in rank or salary, transfer, removal, dismissal from office – not over MSPB decision exonerating the accused. Only by the party adversely affected (Not ER).- He who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title thereto is thereby terminated without any other act of proceeding. Canonizado vs. Aguirre: accepted another position while case questioning the

law that removed him from his first position was still pending.

Partisan Political Activity – no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign Except to vote Does not prevent expression of views regarding political problems or mention the names of the public officers he supports Applicable to military establishments only to those in the active military service, not to reservists Exemptions:1. members of the Cabinet2. public officers and employees holding political offices The above 2 are allowed to take part in political and electoral activities, except to solicit contributions from their subordinates or commit acts prohibited under the Election Code.

The right to Self-organization shall not be denied to government employees May not engage in strikes to demand changes in the terms and conditions of employment because such are provided for by law.

Temporary employees of the Government shall be given such protection as may be provided by law.

Standardization of Compensation Provided for by Congress (and also qualification required fir their positions)

Double Compensation No elective or appointive public officer or employee shall receive additional, double or indirect compensation, UNLESS specifically authorized by law, Nor accept without the consent of Congress, any present, emoluments office or

72


title of any kind from any foreign government. Pensions and gratuities shall not be considered as additional, double or indirect compensation. Retiree can continue to receive such pension/gratuity even after he accepts another government position to which another compensation is attached.

Oath of Allegiance – shall take an oath or affirmation to uphold and defend this Constitution

COMMISSION ON ELECTIONS


Qualifications1. Natural-born2. at the time of the appointment at least 35 years old3. holder of a college decree4. not have been candidates in the immediately preceding election5. majority, including the chairman, must be member of the Philippine Bar who have been engaged in the practice of law for at least 10 years.

Term- Appointed by the President with the consent of the Commission on Appointments- Term of 7 years, without reappointment- In no case shall any member be appointed or designated in temporary or acting capacity.

En Banc and Division cases It may sit en banc of in 2 division, and shall promulgate its rules of procedure in order to expedite disposition of cases, including pre-proclamation controversies.

All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided en banc. Cases which must first be heard and decided in division1. all election cases, including pre-proclamation contests, originally cognizable by the Commission2. cancel certificate of candidacy3. cases appealed from the RTC or MTC (SC may motu proprio consider question of jurisdiction)4. petition for certiorari filed with COMELEC from a decision of the RTC or MTC Exceptions:1. error in tabulation results or tallying of results by the Board of Canvassers, merely clerical in nature (petition for correction of manifest errors in the Statement of Votes)2. prosecution cases involving violation of election laws The rule that all election cases shall be heard and decided in division applies only when the COMELEC exercises its adjudicatory powers or quasi-judicial functions, not when it exercises purely administrative functions.

COMELEC decisions reviewable by the SC1. decisions of COMELEC en banc, on certiorari2. only decision of COMELEC in the exercise of its adjudicatory or quasi-judicial power may be brought to SC on certiorari if merely administrative in character ordinary civil action before trial courts

COMELEC en banc shall promulgate rules concerning pleadings and practice before it or before any of its offices, but they must not diminish, increase or modify substantive rights subject to the rule that rules of procedure of special courts and quasi-judicial bodies

73


shall remain effective unless disapproved by the SC rules on civpro regarding demurrer to evidence cannot apply to election cases, even by analogy in suppletory character. Authority to suspend reglamentary periods provided by its rules, or the requirement of NFS, in the interest of justice and speedy resolution of cases. It is not constrained to dismiss a case on the ground of non-payment of filing fees. Fingerprinting of chairman and members of the Board of Election Inspectors is an internal matter and may be done even without prior notice.

Constitutional Powers and Functions1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum or recall2) Exclusive original jurisdictiona. All contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials.

Exclusive appellate jurisdictionb. All contests involving elective municipal officials decide by RTCc. Elective barangay officials decided by MTC3) Decide all questions relating to elections Determination of the number and location of polling places Appointment of election officials and inspectors Registration of voters EXCEPT: right to vote4) Deputize law enforcement agencies and instrumentalities for the exclusive purpose of ensuring free, orderly , honest and peaceful and credible elections, with concurrence of President5) Accredit Citizen’s Arm and Register political parties, coalitions or organizations After sufficient publication Present platform/program of government

6) File petition in court for the inclusion/exclusion of voters, upon verified complaint or in its own initiative; investigate and/or prosecute cases for violations of election laws7) Recommend to Congress effective measures to minimize election spending, limitation of places where propaganda materials shall be posted and to prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates8) Submit to the President and Congress a comprehensive report on the conduct of each election, plebiscite initiative, referendum or recall

Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum or recall Initiative: power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. Referendum: power of the electorate to approve or reject legislation through an election called for the purpose Recall: 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 Plebiscite: submission of constitutional amendments or important legislative measures to the people for ratification.1) Broad powers – promulgate rules and regulations in the enforcement of laws relative to elections Enforcement of provisions of the Omnibus Election Code exclusive jurisdiction of the COMELEC Includes the ascertainment of the identity of a political party and its legitimate officers Does not authorize the COMELEC, motu proprio, without the proper

74


proceedings, to deny due course to cancel a certificate of candidacy filed in due form. Election and contests involving election of Sangguniang Kabataan elections do NOT fall within jurisdiction of the COMELEC DILG Authority to annul results of plebiscite (through pre-proclamation case of revision of ballots)2) Regulatory power over media of transportation, communication and information to ensure equal opportunity, time, space, right to reply, etc. during election period exercised only over the media, not over practitioners of media3) No pardon, amnesty, parole, etc, for violation of election laws shall be granted by the President without its favorable recommendation4) COMELEC cannot exercise power of apportionment5) Power to declare failure of election The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous case The election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous case After the voting and during the preparation and transmission of the election returns or in custody or canvas, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous case. Petition must show, on its face1) No voting has taken place in the precint on the sate fixed by law or even if there was voting, the result nevertheless results in a failure to elect2) Votes not cast would affect the result of the election

6) Not authorized to make an unofficial quick count of presidential election results

Exclusive original jurisdiction All contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials.

Exclusive jurisdiction over pre-proclamation cases Possible conflict with HR/S ET foreclosed by Section 15, RA 7166 prohibits pre-proclamation controversies in national offices (EXCEPT on question involving the composition and proceedings of the Board of Canvassers) ET over a member only after proclamation

COMELEC without the power to partially/totally annul a proclamation or to suspend the effects of a proclamation without notice and hearing violation of due process clause

Power to issue writs of prohibition, certiorari, etc. In the exercise of its exclusive appellate jurisdiction

Exclusive appellate jurisdiction All contests involving elective municipal officials decide by RTC Elective barangay officials decided by MTC Decisions shall be final, executory and unappealable Appeal to the COMELEC from RTC must be filed within 5 days from receipt of a copy of the decision. MR of RTC decision is a prohibited pleading and does not interrupt running of period for appeal. Mere filing of notice of appeal is not sufficient, must be accompanied by payment of correct amount of appeal fee.

75


Permissive – COMELEC may give due course, and the subsequent payment cures the procedural defect.

Execution Pending Appeal COMELEC cannot deprive RTC of its competence to order the execution of judgment pending appeal, because the mere filing of an appeal does not divest the TC of its jurisdiction over a case. Factors:1) Public interest involved or will of the electorate2) Shortness of the remaining portion of the term3) Length of time that the election contest has been pending Strictly construed against the movant being an exception to the general rule. Filed before expiration of the period for appeal. Judgments which may be executed pending appeal need not only be those rendered by the TC, but by the COMELEC as well.

Decide all questions relating to elections As an incident to its duties concerning registration of voters, it may decide a question involving the right to vote, but decision shall be subject to judicial review. Exercising purely administrative power may not punish for contempt

Deputize law enforcement agencies and instrumentalities for the exclusive purpose of ensuring free, orderly, honest and peaceful and credible elections, with concurrence of President May recommend to the President the removal of any officer it has deputized, or the imposition of any other sanction for disobedience, violation or disregard of its orders.

Accredit Citizen’s Arm and Register political parties, coalitions or organizations Authority to promulgate the necessary rules to enforce and administer all election laws includes the determination of appropriate periods for the accomplishment of pre-election acts, e.g. filing petitions for registration under the party-list system.

File petition in court for the inclusion/exclusion of voters, upon verified complaint or in its own initiative; investigate and/or prosecute cases for violations of election laws Finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discretion Includes the authority to decide whether or not to appeal the dismissal of a case by the TC.

Recommend to Congress effective measures to minimize election spending, limitation of places where propaganda materials shall be posted and to prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates

Submit to the President and Congress a comprehensive report on the conduct of each election, plebiscite initiative, referendum or recall

Statutory Powers of the COMELEC1) Exercise supervision and control over official required to perform duties relative to the conduct of elections2) Promulgate rules and regulations 3) Punish contempt4) Inquire into financial records of candidates, groups, etc.5) Prescribe forms to be used in elections6) Procure supplies and materials needed for elections7) Enlist non-partisan groups to assist it8) Fix periods for pre-election requirements

76


9) Power to declare failure of election; call for special election10) Exclusive original jurisdiction over all pre-proclamation cases

Power to declare failure of election; call for special election Sitting en banc and by a majority vote of its members Motu proprio or upon a verified petition Hearing of the case shall be summary in nature Petition to declare a failure of election is neither an election protest nor a pre-proclamation controversy Validity of an election, it is essential that the voters have notice in some form, either actual or constructive, of the time, place and purpose. Time must be authoritatively designated in advance Stricter in cases of special election, at least there must be substantial compliance In fixing date of special election:1) Should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect Not absolute; directory Residual powers to conduct special elections even beyond the deadline prescribed2) Reasonably close to the date of the election not held, suspended, or which resulted in failure No law which provides for a reglementary period within which to file a petition for the annulment of an election if there has been no proclamation yet Legally remain in office in “hold-over” capacity until successors have been elected and qualified (LGC limits term of barangay officials to 3 years)

Exclusive original jurisdiction over all pre-proclamation cases

GR: COMELEC restricted, in ore-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond them and investigate election irregularities. Exception: duty-bound to investigate allegations of fraud, terrorism, violence and other analogous cases in an action for annulment of election results or for a declaration of failure of elections. (may conduct technical examination of election documents and analyze signatures and fingerprints in order to determine whether the election has been free, honest and clean)

Party-System - a free and open party-system shall be allowed to evolve according to the free choice of the people Votes cast in favor of political party, organization or collation that are REGISTERED. Entitled to appoint poll watchers in accordance with law.

Election Period Commence 90 days before the day of the election and shall end 30 days thereafter Exception: period fixed by COMELEC in special cases

Judicial Review of COMELEC Decisions Petition for certiorari (R65) Filed with SC w/in 30 days from receipt of decision of COMELEC en banc

COMMISSION ON AUDIT


Qualifications1. Natural-born2. at least 35 years old

77


3. CPAs with not less than 10 years of auditing experience OR members of the Philippine Bar with at least 10 years practice of law4. not have been candidates in the election immediately preceding the appointment5. no time shall ALL members belong to the same profession

Term- Appointed by the President with the consent of the Commission on Appointments- Term of 7 years, without reappointment

Powers and Duties1. Examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to the Government2. Keep the general accounts of Government and preserve vouchers and supporting papers for such period as provided by law3. authority to define the scope of its audit and examination, establish techniques and methods required therefore4. Promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, expensive, extravagant or unconscionable expenditures or uses of government funds or property

Examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to the Government Post-audit basis1. Constitutional Commissions and bodies/offices granted fiscal autonomy2. autonomous state colleges and universities

3. GOCCs and subsidiaries – with or without original charter4. Non-governmental entities receiving subsidy or equity Temporary or special pre-audit Duty to pass in audit a salary voucher is discretionary Exception: authority of Auditor General is limited to auditing (whether 1) there is a law appropriating funds for a given purpose, 2) goods or services have been delivered, 3) payment has been authorized) presence of all, duty to pass a voucher in audit becomes MINISTERIAL. COA may validly veto appropriations which violated rules on unnecessary, irregular or unconscionable expenses, under 1987 Constitution.

Keep the general accounts of Government and preserve vouchers and supporting papers for such period as provided by lawAuthority to define the scope of its audit and examination, establish techniques and methods required therefore EXCLUSIVE 1. Power to define the scope of its audit 2. Promulgate auditing rules and regulations 3. Power to disallow unnecessary expenditures NOT Exclusive power to examine and audit

Promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, expensive, extravagant or unconscionable expenditures or uses of government funds or property COA may stop the payment of the price stipulated in the government contracts when found to be irregular, extravagant or unconscionable.

78


May prohibit the use of government vehicle by officials who are provided with transportation allowance.

Jurisdiction of the Commission No law shall be passed exempting any entity of Government or any investment of public funds from the jurisdiction of the Commission on Audit Water districts are subject to jurisdiction of COA Authority to investigate whether directors/officials/employees of GOCCs, receiving additional allowances and bonuses are entitled to such. Failure of bidding:1. only one offeror2. all the offers are non-complying or unacceptable – does not speak of accepted bids but of offerors, without disctinction as to whether they are qualified or not.

XII. LOCAL GOVERNMENT

XIII. ACCOUNTABILITY OF PUBLIC OFFICERS

Statement of Policy 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.

Impeachment National inquest into the conduct of public men Impeachable Officers1. President2. Vice President3. Chief Justice4. Associate Justices of SC5. Chairmen and Members of ConCom6. Ombudsman

* enumeration is exclusive Impeachable officer who is a member of the Philippine Bar cannot be disbarred without first being impeached. Grounds:1. Culpable violation of the constitution2. treason3. bribery4. graft and corruption5. other high crimes6. betrayal of public trust* enumeration is exclusive Procedure for Impeachment – Congress shall promulgate its rules1. Initiating Impeachment Case House of Representative shall have the exclusive power to initiate all cases of impeachment. Deemed initiated when the complaint (with accompanying resolution of indorsement) has been filed with the House of Representatives and referred to the appropriate Committee. Initiated by 1. any Member of the House of Representatives OR 2. by any citizen upon a resolution of endorsement by any Member Included in the order of business w/in 10 session days and referred to the proper Committee w/in 3 session days. If the verified complaint is filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment and the trial by Senate shall forthwith proceed (no need to refer the same to the proper Committee) The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House w/in 60 session days A vote of at least 1/3 of all the members of the House shall be necessary to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution.

79


The vote of each member shall be recorded.2. Limitations on initiating Impeachment Case Not more than once within a period of 1 year against the same official.3. Trial and Decision The Senate shall have the sole power to try and decide all cases of impeachment. The Senators shall be on oath or affirmation. President is on trial, the Chief Justice of the SC shall preside, but shall not vote. A decision of conviction must be concurred in by at least 2/3 of all members of the Senate.4. Effect of Conviction Removal from office and disqualification to hold office. Party convicted shall be liable and subject to prosecution, trial and punishment according to law.

THE SANDIGANBAYAN Anti-graft court

Composition 1 Presiding Justice 8 Associate Justices With the rank of the Justice of the CA Sits in 3 divisions of 3 members each

Jurisdiction Following must concur:1. violation of RA 3019, RA 1379, Chapter 2 Section 2 Title 7 Book II of RPC, Eos 1, 2, 14 and 14-A or other offenses of felonies whether simple or complexed with other crimes;2. offender is public official or employees holding any of the positions enumerated in par a Sec 4 RA 8249; and3. offenses committed in relation to the office Only instance when Sandiganbayan may exercise jurisdiction over a private

individual is when the complaint charges him either as a co-principal, accomplice or accessory of a public officer who has been charged with a crime within the jurisdiction of the Sandiganbayan. Whether or not the Sandiganbayan or the RTC has jurisdiction shall be determined by the allegations in the information specifically on whether or not the acts complained of were committed in relation to the official functions of the accused. Required that the charge be set forth with particularity as will reasonable indicate that the exact offense which the accused is alleged to have committed is one in relation to his office. Ramification of Section 7, RA 82491. if the trial of the cases pending before whatever court has already begun as of the approval of RA 8249, the law does not apply;2. if trial of cases pending before whatever court has not begun as of the approval of RA 8249, then the law applies and the rules are:a. if SB has jurisdiction over a case pending before it, then it retains jurisdictionb. if SB has no jurisdiction over a case pending before it, case shall be referred to the regular courtsc. if SB has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall be referred to the Sandiganbayand. if a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction

Decision/Review Unanimous vote of all 3 members required for the pronouncement of judgment by a division. Decisions of the Sandiganbayan shall be reviewable by the SC on petition for certiorari Mandatory for the Sandiganbayan to suspend any public officer against whom a

80


valid information charging violation of that law, or any offense involving fraud upon the government or public funds or property is filed. (RA 3019) The appellate jurisdiction of the SC over decisions and final orders of the Sandiganbayan is limited to questions of law.

THE OMBUDSMAN Tanodbayan

Composition One overall Deputy At least one deputy for Luzon, Visayas and Mindanao Separate deputy for the military establishment may likewise be appointed

Qualifications1) Natural-born2) At least 40 years of age3) Recognized probity and independence4) Members of the Philippines Bar5) Must not have been candidates for any elective office in the immediately preceding election6) Ombudsman must have been a judge or engaged in the practice of law for 10 years or more

Appointment of the Ombudsman and his Deputies By President From a list of 6 nominees prepared by the Judicial and Bar Council From a list of 3 nominees for every vacancy; all vacancies must be filled in 3 months.

Term of Office 7 years without reappointment

Rank and Salary Rank of Chairman and Members of the ConCom

Receive the same salary which shall not be decreased during their term of office

Fiscal Autonomy

Disqualifications/Inhibitions – During their tenure shall:1) Not hold any other office or employment 2) Not engage in the practice of any profession or in the active management or control of any business which may in any way be affected by the functions of his office3) Not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government4) Not be qualified to run for any office in the election immediately succeeding their cessation from office

Powers and Duties jurisdiction of the Ombudsman over government-owned or controlled corporations, 3 Requisites:1) agency organized as a stock or non-stock corporation2) vested with functions relating to public needs, whether government or proprietary3) owned by the Government directly or through its instrumentalities, either wholly or, where applicable as in the case of stock corporations, to the extent of at least 51% of capital stock Special Prosecutor may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they come under the administrative supervision of the SC. Tanodbayan could review and reverse the findings of the City Fiscal and order him to withdraw certain charges, inasmuch as the President’s power of control is exercised not by the Secretary of Justice but by the Tanodbayan because the offense/s charged were allegedly committed by a public functionary in connection with his office.

81


For purposes of initiating a preliminary investigation before the Office of the Ombudsman, a complaint “in any form or manner” is sufficient. Ombudsman or his deputy is authorized to preventively suspend any officer or employee under his authority pending an investigation irrespective of whether such officer or employee is employed in the Office of the Ombudsman or in any other government agency. Whether evidence of guilt is strong to warrant preventive suspension is left to the determination of the Ombudsman. There is no need for preliminary hearing. Congress can, by statute, prescribe other powers, functions and duties to the Ombudsman. He may utilize the personnel of his office to assist in the investigation of the cases, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy Ombudsman for Military Affairs. Power to cite for contempt; exercised by the Ombudsman while conducting preliminary investigation because preliminary investigation is an exercise of quasi-judicial functions. Appeals shall be made to the CA in accordance with R43. “any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public official or employee. Power of the Ombudsman to investigate and to prosecute, as granted by law, is plenary and unqualified. The authority of the Ombudsman to investigate is not an exclusive authority, but rather a shared or concurrent authority with the Department of Justice Panel of Investigators, “in respect of the offense charged” It is not for the court to review the Ombudsman’s paramount decision in

prosecuting or dismissing a complaint filed before his office. Exception: grave abuse of discretion on the part of the Ombudsman in either prosecuting or dismissing a case before it is evident. Case law holds that the Court is loathe to interfere with the exercise by the Ombudsman of its powers. While the Office of the Ombudsman has the discretion to determine whether an information should be withdrawn and a criminal case should be dismissed, and to move for the withdrawal of such information or dismissal of a criminal case, the final disposition of the said motion and of the case is addressed to the sound discretion of the Sandiganbayan, subject only to the caveat that the action of the Sandiganbayan must not impair the substantial rights of the accused and the right of the people t due process of law. RA 1405 (Law on Secrecy of Bank Deposit) – before an in camera inspection of bank accounts may be allowed:1) there must be a pending case before a court of competent jurisdiction2) account must be clearly identified3) inspection limited to the subject matter of the pending case before the court4) bank personnel and account holder must be notified to be present during the inspection5) inspection may cover only the account identified in the pending case investigation being done by the Ombudsman is NOT one before a court of competent jurisdiction Ombudsman has no authority to directly dismiss a public officer from government service Can only recommend to the officer concerned the removal of a public officer or employee found to be administratively liable HOWEVER the refusal, without just cause, of any officer to comply with such an

82


order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action. Special Prosecutor Existing Tanodbayan (at the time of the adoption of the 1987 Constitution) shall be known as the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter provided by law, except those conferred to the Office of the Ombudsman.

Ill-gotten Wealth Right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel. Applies only to civil actions for recovery of ill-gotten wealth and not to criminal cases.

Restriction on Loans No loan, guaranty or other form of financial accommodation for any business purpose may be granted directly or indirectly by any government owned or controlled bank or financial institution to (during their tenure):1) President2) VP3) Members of the Cabinet4) Congress5) SC6) ConCom7) Ombudsman8) Any firm or entity in which they have controlling interest

Statement of Assets, Liabilities and Net Worth A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities and net worth.

Declaration shall be disclosed to the public in the manner provided by law in case of:1) President2) VP3) Members of the Cabinet4) Congress5) SC6) ConCom7) Other constitutional offices8) Officers of the armed forces of general or flag rank

Allegiance to the State and to the Constitution Any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

XIV. NATIONAL ECONOMY AND PATRIMONY

Goals1. equitable distribution of opportunities, income and wealth2. sustained increase in amount of goods and services, produced by the nation for the benefit of the people3. expanding productions as the key to raising the quality of life

For attainment of these goals, the State shall: Promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources and which are competitive in both domestic and foreign markets. State shall protect Filipino enterprises from unfair competition and trade practices.

Natural Resources

83


All lands of public domain, waters, mineral, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. Regalian Doctrine: all agricultural, timber and mineral lands are subject to the dominion of the State. Before any land may be classified from the forest group and converted into alienable or disposable land from agricultural or other purposes, there must be positive act from the Government. Absence of proof that property is privately owned, the presumption is that it belongs to the State. Any possession, no matter how lengthy, cannot ripen into ownership. And all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. Tasks of administering and disposing lands of public domain belongs to the Director of Lands and ultimately the Secretary of DENR. The classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President. In the absence of classification, the land remains unclassified public land until released and rendered open for disposition. Forest land is not capable of private appropriation and occupation in the absence of a positive act of the Government declassifying it into alienable and disposable.

Imperium: government authority possessed by the State, embraced in sovereignty and its capacity to own and acquire property.

Dominium: lands held by the State in its proprietary character. It may provide for the exploitation and use of lands and other natural resources, including their disposition, except as limited by the Constitution.

Citizenship Requirements1. Co-production, joint venture or production sharing agreements for exploration, development and utilization of natural resources Filipino citizens Corporations at least 60% of whose capital is Filipino-owned Agreements shall not exceed 25 years, renewable for another 252. Use and enjoyment of the nation’s marine wealth Exclusively to Filipino citizens Protect the rights of subsistence fishermen, especially of local communities to the preferential use of the communal marine and fishing resources, both inland and offshore. “Marginal Fisherman” – individual engaged in fishing whose margin of return or reward from his harvest of fish, as measured by existing price levels, is barely sufficient to yield a profit or cover the cost of gathering the fish. “Subsistence Fishermen” – catch yields but the irreducible minimum for his livelihood. LGC defined “marginal farmer or fisherman” - engaged in the subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products. Preferential right granted to them is not absolute.3. Alienable lands of public domain

Filipino citizens may acquire not more than 12 hectares by purchase, homestead or grant OR lease more than 500 hectares

84


Private corporation may lease not more than 1,000 hectares for 25 years, renewable for another 25 years4. Certain areas of investment (as Congress shall provide when national interest so dictates) Filipino citizens Corporations at least 60% of whose capital is Filipino-owned Congress may prescribe higher percentage of Filipino ownership Filipino First Policyo positive command which is complete in itself o needs no further guidelines or implementing rules or laws for its operationo per se enforceableo Filipinos should be preferred and when the Constitution declares that a right exists in certain specified circumstances, an action may be maintained to enforce this right.5. Franchise, certificate or authorization for the operation of a public utility Citizens of the Philippines Corporations at least 60% of whose capital is Filipino-owned Franchise, certificate or authorization shall not be exclusive nor for a period for more than 50 years, and shall be subject to amendment, alteration or repeal by Congress. All executive and managing officers must be Filipino citizens. No franchisee can demand or acquire exclusivity in the operation of a public utility. Congress does not have the exclusive power to issue such authorization also administrative bodies. Franchise for the operation of public utility does not require a franchise before one can own the facilities needed to operate a utility, so long as it does not operate them to serve the public. Public utility: business or service engaged in regularly supplying the public

with some commodity or service of public consequence. Implies public use and service. All broadcasting, whether radio or television, is licensed by the Government. They do not own the airwaves and frequencies and they are merely given he temporary privilege. A franchise is a privilege subject to amendment. Joint venture falls within the purview of association; if it wishes to engage in the business of operating a public utility, must comply with the 60-40% Filipino-foreign capitalization requirement.

Classification of Lands of Public Domain Lands of public domain are classified into:1. agricultural2. forest or timber3. mineral lands4. national parks Agricultural lands may further be classified by law according to the uses to which they may be devoted. Congress shall determine by law the size of the lands of the public domain which may be acquired, developed, held or leased and conditions therefore. The classification of public lands is a function of the executive branch of the Government – Director of the Land Management Bureau. The decision of the Director, when approved by the Secretary of the Department of Environment and Natural Resources as to questions of fact is conclusive upon the courts. Alienable lands of the public domain shall be limited to agricultural lands. Forest land cannot be owned by private persons. It is not registrable and possession thereof, no matter how lengthy, cannot convert it into private land, unless the land is

85


reclassified and considered disposable and alienable. Foreshore land is that part of the land which is between the high and low water, and left dry by the flux and reflux of the tides. It is part of the alienable and of the public domain and may be disposed of only by leased and not otherwise. Private corporations or associations may not hold such alienable lands of the public domain except by lease. It would cease to be public land only upon the issuance of the certificate of title to any Filipino citizen qualified to acquire the same. 1973 Constitution cannot impair vested rights. Where the land was acquired in 1962 when corporations were allowed to acquire lands not exceeding 1,024 hectares, the same may be registered in 1982. The 1987 Constitution prohibits private corporations from acquiring alienable lands of the public domain. Congress shall determine the specific limit of forest land and national parks, marking clearly their boundaries on the ground. The State shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well being.

The Stewardship Concept The use of property bears a social function, and all economic agents shall contribute to the common good, individuals and private groups, including corporations, cooperatives and similar collective organizations, shall have the right to own, establish and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. The State shall apply the principles of agrarian reform or stewardship, whenever

applicable, in the disposition or utilization of other natural resources. Including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farm workers in its own agricultural estates which shall be distributed to them in the manner provided by law.

Private Lands- Private lands shall be transferred or conveyed to individuals, corporations or associations qualified to acquire or hold lands of the public domain.- Exception: in cases of hereditary succession- Any sale or transfer in violation of the prohibition is null and void.- Being an alien, disqualified from acquiring and owning real property. Neither can petitioner recover the money he had spent for the purchase. Equity, as a rule, will follow the law, and will not permit to be done indirectly that which, because of public policy, cannot be done directly.- Action to recover the property sold filed by the former owner will lie, the pari delicto ruling having been abandoned.- The lease for 99 years with a 50-year option to purchase the property if and when Wong Heng would be naturalized is a virtual surrender of all rights incident to ownership and therefore invalid. (PNB vs. Lui She)- Land tenure is not indispensable to the free exercise of religious profession and worship. A religious corporation, controlled by non-Filipinos, cannot acquire and own lands even for a religious use or purpose. For a religious corporation sole to acquire lands, it must appear that at least

86


60% of the faithful or its members are citizens of the Philippines in order to comply with the citizenship requirement. This is so regardless of the citizenship of the incumbent inasmuch as a corporation sole is merely an administrator of the temporalities or properties titled in its name and for the benefit of its members.- Land sold to an alien which was later transferred to a Filipino citizen – or where the alien later becomes a Filipino citizen can no longer be recovered by the vendor because ether is no longer any public policy involved.- Exceptions to the Rule:1. Hereditary Succession Exception: testamentary disposition2. A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands Filipino citizen may acquire 5,000 square meters of urban land Filipino citizen may acquire 3,000 hectares of rural land May be used for residence, business and for other purposes.

3. Americans hold valid title to private lands as against private persons Titles to private lands acquired by such persons before such date (July 3, 1974) shall be valid as against private persons only) – Transitory Provision of the 1973 Constitution. Previous owner may no longer recover land from an American buyer who succeeded in obtaining title over the land. Only the State has the superior right to the land through the institution of escheat proceeding (as a consequence of the violation of the Constitution) or through an action for reversion (as expressly authorized under the Public Land Act with respect to lands which formerly formed part of the public domain).

Remedies to Recover Private Land from Disqualified Alien1. Escheat Proceedings2. Action for Reversion under Public Land Act The Director of Lands has the authority and the specific duty to conduct investigation of alleged fraud in obtaining free patents and the corresponding titles to alienable public lands. And if the facts warrant, to file the corresponding court action for the reversion of the land to the State. Imprescriptible. State, alone, which may institute reversion proceedings against public lands allegedly acquired through fraud and misrepresentation. Private parties are without legal standing at all question the validity of respondent’s title. Property in dispute is still part of the public domain, only the State can file suit for reconveyance of such public land. The State can be in estoppel by the mistakes or errors of its officials or agents.o Estoppel against the State is not favored; it may be invoked only in rare and unusual circumstances.o State may not be allowed to deal dishonorably or capriciously with its citizens.o State may be held in estoppel for irregular acts and mistakes of its officials.o Republic vs. CA, where the State failed to correct and recover the alleged increase in the land area of the titles issued, the prolonged inaction strongly militates against its cause, tantamount to laches.o Laches – failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence could or should have been done earlier.o The negligence or omission to assert a right within a reasonable time, warranting a

87


presumption that the party entitled to assert it either abandoned it or decline to assert it.

3. Action for recovery filed by the former Filipino owner, the pari delicto ruling having been abandoned, unless the land is sold to an American citizen prior to July 3, 1974 and the American citizen obtained title thereto.

Preference for Filipino Labor, etc.- The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

Practice of Profession- The practice of all profession shall be limited to Filipino citizens- Exception: in cases prescribed by law

Cooperatives- Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.- RA 6939: An Act Creating the Cooperative Development Authority- CDA is devoid of any quasi-judicial authority to adjudicate intra-cooperative disputes and, more particularly, disputes related to the election of officers and directors of cooperatives.- CDA may conduct hearings and inquiries in the exercise of its administrative functions.

Monopolies- Policy: the State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.- Monopoly – a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right to carry on a particular business or trade,

manufacture a particular article, or control the sale of a particular commodity.- Monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public.- Subjected to a higher level of State regulation.- Desirability of competition is the reason for the prohibition against restraint of trade.- The reason for the interdiction of unfair competition and the reason for the prohibition of unmitigated monopolies. - A market controlled by one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where honest-to-goodness competition will prevail.- Constitution enshrined free enterprise as a policy, it nevertheless reserves to the Government the power to intervene whenever necessary for the promotion of the general welfare.

Central Monetary Authority- Congress shall establish an independent central monetary authority, the members of whose governing board must be:1. natural-born2. known probity, integrity and patriotism3. majority of whom shall come from the private sector- The authority shall:1. provide policy direction in the areas of money banking and credit2. have supervision over the operations of banks 3. exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions- Until Congress otherwise provides, the Central Bank shall function as the central monetary authority.

88


XV. SOCIAL JUSTICE AND HUMAN RIGHTS

Policy Statement- 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 increment.- The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.- Pursuit to social justice cannot justify breaking the law.- The State’s solitude for the destitute and the have-nots does not mean it should tolerate usurpation of property, public or private.

Labor- The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.- It shall guarantee the rights of all workers to:1. self-organization2. collective bargaining and negotiations3. peaceful concerted activities, including the right to strike in accordance with law- They shall be entitled to:1. security of tenure2. humane conditions of work3. living wage - They shall also participate in policy and decision-making processes affecting their

rights and benefits as may be provided by law.- The State shall promote the principle of shared responsibility between the workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation and shall enforce their mutual compliance to foster industrial peace.- The State shall regulate the relations between workers and employers, recognizing the 1. right of labor to its just share in the fruits of production and 2. the right of enterprises to reasonable returns on investments and to expansion and growth.

- Employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages to pressure the Government to accede to their demands.- The ability to strike is not essential to the right to association and the right to sovereign to prohibit strikes or work stoppages was clearly recognized at common law.

Agrarian and Natural Resources Reform- Constitutionality of the Comprehensive Agrarian Reform Law.

Urban Land and Housing Reform- 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 underprivileged and homeless citizens in urban centers and resettlement areas.- It shall promote adequate employment opportunities.- State shall respect the rights of small property owners.- Urban or rural poor dwellers shall not be evicted nor their dwellings demolished,

89


Except: in accordance with law and in a just and humane manner.- No resettlement of urban or rural dwellers shall be undertaken without adequate consideration with them and the communities where they are to be located.

- Eviction of squatters and the demolition of their shanties shall be done in accordance with law does not mean that the validity and legality of demolition or eviction hinges on the existence of resettlement area designated or earmarked by the Government.- Judicial notice of the fact that urban reform has become a paramount task of Government in view o the acute shortage of decent housing in urban areas.- Section 19 of the LGC imposes certain restriction on the exercise of the power of eminent domain/- RA 7279 provides the order in which lands may be acquired for socialized housing.- Urban tenant’s right of first refusal (pre-emptive right), can be exercised only where the disputed land is situated in an area declared to be an area for priority development (APD) and an urban land reform zone (ULRZ).

Human Rights The Commission on Human Rights Composition1. Chairman2. 4 Members Qualifications1. natural-born2. majority of whom shall be members of the Bar Term of office and other disqualification and disabilities of the members shall be provided by law. The power to appoint the Chairman and members of the Commission is vested in the President, without need of confirmation by the Commission on Appointments.

CHR does not enjoy fiscal autonomy. It does not belong to the species of constituent commissions. Powers and Functions:1. jurisdiction or adjudicatory powers and not meant to be another court or quasi-judicial agencies in this country2. may investigate receive evidence make findings of fact as regards claimed human rights violations involving civil and political rights but fact-finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official3. cannot issue writs of injunction or a restraining order against supposed violators of human rights, not being a court of justice.

XVI. EDUCATION, SCIENCE AND TECHNOLOGY, ARTS CULTURE AND SPORTS

State Policy priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism accelerate social progress and promote total human liberation and development protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all.

National Medical Admission Test (NMAT) ensures quality education for future doctors and protect public health by making sure of the competence of future medical practitioners. Constitutional right of every citizen to select a profession or course of study subject to fair, reasonable and equitable admission and academic requirements.

90


It may be regulated pursuant to police power of the State to safeguard health, morals, peace, education, order, safety and general welfare of the people. Persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. Requirement that a school must first obtain government authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and shall satisfy minimum standards.

Constitutional Mandate for the State to Establish adequate and relevant education Free public elementary and high school education Scholarship grants and loan programs Out-of-school study programs Adult education

Constitutional Objectives of Education1. inculcate patriotism and nationalism2. foster love of humanity3. respect for human rights4. appreciation of the role of national heroes in the historical development of the country5. teach the rights and duties of citizenship6. strengthen ethical and spiritual values7. develop moral character and personal discipline8. encourage critical and creative thinking9. broaden scientific and technological knowledge10. promote vocational efficiency

Optional Religious Instruction- Option expressed in writing by parent or guardian- Public elementary and high schools- Within regular class hours

- Instructors designated or approved by religious authorities- Without additional cost to Government

Educational Institution- Ownership Solely by Filipino citizens or Corporations 60% Filipino-owned Exception: those established by religious groups or mission boards, but Congress may increase required Filipino equity participation.- Control and Administration Vested in Filipino citizen..- Alien Schools No educational institution shall be established exclusively for aliens, and no group of aliens shall compromise more than 1/3 of the enrolment in any school. Exception: schools for foreign diplomatic personnel and their dependents and for other foreign temporary residents.- Tax Exemptions all revenues and assets all grants, endowments, donations and contributions of non-stock, non-profit educational institution used directly, actually and exclusively for educational purposes

Highest Budgetary Priority to Education- merely directory

Academic Freedom enjoyed in all institutions of higher learning colleges, publicly or privately-owned Two Views:1. from the standpoint if the educational institution determine:1. who may teach2. what may be taught3. how it shall be taught4. who may be admitted to study

91


Freedom to determine whom to admit includes the right to determine whom to exclude or expel, as well as to impose lesser sanctions such as suspension. Right to freely choose their field of study subject to existing curricula, and to continue their course therein up to graduation, such right is subject to established academic and disciplinary standards laid down by the academic institution.2. from the standpoint of the members of the academe freedom of the teacher or research worker in higher institutions of learning to investigate and discuss the problems of his science and to express conclusions, whether through publication or in the instruction of students, without interference from political or ecclesiastical authority, or from the administrative officials of the institution in which he is employed, unless the methods are found to be incompetent or contrary to professional ethics. Widest latitude to innovate and experiment on the method of teaching which is most fitting to his students, subject only to the rules and policies of the University. Limitations1. dominant police power of the State2. social interests of the community “Termination of Contract” theory in Alcauz can no longer be used as a valid ground to deny readmission or re-enrollment to students who had led or participated in student mass actions against the school. The students do not shed their constitutionally-protected rights of free expression at the school games. The only valid grounds to deny readmission of students are:1. academic deficiency and2. breach of the school’s reasonable rules of conduct Minimum standards of procedural due process must be satisfied:

1. student must be informed in writing of the nature and cause of the accusation against them2. right to answer the charges against them, with the assistance of counsel, if desired3. informed of the evidence against them4. right to adduce evidence in their own behalf5. evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. It is within the sound discretion of the university to determine whether a student may be conferred graduation honors, considering that the student had incurred a failing grade in an earlier course she took in school. Profession Regulation Commission cannot interfere with the conduct of review that review schools and centers believe would best enable their enrollees to meet the standards required before becoming full-pledged public accountants. Prerogative of the school to provide standards for its teachers and to determine whether or not these standards have been met is in accordance with academic freedom and constitutional autonomy which give educational institutions the right to choose who should teach. Academic freedom was never meant to be unbridled license; it is a privilege which assumes the correlative duty to exercise it responsibly. Conferment of an honor or distinction was obtained through fraud, the University has the right to revoke or withdraw the honor or distinction conferred. The right does not terminate upon the graduation of the student.

Language National language Filipino

92


Purpose of communication and instruction Filipino, and until otherwise provided by law, English Regional languages auxiliary official languages in the regions and shall serve as ancillary media of instruction Spanish and Arabic promoted on voluntary and optional basis Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic and Spanish.

XVII. THE FAMILY

XVII. GENERAL PROVISIONS

Flag Red, white and blue A sun and 3 stars As consecrated and honored by the people and recognized by law.

Name Congress may, by law, adopt: a new name for the country a national anthem or a national seal which shall be truly reflective and symbolic of the ideals, history, and traditions of the people. Law shall take effect only upon its ratification by the people in a national referendum.

Armed Forces of the Philippines Composed of a citizen armed force Which shall undergo military training And serve, as may be provided by law.

All members of the armed forces shall take an oath or affirmation to uphold and defend the Constitution Professionalism and Adequate Remuneration shall be a prime concern of the State.

Insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity except to vote. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to any civilian position. Laws on retirement of military officers shall not allow extension of their service. The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.

National Police Force The State shall establish and maintain one police force, which shall be: National in scope and Civilian in character. To be administered and controlled by a national police commission. Authority of local executives over the police units in their jurisdiction shall be provided by law. RA 6975 established the PNP under a reorganized department, DILG.

Mass Media and Advertising Industry Mass Media Ownership limited to CITIZENS or CORPORATIONS WHOLLY-OWNED and MANAGED by such citizens. Congress shall regulate or prohibit monopolies in commercial mass media. Advertising Industry Only FILIPINO CITIZENS or CORPORATIONS or ASSOCIATIONS at least 70% FILIPINO-OWNED shall be allowed to engage in the advertising industry. ALL EXECUTIVES and MANAGING OFFICERS of such entities must be CITIZENS of the Philippines. Advertising entities affected shall have 5 years from the ratification of the

93


Constitution to comply on GRADUATED and PROPORTIONATE basis with the minimum Filipino ownership.

XIX. TRANSITORY PROVISION

Elections- First elections of members of Congress 2nd Monday of May 1987- First local elections to be determined by President- Synchronization of elections: Members of Congress and the local officials first elected shall serve until noon of June 30, 1992. 6-year term of the incumbent President and Vice-President elected in February 7, 1986 elections is extended until noon of June 30, 1992. Elections for President and Vice-President, Senators, Members of the House of Representatives and local office must be synchronized in 1992.

Existing Laws and Treaties- All existing laws, decrees, Eos, proclamations, letters of instructions, and other executive issuances not inconsistent with the Constitution shall remain operative until amended, repealed or revoked.- All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate.

Reserved Executive Powers- Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representative.- Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units

compromising the Metropolitan Manila Authority.

Career Civil Service- Career civil service employees separated from the service not for cause but as a result of the reorganization is entitled to appropriate separation pay and to retirement and other benefits according to law in force at the time of their separation. In lieu of separation pay, at the option of the employees, they may be considered for employment in the government. Apply to career officers whose resignation, tendered in line with the existing policy, had been accepted.

Sequestration- Authority to issue sequestration or freeze order relative to the recovery of ill-gotten wealth shall remain operative for not more than 18 months after the ratification of this Constitution. Congress may extend such period.- Sequestration or freeze orders shall be issued upon showing of a prima facie case. - The corresponding judicial action shall be filed within 6 months from ratification of this Constitution, or, if issued after ratification within 6 months from such issue.- The order is deemed automatically lifted if no judicial action or proceeding is commenced.- No particular description or specification of the kind or character of “judicial action or proceeding” much less an explicit requirement for the impleading of the corporations sequestered or of the ostensible owners of the property suspected to be ill-gotten.- The only qualifying requirement in the Constitution is that the action or proceeding be filed for orders of sequestration, freezing or provisional take-over.- The action or proceeding must concern or involve the matter of sequestration,

94


freezing or provisional take-over of specific property – and should have, as objective, the demonstration by competent evidence that the property is indeed “ill-gotten wealth” over which the government has a legitimate claim for recovery and other relief.- Mere issuance of the writ of sequestration, without the corresponding service, within the 18-month period, does not comply with the constitutional requirement.- Lifting of the sequestration orders does not ispo facto mean that sequestrated property are not ill-gotten. The effect of the lifting will merely be the termination of the role of government as conservator of the property.- Writ of sequestration may be issued only upon authority of at least 2 PCGG Commissioners.- PCGG may not validly delegate its authority to sequester.- PCGG cannot perform acts of strict ownership of sequestrated property. PCGG being a mere CONSERVATOR. Exception: case of take-over of a business belonging to the government or whose capitalization comes from public funds but which landed in private hands.- Sequestration does not automatically deprive the stockholders of their right to vote their shares of stock. Until the main sequestration case is resolved, the right to vote the sequestered shares of stocks depends on the 2-tiered tests:1. whether there is prima facie evidence showing that the said shares are ill-gotten and thus belong to the State2. whether there is an immediate danger of dissipation thus necessitating their continued sequestration and voting by PCGG while the main issue pends with the Sandiganbayan. Does not apply in cases involving funds of “public character” The Government is granted the authority to vote said shares:

1. where government shares are taken over by private persons or entities who/which registered them in their own names and2. where the capitalization or shares that were acquired by public funds somehow landed on private hands.- Sandiganbayan can review the validity of sequestration orders.- Absence of express prohibition, the rule on amicable settlement or compromise agreements in the Civil Code is applicable to PCGG cases before the Sandiganbayan.- PCGG’s authority to enter into compromise agreements involving ill-gotten wealth and to grant immunity in civil and criminal cases, without need of prior Congressional approval is sustained.- Penal violations to fall within the jurisdiction of the PCGG:1) it must relate to ill-gotten wealth;2) of the late President Marcos, his immediate family, relatives, subordinates, and close associates;3) who took advantage of their public office and/or power, authority, influence, connections or relationships.- Those not fulfilling the above elements are not within the authority of the PCGG but within the jurisdiction of the Ombudsman and other duly authorized investigating agencies.- The invalid preliminary investigation did not impair the validity of the criminal information or otherwise render them defective; much less did not affect the jurisdiction of the Court. The only effect is the imposition on the latter of the obligation to suspend the proceedings and to require the holding of preliminary investigation.- A mere allegation in the anti-graft complaint that the accused is a relative of then President Marcos will not suffice to enable the PCGG to take cognizance of the case. There must, in addition, be a showing that the accused has unlawfully accumulated

95


wealth by virtue of such close relation with the former President.- Fact of sequestration alone did not automatically oust the RTC of its jurisdiction.- In order that the Sandiganbayan’s exclusive jurisdiction may be invoked, the PCGG must be a party to the suit. - The Office of the Solicitor General may validly call the PCGG for assistance and ask it to respond to a motion for a bill of particulars, considering that PCGG has the complete records of the case and, being in charge of the investigation, is more knowledgeable and better informed.

GENERAL PRINCIPLES

Principles of Local AutonomyConstitutional Provisions

The State shall ensure the local autonomy of local governments The territorial and political subdivisions shall enjoy local autonomy The principle of local autonomy under the 1987 Constitution simply means “DECENTRALIZATION”. It does not make the local government sovereign within the state or an imperium in iperio. Autonomy is either:1. decentralization of administration no valid constitutional challenge delegation of administrative powers to broaden the base of governmental power.2. decentralization of power abdication by the national government of political power in favor of the local government Congress retains control over the LGUs although significantly reduced under the Constitution. National legislature is still the principal of LGUs which cannot defy its will or modify or violate it. Power to tax of LGUs which cannot be withdrawn by mere statute.

Any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority. Exercise of local autonomy remains subject to:1. power of control by Congress and2. general supervision by the President Scope of President’s supervisory powers: President can only interfere in the affairs and activities of a local government unit if he finds that the latter had acted contrary to law; Cannot interfere in local affairs as long as the concerned local government unit acts within the parameters of the law and the Constitution; Otherwise, violates the principle of local autonomy and the doctrine of separation of powers. Liga ng mga Barangay is not subject to the control by the Chief Executive or his alter ego.

Corporation Artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence.

Classification1. Public: organized for the government of a portion of a state.2. Private: formed for some private purpose.3. Quasi-Public: private corporation that renders public service or supplies public wants.

Criterion to determine whether corporation is public Relationship of the corporation to the State; if it is created by the State as its own agency to help the State in carrying out its

96


governmental function then it is public. Otherwise, it is private.

Classes of public corporations1. Quasi-corporation – created by the state for a limited purpose.2. Municipal Corporation – body politic and corporate constituted by the incorporation of the inhabitants for the purpose of local government.

Municipal CorporationElements:

1. Legal creation or incorporation Law creating or authorizing the creation or incorporation of a municipal corporation.2. Corporate name Sanggunian Panlalawigan may change the name of component cities or municipalities:1. consultation with Philippine Historical Institute2. effective upon ratification in a plebiscite3. Inhabitants People residing in the territory.4. Territory Land mass where the inhabitants reside Together with external and internal waters and the airspace above.

Dual Nature and Functions Exercise powers as a political subdivision of the National Government and As a corporate entity representing the inhabitants of the territory.1. Public or Governmental – acts as agents of the State, for the government of the territory and the inhabitants.2. Private or Proprietary – acts as agents of the community in the administration of local affairs. Acts as a separate entity for its own purposes and not as a subdivision of the state.

Roles of Municipal Corporations in the Philippines

The territorial and political subdivisions of the Philippines are the PROVINCES, CITIES, MUNICIPALITIES and BARANGAYS. There shall be AUTONOMOUS REGIONS in MUSLIM MINDANAO and the CORDILLERAS.

Provinces Cluster of municipalities or municipalities and component cities. Dynamic mechanism for developmental processes and effective governance of LGUs within its territorial jurisdiction. City More urbanized and developed barangays General purpose government for the coordination and delivery of basic, regular and direct services. Effective governance of the inhabitants within its jurisdiction. Muncipality Group of barangays General purpose government for the coordination and delivery of basic, regular and direct services. Effective governance of the inhabitant within its jurisdiction. Barangay Basic political unit Primary planning and implementing unit of government policies, plans, programs, projects and activities in the community. Forum where collective views of the people may be expressed. Where disputes may be amicably settled. Autonomous Regions in Muslim Mindanao and the Cordilleras Datu Firdausi Abbas vs. COMELEC: act establishing the Autonomous Regional Government of Muslim Mindanao was held valid. Cordillera Broad Colaition vs. Commission on Audit: exercise of legislative powers, creating the Cordillera Administrative Region was held valid. It

97


prepared the groundwork for autonomy and the adoption of the organic law. Ordillo vs. COMELEC: sole province of Ifugao which, in the plebiscite, alone voted in favor RA 6766, cannot validly constitute the Autonomous Region of the Cordilleras. Special Metropolitan Political Subdivision Congress may by law create special metropolitan political subdivisions subject to a plebiscite. The component cities and municipalities shall retain their basic autonomy Entitled to their own local executives and legislative assemblies Jurisdiction of the metropolitan authority shall be limited to basic services requiring coordination.

Creation and Dissolution of Municipal Corporations

Authority to Create LGU may be created, divided, merged, abolished or its boundaries substantially altered either by:1. law enacted by Congress – provinces, city, municipality or any other political subdivision2. ordinance passed by Sangguniang Panlalawigan or Sangguniang Panlungsod – barangay

Requisites/Limitation on Creation or Conversion No province, city, municipality or barangay may be created, divided, merged, abolished or its boundary substantially altered, EXCEPT1. in accordance with criteria established in the LGC2. subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected Plebiscite Requirement: conducted by the 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. Plebiscite for creating a new province should include the participation of the residents of the mother province in order to conform to the constitutional requirement. Where the law authorizing the holding of a plebiscite is unconstitutional, the Court cannot authorize the holding of a new one. The fact that the plebiscite which the petition sought to stop had already been held and officials of the new province appointed does not make the petition moot and academic, as the petition raises an issue of constitutional dimensions. Section 7, RA 7160 – verifiable indicators of viability and projected capacity to provide services:1. Income Sufficient, based on acceptable standards To provide for all essential government facilities and services and special functions Commensurate with the size of its population Average annual income for the last 2 consecutive years based on 1991 constant prices:

1. Municipality: 2,500,0002. City 100,000,0003. Highly Urbanized City: 50,000,0004. Province: 20,000,000 Internal Revenue Allotment should be included in the computation of the average annual income of the municipality. (for purposes of determining whether the municipality may be validly converted into a city) For conversion to cities, the municipality’s income should not include the IRA.2. Population Total number of inhabitants within the territorial jurisdiction of the LGU concerned. Required minimum population:

98


1. Barangay: 2,000 inhabitants; except in Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where the requirement is 5,000 inhabitants2. Municipality: 25,0003. City: 150,0004. Highly Urbanized City: 200,0005. Province: 250,0003. Land Area Contiguous, unless it comprises 2 or more islands or is separated by a LGU independent of the others Properly identified by metes and bounds with technical descriptions Sufficient to provide for such basic services and facilities to meet the requirements of its populace. Area Requirements:1. Municipality: 50 sq. kms.2. City: 100 sq. kms.3. Province: 2,000 sq. kms. Compliance with the foregoing indicators shall be attested to by the Department of Finance, the National Statistics Office and the Lands Management Bureau of the Department of Environment and Natural Resources. Requirement that the territory of the newly-created local government units be identified by metes and bounds is intended to provide the means by which the area of the local government unit may be reasonably ascertained. Territorial jurisdiction of the newly created city may be reasonably ascertained – by referring to common boundaries with neighboring municipalities – then the legislative intent has been sufficiently served. Other constitutional limitations: Bill of Rights

Beginning of Corporate Existence

ELECTION and QUALIFICATION of its Chief Executive and a majority of the members of its sangguinan. UNLESS some other time is fixed therefore by the law or ordinance creating it.

Division and Merger, Abolition of LGUs Division and Merger comply with same requirements, provided that such division shall not reduce the income, population or land area of the local government unit/s concerned to less than the minimum requirements prescribed provided, further, that the income classification of the original local government unit/s shall not fall below its current income classification prior to the division. Abolition LGU may be abolished when its income, population or land area has been irreversibly reduced to less than the minimum standards. Law or ordinance abolishing a LGU shall specify the province, city, municipality or barangay with which the local government unit sought to be abolished will be incorporated or merged.

De Facto Municipal CorporationRequisites:

1. Valid law authorizing incorporation2. Attempt in good faith to organize under it3. Colorable compliance with the law4. Assumption of corporate powers Not de facto municipal corporations, because there was no law authorizing incorporation.

Attack Against Invalidity of Incorporation No collateral attack Inquiry into the legal existence of a municipal corporation is reserved to the state in a proceeding for quo warranto or other direct proceeding.

99


Rule is applicable only when the municipal corporation is at least a de facto municipal corporation

The Local Government Code Effectivity: January 1, 1992; after its complete publication in at least 1 newspaper of general circulation. Scope of Application: all provinces, cities, municipalities, barangays and other political subdivisions as may be created by law and to officials, offices or agencies of the National Government.

Declaration of Policy1. Territorial and political subdivision of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.2. Ensure accountability of LGUs through the institution of effective mechanisms of recall, initiative and reference.3. Require all national agencies and offices to conduct periodic consultations with appropriate LGUs, non-governmental and people’s organizations and other concerned sectors of the community before any project or program is implemented in their respective jurisdiction.

Rules of Interpretation1. Any provision on a power of a LGU shall be liberally interpreted in its favor; in case of doubt, any question shall be resolved in favor of devolution of power.2. Any tax ordinance or revenue measure shall be construed strictly against the LGU enacting it and liberally in favor if the taxpayer. 3. Any tax exemption, incentive or relief granted by any LGU shall be construed strictly against the person claiming it.4. The general welfare provision shall be liberally interpreted to give more powers to

LGUs in accelerating economic development and upgrading the quality of life for the people in the community.5. Rights and obligations existing on the date of effectivity of this Code and arising out of contracts or any other source of prestation involving a LGU shall be governed by the original terms and conditions of said contracts or the law force at the time of such rights were vested.6. In the resolution of controversies arising under this Code where no legal provision of jurisprudence applies, resort may be had to the customs and traditions in the place where the controversies take place.

II. GENERAL POWERS AND ATTRIBUTES OF LOCAL GOVERNMENT UNITS

Powers in General

Sources1. Philippine Constitution2. Statutes3. Charter4. Doctrine of the right of self-government

Classification1. express, implied, inherent2. public, governmental, private or proprietary3. intramural, extramural4. mandatory, directory, ministerial, discretionary

Execution of powers1. statute prescribes the manner of exercise – the procedure must be followed2. statute is silent – LGUs have discretion to select reasonable means and methods of exercise

Governmental Powers1. General Welfare2. Basic Services and Facilities

100


3. Power to Generate and Apply Resources4. Eminent Domain5. Reclassification of Lands6. Closure and Opening of Roads7. Local Legislative Power8. Authority over Police Units

General Welfare Exercise powers expressly granted, necessarily implied, and powers necessary, appropriate or incidental for its efficient and effective governance and those which are essential to the promotion of the general welfare w/ respective territorial jurisdiction, 1. preservation and enrichment of culture2. promote health and safety3. enhance the right of the people to a balanced ecology4. encourage and support the development of appropriate and self-reliant scientific and technological capabilities5. improve public morals6. enhance economic prosperity and social justice7. promote full employment among its residents8. maintain peace and order9. preserve the comfort and convenience of their inhabitants general welfare clause – statutory grant of police power to LGUs Limitations1. exercisable only within territorial limits EXCEPT for protection of water supply2. Equal protection clause3. Due process clause (means employes are reasonably necessary and not unduly oppressive for the accomplishment of the purpose)4. not be contrary to the Constitution and the laws. Prohibited activities cannot be legalized in the guise of regulation. Activities allowed by law cannot be prohibited, only regulated.

LGU may close a bank for failure to secure the appropriate mayor’s permit and business licenses. LGU may not regulate the subscriber rate by CATV operators within its territorial jurisdiction – jurisdiction of NTC; This does not mean that LGU cannot prescribe regulations over CATV operators. Ordinance prohibiting the operation of casino is invalid for being contrary to the Charter of PAGCOR (PD1869) Mayor authorized to issue permits and licenses for the holding of activities for any charitable or welfare purposes. LLDA which has exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay Ordinance is not unconstitutional merely because it incidentally benefits a limited number of persons – the support for the poor has long been an accepted exercise of the police power in the promotion of the common good. Municipality cannot grant exclusive fishing privileges without prior public bidding and for a period of more than 5 years – violates Fisheries Law. Permits to operate cockpits – mayor Ordinance prohibiting operation of night-clubs is invalid – prohibitory and not mere regulatory

Basic Services and Facilities- Endeavor to be self-reliant- Continue exercising the powers and discharge the duties and functions currently vested upon them- Discharge the functions and responsibilities of national agencies and others devolved upon them- Exercise such other powers and discharge such other functions as are necessary, appropriate or incidental to efficient and effective provision of the basic services and facilities.

101


- PUBLIC WORKS and INFRASTRUCTURE PROJECTS and other FACILITIES, PROGRAMS and SERVICES FUNDED BY THE NATIONAL GOVERNMENT are NOT covered under Section 17 EXCEPT where the LGU is duly designated as the implementing agency for such projects, facilities, programs and services.- Devolution: act by which the national government confers power and authority upon various LGUs to perform specific function and responsibilities, Includes the transfer of assets, equipments, records and personnel of national agencies and offices to LGUs Regional offices of national agencies shall be phased out within 1 years from approval of Code. Career regional director which cannot be absorbed by the LGU shall be retained by the national government w/o diminution.

Power to Generate and Apply Resources Establish an organization that shall be responsible for the efficient and effective implementation of their development plans, programs, objectives and priorities To create their own sources of revenue To levy taxes, fees and charges which shall accrue exclusively to their own use and disposition and which shall be retained by them To have a just share in the national taxes which shall be automatically and directly released to them without need of any further action To have an equitable share in the proceeds from the utilization and development of the national wealth and resources with their respective territorial jurisdictions Develop, lease, encumber, alienate or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and

assets for productive, developmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals. LGUs have no power to tax instrumentalities of the National Government, e.g. PAGCOR Fundamental Principles governing the exercise of taxing and other revenue-raising powers of LGUs1. Taxation shall be uniform in all LGUs2. Taxes, fees, charges and other impositions shall be equitable based as far as practicable on the taxpayer’s ability to pay; levied and collected only for public purpose; not unjust, excessive, oppressive or confiscatory; and not contrary to law, public policy, national economic policy or in restrain of trade;3. collection of taxes, fees, charges and other impositions shall not be left to any private person4. revenue collected shall inure solely to the benefit and be subject to the disposition by the LGU, unless specifically provided herein5. each LGU shall evolve a progressive system of taxation. Exercise by LGU of the power to tax is ordained by the Constitution; only guidelines and limitations that may be established by Congress can define and limits such power of local governments. Secretary of Justice can review the constitutionality or legality of tax ordinance – and if warranted, revoke it on either grounds Exemption may be withdrawn at the pleasure of the taxing authority. Exception: where the exemption was granted to private parties based on material consideration of a mutual nature, which then

102


becomes contractual and is covered by the non-impairment clause of the Constitution. Fundamental Principles governing financial affairs, transactions and operations of the local government:1. no money shall be paid out of the local treasury EXCEPT in pursuance of appropriation ordinance or law2. local government funds and monies shall be spent solely for public purpose3. local revenue is generated only from sources expressly authorized by law or ordinance and collection shall at all times be acknowledged properly4. all monies officially received by a local government officer in any capacity shall be accounted for as local funds unless otherwise provided by law5. 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 received6. every officer of the LGU whose duties permit or require the possession or custody of local funds shall be properly bonded and such officer shall be accountable and responsible for said funds and for safekeeping7. local governments shall formulate sound financial plans and the local budgets shall be based on functions, activities and projects in terms of expected results8. local budget plans and goals shall, as far as practicable, be harmonized with national development plans, goals, strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources9. local budgets shall operationalize approved local development plans10. LGUs shall ensure that theirs respective budget incorporate the requirements of their component units and provide for equitable allocation of resources among those

11. national planning shall be based on local planning 12. fiscal responsibility shall be shared by all those exercising authority over financial affairs, transactions and operations of the LGUs13. the LGU shall endeavor to have a balanced budget in each fiscal year of operation

Eminent Domain- Through chief executive and acting pursuant to an ordinance - For public purpose/use/welfare, for the benefit of the poor and landless- Payment of just compensation- Valid and definite offer has been previously made to the owners and such offer was not accepted- LGU may immediately take possession:1. upon filing of the expropriation and2. making a deposit with the proper court of at least 15% of the FMV of the property based on current tax declaration of the property- Amount to be paid for the property shall be determined by proper court based on FMV at the time of TAKING of the property.- Additional Limitations1. exercised by local chief executive, pursuant to VALID ordinance2. public use or purpose or welfare, for the benefit of the poor and landless3. after valid and definite offer has been made to and not accepted by the owner- Power of eminent domain is expressly granted to the municipality under the LGC- What is required by law is an ORDINANCE, not a resolution. Ordinance is a law while a resolution is merely a declaration of sentiment or opinion of a law-making body on a specific matter 3rd reading is needed for an ordinance, not for a resolution unless decided otherwise

103


by a majority of the members of the Sanggunian

Reclassification of Lands- City/municipality through ordinance passed after conducting public hearings - Authorize reclassification of agricultural lands - And provide for the manner of their utilization/disposition- Grounds:1. land ceases to be economically feasible and sound for agricultural purposes as determined by Department of Agriculture2. land shall have substantially greater economic value for residential, commercial or industrial purposes, as determined by the sanggunian- Reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance:1. highly urbanized cities and independent component cities: 15%2. component cities and 1st to 3rd class municipalities: 10%3. 4th to 6th class of municipalities: 5% Provided that agricultural land distributed to land reform beneficiaries shall not be affected by such reclassification.

Closure and Opening of Roads- Pursuant to an ordinance- Permanently or temporarily close or open any road, alley, park or square falling within its jurisdiction- Provided, in case of permanent closure, ordinance must be approved by at least 2/3 of all members of the sanggunian and when necessary, an adequate substitute for the public facility shall be provided.- Additional limitations:1. adequate provision for the maintenance of public safety2. property may be used or conveyed for any purpose for which other real property

may be lawfully used or conveyed but no freedom parks shall be closed permanently without provision for its transfer or relocation to a new site.3. temporary closure may be made during an actual emergency, fiesta celebration, public rallies, etc.- Municipality has the authority to:1. prepare and adopt a land use map2. promulgate zoning ordinance3. close any municipal road- provincial roads and city streets are property for public use and under absolute control of Congress; they are outside commerce of man and cannot be disposed to private persons- Power to vacate is discretionary on the Sanggunian- When properties are no longer intended for public use, the same may be used or conveyed for any lawful purpose and may even become patrimonial and subject to common contract.- City Council has the authority to determine whether or not a certain street is still necessary for public use.

Local Legislative Power Exercised by local sanggunian Products of legislative action1. ordinance – prescribes permanent rule of conduct2. resolution – temporary character; expresses sentiment Requisites:1. not contravene the Constitution or statute2. must not be unfair or oppressive3. must not be partial or discriminatory4. must not prohibit but regulate trade5. must not be unreasonable6. must be general in application and consistent with public policy Approval of Ordinances – passed by SANGGUNIANG PANLALAWIGAN, SANGGUNIANG PANLUNGSOD,

104


SANGGUNIANG BAYAN shall be approved by:1. the local chief executive, affixing his signature on each and every page2. local chief executive vetoes the same and the veto is overridden by 2/3 vote of all the members of the sanggunian. The local chief executive may veto only once. Grounds:1. ultra vires2. prejudicial to the public welfare He may veto any particular item/s of an:1. appropriation ordinance2. ordinance/resolution adopting a development plan and public investment program3. ordinance directing the payment of money or creating liability The veto shall not affect the item/s not objected to. The veto shall be communicated by the local chief executive to the sanggunian w/in 15 days in case of a province w/in 10 days in case of a municipality Otherwise, the ordinance shall be deemed approved, as if signed Grant of veto power accords the Mayor the discretion whether or not to approve the resolution… signature on the resolution is NOT ministerial duty of the Mayor. Ordinance enacted by the sangguniang barangay shall, upon approval by a majority of all its members, be signed by the punong barangay no veto power. Review by Sangguniang Panlalawigan w/in 3 days from approval, the secretary of the sangguniang panlungsod (in component cities) or sangguniang bayan shall forward to the sangguniang panlalawigan for review copies of approved ordinances and resolutions. Sangguniang panlalawigan shall review the same w/in 30 days If it finds that it is beyond the power of the sangguniang panlungsod/sangguniang

bayan, it shall declare the ordinance/resolution invalid. If no action is taken w/in 30 days, it is presumed consistent w/ law and valid. Review of Barangay Ordinance w/in 10 days from enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan for review. If the reviewing sanggunian finds that it is inconsistent with law or city or municipal ordinances, the sangguniang concerned, shall within 30 days return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment or modification. The effectivity of the ordinance is suspended. If no action is taken by the reviewing sangguinan within 30 days, the ordinance is deemed approved. Enforcement of Disapproved Ordinance/Resolutions Attempt to enforce an ordinance or resolution approving the local development plan and public investment program, after disapproval, shall be sufficient ground for the suspension or dismissal of the official or employee concerned. Effectivityo Unless otherwise stated in the ordinance/resolution, the same shall take effect AFTER 10 DAYS from the DATE A COPY IS POSTED IN THE BULLETIN BOARD at the entrance of the provincial capitol or city, municipal or barangay hall, and in at least 2 other conspicuous places in the LGU.o Gist of all ordinance W/ PENAL SANCTIONS shall be PUBLISHED in a newspaper of general circulation within the province where the local legislative body belongs; absence of newspaper of general circulation, POSTING shall be made in all

105


municipalities and cities of the province where the sanggunian of origin is situated.o In highly urbanized and independent component cities, the main features of the ordinance or resolution duly enacted shall, POSTED, PUBLISHED once in a local newspaper of general circulation within the city; if there is no such newspaper within the city, then PUBLICATION shall be made in any newspaper of general circulation.Authority over Police Units As may be provided by law.

Corporate Powers- LGUs shall enjoy full autonomy in the exercise of their proprietary functions and in the management of their economic enterprises

1. Continuous succession in its corporate name2. To sue and be sued3. To have and use a corporate seal4. To acquire and convey real or personal property5. Power to enter into contracts6. To exercise such other powers as are granted to corporations, subject to limitations provided in the Code and other laws

Continuous succession in its corporate name

To sue and be sued Suit is commenced by the LOCAL EXECUTIVE, upon authority of the SANGGUINIAN except when the CITY COUNCILORS, by themselves and as representatives of or on behalf of the City bring the action to prevent unlawful disbursement of City funds. Municipality cannot be represented by a private attorney. Only the Provincial Fiscal or the Municipal Attorney. This is mandatory.

Exception: when the Provincial Fiscal is disqualified to represent it and the fact of disqualification appears on record. Fiscal’s refusal to represent the municipality is not a legal justification. The Municipality should request DOJ Secretary to appoint an Acting Provincial Fiscal The legality of the representation of an unauthorized counsel may be raised at any stage of the proceeding. Municipal Attorney may validly adopt the work already performed by a private lawyer provided that no injustice is committed against the adverse party and that no compensation has been paid to the private counsel.

To have and use a corporate seal Use, modify or change corporate seal Any change shall be registered with DILG

To acquire and convey real or personal property LGU may acquire real or personal, tangible or intangible property in any manner allowed by law. LGU may only alienate patrimonial property, upon proper authority Absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State, thus, governmental or public property. Town plazas are properties of public domain; they may be occupied temporarily but only for the duration of an emergency Public Plaza is beyond the commerce of man and cannot be the subject of lease or other contractual undertaking Public streets or thoroughfares are property for public use, outside the commerce of man and may not be the subject of lease or other contracts Procurement of supplies is made through public competitive bidding o Exception: amount is minimal

106


Power to enter into contracts Requisites of Valid Municipal Contracts1. LGU has the express, implied or inherent power to enter into the particular contract2. The contract is entered into by the proper department, board, committee, officer, or agent.o Unless otherwise provided, no contract may be entered into by the local chief executive without prior authorization by the sangguinian concerned.3. comply with substantive requirements4. comply with formal requirements Ultra Vires Contracts: contracts entered into without compliance with first and third requisites ultra vires and void. Cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is non-compliance with the 2nd and/or 4th requisite. Does not provide that the absence of an appropriation ordinance ipso facto makes a contract entered into by a LGU null and void. Public funds may be disbursed not only pursuant to an appropriation law, but also pursuant of other specific statutory authority. Police power prevails over non-impairment clause. Breach of contractual obligations – city liable for damages Authority to negotiate and secure grants Local chief executive upon authority of the sangguinian Negotiate and secure financial grants or donations in kind In support of the basic services and facilities in Section 17 From local and foreign assistance agencies Without necessity of securing clearance or approval from any department, agency, or office of the national government or from any higher LGU

Provided, projects financed by such grant or assistance with national security implications shall be approved by the national agency concerned.

To exercise such other powers as are granted to corporations, subject to limitations provided in the Code and other laws

III. MUNICIPAL LIABILITY

Rule: LGUs and their officials are NOT exempt from liability for DEATH or INJURY to persons or DAMAGE to property

Specific Provisions Making LGUs liable:1. Article 2189, CC: The LGU is liable in damages for death or injuries suffered by reason of the DEFECTIVE CONDITION of roads, streets, bridges, public buildings and other public works. Attaches even if the road does not belong to the LGU, provided that the City exercises control or supervision over said road.2. Article 2180, CC: The State is responsible when it acts through special agents3. Article 34, CC: The LGU is subsidiarily liable for damages suffered by a person by reason of the FAILURE or REFUSAL of a member of the POLICE FORCE to render aid and protection in case of danger to life and property.

Liability for Tort – decisions PRIOR to LGC1. if a LGU is engaged in GOVERNMENTAL functions, it is NOT liable2. if a LGU is engaged in proprietary function, it is liable City is liable for the tortuous acts of its employees under the principle of respondeat superior

107


3. Liability for illegal dismissal of employee Absent proof of malice or bad faith which attended the illegal dismissal – cannot be held personally accountable Municipal corporation, whether or not included in the complaint for recovery of back salaries due to wrongful removal from office is liable4. Local officials may be held personally liable Acted beyond the scope of their authority and with bad faith Must be sued in their personal capacity When they act maliciously and wantonly and injure individuals rather than discharged a public duty, they are personally liable.

Liability for Violation of the Law1. closed part of a municipal street without indemnification liable for damages2. non-payment of minimum wage to employees3. refusal to abide by the TRO

Liability for Contracts1. Rule: A municipal corporation, like an ordinary person, is liable on a contract it enters into, provided that the contract is intra vires. If the contract is utra vires, the municipal corporation is not liable.2. a private indivisual who deals with a municipal corporation is imputed constructive knowledge of the extent of the power o authority of the municipal corporation to enter into contracts.3. ordinarily, estoppel does not lie against the municipal corporation.4. Doctrine of Implied Municipal Liability: a municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract.

Applies to all cases where money or property of a party is received under such circumstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same. Cannot set up plea that it is ultra vires but still retain the benefits. EStoppel cannot be applied against a municipal corporation in order to validate a contract which the municipal corporation has no power to make or which it is authorized to make only under prescribed limitations or in a prescribed mode or manner – even if the municipal corporation has accepted benefits. If a suit is filed against a local official which could result in personal liability, the latter may engage the services of private counsel.

IV. LOCAL OFFICIALS

Provisions applicable to elective and appointive local officials1. Prohibited Business and Pecuniary Interest Unlawful for any local government official/EE, directly or indirectly, to:1. engage in any business transaction with the LGU which he is an official or employee or over which he has the power of supervisions2. hold such interest in any cockpit or other games licensed by the LGU3. purchase any real estate or other property forfeited in favor of the LGU for unpaid taxes or by virtue of legal process at the instance of LGU4. be a surety for any person contracting or doing business with the LGU for which a surety is required5. possess or use any public property of the LGU for private purpose6. prohibitions and inhibitions prescribed in RA 6713

108


2. Practice of Profession1. GOVERNORS, CITY and MUNICIPAL MAYORS are prohibited from practicing their profession or engaging in any occupation other than the exercise of their function.2. SANGGUNIAN MEMBERS may practice their profession, engage in any occupation, or teach in schools EXCEPT during session hours. Provide that those who are also MEMBERS of the BAR shall NOT:1. appear as counsel before any court in any civil case wherein the LGU is the adverse party2. appear as counsel in any criminal case wherein an officer or EE of the national or local government is accused of an offense committed in relation to his office3. collect any fee for their appearance in administrative proceedings involving the LGU4. use property and personnel of the government except when the sanggunian member is defending the interest of the government. Prohibition against private practice, if such practice represents interests adverse to the government.3. DOCTORS of medicine may practice their profession even during OFFICIAL HOURS of work only on occasions of emergency. Provided they do not derive monetary compensation.

3. Prohibition Against Appointment1. not eligible for appointment/designation in any capacity to any public office/position during his tenure. Shall not hold any other office or employment in the government, unless otherwise allowed by law or the primary functions of the office.

2. no candidate who lost in any election shall, within one year after such election be appointed to any office in the government Except: losing candidates in barangay elections

Elective Local OfficialsQualifications

1. CITIZENS of the Philippines2. REGISTERED VOTER in the barangay, municipality, city, province or in case of a member of the Sangguniang Panlalawigan, Panlungsod or Bayan the district where he intends to be elected.3. RESIDENT therein for at least 1 year immediately preceding the election4. able to read and write Filipino or any other local language or dialect5. on election day, must be at least 25 – governor, vice-gov, members of the sangguniang panlalawigan, mayor, vice-mayor or members of the sangguniang panlungsod of highly urbanized cities 21 – mayor, vice-mayor of independent component cities, component cities or municipalities 18 – members of the sangguniang panlungsod or sangguniang bayan or punong barangay or member of the sangguiniang barangy At least 15 but not more than 21 – sangguniang kabataan

“not more than 21” is not equivalent to “less than 22”

Disqualifications1. 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 sentence2. removed from office as a result of administrative case

109


3. convicted by final judgment for violating the oath of allegiance to the Republic4. dual citizenship5. fugitives from justice in criminal or non-political cases here or abroad6. 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 Code7. insane or feebele-minded

ELECTIVE LOCAL OFFICIAL removed via administrative case before January 1, 1992 (date of effectivity of the LGC) is NOT disqualified.

Manner of Election1. Governor, Vice-Governor, City or Municipal Mayor, City or Municipal Vice-Mayor and Punong Barangay elected at large2. Sangguniang Kabataan Chairman elected by registered voters of the katipunan ng kabataan3. Regular Members of the Sangguniang Panlalawigan, Panlungsod and Bayan elected by district.4. Presidents of the leagues of Sangguinang Members of component cities and municipalities serve as ex-officio members of the sangguniang panlalawigan5. Presidents of the Liga ng mga Barangay and Pederasyon ng mga Sangguniang Kabataan elected by their respective chapters serve as ex-officio members of the sangguniang panlalawigan, panlungsod or bayan.6. 1 sectoral representative from women, worker and any of the ff:a. Urban poorb. Indigenous cultural communitiesc. Disabled personsd. Any other sectors as may be determined by the sanggunian concerned w/in 90 days prior to the holding of the next local election.

Date of Election Every 3 years 2nd Monday of may Unless otherwise provided by law

Term of Office 3 years starting from noon of June 30, 1992 OR such date as may be provided by law Except that of barangay official No elective local official shall serve for more than 3 consecutive terms in the same position Term of barangay officials and members of the sangguniang kabataan 5 years

- 3-term limit on a local official is to be understood to refer to terms for which the official concerned was elected.- He must have been elected to the same position for the same number of times before the disqualification can apply.- Prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition:1. subsequent election like a recall election is no longer an immediate re-election after three consecutive terms2. intervening period constitutes an involuntary interruption in the continuity of service

Rules on Succession- Permanent vacancies:1. fills a higher vacant office2. refuses to assume office3. fails to qualify4. dies5. removed from office6. voluntarily resigns7. permanently incapacitated to discharge the functions

110


a. Governor/Mayor Vice-Governor/Vice-Mayorb. Vice-Governor/Vice-Mayor highest ranking sanggunian member OR 2nd highest ranking, and subsequent vacancies shall be filled automatically by the other sanggunian members according to their ranking Ranking in the sanggunian member shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding election. Mode of succession for permanent vacancies may also be applied in cases of temporary vacancies.c. Punong Barangay highest ranking sanggunian barangay member OR 2nd

highest Tie between or among the highest ranking sanggunian members shall be resolved by drawing lots.d. Sanggunian member where automatic succession do not apply:1. appointment by PRESIDENT, through Executive Secretary in the case of Sangguniang Panlalawigan or Panlungsod of highly urbanized cities and independent component cities2. apponted by GOVERNOR sangguniang panlungsod of component cities and the sangguniang bayan3. appointed by CITY or MUNICIPAL MAYOR sangguniang barangay upon recommendation of the sangguniang barangay concerned

EXCEPT for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed.

A nomination and a certificate of membership of the appointee from the highest official of the political concerned are conditions sine qua non. In case the permanent vacancy is caused by a sanggunian member who does not beling in any political party, the local chief executive shall upon recommendation of the sangguinian concerned, shall appoint a qualified person to fill the vacancy. Reason: to maintain party representation Recommendation by the sanggunian takes the place of nomination by the political party (since members of the sanggunian barangay are prohibited to have party affiliation) and is considered condition sine qua non. Vacancy in the representation of the youth and the barangay in the sanggunian filled automatically by the official next in rank of the organization concerned. Member of the Sangguniang Kabataan who obtained the next highest number of votes shall succeed as Chairman if the latter:1. refuses to assume office2. fails to qualify3. convicted of a crime4. voluntarily resigns5. dies6. permanently incapacitated7. removed from office8. has been absent without leave for more than 3 consecutive months* ineligibility is not one of the causes enumerated in LGCTemporary Vacancies

Governor/City or Muncipal Mayor/Punong Barangay is temporarily incapacitated, due to but not limited to:1. leave of absence2. travel abroad3. suspension from office

vice governor/city or municipal vice-mayor or the highest ranking sanggunian barangay member shall automatically

111


exercise the powers and perform the duties EXCEPT:1. power to appoint2. power to suspend3. power to dismiss* which can be exercised only if the period of temporary incapacity exceeds 30 working days.

- Temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration that he has reported back to office.- If temporary incapacity due to legal causes shall also submit necessary documents showing that legal cause no longer exists.

If local chief executive 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 of the office.- Such shall specify the powers and functions- If the local chief executive refuses to issue such authorization, the vice governor/city or municipal vice-mayor or the highest ranking sanggunian barangay member shall have the right to assume on the 4th day of the absence of the local chief executive EXCEPT

1. power to appoint2. power to suspend3. power to dismiss

Compensation determined by the Sanggunian concerned elective barangay official:1. honoraria2. allowances and other emoluments, which in no case less that P1,000/month for the punong barangay and P600 for the sangguniang barangay members

Elective local officials entitled to the same leave privileges as those enjoyed by appointive local officials, including cumulation and commutation

Resignation- deemed effective upon acceptance by the ff:1. President – governor/vice-gov/mayor/vice-mayor of highly urbanized cities and independent component cities2. Governor – municipal mayors/vice-mayors/city mayors/vice-mayors of component cities3. Sanggunian concerned – sanggunian members4. city or municipal mayor – barangay officials

- resignation is deemed accepted if not acted upon within 15 working days from receipt- irrevocable resignations by sanggunian members shall be deemed accepeted upon1. presentation before an open session2. duly entered un its record3. EXCEPT: where sangguniang members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

Grievance Procedure- Local chief executive shall establish procedure

DisciplineGrounds –

disciplined/suspended/removed1. Disloyalty to the Philippines2. Culpable violation of the Constitution3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty- Acts of lasciviousness cannot be considered misconduct; to constitute a

112


ground for disciplinary action, official charged with the offense must be convicted in the criminal action4. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor5. abuse of authority6. unauthorized absence of 15 consecutive working days except in the case of members of the sangguniang panlalawigan, panlungsod, bayan and barangay7. application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country8. other grounds as may be provided in this code and other laws

- An elective local official may be removed from office on the above grounds by order of the proper court.

Complaints – verified complaint against;1. provincial/highly urbanized city or independent component city elective official filed before Office of the President2. Elective municipal officials filed before Sangguniang Panlalawigan appealable to Office of the President3. Elective barangay official filed before Sangguiniang Panlungsod or Sangguniang Bayan final and executory

PROVINCIAL/HIGHLY URBANIZED CITY OR INDEPENDENT COMPONENT CITY ELECTIVE OFFICIAL FILED BEFORE OFFICE OF THE PRESIDENT

- Local governments under supervision of the Executive.- The Constitution allows Congress to include in LGC provisions for removal of local officials; LGC has delegated its exercise to the President.- President has delegated the power to investigate complaints to the Secretary of DILG alter ego principle

- Right to formal investigation – appeal and defend himself in person or by counsel; confront witnesses against him; compulsory process for the attendance of witnesses and the production of documents.

ELECTIVE MUNICIPAL OFFICIALS FILED BEFORE SANGGUNIANG PANLALAWIGAN APPEALABLE TO OFFICE OF THE PRESIDENT

- On appeal from decision of the Sanggunian Panlalawigan, the President may stay execution of appealed decision- Decision of Sanggunian Panlalwigan must be:1. in writing2. state clearly and distinctly the facts and the reasons for the decisions3. signed by the requisite majority of the sanggunian

ELECTIVE BARANGAY OFFICIAL FILED BEFORE SANGGUINIANG PANLUNGSOD OR SANGGUNIANG BAYAN FINAL AND EXECUTORY

Preventive Suspension may be imposed by the PRESIDENT, GOVERNOR or MAYOR- any time after the issues are joined- evidence of guilt is strong- given the gravity of the offense- there is great probability that the continuance in office could influence the witnesses or pose threat to the safety and integrity of the records and other evidence- Provided, single preventive suspension shall not extend beyond 60 days- In the event that several administrative cases are filed, he cannot be suspended for more than 90 w/in a single year on the same ground or grounds existing and known at the time of the first suspension.

113


- Authority to preventively suspend is exercised concurrently by the Ombudsman six (6) months- The preventive suspension of an elective local official by the Sandiganbayan shall only be for 60 days and not 90 days.- Upon expiration of preventive suspension, officer shall be REINSTATED to office without prejudice to the CONTINUATION OF THE PROCEEDINGS which shall be terminated within 120 days from the time he was formally notified of the case against him.- Abuse of exercise of power of preventive suspension abuse of authority

Penalty- Penalty of suspension shall not exceed his unexpired term or a period of 6 months for every administrative offense- Nor shall penalty be a bar to candidacy as long as he meets requirements- Penalty of removal from office as a result of an administrative case shall be a bar to the candidacy for any elective office.- Not more than 6 months for each offense; provide, the total does not exceed the unexpired portion of his term

Administrative Appeal – w/in 30 days from receipt1. to Sangguniang Panlalawigan component cities’ sangguniang panlungsod and sangguniang bayan2. to OP Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and independent component cities- decisions of OP – final and executory- administrative appeal to OP is possible; only means that administrative appeal will not prevent enforcement of the decision

Execution Pending Appeal- appeal shall not prevent decision from being executed

- during pendency of appeal – shall be considered as having been placed under preventive suspension- OP may stay execution of a decision pending appeal

Effect of Re-election- Bars continuation of administrative case against him- Re-election is tantamount to condonation by the people

Appointive Local Officials

Responsibility for human resources and development- Local chief executive- May employ emergency or casual employees or laborers paid on daily wage or piecework basis and hired through job orders for local projects authorized by sanggunian, without need of approval from CSC- Said employment shall not exceed 6 months.

Officials Common to all Municipalities/Cities/Provinces1. Secretary to the Sanggunian2. Treasurer3. Assessor4. Accountant5. Budget Officer6. Planning and Development Coordinator7. Engineer8. Health Officer9. Civil Registrar10. Administrator11. Legal Officer12. Agriculturist13. Social Welfare and Development Officer14. Environment and Natural Resources Officer15. Architect16. Information Officer17. Cooperatives Officer

114


18. Population Officer19. Veterinarian20. General Services Officer

- In the barangay, mandated appointive officials:1. Barangay Secretary2. Barangay Treasurer

Administrative Discipline – in accordance with civil service law and other pertinent laws1. Preventive Suspension- Local chief executive- Period not exceeding 60 days- Any subordinate officer or employee under his authority- Pending investigation- If the charge involves:1. dishonesty2. oppression3. grave misconduct4. neglect in the performance of duty5. or if there is reason to believe that respondent is guilty of the charges which would warrant removal2. Disciplinary Jurisdiction- Local chief executive may impose penalty of :1. removal2. demotion in rank3. suspension for not more than 1 year without pay4. fine in an amount not exceeding 6 months’ salary5. reprimand- If penalty is suspension without pay for not more than 30 days, decision shall be final.- If heavier, appealable to CSC which shall decide the appeal within 30 days from receipt.

- Disciplinary authority over City Revenue Officer City Treasure NOT Mayor.

V. INTER-GOVERNMENTAL RELATIONS

National GovernmentPower of General Supervision- President over LGUs- Supervisory authority directly over provinces, highly urbanized cities and independent component cities.- Through the Province with respect to component cities and municipalities- Through City and Municipality with respect to barangays

Coordination with National Agencies- National agencies and offices with project implementation functions shall coordinate with one another and with the LGU- Ensure participation of LGU in planning and implementation of national projects.

Consultation- Before project or program shall be implemented:1. consultation2. prior approval of sanggunian- Provided, occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided.

Philippine National Police- Operational supervision of local chief executive police force, fire protection unit and jail management personnel

Inter-Local Government Relations- Province through Governor Ensure that every component city and municipality within its territorial jurisdiction acts within the scope of its prescribed powers

115


Highly urbanized cities and independent component cities shall be independent of the province. Governor shall review a; Eos promulgated by the component city or municipal mayor within its jurisdiction. The city or municipal mayor shall review all EOs promulgated by the punong barangay within his jurisdiction. Failure to act w/in 30 days from submission deemed consistent with law and therefore valid.- In the absence of a municipal legal officer, municipal government may secure opinion of provincial legal officer; absence of the latter, provincial prosecutor.- City or Municipal Mayor exercise general supervision over component barangays - LGUs may through appropriate ordinance group themselves, consolidate or coordinate their efforts/services/resources for purposes commonly beneficial to them. Contribute fund upon approval by sanggunian after public hearing

People’s and Non-Governmental Organizations LGU’s shall promote their establishment to become active partners in the pursuit of local autonomy. LGUs may enter into joint ventures and other cooperative arrangements with People’s and Non-Governmental Organizations to engage in the delivery of basic services. LGU, through local chief executive with concurrence of sanggunian, provide assistance – financial or otherwise – to People’s and Non-Governmental Organizations for economic, socially-oriented, environmental or cultural projects to be implemented within its territorial jurisdiction.

Mandated Local Agencies

1. Local School Board2. Local Health Board3. Local Development Council4. Local Peace and Order Council

Settlement of Boundary Disputes1. Boundary Disputes between and among LGUs Settled amicably Rulesa. Involving 2 or more barangays in the same city/municipality – referred to Sangguniang Panlungsod or Sangguniang Bayanb. Incolving 2 or more municipalities in the same province – referred to Sangguniang Panlalawiganc. Involving municipalities or component cities in different provinces – jointly referred to the sanggunians of the provincesd. Involving a component city or municipality on the one hand and a highly urbanized city on the other, or 2 or more highly urbanized cities – jointly referred to the respective sanggunians of the parties

2. Sanggunian fails to effect a settlement within 60 days from the date the dispute was referred to it, it shall issue a certification. 3. Dispute shall then be formally tried by the sanggunian, which shall decide the issue within 60 days from the date of the certification.4. within the time and manner prescribed by the ROC, any party may elevate the decision of the sanggunian concerned to the proper RTC having jurisdiction over the area in dispute which shall decide the appeal within 1 year from filing.5. Settlement of boundary dispute between a municipality and an independent component city in the same province RTC in the province that can adjudicate the controversy.6. The boundaries must be clear for they define the limits of the territorial jurisdiction

116


of the LGU. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires.

VI. LOCAL INITIATIVE AND REFERENDUM

Local Initiative It is the legal process whereby the registered voters of a local government unit may directly propose, enact or amend any ordinance. It may be exercised by all registered voters.

Procedure1. Petition filed with the sanggunian proposing the adoption, enactment, repeal or amendment of an ordinance Not less than 2,000 registered voters in the region Not less than 1,000 registered voters in cases of provinces and cities Not less than 100 voters in case of municipalities Not less than 50 voters in case of barangays2. If no favorable action taken, within 30 days from presentation, the proponents through their duly authorized and registered representatives, may invoke their power of initiative, giving notice to the sanggunian concerned.3. The proposition shall be numbered serially – starting from Roman Numeral I. Two or more propositions may be submitted in an initiative. The COMELEC or designated representative shall extend assistance in the formulation of the proposition.4. Proponents collect the required number of signatures within 90 days in case of provinces and cities 60 days in case of municipalities 30 days in case of barangays

From NOTICE5. The petition shall be signed before the election registrar or his representative, in the presence if the a representative of a proponent and a representative of the sanggunian in a public place in the local government unit.6. Lapse of the period, COMELEC shall certify as to whether the required the number of signatures has been obtained. Failure to obtain the required number of signatures. Failure to obtain the required number of signatures defeats the proposition.7. If required number is obtained, the COMELEC shall set a date for the initiative during which the proposition is submitted to the registered voters for their approval: w/in 60 days in case of provinces w/in 45 days in case of municipalities w/in 30 days in case of barangays from date of CERTIFICATION by COMELEC.The initiative shall be held on the date set, after which the results shall be certified and proclaimed by the COMELEC.8. If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC.

LimitationsOn Local Initiative

1. not be exercised more than once a year2. extend only to subjects or matters which are within the legal powers of the sanggunian to enact3. at any time before the initiative is held, the sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. However, those against such action may apply for initiative.

On the Sanggunian

117


Any proposition or ordinance approved through an initiative and referendum shall not be repealed, modified or amended by the sanggunian w/in 6 months from date of approval. Amended, modified or repealed w/in 3 years by a vote of all its members. In case of barangays, the period shall be 18 months after the approval.

Local Referendum Legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the COMELEC:1. w/in 60 days in case of provinces2. w/in 45 days in case of municipalities3. w/in 30 days in case of barangays COMELEC shall certify and proclaim the results of the said referendum.

Authority of Courts Nothing shall preclude the proper courts from declaring null and void any proposition approved pursuant for violation of the Constitution or want of capacity of the Sanggunian concerned to enact said measure.

VII. LOCAL GOVERNMENT UNITS

The Barangay

Chief Officials and Offices

There shall be in each barangay:1. PUNONG BARANGAY2. 7 SANGGUNIANG BARANGAY MEMBERS3. The SANGGUNIANG KABATAAN CHAIRMAN4. BARANGAY SECRETARY5. BARANGAY TREASURER6. LUPONG TAGAPAMAYAPA

The Sangguniang Barangay may form brigades and create such other positions or offices as may be deemed necessary to carry out the purposes of the barangay government. Punong Barangay, Sangguniang Barangay Members and members of the Lupong Tagapamayapa in each barangay shall be deemed as Persons in Authority in their jurisdiction; while other barangay officials and members who may be designated by law or ordinance and charged with maintenance, protection and security, and any barangay members who comes to the aid of persons in authority shall be deemed agents of persons in authority. Barangay Chairman is a public officer who may e charged with arbitrary detention. Barangay Chairman entitled to possess and carry firearms within the territorial jurisdiction of the barangay.

The Barangay Assembly Composed of:1. All persons who are actual residents of the barangay for at least 6 months,2. 15 years of age or over3. Citizens of the Philippines4. Duly registered in the list of barangay assembly members Meet at least 2x a year to hear and discuss the semestral report to the sangguniang barangay concerning its activities and finances and problems affecting the barangay.

Katarungang PambarangayLupong Tagapamayapa

Punong barangay as chairman 10 to 20 members Constituted every 3 years

Powers of the Lupon1. Exercise administrative supervision over the conciliation panels

118


2. Meet regularly once a month to provide a forum for exchange of ideas among its members and the public of matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes3. Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance

Pangkat ng Tagapagkasundo Conciliation panel or Pangkat ng Tagapagkasundo shall be constituted for each dispute brought before the lupon. Consists of 3 members Chosen by the parties to the dispute From list of members of the lupon Should the parties fail to agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairman

Subject Matter of Amicable Settlement1. procedure2. conciliation3. arbitration4. effects of settlement and arbitration award

Sangguniang Kabataan- Creation: There shall be in every barangay a Sangguniang Kabataan1. a Chairman2. 7 Members3. a secretary4. a treasurer- An official who, during his term of office, shall have passed the age of 21 shall be allowed to serve the remaining portion of the term for which he was elected.

Katipunan ng Kabataan Shall be composed of:

1. all citizens of the Philippines actually residing in the barangay for at least 6 months2. who are 15 but not more than 21 years of age3. duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary. It shall meet once every 3 month, or at the call of the sangguniang kabataan chairman, or upon written petition of at least 1/20 of its members.

Pederasyon ng mga Sangguniang Kabataan There shall be an organization of all the prederasyn ng mga sangguniang kabataan:1. in municipalities pambayang pederasyon2. in cities panlungsod ng pederasyon3. in provinces panlalawigang pederasyon4. special metropolitan political subdivision pangmetropolitang pederasyon5. on national level pambansang pederasyon

Leagues of Local Government Units/Officials- Liga ng mga Barangay Organization of all the barangays for the primary purpose of determining the representation of the Liga in the sanggunians And for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions. Liga is empowered to create such other positions as may be deemed necessary.

League of Municipalities Organized for the primary purpose of ventilating, articulating and crystallizing issues affecting municipal government

119


administration, and securing through proper and legal means, solutions.

XII. ELECTION CONTESTS

Jurisdiction over Election Contests Original and Exclusive1. President/VP SC2. Senator Senate ET3. Representative HRET4. Regional/Provincial/City COMELEC5. Municipal RTC6. Barangay MTC/MeTC

Appellate Decision of RTC/MTC/MeTC = exclusively to COMELEC, whose decision shall be final, executory and unappealable. Election Contests for Municipal Offices: o Filed with RTC shall be decided expeditiously.o Decision may be appealed to COMELEC w/in 5 days from promulgation or receipt of copy by the aggrieved party.o COMELEC shall decide appeal within 60 days after it is submitted for decision, but not later than 6 months after the filing of the appeal, which decision shall be final, executory and unappealable.o MR is a prohibited pleading.o COMELEC cannot deprive RTC of its competence to order EXECUTION of its decision PENDING APPEAL, being a judicial prerogative and there being no law disauthorizing the same. o In the exercise of its exclusive appellate jurisdiction, COMELEC has the power to issue writs of prohibition, mandamus or certiorari. In the absence of any express provision, RTC, a court of general jurisdiction, has jurisdiction over controversies involving election of members of the Sangguniang Kabataan. Decision in appealed cases involving elective municipal and barangay officials

raised to SC via SCA for certiorari on the ground that COMELEC’s factual finding is marred by grave abuse of discretion. Review of a decision of the Electoral Tribunal is possible only in the exercise of supervisory or extraordinary jurisdiction, and only upon showing that the Tribunal’s error results from whimsical, capricious, unwarranted, arbitrary or despotic exercise of power. Purposes of election contests cognizable by Electoral Tribunal HRET rules of procedure prevail over provisions of the Omnibus Election Code

Actions which may be Filed1. Election Protest2. Quo Warranto

Election ProtestRequisites:

1. filed by any candidate who has filed a certificate of candidacy and has been vote upon for the same office.2. on grounds of fraud, terrorism, irregularities or illegal acts committed before, during or after casting and counting of votes rights of contending parties must yield to the far greater interest of the citizens in upholding the sanctity of the ballot. COMELEC cannot simply close its eyes to the illegality of the ballots, even if the protestant omitted to raise the ground in his protest. Handwriting even without the use of experts; being an internal matter. Order regarding the revision of ballots is an interlocutory order requires a party to perform certain acts leading to the final adjudication of the case. General Rule: The filing of an election protest or quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to an abandonment of one earlier filed, depriving the

120


COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of the proclamation.o Exceptions:1. Board of Canvassers was improperly constituted.2. Quo Warranto is 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 proclamation4. filing of an election contest was expressly made without prejudice to the pre-proclamation controversy or was made in ad cautelam5. proclamation was null and void (in which case the pre-proclamation case is not rendered moot) general denial does not amount to an admission of the material allegations in the protest. Failure to commence the revision of ballots in the counter-protested precincts’ is deemed a waiver of his counter-protest. Omissions are merely administrative lapses, error to nullify election results in the absence of clear showing of fraud.3. w/in 10 days from proclamation of the results of the election period for filing election protest is suspended while pre-proclamation case is pending. After 5 days from Proclamation files appeal in pre-proclamation case only 5 days left to file election protest. COMELEC may not entertain a counter-protest filed beyond the reglementary period to file the same Petition or protest contesting the election of a barangay official should be decided by the MTC/MeTC w/in 15 dyas from filing.

Payment of Docket Feeso Pay docket fee of )300o Additional docket fees for damageso Failure to pay, protest should be dismissed

Requirement for Certificate of Absence of Forum Shopping

Death of Protestanto Does not extinguish election protest.o Imbued with public interest – involves not only adjudication of the private interest of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office.o If persons not real parties in interest in the action could be allowed to intervene, proceedings will be unnecessarily complicated, expensive and interminable.

Quo WarrantoRequisites:

1. filed by any registered voter in the constituency2. grounds of ineligibility or disloyalty to the Republic3. w/in 10 days from proclamation

Distinction between Quo Warranto in elective and appointive office1. Elective Office- Issue is the eligibility of the officer-elect- Court/tribunal cannot declare protestant or the candidate who obtained the 2nd highest number of votes as having been elected. There must be a final judgment of disqualification before the election in order that the votes of the disqualified candidate can be considered “stray.” In voting for a candidate who has not been disqualified by final judgment during election day, the people voted for him bona fide, without any intention to misapply their franchise and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the power s of government.

121


2. Appointive Office- Issue is the legality of the appointment- The court determined who of the parties has legal title to the office

Execution Pending Appeal TC may grant a motion for execution pending appeal, because the mere filing of an appeal does not divest the trial court of its jurisdiction. Since it had jurisdiction to act on the motion at the time it was filed, that jurisdiction continued until the matter was resolved, and was not lost by the subsequent action of the opposing party. Rationale: to give as much recognition to the worth of the trial judge’s decision as that which is initially ascribed by law to the proclamation of the Board of Canvassers, To prevent the “grab the proclamation, prolong the protest” techniques. Factors:o Public interest involved or will of the electorateo Shortness of the remaining portion of the termo Length of time that the election contest has been pending Reasons allowing for immediate execution must be of such urgency as to outweigh the injury or damage of the losing party should such party secure a reversal of judgment on appeal. Filed before expiration of the period for appeal.

Award of Damages Actual and compensatory damages may be awarded in election contests and quo warranto proceedings Intent of the legislators to do away with the provisions indemnifying the victorious party for expenses incurred in the election contest, in the absence of a wrongful act or omission clearly attributable to the losing party.

Question for damages remain ripe for adjudication notwithstanding that the appeal from a decision of the election case has already been moot

Contest Involving title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute.

Election, Returns and Qualifications Collectively, all matters affecting the validity of the contestee’s title to the position

Election Conduct of the polls Includes1. listing of votes2. holding of election campaign3. casting of votes4. counting of votes

Returns Includes:1. canvass of returns2. proclamation of winners3. questions concerning composition of Board of Canvassers 4. authenticity of elections returns

Qualifications may be raised in quo-warranto proceeding against proclaimed winner

XIII. ELECTION OFFENSES

Prohibited Acts1. Vote-buying and vote-sellingo Distribution of yosi (People vs. Ferrer)2. Wagering upon the result of the electionso Bet or wager forfeited to Government3. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion

122


4. Appointment of new employeeo Exception:a. In case of urgent needb. w/ notice given to COMELECc. w/in 3 days from appointmento Includes creation of new positions, promotion or granting of salary increase.5. Carrying of deadly weapon within a radius of 100 meters from precinto Not necessary that deadly weapon be seized from the accused.6. Transfer or detail of government official/employee without COMELEC approvalo Exception: not penalized, if done to promote efficiency.o To prove violation:a. Fact of transfer or detail within the election period as fixed by the COMELECb. Transfer or detail was made without prior approval of the COMELEC

Good Faith is not a defenseo Generally, mala prohibitao Proof of criminal intent is not necessaryo Good faith, ignorance, or lack of malice is not a defense

Jurisdiction over Election Offenses Investigation and prosecution – COMELEC has exclusive jurisdiction. May validly delegate to Provincial Prosecutor. It is not the duty of the COMELEC to gather proof in support of a complaint. Trial and Decision – RTC has exclusive jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. The MTC and MeTC, by way of exception, exercises jurisdiction only over offenses relating to failure to register or to vote.

Preferential Disposition of Election Offenses

Investigation and prosecution of election offenses shall be given priority by COMELEC. Investigating officer shall resolve the case w/in 5 days from submission. Courts shall give preference to election offenses over all other cases.o Exception: writ of HC Cases shall be decided w/in 30 days from submission.

Prescription for election offenseso 5 years from date of commission

GENERAL PRINCIPLES

Administrative Law - Branch of public law which: Fixes the organization Determines the competence of administrative authorities Indicates to the individual remedies for the violation of his rights.

Kinds1. Statutes2. Rules, regulations or orders3. Determinations, decisions and orders4. Body of doctrines and decisions

Administration1. as a Function – the execution, in non-judicial matters, of the law or will of the State as expressed by competent authority2. as an Organization – group or aggregate of persons in whose hand the reins of government are for the time being.

Kinds1. Internal – legal side of public administration2. External – deals with problems of government regulation

Administrative Bodies or Agencies

123


- Organ of government which affects the rights of private parties either through adjudication or rule-making.- Creation1. constitutional provision2. legislative enactment3. authority of law- Criterion primarily regulatory 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.- Types1. offering some gratuity, grant or special privilege2. carry on certain of the actual business of the government3. performing some business service for the public4. regulate business affected with public interest5. regulate private business and individuals, pursuant to police power6. adjust individual controversies because of strong social policy involved7. make the government a private party

II. POWER OF ADMINSITRATIVE BODIES

Powers of Administrative Bodies1. Quasi-legislative or rule-making power2. Quasi-judicial or adjudicatory3. Determinative

Quasi-Legislative Power Exercise of delegated legislative power Involves no discretion as to what the law shall be Fix the details in the execution or enforcement of a policy Rules and regulations issued by administrative authorities pursuant to

powers delegated to them have the force and effect of law o They are binding on all persons subject to themo Courts will take judicial notice Letters of Instructions and Eos are presidential issuances; one may repeal or alter, modify or amend the other, depending on which comes later. The function of promulgating rules and regulations may be legitimately exercised only for the purpose of carrying out the provisions of the law into effect. Administrative regulations cannot extend the law or amend a legislative enactment. Administrative regulations must be in harmony with the provisions of law. It must not override, but must remain consistent with the law they seek to apply and implement. Administrative agency has no discretion whether or not to implement a law. Its duty is to enforce the law. Administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of Government.

Kinds of Administrative Rules or Regulations1. Supplementary or Detailed Legislation Fix the details in the execution and enforcement of a policy set out in the law.2. Interpretative Legislation Construe or interpret the provisions of a statute to be enforced Binding on all concerned until they are changed Effect of law and are entitled to respect Have in their favor presumption of legality Erroneous application of the law by public officers does not bar subsequent correct application of the law3. Contingent Legislation

124


Made on the existence of certain facts or things upon which the enforcement of law depends.

Requisites for Validity1. Issued under authority of law

2. Within the scope and purview of the law3. Reasonable4. Publication in the OG or in a newspaper of general circulation Interpretative rules and regulations/mere internal in nature/ letters of instructions concerning the rules and guidelines to be followed by their subordinates in the performance of their duties may simply be POSTED in CONSPICUOUS PLACES in the AGENCY. DOLE Department Order and POEA Memorandum Circulars – proper publication + filing in the Office of the National Administrative Register (Article 5 of LC)

Administrative Rules with Penal Sanctions (additional requisites)1. law itself must declare as punishable the violation of the administrative rule or regulation2. law should define or fix the penalty for the violation of the administrative rule or regulation

Necessity for Notice and Hearing NO constitutional requirement for a hearing:1. promulgation of a general regulation2. rule is procedural3. merely legal opinions4. substantive rules where the class to be affected is large and the questions to be resolved involve the use of discretion committed to the rule-making body Hearing Requirement:1. subordinate legislation, designed to implement a law by providing details

2. substantially adds to or increase the burden of those concerned 3. exercise of quasi-legislative authority

Function of Prescribing Rates by an Administrative Agency may either be: Legislative Function: prior notice and hearing is not a requirement Where the rules and rates are meant to apply to ALL enterprises of a given kind throughout the country, they may partake of a legislative character Adjudicative Function: prior notice and hearing are essential to the validity Where the rules and rates are meant to apply exclusively to a particular party, then its function is quasi-judicial in character

Where hearing is indispensable, it does not preclude the Board from ordering, ex-parte, a provisional increase subject to its final disposition of whether or not to make it permanent, to reduce or increase it further or to deny the application. (Maceda vs. Energy Regulatory Board)

Determinative Powers1. Directing Power of assessment of BIR and Customs2. Enabling Permit or to allow something which the law undertakes to regulate3. Dispensing To exempt from a general prohibition OR Relieve individual or corporation from an affirmative duty4. Examining Investigatory power1. production of books, papers, etc.2. attendance of witnesses3. compelling their testimony Power to compel attendance of witnesses not inherent in administrative body

125


But an administrative officer authorized to take testimony or evidence is deemed authorized to administer oath, summon witnesses, require production of documents, etc. Power to punish contempt must be expressly granted to the administrative body; when granted, may be exercised only when administrative body is actually performing quasi-judicial functions5. Summary Power to apply compulsion or force against persons or property to effectuate a legal purpose without a judicial warrant to authorize such action

Quasi-Judicial or Adjudicatory Powers- Proceedings partake of the character of judicial proceedings- Administrative due process1. right to hearing2. tribunal must consider evidence presented3. decision must have something to support itself4. evidence must be substantial5. decision must be based on the evidence adduced at the hearing or at least contained in the record and disclosed to the parties6. the Board or Judges must act on its or independence consideration of the facts and the law of the case, and not simply accept the views of a subordinate in arriving at a decision7. decision must be rendered in such a manner that the parties to the controversy can know the various issues involved and the reasons for the decision rendered- In forfeiture proceeding, where the owner of the allegedly prohibited article is known, mere posting of the notice of hearing in the Bulletin Board does not constitute compliance.- Due process demands that the person be duly informed of the charges against him.

He cannot be convicted of an offense with which he was not charged. Party be afforded reasonable opportunity to be heard and to submit any evidence he may have in support of the defense. In administrative proceedings, it means the opportunity yto explain one’s side or opportunity to seek a reconsideration of the action or ruling complained of; a formal or trial-type hearing is not, at all times, necessary. Requirement of notice and hearing in termination cases does not connote full adversarial proceedings, as actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies. Procedural right which employee must ask for since it is not an inherent right. Summary proceedings may be conducted- Administrative due process dies not necessarily require the assistance of counsel.- In a request for extradition, the prospective extradite does not face a clear and present danger of loss of property or employment, but of liberty itself. He is entitled to the minimum requirements of notice and opportunity to be heard.- The standard of due process that must be met in administrative tribunals allows a certain latitude as long as the element of fairness is not ignored; even in the absence of previous notice, there is no denial of due process as long as the parties are given the opportunity to be heard.- Administrative due process:1. opportunity to be heard2. opportunity to seek reconsideration3. opportunity to explain one’s side- Substantial evidence: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion which is the quantum of proof necessary to prove a change in an administrative case

126


- “To be heard” does not mean only verbal agreements in court, one may also be heard through pleadings.

Administrative Determinations where Notice and Hearing are NOT necessary for due process1. grant of provisional authority for increased rates or to engage in a particular line of business2. summary proceedings of distraint and levy upon the property of a delinquent taxpayer3. cancellation of passport, no abuse of discretion4. summary abatement of a nuisance per se which affects the immediate safety of persons/property5. preventive suspension of a public officer/employee pending investigation of administrative charges

Right Against Self-Incrimination Administrative charge of unexplained wealth which may result in forfeiture of the property Medical practitioner where proceeding could possibly result in the loss of his privilege to practice medicine Right may be invoked at the time he is called as a witness If he voluntarily takes the witness stand, he can be cross-examined, but he may still invoke the right at the time the question which calls for an answer which incriminates him of an offense other than that which is charged is asked.

Power to Punish Contempt is Inherently Judicial1. conferred by law and2. administrative body is engaged in performance of its quasi-judicial powers

Administrative Decisions not Part of the Legal System

no vested right could not place government in estoppel

Administrative Appeal and Review1. higher or superior administrative body2. President/ Department Secretaries by virtue of the power of Control3. appellate administrative agency

Doctrine of res judicata Decisions and orders of administrative agencies have upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata. Conclusive upon the rights of the affected parties as though the same had been rendered by a court of general jurisdiction. Forbids the reopening of a matter once determined by competent authority acting within their exclusive jurisdiction. Applies to adversary administrative proceeding Does NOT apply in administrative adjudication relative to citizenship Exception: Zita Ngo Burca vs. Republic1. question of citizenship is resolved by a court or an administrative body as a material issue in the controversy after a full-blown hearing2. active participation of the SolGen3. finding made by the administrative body on the citizenship issue is affirmed by the SC

- LLDA: regulatory and quasi-judicial power in respect to pollution cases and matters affecting the construction of illegal fishpens, fish cages and other aqua-structures in Laguna de Bay; may issue cease and desist orders- DECS Regional Director: return to work order; administrative charges; constitute an investigating panel- Housing and Land Use Regulatory Board (HLURB): unsound real estate business practices

127


- Department of Energy: electric power- Home Insurance Guarantee Corporation(HIGC): disputes involving homeowners association

III. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Doctrine- Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted.

Reasons1. if relief is first sought from a superior administrative agency, resort to courts may be unnecessary2. administrative agency should be given a chance to correct its error3. principles of comity and convenience 4. judicial review of administrative decisions is usually made through special civil actins, which will not normally prosper if there is another plain, speedy and adequate remedy in the ordinary course of law

Only decision of administrative agencies made in the exercise of QUASI-JUDICIAL and ADJUDICATORY POWERS are subject to the rule on exhaustion. Constitutionality/validity of a rule or regulation in the performance of quasi-legislative function regular courts have jurisdiction

Corollary Principle1. Doctrine of Prior Resort/ Doctrine of Primary Administrative Jurisdiction No Where there is competence or jurisdiction vested upon an administrative body to act upon a matter, no resort to the courts may be made before such

administrative body shall have acted upon the matter. Conversion of subdivision lots HLURB Enforcement of forestry laws DENR Issuing license to radio stations NTC Disputes arising from construction contracts Construction Industry Arbitrary Commission Agricultural lands under the coverage of CARP DAR Effluents of a particular industrial establishment Pollution Adjudication Board

2. 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. A party aggrieved must not only initiate the prescribed administrative proceeding, but must pursue it to its appropriate conclusion before seeking judicial intervention.

Effect of Failure to Exhaust Administrative Remedies- Jurisdiction of court is NOT affected- Complainant is deprived of a CAUSE OF ACTION which is a ground for MTD- If no MTD is filed, deemed a waiver

Exceptions1. Doctrine of Qualified Political Agency (alter ego doctrine)2. Administrative remedy is fruitless3. Estoppel on the part of the Administrative Agency4. Issue involved is purely a legal question5. Administrative action is patently illegal6. Unreasonable delay or official inaction7. Irreparable injury or threat, unless judicial recourse is immediately made

128


8. Land cases, where subject matter is private land9. Law does not make exhaustion a condition precedent to judicial recourse10. Observance of the doctrine will result in the nullification of the claim11. Special reasons or circumstances demanding immediate court action12. Due process of law is clearly violated13. Rules does not provide a plain, speedy and adequate remedy

IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

Rule Judicial review may be granted or withheld as Congress chooses Except: when Constitution requires or allows it Judicial review of administrative decisions cannot be denied the courts when there is an allegation of grave abuse of discretion.

Bases for Judicial Review Unless otherwise provided by this Constitution or by law Any decision, order or ruling of each Commission may be brought to the SC on certiorari w/in 30 days from receipt of a copy

General Principles underlying power in the Courts to scrutinize the acts of administrative agencies on questions of law and jurisdiction although no right of review is given by statute. Keep administrative agencies within its jurisdiction. Protect substantial rights of parties affected by the decisions. Part of system of checks and balances which restricts the separation of power and forestalls arbitrary and unjust adjudication.

Methods of Obtaining Judicial Review1. Statutory or Non-Statutory Statutory – available pursuant to statutory provision Non-statutory – no express statute granting review, relief is obtained by means of:1. common law remedies2. prerogative writs of certiorari3. mandamus4. HC5. prohibition6. quo warranto if statutory methods for judicial review are available, they are ordinarily exclusive and the use of non-statutory methods will not likely be permitted.2. Direct or Collateral Direct – attempt to question in subsequent proceedings the administrative action for lack of jurisdiction, grave abuse of discretion, etc. (attack on citizenship of an individual) Collateral – relief from administrative action sought in a proceeding the primary purpose of which is some relief other than the setting aside of the judgment, although an attack on the judgment may be incidentally involved.

What Court has Jurisdiction CA have appellate jurisdiction over judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Administrative bodies, co-equal with RTC on terms of rank and stature and beyond the control of the latter. Doctrine of Non-Interference by TCs with co-equal administrative bodies is intended to ensure judicial stability. Reviewed by RTC Bureau of Immigration, Court martial, LLDA

129


Questions which may be subject of judicial review1. Question of Law2. Question of Fact Factual findings of administrative agencies are generally conclusive upon the courts if supported by substantial evidence, EXCEPT1. expressly allowed by statute2. fraud, imposition or mistake other than error of judgment3. error in appreciation of the pleadings and in the interpretation of the documentary evidence presented by the parties3. Mixed Question of Law and Fact (Brandeis Doctrine of Assimilation of Facts) What purports to be a finding upon a question of fact is so involved with and dependent upon a question of law as to be in substance and effect a decision on the latter, the Court will, in order to decide the legal question, examine the entire record including the evidence.

Guidelines for the exercise of the power Findings of fact are respected as long as they are supported by substantial evidence, even if not overwhelming or preponderant. Findings of administrative officials and agencies who have acquired expertise are generally accorded not only respect but at all times even finality. Principle that factual findings of administrative bodies are binding upon the Court may be sustained only when no issue of credibility is raised. It is not for the reviewing court to weigh the conflicting evidence, determine credibility of witnesses or otherwise substitute its judgment for that of the administrative agency on the sufficiency of evidence. Administrative decision in matters with the executive jurisdiction can only be set aside on proof of

1. grave abuse of discretion2. fraud3. collusion4. error of law Courts will not generally interfere with purely administrative matters unless there is clear showing of arbitrary, capricious or grave abuse of discretion amounting to lack of jurisdiction.

Judicial Review is not trial de novo It is merely an ascertainment of whether the findings of the administrative agency are consistent with law, free from fraud or imposition and supported by evidence.

I. GENERAL PRINCIPLES

Public Office- Right, authority, 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 sovereign power of government to be exercised by him for the benefit of the people.- Elements:1. created by law or by authority of law2. possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public3. powers conferred and duties imposed must be defined by the legislature or by legislative authority4. duties must be performed independently and without control of the superior power UNLESS they be those of an inferior or subordinate officer created or authorized by the legislature and placed under the general control of a superior officer or body5. permanence or continuity- Creation:1. Constitution2. statutory enactment

130


3. authority of law

Public Officer- a person who holds office- Public Officer, as understood under criminal law Article 203. any person who, by direct provision of law, popular election or appointment by competent authority shall take part in the performance of public functions in the Government; or shall perform in said Government public duties as am employee, agent, or subordinate official of any rank or class, shall be deemed to be a public officer. RA 3019. includes elective and appointive officials and employees, permanent or temporary whether in the classified, unclassified or exempt services, receiving compensation, even nominal from the government. PB 807. Career and Non-career services (formerly, classified, unclassified or exempt)

Distinguished from Clerk or Employee- Officer, duties not being of clerical or manual nature, involves the exercise of discretion in the performance of the functions of government.- Includes any government employee, agent or body having authority to do the act or exercise that function.

Main characteristic that distinguishes a Public Officer creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public.

II. ELIGIBILITY AND QUALIFICATIONS

Qualifications2 Different Senses:

1. endowments, qualities, attributes which make an individual eligible for public officemust possess at the time of the appointment/election and continuously for as long as the official relationship exists2. act of entering into the performance of the functions of public office

Property qualifications may not be imposed for the exercise of the right to run for public office. Loss of any of the qualifications during incumbency will be a ground for termination. Failure of an officer to perform an act required by law could affect the officer’s title to the given office. Prolonged failure or refusal to take the oath of office could result in forfeiture of the office. BP 881 – “the office of any official ELECTED who fails or refuses to take his oath of office within 6 months from his proclamation shall be considered vacant UNLESS failure is for a cause/s beyond his control. Oath of office is a qualifying requirement for public office. Until he is qualified, the holdover officer is the rightful occupant. Oath of office taken before one who has no authority to administer oath, is no oath at all. Pendency of election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions.

Authority to Prescribe Qualifications Qualification prescribed by Constitution generally exclusive unless Constitution provides otherwise Public officers created by statute Congress has plenary powers to prescribe qualifications, provided:1. germane to the objectives for which the office was created

131


2. qualifications are not too specific as to fit a particular identifiable person that would deprive appointing authority of discretion in the selection of the appointee

Disqualifications Authority Legislature has the right to prescribe disqualifications in the same manner as it can prescribe qualifications. Limitation: do not violate the Constitution Disqualification may be because of unfitness for public office or because the person is rendered ineligible for the office. General Disqualifications under the Constitution1. No candidate who lost in an election, shall, within 1 year after such election, be appointed to any office in the Government.2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.3. No appointive official shall hold any other position in the Government, unless otherwise allowed by law or the primary functions of his office.

*ex-officio capacity Specific Disqualification under the Constitution1. President, VP, Cabinet Members and their deputies and assistants shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution.2. No Senator or Member of the HR may hold any other office or employment in the Government including GOCC, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments increased during the term for which he was elected.3. Members of the SC and of other courts established by law shall not be designated

to any agency performing quasi-judicial or administrative functions.4. No member of the Constitutional Commission shall during his tenure, hold any other office or employment. Applies to Ombudsman and his deputies.5. Ombudsman and his deputies shall not be qualified to run for office in the election immediately succeeding their cessation.6. Members of the Constitutional Commission, Ombudsman and deputies must not have been candidates for any elective position in the election immediately preceding their appointments.7. Members of the Constitutional Commission, Ombudsman and his deputies are appointed to a term of 7 years, without reappointment.8. Spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed: As members of the Constitutional Commission Office of Ombudsman Secretaries Undersecretaries Chairmen/heads

III. DE FACTO OFFICERS

- Reputation of being an officer and yet is not a good officer in point of law.- Acted as an officer for such length of time under color of title and under such circumstances of reputation or acquiescence by the public and public authorities as to afford a presumption of election/appointment and induce people to submit to or invoke his action.

Legal Effect- Those that affect the public are valid, binding and with full legal effect.- For the protection of the public.

132


Elements1. validly existing public office2. actual physical possession of said office3. color of title to the officea. by reputation/acquiescence b. known and valid appointment/election but officer failed to conform to a requirement imposed by lawc. known appointment or election, void (though unknown to public) because:i. ineligibility of officerii. want of authority of appointing/electing authorityiii. irregularity in appointment/electiond. known appointment/election pursuant to unconstitutional law, before law was declared unconstitutional.

Entitlement of Salaries- GR: rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title.- Where there is NO DE JURE officer, the officer de facto who in good faith has had possession of the office and has discharged the duties is legally entitled to emoluments.- Principle of public policy on which de facto doctrine is based.

IV. COMMENCEMENT OF OFFICIAL RELATIONS

Official relations are commenced:1) Appointment2) Election

Appointment- selection by the authority vested with the power, of an individual who is to perform the functions of a given office.

Commission- written evidence of appointment

Designation- imposition of additional duties

Classification1) Permanent - Extended to person possessing the requisite qualifications- Security of tenure2) Temporary- Acting appointment- May not possess the requisite qualifications for eligibility - Revocable at will, without necessity of just cause or a valid investigation

- Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; new appointment is necessary- Appointment to a position in the Career Service of the Civil Service does not necessarily mean that the appointment is a permanent one depend on the nature of the appointment which in turn depends on the appointee’s eligibility or lack of it.- Acceptance by petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position.- Temporary appointment shall not exceed 12 months.- Mere designation does not confer security of tenure person designated occupies the position only in an acting capacity.- Appointment is subject to conditions, appointment is not permanent.- Appointee cannot claim a complete appointment as long as the re-evaluation incidental to the re-organization is still pending.- “unless terminated sooner” even if co-terminous with the project, it is

133


nevertheless subject to the appointing authority.- Where temporary appointment is for a FIXED period, appointment may be revoked only at the expiration of the period OR if before, it must be for a valid and just cause.3) Regular- One made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments and continues until the end of the term.

4) Ad-interim- Made while Congress is not in session, before confirmation by the Commission on Appointments, is immediately effective - Ceases to be valid if disapproved or bypassed by COA upon next adjournment of Congress- Permanent appointment- That it is subject to confirmation, does not alter its permanent character.

- Regular and Ad-interim Classification may be used only when referring to the following:1) Heads of Executive Department; 2) Ambassadors and other Publi Ministers and Consuls3) Officers of the AFP, from rank of colonel or naval captain4) Officers whose appointments are vested in the President under the Constitution.

Steps in Appointing ProcessFor REGULAR Appointments

1) Nomination by President2) Confirmation by COA3) Issuance of the Commission4) Acceptance by the appointee

AD-INTERIM Appointment1) Nomination by President2) Issuance of the Commission3) Acceptance by the appointee

4) Confirmation by COA

DO NOT require Confirmation1) Appointment by Appointing Authority2) Issuance of the Commission3) Acceptance by the Appointee

- A person cannot be compelled to accept an appointment EXCEPT when the appointment is made to an office required in defense of the State/- Where appointment is to the CAREER SERVICE of the CIVIL SERVICE, attestation by the Civil Service Commission is required. Otherwise, not deemed complete. Appointment not submitted to the CSC w/in 30 days from the issuance (date appearing on the face of the appointment) shall be ineffective.- CSC is authorized to check of the appointee possesses the qualifications and appropriate eligibility; if he does, appointment must be approved; of not, it is disapproved.- Appointment is complete when the last act required of the appointing power is performed; until the process is completed, appointee can claim no vested right in the officer nor claim security of tenure.- Appointment to be valid, position must be vacant.

Discretion of Appointing Authority Discretionary power and must be performed by the officer in whom it is vested. Only condition, appointee must possess the minimum qualifications requirements prescribed by law. Appointing authority is in the best position to determine who among the prospective appointees can effectively discharge the functions of the position. Final choice of appointing authority should be respected and left undisturbed.

134


Commission may not and should not substitute its judgment for that of the appointing authority. Civil Service Law grants career service officers preference in promotion under the “next-in-rank” rule, it is not mandatory, appointing authority should be allowed the choice of men of his confidence provided they are qualified and eligible. Provincial, city prosecutor and their assistants appointed by President upon recommendation of Secretary of Justice (mere advise). Discretion of appointing authority choice of the person WHO is to be appointed, NATURE and CHARACTER of appointment.

Judicial Review of Appointments Appointment generally a political question; as long as appointee possess minimum qualifications as prescribed by law for the position. Action for usurpation of office Who claims a valid title to the office.

Jurisdiction of the Civil Service Commission Disciplinary cases Cases involving personnel action Employment status and qualification standard Recall an appointment initially approved – when issued with disregard to Civil Service Laws, rules and regulations Approving and reviewing appointments to determine their compliance with the Civil Service Law On its own, does not have the authority to terminate employment or drop members from the roll

Appointments to the Civil Service Scope: ALL branches, subdivision, instrumentalities and agencies of the

Government, including GOCC with original charter.

Classes of Service1. Career Servicec. Description- Entrance based on merit and fitness, as far as practicable by competitive examinations- Or based on highly and technical qualifications- Opportunity for advancement to higher career positions- Security of tenured. Includes:1) Open Career Service- Prior qualification in an appropriate examination is required2) Closed Career Service- Scientific or highly technical3) Career Executive Service- Undersecretaries, bureau directors, etc.4) Positions in the Armed Forces of the Philippines- Governed by a different merit system5) Career Officers- Other than those belonging to Career Executive Service, appointed by President, e.g. foreign service6) Personnel of GOCC w/ original charters7) Permanent laborers (skilled, semi-skilled or unskilled) Career Executive Service 2 requirements to attain security of tenure

i. Career executive service eligibilityii. Appointment to the appropriate career

executive service rank Security of tenure pertains only to rank and not to the office or position

3. Non-Career Servicea. Description- Entrance on bases other than those of the usual tests utilized for the career service - Tenure

135


5) limited to a period specified by law or 6) which is co-terminous with that of the appointing authority or 7) subject of his pleasure or 8) which is limited to the duration of a particular project for which purpose the employment was made.b. Includes:1) Elective officials, personal and confidential staff2) Department Heads and officials of Cabinet rank who holds office at the pleasure of the President, personal and confidential staff3) Chairmen and members of commissions/boards w/ fixed terms of office, personal and confidential staff4) Contractual personnel/ those whose employment in government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in employing agency, to be accomplished within a period not exceeding 1 year, under his own responsibility, with minimum direction and supervision5) Emergency and seasonal personnel

- Under Administrative Code, the CSC is expressly empowered to declare positions in the CS as primarily confidential.- Enumeration in the Civil Service decree, which defined the non-career service is not an exclusive list. Commission can supplement this list.- Coterminous status may be classified as:o co-terminous with project – duration of particular project for which employment was made. o co-terminous with appointing authority – tenure of appointing authority or at his pleasureo co-terminous with incumbent – co-existent with appointee, such that after the latter’s resignation, separation or

termination of the services, the position shall be deemed automatically abolished.o co-terminous with a specific period – for a specific period, upon expiration, position is deemed abolished.

Requisites1. made according to merit and fitness2. competitive examination

Exceptions:1. policy determining2. primarily confidential or3. highly technical

- In a department, appointing power is vested in the DEPARTMENT SECRETARY, although it may be delegated to the REGIONAL DIRECTOR, subject to approval of the Department Secretary.

- Principles1) Classification of a particular position as policy-determining, primarily confidential or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position2) The exemption provided pertains only to exemption from competitive examination to determine merit and fitness to enter the civil service3) Exempt from competitive examination to determine merit and fitness:a. Policy-determining Officer lays down principal or fundamental guidelines or rules E.g. department headb. Primarily confidential Not only confidence in the aptitude if the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayal on confidential matters of state

136


NATURE of the position which determined whether a position is primarily confidential, policy-determining or highly technical “proximity rule” – can be considered as confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust or confidential matters of the State. Where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant, and cannot be classified as primarily confidential.c. Highly technical – requires possession of technical skill in a superior degree. Legal counsel of PNB City Legal Officer City Attorney Security Council and Security Guards of the City Vice Mayor

Other Personnel Action

1) Promotion2) Appointment through Certification3) Transfer4) Reinstatement5) Detail6) Reassignment7) Reemployment

Promotion- Movement from one position to another with increased duties and responsibilities as authorized by law- Usually accompanied by an increase in pay.- Next-in-rank Rule The one who is next in rank is given preferential consideration

Does not mean that he alone can be appointed Appointing authority is required to state the “special reasons” for not appointing the officer next in rank.- 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. Affected persons are entitled to payment of salaries for services rendered at a rate fixed in their promotional appointments. Requisites:1. series of promotions2. all promotional appointments are simultaneously submitted to the Commission for approval3. Commission disapproves the appointment of a person to a higher position

Appointment through Certification- Issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles and who meets the qualifications prescribed for the position.

Transfer- Movement from one position to another which is of equivalent rank, level or salary without break in service.- May be imposed as an administrative penalty.- Unconsented transfer violates security of tenure.- Career Executive Service personnel can be shifted from one office to another without violating their right to security of tenure, because salary and status is based on their

137


ranks and not on the positions to which they are assigned.

Reinstatement- Has been permanently appointed in the career service and who has, through no delinquency of misconduct, been separated may be reinstated to a position in the same level for which he is qualified.- Acquisition of civil service eligibility is not the sole factor for the reappointment. Other factors should be considered: performance, degree of education, work experience, training, seniority and enjoys confidence and trust of the appointing power.- Not subject to application for a writ of mandamus.- Issuance of new appointment which is discretionary- Exercise of discretionary power cannot be controlled by the courts, as long as properly exercised- Forfeited his right to public office because of conviction of a crime, but was extended plenary pardon CANNOT by reason of pardon demand reinstatement as a matter of right.- Exception: 1. Sabello vs. DECS – considerations of justice and equity2. Garcia vs. Chairman, Commission on Audit – person given pardon because he did not truly commit the offense; the pardon relives him from all punitive consequences of his criminal act thereby restoring him to his clean name, good reputation and unstained character prior to his finding of guilt.

Detail- Movement of an employee from one agency to another without the issuance of an appointment- Allowed only for a limited period of time in the case of employees occupying

professional, technical and scientific positions- Temporary in nature

Reassignment- Reassigned from one organizational unit to another in the same agency- Not involve reduction in rank, status or salary- Management prerogative vested in the CSC, any department or agency embraced in Civil Service- Does not constitute removal without cause- Should have definite date and duration.- Lack of specific duration is tantamount to floating assignment thus a dimunition in status or rank.

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- Separated not for a cause but as a result of reorganization separation pay + retirement and other benefits; in lieu of separation pay, may be considered for employment (Proclamation No. 3)

V. POWERS AND DUTIES OF PUBLIC OFFICERS

Authority of Public Officers1. Expressly conferred upon him by the ACT appointing him2. Expressly ANNEXED to the office by LAW3. Attached to the office by COMMON LAW as incidents to it4. Doctrine of Necessary Implication – all powers necessary for the effective exercise of the express powers

138


Authority can be exercised only during the term when the public officer, is by law, invested with the rights and duties of the office.

Ministerial and Discretionary Powers1. Ministerial – discharge by officer is imperative and requires neither judgment nor discretion; exercise of which may be compelled2. Discretionary – imposed by law upon a public officer; officer has the right to decide how and when the duty shall be performed; mandamus will not lie to compel performance Exception: when mandamus will lie:1. GAD2. manifest injustice3. palpable excess of authority equivalent to a denial of settled rights4. no other plain, speedy or adequate remedy

writ may issue to compel the exercise of discretion but not the discretion itself Courts may review exercise of discretion, to determine if there has been GAD amounting to lack or excess of jurisdiction Judgment – judicial functions; determination of a question of law; only one way to be right Discretion, may decide the question either way and still be right; limited to the evident purpose of the act

Duties of Public OfficerConstitutional Duties To be accountable to the people To serve them with utmost responsibility, loyalty and efficiency To act with patriotism and justice To lead modest lives To submit a declaration under oath of his assets, liabilities and net worth upon

assumption of office and as often as may be required To owe the State and Constitution allegiance at all times SOLGEN – represent government and its offices EXCEPT criminal cases and civil cases for damages arising from felony.

Prohibitions1. Partisan political activity or taking part in any election except to vote Except: 1. those holding political offices2. cabinet members2. Additional or double compensation3. Prohibition against loans4. Limitation on laborers Not assigned to clerical duties5. Detail or reassignment w/in 3 months before any election without approval of COMELEC6. Nepotism Appointments made in favor of a relative of the appointing or recommending authority or of the chief of the bureau or office or of the person exercising immediate supervision over him. All appointments. Relative: those related within the 3rd civil degree by consanguinity or affinity Exemption:1. confidential capacity2. teachers3. physicians4. members of the Armed Forces* full report of appointment shall be made to the Commission

VI. LIABILITY OF PUBLIC OFFICERS

General Rule on Liability A public officer is not liable for injuries sustained by another as a consequence of official acts done within the scope of his

139


official authority, except as otherwise provided by law. Not civilly liable for acts done in official capacity UNLESS bad faith, malice, negligence Liable for willful or negligent acts done by him which are contrary to morals, law public policy and good customs EVEN if he acted under instructions of his superiors. Local governments are not exempt from liabilities for DEATH or INJURY to persons or DAMAGE to property.

Statutory Liability Article 27, CC – refuses or neglects without just cause to perform his official duty, whereby a person suffers moral or material loss; without prejudice to administrative disciplinary sanction Article 32, CC – liability of public officer for violation of constitutional rights Article 34, CC – liability of peace officer who fails to respond or give assistance to persons in danger of injury to life or property w/o just cause. Neglects to perform a duty within a period fixed by law or regulation or within a reasonable period if none is fixed

Liability on Contracts personally entered without or exceeded his authority

Liability for Tort personally beyond the scope of his authority or exceeds power conferred upon him; ultra vires or where there is bad faith

Presidential Immunity from Suit during tenure of the President After his tenure, cannot invoke immunity from suit for civil damages arising out of acts done by him, while he was president which were not performed in the exercise of official duties.

Not prevented from instituting suit.

Threefold Liability Rule Wrongs acts or omissions of a public officer may give rise to civil, criminal and administrative liability. Action for each can proceed independently Dismissal of one does not foreclose action for others. difference in quantum of evidence

Liability of Minsiterial Officers1. Nonfeasance – neglect or refusal to perform an act which is the officer’s legal obligation2. Misfeasance – failure to exercise that degree of care, skill and diligence in the performance of official duty3. Malfeasance – doing, through ignorance, inattention or malice of an act which he had no legal right to perform.

Command Responsibility Head of a department or a superior officer shall not be civilly liable for the wrongful acts, omission of duty, negligence or misfeasance of his subordinates, UNLESS he has actually authorized by written order the specific act or misconduct.

VII. RIGHTS OF PUBLIC OFFICERS

1. Right to Office2. Right to Salary3. Right to Preference in Promotion4. Right to Vacation and Sick Leave5. Right to Maternity Leave6. Right to Retirement Pay7. Right to reimbursement for expenses incurred in due performance of duty8. Right to be indemnified against any liability9. Right to longevity pay

Right to Office

140


Just and legal claim to exercise the powers and the responsibilities of the public office. Term vs. Tenure Term: period during which the officer may claim to hold the office as a matter of right. Tenure: period during which the officer actually holds office.Right to Salary Salary – personal compensation to be paid to the public officer for his services Generally a fixed or periodical payment depending on the time and not on the amount of the services he may render. Distinguished from wages: Salaries are given to officers of higher degree of employment than those given wages. Salary is compensation per annum. Wages are paid day by day or week by week. Basis: 1. legal title to the office2. law attaches compensation to the office Right of de facto officer to compensation when there is no de jure and de facto officer, who in good faith has possession of the office and has discharged the duties. Salary cannot be garnished nor subject to attachment or order of execution before being paid to him to answer for the payment of his debts. Public policy also prohibits the assignment of unearned salaries Agreements affecting compensation are void as contrary to public policy. Compensation, allowances and other benefits granted without the approval of the DBM are unauthorized and irregular. Constitutional provisions affecting salaries:1. no increase in salaries of members of Congress shall take effect until after the expiration of the full term of the Members of

the Senate and HofRep who approved he increase.2. Salaries of President and VP shall be fixed by law and sjall not be decreased during their tenure. No increase, until after expiration of the incumbent during which increase was approved.3. Salary of members of the Judiciary shall not be decreased during their continuance in office; income tax is not unconstitutional dimunition.4. Additional, double or indirect compensation are prohibited.5. Standardization of compensation.6. Separation pay to career Civil Service employees who are separated from service not for cause but by reason of reorganization.

Preventive Suspension and the Right to Salary1. Preventive Suspension pending investigation2. Preventive Suspension pending appeal

If the penalty imposed is suspension or dismissal and after review, he is exonerated no right to compensation during preventive suspension even pending investigation It is not enough that he is exonerated; it must be shown that suspension is unjustified Justified if charged with:1. dishonesty2. oppression3. grave misconduct4. neglect of duty Gloria vs. Court if Appeals entitled not only to reinstatement but also to back wages for the period of preventive suspension pending appeal. Because preventive suspension pending appeal is actually PUNITIVE. Award should not exceed equivalent of 5 years pay at the rate last received before suspension was imposed.

141


If his conviction is affirmed, the period of his suspension becomes part of the final penalty of suspension.

Right to back salaries of illegally dismissed employees Illegally dismissed government employees who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. “no work, no pay” not applicable Note: Balitaosan vs. Secretary, DECS: reinstatement was not the result of exoneration but an ACT OF LIBERALITY of the CA, the claim for back wages was not allowed. Thus the general rule that a public official is not entitled to compensation if he has not rendered any service was applied. No right to back wages if NOT EXONERATED and NOT UNJUSTIFIABLY SUSPENDED

Right to additional allowance and benefits LGUs may provide additional allowances and benefits to national government officials assigned or stationed in their municipality or city. Not without limitations.

Right to Preference in Promotion Right does not prevail over discretion of appointing authority.

Right to Vacation and Sick Leave Sec 81, RA 7160 (LGC) – Elective local officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials, including the cumulation and commutation. Entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned, provided the claimant was in the service as of January 9, 1986.

Government employees are not required to work on Saturdays, Sundays and holidays.

Right to Maternity Leave

Right to Retirement Pay Retirement laws are liberally construed in favor of the retiree. Money value of the terminal leave of a retiring government official shall be computed at the retiree’s highest monthly pay. Judiciary – extension if satisfied that the career was marked by competence, integrity and dedication to the public service. A reserved officer who successfully rendered a total of 10 years continuous active commissioned military service shall not be reverted to inactive service except for cause or upon his own request. Covered by compulsory membership in the GSIS. Totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the systems.

Right to reimbursement for expenses incurred in due performance of duty

Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties.

Right to longevity pay

VIII. TERMINATION OF OFFICIAL RELATIONSHIP

Modes of Terminating Official Relationship1. Expiration of term or tenure2. Reaching the age limit3. Resignation4. Recall5. Removal 6. Abandonment7. Acceptance of an Incompatible Office8. Abolition of Office

142


9. Prescription of the Right to Office10. Impeachment11. Death12. Failure to Assume Elective Office w/in 6 months from proclamation13. Conviction of a Crime14. Filing of Certificate of Candidacy

Expiration of term or tenure Courtesy resignation during the EDSA Revolution expiration of term; entitled to retirement benefits Termination presupposes an overt act committed by a superior officer Commencement of Term of Office1. statute fixes a period upon qualification2. no time is fixed by law date of appointment/election3. law fixing the term is ambiguous one that fixes the term at the shortest period should be followed4. both duration of the term of office and the time of its commencement/termination are fixed by constitutional or statutory provision person appointed or elected for vacancy shall hold the same only for the unexpired portion5. only the duration is fixed, no time is fixed for beginning or end person selected to fill the vacancy may serve the full term and not merely the unexpired balance of the prior incumbent’s term6. office is created/officer appointed for the purpose of performing a single act or accomplishment of a given result office terminates and the authority ceases with the accomplishment of the purposes which called it into being. Principle of Hold-Over: public officer is entitled to hold his office until his successor shall have been duly chosen and shall have qualified. Purpose is to prevent hiatus in public service. Legislative intent of not allowing hold-over must be clearly expressed or at least

implied in the legislative enactment, otherwise, it is reasonable to assume that the law-making body favors the same. Article 237, RPC which penalizes public officer who shall continue to exercise the duties and powers of the office beyond the period provided by law. During this period, de jure officer Where the law fixes a specific sate for the end of the term implied prohibition against hold-over

Reaching the age limit Compulsory Retirement Age 70 for members of judiciary 65 for other government officers or employees Special Retirement Laws: RA 1616 – allows optional retirement after an officer has rendered a minimum number of years of government service, when availed of by the public officer, will result in the termination of official relationship through reaching the age limit or retirement.

Resignation

Act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. Intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority Voluntariness – when procured by fraud, may be invalidated Courtesy resignation lacks the element of voluntariness and therefore is not a valid resignation. Need for Acceptance – not complete until accepted by competent authority Article 238, RPC penalizes any public officer who, before the acceptance of his resignation, abandons his office to the detriment of the public service. If the public officer is mandated by law to hold-over, the resignation, even if

143


accepted, will not be effective until after appointment/election of his successor. Accepting Authority – RA 7160, officers authorized to accept resignation:1. President – governor, vice-governor, mayor and vice-mayor f highly urbanized cities and independent component cities2. Governor – municipal mayors and vice-mayors, city mayors and vice-mayors of component cities3. Sanggunian – sanggunian members4. City or municipal mayor – barangay officials Resignation deemed accepted if not acted upon w/in 15 days from receipt Resignation by Sanggunian members shall be deemed accepted upon:1. presentation before an open session of the sanggunian concerned2. duly entered in its record3. EXCEPT where sanggunian members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignation If the law is silent on who shall accept:1. appointive officer resigns appointing authority2. elective officer resigns officer authorized by law to call an election in order to fill the vacancy President and VP Congress Members of Congress respective Houses

Effective Date of Resignation Date specified in the tender No date specified public officer receives notice of the acceptance NOT the date of the letter or notice of acceptance

Recall Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

By Whom: registered voters of a LGU to which such local government official belongs Initiation of the Recall Process: registered voters of the LGU Procedure for Initiating Recall1. initiated upon petition by at least 25% of the total number of registered voters in the LGU2. written petition duly signed before the election registrar/representative in the presence of a representative of the petitioner representative of the official in a public place, in the province, city, municipality or barangay filed with the COMELEC through its office in the LGU concerned3. COMELEC shall cause the publication of the petition In a public and conspicuous place Period not less than 10 days nor more than 20 days Purpose of verifying the authenticity and genuineness of the petition and required percentage of voters4. Lapse of the period, COMELEC or its duly authorized representative, shall announce the acceptance of candidates to the position and prepare list of candidates, including the name of the official sought to be recalled. Election on Recall

Upon filing of a valid petition, COMELEC shall set date for the election on recall Not later than 30 days after the filing of the resolution/petition in the case of barangay/city/municipal officials Not later than 45 days in the case of provincial officials Officials sought to be recalled, automatically considered as registered candidate.

144


Effectivity of Recall Recall of an elective official shall be effective upon the election an proclamation of a successor. If the official sought to be recalled receives the highest number of votes confidence in him is affirmed and he shall continue in office Prohibition from Resignation Limitation on Recall1. any elective official may be subject of a recall election once during his term of office for lack of confidence2. no recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election Sangguiniang Kabataan election is not a regular election; Not barred by barangay election Approaching local election must be one where the position of the official to be recalled is actually contested and to be filled by the electorate

Removal Constitutional Guarantee of Security of Tenure – not removed or suspended except for causes provided by law Career service officers and employees causes enumerated in law and in accordance with procedure prescribed Removal not for just cause or non-compliance with prescribed procedures reversible, reinstatement with back salaries and without loss of seniority rights Demotion is tantamount to unlawful removal is NO CAUSE is shown or it is NOT PART OF DISCIPLINARY ACTION Unconsented transfer resulting in demotion in rank or salary is tantamount to removal without just cause. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to lure the employee away from his permanent position, cannot be done

without the employee’s consent, for that would constitute removal from office. No permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. Some cases on Grounds for Disciplinary Action:1. Dishonesty – concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty; e.g. use of fake or spurious civil service eligibility2. Conduct prejudicial to the best interest of the service3. Misconduct – transgression of some established and definite rule of action; wrongful intention Administrative Code of 1987: 1) Unsatisfactory conduct and 2) Want of capacity Civil Service Law: inefficiency and incompetence in the performance of official duties Poor performance falls within the concept of inefficiency and incompetence Inefficiency and incompetence can only be determined after the passage of sufficient time, hence, the probationary period of 6 months. Poltical or non-career members of the Foreign Service is coterminous with that of the appointing authority or subject to his pleasure Holding primarily confidential positions continue in office as long as the confidence in them endures; termination is justified on the ground of lack of confidence removal: expiration of term Holding temporary or acting appointments may be removed at any time, without necessity of just cause or a valid investigation.

Procedure in Administrative Case

145


1. Administrative case against a public official shall continue despite withdrawal of the complaint since they do not involve purely private matters but are impressed with public interest by virtue of the public character of the public office.2. Substantial proof and not clear and convincing evidence or proof beyond reasonable doubt is sufficient. Satisfied when the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation renders him unworthy of trust and confidence demanded by his position.

Jurisdiction in Disciplinary Cases1. Heads of ministries, agencies and instrumentalities, provinces, cities and municipalities have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Decision final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary. Other cases, decision shall be initially appealed to the department head and finally to the Civil Service Commission and pending appeal, shall be executory EXCEPT when the penalty is removal, in which case it shall be executory only after confirmation by the department head. Committee to hear administrative charge against public school teacher representative of the teacher’s organization2. Civil Service Commission has appellate jurisdiction. Case may be filed directly to it; it may decide on the case or deputize a department or agency

Preventive Suspension The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an

investigation if the charge against such officer or employee involves 1) dishonesty, 2) oppression or grave misconduct or 3) neglect in the performance of duty or 4) if there is reason to believe that the respondent is guilty of charges which would warrant his removal from the service. Not a penalty. Enable authorities to investigate. If the investigation is not finished and a decision is not rendered within a period of 90 days, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation, he is innocent of the charges and is exonerated, he should be reinstated. Preventive suspension can be ordered even without a hearing. Authority to preventively suspend: exercised concurrently by the Ombudsman RA 6770: 6 months Court may validly order the preventive suspension of officer (since removal of office is within the power of the Courts)

Back salary is not warranted when the immediate execution of the order of dismissal is justified.

Appeal Made within 15 days from receipt of the decision UNLESS a petition for reconsideration is filed, which shall be decided within 15 days Petition for Reconsideration – 3 grounds only:(1) New evidence has been discovered which materially affects the decision(2) Decision is not supported by evidence on record(3) Error of law or irregularities have been committed which are prejudicial to the interest f the respondent

146


From resolution of the CSC, file a petition for certiorari R65 w/in 30 days from receipt of copy of the resolution

Summary Dismissal RA 6654

Removal of Administrative Penalties or Disabilities Meritorious cases, upon recommendation of the CSC President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases Subject to terms and conditions he may impose in the interest of the service

Abandonment Voluntary relinquishment of an office by the holder with the intention of terminating his possession and control Species of resignation Resignation is formal relinquishment Abandonment is voluntary relinquishment through non-user “Non-user” neglect to use a privilege or a right or to exercise an easement or an office A person holding an office may abandon such office(1) Non-user(2) Acquiescence Non-performance does not constitute abandonment when:(1) Temporary disability(2) Involuntary failure to perform Public officer vacates office in deference to the requirements of a statute which is afterwards declared unconstitutional, such surrender will not be deemed abandonment. Mere delay in qualifying for an office is not abandonment But failure to assume office w/in 6 months fro proclamation, without just or

valid cause, shall have the effect of vacating the office. Automatically separated if he fails to return to the service after the expiration of 1-year leave of absence without pay. Absent for at least 30 days without approved leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. Granting or approval of leaves – discretionary on the head and depends upon the needs of the service Failure to make courtesy call to one’s superior is not an offense, much less a ground to terminate employment.

Acceptance of an Incompatible Office Test of Incompatibility Nature and relation of the two offices to each other, they ought not to be held by one person from the contrariety and antagonism which would result Acceptance of incompatible office ipso facto vacates the other. There is no necessity for any proceeding to declare or complete the vacation of the first. Canonizado vs. Aguirre – no incompatibility; though accepted latter, he continued to pursue legal remedies to recover the first from which he was ousted by a law later to be declared unconstitutional. Exception: when authorized by law to accept the other office.

Abolition of Office Power of legislature to abolish an office – Congress; even during the term for which an existing incumbent may have been elected Constitutional offices cannot be abolished No law shall be passed reorganizing the Judiciary, when it undermines security of tenure

147


Valid abolition of office does not constitute removal of incumbent Legal competence if the city council to create, consolidate and reorganize city offices and positions wholly supported by local funds Requisite for Abolition of Office(1) Made in good faith(2) Clear intent to do away with the office(3) Cannot be implemented in a manner contrary to law Reorganization of Government Offices Constitutional recognition of authority to reorganize: promotion of simplicity, economy and efficiency is the usual standard. No violation of due process even if no hearing was conducted in the matter of reorganization of DBP, as long as employee was given a chance to present evidence. Removal of employees pursuant to guidelines in EO116, reorganization of Dept. of Agriculture(1) Existence of case for summary dismissal(2) Probable cause for violation of RA 3019(3) Gross incompetence or inefficiency(4) Misuse of public office for partisan political activities(5) Analogous grounds showing that incumbent is unfit to remain in office Reorganization must meet the common test of good faith. PD1416: grants the President the continuing authority to reorganize the national government, which includes the power to group consolidate bureaus and agencies, to abolish offices, to transfer functions, to classify and create functions, services and activities and to standardize salaries and materials.

Prescription of the Right to Office Petition for reinstatement after illegal ouster or dismissal OR recovery of public office w/in 1 year from the date petitioner is illegally ousted.

Exception: strong, compelling and special circumstances Cristobal vs. Melchor: on grounds of equity Reason: title to public office should not be subject to continued uncertainty; should be determined as speedily as possible. Filing of an action for administrative remedy does NOT suspend the period for filing the appropriate judicial proceeding (quo warranto); 1 year period runs even during pendency of a motion for reconsideration.

Impeachment

Death Renders office vacant.

Failure to Assume Elective Office w/in 6 months from proclamation Unless failure is for a cause or causes beyond his control

Conviction of a Crime Penalty imposed upon conviction carries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship. Plenary pardon extinguished the accessory penalty of disqualification, it will not restore the public office to the officer convicted; He must be given a new appointment.

Filing of Certificate of Candidacy Any person holding a public appointive office or position, Including active members of the AFP And officers and employees in GOCCs Shall be considered ipso facto RESIGNED upon filing of certificate of candidacy. Applies even to employees of GOCCs without an original charter

148


GENERAL PRINCIPLES

International Law, defined- Traditional – branch of public law which regulates the relations of States and of other entities which have been granted international personality. Focuses on SUBJECTS (entities which possess international personality and with rights and obligations recognized under international law) as opposed to OBJECTS (which are persons or things in respect of which rights are held and obligations assumed by the subjects of international law)- Modern – law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical.

Basis of International Law1. Law of Nature School There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the law of nature.2. Positivist School Binding force of international law is derived from the agreement of the States to be bound by it. International law is not a law of subordination but of coordination.3. Eclectic or Grotian School In so far as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and is an expression of it.

In case of conflict, the natural law prevails, being the more fundamental law.

Public International Law distinguished from:

Private International Law

Public International Law

Private International Law

Nature International MunicipalRemedies International

ModesLocal Tribunals

Parties International Entities

Private Persons

Enforcement International Sanction

Sheriff/Police

International Morality/Ethics – Principles which governs relations of States from the standpoint of conscience, morality, justice and humanity. International Comity – Rules of politeness/courtesy observed by States in relations with other States International Diplomacy – Objects of international policy and the conduct of foreign affairs International Administrative Law – Body of laws which regulate the relations and activities of national and international agencies with respect to theor material and intellectual interests which have received international recognition.

International Law as true law Although it does not comply with John Austin’s concept of law (enforced by sovereign political authority), it is still true law. Application, Enforcement and Compliance Weakened compliance:1. lack of central law-making authority2. debilitating jurisdictional defects

149


balanced by the risk of political/economic retaliations and other sanctions:1. public opinions2. retorsions3. UN machinery4. conviction that obedience will redound to the public good

Relationship with Municipal Law Monist – no substantial distinction Dualist

Municipal Law International LawIssued by a political superior for observance by those under its authority.

Not imposed but adopted by states as a common rule of action.

Enactments of the law-making authority

Derived from such sources as: international customs, conventions or general principles of law

Regulates relations of individuals among themselves

Applies to relations between states and international persons

Violations are redressed through local judicial and administrative processes

Resolved through state-to-state transactions

Breaches entail individual responsibility

Collective responsibility

Incorporation Doctrine of Incorporation (Section 2, Article II) - … adopts the generally accepted principles of international law as part of the law of the land… Although Philippines was not a signatory to the Hague and Geneva Conventions, international jurisprudence is automatically incorporated in Philippine

law, making WAR CRIMES punishable in the Philippines. (Kuroda vs. Jalandoni) Prolonged detention of stateless aliens pending deportation was deemed illegal incorporating Universal Declaration of Human Rights (Borovsky vs. Commissioner of Immigration) Transformation Doctrine of Transformation requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. “protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature” taken from the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978, which recognizes health as a fundamental human right. LLDA’s authority to issue cease and desist order doctrine of necessary implication

Conflict Between International Law and Municipal Law On the domestic sphere, with local court deciding:o If in conflict with CONSTITUTION – Consti prevails SC has the power to declare a treaty/executive agreement unconstitutional Where Consti is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constio If in conflict with STATUTE Doctrine of Incorporation decrees that rules of international law are given equal standing with national legislative enactments, not superior. Treaty may repeal a statute, a statute may repeal a treaty principle of lex posterior derogate priori , that which comes last in time will usually be upheld by the municipal tribunal

150


Retail Trade Nationalization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights – former passed in the exercise of police power of the State. On the international sphere, with an international tribunal deciding:o International law is superior to municipal law because international law provides the standard by which to determine the legality of a State’s conduct.

Sources of International Law- On domestic sphere1. Constitution2. Legislative Enactments3. Case Law (stare decisis)- On international law – problem because:1. no national legislature2. no fundamental law3. doctrine of precedents is not applicable

Note: Article 38, Statute of International Court of Justice- Courts whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply:1. As PRIMARY SOURCES International Treaties and Conventions General or particular Establishing rules expressly recognized by the contesting states. International Customs Evidence of general practice, accepted as binding law through persistent usage over a long period of time Custom be:1. prevailing practice by a number of states2. repeated over a considerable period of time3. attended by opinion juris or a sense of legal obligation General Principles of Law Rules derived mainly from natural law, observed and recognized by civilized nations.

e.g. res judicata, prescription, pacta sunt servanda, estoppel

2. As SECONDARY SOURCES Judicial Decisions Generally of international tribunals. Most authoritative: ICJ NOT really sources, but “subsidiary means” for finding what the law is and whether a norm has been accepted as a rule of international law. Decision of a national court may be used depending upon the prestige and perceived impartiality of the domestic court, not being in conflict with the decisions of international tribunals and its admissibility in the forum where it is cited. Writings of publicists1. fair and unbiased representation of international law2. by acknowledged authorities in the field

Interpretation of Article 38 although silent, by practice, hierarchy is:1. treaties2. customs3. general principles of law Exception: Principle of Jus Cogens Customary international law which has the status of a peremptory (absolute, uncompromisisng, certain) norm of international law. A peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted and which can be modified only as a subsequent norm having the same character. Example: slave trade, piracy and terrorism

II. SUBJECTS OF INTERNATIONAL LAW

Distinction Between Subject and Object of International Law

151


Subject Entity that has rights and responsibilities under international law. Proper party in transactions involving the application of the law of nation among members of the international community. Object Person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.

Subjects of International Law1. states2. colonies and dependencies3. mandates and trust territories4. Holy See5. United Nations6. belligerent communities7. international administrative bodies8. individuals

States group of people living together in a fixed territory, organized for political ends under an independent government and capable of entering into international relations with other states.

Elements of a State1. People Group of individual, of both sexes, living together as a community. Sufficient in number to maintain and perpetuate themselves. Casual gathering or a society of pirates would NOT constitute a state.2. Territory Fixed portion on the earth’s surface occupied by the inhabitants.

3. Government Organized, exercising control over and capable of maintaining law and order within the territory. Can be held internationally responsible for the acts of the inhabitants. Identity of the state is not affected by changes in government.4. Independence or Sovereignty Freedom from outside control in the conduct of its foreign and internal affairs.

Other Suggested Elements:1. Civilization2. Recognition Act by which a state acknowledges the existence of another state, a government, belligerent community and indicates its willingness to deal with the entity as such under international law.

Theories on Recognition1. Constitutive (Minority View) Recognition is the act which constitutes the entity into an international person. Recognition is compulsory and legal. It may be compelled once the elements of the state are established.2. Declarative (Majority View) Recognition merely affirms an existing fact, like possession of the state of the essential elements. Discretionary and political.

Basic Rules on Recognition Political act. A matter of policy on the part of each state Discretionary on the part of the recognizing authority. Exercised by the political (executive) department of the state. Legality and wisdom of recognition is not subject to judicial review.

152


Requirements for Recognition of Government1. Government is stable and effective2. With no substantial resistance to authority3. show willingness and ability to discharge its international obligation4. government must enjoy popular consent or approval of the people

Tobar/Wilson Doctrine Precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives.

Stimson Doctrine No recognition of a government established through external aggression.

Estrada Doctrine Recognition has been construed as approval and non-recognition as disapproval, of a government established through upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition. Dealing or not dealing with the government is not a judgment on the legitimacy of the said government.

Kinds of Recognition1. De Facto Some of the requirements for recognition are absent. Recognition generally provisional Limited to certain juridical relations and it does not bring about full diplomatic intercourse Does not give titles to assets of the state held or situated abroad2. De Jure Requirements for recognition are fulfilled

When there is no specific indication, recognition is generally considered de jure Relatively permanent Full diplomatic intercourse Diplomatic immunities Confers titles to assets abroad3. Express4. Implied

Effects of Recognition1. Diplomatic relations2. Right to sue in the courts of the recognizing state3. Immunity from jurisdiction4. Entitlement to property within the recognizing state5. Retroactive validation of the acts of the recognized state/government

Conditions for Recognition of Belligerency1. organized civil government having control and supervision over the armed struggle 2. serious and widespread struggle with outcome uncertain3. occupation of a substantial portion of the national territory4. willingness on the part of the rebels to observe the rules/customs of war absence of any will result merely in insurgency, which is rarely recognized recognition may either be express or implied examples of implied: proclamation by the parent state of a blockade of a port held by the rebels or proclamation of neutrality by a third state

Effects of Recognition of Belligerency1. Responsibility for the acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel government2. Legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities

153


3. 3rd states recognizing the belligerency shall maintain neutrality4. recognition is only provisional and for the purpose of the hostilities

Creation of States1. accretion of independence2. agreement3. attainment of civilization4. revolution5. unification6. succession

Extinction of States1. extinction2. emigration en masse of its population3. loss of territory4. overthrow of government resulting in anarchy

Principle of State Continuity The state continues as a juristic being notwithstanding changes in the circumstances, provided only that such changes do not result in the loss of any of its essential elements.

Succession of States Kinds:1. Universal2. Partial Effects:1. Political laws are abrogated while municipal laws remains in force2. Treaties are discontinued except those dealing with local rights and duties 3. All rights of the predecessor state are inherited4. Successor state can assume and reject liabilities in its discretion

Conquered state has no personality in international law.

Succession of Government1. Integrity of the State is not affected

2. State continues as the same international person except that its lawful representative is changed

Consequences of Succession of Government1. all rights of the predecessor government are inherited by the successor2. where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite, all obligations of the predecessor are likewise assumed3. where the new government is established through violence, the new government may lawfully reject purely personal political obligations of the predecessor but not those obligations contracted by it in the ordinary course of official business

Classes of States1. Independent – freedom to direct and control foreign relations without restraint from other statesa. Simple – single central government with power over internal and external affairs.b. Composite – 2 or more sovereign states joined together to constitute one international personi. Real Union 2 or more states are merged under a unified authority so that they form a single international person through which they act as one entity. State retains their separate identities. Respective international personalities are extinguished and blended in the new international person.ii. Federal Union2. Dependent – theoretically a state, but does not have full freedom in the direction of its external affairsa. Protectorate – established at the request of a weaker state for the protection by a strong powerb. Suzerainty – result of a concession from a state to a former colony that is allowed to

154


be independent subject to the retention by the former sovereign of certain powers over external affairs of the latter.3. Neutralized – independence and integrity are guaranteed by an international treaty on the condition that such states obligates itself never to take up arms against any other state (except in self-defense) or to enter into an international obligation as would indirectly involved it in war.

Vatican City and the Holy See Has all the constituent elements of statehood. Has all the rights of a state. The Holy See is an international person with which the Philippines had diplomatic ties until 1957.

Colonies and Dependencies Colony – dependent political community consisting of a number of citizens of the same country who migrated to inhabit another country, but remain subject to the mother state. Dependency – territory distinct from the country in which the supreme power resides, but belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe. NOTE: Theoretically, they belong to the parent state and are without any personality. However, on occasions, colonies have been allowed to participate in their own right to certain international undertaking.

Territories under International Control or Supervision Non-self-governing territories which have been placed under international supervision or control to insure their political, economic, social and educational advancement. Mandates: former territorial possession of states defeated in World War and placed under control of the League of Nations

Many of these mandates became trust territories which are placed under the Trusteeship Council of the United Nations.

Condominium – territory jointly administered by 2 states.

The United NationsHistorical Development

1. League of Nations2. London Declaration3. Atlantic Charter4. Declaration by United Nations5. Moscow Declaration6. Dumbarton Oaks Proposal7. Yulta Conference8. San Francisco Conference9. UN General Assembly welcomed Macedomia

UN Charter Constitution, that governs the relations of international persons Technically, a treaty – a contract which parties must respect under the doctrine of pacta sunt servanda, although it also applies to non-member States at least in so far as may be necessary for the maintenance of international peace and security. 111 articles + preamble + concluding provisions Annexed is the Statute of the ICJ

Amendment 2/3 of the members of the General Assembly and ratified in accordance with their respective constitutional processes by 2/3 of the members of the UN, including permanent members of the Security Council A general conference called by a majority vote of the General Assembly and any nine members of the Security Council, may propose amendments by a 2/3 vote of the conference and shall take effect when ratified by 2/3 of the members of the UN,

155


including the permanent member of the Security Council.

Principal Objectives1. prevention of war2. maintenance of international peace and security3. development of friendly relations among members of the international community4. attainment of international cooperation5. harmony in the actions of nations

Membership Classes: based on the manner of admission, members may be:1. Original 2. Elective Qualification1. State2. peace-loving3. accept the obligations under the Charter4. able and willing to carry out these obligations Admission Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least 9 including permanent members of the Security Council Suspension Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least 9 including permanent members of the Security Council Effects:1. Cannot participate in meetings2. Cannot be elected to continue or to serve in the Security Council, Economic and Social Council and Trusteeship Council 3. Nationals may continue to serve in the Secretariat and IC, 4. A member is still subject to discharge its obligations under the Charter To lift, qualified majority vote of the Security Council Expulsion

2/3 vote of those present and voting in the General Assembly upon recommendation of at qualified majority of the Security Council Ground: persistently violating the principles contained in Charter Withdrawal Intended that no provision on withdrawal is included in the charter. No compulsion for continued membership.

Principal Organs1. General Assembly2. Security Council3. Economic and Social Council4. Trusteeship Council5. Secretariat6. International Court of Justice

General Assembly- Consist of all the members of the organization- Each is entitled to not more than 5 representative and 5 alternates- Each member has only one vote- Regular session – once a year- May hold special sessions – called by Secretary General at the request of the Security Council or majority of members - On important questions, vote of 2/3 of the members present and voting is required- On other questions, a simple majority- To classify the question as important, the vote required is a simple majority- Functions1) Deliberative2) Supervisory3) Financial4) Elective5) Constituent

Security Council- Key organ in the maintenance of international peace and security- Composition

156


1) 5 permanent members: China, France, Russia, UK and US2) 10 elective members, elected for 2 years by the General Assembly 5 from African and Asian States 2 from Latin American States 2 from Western European and other states 1 from Eastern European state- For elective members, no immediate reelection is allowed- Function continuously and sessions may be called at any time- Representative of the state should always be available- Functions1) Maintain peace and security2) Investigate disputes and call disputants to settle their differences through peaceful means3) Recommend methods of adjustment of disputes 4) Determine the existence of threats to peace, breach of peace, acts of aggression and make appropriate recommendations,5) Undertake preventive and enforcement actions Preventive actions1) Provisional measures to prevent a conflict from worsening2) Deployment of peacekeeping and observer mission- Established by Security Council- Directed by the Secretary General- Consent of the host government- Military observers shall be unarmed - Peace keeping forces may be armed with light weapons, but are not authorized to use force except in self-defense- Operations must not interfere with internal affairs3) Other measures- Interruption of economic relations, communication or diplomatic relations, except for humanitarian reasons Enforcement actions

1) Deployment of air, sea and land forces2) Institution of a blockade

Domestic Jurisdiction Clause Necessary for settlement of disputes Only limitation is that dispute must be international Otherwise, such action would violate the principle that U.N. shall not intervene in any matter within the jurisdiction of any State.

Voting: The Yalta Formula Each member of the Security Council shall have one vote, distinction as to permanent and non-permanent members in the resolution of substantive questions. Procedural matter – affirmative vote by any 9 or more members. Non-procedural matters – concurrence of at least 9 members, including all the permanent members. Determination of whether a matter is procedural or substantive, is non-procedural “double veto” by a permanent member. Abstention or absence of any permanent member is not considered a veto.

Economic and Social Council 54 members elected by the General Assembly for a 3-year term Exert efforts toward:1) Higher standards of living2) Conditions of economic and social progress and development3) Solutions of international economic , social and health related problems4) Universal respect for and observance of human rights and fundamental freedoms Decisions reached by a majority vote

Trusteeship Council Assisting the Security Council and the General Assembly in the administration of the International Trusteeship System Composition

157


1) Members of UN administering trust territories2) Permanent members of the Security Council not administering trust territories3) As many other members elected by the General Assembly as may be necessary to ensure that the total number of members of the UN which administer trust territories and those which did not

Secretariat Chief administrative organ of the UN Headed by the Secretary General who is chosen by the General Assembly upon recommendation of the Security Council Secretary General Highest representative of the UN, authorized to act in its behalf Acts as Secretary in all meetings of the General Assembly, Security Council. Economic and Social Council and Trusteeship Council International civil servants Cannot receive instructions from any government or source outside the UN Right of Political Initiative May bring to the attention of the UN Security Council any matter which, in his opinion, may threaten international peace and security.

International Court of Justice Principal judicial organ of the UN Composition: 15 members elected for a term of 9 years by absolute majority vote in the General Assembly and the Security Council in separate elections. no two of whom must be nationals of the same state Qualifications must possess high moral character possess the qualifications required in their respective countries for appointment to their highest judicial offices

Court decides contentious cases and renders advisory opinions. Only states, including non-members of the UN, may be parties in contentious cases. Jurisdiction of the court is based on the consent of the parties in accordance with “optional jurisdiction clause” Court may decide on: the interpretation of treaties, any question of international law, the existence of facts constituting breach of international obligations and the nature or extent of the reparation to be made for the breach of an international obligation. Advisory opinions may be given upon request of the General Assembly, or the Security Council or the other organs of the UN when authorized by the General Assembly.

International Administrative Bodies- Non-political- Autonomous- Not subject to control by any state

International Law Commission o Established by UN General Assembly in 1947o To promote the codification and progressive development of international law.o One of the functions: to produce Draft Articles which may codify certain customary international law or aid in its development.o E.g. Draft Articles on State Responsibility Legality of the Threat or Use of Nuclear Weapons Opinion (WHO Case)o ICJ ruled that it did not have jurisdiction to decide on request of WHO to render an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its

158


obligations under international law, including WHO Convention.o International organizations are governed by the PRINCIPLE OF SPECIALTY, that they are invested by the States which create them with powers, the limits of which are a function of the common interest whose promotion those States entrust to them.o To accede to the demand of WHO would be violative of the Principle of Specialty, for such competence could not be deemed a necessary implication of the Constitution.

Individuals- Traditionally considered as objects- Granted a certain degree of international personality under a number of Agreements:1. UN Charter2. Universal Declaration of Human Rights3. treaties, e.g. Treaty of Versailles4. The need for States to maintain an international standard of justice in the treatment of aliens5. Genocide Convention6. 1930 Hague Convention7. 1950 European Convention on Human Rights and Fundamental Freedoms

III. FUNDAMENTAL RIGHTS OF STATE1. Existence and Self-Preservation2. Right to Sovereignty and Independence3. Right of Equality

Existence and Self-Preservation Article 51 of the UN Charter Right of the state to individual and collective self-defense through regional appointments, if an armed attack occurs against such state, until the Security Council has taken measures necessary to maintain international peace and security. Right may be resorted to upon clear showing of grave and actual danger and must be limited to necessity.

Security Council which determines whether or not an “armed attack” has taken place. Aggression The use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the UN Charter. The first use of armed force by a State in contravention of the UN Charter is prima facie evidence of an act of aggression. Other principles1. No consideration of whatever nature, political, economic or military, can justify aggression.2. A war of aggression is a crime against international peace which will give rise to international responsibility.3. No territorial acquisition or special advantage resulting from aggression shall be recognized as lawful.4. All these are without prejudice to the right of self-determination, freedom and independence of people deprived of such rights, nor the right to these people to struggle to that end and to seek and receive support.

Right to Sovereignty and Independence Sovereignty The totality of the powers, legal competence and privileges of a state arising from customary international law and not dependent on the consent of another state. Independence The freedom to conduct foreign relations without outside control. The right to independence is a natural aspiration of people. It is not an absolute freedom. Valid restraints may consist in the obligation to observe1. the rights of others2. treaty stipulations

159


3. obligations arising from membership in international organizations Intervention

State interferes in the domestic or foreign affairs of another state through the use of force or threat of force. Protest or demand for rectification or reparation does not comprise intervention.1. Intervention used to be justified for preservation of the balance of power, pre-emptive self-defense, enforcement of treaty obligation, collection of debts (subsequently prohibited – Drago Doctrine in the HGUE Convention).2. Contemporary International Law, intervention is not allowed.o Article 2, UN Charter – even UN is precluded from intervening in matters essentially within the domestic jurisdiction of a state, unless necessary to remove and prevent threats to the peace, breaches or acts of aggression.o 1965 UN General Assembly – no state has the right to intervene, directly or indirectly, in the affairs of another.3. At present, intervention is allowed only:a. as an act of individual or collective self-defense in response to an armed attackb. pursuant to treaty stipulations orc. with prior UN authorization

Right of Equality- Article 2 of UN Charter Organization is based on the principle of sovereign equality of all its members Guaranteed is legal – or sovereign – equality: equal in law, rights of sovereignty, personality, territorial integrity and political independence respected by others. Not equality in fact- Act of State Doctrine A state should not inquire into the legal validity of the public acts of another state done within the territory of the latter.

Considerations such as motive are immaterial. State doctrine seems to make a determination on the validity of the confiscation of property by a foreign state a violation of the principle of international law. (Sabbatino Case) Acts of torture, execution and disappearance were clearly acts outside of the President’s authority and are not covered by the act of state doctrine.- Doctrine of State Immunity As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction (executive, legislative, judicial) by another state, unless he has given consent, waived its immunity or voluntarily submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed, nor its public vessel be boarded, arrested or sued. Based on the principle of par in parem non habet imperium. The State’s immunity extends to the Head of State who is the personification of the State. Restrictive Application of the Doctrine Only with respect to sovereign or public acts of the state and cannot be invoked with respect to private or proprietary acts. Neither may this immunity be invoked when the foreign state sues in the courts of another state, for then it is deemed to have submitted itself to the ordinary incidents of procedure and thus, a counterclaim may be validly set up against it. On Labor Contracts Immunity Extends to Diplomatic Personnel to the United Nations, its organs and specialized agencies and to international organizations Waiver of Immunity1. gives its consent at the time the proceeding is instituted

160


2. takes steps relating to the merits of the case before invoking immunity3. by treaty or contract, it had previously given consent4. by law or regulation in force at the time the complaint arose, it has indicated that it will consent to the institution of the proceedings.

IV. RIGHT TO TERRITORIAL INTEGRITY AND JURISDICTION

Territory- Fixed portion on the surface of the earth on which the State settles and over which it has supreme authority.- Components:1. Terrestrial2. Aerial3. Fluvial 4. Maritime- National Territory of the Philippines – Section 1, Article I.- Organic Acts1. Treaty of Paris – cession of the Philippine Islands by Spain to the US2. Treaty between Spain and the US – Cagayan, Sulu and Sibuto3. Treaty between US and Great Britain – Turtle Islands and Mangsee Islands4. 1935 Constitution – Batanes5. 1973 Constitution – by historic or legal title6. PD 1596 – Kalyaan Islands by virtue of occupation and exercise of jurisdiction

Land Territory (Terrestrial Domain)Modes of Acquisition1. Discovery and Occupation Territory not belonging to any State or terra nullius is placed under the sovereignty of the claiming State. Discovery alone merely creates an inchoate right and it must be followed within a reasonable time by effective occupation and administration.

Palmas Island Arbitration Case – inchoate right flowing from discovery was deemed lost because administration was not undertaken within a reasonable time. Clipperton Island Case – small territory infrequent administration sufficient Eastern Greenland Case – thinly populated and uninhabited areas, very little actual exercise of sovereignty was needed in the absence of competition. Kalayaan Islands – Tomas Cloma – claim to the islands is justified by reason of history, indispensable need and effective occupation and control. Manila Declaration of 1992 – whatever conflicting claims, there may be over the islands shall be resolved in a peaceful manner, through diplomatic negotiations.2. Prescription Continuous and uninterrupted possession over a long period of time In international law, as opposed to civil law, there is no rule of thumb as to the length of time needed for acquisition of territory through prescription. Grotius doctrine of immemorial prescription – uninterrupted possession going beyond memory.3. Cessiona. Voluntaryo Treaty of Saleo Treaty of Donationb. Involuntary or Forced4. Conquest No longer recognized. UN Charter prohibits resort to threat or use of force against territorial integrity or political independence. Stimson Doctrine (even before UN Charter) which forbade recognition of any government set up through external aggression.5. Accretion Increase in the land area of the State, through natural means or artificially through human labor

161


Maritime Authority (Fluvial and Maritime Domain)

1) Internal (National) Waters Bodies if water within the land mass. The UN Convention on the Law of Seas – all waters on the landward side of the baselines of the territorial sea.i. Rivers National Boundary – divide territories of States International –flows through various stateso Thalweg Doctrine: For boundary rivers, in the absence of an agreement between the riparian States, the boundary line is laid on the middle of the main navigable channelo Middle of the Bridge Doctrine: Where there is a bridge over a boundary river, the boundary line is the middle or center of the bridge.ii. Bays and Gulfs Bay – well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a curvature of the coast. Area must be as large or larger than a semi-circle whose diameter is a line drawn across the mouth of such indentation, or if the mouth is less than 24 miles wide. Historic Bay – waters are considered internal because of the existence of historic title.iii. Straits – narrow passageways connecting 2 bodies of water. If the distance between the two opposite coasts is not more than 6 miles, they are considered internal waters.iv. Canals Suez Canal - neutralized Panama Canal – open to everyone in times of war or peace2) Archipelagic Waters

Archipelagic Doctrine – The waters around, between and connecting the islands of the archipelago, regardless of their breadth or dimension, are to be treated as internal waters. Archipelago – group of islands (including parts of island), interconnecting waters and other natural features which are closed interrelated in such islands, waters, and other natural features which form an intrinsic geographical, economic and political entity for which historically has been regarded as such. Straight Baseline Method – to determine extent of archipelagic waters, the archipelagic state shall draw straight baselines connecting the outermost points of the outermost islands and drying reefs providing that the ratio of the area of the water to the area of the land, including atolls, is between 1:1 and 9:1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3% of the total number of base lines inclosing any archipelago may exceed that length, up to a maximum of 125 nautical miles. The baselines drawn should not depart from, to any appreciable extent, from the general configuration of the archipelago. All the waters within the baselines shall be considered as internal waters. The breadth of the 12-mile territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall then be measures from the archipelagic baselines. Vessels may be allowed innocent passage. This right may be suspended, after PUBLICATION in the interest of INTERNATIONAL SECURITY. Coastal state may designate the ARCHIPELAGIC SEA LANES for continuous, unobstructed transit vessels.3) Territorial Sea - belt of the sea located between the coast and internal waters of the

162


coastal state on one hand and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in case of archipelagic states, from the baselines. GR: ships (not aircrafts) of all states enjoy the right of innocent passage through the territorial sea (not waters). Must be continuous and expeditious. Exception: force majeure Submarines and other underwater craft are required to navigate on the surface and to show their flag4) Contiguous Zone – extends up to 12 nautical miles from the territorial sea. Technically, not part of the territory of the State. Coastal state may exercise limited jurisdiction over the contiguous zone to prevent infringement of customs, fiscal, immigration or sanitary laws.5) Exclusive Economic Zone – extends up to 200 nautical miles from the low-water mark or the baselines. Coastal state may exercise sovereign rights over economic resources of the sea, seabed, subsoil, Other States shall have freedom of navigation and over-flight, to lay submarine cables and pipelines, and other lawful uses. States with overlapping EEZ enter into appropriate treaty for joint exploitation and utilization. Philippine EEZ Scarborough Shoal6) Continental Shelf Comprises the seabed and the subsoil of the submarine areas that extends beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea is ensured where the outer edge of the continental margin does not extend up to that distance. Coastal state enjoys right of exploitation of oil deposits and other resources in the continental shelf.

In case continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined in accordance with equitable principles.7) High Seas Treated as res communes or res nullius Not territory of any particular state Traditional view: Freedom of the high seas – open and available, without restriction, to the use of all states for the purpose of navigation, flight over them, laying submarine cables and pipes, fishing, research, mining, etc. At present, subject to regulation arising from treaty stipulations. Freedom of navigation right to sail ships on the high seas, subject only to international law and the laws of the flag state.

Settlement of Dispute Arising from the UN Convention on the Law of the Sea (UNCLOS) Part XV of 1982 UN Convention on the Law of the Sea Requires States to settle peacefully any dispute concerning the convention. Failing bilateral settlement settled for compulsory settlement to one of the tribunals having jurisdiction. International Tribunal for the Law of the Sea, ICJ, and arbitral or special arbitral tribunals constitutes under UNCLOS

Air Territory- Aerial domain- Air space above the land and water of the state.- International Convention on Civil Aviation (Chicago Convention) Every State has complete and exclusive sovereignty over the air space above its territory; but this shall not include outer space (re communes).

163


Other States have no right of innocent passage over the air territory of another State. 5 Freedoms (of Air Transportation for Scheduled International Services) Fly across the territory without landing Land for non-traffic purposes Land to put down passenger, mail, cargo of flag territory Land to take passenger, mail, cargo of flag territory Put down passenger, mail, cargo from these territories- 1981 Resolution of the International Civil Aviation Organization Intrusion into the air space by civilian aircraft may be intercepted but in no case shall the interception be attended with the use of weapons. Military aircraft may be shot down.

Outer Space Rules governing high seas apply; considered res communes. Under customary international law, States have the right to launch satellites in orbit over the territorial air space of other States. Outer Space Treaty of 19671. Outer space is free for exploration and use by all States2. Cannot be annexed by any State3. May be used exclusively for peaceful purposes. (nuclear weapons of mass destruction may not be placed in orbit around the earth) 1972 Convention on International Liability for Damage Caused by Outer Space Objects o States which launch objects into space may be held liable for the harmful contamination or for damage which may be caused by falling objects. Theories on where outer space begins

1. lowest altitude for artificial earth satellites to orbit without being destroyed by friction (90 kms above earth)2. theoretical limits of air flights (84 kms above earth)3. functional approach – rules shall not depend on the boundaries set, but on the nature of the activity undertaken.

Jurisdiction- Power or authority exercised by a State over land, persons, property, transactions and events.- Bases of Jurisdiction1. Territorial Principle State may exercise jurisdiction only within its territory. Exceptionally, it may have jurisdiction over persons and acts done outside its territory depending on the kind of jurisdiction it invokes. While there is no territorial limit on the exercise of jurisdiction over civil matters, a State, as a general rule, has criminal jurisdiction over offenses committed committed within its territory, except over:1. continuing offenses2. acts prejudicial to the national security or vital interests of the State3. universal crimes4. offenses covered by special agreement (obsolete)2. Nationality Principle State has jurisdiction over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the State wherever he may be, and thus, is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality. Applies to civil matters (Article 15 of CC) and taxation. NOT applicable to criminal offenses.3. Protective Principle State has jurisdiction over acts committed abroad (by nationals or

164


foreigners) which are prejudicial to its national security or vital interests. Article 2 of RPC, Philippines has jurisdiction over1. offenses committed on board a Philippine ship or airship2. forging/counterfeiting of Philippine coins or currency notes3. introduction into Philippines of such forged or counterfeit coins or notes4. offenses committed by public officers or employees in the exercise of official functions5. crimes against national security and the law of nations4. Principle of Universality State has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes – threaten the international community as a whole and are considered criminal offenses in all countries:a. Genocide b. Piracy jure gentiumc. White slave traded. Hijackinge. Terrorismf. War crimes5. Principle of Passive Personality State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. May be resorted to if the others are not applicable.

- Exemptions from Jurisdiction1) Doctrine of State Immunity2) Act of State Doctrine A state could not inquire into the legal validity of the public acts of another State done within the territory of the latter. The doctrine is more of a choice of law rule, and may be raised by private parties.3) Diplomatic Immunity Part of customary international law.

To uphold their dignity as representative of their respective States and to allow them free and unhampered exercise of their functions. Procedure for claiming immunity:1) Request by the foreign state for an executive endorsement by the Department of Foreign Affairs2) Determination made by the Executive Department is a political question which is conclusive on Philippine courts. Head of the State enjoys personal immunity from the jurisdiction of another State 1961 Vienna Convention on Diplomatic Relations Right of the foreign State to acquire property in the receiving State for its diplomatic mission, as well as immunity of the diplomatic envoy from civil jurisdiction of the receiving State over any real action relating to immovable property which the envoy holds on behalf of the sending state for purposes of the mission.4) Immunity of the United Nations, its Organs, Specialized Agencies, other International Organizations and its Officers Article 105, UN Charter: “organizations, officers, representatives of members, who shall such privileges and immunities as are necessary for the independent exercise of their functions.” Secure them legal and practical independence in fulfilling their duties. Free from political pressure or control by the host country. Convention on the Privilege and Immunities of the United Nations – the immunities are with respect to:1) Legal processes relative to words spoken or written and acts in their official capacity2) Taxation on salaries and emoluments3) National service obligations4) Immigration, restriction and alien registration

165


5) Same immunities as are enjoyed by diplomats of comparable rank International agency, enjoys immunity from the legal writs and processes of the Philippines, because subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially in behalf of its member States. Section 31, Convention on the Privileges and Immunities to Specialized Agencies of the UN – provides remedy for those who may be adversely affected by these immunities each specialized agency of the UN shall make a provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of private character to which it is a party.5) Foreign merchant vessels exercising the right of innocent passage or arrival under stress Innocent Passage: navigation through the territorial sea of a State for the purpose of transversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from the internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal State. Arrival under stress: involuntary entrance, due to lack of provisions, unseaworthiness of vessel, inclement weather or other case of force majeure, such as pursuit by pirates.6) Foreign armies passing through or stationed in the territory with the permission of the State7) Warships and other public vessels of another State operated for non-commercial purposes Generally immune from local jurisdiction “floating territory” Crew members are immune from local jurisdiction when on shore duty. N/A if the crew members violate local laws while on furlough or off-duty

Jurisdiction over Land Authority- Save for exceptions, the State exercises jurisdiction over everything found within the terrestrial domain.

Jurisdiction over Maritime Authority- Over internal waters Same jurisdiction as land area, since the internal water are deemed assimilated in the land mass Foreign merchant vessels docked in a local port or bay, the coastal state exercises jurisdiction in civil matters, but criminal jurisdiction depends on:1) English Rule: coastal state shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of the port 2) French Rule: flag State shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port.- Over archipelagic waters Same rule as internal waters. Except for innocent passage of merchant vessels through archipelagic sea lanes.- Over the territorial sea Criminal jurisdiction over foreign merchant vessels depends on English Rule or French Rule Exceptions:1) Innocent passage and2) Involuntary surrender (distress on the vessel must be real)- Over the contiguous zone UN Convention on the Law of the Sea, the Coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations, and punish the said infringement.- Over the exclusive economic zone UN Convention on the Law of the Sea, Coastal State has sovereign rights over the EEZ for purposes if exploring and exploiting, conserving and managing the

166


natural resources, whether living or non-living, of the sea-bed, sub-soil, and the superjacent waters as well the production of energy from the water, currents and winds. Other States shall have the freedom of navigation and over-flight, to lay submarine cables and pipes and other lawful uses.- Over the continental shelf Coastal State enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another State or is shared with another State, the boundary shall be determined in accordance with equitable principles.- Over the high seas Its vessels Flag state has jurisdiction over its public vessels wherever they are, and over its merchant vessels on the high seas. Because of the “Flags of Convenience” Controversy, the UN Convention on the Law of the Sea concedes that a vessel shall have the nationality of the flag it flies provided there is genuine link between the State and the vessel State must effectively exercise jurisdiction and control in administrative, technical and social matters over the ship. Pirates Enemies of mankind May be captured on the open seas by the vessels of any State Engaged in illicit traffic in drugs and slave trade All states shall cooperate in the suppression of:1) Illicit traffic in narcotics 2) Illicit traffic in slave trade3) Terrorism4) Unauthorized broadcasting from the high seas, except in distress calls In the exercise of the right to visit and search

Laws of Neutrality – public vessels or aircraft of a belligerent State may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent. Under the doctrine of hot pursuit If an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state (or of the coastal state has good reason to believe that such an offense had been committed) the said State’s vessels may pursue the offending vessel into the open seas and, upon capture, bring it back to its territory for punishment. Exercised to violations committed in the EEZ or on the continental shelf installations. However, to be lawful:1) The pursuit must have begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal state2) The pursuit must be continuous and unabated3) Ceases as soon as the ship being pursued enters the territorial sea of its own or of a Third State.

Jurisdiction over other Territories (Extra-Territorial Jurisdiction)- State may, by virtue of customary and conventional law, extend its jurisdiction to territory not within its sovereignty in the following:1) Assertion of personal jurisdiction over its national abroad2) Relations with other states, as when it establishes a protectorate, condominium, or administers trust territory or occupies enemy territory in the course of war3) Consequence of waiver of jurisdiction by the local state over person and things within the latter’s territory4) Principle of extraterritoriality, exemption of persons and things from the local

167


jurisdiction on the basis of international custom.

(Principle of extra-territoriality: exemption from jurisdiction is based on

treaty or convention; discredited)5) Enjoyment of easements and servitudes

Rome Statute of the International Criminal Court (ICC)- Adopted in July, 1988 by a Conference of States in Rome- Come into existence once 60 States have ratified- Philippines signed the ICC Statute on 28 December 2000- January 2000 124 countries have signed; only 25 have ratified- Jurisdiction of the court limited to serious crimes of concern to international community as a wholea. Genocideb. Crimes against humanityc. War crimesd. Crimes of aggression

V. RIGHT OF LEGATION

The Right of Legation Right of Diplomatic Intercourse Right of the state to send and receive diplomatic missions, which enables States to carry on friendly intercourse. Not a natural or inherent right, exists by common consent. No legal liability is incurred by the State for refusing to send or receive diplomatic representatives. Governed by the Vienna Convention on Diplomatic Relations.

Agents of Diplomatic Intercourse1. Head of State Embodiment of the sovereignty of the State

Enjoys right to special protection for his physical safety and the preservation of his honor and reputation. Enjoys principle of exterritorilaity – quarters, archives, property and means of transportation are inviolable Immune from criminal and civil jurisdiction, except when he himself is the plaintiff Not subject to tax or exchange or currency restrictions.2. The Foreign Office Entrusted with the actual day-to-day conduct of foreign affairs Headed by Secretary or Minister – who can make binding declarations on behalf of his government.

Establishment of Resident Missions States carry on diplomatic intercourse through permanent missions established in the capitals of other States. Composed of:1. Head of Mission – Classified by Vienna Convention:a. Ambassadors/nuncios accredited to Head of State, and other heads of mission of equivalent rankb. Envoys/ministers/internuncios, accredited to Head of Statec. Charges d’affaires, accredited to Ministers of Foreign Affiars2. Diplomatic Staff Engaged in diplomatic activities and are accredited diplomatic rank3. Administrative and Technical Staff Employed in administrative and technical staff of the mission

4. Service Staff Engaged in domestic service of the mission

Diplomatic Corps

168


According to custom, all diplomatic envoys accredited to the same state form a body known as the Diplomatic Corps Doyen/head of the body:1) Papal Nuncio2) Oldest ambassador3) Oldest minister plenipotentiary

Appointment of Envoys In the Philippines, the President cannot be questioned Sending state is not absolutely free in the choice of its diplomatic representatives, especially heads of mission BECAUSE the receiving State has the RIGHT TO REFUSE to receive as envoy of another State a person whom it considers unacceptable, To avoid embarrassment, sending State may resort to an INFORMAL inquiry (enquiry) to which the receiving State responds with an informal conformity (agreement) AGREATION After conclusion of the informal process, the diplomatic mission commences when the envoy presents himself at the receiving state generally armed with the following papers:1) LETTRE DE CREANCE (Letter of Credence) – name/rank/general character of the mission and a request for favorable reception and full credence2) DIPLOMATIC PASSPORT authorizing his travel3) INSTRUCTIONS – includes document of full powers (pleins pouvoirs) authorizing him to negotiate on extraordinary or special business4) CIPHER/CODE/SECRET KEY for communications with his country

Functions1) Represent sending State2) Protect in receiving State the interests of the sending State and its nationals, within the limits of international law3) Negotiating with the government of receiving State

4) Ascertaining by all lawful means the conditions and development in the receiving State5) Promote friendly relations6) Developing their economic, cultural and scientific relations

Diplomatic Immunities and Privileges – except as provided below, immunities and privileges are enjoyed by the ENVOY and the MEMBERS of the DIPLOMATIC RETINUE1) Personal Inviolability Not liable for any form of arrest or detention Treat him with due respect and take all steps to prevent any attack on his person, freedom or dignity. RA 75 punishes any person who assaults, strikes, wounds, offers violence to the person of the ambassador or minister (except when in self-defense) UN CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS considers crimes against diplomatic agents as international not political in nature. Diplomatic envoy may be arrested temporarily in case of urgent danger (acts of violence) which makes it necessary to put him under restraint for the purpose of preventing similar acts; must be released and sent home in due time.2) Inviolability of Premises and Archives Premises occupied and private residence Agents may not enter w/o consent of the envoy Exception: extreme cases of necessity fire; imminent danger Cannot be entered or searched Goods, records, archives cannot be detained by local authorities even under process of law

169


Service of writs, summons, orders or processes within the premises of the mission or residence of the envoy is prohibited Even if a fugitive takes refuge but must be surrendered upon demand by local authorities EXCEPT: Right of asylum exists N/A when the ambassador himself request local police assistance Vienna Convention – receiving State has the special duty to protect diplomatic premises against invasion, damage or any act tending to disrupt the peace and dignity of the mission. Immune from search, requisition, attachment or execution1) Premises2) Furnishings3) Other property thereon4) Means of transport of the mission5) Archives6) Documents7) Papers8) Correspondence of the mission Unless the treaty is recognized by treaty or local usage envoy should not permit the premises of his mission or his residence to be used as a place of asylum for fugitives from justice. But he must, in the interest of humanity, afford temporary shelter to persons in imminent peril of their loves, such as those feeling from mob violence.3) Right of Official Communication As such, diplomatic pouch and diplomatic couriers also enjoy inviolability.

4) Immunity from Local Jurisdiction Diplomatic agent cannot be arrested, prosecuted and punished for any offense he may commit unless his immunity is waived. Immunity from jurisdiction does not mean exemption from local laws; it does not presuppose a right to violate the laws of the receiving State.

Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction. Immunity from civil and administrative jurisdiction of the receiving State No civil action of any kind may be brought against him GR: properties are exempt from garnishment, seizure for debt, execution, and the like. Exception:1) Real action relating to private immovable property situated in the territory of the receiving state Except: envoy holds it on behalf of the sending State for the purpose of the mission.2) Action relating to succession in which diplomatic agent is involves as E/A/H/L as a private person3) Action relating to any professional or commercial activity exercised by diplomatic agent in the receiving State outside his official function Cannot be compelled to testify/deposition w/o consent of his government Immunity does not protect a public official who commits unauthorized acts unauthorized acts are not acts of State…he may be sued for such unlawful acts in his PRIVATE CAPACITY RA 75: declares as void any writ or process issued out or prosecuted by any person in any court of the Philippines, or by any judge or justice, whereby the person of any Ambassador or Public Minister of any foreign state, authorized and received as such by the President or and Domestic Servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels distrained, seized, or attached and penalties are imposed for violations. N/A:1) Citizens/inhabitants of the Philippines, where the process is founded upon a debt

170


contracted before his employment in the diplomatic service2) Domestic servants of the ambassadors or minister whose names are not registered with the DFA Children born to him while he possesses diplomatic status are regarded as born in the territory of his home State.5) Exemption from Taxes and Customs Duties Vienna Convention Exceptions:1) Indirect taxes normally incorporated in the price of goods/services2) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for purposes of the mission.3) Estate, succession or inheritance taxes on investments in commercial ventures in the receiving State4) Dues and taxes on private income having its source in the receiving State and capital taxes on investments in commercial ventures in the receiving State5) Charges levied for specific services rendered 6) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property. Exemption from all customs duties and taxes 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. Baggage and effects are entitled to free entry and normally exempt from inspection Articles addressed to ambassadors, ministers, charge d’affaires are also exempt from customs inspection.6) Freedom of movement and travel in the territory of the receiving State7) Exemption from all personal services and military obligations

8) Use of flag and emblem of the sending State on the diplomatic premises and the residence and means of transport of the head of mission

Duration of Immunities/Privileges From the moment he enters the territory of the receiving State Cease only the moment he leaves or on expiry of a reasonable time in which to do so w/ regard to official acts immunity shall continue indefinitely privileges are available even in transitu when traveling through a Third State on the way to or from the receiving State

Waiver of Immunities GR: waiver cannot be made by the individual concerned since such are not personal to him. Waiver by the government of the sending State if it concerns the immunities of the head of mission Other cases, by the government or chief of the mission Waiver does not include waiver of immunity with respect to execution of judgment separate waiver necessary

Termination of Diplomatic Mission1) Death2) Resignation3) Removal4) Abolition of office5) Recall by the sending state6) Dismissal by receiving state7) War between sending and receiving8) Extinction of state

Consular Relations- Consuls: State agents residing abroad for various purposes, mainly in the interest of commerce and navigation.- Kinds

171


1) Consules missi – professional and career consuls; nationals of appointing state2) Consules electi – selected by appointing state from its own citizens or among national abroad- Ranks1) Consular General – heads several consular districts, or one exceptionally large consular district2) Consul – takes charge of a small district/town/port3) Vice Consul – assist the consul4) Consular Agent – entrusted with the performance of certain functions by the consul- Appointment: 2 important documents necessary before the assumption of consular functions:1) Letters patent (letter de provision) – 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 serve2) Exequatur – authorization given to the consul by the sovereign state, allowing him to exercise his functions- Functions1) Commerce and navigation2) Issuance of visa3) Such as are designed to protect the nationals of the appointing state- Immunities and Privileges 1963 Vienna Convention on Consular Relations1) Freedom of communication in ciphers or otherwise2) Inviolability of archives NOT of premises3) Exempt from local jurisdiction for offenses committed in the discharge of official functions not of other offenses, EXCEPT minor infractions4) Exempt from testifying on official communication or on matters pertaining to consular functions

5) Exempt from taxes, customs duties, military or jury service6) Display national flag and emblem in the consulate Available to members of consular post, families and private staff May be waived by appointing state- Termination of Consular Mission 1) Usual modes of terminating official relationship2) Withdrawal of the exequatur3) Extinction of state4) War Severance of consular relations does not necessarily terminate diplomatic relations.

VI. TREATIES

Treaty- International agreement concluded between States in written form and governed by international law, whether embodied in a single instrument of in 2 or more instruments and whatever its particular designation.- Agreement between States including international organizations of States intended to create legal rights and obligations of the parties.- Executive agreement, under municipal law, is not a treaty. But from the standpoint of international law, equally binding as treaties.- Qatar vs. Bahrain: Minutes to a Meeting and exchange of letters constitute an international agreement creating rights and obligations for the parties.

Form- Article 2, 1969 Vienna Convention on the Law of Treaties, treaties should be in writing.- Article 3, fact that treaty is unwritten shall not affect its legal force.- But that convention rules on matters governed by international law independently

172


of convention shall apply and that convention rules shall apply to the relations of the States among themselves.- 1969 Convention on the Law of Treaties treaties executed between states- 1986 Vienna Convention in Treaties for International Organizations treaties executed between States and International Organizations

Requisites for Validity1) Treaty-making capacity Possessed by every state as attribute of sovereignty International organization, deemed to possess such, may be limited by the purpose and constitution of such organization.2) Competence of the representative/organ concluding the treaty Generally, exercised by Head of State. In the Philippines, President w/ concurrence by 2/3 of all members of the Senate3) Parties must freely given consent Doctrine of Unequal Treaties – imposed through coercion or duress by a State of unequal character is void.4) Object and subject matter must be lawful Within the commerce of nations and in conformity with international law. Doctrine of jus cogens – customary international law has the status of peremptory norm of international law, accepted and recognized by the international community of states as a rule from which no derogation is permitted. A treaty which contravenes such norms/rules may be invalidated. Official torture of prisoners is violation of principle of jus cogens (Human Rights Cases vs. Marcos)5) Ratification in accordance with constitutional processes of the parties concerned Concurrence in by at least 2/3 of all the members of the Senate.

Treaties and Executive Agreements

Treaties Executive Agreements

Basic political issuesChanges in national policy

Adjustment of detail carrying out well-established national policies

Permanent international arrangements

Temporary arrangements

When there is a dispute as to whether or not an international agreement is purely an executive agreement, the matter is referred to the Secretary of Foreign Affairs who will then seek the comments of the SENATE REPRESENTATIVE and the LEGAL ADVISER of the DFA and after consultation with the Senate leadership, the Secretary shall then make the appropriate recommendations to the President.

Treaty-making Process1) Negotiations Pleine pouvoirs Even w/o such, it has been the general practice to consider the following as representatives of the State for treaty negotiations:1) Head of State2) Head of Government3) Foreign Minister4) Head of diplomatic missions 5) Representative accredited by the State to an international conference or to an international organization2) Signing of the Treaty Principle of alternat – order of the naming of the parties and of the signatures of the plenitpotentiaries is varied so that each party is named and its plenipotentiary signs first in the copy of the instrument to be kept by it.3) Ratification

173


Provisions of a treaty are formally confirmed and approved by a State and by which the State expresses its willingness to be bound by the treaty Philippines power to ratify is with the President, subject to concurrence by 2/3 of all the members of the Senate Accession or Adhesion – non-signatory State becomes a party to the treaty; by invitation or permission of the contracting parties, a 3rd party who did not participate or who did not ratify on time, may be bound by a treaty. Reservation: unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the State. Remains to be a party to the treaty as long as reservation is compatible with the object and purpose of the treaty.4) Entry into Force In such manner and on such date as it may provide, or as the negotiating parties may agree. Absence of such provision, as soon as consent of all the parties to be bound by the treaty is established. Consent deemed established:1) Exchange of instruments of ratification2) Deposit of such instrument with a named depositary, coupled with the notification to the contracting State of such deposit. Registration with and publication by the UN – failure does not affect the validity of the treaty; only that the unregistered instrument cannot be invoked by any party before any organ of the United Nations.

When non-signatories may be bound by a treaty GR: treaties cannot impose obligations upon States not parties to them. (Pacta tertiis nocent nec prosunt) Exception

1) Process of Accession or Adhesion2) Most favored Nation Clause – contracting State entitled to the clause may claim the benefits extended by the latter to another State in a separate agreement.3) Formal expression of customary international law4) Treaty expressly extends benefits to non-signatory States

Fundamental principles1) Pacta sunt servanda Treaties must be observed in good faith. If necessary, State must modify its national legislation to make them conform to the treaty, to avoid international embarrassment Philippines treaty may be invalidated if contrary to Constitution Tanada vs. Angara: Treaties do not limit or restrict sovereignty of a State; by their voluntary act, States may surrender some aspects of their power in exchange for greater benefits granted by or derived from a convention or pact.2) Rebus sic stantibus Contracting State’s obligations under a treaty terminates when a vital or fundamental change or circumstances occurs, thus allowing a State to unilaterally withdraw from a treaty, because of “disappearance of the foundation upon which it rests.” Doctrine does not operate automatically, there must be a FORMAL ACT OF REJECTION, usually by the HEAD OF STATE, with a statement of the REASONS why compliance with the treaty is no longer required. Requisites1) Change must be so substantial that the foundation of the treaty must have altogether disappeared2) Change must have been unforeseen or unforeseeable at the time of the perfection of the treaty

174


3) Change must not have been caused by the party invoking the doctrine4) Doctrine must be invoked within a reasonable time5) Duration of the treaty must be indefinite6) Doctrine cannot operate retroactively

Interpretation of Treaties- Interpreted in good faith- Ordinary meaning given to the terms- In the light of its objects and purposes- Consider:1) Preamble2) Text3) Annexes4) Agreements relating to the treaty5) Subsequent agreements

Amendment/Modifications Consent of all the parties is required If allowed by the treaty itself, 2 States may modify a provision only insofar as they are concerned.

Termination of Treaties1) EXPIRATION of the term or WITHDRAWAL of a party2) EXTINCTION of one of the parties (bipartite treaties) When the rights and obligations under the treaty would not devolve upon the State that may succeed the extinct State3) MUTUAL AGREEMENT of ALL the parties4) DENUNCIATION or DESISTANCE The right to give notice of termination or withdrawal – right of denunciation 5) SUPERVENING IMPOSSIBILITY of performance6) CONCLUSION of SUBSEQUENT INCONSISTENT TREATY7) LOSS of the subject matter8) MATERIAL BREACH or violation9) REBUS SIC STANTIBUS10) Outbreak of WAR, unless the treaty precisely relates to the conduct of war

11) SEVERANCE of diplomatic relations12) Doctrine of JUS COGENS or emergence of NEW PEREMPTORY NORM of general international law which renders void any existing treaty conflicting with such norm.

VII. NATIONALITY AND STATELESSNESS

Nationality – membership in a political community with rights and duties- Determination of a person’s nationality – 1930 Hague Convention on Conflict of Nationality Laws1) For each state to determine under its own law who are its nationals2) Question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

- Mode of Acquisition of Nationality 1) Birth Jus sanguinis (by blood) Jus soli (by place of birth)2) Naturalization Accomplished through:1) Marriage2) Legitimation3) Election4) Acquisition of domicile5) Appointment to government office6) Grant on application In the Philippines1) Judicial process2) Legislative process3) Election4) Marriage No obligation on the part of the State of his nationality to recognize a person’s newly acquired nationality.3) Repatriation – recovery of nationality by individuals who were natural-born citizens of a State but who had lost their nationality.4) Subjugation5) Cession

175


Loss of Nationality1) Release2) Deprivation3) Renunciation4) Substitution

Multiple Nationality Possessed of mope than one nationality because of the concurrent application to him of the municipal laws of 2 or more states claiming as their national. Arise by:1) Concurrent application to him of the principles of jus sanguinis and jus soli2) naturalization w/o renunciation of the original nationality3) legitimation4) legislative action Policy in the Philippines- dual allegiance is inimical to national interest and shall be dealt with by law. Resolution of conflicts in Multiple Nationality Cases 1930 Hague Convention on the Conflict of Nationality Law1) A person having 2 or more nationalities – regarded as national by each of the States; AND a state may not give diplomatic protection to one of its nationals against a State whose nationality that person possesses.2) If a person has more than one nationality, he shall within a 3rd state, be treated as if he had only one; the third State shall recognize exclusively either the nationality of the State in which he is habitually and principally resident or the nationality of the State with which he appears in fact to be most closely connected – “Principle of Effective Nationality”3) If a person, without any voluntary act of his won, possesses double nationality, he may renounce one of them with the permission of the State whose nationality he wishes to surrender and, subject to the laws

of the State concerned, such permission shall not be refused if that person has his habitual residence abroad.

Statelessness- Status of having no nationality, as a consequence of being BORN WITHOUT A NATIONALITY or as a result of DEPRIVATION or LOSS OF NATIONALITY.- 1954 Convention Relating to the Status of Stateless Persons – contracting states agreed to grant to stateless persons within their territories treatment at least as favorable as that accorded to their nationals with respect to:1. freedom to practice their religion and freedom as regards the religious education of their children2. access to courts3. rationing of products in short supply4. elementary education5. public relief and assistance6. labor legislation and social security- Contracting states also agreed to grant to stateless persons within their territories as favorable as possible, in any event, not less favorable than that accorded to aliens:1. acquisition of movable and immovable property2. right of association in non-political and non-profit-making associations and trade unions3. gainful employment and practice of liberal profession4. housing and public education other than elementary5. freedom of movement

VIII. TREATMENT OF ALIENS

General Rule: Flowing from its right of existence and as an attribute of sovereignty, no State is under obligation to admit aliens. Power to regulate the entry and stay of aliens, and the State has the right to expel

176


aliens from its territory through DEPORTATION or RECONDUCTION. DEPORTATION or EXPULSION Menace to the security of the State Entry was illegal Permission to stay has expired Violated any limitation or condition prescribed for his admission and continued stay. RECONDUCTION Forcible conveying of aliens back to their home States Destitute aliens Vagabonds Aliens without documents Alien criminals Home state of such aliens has the obligation to receive them Alien must accept the institutions of the State. He may be deprived of certain rights. Local laws may grant him certain rights and privileges based on:1. reciprocity2. most-favored-nation treatment3. national treatment (equality between nationals and aliens in certain matters) privileges may be revoked, subject to treaty stipulations.

Doctrine of State Responsibility a State is under obligation to make reparations to another State for the failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national of the latter State. The State may be held liable for injuries and damages sustained by the alien if:1. Act or omission constitutes an international delinquency International Standard of Justice – standard of reasonable state and notions accepted in modern civilization.1. laws of the State fall below the international standard, it is no defense that such laws are applicable not only to aliens

but to nationals doctrine of equality of treatment not applicable2. independence of the courts of the State and unless the misconduct is extremely gross, the law does not lightly hold a State responsible for any error committed by the Courts2. Act or omission is directly or indirectly imputable to the State Even when the laws of the State conform to International standard, if it does not make reasonable efforts to prevent injury to alien or having done so unsuccessfully, fails to repair such injury. The act or omission that may give rise to liability may either be:1. acts of government officials primary agents give rise to direct state responsibility acts of high administrative officials officer acts beyond the scope of his authority, his act is likened to an act of a private individual. Acts of a minor or subordinate official to give rise to liability, there must be a denial of justice or something which indicates complicity of the State in, or condonation of, the original wrongful act, such as an omission to take disciplinary action against the wrongdoer.2. acts of private individuals For State to be liable, there must be actual or tacit complicity of the government in the act, before of after it, either by directly ratifying or approving it, or in the patent or manifest negligence in taking measures to prevent injury, investigate the case, punish the guilty or to enable the victim to pursue his civil remedies against the offender. The claimant has the burden of proving.3. Injury to the claimant State indirectly because of damage to its national

Enforcement of Alien’s Claim1. Exhaustion of Local Remedies

177


Because the State must be given an opportunity to do justice in its own regular way and without unwarranted interference with its sovereignty by other states. N/A if:1. no remedies to exhaust, e.g. laws are intrinsically defective2. courts are corrupt3. no adequate machinery4. international delinquency results from an act of state Calvo Case: alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state. Does not mean that the alien’s state is deprived of the right to protect or vindicate its interest in case they are injured in another state, as such waiver can be legally made by the state, not the alien.2. Resort to Diplomatic Protection After exhaustion of local remedies, alien must avail himself of the assistance of his state. Tie of nationality time of injury until time international claim is finally settled. UN may file diplomatic claim on behalf of its officials. European Commission on HR and also contracting states other than the state of the injured individual may bring alleged infractions of the European Convention on HR before the European Court of HR.3. Modes of Enforcement of Claims Negotiations or other modes of settling dispute. When responsibility is established:1. Reparation2. Satisfaction3. Compensation4. all three

Extradition- surrender of a person by one state to another state where he is wanted for

prosecution or punishment (if already convicted)

Basis treaty local state may grant asylum, or if there is surrender, the same is merely a gesture of comity

Deportation expulsion of an alien who is considered undesirable by local state, usually but necessarily to his own state unilateral act of the local state and is made in its own interests

Extradition surrender of a fugitive by one state to another where he is wanted for prosecution or punishment. Surrender is made at the request of the latter state on the basis of a treaty.

Fundamental Principles:1. Based on CONSENT – treaty or goodwill2. PRINCIPLE OF SPECIALTY – 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 treaty. State of refuge has the right to object to a violation “Non-list” types of extradition treaties – offenses punishable under the laws of both states by imprisonment on 1 year or more are included among extraditable offenses.3. ANY PERSON may be extradited4. POLITICAL AND RELIGIOUS OFFENDERS are generally not subject to extradition5. Offense must have been COMMITTED WITHIN the territory or AGAINST THE INTERESTS of the demanding state6. RULE OF DOUBLE CRIMINALITY. Act for which extradition is sought must be

178


punishable in both the requesting and requested states.

Procedure for Extradition1. REQUEST through diplomatic channels, accompanied by necessary papers Identity of wanted person Crime alleged to have been committed/convicted2. JUDICIAL INVESTIGATION, after receipt of the request, state of refuge shall investigate to ascertain if the crime is covered by the extradition treaty and if there prima facie case against the fugitive according to its own laws. If there is, WARRANT IF SURRENDER and fugitive delivered to the state of refuge. Sui generic and not criminal proceedings no automatic application of the Bill of Rights Do not involve the question of guilt or innocence of the person to be extradited Savarkar Case: Abduction of the fugitive in the state of refuge is not allowed violation of the territorial integrity of the state of refuge; BUT if effected with the help of the nationals of the state of refuge itself, then the state of refuge cannot later demand the return of the fugitive.

RP’s Extradition Treaties “non-list” types of double criminality approach (no traditional listing of crimes):1. Australia2. Canada3. Indonesia4. Micronesia5. Switzerland

Letters Rogatory- Formal communication from a court in which an action is pending, to a foreign court, requesting that the testimony of a witness residing in such foreign jurisdiction be taken under the direction of the court,

addressed and transmitted to the court making the request.- Power to issue letters rogatory is inherent in courts of justice

Asylum- Power of the state to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection - Never been recognized as a principle of international law.

Principles on Asylum Territorial Asylum Exists when stipulated in a treaty or justified by established usage. May depend on the liberal attitude of the receiving state, “territorial supremacy” Diplomatic Asylum Exists when stipulated in a treaty or justified by established usage. Within “narrowest limits” or when the life or liberty of the person is threatened by imminent violence.

Rule in the Philippines Generally, diplomatic asylum cannot be granted except to members of the official or personal household of diplomatic representatives On humanitarian grounds may be granted to fugitives, whose lives are in imminent danger from mob violence but only during the period when active danger persists.

Refugees- Any person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of prosecution by reason of his race, religion, nationality or political opinion and is unable or, because of fear, is unwilling to avail

179


himself of the protection of the government of the country of his nationality, or if he has no nationality, to return to the country of his former habitual residence.- Essential Elements:1. outside the country of his nationality or if stateless, outside the country of his habitual residence2. lacks national protection3. fears persecution- treated as a stateless individual – de jure or de facto- Refugee Convention of 1951: does not deal with admission but with non-refoulment (no contracting state shall expel or return a refugee in any manner whatsoever, to the frontiers of territories where his life or freedom is threatened. The state is under obligation to grant him temporary asylum)IX. SETTLEMENT OF DISPUTES

International Disputes Actual disagreement between States regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other. Situation – initial stage of dispute

Pacific or Amicable Modes Article 3 of the UN Chapter Parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security shall seek a solution by:1. Negotiation States settle their differences through an exchange of views between diplomatic agencies.2. Enquiry Ascertainment of pertinent facts and issues3. Tender of Good Offices Where a third party, either alone or in collaboration with others, offers to help in the settlement of a dispute.

When the offer is accepted “exercise of good offices”4. Mediation Third party offers to help with a solution, usually based on compromise. It offers a solution while good offices brings the parties together.5. Conciliation Active participation of a third party, solicited by the disputants, in an effort to settle the conflict. Conciliator’s recommendations are not binding.6. Arbitration Solution of a dispute by an impartial third party usually a tribunal created by the parties under a charter known as a compromis.7. Judicial Settlement Similar to arbitration: 1. nature of the proceedings2. binding character of the award Differences:

Judicial Settlement ArbitrationJudicial body is pre-existing

Arbitrary body is ad hoc

Jurisdiction is usually compulsoryLaw applied is independent of the will of the partiesJudicial settlement of international dispute is now lodges in the International Court of Justice

Optional Jurisdiction Clause ICJ’s jurisdiction is based on consent of the parties. BUT Article 36 of the Statute of the International Court of Justice provides that states/parties to the Statute recognize the jurisdiction of the Court over disputes concerning:

180


1. interpretation of a treaty2. any question of international law3. existence of any fact which would constitute a breach of international obligations4. nature or extent of the reparation to be made for such breach8. Resort to Regional Agencies or Arrangements Parties may of their own volition or at the instance of the organization itself, assume the obligation of settling the dispute.

Hostile Methods- Pacific methods have failed.- Includes:1. Severance of Diplomatic Relations2. Retorsion – unfriendly but lawful, coercive acts done in retaliation for unfair treatment and acts of discrimination of another state. (e.g. levy of high discriminatory tariffs on goods)3. Reprisal – unfriendly and unlawful acts in retaliation for reciprocal unlawful acts of another state: a. Freezing of the assets of the nationals of the other stateb. Embargo – forcible detention or sequestration of vessels and other property of the offending state.c. Pacific blockade – prevention of entry/exit from the ports of the offending state of means of communication or transportation n(could be violative of UN Charter)d. Non-intercourse – suspension of all intercourse with the offending state, in matters of trade and commercee. Boycott – concerted suspension of commercial relations with the offending state, particularly, the refusal to purchase goods.4. Intervention5. other Peaceful Means

Role of the United Nations

- Methods of settling disputes do not succeed, UN may be asked or may decide on its own authority to take a hand in the settlement- Security Council or the General Assembly

Security Council- Intervene in all disputes affecting international peace and security and in all disputes which although coming under the domestic jurisdiction clause, have been submitted to it by the parties for settlement.a. Security Council will recommend appropriate measures; consider amicable measures or refer matter to ICJ;b. If unsuccessful, Security Council may recommend such terms of settlement as it may deem appropriate; andc. If the terms of settlement are rejected, Security Council may take: Preventive Action Not involving use of armed force E.g. complete or partial interruption of economic relations, and of rail, sea, air, postal, telegraphic, radio or other means of communications and severance of diplomatic relations. Enforcement Action By air, sea or land forces as may be necessary to maintain or restore international peace and security including demonstrations, blockades and other operations by air, sea or land forces of members of the UN. Member state is obliged to render assistance in carrying out the measures decided upon by the Security Council.

General Assembly- If the Security Council because of lack of unanimity fails to exercise its primary responsibility to maintain peace and security, the General Assembly shall consider making recommendations

181


including the use of armed forces when necessary.

X. WAR AND NEUTRALITY

War Contention between 2 states, through their armed forces, for the purpose of overpowering the other and imposing such conditions of peace as the victor pleases. Does not mean the mere employment of force. If a nation declares war, war exists though no force has yet been used.

Outlawry of War Condemnation of war on an international scale Covenant of the League of Nations: conditions for the right to go to war Kellogg-Briand Pact of 1928 or General Treaty for Renunciation of War: forbade war as an instrument of national policy Charter of the United Nations: prohibits the threat or use of force against the territorial integrity or political independence of a state.

Commencement of Wara. Declaration of warb. Rejection of an ultimatumc. Commission of an act of force regarded by one of the belligerents as an act of war

Effects of Outbreak of War(1) Laws of peace cease to regulate the relations between the belligerents and are superseded by laws of war;

Third states are governed by laws of neutrality in their relations with the

belligerents;(2) Diplomatic and consular relations are terminated;

Representatives are allowed to return to their countries;

(3) Treaties of political nature are automatically cancelled, except those intended to operate during the war;

Multipartite treaties dealing with technical or administrative matters are merely suspended as between belligerents.(4) Individuals are impressed with enemy character:a. Nationality test – nationals of the other belligerent, wherever they may beb. Domicillary test – domiciled aliens in the territory of the other belligerent on the assumption that they contribute to its economic resourcesc. Activities test – if being foreigners, they participate in the hostilities in favor of the other belligerent(5) Corporations and other juridical persons are considered enemies:a. where the controlling stockholders are nationals of the other belligerent ORb. if incorporated in the territory or under the laws of the other belligerent and may not be allowed to continue operations.(6) Enemy public property found in the territory of the other belligerent at the outbreak of the war is subject to confiscation;

Private property is subject to requisition. State may, in time of war, authorize and provide for seizure and sequestration, through executive channels, of properties believed to be enemy-owned, if adequate provision is made for their return in case of mistake.

Participants in War1. Combatants – those who engage directly in the hostilities2. Non-combatants – those who do not

Combatants – may be:1. Non-privileged: like spies, who under false pretenses try to obtain vital information

182


from the enemy ranks and who, then caught, are not considered prisoners of war.2. Privileged : who, when captured, enjoy the privileges of prisoners of war:a. Regular armed forcesb. Ancillary servicesc. Accompany the armed forcesd. Levees en masse, inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves, provided they carry arms openly and observe the laws and customs of war;e. Franc tireursm, or guerillas, provided they are commanded by a person responsible for his subordinates, wear a fixed distinct emblem recognizable at a distance, carry their arms openly, and conduct their operations according to the laws and customs of war; andf. Officers and crew of merchant vessels who forcibly resist attack.

Rights of Prisoners of War 1949 Geneva Convention Treated humanely Not subject to torture Allowed to communicate with their families Receive food, clothing. Religious articles, etc.

Spies Individual is deemed a spy only if,a. Acting clandestinely or under false pretensesb. He obtains or seeks to obtain information in the zone of operations of a belligerentc. With the intention of communicating it to the hostile party. When captured, may be proceeded against under the municipal law of the belligerent.

Although under the Hague Convention, may not be executed without a trial. But if captured after he has succeeded in rejoining his army, must be treated as a prisoner of war. Scouts or soldiers in uniform who penetrate the zone of operations of the hostile army to obtain information are NOT spies.

Mercenaries Protocol I to the 1949 Geneva Convention Mercenaries shall not have the rights of combatants or of prisoners of war. To be considered a mercenarya. The person must be a specially recruited to fight for a particular armed conflictb. Must take direct part in the hostilitiesc. Motivated essentially by the desire for personal gain and is provided material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party.

Conduct of Hostilities.Three Basic Principles

Principle of Military NecessityThe belligerent may employ any amount of force to compel the complete submission of the enemy with the least possible loss of lives, time and money.Principle of HumanityProhibits the use of any measure that is not absolutely necessary for the purposes of the war.Humanitarian Convention in Armed ConflictThe right of the parties to adopt means of injuring the enemy is not unlimitedParties are prohibited to launch attacks against the civilian population as suchDistinction must be made at all times between persons taking part in the hostilities and members of the civilian population, to spare the latter as much as possible.

183


Enforcement action undertaken by UN is not war in the traditional sense, as it is employed only to maintain international peace and security, humanitarian rules of warfare should still govern.

Principle of Chivalry Prohibits the belligerents from the employment of perfidious or treacherous methods.

Belligerent Occupation Temporary military occupation of the enemy’s territory during the war. Maintains effective control and military superiority and being able to send sufficient forces to assert its authority within a reasonable time.

EffectsNo change in sovereignty, but exercise of the powers of sovereignty is suspended.Political laws, except the laws on treason, are suspended.Municipal laws remain in force.

Rights and Duties of Belligerent Occupant1. Re-establish or continue the processes of orderly administration, including enactment of laws.2. Adopt measures for the protection of the inhabitants3. Requisition (sequester) goods with proper cash or future payment and services in non-military projects (Conscription is prohibited)4. Demand taxes and contributions to finance military and local administrative needs Foraging: the actual taking of provisions for men and animals by the occupation troops where lack of time makes it inconvenient to obtain supplies by usual or ordinary methods.

Compensation must be paid at the end of the war.5. Issue legal currency6. Use enemy property, public or private, but private property is subject to indemnification or return at the end of the war.

Right of Angary Right of belligerent state, in cases of extreme necessity, to destroy or use neutral property on its own or on enemy territory or on the high seas

Non-Hostile Intercourse

Flag of Truce White in color desire to communicate with the enemy Agent (parlementaire) enjoys inviolability and is entrusted with the duty of negotiating with the enemy.

Cartels Agreements to regulate intercourse during the war Usually on the exchange of prisoners of war

Passport Written permission given by the belligerent government To the subjects of the enemy To travel generally in the belligerent state

Sage-conduct Permission given to an enemy subject or to an enemy vessel Allowing passage between defined points

Safeguard Protection granted by a commanding officer to enemy persons or property within his command

184


Usually with an escort or convoy of soldiers providing the needed protection.

Licenses to Trade Permission given by competent authority to individuals to carry on trade though there is state of war.

Suspension of Hostilities

Suspension of Arms Temporary cessation of hostilities By agreement of the local commanders For the purposes of gathering of the wounded and burial of the dead

Armistice Suspension of hostilities within a certain area or in the entire region of the war Agreed upon by the belligerents Usually for the purpose of arranging the terms of the peace

Cease-Fire Unconditional stoppage of hostilities Usually ordered by an international body

Truce Conditional cease-fire for political purposes

Capitulation Surrender of military forces, places or districts in accordance with rules of military honor.

Termination of War1. Simple Cessation of Hostilities Principle of uti possidetis with respect to property and territory possessed by the belligerents is applied.2. Conclusion of a negotiated treaty of peace3. Defeat of one of the belligerents Followed by a dictated territory of peace or annexation of conquered territory.

Postliminium Revival or reversion to the old laws and sovereignty of territory which has been under belligerent occupation once control of the belligerent occupant is lost over the territory affected.

Distinguished from Uti Possidetis Uti Possidetis alloaws retention of property or territory in the belligerent’s actual possession at the time of the cessation of hostilities.

War Crimes- Acts for which soldiers or other individuals may be punished by the enemy on capture of the offender.- War Criminal: any person – civilian or member of the armed forces of the State, who commits an act that violates a rule of international law governing armed conflicts

Neutrality and Neutralization

Neutrality Non-participation in a war between contending belligerentsExists only during warGoverned by the law of nations NaturalizationResult of a treaty wherein conditions of the status are agreed upon by the neutralized state and other signatoriesExists both in times of war and of peaceGoverned by the agreement entered into by and between the parties A permanently neutral or neutralized state is one whose independence or integrity is guaranteed by other states, under the condition that such state binds itself never to participate in an armed conflict or military operation except for individual self-defense. In Cold War, the states which sided with neither the democracies nor the communists

185


were referred to as neutralist or non-alligned states. Non-belligerency – did not take part in military operations but which did not observe the duties of a neutral.o Mid-way between a neutral and a belligerento Not recognized in international law

Neutrality under UN Chartero Because of enforcement action that UN may undertake, absolute neutrality cannot exist among UN Members

Rules of NeutralityNeutrals have the right and duty:

Abstain from taking part in the hostilities and from giving assistance to either belligerents by:Sending of troopsOfficial grant of loansCarriage of contrabandContraband – goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination.

i. Absolute – useful for war under all circumstances (guns/ammunitions)

ii. Conditional – have both civilian and military utility (food and clothing)

iii. Free list – exempt from the law on contraband for humanitarian reasons (Medicines) Doctrine of Ultimate Consumption – goods intended for civilian use which may ultimately find their way to and be consumed by belligerent forces may be seized on the way. Doctrine of Infection – innocent goods shipped with contraband may also be seized Doctrine of continuous voyage/continuous transport – goods reloaded at an intermediate port on the same vessel or reloaded on another vessel or other forms of transportation may also be seized Doctrine of Ultimate Consumption

Engaging in Unneutral Services – acts of a more hostile character than carriage of contraband or breach of a blockade, undertaken by merchant vessels of a neutral state in aid of any of the belligerents.To prevent its territory and other resources from being used in the conduct of hostilitiesTo acquiesce to certain restriction and limitations which the belligerents may find necessary to impose:Blockade – hostile operation where vessels and aircraft of one belligerent prevent all other vessels (including neutral states) from leaving or entering the port or coasts of the other belligerent; Purpose shut off the place from international commerce and communications with other states. (Pacific Blockade: applies only to vessels of blockaded stated, not to those of others)To be valid:1. blockade must be binding (duly communicated to neutral states)2. effective3. established by competent authority of belligerent government4. limited only to the territory of the enemy5. impartially applied to all states*LIABILITY OF A NEUTRAL VESSEL TO CAPTURE FOR BREACH OF THE BLOCKADE IS CONTINGENT ON ACTUAL OR PRESUMPTIVE KNOWLEDGE OF THE BLOCKADE.Visit and Search to the authority of the prize courtsBelligerent warships and aircraft have the right to visit and search neutral merchant vessels to determine whether they are in any way connected with the hostilities.Vessels captured for engaging in hostile activities are considered as prize.They may not be confiscated summarily but brought before prize court – a tribunal established by a belligerent under its own laws; in its territory or territory of its allies; applying international law in the absence of special municipal legislation.

186


Termination of Neutrality(1) Conclusion of a treaty or peace between belligerents(2) Neutral state itself joins war

187

nachura

Documents

constitution of government

fundamental law

administrative law

constitution of liberty

constitution of sovereignty

election law

philippine constitution

us constitution