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Definition, Nature and Concepts The document which serves as the fundamental law of the state.1 That written instrument enacted by 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 the several departments for their safe and useful exercise for the benefit of the body politic.2 2. Parts Constitution of Liberty The series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.3 The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate.4 The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about.5
Constitution of Government
Constitution of Sovereignty
V. Sinco, Philippine Political Law, 11 ed., p.68-70 Malcolm, Philippine Constitutional Law, p.6. 3 Art. III 4 Arts. VI, VII, VIII, IX 5 Art. XVII
3. Amendments and Revisions Amendment Revision Isolated or piece-meal change only.6 A revamp or rewriting of the whole instrument.7
4. Self-Executing and Non-Self-Executing Provisions Self-executing provision One 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. One which lays down a general principle
Required Steps In The Amendatory Process A. Proposal. It may come from: 1. Congress, by a vote of ¾ of all its members. The choice of method of method of proposal, i.e., whether made directly by Congress or through a Constitutional Convention, is within the full discretion of the legislature. (Occena vs. COMELEC, 104 SCRA 1) 2.Constitutional Convention, which may be called into existence either by a 2/3 vote of all the members of Congress, or, if such vote is not obtained, by a majority 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 3. People, through the power of initiative. Through the “initiative” phase, the people propose the amendments. There is a valid proposal when a proposition has received the approval of at least 3% of the registered voters of each district and 12% of the total number of registered voters nationwide. This is followed by the “referendum” phase where the people vote to reject or ratify the proposal. B. Ratification Both amendment and revision signify change in the constitutional text. An amendment envisages of one or a few specific and isolated provisions of the Constitution. Its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones accordingly as addition or subtraction might be demanded by existing conditions. 7 In revision, the guiding intention and plan contemplate a re-examination of the entire document or an important cluster of provisions in the document to determine how and to what extent it should be altered. The end product of a revision can be an important structural change in the government or a change which affects several provisions of the Constitution. A revision of the Constitution cannot be effected through initiative and referendum. The change authorized by Art. XVII, Sec. 2 through initiative and referendum can only be amendment. The main reason is that formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body.
5. General Provisions8 The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.9 The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.10 The State may not be sued without its consent.11 The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.12 All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be 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 a civilian position in the Government, including governmentowned or controlled corporations or any of their subsidiaries. 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. The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.13 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. The authority of local executives over the police units in their jurisdiction shall be provided by law.14
Art. X Sec. 1 10 Sec. 2 11 Sec. 3 12 Sec. 4 13 Sec. 5 14 Sec. 6
17 The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into. 12 4 . Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and.19 The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities.16 The State shall protect consumers from trade malpractices and from substandard or hazardous products. the majority of the members of which shall come from such communities. 9 18 Sec.18 The ownership and management of mass media shall be limited to citizens of the Philippines.20 15 16 Sec. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof.15 The State shall. 11 20 Sec. 10 19 Sec. and all the executive and managing officers of such entities must be citizens of the Philippines. wholly-owned and managed by such citizens. in accordance with a policy that respects the freedom of speech and of the press. 8 17 Sec. from time to time. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. out of. their surviving spouses and orphans. 7 Sec. or to corporations. and other forms of assistance to war veterans and veterans of military campaigns. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. and shall be regulated by law for the protection of consumers and the promotion of the general welfare. in appropriate cases. No combinations in restraint of trade or unfair competition therein shall be allowed. in the utilization of natural resources.The State shall provide immediate and adequate care. The advertising industry is impressed with public interest. benefits. cooperatives or associations. and across the country. review to increase the pensions and other benefits due to retirees of both the government and the private sectors.
form part of the internal waters of the Philippines. between and connecting the islands of the archipelago. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. Inasmuch as the State authorizes only legal acts by its officers. 23 The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. in order to be effective. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same. Archipelagic Doctrine It is defined as “the waters around. 2nd sen. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith.B. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. I Art. General Considerations 1. although it has not been formally impleaded. regardless of their breadth and dimensions. 2. or beyond the scope of his authority or jurisdiction. unauthorized acts of govt. To do so would "unduly vex the peace of nations. The added basis in this case is the principle of the sovereign equality of States. under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. such as the appropriation of the amount needed to pay the damages awarded against them. it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. While the doctrine appears to prohibit only suits against the state without its consent.1.) The consent to be sued.”22 It emphasizes the unity of the land and waters by defining an archipelago as gro up of islands surrounded by waters or a body of waters studded with islands. officials or officers are not acts of the State. and an action against the officials or officers by one whose rights have been invaded or violated by such acts. State Immunity23 The general rule is that a state may not be sued without its consent. Sec. 5 . In this case. Waiver of state immunity can only be made by an act of legislative body. I. acting through a duly enacted statute. National Territory21 a. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff." (Cruz. 21 22 Art. is not a suit against the State within the rule of immunity of the State from suit. the suit must be regarded as against the state itself. must come from the State. the officers are liable for damages. for the protection of his rights.
6 . 5. March 25. how great and painful might he have suffered in the hands of his persecutors or oppressors. 6. which although extendible in case of emergency by the President. It is a weapon of reason and civility. Ours is a government of laws and not of men. Sovereignty resides in the people and all government authority emanates from them. Phil. so as to avoid propagation of power. 2. Lantion. 778. January 18. the highest civilian authority as the commander-in-chief of the military [Sec. 39 Phil.27 The Philippines renounces war as an instrument of national policy. 7. Political Law 116 (11 ed. must resort to the rule of law rather than taking the law into his hands. the requirement that the members of the AFP swear to uphold and defend the Constitution. from the highest official of the land down to the lowest level of the citizenry. see Vicente th Sinco. (Secretary of Justice v. 18. the principle of lex posterior derogat priori takes effect.R.3. 3. the installation of the President. equality. Bill of rights 27 Sec. Its goal is to secure the sovereignty of the State and the integrity of the national territory. both statutes and treaties may be invalidated if they are in conflict with the constitution. VII]. Accordingly. national legislative enactments. 1 28 Sec. which is the fundamental law of the civil government. prohibition against appointment to a civil position. The Court said that such act constitutes a wanton violation of the principle that “ours is a government of laws and not of men. adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace. depends on Congressional declaration of emergency. but are not subject to. insulation of the AFP from partisan politics.” (Villavicencio vs. G. 1919) B. must respect the laws. No. freedom.28 Civilian authority is. the professionalization of the service and the strengthening of the patriotism and nationalism.29 24 25 Art. and nobody. 3 Ensured by: 1. 139465. Rule of the majority (Plurality in elections) C. supreme over the military. decrees that rules of international law are given equal standing with. 4. Angara. The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them against their will in Davao. justice. In states where the constitution is the highest law of the land. and amity with all nations. and respect for human rights. Art. Principles and Policies24 Principles25 The Philippines is a democratic and republican State26. 2 Doctrine of Incorporation The courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments. II Binding rules which must be observed in the conduct of the government (Tanada vs. at all times. The doctrine of incorporation. 2000) 29 Sec. such as the Philippines. cooperation. because these generally accepted principles of international law are automatically part of our own laws. a 3-year limitation on the tour of duty of the Chief of Staff. as applied in most countries. Its essence is that all persons. The Armed Forces of the Philippines is the protector of the people and the State. compulsory retirement of officers. 1962) 26 Manifestations of a Republican State: A. Lukban. Accountability of public officials D. of the military.
3 (3). VI]. consistent with the national interest. Art. 2. and 6.35 The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide 8. adopts and pursues a policy of freedom from nuclear weapons in its territory. etc. Art. to render personal. 5. Non-establishment of religion clause. 2 (5) Art.32 State Policies33 The Sate shall pursue an independent foreign policy. XVI]. 4 Sec. except when.. Religious denominations and sects cannot be registered as political parties [Sec. so as to avoid any regional clique from forming within the AFP [Sec. except those established by religious groups and mission boards [Sec.The prime duty of the Government is to serve and protect the people. military or civil service. 3. 7 . Churches. VI]. Art.30 The maintenance of peace and order. 9. 6. 4 (2). VI]. in its relations with other states the paramount consideration shall be national sovereignty. Filipino ownership requirement for educational institutions. Exceptions: 1. 28 (3). XIV]. or to any penal institution or government orphanage or leprosarium [Sec. XIV]. priest etc. directly and exclusively used for religious. VI]. territorial integrity. and property. 5. Art.. 8 Policy of freedom from nuclear weapons The Constitution prescribes a policy of freedom from nuclear weapons.and 4. the protection of life. all citizens may be required. The Government may call upon the people to defend the State and. 33 Guidelines for the orientation of the state (see IV Record of the Constitutional Commission. Sec. 2. actually. under conditions provided by law. 768 and 580) 34 Sec. but it must be justified by the demands of the national interest. charitable and educational purposes shall be exempt from taxation [Sec. liberty. No religious test clause [Sec. XVI]. 5 (2). and manufacture of nuclear weapons but also nuclear arm tests. 5 32 Reinforced by: 1. is assigned to the armed forces. 3. Freedom of religion clause. Exception to this policy may be made by the political department. The policy includes the prohibition not only of the possession. 5. and the establishment of a police force that is not only civilian in character but also under the local executives [Sec. personages. Prohibition against appropriation for sectarian benefits. 29 (2). control. Art. in the fulfillment thereof. Art. IX-C]. 30 31 requirement of professional recruitment. 4.31 The separation of Church and State shall be inviolable. Art. III]. No sectoral representative from religious sector [Sec. [Sec. Art. Optional religious instruction for public elementary and high school students [Sec.34 The Philippines. 7 35 Sec. and the right to self-determination. Art. Prohibition against appropriation for sectarian purposes. and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. national interest. 29(2). But the policy does not prohibit the peaceful uses of nuclear energy.
38 The State values the dignity of every human person and guarantees full respect for human rights. culture. It shall inculcate in the youth patriotism and nationalism.R. No. October 7.39 The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. 15 44 Sec. physical plant and facilities and administrative and management viability. It shall equally protect the life of the mother and the life of the unborn from conception. and shall ensure the fundamental equality before the law of women and men. 9 It simply means the equalization of economic. 244 SCRA 770) 8 . political and social opportunities with special emphasis on the duty of the State to tilt the balance of social forces by favoring the disadvantaged in life. and social well-being.40 The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. promote full employment. 13 R.46 36 37 Sec. thus. therefore.41 The State recognizes the role of women in nation-building. 7610. 45 Sec. arts.45 The State affirms labor as a primary social economic force. Larin. teaching staff.A. v. accelerate social progress. (Philippine Merchant Marine School. 16 This provision recognizes an enforceable right. moral. (People v. 1998) 42 Sec. science and technology.36 The State shall promote social justice37 in all phases of national development. 11 40 Sec.adequate social services. 128777. 14 43 Sec. 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 the support of the Government. the Court grants the victim full vindication and protection granted under the law. Inc. was enacted in consonance with the policy of the State to provide special protection to children from all forms of abuse.43 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. spiritual. 38 Sec.44 The State shall give priority to education. G. shall at least satisfy minimum standards with respect to curricula. It shall protect the rights of workers and promote their welfare. a rising standard of living. CA. which penalizes child prostitution and other sexual abuses. and sports to foster patriotism and nationalism. and promote total human liberation and development. and an improved quality of life for all. 12 41 Sec. 10 39 Sec. and encourage their involvement in public and civic affairs. intellectual. 17 The requirement that a school must first obtain governmental authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and.42 The State shall protect and promote the right to health of the people and instill health consciousness among them.
and provides incentives to needed investments. 18 Sec. 25 Decentralization of Administration . 170 SCRA 786) 54 Sec.56 46 47 Sec.50 The State shall encourage non-governmental. 26 The purpose of this provision is to give substance to the desire for the equalization of political opportunities 55 Sec.The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. 19 48 Sec.delegation of administrative powers to local government unit in order to broaden the base of governmental powers. 21 50 Sec.55 Subject to reasonable conditions prescribed by law. 20 49 Sec.52 The State shall ensure the autonomy of local governments. and prohibit political dynasties as may be defined by law. 22 51 Sec.49 The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Mangelin.47 The State recognizes the indispensable role of the private sector. 24 53 Sec. Decentralization of Powers – abdication of political power in the favor of local governments units declared to be autonomous. 28 9 .51 community-based.48 The State shall promote comprehensive rural development and agrarian reform. encourages private enterprise. 27 56 Sec. (Limbonas v. the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.54 The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. organizations that promote the welfare of the nation. 23 52 Sec. or sectoral The State recognizes the vital role of communication and information in nationbuilding.53 The State shall guarantee equal access to opportunities for public service.
Public Service Commission. 6. April 15. (Bengzon vs. The Executive has no authority to set aside and overrule a decision of the SC. The challenged veto has far-reaching implications which the Court cannot countenance as they undermine the principle of separation of powers. e. Sec. XVII.61 4. June 26. Exceptions:58 1. 1992) 58 Permissible Delegation 59 Art. Drilon. 208 SCRA 133. Delegation to administrative bodies63. 5. veto power of the President as check on improvident legislation. Separation of Powers57 Legislative power is given to the Legislature whose members hold office for a fixed term. and judicial power is held by an independent Judiciary. G. Sec. the possibility of establishing a despotic and tyrannical regime capable of suppressing and suffocating the rights of the people becomes a tempting reality.A. 23 (2) 61 Art. (Pangasinan Transportation Co. X. Delegation to Local Government units. 47065.g.62 and 5. R. executive power is given to a separate Executive who holds office for a fixed term.4. VI. Art. Delegation to the people. 1940) The SC nullified the veto exercised by the President adjusting the pension of Justices of the SC and the CA asserting in very strong terms that such an act palpably violates the doctrine of separation of powers. v. 32. 10. Sec. The principle of separation of powers is based on the conception that if the totality of governmental powers were concentrated in one person or group of persons. 7160 63 power of subordinate legislation 10 . Checks and Balances This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. No.R. 2. 28 (2) 60 Art.premised on the ethical principle that 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. VI. Tariff powers of the President59 2. 57 Purpose: to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. VI. Art. Sec. Emergency powers of President60 3. RA 6753 62 Art X. Delegation of Powers General Rule: Potestas delegata non potest delegare . Sec.
the prime minister. to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. However.67 Parliamentary Unitary or centralized Federal 64 The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. The Philippine government is an example of a unitary form of government. Under this system. and mediately or politically responsible to the electorate. usually the more popular chamber.occupies a position of irresponsibility. and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out by the State as executive independence and prerogative. distributed between a central government and the local government. each being supreme within its own sphere. 11 .65 One in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers. thereby maintaining a system of checks and balances among them. preserving the will of the sovereign expressed in the Constitution. and the members of the cabinet. makes the executive independent of the legislature.64 One in which the state confers upon the legislature the complete control of the administration of laws. both in tenure and prerogative. by common sovereign. interfere with or encroach upon the acts done within the constitutional competence of the others. Forms of Government Presidential One in which the state. Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. (Aruego and Laguio) 67 Id. There may be a head of state who may or may not be elected and who usually merely exercises ceremonial functions. thus.7. the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action. Each department of government exercises powers granted to it by the Constitution and may not control. 66 The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution. 65 The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament. who is the head of government. the sovereign. the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof. who are chosen from among the members of parliament and as such are accountable to the latter. while the titular or nominal executive – the King or Chief of State.66 One in which the governmental powers are.
resolution or ordinance. Initiative on the Constitution – petition proposing amendments to the Constitution. Referendum on Statutes – petition to approve or reject an act or law. Initiative on Statutes – petition proposing to enact a national legislation. b. passed by Congress. or part thereof. amend and repeal laws. amend or reject any ordinance enacted by the sanggunian. 71 Classes of Referendum: 1. Initiative and Referendum Initiative70 Power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. Congress The power of the Congress to legislate is complete. 126. c. Who May Exercise Legislative Power69 a. VI power to propose. either explicitly or impliedly. 2. enact. Initiative on Local Legislation – petition proposing to enact a regional. provincial. RA 7160 or the LGC of 1991) 12 . 2. full and plenary embracing all subjects and extends to all matters of general concern except as limited by the Constitution. 68 69 Art. Regional/Local legislative power The power of a regional or local legislative body to make rules in the form of ordinances and resolutions of regional or local application that have the force and effect of law. Legislative Department68 1. 70 Classes of initiative: 1. city. 3. People’s initiative on statutes i. (Sec. Referendum71 Power of the electorate to approve or reject legislation through an election called for that purpose. or. Referendum on Local Laws – legal process whereby the registered voters of the local government units may approve. municipality or barangay law.C. substantively or procedurally.
is entitled to one representation. and on the basis of a uniform and progressive ratio. vs. June 26.72 (1) District Representatives and Questions of Apportionment Representative districts are apportioned among provinces. Party-list Representatives – shall constitute 20% of the total number of representatives. compact and adjacent. 74 Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas. cities and the Metropolitan Manila area. was not to allow all associations to participate indiscriminately in the party-list system but to limit participation to parties or organizations representing the “marginalized and underprivileged. elected at large by the qualified voters of the Philippines. Reapportionment within 3 years following return of every census. Comelec G. Each district must be contiguous. ii. b. regional and sectoral parties or organizations. each city with a population of at least 250. et al. regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. (2) Party-List System The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national. One man’s vote should carry as much weight as the vote of every other man. Reviewer in Philippine Constitution.000 is entitled to at least one representative. P. Senate Composed of 24 senators. House of Representatives Composed of not more than 250 members consisting of: i. RA 7941.R.2. irrespective of population. 2001) 73 The underlying principle behind this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. No. cities and municipalities in accordance with the number of their respective inhabitants.73 Each province. elected through a party-list system of registered national. District Representatives – elected from legislative districts apportioned among the provinces. 186) 75 The Court held that the intent of the Constitutional Commission and the implementing statute.” 13 . 147589. Houses of Congress a. Gerrymandering 74 is not allowed.75 72 The Party-list organization must represent the “marginalized and underprivileged” and the nominees themselves must comply with this qualitative requirement (Ang Bagong Bayani.
or its subsidiary. or in any franchise or special privilege corporation. or sleeping at home). including government-owned or controlled corporations or their subsidiaries. make a full disclosure of their financial and business interests. must be made "in" Congress in the discharge of legislative duty. or instrumentality thereof. Legislative Privileges. freedom from arrest holds.3. or any subdivision. directly or indirectly. Inhibitions and Disqualifications A Senator or Member of the House of Representatives shall. It does not matter where the member of Congress may be found (attending the session. 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. agency. such as speeches delivered. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress77 or in any committee thereof. The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. in all offenses punishable by not more than six years imprisonment. A forbidden office is one to which a member cannot be appointed even if he is willing to give up his seat in Congress. however. 13 An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. The speech. and any other form of expression. it must be part of the deliberative and communicative process by which legislators participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress. 78 Sec. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. Speech is not confined to traditional speech but even to the casting of votes. 12 79 Sec. even if he is session in the halls of Congress. since the incompatibility arises only because of his simultaneous membership in both. “Speech or debate” includes utterances made in the performance of official functions. a debate or discussion. Thus. 14 .” that is. or quasi-judicial and other administrative bodies. the member can be arrested. during his term without forfeiting his seat. A sensu contrario. even communicative actions. statements made. "Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. be interested financially in any contract with. However. he may accept the other post. as well as bills introduced and other acts done in the performance of official duties. the prohibition is not forever (as in the Jones Law). 17 SCRA 876) To come under the privilege. be privileged from arrest76 while the Congress is in session. during his 76 Congress must be in session. Neither shall he. The effect of his resignation from the Congress is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains. it is for the term for which he was elected. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more. whether regular or special. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. What is essential is that the utterance must constitute “legislative action. it is not essential that the Congress be in session when the utterance is made. votes cast.78 No Senator or Member of the House of Representatives may hold any other office or employment in the Government. (Jimenez vs. The prohibition lies in the "fiduciary" nature of the relationship involved.79 No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals. All Members of the Senate and the House of Representatives shall. so long as Congress is in session. upon assumption of office. Cabangbang. the making of reports. socializing in a private party. if he waives or forfeits his seat. 77 This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees.
and compel the attendance of the absent (recalcitrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. This is not a prohibition against. Discipline of Members82 Each house may punish its members for disorderly behavior83. 17) 82 Sec. are required. shift. with the concurrence of 2/3 of all its members. If only 13 members are present. But as the number of those present increases.80 4. But to pass a law. when imposed.. (Avelino v. a smaller number may adjourn from day to day. Thus. only the votes of the majority of those present in the session. as such House may provide. and under such penalties.term of office. A penalty of suspension. 16 (2) The quorum required to conduct business is a majority (1/2 + 1) of all the members. and. give legal advice. continue as partner. the practice of law in any court. 83 Phil. and the Court will not review such determination. Quorum and Voting Majorities A majority of each House shall constitute a quorum to do business.e. and have a partner or associate appear for him in court. 14 What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. a vote by 7 in favor of a bill is sufficient to pass it. a member may still sign and file his pleadings. the same being a political question. 81 Sec. This is known as the "shifting majority". He shall not intervene in any matter before any officer of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. 109 Phil. the number of votes needed to pass a bill would correspondingly increase. shall not exceed sixty days. there being a quorum. To illustrate: 13 members of the Senate are sufficient to constitute a quorum. i. 16 (3) 83 The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned. 80 Sec. (Osmena vs. but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner. The basis in determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. When a quorum cannot be had.81 5. suspend84 or expel a member. Pendatun. Cuenco. 863) 84 for not more than 60 days 15 .
1997 88 Commission on Appointments meets only while Congress is in session. and 2. 85 Composition: 1) 3 Supreme Court Justices designated by Chief Justice. Powers Electoral Tribunals 1. Since the Commission on Appointments is also an independent constitutional body. and 2) 6 members of the Chamber concerned (Senate or HR) chosen on the basis of proportional representation from political parties and parties registered under the party-list system Senior Justice shall act as Chairman. the consent of the Commission on Appointments is needed. Power to promulgate its own rules of proceedings. 168 SCRA 391 16 .89 2. elected by each house on the basis of proportional representation from the political parties and parties and organizations registered under the party-list system represented therein. March 21. 2) Senate President as ex-officio chairman. b. and its decision may be reviewed by the SC only upon showing of grave abuse of discretion in a petition for certiorari filed under Rule 65 of the Rules of Court. VI. HRET. Electoral Tribunals and the Commission on Appointments a. Shall act on all appointments submitted to it within 30 session days of Congress from their submission. For the effectivity of the appointment of certain key officials enumerated in the Constitution.R. No. Sec. 89 Art. Nature Electoral Tribunal85 Independent of the Houses of Congress. Meetings are held either at the call of the Chairman or a majority of all its members. 87 Pena vs.6. HRET. Sole judge of all contests relating to the election. 86 Composition: 1) 12 Senators and 12 Representatives. 17 90 Lazatin v. 3) Chairman shall not vote except in case of tie. returns and qualification of their respective members.87 Commission on Appointments86 It acts as a legislative check on the appointing authority of the President. G. its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary. 123037. Rule-making power90 Commission on Appointments88 1.
92 In deference to separation of powers. 91 Sec. the appearance shall be conducted in executive session. and because department heads are alter egos of the President. Legislative (1) Legislative Inquiries and the Oversight Functions The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. inquiry shall be respected But. There are some cases where the version of the bill approved by Congress is different from the one in the Senate or vice-versa. 21 Each house or any of its committees may conduct "inquiries in aid of legislation" according to its duly published rules of procedures. if the investigation is no longer “in aid of legislation” but “in aid of prosecution” which the stated purpose of the investigation is to determine the existence of violations of the law. (c) rights of persons appearing in. or affected by such. but may cover matters related thereto. and each version needs to be approved by both Congress and Senate. To resolve this issue. or upon the request of either House. appear before and be heard by such House on any matter pertaining to their departments. It is an indispensable requirement for an effective discharge of legislative authority designed to gather data or information vital in the formulation of laws without which legislative power becomes an empty term. upon their own initiative. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. the exercise of such duty is not illimitable. with the consent of the President92. When the security of the State or the public interest so requires and the President so states in writing. 93 Sec.7. The bill cannot be passed if it has multiple forms because then multiple laws will be created. However. Interpellations shall not be limited to written questions.91 The heads of departments may. It has to be exercised in accordance with the limitations imposed by the Constitution: (a) in aid of legislation. 22 Oversight functions: Such functions are intended to enable Congress to determine how laws it has passed are being implemented. To enforce this right. The rights of persons appearing in or affected by such inquiries shall be respected. a bicameral conference committee is created which takes representatives from both Congress and Senate and they unify the two differing bills into one coherent law. 17 . the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest.93 (2) Bicameral Conference Committee Bills or "suggested laws" are put forward by either Congress or Senate but it has to be approved by both bodies before it can proceed to become law. they may not appear without the permission of the President. then it is beyond the scope of congressional powers. (b) in accordance with duly published rules of procedure. Powers of Congress a. as the rules of each House shall provide.
In all such cases. he must veto the bill in its entirety. he shall sign it. tariff or revenue bill. [VI. Bill of Local Application .96 94 Sec. the votes of each house shall be determined by "yeas" or "nays". If after such reconsideration. but the veto shall not affect the item or items to which he does not object. If approved by 2/3 of all the members of that house. it shall be sent together with the objections of the President. However. and private bills shall originate exclusively in the House of Representatives. and the names of the members voting for or against shall be entered in the Journal. otherwise. 27(1)] 18 . (2) The President shall have the power to veto any particular item or items in an appropriation. 27 When the President vetoes a measure. it shall be sent. 96 Sec. revenue or tariff bills. 235 SCRA 630). In all such cases. it shall become a law as if he had signed it.one that is addressed to a specific private interest. before it becomes a law. he shall veto it and return the same with his objections to the House where it originated. when the President vetoes a bill. indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his veto Upon consideration of the objections raised by the President in his veto message.one that is addressed to a particular place or locality or where the interest of a designated community is the thrust of the bill. to the other house by which it shall likewise be reconsidered. 24 Shall originate exclusively from the House – the initiative for filing of RAT Bills must come from the House.one that is specifically designed to raise money or revenue through imposition or levy. Of Finance. whether on constitutional grounds or even on the wisdom and practicability of the bill which cannot be interfered with on the theory that the exercise of such power is a political act. but it does not prohibit the filing in the Senate a substitute bill in anticipation of its receipt of the bill from the House. he should return the measure to the House of origin. but the Senate may propose or concur with amendments. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof. If. the House from which the bill originated shall reconsider the bill. He may veto a bill on any ground. and the names of the Members voting for or against shall be entered in its Journal. bills authorizing increase of the public debt. (Tolentino v.94 (b) Presidential Veto95 and Congressional Override (1) Every bill passed by the Congress shall. bills of local application. it shall become a law. and if approved by two-thirds of all the Members of that House. 2/3 of all the members of such house shall agree to pass the bill. Appropriations and Tariff Measures All appropriation.(3) Limitations on Legislative Power (a) Limitations on Revenue. Revenue Bill . be presented to the President. As a general rule. Private Bill . which shall enter the objections at large in its Journal and proceed to reconsider it.one the principal and specific aim of which is to appropriate a certain sum of money from the public treasury. after such reconsideration. to the other House by which it shall likewise be reconsidered. or tariff bill. otherwise. so long as the action by the Senate is withheld pending the receipt of the House bill. Sec. but the veto shall not affect the item or items to which he does not object. the President is allowed to veto any item or items in an appropriation. revenue. Appropriation Bill . 95 The exercise of the veto power of the President is purely discretionary. it shall become a law. two-thirds of all the Members of such House shall agree to pass the bill. If he approves the same. together with the objections. the votes of each House shall be determined by yeas or nays.
into law. Non-Legislative (1) Informing Function The means by which Congress has collected. The inability of the President to return the bill within the reglementary period prescribed by the Constitution converts the bill. 19 .c. Pocket Veto One by which the President secures the disapproval of a bill by mere inaction after the adjournment of Congress. the bill becomes a law as if he had signed it. processed and acted on information vital to its role as national legislature. and of reporting its activities to the public. Pocket veto is not allowed because under the Constitution. by inaction. Congress informs itself in an effort to produce better legislation. where the President fails to communicate his veto on any bill to the House where it originated within 30 days after receipt thereof.
G. pardoning (Sec.. R. ibid). 16. VII Deemed implied in the Constitution (Bernas. The 1987 Constitution. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Executive Department97 1. Presidential Privilege99 Two kinds: Presidential communications privilege Communications. 167 SCRA 393) 99 It is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President. ibid) powers. appointing (Sec. VII. G. Sec. Deliberative process privilege 97 98 Art. p 803) The immunity does not however extend to non-official acts or for wrong doing (Estrada vs.. 2008 citing U. (Soliven v. she may not be prevented from instituting suit. documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.D. 19. ibid). Inhibitions and Disqualifications a. such as the area of military and foreign relations. Nos. Privileges. Presidential Immunity Immunity from suit during his tenure98 b. 2001) While the President is immune from suit. 963124. Makasiar. Such immunity must be exercised only by the President himself and not by others on his behalf.S. Includes advisory opinions. 146710-15. 18). March 25. June 17.R. the information relating to those powers may enjoy greater confidentiality than others (Neri vs. Consistent with the doctrine of separation of powers. 18063. Under our Constitution. 1997) 20 . Senate Committee on Accountability of Public Officers and Investigation. No. et al. Desierto. and diplomatic (Secs. Court of Appeals In Re: Sealed Case No. March 2. A Commentary 2003 Ed. 20 and 21. the President is the repository of the commander-in-chief (Art.
and other officers whose appointments are vested in him in this Constitution.100 Until and unless a law is declared unconstitutional. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. consolidate. with the consent of the Commission on Appointments. property. agencies.101 Administrative Powers (i) Create. Powers a. whether voluntary or compulsory. or in the heads of departments. bureaus. b. or officers of the armed forces from the rank of colonel or naval captain. appoint the heads of the executive departments. equipment. office.2. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law. agency or instrumentality to another. vest the appointment of other officers lower in rank in the President alone. offices. materials and equipment. bureau. instrumentalities and functions of the government. ambassadors. by law. The President shall have the power to make appointments during the recess of the Congress. or boards. in the courts. and those whom he may be authorized by law to appoint. He shall ensure that laws are faithfully executed. abolish. records and personnel from one ministry. coordinate. other public ministers and consuls. (ii) Standardize salaries. President has a duty to execute it regardless of his doubts as to its validity. group. Executive and Administrative Powers in General Executive Powers The President shall have control of all executive departments.102 100 Sec. bureaus and offices. appropriations. agencies. 17 "Control" is the power to substitute one's own judgment in that of a subordinate. 101 faithful execution clause Sec. Power of Appointment (1) In General The President shall nominate and. and transfer functions. merge or integrate departments. and (iv) Commute or remove administrative penalties or disabilities upon officials or employees in disciplinary cases. The Congress may. 16 21 . (iii) Remove or otherwise discipline officers of the government as may be provided by law. commissions.1 and 17 102 Sec.
c. 97 Phil. and no other. 108 Alter Ego Principle 109 Villena v. (Angangco v. 79974. except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Mison. Exception: those appointed by him where the Constitution prescribes certain methods for separation from public service. This is an element of the presidential system where the President is the Executive of the Government of the Philippines. the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments.g. Other ministers whose appointments are vested in him by the Constitution103 (3) Midnight Appointments Those made by the President or Acting President two months immediately before the next presidential elections and up to the end of his term. Art. are. VII 105 e. 67 Phil. Ambassadors and other public ministers and consuls. impeachment 106 The power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Mondano v. The power of supervision does not include the power of control. and the acts of the secretaries of such departments. Castillo. not over the actor. G.104 (4) Power of Removal General rule: this power is implied from the power to appoint. No.105 c. 9 SCRA 619) 107 It is the power of a superior officer to ensure that the laws are faithfully executed by inferiors.R. 143). and d. unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. but the power of control necessarily includes the power of supervision. the heads of the various executive departments are assistants and agents of the Chief Executive. from Cabinet members to the lowliest clerk. and.(2) Commission on Appointments Confirmation a. b. Silvosa. Secretary of Interior. performed and promulgated in the regular course of business. But the power of control may be exercised by the President only over the acts. 451 22 . except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally. 1987 See Section 15. Officers of the AFP from the rank of colonel or naval captain. The power of the President over local governments is only of general supervision. Power of Control106 and Supervision107 (1) Doctrine of Qualified Political Agency108 All executive and administrative organizations are adjuncts of the Executive Department. December 17. Heads of executive departments. It is such power which has been given to the President over all executive officers.109 103 104 Sarmiento v.
VIII 113 Commander-in –Chief clause 114 Grounds: invasion or rebellion.110 (3) Local Government Units The President of the Philippines shall exercise general supervision over local governments.(2) Executive Departments and Offices The President shall have control of all the executive departments. following which it shall be lifted. Person arrested must be charged within 3 days. when public safety requires it. must be released. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of Martial e. cannot be granted in cases of impeachment. Authority of the Supreme Court: to inquire into the sufficiency of the factual basis for such action. invasion or rebellion. if not. Pardoning Power (1) Nature and Limitations Nature Limitations a. bureaus. 18. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. unless extended by Congress. Duration: not more than 60 days. and/or organize courts martial and create military commissions. Art. Proclamation does not supersede civilian authority 115 except amnesty 23 . Authority of Congress to revoke or extend the effectivity of proclamation: by majority vote of all of its members voting jointly. and offices. 17 Sec. He shall ensure that the laws be faithfully executed. 110 111 Sec. and cities and municipalities with respect to component barangays. may not be controlled by the legislature or reversed by the court.113 Law 114 2. cannot be granted in violations of election laws without favorable recommendations of the COMELEC. at the instance of any citizen. Decision must be promulgated 30 days within its filing. Duty of the President to report to Congress: within 48 hours personally or in writing. c.111 d. Military Powers112 1. Provinces with respect to component cities and municipalities.115 Discretionary. Proclamation does not affect the right to bail. 4 112 Sec. b. can be granted only after convictions by final judgment. shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. unless there is a constitutional violation. To call out the Armed Force to prevent or suppress lawless violence.
e. cannot restore public offices forfeited. The power to negotiate treaties and international agreements b. The power to appoint ambassadors and other public ministers and consuls c. In States which observe the doctrine of separation of powers. as parolee is in the custody of the law although not in confinement. The power to contract and guarantee foreign loans on behalf of the Republic e. but without full restoration of liberty. 116 Commutation Reprieve Parole Amnesty Pardon Classified: 1.118 In public international law. (2) Forms of Executive Clemency Pardon116 Act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.Absolute or conditional. and f.Plenary or partial. Release from imprisonment. cannot absolve convict of civil liability. and 2. concurred in by the Legislature.d. cannot be granted in cases of legislative contempt or civil contempt. The power to deport aliens 118 Sec. The power to receive ambassadors and other public ministers accredited to the d. 117 Some of the foreign relations powers of the President a. usually extended to groups of persons who committed political offenses. f. the conduct of foreign relations or diplomatic power is vested in the Head of State or sovereign. the President holds actual executive power including the conduct of foreign relations. Act of grace. which puts into oblivion the offense itself. 21 Philippines 24 . Reduction or mitigation of the penalty. Diplomatic Power117 No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of Senate. Postponement of sentence or stay of execution.
Delegated powers In times of war or other national emergency. it shall be sent. and the names of the Members voting for or against shall be entered in its Journal. Veto powers Every bill passed by the Congress shall. VI 121 Sec. 27. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof. and other duties or imposts within the framework of the national development program of the Government. authorize the President. and if approved by two-thirds of all the Members of that House.120 The Congress may. the Congress may. he shall veto it and return the same with his objections to the House where it originated. id. The President shall have the power to veto any particular item or items in an appropriation. whatever is not legislative. for a limited period and subject to such restrictions as it may prescribe. tariff rates. such powers shall cease upon the next adjournment thereof. together with the objections. tonnage and wharfage dues.121 i. or tariff bill. which shall enter the objections at large in its Journal and proceed to reconsider it.122 j. id. and subject to such limitations and restrictions as it may impose.g. 123 Marcos v. otherwise. be presented to the President. to the other House by which it shall likewise be reconsidered. 22 Sec. but the veto shall not affect the item or items to which he does not object. it shall become a law as if he had signed it. authorize the President to fix within specified limits. Art. In all such cases. 28 (2). within thirty days from the opening of every regular session as the basis of the general appropriations bill. Powers relative to appropriation measures The President shall submit to the Congress. Residual Powers Whatever is not judicial. 178 SCRA 760 25 . a budget of expenditures and sources of financing. including receipts from existing and proposed revenue measures. the votes of each House shall be determined by yeas or nays. by law. Manglapus.119 h. two-thirds of all the Members of such House shall agree to pass the bill. If he approves the same he shall sign it. If. otherwise. before it becomes a law. it shall become a law. by law. is residual power exercised by the President. revenue. import and export quotas. Unless sooner withdrawn by resolution of the Congress. after such reconsideration.123 119 120 Sec. 23 (2). to exercise powers necessary and proper to carry out a declared national policy. 122 Sec.
the Vice President-elect shall become President. 9. the Vice President-elect shall act as President until the President-elect shall have qualified. 26 . If at the beginning of the term of the President. Rules on Succession The President-elect and the Vice President-elect shall assume office at the beginning of their terms. removal from office. 126 Sec. or resignation of the President. shall then act as President until the President or Vice-President shall have been elected and qualified. VII Sec. or resignation of the Acting President. by law. id. the Speaker of the House of Representatives. or resignation of both the President and VicePresident. by law. and be subject to the same restrictions of powers and disqualifications as the Acting President. in case of his inability. permanent disability. provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified. the Vice President-elect shall act as President until a President shall have been chosen and qualified. the President-elect shall have died or shall have become permanently disabled. the Speaker of the House of Representatives. id.124 In case of death. In case of death.126 124 125 Sec. If the President-elect fails to qualify. 8. If a President shall not have been chosen. provide who shall serve as President in case of death. the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress. the President of the Senate or. 7. permanent disability.125 Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected. Art. Where no President and Vice-President shall have been chosen or shall have qualified. removal from office. permanent disability. shall act as President until a President or a Vice-President shall have been chosen and qualified. the President of the Senate or. voting separately. He shall serve until the President or the Vice-President shall have been elected and qualified. The Congress shall. or where both shall have died or become permanently disabled. or inability of the officials mentioned in the next preceding paragraph. in case of his inability. the Vice-President shall become the President to serve the unexpired term. The Congress shall. permanent disability. in case of death.C.
131 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The Constitution vests the power of judicial review not only in the Supreme Court but also in the RTC. in all actions assailing the validity of a statute. and 2.R.M. 95832. This authority is derived by clear implication from the provision of Sec. notice to the Solicitor General is mandatory. 5 (2). November 8. 27 .R. The past cannot always be erased by a new judicial declaration.R. ultimately of the SC. March 14.. 166006. 212 SCRA 425. to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the fundamental law. August 10. G. presidential decree. 3.R. 132 Planters Products. the SC enforces and upholds the supremacy of the Constitution (1) Operative Fact Doctrine An unconstitutional law has an effect before being declared unconstitutional. VIII of the Constitution. 129 Sec. supra citing Peralta vs.2 130 All courts can exercise Judicial Review: The Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law for Sec. 2008. The doctrine of operative fact as an exception to the general rule. 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. VIII vested in: 1. The purpose of this mandatory notice is to enable the Solicitor General to decide whether or not his intervention in the action is necessary (Mirasol v. Civil Service Commission. treaty. Art. G. 79732. par. citing Republic vs. 1992. However. Through such power. No. February 1. No. Such lower courts as may be established by law (Sec. v.129 b. Judicial Power128 The duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. 1993. G. No. 128448. 5(2). Rule 64 of the Rules of Court. Art. 2001) 131 Planters Products vs. 227 SCRA 509. 1.E. VIII speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. Fertiphil Corp. VIII). Court of Appeals. Court of Appeals. 3 SCRA 696). Concepts a. Court of Appeals. Tuason and Co. No. (J. only applies as a matter of equity and fair play. 1. G. Judicial Review130 The power of the courts. order or proclamation – and not just in actions involving declaratory relief and similar remedies. as required in Sec. Art. One Supreme Court.132 127 128 Art. Judicial Department127 1.
SC is a Constitutional body. Salaries of judges may not be reduced. under the Constitution. 134 Tañada v. e. SC alone may order temporary detail of judges. Members of judiciary enjoy security of tenure. it ceases to be a case and controversy. They are abstract questions that do not arise from existing facts or rights. g. d. (3) Political Question Doctrine Those questions which. Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions. c) Voluntary cessation from the wrongful act by the defendant. injuries and heated arguments but for some reason the legal problem has become stale. appellate jurisdiction may not be increased without its advice or concurrence. 100 Phil 1101 28 . SC alone may initiate Rules of Court. SC has administrative supervision over all inferior courts and personnel. b.134 2. Safeguards of Judicial Independence a. When a case is moot and academic.(2) Moot Questions133 A case becomes moot when there are facts. SC can appoint all officials and employees of the Judiciary 133 Moot refers to a subject for academic argument. f. Any decision reached by the court would not be conclusive on the parties. j. Members are only removable by impeachment. h.. The Court may still exercise the power of judicial review even if the issues had become moot and academic when it feels called upon to exercise its symbolic function Exceptions to mootness: a) If the question is capable of repetition and evasive of review. may not be abolished by law. are to be decided by the people in their sovereign capacity. Cuenco. or in regard to which full discretionary authority has been delegated to the legislature or executive branches of government. SC may not be deprived of minimum and appellate jurisdiction. judiciary enjoys fiscal autonomy. if he is free to return to his old ways. SC has exclusive power to discipline judges/justices of inferior courts. and k. i. c. b) If there exist a mere possibility of collateral legal consequences if the court does not act.
in that it seeks to limit the power of judges to create new laws or policy. Jurists who practice judicial restraint show a solemn respect for the separation of governmental problems. Each division of the Court is considered not a body inferior to the Court en banc. Supreme Court a. G. orders. This is a liberalization of the old rule which required a qualified majority of a definite number. Decisions or resolutions of a division of the Court. and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon. Thus. ordinances and other regulations Division Cases136 Other cases or matters may be heard in division. instructions. when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the SC itself.R. 136 Decisions of a Division of the SC are not appealable to the Court en banc. the votes of at least five are needed and are enough. unless the law is clearly unconstitutional. either rendered en banc or in division. Conservative judges often employ judicial restraint when deciding cases. may be overturned or reversed only by the Court sitting en banc (Firestone Ceramics v. En Banc and Division Cases En Banc Cases135 1. 2000) 29 . cases are decided by the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. international or executive agreement. No. those who did not take part in the deliberation do not have the right to vote. or law 2. For lower courts. 127245. Judicial Restraint A legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. The only constraint is that any doctrine or principle of law laid down by the Court. proclamations. which refers to an obligation of the court to honor previous decisions. Moreover. 4.3. even if it is a question of constitutionality. 5. the judicially restrained judge will decide a cases in such a way as to uphold the law established by Congress. but in no case without the concurrence of at least three (3) such members. since a quorum of the SC is eight. Appointed by President from among a list of at least 3 nominees prepared by Judicial and Bar Council for every vacancy. and sits veritably as the Court en banc itself. Judicial restraint is the opposite of judicial activism. CA. June 28. All cases which under the Rules of Court may be required to be heard en banc 3. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis. 135 When the Supreme Court sits en banc. All cases involving the constitutionality of a treaty. President shall issue the appointment 90 days from submission of the list. The SC sitting en banc is not an appellate court vis-à-vis its divisions. and it exercises no appellate jurisdiction over the latter. All cases involving the constitutionality. Appointments to the Judiciary i. ii. application or operation of presidential decrees. In most cases.
b. pleading. G.R. and procedure in all courts. VIII. Procedural Rule Making137 Promulgate rules concerning the protection and enforcement of constitutional rights. VIII. increase.138 c. Cases heard by a division when the required majority in the division is not obtained 5. 221 SCRA 464) 140 Art. and legal assistance to the underprivileged.4. 132601) 138 Art. the Integrated Bar. Secretary of Justice. practice and procedure is no longer shared by the Court with Congress. and shall not diminish. Election contests for President or Vice-President. more so with the Executive. alter or supplement rules concerning pleading. Sec. practice. (Echegaray vs. practice and procedure. 6 30 . Such rule shall provide a simplified and inexpensive procedure for the speedy disposition of cases.140 137 The SC declared that the 1987 Constitution took away the power of Congress to repeal. in violation of the doctrine of separation of powers. 5 (5) 139 In the absence of any administrative action taken against the RTC Judge by the SC with regard to the Judge’s certificate of service. the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel. Administrative Supervision over Lower Courts139 The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc or in division 6. Vasquez. the admission to the practice of law. No. Administrative cases involving the discipline or dismissal of judges of lower courts 7. shall be uniform for all courts of the same grade. The power to promulgate rules of pleading. (Maceda v. or modify substantive rights. Sec. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
Each is expressly described as “independent. 160508. 192 SCRA 358 31 . e. Constitutional Commissions141 1. h. G. The Commissions enjoy fiscal autonomy. Each is conferred certain powers and functions which cannot be reduced by statute. f. may not be abolished by statute. Pobre. The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office. Yorac. increase or modify substantive rights [though subject to disapproval by the SC. The Chairmen and members are given fairly a long term of office of 7 years. Sept. In case of conflicting rulings. i. Each Commission may promulgate its own procedural rules. The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity. 15.F. They are constitutionally created. it is the Judiciary. which interprets the meaning of the law and ascertains which view shall prevail (CSC v. The Commissions may appoint their own officials and employees in accordance with Civil Service Law. b. No.” c. Constitutional safeguards to ensure independence of commissions a. and CoA are equally pre‐eminent in their respective spheres. The Chairmen and members cannot be removed except by impeachment.R. The Chairmen and members may not be reappointed or appointed in an acting capacity. 141 The CSC. j. d. 2004) 142 Brillantes v. provided they do not diminish.142 g. Neither one may claim dominance over the others. k. COMELEC.
The Commission has the power to grant civil service eligibility.) The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that 1) all election cases. it can only be abolished by the Legislature (Eugenio v. It shall strengthen the merit and rewards system. responsiveness. returns. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service). because the CESB was created by law. As such. 148 Art. and qualifications of all elective regional. it can only perform powers proper to an administrative agency. CSC) But the CSC cannot validly abolish the Career Executive Service Board (CESB). therefore.144 b. The CSC as the personnel agency of the government shall establish a career service. It has the power to hear and decide administrative cases. and 2) the motion for reconsideration shall be decided by the COMELEC en banc. It shall integrate all human resources development programs for all levels and ranks. and city officials. 1995) 145 Under the Administrative Code of 1987. integrity. 32 . and courtesy in the civil service. CSC. 1003 (2003 ed. shall be decided by the COMELEC in division. the CSC enjoys wide latitude of discretion and may not be compelled by mandamus to issue eligibility. It shall submit to the President and the Congress an annual report on its personnel programs.A. By exception.145 c. id. The CSC shall administer the civil service. including contested appointments. e. g. provincial. (Torregoza v. It shall adopt measures to promote morale. efficiency. progressiveness. the power it possesses are executive. f. It shall institutionalize a management climate conducive to public accountability. quasi-judicial and quasi legislative. it has been given judicial power as judge with exclusive original jurisdiction over “all contest relating to the election.1(1). however. and appellate jurisdiction over all contest involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction (Bernas Primer at 393 (2006 ed. including pre-proclamation controversies. the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal. quasi-judicial powers and quasi legislative or rule-making powers (Bernas Commentary. IX-C Like the CSC. IX-B 147 Sec. 3. It can perform executive powers.147 Commission on Elections:148 143 a. As such.) 144 In the exercise of its powers to implement R.2. Enforce and administer law and regulations The Commission is an administrative agency. Art. nothing more. h. p. Powers and Functions of each commission Civil Service Commission:143 a. the COMELEC is an administrative agency. 146 Sec. i.146 d.
155 Sec. 156 COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. 2(3) 152 Sec. (Baytan vs. the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. the COMELEC exercises quasi-judicial or administrative powers It jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial functions 33 . e. orderly. 2(2) These petitions are cognizable by the regular courts (MTCs) 151 Sec. Decide.153 f. plebiscite. Religious denominations/sects 2. 3. with concurrence of President. referendum or recall. honest. Comelec. receipt of financial contributions related to elections 154 Sec. G.R. prohibition and mandamus in The prosecution of election law violators involves the exercise of the COMELEC's administrative powers.149 b.g. Contempt powers156 i. 153945. political parties. initiative. 2(4) This power is not limited to the election period Applies to both criminal and administrative cases 153 Sec. It cannot exercise this in connection with its purely executive or ministerial functions. If it is a pre-proclamation controversy. Power to Promulgate Rules154 g. Thus.relative to conduct of elections.g. accredit citizen’s arms. 2(5) Groups that cannot be registered: 1. except those involving right to vote. id. 4. Register. organizations or coalitions which must present their platform or program of government. Deputize.151 d. all questions affecting elections. Issue writs of certiorari. 2003) 149 e. Decide administrative questions. appointment of election officials and inspectors and registration of voters. including the determination of number and location of polling places. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. COMELEC can enjoin construction of public works within 45 days of an electioin 150 Sec. Those supported by any foreign government. law enforcement agencies and instrumentalities for exclusive purpose of insuring free. February 4. No. Those that refuse to uphold and adhere to the Constitution 4. Those that achieve their goals through violence or unlawful means 3. Supervision or regulation of franchises155 h. after sufficient publication. id.152 e. peaceful and credible elections.150 c.
It can even conduct preliminary investigation on election cases falling within its jurisdiction. Conduct post-audit with respect to the following: 1.157 k. and offices granted fiscal autonomy 2. Autonomous state colleges and universities 3. comprehensive reports on conduct of each election. where appropriate .the exercise of its appellate jurisdiction. n. 34 . (8) and (9). investigate and. j. offenses. commissions. prosecute cases of violations of elections laws.159 m. Constitutional bodies. Recommend to Congress effective measures to minimize election spending. referendum or recall. Submit to President and Congress. 158 Secs. limitation of places and prevent and penalize all forms of election frauds. including acts or omissions constituting election frauds. 2(7). directly or indirectly. initiative. Examine. offenses and malpractices. audit and settle all accounts pertaining to revenue and receipts of. Non-governmental entities receiving subsidy or equity. which are required by law the granting institution to submit such audit 157 COMELEC has exclusive jurisdiction to investigate and prosecute cases for violation of election laws. The actions of the prosecutors are the actions of the COMELEC.160 Commission on Audit a. 9. Recommend to the President the removal of any officer or employee it has deputized. id 160 Sec. 159 Sec.158 and j. plebiscite. malpractice and nuisance candidates. agencies or instrumentalities and GOCCs with original charters. or disobedience to its directive. for violation or disregard or. id. power to fix the election period. any of its subdivisions. File upon verified complaint or motu proprio petitions in court for inclusion or exclusion of voters. or the imposition of any other disciplinary action. b. order or decision. from or through the government. GOCCs and their subsidiaries incorporated under the Corporation Code 4. id. In special cases. It can deputize prosecutors for this purpose. 5. and expenditures or uses of funds and property owned or held in trust or pertaining to government.
or in any franchise or privilege granted by the government. Engage in the active management or control of any business which in any way may be affected by the functions of his office. Deciding administrative cases involving expenditures of public funds 162 Teaching is not included in the prohibition. establish techniques and methods required therefor. Be financially interested directly or indirectly. e.163 161 The functions of COA can be classified as: 1. COA may adopt measures. any of its subdivisions. Exclusive authority to define scope of its audit and examination. and f. the law does not distinguish. b. in any contract with. d. Examining and auditing all forms of government revenues and expenditures 2. including those for prevention and disallowance. Promulgate accounting and auditing rules and regulations. Prohibited offices and interests Members of the Constitutional Commissions cannot: a. as necessary to correct deficiencies d.162 c.161 3. Keep general accounts of government and preserve vouchers and supporting papers pertaining thereto.c. Promulgating accounting and auditing rules 4. agencies or instrumentalities. 35 . Engage in the practice of any profession. 163 Government subsidiaries can be created either by special law or under the Corporation Code. including temporary or special pre-audit. Settling government accounts 3. If COA finds the internal control of audited agencies inadequate. Hold any other office or employment. including government-owned or controlled corporations or their subsidiaries. Sequestered Private Corporations are not included in the prohibition.
Exclusive jurisdiction to investigate and prosecute cases for violations of election laws. unnecessary. (Olanda v. then to the CSC. supra 36 . the COMELEC may validly delegate this power to the Provincial Fiscal [Prosecutor]. prohibition and mandamus 3. CSC. Elective barangay officials declared by trial courts of limited jurisdiction c.165 Commission on Elections 1. Bugayong. Provincial c. The fact that the complaint was filed by the CSC itself does not mean that it cannot be an impartial judge. Original jurisdiction to hear and decide a complaint for cheating. (People v. Original jurisdiction over contests relating to elections.166 Commission on Audit:167 Jurisdiction shall extend over but not limited to the following cases and matters: 1. The RTC does not have jurisdiction over such personal actions. Jurisdiction on Personnel actions164 2. in requiring the establishment of a grievance procedure. returns and qualifications of all elective a. Elective municipal officials declared by trial courts of general jurisdiction b. Judge Basilla. COMELEC may issue extraordinary writs of certiorari. irregular. Regional b. 179 SCRA 87) 167 See Powers and Functions. 2003) 165 The Commission has original jurisdiction and decide a complaint for cheating in the Civil Service examinations committed by government employees.4. that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head. 2. (Cruz v. Disallowance of expenditures or uses of government funds and properties found to be illegal. extravagant or unconscionable. Money claims due from or owing to any government agency. Appellate jurisdiction over contests involving a. 164 It is the intent of the Civil Service Law. Jurisdiction of each constitutional commission Civil Service Commission 1. 120 SCRA 760 However. People. excessive. 2001) 166 De Jesus v. City officials 2.
3. of any settled claim or liability to any government agency. Authorization and enforcement of the settlement of accounts subsisting between agencies of the government. records and accounts of public utilities as provided by law. 9. Checking and audit of all property or supplies of the government agency. 11. complicated or difficult questions of law relating to government accounting and auditing. (c) those for which government has put up a counterpart fund. 4. Constructive distraint of property of any accountable officer with shortage in his accounts upon a finding of a prima facie case of malversation of public funds or property against him. Resolution of novel. 13. Charges made in the audit of revenues and receipts resulting from under-appraisal. and prescription of standards governing the performance by the Commission of its powers and functions. Audit of the books. 5. Visitorial power over non-governmental organizations (1) subsidized by the government. controversial. 15. Compromise or release in whole or in part. In coordination with appropriate legal bodies. Retention of money due to a person for satisfaction of his indebtedness to the government. (b) those funded by donations through the government. 16. or (d) those entrusted with government funds or properties. 10. 12. 6. (a) those required to pay levies or government share. Opening and revision of settled accounts. 8. Seizure by the Auditor of the office of the local treasurer found to have a shortage in cash. under-assessment or undercollection. promulgation of rules and regulations. 7. collection of indebtedness found to be due a government 37 . Determination of policies. Power to require the submission of papers relative to government obligations. 14.
) 171 Reyes v.agency in the settlement and adjustment of its accounts by the Commission 5. the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court. or with grave abuse of discretion amounting to lack or excess of jurisdiction. the courts can review acts of all administrative agencies. Similarly. not only in the performance of their adjudicative function. administrative pursuant to R. Judgments or final orders of the Commission may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. From the decision of the CA.170 Commission on Audit Commission on Elections Only decision en banc may be brought to the Supreme Court by certiorari since Article IX-C says that motions for reconsideration of decisions shall be decided by the Commission en banc. but even in the performance of their other functions168 through the special civil action of certiorari. 1995. Only when COA acts without or excess in jurisdiction. Hence.A. questions arising from the award of a contract for the construction of voting booths can be brought before a trial court. provides that final resolutions of the CSC shallbe appealable by certiorari to the CA within 15 days from receipt of a copy thereof. Rendered in the exercise of Administrative Functions Given the new definition of judicial power as including the power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Rendered in the exercise of Quasi-Judicial Functions b. the SC may entertain a petition for certiorari under Rule 65. actions taken by the COMELEC as prosecutor come under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case. Review of final orders. 7902 170 The certiorari jurisdiction of the Supreme Court is limited to decision rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory or quasijudicial powers. Civil Service Commission Administrative Circular 1-95169 which took effect on June 1. 1995 38 . resolutions and decisions a.171 168 169 quasi-legislative. (It does not refer to purely executive powers such as those which relate to the COMELEC’s appointing power. RTC.
except money and choses 172 Power of Eminent Domain Power of Taxation Set of prescriptions setting forth the fundamental civil and political rights of the individual. 2. require the exercise of the power. express grant by law. Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose. 39 . This is also known as the power of expropriation. Necessity – when exercised by: Congress – political question. Power of Imminent Domain 1. and 3. Concept and Application Police Power The power of promoting public welfare by restraining and regulating the use of liberty and property. 173 or limitations 174 When exercised by a delegate: 1. b. Delegate – justiciable question 2. Private property – all private property capable of ownership may be expropriated. 2. Lawful Subject – the interests of the public in general. and not unduly oppressive on individuals. and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. Taxation is the method by which these contributions are exacted. Fundamental Powers of the State a. Requisites173 for Valid Exercise Police Power174 1.Bill of Rights172 1. as distinguished from those of a particular class. for the support of government and for all public needs. Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty. within territorial limits – for LGUs except when exercised to protect water supply. must not be contrary to law. it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state.
utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic v. 26 SCRA 620 Requisites: i. minus the consequential benefits.176 4. 58 SCRA 336). whichever came first.A. entry must be more than a momentary period. c. substantial.has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit. supervision and control of his property. Just compensation . iii. Court of Appeals. C.when: a. to which must be added the consequential damages. entry must be under a warrant or color of authority. the value of the property must be determined either as of the date of the taking of the property or the filing of the complaint. G.. b. but in no case will the consequential benefits exceed the consequential damages Fair market value – the price that maybe agreed upon by parties who are willing but are not compelled to enter into a contract of sale. 2002) 178 Formula: -. (Republic vs.in action. It is well within the rights of the condemnor as owner to alter and decide its use so long as it still for public use.177 5. No. 175 176 Republic v.fair market value of the property. 146587. owner is deprived of jurisdiction. and d. Due process of law – the defendant must be given an opportunity to be heard.R. Public use . ii. July 2. owner is deprived of ordinary use of his property. there is practical destruction or a material impairment of value of property. that only a few would actually benefit from the expropriation of the property foes not necessarily diminish the essence and character of public use. Castelvi. owner actually deprived or dispossessed of his property. PLDT.178 6. Consequential damages – consist of injuries directly caused on the residue of the private property taken by reason of expropriation 40 . iv. property must be devoted to public use or otherwise informally appropriated or injuriously affected. Taking . v. 252 SCRA 412 Once expropriated change of public use is of no moment. expropriator must enter a private property. full and fair.compensation is qualified by the word just to convey that equivalent must be real. may include services175 3. 177 Manosca v.
179 Any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. e. Non-impairment of contracts. Uniformity. j. e. Non-delegability of power. Exemption of government from taxation. b. tonnage and wharfage dues. Any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption. h. Constitutional limitations:179 a. g. charitable and educational purposes. Non-imprisonment for non-payment of poll tax. revenue. Delegation of legislative authority to the President to fix tariff rates. d. k. Non-infringement of religious freedom. Origin of appropriation. and tariff bills. Territoriality or situs of taxation. International comity. import and export quotas. f. b. c. and progressivity of d. Majority vote of all members of Congress required in case of legislative grant of tax exemptions. Non-impairment of the Supreme Court’s jurisdiction in tax cases. Equal protection of law. Due process of law. c.Power of Taxation Inherent limitations: a. Tax exemption of properties actually. Any doubt regarding the taxability of any person under a valid law must be resolved in favor of that person and against the taxing power. i. equitability. 41 . Public purpose. directly and exclusively used for religious. taxation.
public purpose Full and fair Equivalent of the property taken Taxation Property rights only Government Rights regulated Liberty &property rights Exercised by Government Property taken and purpose Compensation Usually noxious. endowments. Presuppose equivalent compensation 5. or c. Exercised/primarily/by/the/Legislature Differences Basis Police Power Eminent Domain Property rights only Government. State cannot be effective without them 3. exercised even without need of express constitutional grant 2. noxious purpose Intangible. contributions to educational institutions. donations. Similarities and Differences Similarities 1. Private Entities Wholesome. altruistic feeling of contributing to the public good Wholesome: public Purpose Protection given or public improvements 42 . Inherent in the State.l. Tax exemption of revenues and assets of. Methods by which State interferes with private property 4. Necessary and indispensable. Including grants.
81561. Local government units exercise the power under the general welfare clause181 and under Secs. Marti. held these papers inadmissible in evidence. Feb. Jan. the liberties guaranteed Constitution cannot be invoked against the State. 391. the liberties guaranteed by the Constitution cannot be invoked/by/private individuals.A.187 where the husband invoked his right to privacy of communication and correspondence against a private individual. 458 and 468. No. his wife. 2008 187 in Zulueta v.186 However. R. 168081. 107383. see Reference 182 See Reference 183 Sec. The Bill of Rights guarantee the relationship between the individual and the State. X 184 Sec. 16. G.R. G. upholding the husband’s right to privacy. to administrative bodies and to lawmaking bodies of local government units. local government units. the President when granted delegated tariff powers184 Power of Eminent Domain Power of Taxation 2. Oct. 447. 1991 186 Yrasegui vs. the Bill of Rights is not meant to be invoked against acts of private individuals. 180 181 inherently vested in the Legislature Sec.R. 28 (2).182 Congress may validly delegate this power to the President.185 by the governs relation private In the absence of governmental interference. PAL. and even private enterprises performing public services. G. Put differently. 7160. CA. Delegation Police power180 Congress may validly delegate this power to the President. Art. R. administrative bodies. Art. 20 1996 43 . who had forcibly taken from his cabinet and presented as evidence against him documents and private correspondence. VI 185 People v.A. No. 5. No. 7160. Congress may validly delegate this power to local government bodies183 and to a limited extent. 18. 17. Its concern not the between private individuals. the Supreme Court. What it does is to declare some forbidden zones the sphere inaccessible to any power holder. Private Acts and the Bill of Rights In the absence of governmental interference.d.R.
158693. b. Relativity of Due Process The guaranties of due process are universal in their application to all persons within the territorial jurisdiction. without regard to any differences of race.R. Cayat. G. Statutory Due Process While found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing.R. Private corporations are within the scope of the guaranties insofar as their properties are concerned. it was understood as a guarantee of procedural fairness. May 5. 189 People v. It must be a guarantee against the exercise of arbitrary power even when the power is exercised according to proper forms and procedure. III. Substantive Due Process The due process clause must be interpreted both as a procedural and a substantive guarantee. Thus. NLRC. November 17.190 188 Art. Its essence is a “law which hears before it condemns”. liberty or property without due process of law. Woodward. 4 Wheaton 518). 1 That which hears before it condemns. Due Process188 No person shall be deprived of life. The word “person” includes aliens.189 a. Sec. 1939 190 Agabon v. 2004 44 . L‐45987. it serves as a restriction on government’s law and rule-making power. which proceeds upon inquiry and renders judgment only after trial (Darmouth College v. c. No. Constitutional and Statutory Due Process Constitutional Due Process Protects the individual from the government and assures him of his rights in criminal. color or nationality. Procedural and Substantive Due Process Procedural Due Process Due process was understood to relate chiefly to the mode of procedure which government agencies must follow.3. G. No. a Thus. civil or administrative Proceedings. it serves as restriction on actions of judicial and quasi-judicial agencies of government.
Because these freedoms are “delicate and vulnerable.e. Vera. i. but human rights are imprescriptible. Judicial Standards of Review191 Deferential review Laws are upheld if they rationally further a legitimate governmental interest.d.R. No. G. as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. of the influential and powerful. (2) an appropriate case. 66 Phil 56 (1937) 192 Separate opinion of Justice Mendoza in Estrada v. Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny. Feb. without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved Intermediate review The substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Sandiganbayan. This means (1) a party with a personal and substantial interest. Property is not a basic right. Hierarchy of Rights The primacy of human rights over property rights is recognized. Property has an intimate relation with life and liberty.” Property and property rights can be lost through prescription. and (4) a constitutional question that is the very lis mota of the case. 2002 45 .” they “need breathing space to survive. and of oligarchs. Property is as important as life and liberty – and to protect their (poor) property is really to protect their life and their liberty e. If human rights are extinguished by the passage of time. Strict scrutiny The focus is on the presence of compelling. 26. 148965. rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest. then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials.” permitting government regulation only “with narrow specificity.192 191 Judicial review can only be exercised in an actual case and controversy. an unavoidable question (People v. of majorities. Property is an important instrument for the preservation and enhancement of personal dignity. (3) a constitutional question raised at the earliest possible time.
both as to rights conferred and responsibilities imposed”.f. especially the parties targeted by it. 24. Substantial distinction 2. It leaves law enforcers an unbridled discretion in carrying out its provisions. Not limited to existing conditions only 4. In such instance. 3. Jan. It does not deny to the state the power to recognize and act upon factual differences between individuals and classes.194 a. Under it.195 b.R. the statute is repugnant to the Constitution because: 1. The equality it guarantees is “legal quality or the equality of all persons before the law. Equal Protection Nor shall any person be denied the equal protection of the laws. It violates due process for failure to accord persons. “is not disembodied equality”. No. 128777. III. The equal protection clause is a specific constitutional guarantee of the Equality of the Person. The equality guarantees the “legal equality or as it is usually put.” This clause does not only prohibit the State from passing discriminatory laws but it also commands the State to pass laws which positively promote equality or reduce existing inequalities. the equality of all persons before the law. Germane to the purpose of the law-the distinction which must make for real differences should have reasonable relation to the purpose of the law. 2001 Art. Must apply equally to all members of the same class 193 194 People v. Sec. 46 . de la Piedra. “All person or things similarly situated should be treated alike.1 195 The equality guaranteed however. each individual is dealt with as an equal person in the law. Requisites for Valid Classification 1. which does not treat the person differently because of who he is or what he is or what he possess. Void-for-Vagueness Doctrine It holds that a law is vague when it lacks comprehensive standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application.193 4. Concept The Equal Protection Clause is a specific constitutional guarantee of the Equality of the Person. It recognizes that inherent in the right to legislate is the right to classify. fair notice of what conduct to avoid 2. G.
th 47 . and that the burden is upon the government to prove that the classification is necessary to achieve a compelling State interest and that it is the less restrictive means to protect such interest.198 3) Intermediate Scrutiny Test Where the government must show that the challenged classification serves an important State interest and that the classification is substantially related to that interest. 9 Ed. th Black’s Law Dictionary. 2002 199 such as gender or legitimacy 200 Black’s Law Dictionary. 9 Ed. Rational basis is the most deferential of the standards of review that courts use in dueprocess and equal-protection analysis. Feb. Under the standard.c.200 196 197 Black’s Law Dictionary. the state must establish that it has a compelling interest that justifies and necessitates the law in question. 148965.Sandiganbayan.196 2) Strict Scrutiny Test A legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional.26. Under strict scrutiny. rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest.197 The focus is on the presence of compelling. No. 9th Ed. 198 Separate opinion of Justice Mendoza in Estrada v.199 the classification must be substantially related to the achievement of an important governmental objective. Standards of judicial review 1) Rational Basis Test Where the classification needs only to be related to a legitimate state interest. G.R. if a statute contains a quasi-suspect classification.
Determination of probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce203 201 “The right of the people to be secure in their persons. The constitutional guarantee is not a prohibition of all searches and seizures but only of “unreasonable” searches and seizures.5. But in either case. it should be emphasized that what is required is not proof beyond reasonable doubt but merely probable cause. 2). the judge is not required to personally examined the complainant and his witnesses and on the basis thereof issue a warrant of arrest. V People. III. He may also rely on the prosecutor’s report or if on the basis thereof. houses. papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.” (Art. Available to all persons. It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. Searches and Seizures201 a. the judge is not required to personally examine the complainant and his witnesses. 202 Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof Unlike proof of probable cause for warrant of arrest. Probable Cause202 2. 233 SCRA 439) In the preliminary examination for the issuance of a warrant of arrest. the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge 48 . Concept Not just a circumscription of the power of the state over a person’s home and possessions. It is a guarantee of the right of the people to be secure in their “persons…against unreasonable searches and seizures”. In satisfying himself of the existence of the probable cause for the issuance of the warrant of arrest. he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at conclusion as to the existence of probable cause. III. More important. including aliens whether accused of a crime or not. 2 What the constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause. Sec. he finds no probable cause. although they may be required to open their books of accounts for examination by the state in the exercise of police and taxing powers. Artificial person are also entitled to the guarantee. Sec. (Soliven V Makasiar. Warrant Requirement (1) Requisites 1. Evidence required to establish guilt is not necessary. it protects the privacy and sanctity of the person himself. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. 167 S 393) Where the court upheld that in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause for the issuance of the warrant of arrest. probable cause for a search warrant need not point to a specific offender. (Cruz Jr. b. 203 Art.
Must refer to one Specific offense 4. interrogate him and pat him for weapon(s). Search of Moving Vehicles/Automobiles at borders or constructive borders210. either actual or constructive of the existence of such right 3. Thus. 2000 Revised Rules on Criminal Procedure: “A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant”. 6. a limit to John Doe warrants.That the right exists 2. Search of Vessels and Aircrafts209 5. Where the search207 is an incident to a lawful arrest208. (Roldan v. 65 S 336) 210 Rule: Vehicles/automobiles may be searched only at borders or constructive borders.That the said person had an actual intention to relinquish the right 206 The vernacular designation of the right of a police officer to stop a citizen on the street. a warrant for the arrest of fifty John Does is of the nature of a general warrant which does not satisfy the requirement of particularity of description. When the right is voluntarily waived205 2. 4.3. which was not indicated in the warrant was held unlawful. Veloso. 211 Under this exception. the objects “falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and maybe introduced in evidence”. Ohio 392 US 1) 207 and seizure 208 Rule: Apply strictly Rule 126. because they are usually equipped with powerful motors that enable them to elude pursuit and secondly. Search made within the interior of territory is justified only if there is probable cause. 42 P 886 that it is invariably recognized that the warrant for the apprehension of an unnamed party is void “except those causes where it contains a descriptio personae such as will enable the officer to identify the accused.” The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served.That the persons involved had knowledge. When there is valid reason to “stop-and-frisk”206 3. 209 Where a fishing vessel found to be violating fishery laws maybe seized without a warrant on two grounds: firstly. Where prohibited articles are in plain view211 personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 204 The court concluded in the case of People vs. Arca. Rule: The discovery must be “Inadvertent” 49 . Warrantless Searches Eight Instances of Valid Warrantless Searches and Seizures: 1. Casar 159 S 599) The “scatter-shot warrant” charging more than one offense was declared null and void and the seizure of the money. Sec. (Terry v. however. Particularity of Description204 c. because the seizure would be an incident to a lawful arrest. 13. There is. 205 Requisites of Valid Waiver 1. (Pangandaman v.
Law enforcement officers may not actually witness the execution of acts constituting the offense. The instant case falls under one of the exceptions to the prohibition against warrantless search. Under such urgency and exigency of the moment. Warrantless Arrests “A peace officer or a private person may. 1994) 213 The most common application of this in flagrante delicto rule is the buy-bust operation conducted to enforce the Dangerous Drugs Act. without a warrant. A buy-bust operation is a form of entrapment. de Gracia. in light of advertence thereto by the parties. 215 Thus. The courts in the surrounding areas were obviously closed and for that matter. The raiding team had no opportunity to apply for and secure a search warrant from the courts. the arresting officers themselves must have personal knowledge of facts showing that the person to be arrested. the person to be arrested has committed. the suspect. is actually committing or is attempting to commit an offense213 2. In effecting this type of arrest. the discovery would not be inadvertent. (People v. They should know for a fact that a crime was committed. When. a search warrant could lawfully be dispensed with. arrest a person: 1. but they must have direct knowledge or view of the crime right after its commission. Since the offense happens right before the eyes of the officer. The method is for an officer to pose as a buyer. to delve into the legality of the warrantless search conducted by the raiding team. Visual search at checkpoints d. Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President 10. sanitary and building regulations 8. July 6. A crime must in fact or actually have been committed first.7. Also. 212 Where the SC deemed it a bounded duty. Inspection of buildings and other premises for the enforcement of fire. the building and houses therein were deserted. The fact of the commission of the offense must be undisputed. in his presence. there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender (People V Burgos) 214 Otherwise known as the rule on hot pursuit arrests. 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. 50 . performed the criminal act. Search and Seizure under exigent and emergency circumstances212 9. if an officer encounters prohibited objects only after poking around. it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. There was general chaos and disorder at that time because of the simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested committed it214 3. He however neither instigates nor induces the accused to commit a crime because in these cases the seller has already decided to commit a crime.
In the criminal context. 3. To be sure. reasonableness requires showing probable cause to be personally determined by a judge. Art. f.218 215 216 Sec. III of the Constitution 218 SJS v. There is an administrative arrest as an incident to deportation proceedings. (Morano v. Rule 113. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. DDB and PDEA. Given that the drug testing policy for employees and students for that matter under R.e. 2. and equitable requirements. not as a measure indispensable to carry out a valid decision by a competent official. Alcohol and Blood Tests A law requiring mandatory drug testing for students of secondary and tertiary schools is constitutional. cannot be for purpose of investigation. Vivo. It is within the prerogative of educational institutions to require. reasonable. 20 S 562) 217 Sec. it is subject to fair. compliance with reasonable school rules and regulations and policies. It contemplates an order of arrest in the exercise of judicial power as a step preliminary to prosecution for a given offense of administrative action. as a condition for admission. 2000 Revised Rules of Criminal Procedure Where the SC ruled that the constitutional provision against unreasonable searches and seizures does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The requirement for probable cause does not extend to deportation proceedings.” the probable cause standard is not required or even practicable. A law requiring mandatory drug testing for officers/and employees of public and private offices is constitutional. “reasonableness” is the/touchstone of the validity of a government search or/intrusion. As the warrantless clause217 is couched and as has been held. 9165 is in the nature of administrative search needing what was referred to in Veronia case as “swift and informal procedures. 2008 51 . G. 5.A. Drug. the right to enroll is not absolute. Administrative Arrests216 Warrant of Arrest may be issued by administrative authorities but only for purpose of carrying out a final finding of a violation of a law. 157870. No. such as legal order or deportation issued by the Commission on Immigration in pursuance of a valid legislation.R. Nov.
liberty and property against the activities of invaders. it would have to be based upon a government official’s assessment that public safety and order demand such intrusion. Private and Public Communications Private Communications An exchange of information between two individuals in a confidential relationship. 52 . 3.219 b. home and correspondence of the aggrieved party. when allowed 1. if you post a comment on a message board that anyone can access. and rebels. 221 censorship The constitution. Writ of Habeas Data It is a remedy available to any person whose right to privacy in life. III When intrusion is made without a judicial order. Its most blatant form is a system of licensing administered by an executive officer. or of a private individual or entity engaged in the gathering. collecting or storing of data or information regarding the person. where a lot of people could gain access to it.6. Public Communications It usually means communication that isn't private to a certain group. Privacy of Communications and Correspondence a.the security of human lives. that is public communication. also belongs to this type of prior restraint. Movie Censorship. The guarantee of 219 So. Upon lawful order of the court 2. Intrusion. Art. When public safety or order requires otherwise as prescribed by law220 c. he believes that public safety or order so requires. 220 Sec. 7. Therefore. insurrectionists. is exempt from the previous restraints by the executive and legislative branches. Concept and Scope (1) Prior Restraint221 Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. constitutional guaranties like liberty of the press are superior over legislative acts or law. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. Public order and safety . that is public communication. Freedom of Expression a. although not placed on the same level as press censorship. If you say something in a public setting. An executive officer can order intrusion when in his judgment and even without prior court approval. family. as the paramount law.
freedom of expression also means a limitation on the power of the state to impose subsequent punishment. the individual would hesitate to speak for fear that he might be held to account for his speech. Criticism of Official Conduct224 b. 222 A public and malicious imputation of a crime. 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. Jurado) A Senator was punished for contempt for having attacked a decision of the Supreme Court which he called incompetent and narrow minded. and announcing that he would file a bill for its reorganization. (In re Sotto) 53 . or of a vice or defect. Obscenity223 3. or to blacken the memory or one who is dead. (2) Subsequent Punishment Without this assurance. the freedom is not absolute. Libel222 2. discredit. or any act. status. 223 The determination of what is obscene is a judicial function 224 Where the court said that a publication that tends to impede. Accordingly. Content-Based and Content-Neutral Regulations Content‐based restraint They are given the strictest scrutiny in light of their inherent and invasive impact. real or imaginary. and they are not subject to the strictest form of judicial scrutiny rather only an intermediate approach‐ somewhere between the rationality that is required of a law and the compelling interest standard applied to content‐ based restrictions. omission. the state may validly impose penal and/or administrative sanctions. or contempt of a natural or juridical persons. Content‐neutral regulation Substantial governmental interest is required for their validity. conditions. However. such as in the following: 1. or circumstance tending to cause the dishonor. or that he might be provoking the vengeance of the officials he may have criticized. (In re: Atty. and may be properly regulated in the interest of the public.
1919 Four instances where clear and present danger test applies: a. speeches out of contempt d.” That if the words uttered create a dangerous tendency of an evil which the state has the right to prevent. Cabansag V. It is a question of proximity and degree. speeches that provoke a hostile audience reaction c. US. 226 When particular conduct is regulated in the interests of public order. speeches that advocate dangerous ideas b.225 If the words uttered create a dangerous tendency of an evil which the State has the right to prevent. 226 In the early stages of Philippine jurisprudence. the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. conditional. partial abridgment of speech.227 Dangerous Tendency Test Balancing of Interests test 225 Schenck v. the constitutionality of a statute curtailing speech is determined in the same manner that the constitutionality of any statute is determined. Fernandez. is that there be a rational connection between the speech and the evil apprehended. “Clear” mean causal connection between danger of substantive evil arising from utterance questioned. “Present” refers to time-imminent and immediate danger. a member of the Philippine bar who imposed with a penalty of indefinite suspension for imposing charges of impartially and corruption to the Supreme Court. for speech to be punishable. This standard has been labeled the “Dangerous Tendency Rule”. the accepted rule was that speech may be curtailed or punished when it “creates a dangerous tendency which the state has the right to prevent”. namely by answering the question whether a statute is “reasonable. Thus. Another restrictions for permissible limitation on freedom of speech and of the 54 . 249 US 47. danger must not only be probable but very likely inevitable. In other words. release of information that endangers free trial The substantive evil must be extremely serious and the degree of immense extremely high before utterances can be punished. The court held that the “clear and present danger rule” is not the only test which has been recognized and applied by the courts. then such words are punishable.(1) Tests (2) Applications Clear and Present Danger Test Whether the words are used in such circumstance and of such a 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. All it requires. and the regulations result in an indirect. 102 Phil 152 227 This is a resolution for reconsideration of Gonzales. under this rule.
unconstitutional. If the incidental restriction on alleged freedom is no greater than is essential to that interest. as applied to him. 170 SCRA 1) 55 . Sandiganbayan. Direct Incitement test c. It is within the constitutional power of the Government b. Permits a party to challenge a statute even though. It furthers an important or substantial governmental interest c. which requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation (Zaldivar vs. and therefore.O’Brien Test A governmental regulation is sufficiently justified if: a. in which the plaintiff alleges that the statute is always. but it might be if applied to others not before the Court whose activities are constitutionally protected. It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case. it is not unconstitutional. Facial Challenges and the Overbreadth Doctrine Facial Challenge A manner of challenging a statute in court. and under all circumstances. Overbreadth Doctrine press is of the “balancing of interests test”. Grave‐but‐Improbable Danger test This test was meant to supplant the clear and present danger test. The governmental interest is unrelated to the suppression of free expression d. void.
State Regulation of Different Types of Mass Media The ownership and management of mass media shall be limited to citizens of the Philippines. 232 Advertisement of goods or of services is an example To enjoy protection: 1. (Central Hudson Gas and Electric Corp. or to corporations. XVI 230 such as advertising and marketing 231 th Black’s Law Dictionary. and 3. wholly-owned and managed by such citizens. The advertising industry is impressed with public interest.229 f. and 2. and all the executive and managing officers of such entities must be citizens of the Philippines. 11. Public Service Commission of NY. v. Tests228 e. No combinations in restraint of trade or unfair competition therein shall be allowed.232 228 229 supra Sec. It should not propose an illegal transaction. Art. 447 US 557) 56 . The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires.231 Communication which no more than proposes a commercial transaction. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof. Government has a substantial interest to protect. May be regulated if: 1. Commercial Speech Communication230 that involves only the commercial interests of the speaker and the audience. cooperatives or associations. 9 Ed. and shall be regulated by law for the protection of consumers and the promotion of the general welfare. It must not be false or misleading. It is not more extensive than is necessary to protect that interest.d. The regulation directly advances that interest. 2. Only Filipino citizens or corporations or associations at least seventy per centum (70%) of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.
or prefer one religion over another nor force nor influence a person to go to or remain away from Church against his will or force him to profess a belief or disbelief in any religion. Maynard in 1971 Ashcroft v. 234 (2002)) 235 The term was coined by University of Chicago professor of law Harry Kalven. or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views.S.233 h. citing Forsyth County v. Private v. 236 The term Heckler’s Veto was coined by University of Chicago professor of law Harry Kalven. Government Speech Government Speech Where the/government may advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of private citizen. nor pass laws which aid one religion. 6. 1942) 237 reacting party 238 given by the acting party 57 . (Gorospe. 315 U.236 The common example is that of demonstrators237causing a speech238 to be terminated in order to preserve the peace.234 233 234 doctrine was implied in Wooley v.g. The intermediate views are chiefly two: (1) the non-establishment clause prohibits only direct support of institutional religion but not support indirectly accruing to churches and church agencies through support given to members. It may be in the guise of a permit requirement in the holding of rallies. Non-Establishment Clause Prohibits the establishment of any religion. Nationalist Movement. 2006. Heckler’s Veto235 Occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. (2) both direct and indirect aid to religion are prohibited but only if the support involves preference of one religion over another or preference of religion over irreligion. Freedom of Religion a. on the separation of Church and State. This reinforces Sec. Art.S. 1) Concept and basis The State cannot set up a church. aid all religion. II. 535 U. Private Speech The right of a person to freely speak one’s mind is a highly valued freedom in a republican and democratic society. parades. 8. Free Speech Coalition. 568.
Cases/Doctrines (not in violation of non-establishment clause): The expropriation of the birthplace of Felix Manalo. or of any priest. minister or ecclesiastic. founder of Iglesia ni Kristo. A religious sect or denomination cannot be registered as a political party. VI. Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. Estenzo) Issuance of religious commemorative stamps as giving merely incidental benefits to religion is upheld. cannot be branded as illegal. religious instruction taught within regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong without additional cost to the government242 239 Acts not permitted i. (Garces vs.244 ii. was upheld as for “public use” and any benefits that would reap the adherents of Iglesia would only be incidental to the public historical purpose. No sectoral representatives from the religious sector. such as the acquisition and display of his image. as it is a socio-religious affair.While there is no unanimity in non-establishment as a political principle. what non-establishment calls for is government neutrality in religious matters. (Manosca vs.239 2) Acts permitted and not permitted by the clause Acts permitted i. CA) There is nothing unconstitutional or illegal in holding a fiesta. and having a patron saint for the barrio. Art. directly and exclusively used for religious purposes. Such government neutrality may be summarized in four general propositions: 1. then any activity intended to facilitate the worship of the patron saint. Prohibition against the use of public money or property for the benefit of any religion. Provincial Board. 4 (2). 240 Sec. see Bishop of Nueva Segovia vs. 3 (3). (Aglipay vs. id. Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension.245 iii. Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension.246 In effect. Optional religious instruction in public elementary and high schools: at the option expressed in writing by the parents or guardians. Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension. 2. 51 Phil. 4. There are two: voluntarism and insulation of the political process from interfaith dissension. 352 241 Sec. therefore. Exemption from taxation of properties actually. Citizenship requirement of ownership of educational institutions. 3. XIV 242 Sec. Art. for the purpose of preserving it as a historical landmark. there is substantial agreement on the values non-establishment seeks to protect. 28 (3).240 ii. Ruiz) 58 . except those established by religious groups and mission boards241 iii.
b. Not promote or favor any set of religious beliefs or religion generally. Art. Art. and 3. VI 246 Cases/Doctrines (in violation of non-establishment clause): State sponsored Bible readings and prayers in public schools have been invalidated for violations of Sec. Embraces two (2) concepts: 1. cannot inquire into a person’s religious pretensions. it becomes subject to government regulation. 29 (2). Kurtzman) 243 Sec. in a penal institution. belief flows over into action.243 3) Test Lemon test It is a test to determine whether an act of the government violates the non-establishment clause. Men may believe what they cannot prove. Freedom to Believe – absolute248 2. Schempp) Salary payments and reimbursements for secular textbooks and other instructional materials under a system involving close government supervision were invalidated (Lemon v. Not get the government too closely involved247 with religion. or in a government-owned orphanage or leprosarium. IX-C Sec. 5 (2). Have a secular purpose. Freedom to act according to one’s beliefs – subject to state regulation 244 245 Sec. 2. Free Exercise Clause Guarantees the free exercise of religion. To pass the test. 59 . while it may look into the good faith of a person. Appropriation allowed where the minister or ecclesiastic is employed in the armed forces. (School District v. They may not be put to the proof of their religious doctrines or beliefs. VI 247 “entangled” 248 The absoluteness of the freedom to believe carries with it the corollary that the government. The moment however. Art. a government act or policy must: 1. 2 (5). 5.iv.
319 F. ii. The courts should look into the sincerity of the religious belief without inquiring into the truth of the belief. 862 (N. a law will be upheld only if the government’s interest is strong enough. Aug. it was held that.com In Howe v. Ohio 1970). the compelling-state-interesttest is mostly applied in all voting rights cases and equal protection cases. Escritor. Under this test. The state used the least intrusive means possible. However. The state has the burden to justify any possible sanction. 60 . 2003 251 uslegal. It is also applied when a disputed law requires strict scrutiny.251 Conscientious Objector Test 249 250 supra Estrada vs.250 It refers to a method of determining the constitutional validity of a law. Supp. The state has to establish that its purposes are legitimate and compelling iii.D. Test Clear and Present Danger Test249 Compelling State Interest Test It is the test used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. 491 SCRA 1. 4. the government’s interest is balanced against the individual’s constitutional right to be free of law. This involves three (3) steps: i.c. Brown.
He can impose limits only on the basis of “national security. (Manotoc Jr. CA) 255 Thus. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them.freedom to travel both within the country and outside 254 A person admitted to bail may be prevented by a court from leaving the country as this is a necessary consequence of the function of a bail bond which is to secure a person’s appearance when needed. public safety or public health” and “as may be provided by law”. Impairment of this liberty. process and other means necessary to carry it into effect may be employed by such court or officer. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. Liberty of Abode . The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security. moreover. v. all auxiliary writs. Right to Travel . must be subject to judicial review as even measures taken by the executive are subject to judicial review. In the interest of national security.” Impairment of this liberty. for instance. for instance. Any person on bail254 b.255 252 It may be impaired even without the court order. a person who is out of bail may be prevented from leaving the country. The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security. as may be provided by law. 61 .253 a. public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. When by law jurisdiction is conferred on a court or judicial officer. 253 Liberties guaranteed: 1. Right to travel It may be impaired even without the court order. but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. all auxiliary writs. moreover. public safety. 2. public health.9. must be subject to judicial review as even measures taken by the executive are subject to judicial review. public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. public safety or public health” and “as may be provided by law. Thus. process and other means necessary to carry it into effect may be employed by such court or officer. Limitations Liberty of abode Upon lawful order of the court and within the limits prescribed by law Right to travel 1. He can impose limits only on the basis of “national security. When by law jurisdiction is conferred on a Court or judicial officer.freedom to choose and change one’s place of abode 2. Liberty of Abode and Freedom of Movement252 “The liberty of Abode and of changing the same within the limits prescribed by law shall not be impaired. a person who is out of bail may be prevented from leaving the country.
National Security matters and intelligence information259 ii. It emphasized that a court has the power to prohibit a person admitted to bail from leaving the Philippines.A. Universal Declaration of Human Rights 257 Art. 262 The Ethical Standards Act (R. Limitations i. Thus. PCGG. 7*c+. 261 such as those relating to the apprehension.c. any citizen has “standing” to assert the right to information 259 This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military. including his own and to return to his country.1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public”.).A. closed door Cabinet meetings and Executive sessions of either house of Congress. detention and prosecution. 142 SCRA 149) 256 Art. 13(2). even if the accused is out of bail. No. Criminal matters261 iv. the prosecution and the detention of criminals which courts may not inquire into prior to such arrest. Other acknowledged limitations to information access include diplomatic correspondence. (Chavez v. Hence. diplomatic and other national security matters. 260 pursuant to the Intellectual Property Code (R. Trade or Industrial Secrets and banking transactions260 iii. The condition imposed upon petitioner to make himself available at all times whenever the court is required his presence is a valid restrictions on his right to travel. 12(4).approved on June 6. 8293. CA. (Manotoc v. enacted on Feb. as amended)]. which embraces a broad spectrum of subjects which the public may want to know. (Sec. Covenant on Civil and Political Rights 258 Information must be a matter of public concern. This is a necessary consequence of the nature and function of a bail bond. Right to Information258 a.A. Return to One’s County Everyone has the right to leave any country.256 No one shall be arbitrarily deprived of the right to enter his own country. The court ruled in the negative. information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.20. either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen The right to information is a “public right”.257 10. the trial court may validly refuse to grant the accused permission to travel abroad. No.262 Where the issue involves is whether a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. Other Confidential information. 1405. 6713.299 S 744) 62 .1997 & other related laws) and Banking Transactions (pursuant to the Secrecy of Bank Deposits Act (R. as well as the internal deliberations of the Supreme Court. ibid. Likewise.
that is. transactions.b. or if one is consummated. 264 Chavez vs. The right of access to official record is given as an implementation of the right to information. it may be too late for the public to expose its defects. In determining the allowable scope of official limitation on access to official records. Sec. documents and papers. it certainly may be regulated. as well as to government research data used as basis for policy development. 2002 63 . Access to Court Records The right of the people to information on matters of public concern shall be recognized. shall be afforded the citizen. The regulation can come either from statutory law and from what the Supreme Court has called the “inherent power *of an officer+ to control his office and the records under his custody and to…. Ermita holds. However. however. the right to information on matters of public concern is both the purpose and the limit of the right of access to public documents. it is important to keep in mind that the two sentences of Sec. which means the opportunity to inspect and copy them at his expense. III. the people can never exercise the right if no contract is consummated. Exercise *same discretion+ as to the manner in which persons desiring to inspect. does not mean that every day is an open house in public offices. Only after a consideration of the context in which the claim is made may it be determined if there is a public 263 Art. c. Publication of Laws and Regulations Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. 7 The constitutional right. G. recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. examine or copy the record may exercise their rights. 133250. too. Thus. regulatory discretion must include both authority to determine the manner of access to them. For as Senate v. The right given by the Constitution is “subject to such limitations as may be provided by law”. subject to such limitations as may be provided by law. however. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. while access to official records may not be prohibited.263 d.R. or decisions. Otherwise. Right to Information Relative to (1) Government Contract Negotiations The right to information contemplates inclusion of negotiations leading to the consummation of the transaction. July 9. The question then boils down to a determination of the scope of official regulatory discretion. Thus. PEA and Amari. Thus.264 (2) Diplomatic Negotiations Recognized as privileged in this jurisdiction. that such privilege is only presumptive. the right only affords access to records. Access to official records. and to documents and papers pertaining to official acts.7 guarantee only one general right. It bears emphasis. No. the right to information on matters of public concern.
1998) 64 . if any.266 12. in mandating that private property shall not be taken without just compensation. vs.R. strong enough to overcome its traditionally privileged status. G. redound to their indirect advantage or benefit. 170516. An ejectment suit should not ordinarily prevail over the State’s power of eminent domain. merely imposes a limit on the government’s exercise of this power and provides a measure of protection to the individual’s right to property.. to which must be added the consequential damages. July 16. Art. 2008 Also guarantees the right not to join an association.268 265 266 Akbayan. This cover uses which. 9. while not directly available to the public. it is an aspect of freedom of contract. III of the Constitution. Any member of the general public.R. It shall not be impaired without due process of law. Just Compensation (1) Determination The full and fair equivalent of the property taken. c. Thomas Aquino. et al. et al. 129079. it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state. G. (Republic v. if any. Expansive Concept of "Public Use" Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. minus the consequential benefits. 267 It is well settled that eminent domain is an inherent power of the State that need not be granted even by the fundamental law. b.interest that calls for the disclosure of the desired information.265 11. as such. December 2. Se. No. Tagle. it is the fair market value of the property. No. Concept This is also known as the power of expropriation. Right of Association The right to form associations is a general right of liberty. but in no case shall the consequential benefits exceed the consequential damages. can demand the right to use the converted property for his direct and personal convenience. It does not matter whether the direct use of the expropriated property by the public be for free or for a fee. Eminent Domain267 a.
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. is unconstitutional. Miscellaneous Application Private property shall not be taken for public use without just compensation. the State shall respect the right of small landowners. 18 272 Art. 9 271 Art. which fixes payment on the basis of the assessment by the assessor or the declared valuation by the owner. the State shall encourage and undertake the just distribution of all agricultural lands. by law. to own directly or collectively the lands they till or.sharing.R. i. to receive a just share of the fruits thereof.271 The State shall. XIII. transfer to public ownership utilities and other private enterprises to be operated by the Government. and PD 76. Dulay.273 268 The ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative. Secs. establish and operate vital industries and. if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned. No condition on the right to repurchase was imposed. undertake an agrarian reform program founded on the right of farmers and regular farm workers. in the case of other farm workers.272 The State shall. the property shall revert to the former owner. the terms of the judgment in the expropriation case were very clear and unequivocal. and subject to the payment of just compensation. Court of Appeals. or equity considerations. In the implementation of such program the State shall respect the right of small property owners. compensation cannot be considered just. then the former owner can re-acquire the property. 9 65 . In this case. d. 4 & 9 273 Sec. III. 2000 270 Art. G.270 The State may. taking into account ecological. The State shall further provide incentives for voluntary land.269 e. for the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. granting title to the lot in fee simple to the Republic. in the interest of national welfare or defense. and for the common good. In determining retention limits.(2) Effect of Delay Without prompt payment. undertake. Sec. 148 SCRA 305) 269 Mactan-Cebu International Airport Authority vs.e. November 27. subject to such priorities and retention limits as the Congress may prescribe. Sec. developmental. (EPZA v. in cooperation with the private sector. 139495. XII. by law. upon payment of just compensation. It shall also promote adequate employment opportunities to such citizens. To this end. Abandonment of Intended Use and Right of Repurchase The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator. No. who are landless..
may not be used against him. Contemporary Application of the Contract Clause The contract clause protects public contracts. Right to be provided with the services of counsel if he cannot afford the services of 274 275 Sec. a person under investigation has the right to refuse to answer any question.275 15. certificate. nor shall such franchise. only an accused has the absolute right to remain silent. 276 Art. cannot be contracted away. Contract Clause No franchise. 66 .274 a. The reservation was made in Article XII. Rights of Suspects276 i. With or without a reservation clause. however. 17. at least sixty per centum of whose capital is owned by such citizens. certificate. III. alteration. moreover. 278 RA 7438. 2(a) provides that “…. including onerous franchises and privileges granted by the state. Right to a competent and independent counsel. The charter itself constitutes a contract with the state. Any person under arrested. A person who is not an accused may assume the stance of silence only when asked an incriminating question.13. preferably of his own choice one278 iii. Sec. or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines. franchises are subject to alterations through a reasonable exercise of the police power. They are also subject to alterations by the power to tax which like police power. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital. 11 Ibid. detained or under custodial investigation shall be at all times be assisted by counsel. 12 277 Under the right against self-incrimination in Sec. His silence. 14. or repeal by the Congress when the common good so requires. Section 11 of the Constitution. Under Sec. Legal Assistance and 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. and all the executive and managing officers of such corporation or association must be citizens of the Philippines. 12. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment. Sec. Right to Remain Silent277 ii. or authorization be exclusive in character or for a longer period than fifty years.
Enanoria) Where the court ruled that the Constitution requires that counsel be independent. 7438. he must also explain their effects in practical terms. without prejudice to the liability of the “inviting” officer for any violation of law. it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. As a rule. and contemplates an effective communication that results in understanding what is conveyed. the suspect is taken into custody.A. he cannot be a special counsel. The lawyer. Requisites 1. Bandula 232 SCRA 566) The right to counsel does not mean the accused must personally hire his own counsel. After being so informed. he must be told that anything he says can and will be used against him in court.” In other words. But note RA 7438 which defines “moment of invitation” as start of custodial investigation. Right to be informed of such rights279 a. the right of a person under investigation to be informed implies a correlative obligation on the part of the police investigator to explain. As People V Rojas 147 S 169 put it: “When the Constitution requires a person under investigation to be informed of his right to remain silent and to counsel. Short of this. there is denial of the right. R.” Custodial investigation begins the moment an incriminating question is asked. (People vs. Obviously. that the rights begin to be available only when the person is already in custody. it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As Justice Regalado emphasized in People V Marra. 67 . Availability Available only “under custodial investigation” for the commission of an offense. Where the court ruled that the right to counsel is intended to preclude the slightest coercion or would lead the accused to admit false. 280 Jurisprudence under the 1987 Constitution has consistently held the stricter view. public or private prosecutor. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation. He is not only duty-bound to tell the person the rights to which the latter is entitled. as it cannot then truly be said that the person has been informed of his rights.iv. or a municipal attorney whose interest is admittedly adverse to the accused. (People vs. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect. however. 2. The constitutional requirement is satisfied when a counsel is engaged by acting on behalf of the person under investigation or appointed by the court upon petition by said persons or by someone on his behalf. should never prevent an accused from freely and voluntarily telling the truth. 279 The right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card. therefore. “Custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. counsel of the police.”280 b. The person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent. 236 S 565: “Custodial investigation involves 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. 3.
b. 19960). Accused proceeded against under orderly processes of law. No. Before conviction of the RTC of an offense not punishable by death. furnished by him or a bondsman. Even if the confession of the accused is gospel truth. Camat. the moment he asks for a lawyer at any point in the investigation. the interrogation must cease until an attorney is present. Even if the person consents to answer questions without the assistance of counsel. with sufficient sureties. This refers to custodial investigation only. it is inadmissible in evidence regardless of the absence of coercion. Rights of the Accused282 a. to guarantee his appearance before any court as required under conditions specified under the rules of court. He should be warned that not only has he the right to consult with a lawyer but also that if he is indigent. b.R. Sec. February 15. Judgment rendered was within the authority of constitutional law. no evidence obtained as a result of the interrogation can be used against him. a lawyer will be appointed to represent him. or even if it was voluntary given (People vs. Rule 114. There can only be a valid waiver of the right if such right is in writing and in the presence of counsel as mandated by Art.284 281 Art. et al.R. G. Waiver These rights cannot be waived except in writing and in the presence of his counsel. G. Section 12 of the 1987 Constitution and the pertinent provisions of R.4. reclusion perpetua or life imprisonment. 1. 113940. c. (People vs. et al. April 2. 6. III. No.. Bail283 All persons in custody shall be admitted to bail as a matter of right. (see Sec. 7438. Accused given notice and opportunity to be heard. 5.281 16. if it was made without the assistance of counsel. 282 Ibid. Before or after conviction by the MTC. Buluran.. and b. 2000). last sentence The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution. or be released on recognizance as prescribed by law or this rule: a. c. Criminal Due Process a. 68 . 112262. Section 12 (1). d. 14 283 The security given for the release of a person in custody of law.A. III. Accused to be heard in court of competent jurisdiction. Revised Rules of Criminal Procedure).
If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years. RoC (a) that the accused is a recidivist. (Rule 114. 7 287 Se. III 288 The proof against him must survive the test of reason. or under conditional pardon.288 284 285 Rule 114. or life imprisonment. The court.285 No person. the accused may commit another crime. Presumption of Innocence In all criminal prosecutions. 14 (2). may admit the accused to bail. 5) 286 Ibid. regardless of the stage of the criminal prosecution. on application. the court. under certain circumstances. (c) that the accused committed the offense while on probation. (b) that the accused is found to have previously escaped from legal confinement.Upon conviction by the RTC of an offense not punishable by death. the accused shall be presumed innocent until the contrary is proved287 xxx Every circumstance favoring the innocence of the accused must be taken into account. or an offense punishable by reclusion perpetua or life imprisonment. or has committed the crime aggravated by the circumstance of reiteracion. or has violated the conditions of his bail without valid justification. parole. the accused shall be denied bail. or (e) that there is undue risk that during the pendency of the appeal.286 c. (d) that the circumstances of the accused or his case indicate the probability of flight if released on bail. Sec. shall be admitted to bail if: a. Sec. 4. the strongest suspicion must not be permitted to sway judgment. charged with a capital offense. Austria. Sec. and b. may allow the accused to continue on provisional liberty after the same bail bond during the period to appeal subject to the consent of the bondsman. evidence of guilt is strong. (People v. with notice to the accused. quasi-recidivist. Art. 195 SCRA 700) 69 . reclusion perpetua. in its discretion. evaded sentence. upon showing by the prosecution. or habitual delinquent. or his bail previously granted shall be cancelled.
an efficient and truly decisive legal assistance. if one should be had.R.293 Description. “In all criminal prosecutions the accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence if he so desires.290 2. 1376. Karelsen G. 120420. 21. Right to be Informed 1. Ruiz. he is entitle to trial of each case. 90 SCRA 428). To furnish the accused with such a description of the charge against him as will enable him to make his defense 2.” It has in fact been held that. 3. G. The right to be assisted by counsel. Assistance of Counsel291 The accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. The right to present evidence289 and to be present at the trial. 289 The right to present evidence includes the right to testify in one’s favor and the right to be given time to call witnesses. Jan. not designation of the offense. because of the new provision allowing trial in absentia. 1999 293 US v. 290 An important facet of the right to be heard is the right to be present at the trial. To inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction. e. April 21. 291 Right to counsel during the trial is not subject to waiver (Flores v. Bermas.R. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause 3. If accused of two offenses. the right of the accused to be present may be waived totally except when his presence is needed for purposes of identification. It is neither determined based on the caption or preamble thereof nor from the specification of the provision of the law allegedly violated. The real nature of the crime charged is determined from the recital of facts in the information. is controlling. and its error for the court to consider in one case the evidence adduced against him in another. The substantial rights of the accused should not be impaired because of his counsel’s anxiousness to have him promptly acquitted. The right to compulsory process to compel the attendance of witnesses in his behalf.292 f. No.d. 1904 70 . 292 People v. No. and not simply a perfunctory representation. Right to be Heard Three (3) specific rights: 1.
to allow the judge to observe the deportment of the witness 71 . 2. The accused. Impartial Accused entitled to cold neutrality of an impartial judge. The right has a twofold purpose: 1. to afford the accused an opportunity to test the testimony of the witness by cross-examination. Right to Speedy. “to confront and cross-examine the witness against him at the trial”. to allow the judge to observe the deportment of the witness i. capricious and oppressive delays. Public To prevent possible abuses which may be committed against the accused. 1(f) of the New Rules of Court expresses it. Sec. Right to cross-examination may be waived. to afford the accused an opportunity to test the testimony of the witness by cross-examination. Impartial and Public Trial Speedy Free from vexatious. 2. “to confront and crossexamine the witness against him at the trial”. The right has a twofold purpose: 1. Compulsory Process Equally important as the right to counsel is the right to compulsory process for the attendance of the witnesses.g. 294 Witnesses not submitted for cross-examination not admissible as evidence. 1(f) of the New Rules of Court expresses it. may not invoke this right on appeal if he made no effort during the trial to avail himself of it. Sec. however. Right of Confrontation294 Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115. Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115. h.
He must unqualifiedly admit that every time a witness mentions a name by which he is known. Writ of Amparo299 A remedy available to any person whose right to life. commanding him to produce the body of the prisoner at designated time and place. 295 Trial in Absentia can also take place when the accused voluntarily waives his right to be present. with the day and cause of his capture and detention. 72 . if allowed to be absent in all the stages of the proceeding without giving the People’s witnesses the opportunity to identify him in court. Trials in Absentia295 Three (3) conditions must concur: 1. 135 299 It is an effective and inexpensive instrument for the protection of constitutional rights (Azcuna.” Thus. to do. 37 Ateneo L. is. Writ of Habeas Corpus297 A writ issued by court directed to person detaining another. it is not enough that he vaguely agrees to be identified by witnesses in his absence. p. Restrictive Conditions for allowing Waiver: The right may be waived “Provided that after arraignment he may be compelled to appear for the purpose of identification of witnesses of the prosecution. 15 (1993). the witness is to be understood as referring to him.298 18. The writ shall cover extralegal killings and enforced disappearance or threats thereof.J. The Writ of Amparo: A Remedy to Enforce Fundamental Rights. 298 Nachura. 296 The presence of the accused at arraignment is an absolute requisite for any trial to proceed. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. is entitled to acquittal. and to receive whatever court or judge awarding writ shall consider in his behalf.j. Reason for requiring the presence of the accused. despite his waiver. 251 SCRA 709). Sumulong-Torres. Reviewer in Political Law. the reason being that it is at arraignment that the accused is informed of the nature and cause of the accusation against him and it is then that the trial court acquires jurisdiction over the person 297 Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. to submit to. Notice of the trial was duly served to him and properly returned 3. he may in his defense say that he was never identified as the person charged in the information and therefore. His failure to appear is unjustified 17. Accused has been arraigned296 2. for an accused to be excused from attending trial. or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. or of a private individual or entity.
XIII. papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power. including civil actions and administrative or legislative investigations.18.e. but also in all other government proceedings. 302 Art. Hence. Application Applies only to testimonial compulsion301 and production of documents. Use and Fruit Immunity Prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. 17 The Kernel of the right is not against all compulsion but testimonial compulsion only.300 a. photographing and paraffin testing.303 300 301 Sec. Scope and Coverage Available not only in criminal proceedings. Pamaran. i. Immunity Statutes Transactional Immunity302 The testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates. extracting from the lips of the accused an admission of his guilt. Sec. c. 18 (8) 303 Galman v. a person may be compelled to submit to fingerprinting. May be claimed not only by accused but by a witness to whom an incriminating question is addressed. 138 SCRA 274 73 . (1) Foreign Laws b. Self-Incrimination Clause No person shall be compelled to be a witness against himself.
L-1573. return to work order in industries affected with public interest308 and f. 1948 309 Art.(2). 21. 165 US 275 307 US v.R.19. Sec.310 20. naval enlistment306 d. penalty must be flagrant and plainly oppressive. disproportionate to nature of offense as to shock senses of community. Pompeya. Except: a. 74 . III. Excessive Fines and Cruel and Inhuman Punishments311 Prohibited punishment . Gotamco Sawmills. To violate constitutional guarantee.mere severity does not constitute cruel or unusual punishment. II. patria potestas309 Political Prisoners No person shall be detained by reason of his political beliefs or aspirations. Sec 4 306 Robertson v. Sec. Sec. No. 31 Phil. G. service in defense of the state305 c.312 304 305 Art. 18(2) Art. III. par. as punishment for a crime whereof one has been duly convicted304 b. 18 311 id. FC 310 Art. 20 Coverage: 1. 211. Debt – any civil obligation arising from a contract. Involuntary Servitude and Political Prisoners Involuntary Servitude General Rule: No involuntary Servitude shall exist. 19 312 id. Baldwin. posse comitatus307 e. 245 308 Kaisahan ng Mangagawa sa Kahoy v. Sec. March 29. Non-Imprisonment for Debts No person shall be imprisoned for debt or non-payment of poll tax.
g. Crimes covered: 1. c. If an act is punishable by a law and an ordinance. or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information.22. 314 With the presence of the requisites the 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 included in the offense charged in the original complaint or information 315 People v. 23 SCRA 1249 75 . Certiorari will issue only to correct errors of jurisdiction. No person shall be twice put in jeopardy of punishment for the same offense. Double Jeopardy313 a. 58 Phil 851 316 PP vs. defendant was previously acquitted or convicted or the case dismissed or otherwise terminated without his express consent315 b. CA and Maquiling. New evidence has been discovered which materially affects the decision rendered. Motions for Reconsideration and Appeals Motions for Reconsideration 1. conviction or acquittal under either shall bar another prosecution for the same act. and d. valid complaint or information. to which defendant has pleaded. Ylagan. 313 Two types: 1. Poll Tax – a specific sum levied upon any person belonging to a certain class without regard to property or occupation (e. when an act is punished by a law and an ordinance. Appeals The rule on double jeopardy prohibits the state from appealing or filing a petition for review of a judgment of acquittal that was based on the merits of the case. filed before competent court. same offense. 2. conviction or acquittal under either shall constitute a bar to another prosecution for the same act. 2.317 2. The decision is not supported by the evidence on record. Community Tax ) A Tax is not a debt since it is an obligation arising from law hence its non-payment maybe validly punished with imprisonment.316 The prosecution can appeal if the accused waived or is estopped from invoking his right. Obsania. b. June 21. or errors of law or irregularities have been committed which are prejudicial to the interest of the respondent. 1999 317 PP vs. not errors of procedure or mistakes in the findings or conclusions of the lower court. and 2. Requisites314 a.
and 3. e.Appeal from the order of dismissal by the lower court is not foreclosed by the rule on double jeopardy where the order of dismissal was issued before arraignment. 237 SCRA 575 Characteristics: 1. in effect imposes a penalty. refers to criminal matters. law aggravating penalty for crime committed before passage. when ground for dismissal is insufficiency of evidence. 23. legislative declaration of guilt. 318 319 Bills of Attainder Legislative act that inflicts punishment without trial. c. CA. Ex Post Facto Laws and Bills of Attainder Ex post facto law319 a. except: a. 2. Dismissal with Consent of Accused Does not put accused in first jeopardy. law making an act criminal which was not before its passage. law assuming to regulate civil rights and remedies only. prejudice the accused. Such court may even increase the penalties imposed on the accused by the trial court. he waives his right to plead double jeopardy. Martinez v. in order to convict accused. The whole case will be open to review by the appellate court. retroactive. law inflicting greater or more severe penalty. law altering legal rules of evidence and receive less or different testimony than law required at time of commission. c. when the proceedings have been unreasonably prolonged as to violate the right of the accused to a speedy trial. b. 76 . d. or b.318 If the accused appeals his conviction.
f. law depriving accused of some lawful protection to which he had been entitled. such a protection of a former conviction or acquittal. g. or a proclamation of amnesty. 77 . of deprivation of right for something which when done was lawful.
e. By birth i. Who are Filipino citizens a. L-9602) Act 2927 78 . d. 2. jus sanguinis. G. c. Those who are citizens under the Treaty of Paris. Those declared citizens by judicial declaration applying the jus soli principle. No. b.H. Republic (25 April 1957. c. 320 Those who are naturalized in accordance with law. and ii.321 Those who are citizens under the 1935 Constitution. jus soli. By naturalization. By marriage 320 321 before Tio Tiam v. b.R. Those who are citizens under the 1973 Constitution. Citizenship 1. Modes of acquiring citizenship a.
married to a Filipino woman. Who. e. or in any of branches of education or industry for a period of not less than 2 years. Citizens or subjects of nations with whom the Philippines is at war. Exceptions: a. 6809 79 .A. good moral character. resided in the Philippines for not less than opposing all organized governments. c. traditions and ideals of Filipinos. during residence in the Philippines. an Citizens or subjects of foreign country h. c. if: b. 3. persons who uphold and teach doctrines b. have not mingled socially with Filipinos. engaged as teacher in Philippine public or private school not established for exclusive instruction to particular nationality or race. a. The widow or children of the applicant who died before his application was granted. f. b. or not evinced sincere desire to learn and embrace customs. personal assault or assassination for the success or 2. character: a.000 in value. 323 as amended by R. a useful invention. Those who have resided in the Philippines for thirty (30) years. may be reduced to 5 years. Polygamists or believers in polygamy. honorably held office in the Philippines. Declaration of Intention – must be filed with the Office of the Solicitor General one (1) year before filing of application for naturalization. d. b. during the period of such war. c. not less than 18 years of age on date of Opposed to organized government or 323 affiliated with any association or group of hearing of petition. born in the Philippines. Own real estate in the Philippines not less than P5. Naturalization and Denaturalization Naturalization322 Qualifications Disqualifications a.3. 6. and 5. conducted himself in irreproachable conduct during his stay in the Philippines. 4. Convicted of crime involving moral turpitude. or have some 322 c. Those born in the Philippines and received primary and secondary education in a Philippine school. whose laws do not grant Filipinos right to become naturalized citizens or subjects thereof. believes in the Constitution. g. 10 years. Suffering from mental alienation or incurable contagious disease. established new industry or introduced predominance of their ideas. propriety of violence. Defending or teaching necessity or 1.
provided registered as such before any 324 325 as amended by Sec.325 On the minor children 1. unless begins to reside permanently in the Philippines. Enrolled minor children in any public or private school recognized by government where Philippine history. profession or lawful occupation that can support himself and his family. Art. Effects of Naturalization: On the wife Vests citizenship on wife who might herself be lawfully naturalized. government and civics are taught as part of curriculum. 2. Born abroad If born before the naturalization of the Father: (a) residing in RP at the time of naturalization – automatically becomes citizen. 3. XIV Moy Ya Lim Yao v. (b) not residing in RP at the time of naturalization – considered citizen only during minority. d.324 and e. If born outside the Philippines after parents’ naturalization considered Filipino. Comm. 6. She need not prove her qualifications but only that she is not disqualified. Born in the Philippines– automatically becomes a citizen.lucrative trade. Speak and write English or Filipino and any principal Philippine dialects. of Immigration. 41 SCRA 292 80 . during the entire period of residence prior to hearing of petition.
If.Philippine consulate within 1 year after attaining majority age and takes oath of allegiance. within 5 years. a person is simultaneously considered a national by said states. Naturalization certificate obtained fraudulently or illegally. the wife and children shall retain citizenship. Denaturalization Grounds 1. and 5. Minor children failed to graduate through the fault of the parents either by neglecting support or by transferring them to another school. loyalty to two or more states. 4. If ground affects intrinsic validity of proceedings. Naturalization obtained through invalid declaration of intention. denaturalization shall divest wife and children of their derivative naturalization. and 2. Result of an individual’s volition 81 . Dual citizenship and dual allegiance Dual citizenship Arises when. 4. 2. by some positive act. Involuntary Dual allegiance Refers to the situation where a person simultaneously owes. If the ground is personal. Allowing himself to be used as dummy. he returns to his native country or to some foreign country and establishes residence therein. 3. as a result of concurrent application of the different laws of two or more states. Effects 1.
135083. Rendering service to or accepting commission in the armed forces of a foreign country. e. Naturalization in a foreign country. Manzano. f.A. Cancellation of certificate of naturalization.R. 63 Expatriation The mere application or possession of an alien certificate of registration does not amount to renunciation (Mercado vs. Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government. Exception: 1. with the active participation of the Solicitor General or his representative. 2. natural-born Filipinos who have lost their Philippine citizenship on account or political or economic necessity. By naturalization330 b.A. 329 General Rule: Res judicata does not set in citizenship cases. Express renunciation of citizenship327 Reacquisition of Philippine Citizenship: a. By direct act of Congress constitution or foreign laws upon attaining of 21 years of age. 330 supra 331 Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. after a full-blown hearing. G.5.328 d. Loss and re-acquisition of Philippine citizenship Loss of Philippine Citizenship:326 a. 8171 is an act providing for the repatriation of: a. b. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. 82 . Citizens may not divest citizenship when Philippines is at war 328 Citizens may not divest citizenship when Philippines is at war. Subscribing to an oath of allegiance to c. b. By repatriation331 c. Filipino women who have lost their Philippine citizenship by marriage to aliens and. Allows the person to recover or return to his original status before he lost his Philippine citizenship. No. and 3. May 26. Having been declared by final judgment a deserter of Philippines Armed Forces in times of war. 1999) Subscribing to an oath of allegiance to constitution or laws of foreign upon attaining of 21 years of age. person’s citizenship is resolved by court or an administrative body as a material issue in the controversy. R. The applicant should not be a: a. finding of his citizenship is affirmed by the Supreme Court.329 326 327 C.
1(1) of Arts. or association for the predominance of their ideas. 2.2.338 g. Person suffering from mental alienation or incurable contagious diseases. 332 Sec. c. Art. and IX-D 339 Sec.XIII 83 .20.339 h. Natural-born citizens and public office Natural Born Citizens:332 The following must be must be natural-born citizens: a.8. Art.336 e. who elect Philippine citizenship upon reaching the age of majority d. Members of the governing board of the Central Monetary Authority. Citizens of the Philippines from birth a. XII 340 Sec. Person convicted of crimes involving moral turpitude: or d. 1973 of c.340 of the b. Vice President. VIII 337 Sec. Person defending or teaching the necessity or propriety of violence.337 f. Justices of the Supreme Court and lower collegiate courts. b.3. VII 334 Sec. Art. Constitutional Commissions. Art. 7(1). VI 336 Sec.6.3 & 6. 335 Sec. President. id.335 Filipino mothers. Art. Those born before January 17. IX-B. IX-C. Members of Congress. IV 333 Sec. Art.333 without having to perform any act to acquire or perfect their Philippine citizenship.17(2). Ombudsman and his deputies.334 b. personal assault. Chairman and members Commission of Human Rights.XI 338 Secs. Art.
authority or duty. even nominal. Law on Public Officers 1. compensation.A. A person who holds public office. agent or subordinate official. of any rank or class shall be deemed to be a public officer. an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public. Public office is a public trust created in the interest and for the benefit of the public. created and conferred by law. or shall perform in said Government or in any of its branches. unclassified or exempt service. popular election or appointment by competent authority. from the government. by which for a given period. shall take part in the performance of public functions in the Government of the Philippine Islands. permanent or temporary. There is no such thing as vested interest or an estate in an office or even an absolute right to hold it. Public office is personal to the incumbent thereof or appointee thereto. either fixed by law or enduring at the pleasure of the creating power.341 c.I. R. 3019 (Anti-Graft and Corrupt Practices Act) 84 . Public officer 341 342 Art. Any person who. b. public duties as an employee. whether in the classified. a. b. c. 2. Includes elective and appointive officials and employees.342 Characteristics of public office a. receiving. 203. . General Principles Public office The right. by direct provision of law. RPC Sec.
No.346 Provisional appointment One issued upon the authorization by CSC to a person who has not qualified in an appropriate exam but otherwise meets the requirement for appointment to a regular position whenever such vacancy occurs and filling it is necessary in the interest of service and there is no appropriate register of 343 344 Preclaro v. Extended to one who may not possess the requisite qualifications or eligibility required by law for the position.344 The appointee may not possess the required qualities or the eligibility required by law for the position. a new appointment is necessary (Province of Camarines Sur v. the petitioner had no cause to demand reinstatement thereto. 21. the same has to be for a valid and just cause. if revocation is made before such expiration. by contract or by some other modes authorized by law. and is revocable at will without the necessity of just cause and valid investigation. Alonto 346 Ambas v. Buenasedo 85 . Modes of Acquiring Title to Public Office a. CA) 345 Marahomsan v. including the eligibility required for the position.2. and is revocable at will.345 Temporary Acting Appointment Temporary Appointment for The appointment may be revoked only at the expiration of Fixed Period the period or.343 3. 111091. Sandiganbayan. By appointment b. 1995 The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. Modes and Kinds of Appointment Permanent Extended to a person possessing the requisite qualifications. G. (Romualdez v. without the necessity of just cause or a valid investigation. and thus protected by the constitutional guaranty of security of tenure. Aug. CSC) Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one. By election c. In some instances. When the temporary appointment was not renewed.R.
349 b.g. upon prior authorization to the CSC. and in some cases. considered temporary appointment. Endowments. or attributes which make an individual eligible for public office. 174 SCRA 245) 349 Qualifications (endowments) must be possessed by the individual at the time of appointment or election and continuously for as the official relationship continuous. before the confirmation by the COA. 86 . and often. is immediately effective and ceases to be valid if disapproved or by passed by the COA upon the next adjournment of Congress 4. Eligibility and Qualification348 Requirements Eligibility It is the state or quality of being legally fit or qualified to be chosen. the giving of an official bond. subscribing and filing of an official oath. One made by while Congress is not in session. It may refer to: a.eligible employees at the time of the appointment.350 Ad-interim Qualification 347 abolished already. before entering upon the performance of his duties.347 Regular One made by the President while Congress is in session after the nomination is confirmed by the COA and continues until the end of the term. 348 “Loss of any of the qualifications during incumbency will be a ground for termination” (Frivaldo v. taking an official oath or giving an official bond. The act of entering into the performance of the functions of a public office. whenever a vacancy occurs and filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment. Provisional appointment is one which may be issued. COMELEC. is by law required to do such as the taking. qualities. Loss of any of the qualifications during incumbency will be a ground for termination 350 e. This refers to the act which a person. to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position.
or instrumentality thereof. Disabilities and Inhibitions of Public Officers a) The President. physical fitness and other requirements for successful performance. hold any other office or employment during their tenure. Educational Attainment e. He could become merely a de facto officer. XI.General qualifications:351 a.358 e) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office. IX-A. and their deputies or assistants shall not. Sec. But prolonged failure or refusal to take an oath or office could result in the forfeiture of the office 351 Qualification standard-expresses the minimum requirements for a class in position in terms of education. Sec. Sec. civil service eligibility. 353 Temporary appointments of non-eligible may be made in the absence of eligible actually and immediately available. XI.356 d) No Member of a Constitutional Commission shall. hold any other office or employment357 the same disqualification applies to the Ombudsman and his Deputies. Vice-President. Sec. including government-owned or controlled corporations or their subsidiaries.354 b) No Senator or Member of the House of Representatives may old any other office or employment in the Government. training and expense. Sec. VI. 2 358 Art. 354 Art. 13 356 Art. 13 355 Art. 8 357 Art. VII. Civil Service353 5. Sec. the Members of the Cabinet. unless otherwise provided in the Constitution.355 c) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. during his tenure. IX. agency. 8 359 Art. oath) could affect the officer’s title to the given office. Residence c.g. 11 87 . 352 A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he qualified and had been appointed. during his term for which he was elected.359 Failure of an officer to perform an act required by law (e. Age d. Citizenship352 b. or any subdivision.
Art. Sec. Sec.f) Members of Constitutional Commissions.360 g) Members of Constitutional Commissions. or as Secretaries. Sec. Art. To submit a declaration under oath of his assets. IX-D. 13 363 Art. 11. 1(2). IX-D. liabilities and net worth upon the 360 361 Can be compelled by mandamus Can be delegated Specific a. Sec.363 b. including government-owned or controlled corporations.1 88 . 1(2). Art. The Solicitor general’s duty to represent the government. to serve them with utmost responsibility. the Ombudsman and his Deputies are appointed to a term of seven (7) years. 1. IX-C. the Ombudsman and his Deputies must not have been candidates for any elective position in the election immediately preceding their appointment. IX-B. Although he has the discretion in choosing whether or not Art. 11 362 Art. without reappointment. XI. Art.361 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions.362 6. 8 Art. Art. integrity. XI. to act with patriotism and justice. loyalty and efficiency. Undersecretaries. Sec. chairmen or heads of bureaus or offices. Sec. its offices and instrumentalities and its officials and agents except in criminal and civil cases for damages arising from felony.is mandatory. VII Sec. Powers and Duties of Public Officers Powers Ministerial Discharge is imperative and it must be done by the public officer Discretionary Public officer may do whichever way he wants provided it is in accordance with law and not whimsical Cannot be compelled by mandamus except when there is grave abuse of discretion Cannot be delegated unless otherwise provided by law Duties General/ Constitutional a. or the Office of the Ombudsman. To be accountable to the people. and to lead modest lives. IX-B. 1. Sec.
If he has less than fifteen (15) years of service. Right of Salary368 c.. Right to Maternity. Right to Office367 b. 368 a personal compensation to be paid to him for services. provided the claimant was in the service as of January 9. b. Rights of Public Officers366 a. 370 Retirement is compulsory for a member who has reached the age of sixty-five (65) years with at least fifteen (15) years of service. Where there is a de jure officer. Paternity Leave f. 18 366 When may Public officer claim legal right to his office? a) File a Quo Warranto – both elective and appointive b) File Election Protest – on elective officer by the losing candidate. Right to pension and gratuity 364 365 Id. and it is generally a fixed annual or periodical payment depending on the time and not on the amount of services he may render. (Profeta v. Right to Vacation and Sick Leave369 e. A de jure officer. The salary of a public officer cannot be subject to garnishment. he shall be allowed to continue in the service to complete the fifteen (15) years. is entitled to salary. has possession of the office and has discharged the duties thereof. Right of Preference in Promotion d. a de facto officer who.. To owe the state and the Constitution allegiance at all times. “to avail of the old-age pension benefit. Right to Retirement Pay370 g.364 c. upon establishing his title to the office cannot recover from the public/government the amount so paid to the de facto officer for services performed by him before the adjudication upon the title. government officers or employees are not entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned. 369 Under Office of President Memo Circ.assumption of office and as often thereafter as maybe required by law. 367 the just and legal claim to exercise the powers and responsibilities of the public officer. Drilon) 89 . 17 Id. No. 7.365 to prosecute a case or even withdraw there from such discretion must be exercised within the parameters set by law and with the best interest of the state as the ultimate goal. It is given to higher degree of employment. The government is not estopped from questioning the act of its officials. Sec. and appropriated to the payment of his debts. Sec. 54 (3/24/88). more so if they are erroneous or irregular. attachment or order of execution be seized before being paid to him. in good faith. 1986. Agreements affecting compensation are void as contrary to public policy.
Liabilities of Public Officers General Rule on Liability: A public officer is not liable for injuries by another as a consequence of official acts done within the scope of his official authority. 18 SCRA 223) Need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa v.h. Chapter 9.) The Ombudsman may suspend for 6 months. Right to reimbursement for expenses incurred in the due performance of his duty. Vasquez. Sec 8 1987Consti. For civil service officers and employees – 90 days (max. Peralta. vs. A public officer shall be civilly liable if there is a clear showing of bad faith. k. oppression or grave misconduct. Civil servants are now given the right to self-organize but they may not stage strikes (see: SSS Employees Assoc. Preventive Suspension373 and Back Salaries The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation if the charge against such officer involves dishonesty. 175 SCRA 686) 372 Administrative Code of 1987. 90 . Right to longevity pay.372 a. m. Right to Self-Organization371 8. 90-1066) Period for Preventive Suspension: For Local elective officials – 60 days (max) for single offense within a single year for several offenses but not exceeding term of office. Right to present complaints and grievances.a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. 243 SCRA 497) The period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 371 Art III. i. except as otherwise provided by law. 38 (1). l. Sec. j. Book 1 373 Preventive Suspension . or neglect in the performance of a duty. Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties. Right to special protection. or if there are reasons to believe that the respondent is guilty of the charges which would warrant removal from the service. malice or negligence. CA. n. Right to exercise the powers connected with the office.
Wilfredo B. A validly existing public office. No. the employee suspended must be exonerated of the charges against him. negligences. Domo‐Ong and Herminio C. 3. G. wherein such ineligibility. Immunity376 of Public Officers It is well settled as a general rule that public officers of the government. are not liable to third persons. the necessities of the public service and the perplexities and embarrassments of a contrary doctrine. 276 SCRA 619 376 An exemption that a person or entity enjoys from the normal operation of the law such as a legal duty or liability. On the other hand. 377 McCarthy vs. Feb. 154499. Actual physical possession of said office. Reyes.377 The immunity of public officers from liability for the nonfeasances. No. Aldanese.R. Color of title to the office 91 . 27. March 5. Illegal Dismissal. G. Law on Public Officers. 10. he shall be paid full salaries and emoluments accruing during the period of suspension. or for the nonfeasances. 1923 378 Alberto V. want of power.375 9. negligence or omissons of duty of their official subordinates and even for the latter’s misfeasances or positive wrongs rests upon obvious considerations of public policy.R. Note that in order to be entitled to back salaries. Inc. either criminal or civil.Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office the right to recover accruing from the date of deprivation. or omissions of duty of their official subordinates.378 This doctrine is applicable only whenever a public officer is in the performance of his public functions. Rural Bank of San Miguel (Bulacan).374 b. Court of Appeals. or that there was want of power in the electing body. either for the misfeasances or positive wrongs. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year. 2004 379 Elements 1. or that there was some other defect or irregularity in its exercise. this doctrine does not apply whenever a pub lic officer acts outside the scope of his public functions. L‐19715. Principio v. 374 375 Cruz.. Reinstatement and Back Salaries The public officer shall not be entitled to salaries during the period of preventive suspension. 2. 126 Bangalisan v. but upon exoneration and subsequent reinstatement. De Facto Officers379 A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible. p. in the performance of their public functions. or defect being unknown to the public.
because Art. Any request for extension of service of compulsory retirees to complete the fifteen (15) years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS). will result in termination of official relationship through reaching the age limit (or retirement). will not be effective until after the appointment or election of his successor. COMELEC 199 SCRA 750) 381 The compulsory retirement age for members of the Judiciary is seventy (70) years of age and for the other government officers and employees. 11. Manglapus. Recall e. the resignation. without acceptance by competent authority does not create a vacancy in public office. which allows optional retirement after an officer has rendered a minimum number of years of government service. resignation is not complete until accepted by proper authority (Joson v. Reaching the age limit381 c. R. before the acceptance of his resignation. (Toledo v. e. his being replaced shall be regarded as termination through expiration of term. 190 SCRA 280) When the constitution provides that the term of office of local elective official is three years. Mere tender of resignation. If the public officer is mandated by law to hold over. When a public officer holds office of the pleasure of the appointing authority.A. Acceptance of an incompatible office385 380 Term is the period of time during which a public officer has the right to hold the public office. when availed of by the public officer. sixty-five (65) years of age.A de facto officer is entitled to emoluments for actual services rendered. even if accepted. 1616. Tenure is the period of time during which the public officer actually held office. and he cannot be made to reimburse funds disbursed during his term of office because his acts are vali d as those of a de jure officer. not removal. (Osmena v. effectively reduced the term. Termination of Official Relation a. Removal383 f. 384 It is the voluntary relinquishment of an office by the holder. Special Retirement Laws. Congress cannot. either expressly or impliedly (as in the appointment of a successor). with the intention of terminating his possession and control thereof. and shall be granted for a period not exceeding one (1) year. by a law calling for delayed election. (Astraquillo v. acceptance of resignation is necessary. Resignation382 d. Nario. abandons his office to the detriment of the public service. 238 of the Revised Penal Code penalizes any public officer who. Abandonment384 g. COMELEC) 382 the formal renunciation or relinquishment of a public officer Resignation must be accepted by competent authority. 383 entails the ouster of an incumbent before the expiration of his term. The government agency concerned is vested with discretionary authority to allow or disallow extension of such service. 187 SCRA 453) In the Philippines.g. Expiration of term or tenure380 b. 92 .
135 SCRA 431) Exception: Where the public officer is authorized by law to accept the other office. if at the time of the promulgation of a decision or a resolution. 389 Conviction with a accessory penalty of disqualification-rule: When the penalty impose. COMELEC) 388 Sec. Conviction of a crime389 n. (Adaza v. upon conviction. (JAMIL vs. A public official ceases to hold office upon his death and all his rights.P 881 provides: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant. Death387 l. Pacana. conviction by final judgment automatically terminates official relationship. has vacated his office. 385 Acceptance of Incompatible Office ipso facto vacates the other. Prescription of the right to office j. Filing of a certificate of candidacy. by express provision of the Constitution.. 93 .. duties and obligations pertinent to the office are extinguished thereby. 11. e. Consequently. Valid abolition of office does not constitute removal of the incumbent 387 The death of an incumbent of an office necessarily renders the office vacant.h. the Secretary of Justice who is.g. Abolition of office386 i. his vote is automatically withdrawn or cancelled. A decision becomes binding only after it is validly promulgated. Constitutional Offices cannot be abolished by Congress. Impeachment k. a member of the Judicial and Bar Council 386 Except when restrained by the Constitution. Failure to assume elective office within six months from proclamation388 m. There is no necessity for any proceeding to declare or complete the vacation of the first office. a judge or a member of the collegiate court who had earlier signed or registered his vote. Congress has the right to abolish an office. unless said failure is for a cause or causes beyond his control”. even during the term for which an existing incumbent may have been elected. B. carries with it the accessory penalty of disqualification.
where prior qualification in an appropriate examination is required. IX-B. such as those in the Foreign Office. PAL. or which is co-terminus with that of the appointing authority or subject to his pleasure. although governed by a separate merit system. The positions included in the non-career service are: L. Other than those belonging to the Career Executive Service. M. instrumentalities. opportunity for advancement to higher career positions. Closed Career Positions. Open Career Positions. H. semi-skilled. it does not fall under the Civil Service (e. primarily confidential or highly technical by competitive examination. or unskilled. D. entrance on bases other than those of the usual tests utilized for career service. and c. Personnel of government-owned or controlled corporations with original charters. Scope The Civil Service embraces all branches.390 b. Also.12. Corporations created by special charters are subject to the Civil service. Non-career Service characterized by: a. while those incorporated under the Corporation Law are not. N. J. b. The positions included in the career service are: C. or which is limited to the duration of a particular project for which purpose the employment was made. E. if what is involved is a private corporation from which the government acquires shares of stock. Permanent Laborers. B. scientific or highly technical in nature. subdivisions. undersecretaries. bureau directors. tenure limited to a period specified by law. to be determined by competitive examinations. e. Positions in the Armed Forces. Manila Hotel). e.g. 2(2) A. Sec. including government-owned or controlled corporations with original charters. Department heads and officials of Cabinet rank who hold office at the pleasure of the President and their personal and confidential staff. and except appointments to positions which are policy determining. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job 94 . Elective officials and their personal and confidential staff. The moment that a Corporation ceases to be government controlled. Career Service characterized by: a. O. The Civil Service a.391 390 The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation. Career Executive Service. who are appointed by the President.g. security of tenure. b. as when it is privatized. as far as practicable. whether skilled. The “Boy Scouts of the Philippines” is a government-owned or controlled corporation. K. it ceases to fall under the Civil Service. I. or based on highly technical qualifications. F. Appointments to the Civil Service Shall be made only in accordance to merit and fitness to be determined. G. and agencies of the government. Chairmen and members of commissions and boards with fixed terms of office. and their personal and confidential staff. Career Officers. 391 Art.g. entrance based on merit and fitness.
The Committee. and trial by the Senate shall forthwith proceed. 6. as well as employment status and qualification standards. and by majority vote of all its members. Graft and Corruption. Vice-President. 2. reinstatement. 4. 4. reassignment. 5. The Senators take an oath or affirmation. after hearing. Ombudsman. 4. Personnel Actions Disciplinary cases involving “personnel action” affecting employees in the CS including “appointment through certification. Verified Complaint filed by any member of the house or any citizen upon resolution of endorsement by any member thereof 2. Trial and Decision in Impeachment proceedings: 1. reemployment. When the President of the Philippines is on trial the Chief Justice of the Supreme court shall preside but shall not vote. Bribery. transfers. the same shall constitute the Articles of Impeachment. If the verified complaint is filed by at least one third of all its members. 3. Betrayal of public trust. shall submit its report to the House together with the corresponding resolution. 3. detail. A vote of at least one third of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution. 5. Other high crimes. and 6. Impeachment A national inquest into the conduct of public men. promotion.393 392 393 Mantala v.c. 7. President. Treason. Salvador Impeachable officers: 1. Removal from Office. Justices of the Supreme Court. Initiation of Impeachment Case: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Included in the order of business within 10 session days. 2. 3. A decision of conviction must be concurred in by at least two thirds of all the members of the Senate. demotion and separation”. Process of Impeachment: 1. 3. Referred to the proper committee within 3 session days of its inclusion. 95 . Discussion on the floor of the report.392 13. all within the exclusive jurisdiction of the CSC. 2. Placing on calendar the Committee resolution within 10 days from submission. Effect of Conviction: 1. Grounds for Impeachment: 1. 5. Accountability of Public Officers a. Chairmen and Members of the Constitutional Commissions. Culpable violation of the Constitution.
Direct any public official or employee of the Government.. and respects the initiative and independence inherent in the Ombudsman who. GR No. 2003). trial and punishment according to law. 6770 (The Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory power virtually free from legislative. 160261. vs. et al. 139396. Sandiganbayan. and correct any abuse or impropriety in the performance of duties. Flavier. The latter is a suspension as a penalty. employee. August 15.A. Limitations: 1. Buenesada vs. The 1987 Constitution A Reviewer-Primer. beholden to no one. c. Investigate any act or omission of any public official. to perform or expedite any act or duty required by law. agency or instrumentality thereof. as well as any GOCC with original charter.b. Office of the Ombudsman. Direct the officer concerned to take appropriate action against a public official or employee at fault. prevent. Ed. 2. preventive suspension is not a penalty (Bernas. unjust. when such act or omission appears to be illegal. March 20. Party convicted shall be liable and subject to prosecution.R. fine. 2. improper. demotion. 226 SCRA 645) 96 . or to stop. (Uy v. or inefficient. or prosecution. Disqualification to hold any other office under the Republic of the Philippines. the proceeding is “initiated” or begins when a verified complaint is filed and referred to the Committee on Justice for action (Francisco. Citing. acts as the champion of the people and the preserver of the integrity of public service. House of Representatives. The Supreme Court consistently refrains from interfering with the exercise of its powers. An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. executive or judicial intervention. No. 2000) The Ombudsman is clothed with authority to conduct preliminary investigation and prosecute all criminal cases involving public officers and employees. not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well. GR No. et al. The House of Representatives shall have the exclusive power to initiate all cases of impeachment. office or agency. 105965-70. 3. b. (Loquias v. 2002. and recommend his removal. 394 The Constitution and R. The power to investigate also includes the power to impose preventive suspension. Ombudsman The “champion of the citizens” and “protector of the people” Tasked to entertain complaints addressed to him against erring public officers and take all necessary actions thereon. G. suspension. censure. November 10. This is different from the power to recommend suspension. and ensure compliance therewith. Not more than one impeachment proceeding shall be initiated against the same official within a period of one year. For purposes of applying the-one year bar rule. 2001). or any subdivision.394 (1) Functions a.
Determine the causes if inefficiency.395 i. g. id. 395 396 Sec. pertinent records and documents. Art. Its approved annual appropriations shall be automatically and regularly released. Publicize matters covered by its investigation when circumstances so warrant and with due process. Request any government agency for assistance and information necessary in the discharge of its responsibilities and examine. fraud and corruption and to make recommendations for their elimination and observance of high standards of ethics and efficiency. if necessary.. and report any irregularity to the COA for appropriate action. in any appropriate case. Promulgate its rules of procedure and exercise such other powers or perform such function or duties as may be provided by law. (3) Judicial Review in Penal Proceedings The criminal case may be appealed to the Supreme Court. Direct the officer concerned. 14. f.396 (2) Judicial Review in Administrative Proceedings The administrative case may be appealed to the Court of appeals. red tape. 97 . e. 13.d. h. mismanagement. and subject to such limitation as may be provided by law. The Office of the Ombudsman shall enjoy fiscal autonomy. XI Sec. to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties.
(RA 8249) 398 Art. certiorari. (iii) Members of the Judiciary without prejudice to the Constitution. R. 3019 (AGCPA) as amended. trustees. directors. and 3. 15 399 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. 2.A. and (v) All other national and local officials with G27 or higher. b.c. (b) City mayors. Civil and criminal cases filed pursuant to and in connection with E. (e) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher. nos.2.399 397 Original Jurisdiction a. d. (iv) Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. Title VII. and Chapter II. and officials and prosecutors in the Office of the Ombudsman and special prosecutor. engineers and other city department heads. 14 and 14-A issued in 1986. GR No. habeas corpus. Provided.130140. October 25. city treasurers. 1. Sec. 1999 98 . (c) Officials of the diplomatic service from consuls or higher. (d) PA/PAF colonels. engineers and other provincial department heads. vice-governors.O.A. Exclusive Appellate Jurisdiction over final judgments. that jurisdiction over these petitions shall be not exclusive of the Supreme Court. injunction and other ancillary writs and processes in aid of its appellate jurisdiction. whether in a permanent. resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. 1379. (ii) Members of Congress and officials thereof with G27 and up. Sandiganbayan397 The anti-graft court shall continue to function and exercise its jurisdiction as now and hereafter may be provided by law. Sec. (f) City/provincial prosecutors and their assistants. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a in relation to their office. XI. violations of R.A. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus. or with Salary Grade Level 27 (G27) according to R. shall not be barred by prescription. from them or from their nominees or transferees. Ill-Gotten Wealth The right of the State to recover properties unlawfully acquired by public officials or employee. Desierto. Board members. and (g) Presidents. PN captains and all officers of higher rank. provincial treasurers. or managers of GOCC’s state universities or educational institutions or foundations. prohibitions. city councilors. assessors. 6758. acting or interim capacity at the time of the commission of the offense: (i) Officials of the Executive branch with the position of regional director or higher. Book II of the Revised Penal Code where one or more of the accused are officials occupying the following positions in the government. 2. vice-mayors. laches or estoppel398 but it applies only to civil actions and not to criminal cases. c. specifically including: (a) Provincial governors.
Further.A. Term Limits Elected local official Three (3) years starting from noon of June 30 following the election or such date as may be provided by law.14. LGC under R.400 Three (3) years. 9164 (March 19. 19 Nov. Cruz. (COMELEC v. 2009) 99 . 2002). for maximum of three (3) consecutive terms in same position.R. The Court interpreted this section referring to all local elective officials without exclusions or exceptions.401 Barangay officials 400 401 Sec.43 (b) provides that "no local elective official shall serve for more than three (3) consecutive terms in the same position. except that of elective barangay officials. No. Sec. G. No. 186616. 43.
g. endowed with quasi-legislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution. b. Kinds Bodies set up to function in situations 1.g.402 2. by legislative enactment.406 402 403 e. Manner of creation 1. by constitutional provision.J.g. wherein the government is seeking to carry on certain of the actual business of government. wherein the government is seeking under the police power to regulate business and individuals. wherein the government is seeking to regulate business affected with public interest.404 4. 2. other than the courts and the legislature. and 3.g.405 5. SEC 100 . Administrative Law 1.g. where the government is offering some gratuity.403 3. wherein the government is performing some business service for the public. by authority of law c. Definition A body. BIR 404 e. Administrative Agencies a. Bureau of Lands e. grant or special privilege. 2. LTFRB 406 e. MWSS 405 e. General Principles Branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to the individual remedies for the violations of his rights.
g.g. but merely authority to fix details in execution or enforcement of a policy set out in law itself.6. and c. ECC e. b. Law should define or fix penalty therefor. Supplementary or detailed legislation.g. to make the government a private entity. Powers of Administrative Agencies a.410 b. Rule/regulation must be published 407 408 e. BIR Circulars Only an instruction from a higher officer to a lower officer within the same office. (1) Kinds of Administrative Rules and Regulations Legislative regulation a. Wherein the government is seeking to adjust individual controversies because of a strong social policy involved. 101 .407 7. GSIS 409 Rule Making 410 e.g.408 3. Quasi-Legislative409 Power In exercise of delegated legislative power. Law itself must declare as punishable the violation of administrative rule or regulation. It does not have to be published to be effective. Rules and Regulations Implementing the Labor Code 411 e. It has no effect of law because no clear legal right which can be invoked by a third person emanates from it. involving no discretion as to what law shall be. Contingent regulation Interpretative legislation or internal rules411 (2) Requisites for Validity a.
there is no denial of procedural due process. 283 SCRA 31) Due process in administrative context does not require trial type-proceedings similar to those in the courts of justice. Ablera v. except when it involves revocation of a license. 304 SCRA 473) Where the litigants are given the opportunity to be heard. (Melendres v. Jr. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality. Administrative body granted authority to promulgate its own rules of procedure. Reasonable opportunity to appear and defend his rights. COMELEC. 304 SCRA 216) 415 Arboleda v. 319 SCRA 262) The requirement of hearing is complied with as long as there is opportunity to be heard.(DBP v. Office of the Ombudsman. VIII. Sec. and to submit any evidence one may have in support of his defense. 4. be actual or constructive.(Ocampo v. an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. CA.413 (1) Administrative Due Process414 The essence of due process is simply to be heard. provided they do not increase diminish or modify substantive rights. Notice. (Busuego v. Quasi-Judicial412 Power Proceedings partake of nature of judicial proceedings. CA. 3. (Domingo. either through oral arguments or pleadings. NLRC. Office of the Ombudsman. 215 SCRA 476) A party who chooses not to avail of the opportunity to answer the charges cannot complain of denial of due process. (Ocampo v. v. (UP Board of Regents v. such as the issuing rules and regulations. 313 SCRA 404 ) Administrative due process cannot be fully equated to due process in its strict judicial sense. but in the performance of its executive or legislative functions. and to introduce witnesses and relevant evidence in his favor. United Harbor Pilots Association of the Philippines. CA. an administrative body need not comply with the requirements of notice and hearing. of the institution of the proceedings that may affect a person’s legal right. and subject to the disapproval by the Supreme Court. NLRC. CA. 303 SCRA 38 102 . 313 SCRA 311.it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. and not necessarily that an actual hearing was conducted. (Corona v.416 412 413 adjudicatory Art. are essential only when an administrative body exercises its quasi-judicial function. and one of competent jurisdiction.415 Administrative due process is recognized to include the right to: 1. supra) There can be no denial of due process where a party had the opportunity to participate in the proceedings but failed to do so. And a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties. 5 (5) 414 Notice and hearing as the fundamental requirements of due process. or as applied in administrative proceedings.b. 302 SCRA 362. Tiomico v. 2. 322 SCRA 17) A formal trial-type hearing is not at all times and in all instances essential to due process. COMELEC.
however. the President. by himself or through the Department Secretaries. hence. But just like in the appellate courts. he must exhaust all means of administrative redress available under the law. (Diamonon vs. appellate administrative bodies may only pass upon errors assigned. subject to the exceptions provided for by law or jurisprudence. alter. subject to the caveat that a final and executory decision is not included within the power of control. 282 SCRA 256 It refers to the review by a higher agency of decisions rendered by an administrative agency. Under the 1987 Administrative Code. V. 416 417 Air Manila. CA. Inc.419 (3) Administrative Res Judicata The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions. commenced by petition of an interested party. administrative appeals from a decision of an agency are taken to the Department Head. commenced by petition of an interested party. which will govern primarily in the absence of a specific law applicable. Balatbat. By virtue of the power of control of the president over all executive departments. modify. 497) 103 . if deemed necessary.418 may affirm. or reverse the administrative decision of subordinate officials and employees. March 7.(2) Administrative Appeal and Review Administrative Appeal417 It refers to the review by a higher agency of decisions rendered by an administrative agency. Castro 99 Phil.420Administrative proceedings are nonlitigious and summary in nature. Administrative appeals are established by the 1987 Administrative Code. res judicata does not apply. Pursuant to the doctrine of exhaustion of administrative remedies. DOLE. before a party litigant can seek judicial intervention. 418 pursuant to the “alter ego doctrine” 419 The appellate administrative agency may conduct additional hearings in the appealed case. and hence can no longer be altered by administrative review. 2000) 420 applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions (Brillantes vs. GR No. 108951. Administrative review A superior officer or department head may upon his or her own volition review a subordinate’s decision pursuant to the power of control. 38 SCRA 489 and Fabella v.
or intends to make. Inc. 191 SCRA 581.422 The action of an administrative agency in granting or denying. Licensing and Rate-Fixing Powers Fact-Finding Power The power delegated by the legislature to an administrative agency to determine some fact or state of things upon which the law makes.424 Investigative Power Licensing Power Rate Fixing Power 421 422 1 Am. permit.421 The power of an administrative agency to take into consideration the result of its own observation and investigation of the matter submitted to it for decision. 2010 424 ibid. or the law may provide that it shall become operative only upon the contingency or some certain fact or event. Administrative Law. or in suspending or revoking a license. v Board of Transportation. the ascertainment of which is left to an administrative agency. Jur. franchise. or certificate of public convenience and necessity.1991 423 De Leon. in connection with other evidence presented at the hearing of the case.423 It is the power usually delegated by the legislature to administrative agencies for the latter to fix the rates which public utility companies may charge the public. Investigative. 104 . its own action depend.c. Fact-Finding. 2d 930‐931 Pantranco South Express.
CA. Administrative action must have been completed or the principle of finality of administrative action. 426 or preliminary resort 427 The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence.4. Court of Appeals. if no motion to dismiss is filed on this ground. (Rosario v. 303 SCRA 448) And the practical reason is that administrative process I intended to provide less expensive and speedier solution to disputes. Administrative remedies must have been exhausted or the principle of exhaustion of administrative remedies. Basa. 214 SCRA 437) One of the reasons for the doctrine of exhaustion of administrative remedies is the separation of powers. there is deemed a waiver. Judicial Recourse and Review425 Doctrine of Primary Administrative Jurisdiction426 Judicial action of a case is deferred pending the determination of some issues which properly belong to an administrative body because their expertise. 184 SCRA 426) 428 Failure to exhaust administrative remedies will not affect the jurisdiction of the courts. Doctrine of Exhaustion of Administrative Remedies428 425 Requisites of judicial review of administrative action 1. Court of Appeals. CA. Inc v.427 Whenever there is an available administrative remedy provided by law. Where a statute lodges exclusive original jurisdiction in an administrative agency. Inc v. However. 105 . 211 SCRA and Baguioro v. the court will refuse to take up a case unless the agency has finally completed its proceedings. knowledge and resources are required for the resolution of factual and non-legal matters. 321 SCRA 106 and Province of Zamboanga del Norte v. he is expected to have exhausted all means of administrative redress afforded to him by law. (Lopez v. which enjoins upon the judiciary a becoming a policy of non-interference with matters coming primarily within the competence of other department. 2. which is a ground for a motion to dismiss the case. relief must first be sought and obtained in the administrative body concerned before the Court will supply the remedy. The Legal reason is that the courts should not act and correct its mistakes or errors and amend its decision on a given matter and decide it properly. no judicial recourse can be made until all such remedies have been availed of and exhausted. City of Manila. specializes skills. 342 SCRA) The application of the doctrine of primary jurisdiction does not call for the immediate dismissal of the case pending before the court. In such a case. Noncompliance with the doctrine will deprive the complainant of a cause of action. The case is merely suspended until the issues resolvable by the administrative body are threshed out and fully determined (Industrial enterprises. Before a party can invoke the jurisdiction of the courts of justice. (Roxas & Co.
106 .Doctrine of Finality of Administrative Action No resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure.
property or other substantive requirement shall be imposed on the exercise of suffrage.a person may be registered as a voter although he is less than 18 years at the time 2. initiative. Residence . Election Law 1. 429 such qualification. Age . Any person who. RA 8189) In election cases. 2. PNP or confinement or detention in government institutions. 226 SCRA 406) 107 . No literacy. (Sec. It includes within its scope: election. RTC. educational activities. (Romualdez vs. may register as voter. on the days firearms laws. plebiscite. 429 Any person who temporarily resides in another city municipality or country solely by reason of occupation. profession. of registration may not have been reached the required period of residence but who. on 3. there must concur (1) residence or bodily presence in the new locality. Disqualifications 1. 9. Insane or incompetent persons as declared the day of election shall possess by competent authority. (a) any crime involving disloyalty to 3. The residence at the place chosen for the new domicile must be actual.at least 1 year in the the government or Philippines. service in the AFP. and (3) an intention to abandon the old domicile. Suffrage The right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. Any person sentenced by the final judgment to suffer imprisonment for not less than 1 year. the Supreme Court treats domicile and residence and residence as synonymous terms. In order to acquire a new domicile by choice. Filipino citizenship. and at least 6 months where he proposes to vote immediately preceding (b) any crime against national security the election.K. Qualification and Disqualification of Voters Qualifications 1. shall not deemed to have lost his original residence. employment in public or private service. 2.(2) an intention to remain there.it may be by birth or naturalization. work in the military or naval reservations within the Philippines. referendum and recall. Any person adjudged by the final judgment of registration if he will be at least 18 on the of having committed day of election.
3.A.430 430 Sec. be conducted during the period starting 120 days before a regular election and 90 days before a special election. Registration of Voters The personal filing of application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall. 8189 108 . R. 8. however.
) No motion for reconsideration is allowed. 8189) 2. id. id. R. 39. Leaving copy in possession of sufficient discretion in residence.) Decision cannot be rendered on stipulation of facts (ibid. COMELEC [Sec. 8189) 2.) Non-appearance is prima facie evidence the registered voter is fictitious (Sec. candidate or political party affected may intervene. Rule 45 of the RoC 109 .4. 32(b). RA 8189) Exclusion – Any time except 100 days before a regular election or 65 days before special election. 33. 35 RA 8189) Procedure 1. id. R.) Any voter. Registered mail 2. Sec. id. Personal delivery 3. COMELEC [Sec. Any registered voter in city or municipality 2.A. IX-C] Exclusion 1. 2(6). (Sec. Private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of waters (Sec. R. IX – C] Period for Filing: Inclusion – Any day except 105 days before regular election or 75 days before a special election.] Manner Notice stating the place day and hour of hearing shall be served through any of the following means: 1.A. 2. 2(6). 32 (c). 35 . VIII. (Sec. 4. (ibid.) 3. 32 (f). 24. Art.) 432 Sec. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (ibid. Art. Election Officer (Sec. 8189) 4. Representative of political party 3. Parties to be notified Inclusion and Exclusion – Election Registration Board – Challenged voters [Sec. Each petition shall refer only to only one precinct. 34. Art. Inclusion and Exclusion Proceedings431 Jurisdiction Municipal or Metropolitan Trial Court Original and exclusive Jurisdiction Regional Trial Court Appellate jurisdiction (5 days)432 Supreme Court Appellate jurisdiction over RTC on question of law (15 days)433 431 Petitioners Inclusion 1.A. Petition for exclusion shall be sworn (Sec. (Sec. 33. Notice 4. 5(2)(e). id. 433 Sec. (Sec.
the Commission on Elections may resolve matters involving the ascertainment of the identity of the political party and its legitimate officers. political ideas or platforms of government and includes its branches or divisions. and 2. 161265. G.434 a. and to be entitled to the rights of political parties. 24. to entitle it to the benefits and privileges granted under the Constitution and the laws. Those that are supported by any foreign government Grounds for Cancellation of Registration: 1. regional. To acquire juridical personality. Religious sects 2. failure to obtain at least 10% of votes casts in constituency where party fielded candidates.436 434 The following political parties cannot be registered. No.R. Political Parties A political party is any organized group of persons pursuing the same ideology. and in order to participate in the party-list system. Registration In order to acquire juridical personality as a political party. 7941 110 . 435 Laban ng Demokratikong Pilipino vs.435 b. Feb. 3 (c). sectoral party or organization or a coalition of such parties or organizations.A.5. R. a political party must be registered with the COMELEC. the group must register with the Commission on Elections by filing with the COMELEC not later than 90 days before the election a verified petition stating its desire to participate in the party-list system as a national. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. Jurisdiction of the COMELEC over political parties Flowing from its constitutional power to enforce and administer all laws and regulations relative to the conduct of the election and its power to register and regulate political parties. Those which seeks to achieve their goals through unlawful means 3. 1. COMELEC. qualify for accreditation. 2004 436 Sec. accepting financial contributions from foreign governments or their agencies. Those which refuse to adhere to the Constitution 4.
6. Candidacy a. Qualifications of Candidates437 A. National 1. President and Vice President a. natural-born citizen of the Philippines, b. a registered voter, c. able to read and write, d. at least forty (40) years of age on the day of the election, and B. Local 1. An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.
e. a resident of the Philippines for at least ten (10) years immediately preceding such 2. Candidates for the position of governor, 438 election. vice-governor, or member of the sangguniang panlalawigan, or mayor, vicemayor or member of the sangguniang panlungsod of highly urbanized cities must 2. Senators be at least twenty-one (21) years of age a. natural-born citizen of the Philippines, on election day. b. a registered voter, c. able to read and write, d. at least thirty-five (35) of years of age on the day of the election, and
f. a resident of the Philippines for not less than 2 years immediately preceding the day of the election.
3. Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. 4. Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. 5. Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.
3. Congressmen – District and Party – List Representatives a. natural-born citizen of the Philippines,
Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1) 438 Art. VII, Sec. 2
b. a registered voter, c. able to read and write, d. at least twenty -five ((25) of years of age on the day of the election, and e. except the party-list representatives, a registered voter in the district in which he shall be elected, and f. a resident of the Philippines for not less than two (2) years immediately preceding the day of the election.
6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.439
b. Filing of Certificates of Candidacy (1) Effect of Filing Appointive official Any person holding an appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in GOCCs, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Such resignation is irrevocable.440 No effect. The candidate shall continue to hold office, whether he is running for the same or a different position.441 (2) Substitution of Candidates If after the last day for the filing of certificates of candidacy, an official candidate of a political party: (1) dies, (2) withdraws or is (3) disqualified for any cause a person belonging to, and certified by, the same political party may file a certificate of candidacy not later than mid‐day of election day to replace the candidate who died, withdrew or was disqualified.442
Sec.39, LGC Sec. 66 , OEC 441 Sec. 14, Fair Elections Act expressly repealed Sec. 67 of B.P. 881 442 COMELEC Reso. No. 9140
However, no substitution shall be allowed for any independent candidate.443 (3) Ministerial duty of COMELEC to receive certificate Subject to its authority over nuisance candidates and its power to deny due course to or cancel a certificate of candidacy,444 the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.445 (4) Nuisance Candidates They are candidates who have no bona fide intention to run for the office for which the COC has been filed and would thus prevent a faithful election. COMELEC may motu proprio or upon petition of an interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed: 1. to put election process in mockery or disrepute; 2. to cause confusion among voters by similarity of names of registered candidates; 3. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful determination of true will of electorate. (4) Petition to Deny or Cancel Certificates of Candidacy446 A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation
Ibid. Sec, 78, B.P. 881 445 Sec. 76, id. As early as in Abcede vs. Imperial, 103 Phil. 136, the Supreme Court said that the Commission has no discretion to give or not to give due course to a certificate of candidacy filed in due from. While the Commission may look into patent defects in the certificate, it may not go into matters not appearing on their face. Accordingly, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. Sec. 78, B.P. 881, which treats of a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false, requires that the candidate must be notified of the petition against him, and he should be given the opportunity to present evidence in his behalf. (Cipriano vs. COMELEC, G.R. No. 158830, august 10, 2004. 446 A petition filed after the election is filed out of time. (Loong vs.COMELEC, 216 SCRA 769) The COMELEC may motu proprio refuse to give due course or cancel a certificate of candidacy. (Sec. 69, BP 881) The proceeding shall be summary. (Nolasco vs. COMELEC, 275 SCRA 762) The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra) The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7, RA 6646]
6 of R. order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. No.contained therein as required447 is false. inquiry or protest and. may. The petition shall be filed by any registered candidate for the same Office within 5 days from the last day of filing of certificates of Candidacy. the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. . during the tendency thereof.A. There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election.A. Second paragraph of paragraph 2 of Res. 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. COMELEC. . and the votes cast for him shall not be counted. upon motion of the complainant or any intervenor. the administrative. (Perez vs. which required only a preponderance of evidence to prove disqualification. and the criminal. before the deadline for filing certificates of candidacy.450 the same by Before final judgment 447 448 under Section 74 of the Omnibus Election Code Secs. as in this case. prior to the election. OEC) There was no withdrawal of candidacy for the position of mayor where the candidate. which necessitates proof beyond reasonable doubt to convict. Sec. R.448 (5) Effect of Disqualification After final judgment Any candidate who has been declared by final judgment to be disqualified shall not be voted for. 6. . not later than 15 days before the election. 5 (a) and 7. 450 Sec. after due notice and hearing. 6646 449 Sec. 317 SCRA 641) A disqualification case may have two aspects. 73. The petition may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided.449 (6) Withdrawal of Candidates A person who has filed a CoC may. asked for his certificate of candidacy and intercalated the word “vice” before the word mayor and the following day 114 . withdraw submitting to the COMELEC a written declaration under oath. If for any reason a candidate is not declared by final Judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election the Court or Commission shall continue with the trial and hearing of the action. 2050 provides that where a complaint is filed after the election but before proclamation. id. personally appeared in the COMELEC office.
(Vivero vs. 83 SCRA 633) 453 Sec.P. Persons who hold contracts or sub-contracts to supply the government with goods and services. COMELEC. 881 454 Sec. L-81150. to engage in an election campaign or partisan political activity except during the campaign period. Premature Campaigning It shall be unlawful for any person. Campaign a. 000 by the government or any of its subdivisions or instrumentalities 6. Prohibited Contributions Those made directly or indirectly by any of the following: 1. where an operator of a public utility disguised a contribution to a candidate for governor as loan. Public utilities and those who exploit natural resources452 3. in effect. Jan 12. and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath. or association of persons. 1989) Since his certificate of candidacy for the office of board member was filed by his party. Persons granted loans in excess of P25. the promissory note is void: (Halili vs. 1992) 451 Sec. 36 (9). Persons granted franchises. Jan 12. COMELEC. Schools which received grants of public funds of at least P100.P. 881 452 Thus. 4. Public or private financial institutions 2. B. Corp. 80. exemptions or similar privileges by the government 5. whether or not a voter or candidate. Court of Appeals. 95 . 8. incentives.451 b. Foreigners and foreign corporations453 9. L – 81059. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was. a rejection of the party nomination on his behalf for the office of board member. B. Corporations454 wrote the election registrar saying that his name be included in the list of official candidates for mayor. Code 115 .000 7.7. 73. Employees in the Civil Service or members of the Armed Forces. or for any party. there was substantial compliance with Sec. (Ramirez vs.
Forms 2. Other forms of election propaganda not prohibited by the Omnibus Election Code and R.456 Prohibited Campaign 1.” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. cards. Cloth. Broadcast Media National Positions: 120 minutes for TV. Public exhibition of a movie. may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally. 2.457 455 456 Sec. allowed in announcing at the site on the occasion of a public meeting or rally. 9006. decals. 2. Pamphlets. stickers and written or printed materials not more than 8 ½ inches by 14 inches 3. posters measuring. Handwritten/printed letters 4. If the broadcast is given free or charge by the radio or television station. paper or cardboard. Public exhibition of a movie. Paid print advertisements: ¼ page in broadsheets and ½ pages in tabloids thrice a week per newspaper. 90 minutes for radio 7. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party.A.A. 3. 9006 Requirement 1. it shall be identified by the word “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the broadcast entity.c. 116 . 4. cinematograph or documentary portraying the life or biography of a candidate during campaign period. and authorized by the COMELEC. magazine or other publication during the campaign period. 180 minutes for radio Local Positions: 60 minutes for TV. leaflets. cinematograph or documentary portrayed by an actor or media personality who is himself a candidate. R. Lawful and prohibited election propaganda Lawful propaganda 1.455 6. 5. not more than 2 feet by 3 feet 3 by 8 ft. Any published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words “political advertisement paid for.
d. Limitations on expenses Candidates a. President and vice president – P10 per voter b. Other candidates – P3 per voter in his constituency c. Candidate without political party – P5 per voter d. Party/organization and coalition participating in the party – list system – P5 per voter Political party and coalition P5 per voter in the constituency where it has candidates.458
e. Statement of contributions and expenses Every candidate and treasurer of political party shall, within 30 days after day of election, file offices of COMELEC the full, true and itemized statement of all contribution and expenditures in connection with election. A candidate who withdraws his certificate of candidacy must still file a statement of contributions and expenditures, for the law makes no distinction.459
3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. (Sec. 4, R.A. 9006) 457 Scope 1. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid (Adiong vs. COMELEC, 244 SCRA 272) 2. Mass media may report news relating to candidates, and mass media practitioners may give their opinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1) 458 Sec. 13, R.A. 7166 459 Pilar vs. COMELEC, 245 SCRA 759
8. Board of Election Inspectors and Board of Canvassers a. Composition Board of Election Inspectors A chairman and two members, all of whom are public school teachers. 460 Board of Canvassers Provincial: 1. The provincial election supervisor or a lawyer in the regional office of the COMELEC, as chairman, 2. The provincial fiscal, as vice chairman, and 3. The provincial superintendent of schools as member.461 City: 1. The city election registrar or a lawyer of the COMELEC, as chairman, 2. The city fiscal, as vice chairman, and 3. The city superintendent of schools, as member.462 Municipal: 1. The election registrar or a representative of the COMELEC, as chairman, 2. The municipal treasurer, as vice chairman, and 3. The most senior district school
If there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence may be appointed (Sec. 13, R.A. 6646) 461 In case of non-availability, absence, disqualification or incapacity, substitute members are the following, in the order named: 1. Provincial auditor, 2. Register of Deeds, 3. Clerk of Court nominated by the Executive Judge, and 4. Any other available appointive provincial official. 462 Substitute members are officials in the city corresponding to the substitutes in the provincial board of canvassers
supervisor, or in his absence, a principal of the school or the elementary school, as member.463 b. Powers Board of Election Inspectors 1. Conduct the voting and counting of votes In the polling place; 2. Act as deputies of the COMELEC in supervision and control of the polling place; 3. Maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders, and 4. Perform such other functions as prescribed by the Code or by the rules of the COMELEC. Board of Canvassers It has only the ministerial task of compiling and adding the results as they appear in the returns transmitted to it.464
9. Remedies and Jurisdiction in Election Law a. Petition Not to Give Due Course to Certificate of Candidacy May be filed by the person exclusively on the ground that any material contained therein as required465 is false. representation
The/petition may be filed at any time not later than 25 days from the time of the filin g of the certificate of candidacy and shall be decided, after due notice and hearing, not later than 15 days before the election.466
Substitute members are the municipal administrator, municipal assessor, clerk of court nominated by the Executive Judge, or any other available appointive municipal officials 464 Guiao vs. COMELEC, 137 SCRA 366 465 under Section 74 of the Omnibus Election Code Requirements: 1.Material misrepresentation in the qualifications for elective office, which includes age, residency citizenship, and any other legal qualifications necessary to run for an elective office; and 2.Deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candida te ineligible. These two requirements must concur to warrant the cancellation of the certificate of candidacy. 466 Sec. 78, id.
Nos. In the third instance. To require the COMELEC to examine the circumstances surrounding the preparation of the returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. (Pasandalan vs. 107814‐15. namely: a. or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect.b. custody or canvass of the election returns cause a failure to elect. G. the location of polling places shall be the same as that of the preceding regular election. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure. (Sec. the election is suspended. July 3. Comelec. 1996) 468 What is common in these three instances is the resulting failure to elect. 6. or other analogous causes. (Cawasa vs. 2002) The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. transmission. terrorism. COMELEC. (Sec. fraud or other analogous causes. B. 7166) The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held.R. July 18. b. infra) A pre-proclamation controversy is limited to an examination of the election returns on their face. However.R. violence.R. The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure. and c. terrorism. The office of pre-proclamation controversy is limited to incomplete. or any matter raised under Sections 467 The COMELEC has the power to declare a failure of election and this can be exercised motu proprio or upon verified petition. G. circumstances attending the preparation. Where the resolution of the issues raised would require the COMELEC to “pierce the veil” of election returns that appear prima facie regular. violence. The election in any polling place has not been held on the date fixed on account of force majeure. R. changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. Petition to Declare Failure of Elections467 There are only 3 instances where a failure of elections may be declared. No. terrorism. falsified or materially defective returns which appear as such on the face. violence. or other analogous causes. suspended. (Sebastian VS COMELEC. May 16. fraud. 327 SCRA 406) 120 . the remedy is a regular election protest. No. fraud.P.(CHU. no election is held while in the second. The term failure to elect means nobody emerged as a winner. Comelec.A. 4. the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns. 150312. 150469. 881) In such election.468 c. (Loong v. Pre-Proclamation Controversy469 Any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission. G. 2002) 469 In pre-proclamation controversy. In the first instance.The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities.
custody and appreciation of the election returns. The board of canvassers was improperly constituted. illegal acts committed before. disloyalty to the Republic of the Philippines Time to file Within 10 days from the proclamation of the results of the election Time to file Within 10 days from the proclamation of the results of the election 10. Grounds 1.470 d. 2. as when the Municipal Treasurer took over the canvassing without having been designated. during or after the casting and counting of votes e. Grounds 1.230 SCRA 54) 2. Quo Warranto Filed by any registered voter in the constituency. irregularities or 4.233. if he did not explain why. 881 Omnibus Election Code) 121 . (Saman vs.319 SCRA 482 The filing of an election protest results in abandonment of a pre-proclamation case even if the protest alleged it was filed as a precautionary measure. COMELEC.276 SCRA 405) The rule that the filing of a protest implies abandonment of the pre-proclamation case does not apply if: 1. COMELEC. Election Protest471 Maybe filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office. 235 and 236 in relation to the preparation. transmission. COMELEC.(Laodenio vs. 265. COMELEC.P. Ineligibility or 2. 234. receipt. The protest was filed as a precautionary measure (Mitmug vs. terrorism. Prosecution of Election Offenses The COMELEC is vested with the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and prosecution of election offenses punishable under the Omnibus Election Code.472 470 471 Chu vs.224 SCRA 631) 472 (Sec. Fraud. 3. B.
Local Governments 1.L. Classifications Quasi-Corporations Public corporations created agencies of State for narrow and limited purpose. general corporation law as a stock or non‐ stock corporation b. Concept One formed and organized for the government of a portion of the State. Who creates By the state either by general or special act By Congress or by incorporators How created By legislation 1. Public Corporations a. (1) Distinguished from Government-Owned or Controlled Corporations (GOCCs) Public corporation Purpose Administration of local government Performance of functions relating to public needs whether Governmental or Proprietary in nature. GOCCs 122 . Municipal Corporations as body politic and corporate constituted by incorporation A of inhabitants of city or town for purposes of local government thereof or as agency of State to assist in civil government of the country. one formed and organized for the government of a portion of the State. Original charters or special laws or 2.
it exercises by delegation a part of the sovereignty of the State. Elements 1. Requisites for Creation. 123 . Conversion. Legal creation or incorporation 2. c. Functions Public/Governmental It acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits. Municipal Corporations a. It acts as a separate entity for its own purposes and not as a subdivision of the State. Corporate name 3. Territory b. As such. it stands for the community in the administration of local affairs. Nature and Functions Nature Every local government unit created or organized is a body politic and corporate endowed with powers to be exercised by it in conformity with law. it shall exercise powers as political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory.2. performing functions not strictly governmental or political. Division. Inhabitants 4. Private/Proprietary It acts in a similar category as a business corporation. Merger or Dissolution Creation and Conversion Plebiscite requirement473 Must be approved by majority of the votes cast in a plebiscite called for such purpose in the political unit or units directly affected. Must be sufficient on acceptable standards to provide for all essential government facilities and services and Income requirement 473 The plebiscite must be participated in by the residents of the mother province in order to conform to the constitutional requirement.
5M Population requirement To be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned. Province – 2. Municipality – 25K c. Metro Manila ii. 124 . Area requirements are: a. The required minimum population shall be: a. 450. Average annual income for the last consecutive year should be at least: a. City – 150K d. Province – P 20M b. and sufficient to provide for such basic services and facilities. 7160 476 Sec.special functions commensurate with the size of its population as expected of the local government unit concerned. Municipality – P 2.A. unless it comprises two or more islands or is separated by a local government unit. Province – 250K Land requirement Must be contiguous. 442. Highly Urbanized City – P 50M c. City – 100 sq. properly identified by metes and bounds. R. id. Barangay – 2K But 5K in: i. 9009 amending Sec. km476 c. Municipality – 50 sq.km477 474 475 100M R.A.000 sq. km475 b. Highly urbanized cities b. City – P 20M474 d. 450 of LGC Sec.
479 3. the law or.Division and Merger The division and merger of local government units shall comply with the same requirements for their creation. the income classification of the original local government unit shall not fall below its current income classification prior to such division. ibid Effects of Division of LGUs: On the legal existence of the original corporation: The division of municipal corporation extinguishes the corporate existence of the original municipality. powers. when a municipal corporation is divided into two or more municipalities. On the property.” 4. Principles of Local Autonomy Local Autonomy is self-governing. municipality.478 Abolition A local government unit may be abolished when its income. which interfere with personal liberty or property to promote the general welfare or the common good. 461. The principle of local autonomy under the 1987 Constitution simply means decentralization. as certified by the national agencies to Congress or to the Sanggunian concerned. It is the granting of more powers. 479 Sec. responsibilities and resources to the lower or local levels of a government system. each municipality acquires title to all the property. Powers of Local Government Units (LGUs) a. 125 . ordinance abolishing an LGU shall specify the province. 478 Sec.8. or barangay with which the local government unit sought to be abolished will be incorporated or merged. Police Power480 The power of promoting public welfare by restraining and regulating the use of liberty and property. 477 Sec. powers and rights of the original corporation: Unless the law provides otherwise. authority. Likewise. The income. It does not make the local government sovereign within the state or an “imperium in imperio. id. population or land area shall not be reduced to less than the minimum requirements. Likewise. city. rights and obligations falling within its territorial jurisdiction.9. population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under the LGC. ibid 480 General Welfare Clause Police power concerns government enactments.
as follows: 1. 3.482 c. or square falling within its jurisdiction. and charges shall accrue exclusively to the local governments (Sec. X. For public use or purpose or welfare.485 481 Private property already devoted to public use can still be a subject of expropriation by Congress but not by LGUs. fees. and charges subject to such guidelines and limitations as the Congress may provide. Eminent Domain The power to expropriate private property has been delegated by Congress to LGUs under Section 19. Only after a valid and definite offer had been made to. Art. private property. Adequate provision for the maintenance of public safety must be made. taking. park. (Heirs of Suguitan vs. thus. just compensation and due process of law. permanent or temporarily close or open any local road. R.b. for the support of government and for all public needs.) 485 Sec.484 d. LGC. 292 SCRA 676) 483 The power to tax is inherent. public use. 328 SCRA 137) An LGU may immediately take possession of the property upon filing of expropriation proceedings and deposit in court of 15% of the FMV of the property. and adequate substitute for the public facility shall be provided. 484 Each local government unit shall have the power to create its own sources of revenues and to levy taxes. provided that in case of permanent closure. and when necessary. An LGU shall file a complaint for expropriation on the strength of an ordinance and not a mere resolution passed by the Sanggunian (Municipality of Paranaque vs. 126 . Exercised only by the local chief executive. consistent with the basic policy of local autonomy. 1987 Cons. 7160 Additional limitations in case of permanent closure: i. such ordinance must be approved by at least 2/3 of all the members of the sanggunian. alley. acting pursuant to a valid ordinance.481 The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress. VM Realty Corp. it need not be granted by the constitution. 482 The additional limitations on the exercise of the power of eminent domain by LGUs are. pursuant to an ordinance. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity. and not accepted by. 21. 2. Taxation is the method by which these contributions are exacted. The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated prior to the filing of the complaint for eminent domain with the proper court. and not after the court shall have determined the amount of just compensation to which the defendant is entitled. City of Mandaluyong. Such taxes. fees. the owner. 5. Closure and Opening of Roads A local government unit may. Taxing Power483 Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty. for the benefit of the poor and the landless.. 4.A.
except when the City Councilors. but may regulate trade which is not illegal per se. public rallies. Must be general in application and consistent with public policy. Corporate Powers 1) To Sue and Be Sued The rule is that suit is commenced by the local executive.486 f. Must not prohibit. It may be exercised by all registered voters of the provinces. Must not be unreasonable. bring the action to prevent unlawful disbursement of City funds. but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed.e. etc. cities. Must not be unfair or oppressive. v. Must not contravene the Constitution and any statute. The Comelec shall certify and proclaim the results of the said referendum.488 Local referendum It is the legal process whereby the registered voters of the local government units may approve. 47 SCRA 325. Temporary closure may be made during an actual emergency. municipalities and barangays. Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. 45 days (in case of municipalities) and 30 days (in case of barangays). and vi. 486 The power of local initiative shall not be exercised more than once a year. Cuison. Must not be partial or discriminatory. 488 City Council of Cebu vs. upon the authority of the Sanggunian. enact or amend any ordinance. (2) Local Initiative and Referendum Local Initiative It is the legal process whereby the registered voters of a local government unit may directly propose. iv. ii. 487 The local referendum shall be held under the control and direction of the Comelec within 60 days (in case of provinces). 127 . amend or reject any ordinance enacted by the sanggunian. ii.487 ii. fiesta celebrations. Legislative Power (1) Requisites for Valid Ordinance i. by themselves and as representatives of or behalf of the City.
2) To Acquire and Sell Property i. The local government unit may acquire real or personal, tangible or intangible property, in any manner allowed by law489 ii. The local government unit may alienate only patrimonial property, upon proper authority. iii. In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property.490 iv. Town plazas are properties of public dominion; they may be occupied temporarily, but only for the duration of an emergency.491 v. A public plaza is beyond the commerce of man, and cannot be the subject of lease or other contractual undertaking. And, even assuming the existence of a valid lease of the public plaza or part thereof, the municipal resolution effectively terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract.492 3) To Enter Into Contracts (a) Requisites i. The local government unit has the express, implied or inherent power to enter into the particular contract. ii. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sangguniang concerned. iii. The contract must comply with certain substantive requirements, i.e., when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds. iv. The contract must comply with the formal requirements of written contracts, e.g., the Statute of Frauds.
e.g., sale, donation, etc Salas vs. Jarencio, 48 SCRA 734; Rebuco vs. Villegas, 55 SCRA 656 491 Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, 102 Phil. 866 492 Villanueva vs. Castaneda, 154 SCRA 142
(b) Ultra Vires Contracts When a contract is entered into without compliance with the first and the third requisites,493 the same is ultra vires and is null and void. Such contract cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is noncompliance with the second and/or fourth requirements above. Ratification may be express or implied. g. Liability of LGUs Specific provisions making LGUs liable: a. Liability for damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.494 b. The local government unit 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.495 c. The State is responsible when it acts through a special agent.496 d. The local government unit 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 prosecution in case of danger to life and property.497 Liability for Tort. a. If the local government unit is engaged in governmental functions, it is not liable. b. If engaged in proprietary functions, local government unit is liable. h. Settlement of Boundary Disputes Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end: a. Boundary disputes involving two or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned. b. Boundary disputes involving two or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.
supra Sec. 24, R.A. 7160 495 Art. 2189, NCC 496 Art. 2180, par.6, id. 497 Art. 34, id.
c. Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned. d. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.498 i. Succession of Elective Officials Rules:499 A. Permanent vacancies: A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is permanently incapacitated to discharge the functions of his office. a. Governor and Mayor i. Vice Governor and Vice Mayor ii. Sanggunian members according to ranking b. Punong barangay i. Highest ranking sanggunian member ii. Second highest ranking sangguniang barangay member c. Ranking in the sanggunian shall be determined on the basis of the proportion of the votes obtained to the number of registered votes in each district. d. Ties will be resolved by drawing of lots.500 e. Sanggunian: i. Provinces, highly urbanized cities and independent component citiesappointment by the President
ii. Component city and municipality- appointment by governor iii. Sangguniang barangay- appointment by mayor iv. Except for the sangguniang barangay, the appointee shall come from the political party of the member who caused the vacancy.501
Sec. 118 a-d, R.A. 7160 Secs. 44-46, id. 500 Sec. 44, id. 501 A nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and
6. foreign citizenship or residence or the status of elective barangay officials. 45. if the respondent is an elective local official of a component city or municipality. panlungsod. the appointee shall be recommended by the sanggunian. Vacancy in the representation of the youth and the barangay in the sanggunian shall be filled by the official next in rank of the organization. The appointee for the sangguniang barangay shall be recommended by the sangguniang barangay.v. id. (b) Jurisdiction 1. a highly urbanized or an independent component city. 2. Application for. or acquisition of. or dereliction of duty. gross negligence. 7.502 j. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor. 2. misconduct in office. 4. bayan and barangay. Dishonesty. whose decision shall be final and executory. suspended. By the governor. 131 . Disloyalty to the Republic of the Philippines. 502 Sec. Abuse of authority. By the President. Unauthorized absence for 15 consecutive working days. if the respondent is an elective official of a province. 5. Discipline of Local Officials (1) Elective Officials (a) Grounds An elective local official may be disciplined. If the member does not belong to any party. shall be filed before the sangguiniang panlungsod or sangguniang bayan concerned. vii. except in the case of members of the sangguniang panlalawigan. certificate shall be null and void and shall be a ground for administrative action against the official concerned. or removed from office on any of the following grounds: 1. Culpable violation of the Constitution 3. oppression. vi.
the same law authorizes a preventive suspension of six months (Hagad vs.R. 108072. 2. By the mayor. Gozo-Dadole. 1995). 132 . he cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension. and in the event several administrative cases are filed against the respondent. a highly urbanized or an independent component city. By the President. By the mayor. pursuant to R. 12. Dec. if the respondent is an elective local official of a component city or municipality.3. No. By the governor. and 3. (c) Preventive Suspension Who may impose 1.A. there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.503 When may be imposed At any time: 1. if the respondent is an elective official of the barangay. When the evidence of guilt is strong. if the respondent is an elective official of a province. if the respondent is an elective official of the barangay. 3. After the issues are joined. 2. G. Given the gravity of the offense. 6770.504 503 The authority to preventively suspend is exercised concurrently by the Ombudsman. 504 Provided that any single preventive suspension shall not extend beyond 60 days.
the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer. Decisions of the Office of the President shall be final and executory. 509 Secs. where such act was committed in the workplace or where there is final conviction in a criminal case 508 In the barangay. in the case of decisions of component cities’ sangguniang panlungsod and the sangguiniang bayan. 469-490. (f) Doctrine of Condonation Condonation by the people of the offense when an incumbent official is reelected. (2) Appointive Officials508 Officials common to all Municipalities. 7160 Common Grounds 507 liability for gross misconduct may arise when the act.A. in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Accountant 505 506 Sec.(d) Removal A verified complaint against any erring local elective official shall be filed to the Office of the President if the official is of the province or city. Gross Negligence (e) Administrative Appeal Decisions may. be appealed to: 1. Secretary to the Sanggunian b. or to the Sangguniang Bayan or Panlunsod in case of barangay officials. Abandonment 4. although not one of the official duties.507 2. within 30 days from receipt thereof. although other officials of the barangay may be appointed by the punong barangay. Treasurer c. Gross Misconduct: irregularity in official duties. R. The Office of the President. The sangguniang panlalawigan. to the Sangguniang Panlalawigan in case municipal elective officials. Dishonesty 3.505 Grounds:506 1. R. 2.A. 61. Cities and Provinces509 a. 7160 133 . Assessor d.
Information Officer q. Social Welfare and Development Officer n. Environment and Natural Resources Officer o. Cooperatives Officer r. General Services Officer k. Limitations on Recall: 1. 510 The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. 2. 134 . 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. Civil Registrar j.by the registered voters of a local government unit to which the local elective official subject to such recall belongs. Agriculturist m. Recall shall be effective upon the election and proclamation of successor receiving the highest number of votes. Architect p. Administrator k. By whom exercised. Budget Officer f. The official sought to be recalled is automatically a candidate. Recall510 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. Population Officer s.e. Health Officer i. Engineer h. Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. Legal Officer l. Planning and Development Coordinator g. Veterinarian t. 1.
The term of office of barangay officials and members of the sangguniang kabataan shall be for five years. Term Limits Three (3) years. because of the death of the Mayor.515 511 composed of the following: i. By the registered voters of the local government unit512 l. all elective municipal officials in the district. 512 Initiation of recall by registered voters: Recall of a provincial. City level: All punong barangay and sangguniang barangay members in the city.R. municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. Procedure for initiating recall by preparatory recall assembly: A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. G. became Mayor in 1989. vice mayors and sanggunian members of the municipalities and component cities. 133495. Any other subsequent election. and in cases where sangguniang panglungsod members are elected by district. Comelec. Legislative district level: Where sangguniang panlalalwigan members are elected by district. 3.514 After three consecutive terms. No. which shall begin after the regular election of barangay officials on the second Monday of May. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for that purpose. Two modes of initiating recall: i.513 The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. 1997. may still be eligible to run for the position of Mayor in 1998. city. even if elected as such in 1992 and 1995. No. except that of elective barangay officials. a person who was elected Vice Mayor in 1988 and who. iv. Comelec. By a preparatory recall assembly511 ii. ii. all elective barangay officials in the district. 1992. 1998 515 Socrates vs.R. G. Sept. Municipal level: All punong barangay and sangguniang barangay members in the municipality. 8524 514 Borja v. 2002 135 . Recall of provincial. Thus. No local elective official shall serve for more than three consecutive terms in the same position. November 12.A. 154512. iii. like a recall election is no longer covered by the prohibition. Provincial level: All mayors. 513 R.2. an elective local official cannot seek immediate reelection for a fourth term. or such date as may be provided by law. starting from noon of June 30.
petroleum. when the national interest dictates. ecology. 75 Phil 890) 518 Sec. by law. developed. upon recommendation of the economic and planning agency. 212 US 449). reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens. Private corporations or associations may not hold such alienable lands of the public domain except by lease. waters. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted.universal feudal theory that all lands were held from the Crown (Holmes. and not to exceed one thousand hectares in area. Regalian Doctrine517 All lands of the public domain. Nationalist and Citizenship Requirement Provisions Lands of the public domain are classified into agricultural. homestead. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. Citizens of the Philippines may lease not more than five hundred hectares. Art. mineral lands and national parks.518 The Congress shall. 2. and development. forest or timber. and other natural resources are owned by the State. domestic materials and locally produced goods. 12 136 . renewable for not more than twenty-five years. 2. for a period not exceeding twenty-five years. Insular Government. and adopt measures that help make them competitive. Cariño v.520 516 517 Art. fisheries.M. all forces of potential energy. the State shall give preference to qualified Filipinos. the Congress shall determine. and other mineral oils. Alienable lands of the public domain shall be limited to agricultural lands. In the grant of rights. wildlife. or such higher percentage as Congress may prescribe. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. (Oh Cho v. flora and fauna. or leased and the conditions therefor. or grant. 10 520 Sec.519 The State shall promote the preferential use of Filipino labor. certain areas of investments. coal. Taking into account the requirements of conservation. XII Sec. 3 519 Sec. the size of lands of the public domain which may be acquired. or acquire not more than twelve hectares thereof. and subject to the requirements of agrarian reform. privileges. and concessions covering the national economy and patrimony. Director of Land. by purchase. minerals. XII . National Economy and Patrimony516 1. held. Exception: any land in the possession of an occupant and of his predecessors-in-interest since time immemorial. forests or timber.
The Congress may. or repeal by the Congress when the common good so requires. allow small-scale utilization of natural resources by Filipino citizens. based on real contributions to the economic growth and general welfare of the country. Exploration. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital. certificate. Development and Utilization of Natural Resources The exploration. or it may enter into co-production. or production-sharing agreements with Filipino citizens. beneficial use may be the measure and limit of the grant.521 3.The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. bays. and under such terms and conditions as may be provided by law. and reserve its use and enjoyment exclusively to Filipino citizens. In such agreements. lakes. In cases of water rights for irrigation. and other mineral oils according to the general terms and conditions provided by law. 2 137 . and exclusive economic zone. development. or industrial uses other than the development of waterpower. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration. 521 522 Sec. The State may directly undertake such activities. or authorization be exclusive in character or for a longer period than fifty years. The State shall protect the nations marine wealth in its archipelagic waters. renewable for not more than twenty-five years. by law. within thirty days from its execution. fisheries. joint venture. alteration. water supply. at least sixty per centum of whose capital is owned by such citizens. The State shall encourage equity participation in public utilities by the general public. and utilization of minerals. Authority and Certificates for Public Utilities No franchise. and utilization of natural resources shall be under the full control and supervision of the State. or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines. petroleum. or corporations or associations at least 60 per centum of whose capital is owned by such citizens. development. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment. Such agreements may be for a period not exceeding twenty-five years. and lagoons. The President shall notify the Congress of every contract entered into in accordance with this provision. certificate. territorial sea. 13 Sec. the State shall promote the development and use of local scientific and technical resources. as well as cooperative fish farming. with priority to subsistence fishermen and fish workers in rivers. nor shall such franchise. Franchises.522 4.
14 527 Sec. Organization and Regulation of Corporations. 6 528 Sec. high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. professionals. 11 Sec. managers. Individuals and private groups. Acquisition.526 7. Restraint of Trade and Unfair Competition The State shall regulate or prohibit monopolies when the public interest so requires. and all economic agents shall contribute to the common good. corporations.and all the executive and managing officers of such corporation or association must be citizens of the Philippines. cooperatives. and similar collective organizations. and operate economic enterprises. save in cases prescribed by law. Practice of Professions The sustained development of a reservoir of national talents consisting of Filipino scientists.524 Notwithstanding the provisions of Section 7 of this Article. 19 138 . entrepreneurs. including corporations. 7 525 Sec. Private and Public The use of property bears a social function. subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. shall have the right to own. Monopolies. 8 526 Sec. no private lands shall be transferred or conveyed except to individuals. The State shall encourage appropriate technology and regulate its transfer for the national benefit. establish. a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands. The practice of all professions in the Philippines shall be limited to Filipino citizens.528 523 524 Sec. or associations qualified to acquire or hold lands of the public domain. Ownership and Transfer of Public and Private Lands Save in cases of hereditary succession. No combinations in restraint of trade or unfair competition shall be allowed. 525 6.523 5.527 8. subject to limitations provided by law.
use and disposition of property and its increments. Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority. education. 3. Concept of Social Justice Social Justice as envisioned by the Constitution: . Exercise visitorial powers over jails. 4. 529 530 Art. all forms of human rights violations involving civil and political rights. as well as Filipinos residing abroad.equitable diffusion of wealth and political power for common good. 2.N. 531 composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. prisons. Commission on Human Rights531 Powers and functions: 1. Social Justice and Human Rights529 1.creation of economic opportunities based on freedom of initiative and self-reliance. Adopt its operational guidelines and rules of procedure. Establish a continuing program of research. Monitor the Philippine Government's compliance with international treaty obligations on human rights. and . and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection. id. . 1 and 2. 6. Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights. Investigate. Provide appropriate legal measures for the protection of human rights of all persons within the Philippines. and information to enhance respect for the primacy of human rights. or their families.regulation of acquisition.530 2. or detention facilities. 7.Secs. 139 . ownership. XIII . on its own or on complaint by any party. 5. and cite for contempt for violations thereof in accordance with the Rules of Court. 8.
Perform such other duties and functions as may be provided by law. Appoint its officers and employees in accordance with law. 10. bureau.532 532 Sec. 18 140 . and 11. Request the assistance of any department. office. or agency in the performance of its functions.9.
right to enjoy in school the guarantee of the Bill of rights534 533 Freedom to determine for itself on academic grounds: a. c. freedom in the classroom in discussing his subject. Culture and Sports 1. Academic Freedom Aspects: 1. April 3. to the student . the University of the Philippines has the prerogative to determine who may teach its students. and d. limited by his special position in the community. Science. freedom in research and in the publication of the results. As part of its constitutionally enshrined academic freedom. Technology. how shall it be taught. Dames. 2001) 534 Non v. December 15. 2000). 127930. GR No. b. CA.O. freedom from institutional censorship or discipline. what may be taught. who may teach. who may be admitted to study (Miriam College Foundation v.(UP v. 185 SCRA 523 141 . 3. Education. Civil Service Commission. to the faculty a. c. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules. b. to the institution – to provide that atmosphere which is most conducive to speculation. subject to the adequate performance of his other academic duties.533 2. Arts. experimentation and creation. less controversial matters which bear no relation to the subject. GR No.132860.
Obligations Erga Omnes A legal term describing obligations owed by states towards the community of states as a whole. and racial discrimination.536 are entitled to The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case. In contemporary International law. as also from the principles and rules concerning the basic rights of the human person.P. and thus all States invoke responsibility for breach of such an obligation. where it said: "An essential distinction should be drawn between the obligations of a State towards the International community as a whole. Public International Law 1. from the outlawing of acts of aggression. and slavery 142 . Jus Cogens A norm accepted and recognized by the international community/of States as a whole as a norm from which no derogation is permitted and which canbe modified only by a subsequent norm of general international law having the same character. torture. Vienna Convention on the Law of Treaties Examples: (1) prohibition against the unlawful use of force. ICJ 1970 537 Art. they are obligations erga omnes. By their very nature the former are the concern of all States.. for example. In view of the Importance of the rights Involved.. a. and of genocide. Concepts It is a body of legal principles. Some of the corresponding rights of protection have entered Into the body of general international law.537 535 536 Examples of erga omnes norms include piracy." b. and those arising vis-a-vis another State In the field of diplomatic protection. slavery. others are conferred by International Instruments of a universal or quasi universal character. genocide. (2) prohibition against piracy. which apply between sovereign states and such other entities as have been granted international personality. Such obligations derive.. The body of legal rules.535 All states have a legal interest in its compliance. all States can be held to have a legal Interest In their protection. Case Concerning The Barcelona Traction. genocide. 53. norms and processes which regulates the relations of States and other international persons and governs their conduct affecting the interest of the international community as a whole. Including protection from slavery and racial discrimination.
National law A law or group of laws that apply to a single country or nation. natural or juridical. in certain circumstances.c. 2. their relations with persons. to simply decide the case based upon a balancing of the equities. Breach of which entails individual Responsibility. International and National Law International Law The law that deals with the conduct of states and international organizations. Resolved thru state‐to‐state transactions. Regulates relation of state and other international persons.538 This is the basis for a decision by an international tribunal on the grounds of justice and fairness . within a determined territory and its inhabitants. Derived principally from treaties. Consists mainly of enactments from the lawmaking authority of each state. their relations with each other and. Redressed thru local administrative and judicial processes. international customs and general principles of law. not on considerations of existing law. Collective responsibility because it attaches directly to the state and not to its nationals. Issued by a political superior for observance. Regulates relations of individuals among themselves or with their own states. Concept of Aeguo Et Bono It is a judgment based on considerations of fairness.539 Adopted by states as a common rule of Action. 538 539 Brownlie. that is. 2003 American Third Restatement 143 .equity overrides all other rules of law.
FAO. Secondary Sources a.a practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. estoppel. and capable of entering into international relations with other states.mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just. States A state is a group of people. Writings and teachings of the most highly qualified publicists of various nations. Subjects A subject of international law is an entity with capacity of possessing internationa l rights and duties and of bringing international claims.541 540 541 e. b. International Organizations May be vested with international personality. Treaties. Custom. living together in a fixed territory. organized for political ends under an independent government. Decisions of international tribunals b.g. provided that they are non-political and are autonomous and not subject to control by any state.3. is not coupled with the conviction that it is obligatory and right. a. c.the general rule is that the treaty to be considered a direct source of international law. prescription. Custom is distinguished from usage in that the latter while also a long established way of doing things by states. b. ILO. it must be concluded by sizable number of states and thus reflect the will or at least the consensus of the family of nations. General Principles of Law.540 4. Sources Primary a. res judicata and pacta sunt servanda e. consent. WHO 144 .g.
from which he can claim protection and whose laws he is obliged to obey. powerless to assert any right that otherwise would be available to him under international law where he is a national of a particular state.546 542 543 See Reference As a rule.544 7. Nationality and Statelessness Nationality Membership in a political community with all its concomitant rights and obligations. individuals have been considered merely as objects. 145 . Statelessness The condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. although they may not have participated in the negotiation of the agreements. of international law. 1969 545 An individual acquires the nationality of the state where he is born jure soli or the nationality of his parents jure sanguinis. which is entered into by states or entities possessing the treaty-making capacity. have been allowed by its term to sign it later by a process known as accession. Treatment of Stateless Individual . Any wrong suffered by him through the act of omission of a state would be damnum absque injuria for in theory no other state had been offended and no international delinquency committed as a result of the damage caused upon him. a treaty is binding only on the contracting parties. Treaties Treaty is a formal agreement. Individuals Although traditionally. not subjects.c. from the traditional viewpoint. for the purpose of regulating their mutual relations under the law of nations. they have also been granted a certain degree of international personality under a number of international agreements. 5. including not only the original signatories but also other states which.international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state. usually but not necessarily in writing. 544 Vienna Convention on the Law of Treaties. 546 A stateless individual is.545 It is the tie that binds the individual to his State. Diplomatic and Consular Law542 6.543 An international agreement concluded between states in written form and governed by international law whether embodied in a single instrument or in two or more related instruments.
Genocide is not a political offense.548 3. Political and religious offenders are generally not subject to extradition. Any person may be extradited. is not to extradite their own nationals but to punish them under their own laws in accordance with the nationality principle of criminal jurisdiction. Extradition (1) Fundamental Principles 1. The practice of many states now. Liability will attach to the State where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances. no State is under obligation to admit aliens. aliens should be protected by certain minimum standards of humane protection. 549 In order to constitute an offense of a political character.549 547 548 Doctrine of State Responsibility If he is charged with any other offense committed before his escape. Nevertheless. Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. The State can determine in what cases and under what conditions it may admit aliens. a. however. the prosecution will be allowed if the extraditing state agrees or does not complain.and not the accused – has a right to object. the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition.8. 146 . The standards to be used are the following: National treatment/ equality of treatment Aliens are treated in the same manner as nationals of the State where they reside Minimum international standard However harsh the municipal laws might be. a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty.547 Flowing from its right to existence and as an attribute of sovereignty. of the state of refuge or of another state. Under the attentat clause. Treatment of Aliens A State may be held responsible for an international delinquency directly or indirectly imputable to it which causes injury to the national of another State. there must be two or more parties in the state. each seeking to impose the government of their own choice on the other. 4. the state of refuge . 2. Under the principle of specialty. against a State’s own citizens. whether he be a national of the requesting state.
In the absence of special agreement. 6. d. a prima facie finding whether (a) they are sufficient in form and substance. Purganan and Mark Jimenez G. the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner.553 who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. If. (Government of the US vs. the judge must not inform or notify the potential extraditee of the pendency of the petition.R. text of applicable law designating the offense. G. P. then the magistrate must immediately issue a warrant for the arrest of the extraditee. DOJ files petition for extradition with RTC.550 (2) Procedure551 1. decision of conviction. recital of facts. c. 553 Prior to the issuance of the warrant.5. Request through diplomatic representative with: a. and (c) the person sought is extraditable. 2002) 147 . 148571. No. DFA forwards request to DOJ. On the other hand. criminal charge and warrant of arrest. lest the latter be given the opportunity to escape and frustrate the proceedings. the offense must have been committed within the territory or against the interests of the demanding state. 2. no prima facie finding is possible. in spite of this study and examination. Hon. At his discretion. 3. (b) they show compliance with the Extradition Treaty and Law.552 4. September 24. The foregoing procedure will “best serve the ends of justice” in extradition cases. 550 551 Double Criminality Rule Judicial and diplomatic process of request and surrender. pertinent papers. No need to notify the person subject of the extradition process when the application is still with the DFA or DOJ. No. the judge must study them and make.R. Upon receipt of a petition for extradition and its supporting documents.D. e. 1069 552 Due process requirement complied at the RTC level upon filing of petition for extradition. b. if the presence of a prima facie case is determined. the petition may be dismissed at the discretion of the judge. as soon as possible. The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of double criminality.
A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former. Appeal to CA within ten days whose decision shall be final and executory. 554 555 provide counsel de officio if necessary. Individual placed at the disposal of the authorities of requesting state – costs and expenses to be shouldered by requesting state. the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national. the formal request for extradition is not required to be filed in court – it only needs to be received by the requested state in accordance with PD 1069 556 The surrender of a person by one state to another state where he is wanted for prosecution or. 148 . simply because his presence is deemed inconsistent with the public welfare. if already convicted for punishment.5. and without any punishment being imposed or contemplated either under the laws of the country out of which he is sent. The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. Hearing554 6. Extradition is not a criminal proceeding which will call into operation all the rights of an accused provided in the bill of rights For the provisional arrest of an accused to continue. 8. or under those of the country to which he is taken. Decision forwarded to DFA through the DOJ. In the absence of such a treaty. 557 Removal of an alien out of a country.555 (3) Distinguished from Deportation Extradition556 Affected at the request of the state of nation Deportation557 Unilateral act of the local state Based on offenses generally committed in the Based on causes arising in the local state. state of origin Calls for the return of the fugitive to the State of origin An undesirable alien may be deported to a state other than his own or the state of origin. 7.
International Covenant on Civil and Political Rights (ICCPR)559 Rights Guaranteed: 1. Freedom of movement and the right to travel 558 The exercise of these rights and freedoms may be subject to certain limitation. public order and the general welfare in a democratic society. the right to leave a country and the right to enter one’s country as separate and distinct rights. It is the first comprehensive international human rights instrument. Freedom from imprisonment for failure to fulfill a contractual obligation 10. 88211. social and cultural rights558 b. Civil and political rights 2. Economic. but it is our well-considered view that the right to return may be considered. Equal rights of men and women in the enjoyment of civil and political rights/nondiscrimination on the basis of sex 4. Manglapus. Right to an effective remedy 3. G. Right to liberty and security of person 8.9. 1989) 149 . which treats only of liberty of abode and the right to one’s country. Freedom from slavery 7. Right to be treated with humanity in cases of deprivation of liberty 9. and under our constitution. Rights may not be exercised contrary to the purposes and principles of the UN. Freedom from torture or cruel. The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights. International Human Rights Law a. it is distinct and separate from the right to travel and enjoys a different protection under the ICCPR. is part of the law of the land. Universal Declaration of Human Rights (UDHR) The basic international statement of the inalienable and inviolable rights of human beings. which must be determined by law. Rights covered: 1. Right of the people to self-determination 2. 559 The UDHR and the ICCPR treat the right to freedom of movement and abode within the territory of a state. Right to life 5. inhuman or degrading punishment 6. However. 15.R. as a generally accepted principle of international law. Sept. (Marcos vs. only for the purpose of securing due recognition and respect for the rights of others and of the meeting the just requirements of morality. against being arbitrarily deprived thereof. No.
conscience and religion 16. social and cultural rights 2.11. Right to privacy 15. 7. International Covenant on Economic. Right to marry and found a family 20. Right of recognition everywhere as a person before the law 14. Freedom of peaceful assembly 18. right to services in connection with pregnancy. to freely decide number of children and access to information and education to be able to exercise their rights. Right to participation. Social and Cultural Rights (ICESCR) Under the Convention on the Elimination of all forms of Discrimination Against women (CEDAW): 1. Guarantee of economic. Freedom of expression 17. Right to enter marriage. to profess and practice their religion and to use their own language c. a name and nationality 21. Right to a fair. pregnancy or maternity leave 5. Freedom of association 19. Right to equal protection before the law 23. Equal access with men as regards health services. Prohibition against dismissals due to marriage. Promotion of child-care facilities. Equal rights with men as regards employment 4. adequate nutrition during pregnancy and lactation and confinement and the post natal period. special protection to pregnant women as regards type of work 6. Freedom of thought. suffrage and access to public service 22. Freedom from ex-post facto laws 13. 150 . Right of a child to protection. Equal rights and responsibilities as parents. Equal rights with men as regards education 3. to freely choose a spouse and to enter into marriage only with free and full consent 8. impartial and public trial 12. Right of minorities to enjoy their own culture.
151 .561 a. which consist of State practice considered by them as legally binding. id. involving either regular armed forces fighting groups of armed dissidents. but distinct. including those set out in the four (4) Geneva Conventions and Additional Protocol I. part of international law set out in the United Nations Charter. Categories of Armed Conflicts (1) International Armed Conflicts Those in which at least two States are involved. Law of the Hague – Establishes the rights and obligations of belligerents in the conduct of military operations. International Humanitarian Law (IHL)560 and Neutrality International humanitarian law is a set of rules which seek. International humanitarian law is also known as the law of war or the law of armed conflict. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four (4) Geneva Conventions as well as in Additional Protocol II. The Geneva Conventions were adopted to limit the human suffering in times of armed conflict. even if the State of war is not recognized by one of them. International humanitarian law applies to armed conflicts.562 It also applies to armed conflict between the government and a rebel or insurgent movement. and in general principles.10. It does not regulate whether a State may actually use force. this is governed by an important. The four (4) Geneva Conventions of 1949 are the core of international humanitarian law. 562 Art. International law is contained in agreements between States – treaties or conventions – in customary rules. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. to limit the effects of armed conflict. and limits the means of harming the enemy. Geneva Convention of 1949 563 Art. 561 International humanitarian law is part of international law. 560 Two (2) branches: 1. Law of Geneva – Designed to safeguard military personnel who are no longer taking part in the fighting and people not actively. 2.563 (2) Internal or Non-International Armed Conflict Those restricted to the territory of a single State. which is the body of rules governing relations between States. or armed groups fighting each other. They are subject to a wide range of rules. 2. for humanitarian reasons. 3. All cases of declared war or any other armed conflict which may arise between two (2) or more of the Highest contracting parties.
Core International Obligations of States in IHL Article 1 of all four (4) Geneva Conventions is a key provision when it comes to a state’s responsibilities under international humanitarian law (IHL). for example it has to ensure the protection of prisoners in a prison.565 b. and it may be difficult to apply in practice. It provides that states are responsible to “respect and ensure respect” for the Conventions in all circumstances. In fact. In order to fulfill its obligation to respect IHL. A state has a duty566 to do everything it can to ensure that the Conventions are respected by all. Protocol I Encyclopedia Britannica 566 the duty to exercise due diligence 152 . rebellions or wars of independence.the international community – to intervene if the parties to the conflict themselves violate the Conventions. To "ensure respect" mainly focuses on the obligation of third states that are not directly involved in the conflict . other relevant personnel.564 These are sometimes called insurgencies. must follow the rules of the Geneva Conventions.These are governed by the provisions of human rights law and such measures of domestic legislation as may be invoked. in peace-keeping missions. a state must exercise rigorous control over its soldiers. and institutions involved in the fighting or decision-making surrounding an armed conflict. (3) Wars of National Liberation These are armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self determination. “To respect” means that all state institutions. states are responsible to ensure that the rights in the Conventions are respected in all places under its control. IHL does not apply to situations of violence not amounting in intensity to an armed conflict. There is considerable difficulty over the meaning of this phrase. A state is responsible for its soldiers' behaviour when they take part in conflicts abroad. 564 565 [Article 1(4). for example. This section only deals with the obligations of the primary violating state. which is run by its armed forces abroad. The first Protocol of 1977 provides that peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination are to be treated as if they were engaged in an international armed conflict and not a civil war. and all other individuals or bodies under their authority.
They may not be forced to reveal military data except the name. from the principles of humanity and from the dictates of public conscience. Rules 1-24 Martens clause/Principle of humanity 569 166 U. shall be allowed to communicate with their families. 1 570 22 U. shall not be subjected to physical or mental torture. educational and religious articles. seizing the possession. Law on Neutrality Law governing a country's abstention from participating in a conflict or aiding a participant of such conflict. Principles of IHL (1) Treatment of Civilians567 In cases not covered by other international agreements.569 For example.571 The codified law of traditional neutrality is to be found in The Hague Conventions Nos. serial number. 571 37 F. Supp. 5..After the conclusion of peace. their speedy repatriation must be accomplished as so on as is practicable. d. March 2005. and may receive food. 2. and the duty of participants to refrain from violating the territory. 268.S. Sec.c. army and regimental number and date of birth. the Neutrality Act of 1939. or hampering the peaceful commerce of the neutral countries.570 was passed by Congress for the purpose of preserving the neutrality of the United States and averting the risks that brought the United States into World War I.568 (2) Prisoners of War Rights and privileges: 1. clothing.S. 567 568 Customary International Humanitarian Law. rank. They must be interned in a healthful and hygienic place. V and XIII of 1907. 441 et seq. they may not be compelled to work for military services 3.They must be treated humanely.C. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom.All their personal belonging except their arms and military papers remain their property. 272 153 . 4.
the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal State. 53. b. “in transit between one part of the high seas or an exclusive economic zone.575 Waters covered by the straight baseline which are areas which had not previously been considered as such. Art. regardless of their depth or distance from the coast. UNCLOS 574 Art.” All ships and aircraft are entitled to the right of archipelagic sea lanes passage. 573 States constituted wholly by one or more archipelagos and may include other (1) Straight Archipelagic Baselines An archipelagic State may draw straight archipelagic baselines by joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ration of the water to the area of the land. Archipelagic States islands. id. expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state. including atolls. 47. This has a right of innocent passage. 154 . 573 Art. 49. establishing rules for business. 46.11.576 572 United Nations Convention on the Law of the Law of the Sea (UNCLOS) It defines the rights and obligations of nations in their use of the world’s oceans. 53 in relation with Art. 576 Magallona. Baselines Consist of straight lines joining appropriate points of the outermost islands of the archipelago. (3) Archipelagic Sea Lanes Passage It is the right of foreign ships and aircraft to have continuous. Law of the Sea572 a.574 (2) Archipelagic Waters These are waters enclosed by the archipelagic baselines. 575 Art. Lines from which the breadth of the territorial sea. id. id. 2005. the environment and the management of marine natural resources. is between 1 to 1 and 9 to 1.
8 . Territorial Sea The belt of the sea located between the coast and internal waters of the coastal state on the one hand. and there is no right of innocent passage. rivers. Sovereignty over these waters is the same in extent as sovereignty over land. bays. wa ters landward of the baseline other than those of rivers.579 f. Internal Waters These are waters of lakes. Exclusive Economic Zone An area extending not more than 200 nautical miles beyond the baseline. Continental Shelf (1) Extended Continental Shelf Refers to: a. beyond that limit. id. 577 578 Art. seabed and subsoil – but the right does not affect the right of navigation and overflight of other states. d. id. and b. extending up to 12 nautical miles from the lowwater mark.577 All waters578 landwards from the baseline of the territory. etc. c. However. to the seabed and subsoil of similar areas adjacent to the coasts of islands. or in the case of archipelagic states. expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. the seabed and the subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea. to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas. are archipelagic waters. sea-bed and subsoil in an area extending not more than 200 nautical miles beyond the baseline from which the territorial sea is measured. 155 . in the case of archipelagic states. part of the sea. 55 & 57. Waters on the landward side of the baseline of the territorial sea also form part of the internal waters of the coastal state. It gives the coastal State sovereign rights over all economic resources of the sea. and lakes.The exercise of the rights of navigation and overflight in the normal mode solely for the purpose of continuous. 579 Arts. from the baselines. lakes. rivers and bays landward of the baseline of the territo rial sea. e. and the high seas on the other. to a depth of 200 meters or. The coastal state has rights over the economic resource of the sea.
Principle 21 of Stockholm Declaration583 This declares that States have 1.It is part of the continental shelf that lies beyond the 200 nautical miles from the coastal baselines. or the Declaration of the United Nations Conference on the Human Environment. Tribunal of the Law of the Sea580 It is an independent judicial body established by the Third United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. It was established after Ambassador Arvido Pardo Malta addressed the General Assemblyof the United Nations and called for “an effective international regime overthe seabed and ocean floor beyond a clearly defined national jurisdiction. 1972 in Stockholm. Include: Pertinent Supreme Court decisions promulgated up to January 31. ITLOS has jurisdiction over all disputes and all applications submitted to it in accordance with UNCLOS and over all matters specifically provided for in any other agreement which confers jurisdiction on the ITLOS. 2012 580 581 International Tribunal for the Law of the Sea (ITLOS) States which have consented to be bound by the Convention and for which the Convention is in force 582 Philippe Sands. 2003 583 The Stockholm Declaration. 12.582 a. g. Principles of International Environmental Law. and 2. 156 . The sovereign right to exploit their own resources pursuant to their own environmental policies. Sweden. Germany. was adopted on June 16. ITLOS is composed of 21 independent members elected by the States Parties581 to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. It contains 26 principles and 109 recommendations regarding the preservation and enhancement of the right to a healthy environment. procedural and institutional rules which have as their primary objective the protection of the environment.” Its seat is in Hamburg." the term environment being understood as encompassing "both the features and the products of the natural world and those of human civilization. International Environment Law It is the branch of public international law comprising "those substantive.
(c) Negotiating with the Government of the receiving State. (i) The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto. and of permanent diplomatic missions. (b) Protecting in the receiving State the interests of the sending State and of its nationals. (d) The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank. (f) The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission. Article 3 1. irrespective of ownership. and reporting thereon to the Government of the sending State. in: (a) Representing the sending State in the receiving State.Reference Diplomatic and Consular Law Vienna Convention on Diplomatic Relations (April 18. (e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission. inter alia. used for the purposes of the mission including the residence of the head of the mission. The functions of a diplomatic mission consist. within the limits permitted by international law. (g) The “members of the service staff” are the members of the staff of the mission in the domestic service of the mission. takes place by mutual consent. (d) Ascertaining by all lawful means conditions and developments in the receiving State. (b) The “members of the mission” are the head of the mission and the members of the staff of the mission. (h) A “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State. the following expressions shall have the meanings hereunder assigned to them: (a) The “head of the mission” is the person charged by the sending State with the duty of acting in that capacity. (c) The “members of the staff of the mission” are the members of the diplomatic staff. Article 2 The establishment of diplomatic relations between States. 157 . 1961) Article 1 For the purpose of the present Convention. of the administrative and technical staff and of the service staff of the mission.
Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State. The sending State may. In the case of military. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State. 158 . 2. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization. the sending State may freely appoint the members of the staff of the mission. 2. In any such case. the sending State shall. either recall the person concerned or terminate his functions with the mission. unless there is express objection by any of the receiving States. 9 and 11. as the case may be. 3. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission. accredit a head of mission or assign any member of the diplomatic staff. and developing their economic. after it has given due notification to the receiving States concerned. Article 8 1. 8. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission has not his permanent seat. Article 7 Subject to the provisions of articles 5. except with the consent of that State which may be withdrawn at any time.(e) Promoting friendly relations between the sending State and the receiving State. the receiving State may require their names to be submitted beforehand. 3. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément. cultural and scientific relations. Article 5 1. unless objection is offered by the receiving State. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. to more than one State. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. 2. Article 9 1. 2. Article 4 1. as appropriate. The receiving State may at any time and without having to explain its decision. for its approval. notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. naval or air attachés. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. Article 6 Two or more States may accredit the same person as head of mission to another State.
159 . where appropriate. Where possible. the fact that a person becomes or ceases to be a member of the family of a member of the mission. refuse to accept officials of a particular category. the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal. the fact that they are leaving the employ of such persons. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission. or such other ministry as may be agreed. (b) The arrival and final departure of a person belonging to the family of a member of the mission and. establish offices forming part of the mission in localities other than those in which the mission itself is established. without the prior express consent of the receiving State. 2. where appropriate. in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner. Article 12 The sending State may not. within similar bounds and on a non-discriminatory basis. prior notification of arrival and final departure shall also be given. shall be notified of: (a) The appointment of members of the mission. 2. (d) The engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State.2. their arrival and their final departure or the termination of their functions with the mission. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article. 2. In the absence of specific agreement as to the size of the mission. (c) The arrival and final departure of private servants in the employ of persons referred to in subparagraph (a) of this paragraph and. Article 10 1. Article 11 1. The Ministry for Foreign Affairs of the receiving State. the receiving State may refuse to recognize the person concerned as a member of the mission. having regard to circumstances and conditions in the receiving State and to the needs of the particular mission. Article 13 1. or such other ministry as may be agreed. The receiving State may equally.
namely: (a) That of ambassadors or nuncios accredited to Heads of State. (b) That of envoys. in case he is unable to do so. by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. Article 18 The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class. Article 19 1. or if the head of the mission is unable to perform his functions a chargé d’affaires ad interim shall act provisionally as head of the mission. 160 . That of chargés 2. including the residence of the head of the mission. a member of the administrative and technical staff may. Except as concerns precedence and etiquette. and on his means of transport. If the post of head of the mission is vacant. Article 16 1. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See. Article 15 The class to which the heads of their missions are to be assigned shall be agreed between States. and other heads of mission of equivalent rank. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with article 13. there shall be no differentiation between heads of mission by reason of their class. 2. Heads of mission are divided into three classes. (c) d’affaires accredited to Ministers for Foreign Affairs.Article 14 1. In cases where no member of the diplomatic staff of the mission is present in the receiving State. with the consent of the receiving State. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence. ministers and internuncios accredited to Heads of State. Article 20 The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission. The name of the chargé d’affaires ad interim shall be notified. be designated by the sending State to be in charge of the current administrative affairs of the mission. either by the head of the mission or. Article 17 The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. 3.
Article 22 1. requisition. The official correspondence of the mission shall be inviolable. the mission may employ all appropriate means. other than such as represent payment for specific services rendered. Article 23 1. Article 27 1. Article 26 Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security. The premises of the mission. 2. The premises of the mission shall be inviolable. the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory. by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way. their furnishings and other property thereon and the means of transport of the mission shall be immune from search. wherever situated. 161 . 2. In communicating with the Government and the other missions and consulates of the sending State. including diplomatic couriers and messages in code or cipher. The receiving State shall either facilitate the acquisition on its territory. Article 24 The archives and documents of the mission shall be inviolable at any time and wherever they maybe. attachment or execution. It shall also.Article 21 1. in accordance with its laws. However. 2. except with the consent of the head of the mission. The exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. 3. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. where necessary. assist missions in obtaining suitable accommodation members. The sending State and the head of the mission shall be exempt from all national. whether owned or leased. for their Article 25 The receiving State shall accord full facilities for the performance of the functions of the mission. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. the mission may install and use a wireless transmitter only with the consent of the receiving State. Official correspondence means all correspondence relating to the mission and its functions. regional or municipal dues and taxes in respect of the premises of the mission. 2. The agents of the receiving State may not enter them.
and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft. A diplomatic agent is not obliged to give evidence as a witness. 5. 7. 4. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a). who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag. The diplomatic courier. his property. 162 .3. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply. 3. His papers. except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. 6. shall be protected by the receiving State in the performance of his functions. unless he holds it on behalf of the sending State for the purposes of the mission. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. He shall also enjoy immunity from its civil and administrative jurisdiction. correspondence and. (b) An action relating to succession in which the diplomatic agent is involved executor. The diplomatic bag shall not be opened or detained. administrator. (b) and (c) of paragraph 1 of this article. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention. Article 31 1. Article 30 1. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. except as provided in paragraph 3 of article 31. Article 29 The person of a diplomatic agent shall be inviolable. 2. heir or legatee as a private person and not on behalf of the sending State. as (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. He shall not be liable to any form of arrest or detention. freedom or dignity. Article 28 The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. shall likewise enjoy inviolability. except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. 2. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person.
The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State. a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State. 4. on condition: (a) That they are not nationals of or permanently resident in the receiving State. Waiver must always be express. succession or inheritance duties levied by the receiving State. Article 34 A diplomatic agent shall be exempt from all dues and taxes. subject to the provisions of paragraph 4 of article 39. regional or municipal. unless he holds it on behalf of the sending State for the purposes of the mission. personal or real. The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future. 3. Subject to the provisions of paragraph 3 of this article. 3. 2. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. Article 33 1. (c) Estate. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement. (b) Dues and taxes on private immovable property situated in the territory of the receiving State. for which a separate waiver shall be necessary. 4. Article 32 1. 5. The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of a diplomatic agent.4. 163 . and (b) That they are covered by the social security provisions which may be in force in the sending State or a third State. except: (a) Indirect taxes of a kind which are normally incorporated in the price of goods or services. 2. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. national.
they may enjoy privileges and immunities only to the extent admitted by the receiving State. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties. subject to the provisions of article 23. (b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household. exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in article 33. permit entry of and grant exemption from all customs duties. mortgage dues and stamp duty. the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. if they are not nationals of or permanently resident in the receiving State. The members of the family of a diplomatic agent forming part of his household shall. if they are not nationals of or permanently resident in the receiving State. if they are not nationals of the receiving State. 4. 2. They shall also enjoy the privileges specified in article 36. in respect of articles imported at the time of first installation. and from military obligations such as those connected with requisitioning. enjoy the privileges and immunities specified in articles 29 to 36. or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. The personal baggage of a diplomatic agent shall be exempt from inspection. unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article. together with members of their families forming part of their respective households. court or record fees. 3. However. Article 36 1. military contributions and billeting. from all public service of any kind whatsoever. Private servants of members of the mission shall. shall. In other respects. taxes. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative. and related charges other than charges for storage. 164 . cartage and similar services. 2. Article 35 The receiving State shall exempt diplomatic agents from all personal services. Article 37 1. on (a) Articles for the official use of the mission.(d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State. in accordance with such laws and regulations as it may adopt. Members of the administrative and technical staff of the mission. (f) Registration. (e) Charges levied for specific services rendered. The receiving State shall. paragraph 1. be exempt from dues and taxes on the emoluments they receive by reason of their employment. including articles intended for his establishment. except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. with respect to immovable property. enjoy the privileges and immunities specified in articles 29 to 35.
with respect to acts performed by such a person in the exercise of his functions as a member of the mission. the receiving State shall permit the withdrawal of the movable property of the deceased. Estate. or travelling separately to join him or to return to their country. the same inviolability and protection as the receiving State is bound to accord. even in case of armed conflict. the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. if already in its territory. succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. 2. from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. through their territories 3. and inviolability. while proceeding to take up or to return to his post. with the exception of any property acquired in the country the export of which was prohibited at the time of his death. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent. Third States shall accord to official correspondence and other official communications in transit. 2. In circumstances similar to those specified in paragraph 1 of this article. 165 . the same freedom and protection as is accorded by the receiving State. such privileges and immunities shall normally cease at the moment when he leaves the country. the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. 2. in respect of official acts performed in the exercise of his functions. and diplomatic bags in transit. However. Except insofar as additional privileges and immunities may be granted by the receiving State. a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction. However. 4. who have been granted a passport visa if such visa was necessary. the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return.Article 38 1. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. Article 39 1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or. They shall accord to diplomatic couriers. When the functions of a person enjoying privileges and immunities have come to an end. but shall subsist until that time. third States shall not hinder the passage of members of the administrative and technical or service staff of a mission. immunity shall continue to subsist. including messages in code or cipher. 3. or when returning to his own country. which has granted him a passport visa if such visa was necessary. In case of the death of a member of the mission. or on expiry of a reasonable period in which to do so. If a diplomatic agent passes through or is in the territory of a third State. and of members of their families. Article 40 1.
together with its property and archives. it refuses to recognize the diplomatic agent as a member of the mission. respect and protect the premises of the mission. Article 45 If diplomatic relations are broken off between two States. in case of need. 166 . to a third State acceptable to the receiving State. and members of the families of such persons irrespective of their nationality. even in case of armed conflict. Article 44 The receiving State must. 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs. Article 43 The function of a diplomatic agent comes to an end. 2. it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. in accordance with paragraph 2 of article 9. and to official communications and diplomatic bags. together with its property and archives. inter alia: (a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end. 3. It must. The obligations of third States under paragraphs 1. Article 42 A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity. (b) The sending State may entrust the custody of the premises of the mission. whose presence in the territory of the third State is due to force majeure. place at their disposal the necessary means of transport for themselves and their property. to leave at the earliest possible moment. (c) third The sending State may entrust the protection of its interests and those of its nationals to a State acceptable to the receiving State. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State. other than nationals of the receiving State. Article 41 1.4. Without prejudice to their privileges and immunities. They also have a duty not to interfere in the internal affairs of that State. in particular. even in case of armed conflict. (b) On notification by the receiving State to the sending State that. grant facilities in order to enable persons enjoying privileges and immunities. or if a mission is permanently or temporarily recalled: (a) The receiving State must.
However. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. Article 52 The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in article 48: (a) Of signatures to the present Convention and of the deposit of instruments of ratification or accession. and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. 167 . The instruments of accession shall be deposited with the SecretaryGeneral of the United Nations. until 31 March 1962. the receiving State shall not discriminate as between States. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations. discrimination shall not be regarded as taking place: (a) Where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State. Article 49 The present Convention is subject to ratification. Article 51 1. (b) Of the date on which the present Convention will enter into force. (b) Where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. Article 50 The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in article 48. at the United Nations Headquarters in New York. in accordance with article 51. Article 48 The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice. undertake the temporary protection of the interests of the third State and of its nationals.Article 46 A sending State may with the prior consent of a receiving State. Article 47 1. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession. the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. 49 and 50. and at the request of a third State not represented in the receiving State. as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently. in accordance with articles 48. 2. In the application of the provisions of the present Convention.
Consular officers are of two categories. the follow in g expressions shall have the meanings Here under assigned to them: (a ) “consular post” means any consulate-general. (h ) “members of the consular staff” means consular officers. shall be deposited with the Secretary-General of the United Nations. (g ) “members of the consular post” means consular officers.The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by article 71 of the present Convention. Vienna Convention on Consular Relations (April 24. irrespective of ownership. of which the Chinese. consulate. 1963) Article 1 Definitions 1 . 3 . documents. vice-consulate or consular agency. English. books. consular employees and members of the service staff. the provisions of Chapter III govern consular posts headed by honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers. films. the card-indexes and any article of furniture intended for their protection or safe keeping. correspondence. who shall send certified copies thereof to all States belonging to any of the four categories mentioned in article 48.Article 53 The original of the present Convention. (j) “consular premises” means the buildings or parts of buildings and the land ancillary thereto. (i) “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post. consular employees and members of the service staff. including the head of a consular post. 2 . tapes and registers of the consular post. together with the ciphers and codes.For the purposes of the present Convention. (c) “head of consular post” means the person charged with the duty of acting in that capacity. (f) “member of the service staff” means any person employed in the domestic service of a consular post. Russian and Spanish texts are equally authentic. namely career consular officers and honorary consular officers. French. 168 . other than the head of a consular post. (k) “consular archives” includes all the papers. (d ) “consular officer” means any person. (b ) “consular district” means the area assigned to a consular post for the exercise of consular functions. (e) “consular employee” means any person employed in the administrative or technical service of a consular post. entrusted in that capacity with the exercise of consular functions. used exclusively for the purposes of the consular post.
consent to the establishment of consular relations. within the limits permitted by international law. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention. (f) acting as notary and civil registrar and in capacities of a similar kind. both individuals and bodies corporate. its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State. (b ) furthering the development of commercial. and performing certain functions of an administrative nature. provided that there is nothing contrary thereto in the laws and regulations of the receiving State.The severance of diplomatic relations shall not ipso facto involve the s severance of consular relations. its classification or the consular district may be made by the sending State only with the consent of the receiving State. (c) ascertaining by all lawful means conditions and developments in the commercial. economic. 2 . cultural and scientific life of the receiving State. The consent given to the establishment of diplomatic relations between two States implies.Article 2 1 . unless otherwise stated. 5 .The establishment of consular relations between States takes place by mutual consent. (d ) issuing passports and travel documents to nationals of the sending State. 169 . Article 4 1 . Article 5 Consular functions consist in: (a ) protecting in the receiving State the interests of the sending State and of its nationals.Subsequent changes in the seat of the consular post. both individuals and bodies corporate. 4 . cultural and scientific relations between the sending g State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention.The consent of the receiving State shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality o other than that in which it is itself established.A consular post may be established in the territory of the receiving State only with that State’s consent. and visas or appropriate documents to persons wishing to travel to the sending State. 3 . 3 .The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere ere than at the seat thereof. economic. reporting thereon to the Government of the sending State and giving information to persons interested. of the sending State. 2. (e) helping and assisting nationals.The seat of the consular post. Article 3 Consular functions are exercised by consular posts.
without prejudice to the powers of the authorities of the receiving State. exercise his functions outside his consular district. because of absence or any other reason. after notifying the States concerned. in any other manner compatible with the laws and regulations of the receiving State. in the absence of such international agreements. and to their crews. conducting investigations into any incidents which occurred during the voyage. and settling disputes of any kind between the master. (k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State. with the consent of the receiving State. 170 . exercise consular functions in the receiving State on behalf of a third State. Article 7 The sending State may. both individuals and bodies corporate. such nationals are unable at the proper time to assume the defence of their rights and interests. taking statements regarding the voyage of a vessel. (i) subject to the practices and procedures obtaining in the receiving State. and of aircraft registered in that State. in special circumstances. Article 6 A consular officer may. for the purpose of obtaining. (m ) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no o objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State. within the limits imposed by the laws and regulations of the receiving State. and in respect of their crews . particularly where any guardianship or trusteeship is required with respect to such persons. provisional measures for the preservation of the rights and interests of these nationals. and. Article 8 Upon appropriate notification to the receiving State. a consular post of the sending State may. where. the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State. unless there is express objection by one of the States concerned. in accordance with the laws and regulations of the receiving State. in accordance with the laws and regulations of the receiving State. the interests of minors and other persons lacking full capacity who are nationals of the sending State. of the sending States in cases of succession mortis causa in the territory of the receiving State. representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State. (j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with in international agreements in force or.(g ) safeguarding the interests of nationals. examining and stamping the ship’s papers . unless the receiving State objects. entrust a consular post established in a particular State with the exercise of consular functions in another State. (h ) safeguarding. (l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article.
his category and class. 3 . Article 10 1 .Heads of consular posts are divided into four classes. the head of a consular post may be admitted on a provisional basis to the exercise of his functions.Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.The head of a consular post shall be provided by the sending State with a document. the consular district and the seat of the consular post. as a general rule. the sending State may. Article 11 1 . his full name. (c) vice-consuls. whatever the form of this authorization.Paragraph 1 of this article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts. 171 .Article 9 1 . 2 . In that case.If the receiving State agrees. certifying his capacity and showing. instead of a commission or similar instrument.A State which refused to grant an exequatur is not obliged to give to the sending State reasons for such refusal. Article 13 Pending delivery of the exequatur. (d ) consular agents.Subject to the provisions of articles 13 and 15. in the form of a commission or similar instrument.The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions. Article 14 As soon as the head of a consular post is admitted even provisionally to the exercise of his functions.Subject to the provisions of the present Convention . (b ) consuls.The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur. the formalities for the appointment and for the admission of the head o f a consular post are determined by the laws. 2 . the provisions o f the present Convention shall apply. 2 . namely (a ) consuls-general. send to the receiving State a notification containing the particulars required by paragraph 1 of this article. made out for each appointment. 2 . the receiving State shall immediately notify the competent authorities of the consular district. 3 . Article 12 1 . regulations an d usages of the sending State and of the receiving State respectively. the head of a consular post shall not enter upon his duties until he has received an exequatur.
The receiving State shall not.Heads of consular posts s hall have precedence over consular officers not having that status. 4 . a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sending State as an acting head of post.Heads of consular posts shall rank in each class according to the date of the gran t of the exequatur. be authorized to perform diplomatic acts. 3 . by any competent authority of the s ending State. if he is unable to do so. however.If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant.When. with the consent of the receiving State. privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post. Article 15 1 . As a general rule. The performance of such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges and immunities. h is precedence shall be determined according to the date of the provisional admission. 2 . or. if the receiving State does not object thereto.The order of precedence as between two or more head s of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of article 11 were presented to the receiving State. an acting head of post may act provisionally as head of the consular post. however. to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally. The receiving State may make the admission as actin g head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent. continue to enjoy diplomatic privileges and immunities. a consular officer may. they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of article 15 . as between themselves. 3 . 172 .The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned.Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts. 6 . While he is in charge of the post.Acting heads of posts shall rank after all heads of consular posts and.In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State. 4 . 2 . Article 16 1 . in the circumstances referred to in paragraph 1 of this article. he shall. be obliged to grant to an acting head of post any facility.The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or. if that State has no such mission in the receiving State. this notification shall be given in advance. by the head of the consular post. this precedence shall be maintained after the granting of the exequatur.It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention. 5 .If. Article 17 1 . in the order and according to the rules laid down in the foregoing paragraphs . and without affecting his consular status.
by the head of the consular post. Article 21 The order of precedence as between the consular officers of a consular post an d any change thereof shall be notified by the diplomatic mission of the sending State or. appoint the same person as a consular officer in that State. 2 . to the Ministry for Foreign n Affairs of the receiving State or to the authority designated by that Ministry. to exercise its rights under paragraph 3 of article 23. either recall the person concerned or terminate his functions with the consular post. 22 and 23. category an d class of all consular officers.The receiving State may. if required by its laws and regulations.Consular officers may not be appointed from among persons having the n nationality of the receiving State except with the express consent of that State which may be withdrawn at any time.The sending State may. 3 . however. if that State has no such mission n in the receiving State. 2 . shall be notified by the sending State to the receiving State in sufficient time for the receiving State.2 . other than the head of a consular post. request the receiving State to grant an exequatur to a consular officer other than the head of a consular post. the sending State shall. Article 22 1 . 173 . as the case may be. with the consent of the receiving State. When so acting. have the nationality of the sending State. he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention. having regard to circumstances and conditions in the consular district and to the needs of the particular consular post. Article 20 In the absence of an express agreement as to the size of the consular staff. 3 . in principle. 4 . if it so wishes. after notification addressed to the receiving State. the receiving State may require that the size of the staff be kept within limits considered by it to be reasonable and normal.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the e consular staff is not acceptable. g rant an exequatur to a consular officer other than the head of a consular post. he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements. Article 19 1 . in respect of the performance by him of any consular function.The full name. if required by its laws and regulations.A consular officer may.Consular officers should. Article 18 Two or more States may. the sending State may freely appoint the members of the consular staff. In that event. Article 23 1 .Subject to the provisions of articles 20. act as representative of the sending State to any intergovernmental organization.
In any such case. where appropriate. 4 . Article 24 1 .When possible. their arrival after appointment to the consular post. 3 . the necessary time and facilities to enable them to prepare their departure and to leave at the earliest possible moment after the termination of the functions of the members concerned. either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff. the sending State shall withdraw his appointment. (c) the arrival and final departure of members of the private staff and. it shall. in case of need. where appropriate. and to members of their families forming part of their households irrespective of nationality.The Ministry for Foreign Affairs of the receiving State or the authority designated by that Ministry shall be notified of: (a ) the appointment of members of a consular post. In particular. the receiving State is not obliged to give to the sending State reasons for its decision. Article 26 The receiving State shall. (b ) the arrival and final departure of a person belonging to the family of a member of a consular post forming part of his household and. the receiving State may. even in case of armed conflict. before entering on his duties with the consular post. prior notification of arrival and final departure shall also be given. 2 . (c) on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff. other than nationals of the receiving State.A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or. the termination of their service as such.2 . their final departure or the termination of their functions and any other changes affecting their status that may occur in the course of their service with the consular post.If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this article. the fact that a person becomes or ceases to be such a member of the family. place at their disposal the necessary means of transport for themselves and their property other than property acquired in the receiving State the export of which is prohibited at the time of departure. Article 25 The functions of a member of a consular post shall come to an end. (b ) on withdrawal of the exequatur. 174 . if already in the receiving State. (d ) the engagement and discharge of persons resident in the receiving State as members of a consular post or as members of the private staff entitled to privileges and immunities. inter alia: (a ) on notification by the sending State to the receiving State that his functions have come to an end.In the cases mentioned in paragraphs 1 and 3 of this article. as the case may be. grant to members of the consular post and members of the private staff.
The national flag of the sending State may be flow n and its coat-of-arms displayed on the building occupied by the consular post and at the entrance door thereof. even in case of armed conflict. In addition.The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. (a ) if the s ending State.In the event of the temporary or permanent closure of a consular post. Article 28 The receiving State shall accord full facilities for the performance of the functions of the consular post. 3 . together with the property contained therein and the consular archives. the provisions of subparagraph (a) of paragraph 1 of this article shall apply.In the event of the severance of consular relations between two States: (a ) the receiving State shall. or (b ) if the sending State has no diplomatic mission and no other consular post in the receiving State.Article 27 1 . respect and protect the consular premises. the provisions of subparagraphs (b) and (c) of paragraph 1 of this article sh all apply. be assumed in case of fire or other disaster requiring prompt protective action. (c) the sending State may entrust the protection of its interests and those of its nationals to a third 2 .In the exercise of the right accorded by this article regard shall be had to the laws. however. (b ) the sending State may entrust the custody of the consular premises. The consent of the head of the consular post may.The sending State shall have the right to the u se of its national flag and coat-of-arms in the receiving State in accordance with the provisions of this article. Article 29 1 .Consular premises shall be inviolable to the extent provided in this article. to a third State acceptable to the receiving State. 2 . together with the property contained therein and the consular archives. 2 . that consular post may be entrusted with the custody of the premises of the consular post which has been closed. and. Article 30 1 . assist the consular post in obtaining suitable accommodation for its members. by the sending State of premises necessary for its consular post or assist the latter in obtaining accommodation in some other way. on the residence of the head of the consular post and on his means of trans port when used on official business. with the exercise of consular functions in the district of that consular post. Article 31 1 . although not represented in the receiving State by a diplomatic mission. 2 . together with the property of the consular post and the consular archives.The receiving State shall either facilitate the acquisition on its territory. in accordance with its laws and regulations.It shall also. where necessary. has another consular post in the territory of that State. 175 . with the consent of the receiving State. regulations and usages of the receiving State.
a permanent resident of the receiving State. the consular post may install and use a wireless transmitter only with the consent of the receiving State. 2 . including diplomatic or consular couriers. Article 35 1 . 4 .Subject to the provisions of paragraph 2 of this article. the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. 2 . diplomatic or consular bags and messages in code or cipher. the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. Article 32 1 .The consular bag shall be neither opened nor detained. wherever situated. If this request is refused by the authorities of the sending State. the bag shall be returned to its place of origin. documents or articles referred to in paragraph 4 of this article. Except with the consent of the receiving State he shall be neither a national of the receiving State. their furnishings. If expropriation is necessary for such purposes.The official correspondence of the consular post shall be inviolable. However. 3 .The consular premises. of the sending State. the consular post may employ all appropriate means. the diplomatic missions and other consular posts . unless he is a national of the s ending State. other than such as represent payment for specific services rendered. they may request that the bag be opened in their presence by an authorized representative of the sending State. adequate and effective compensation shall be paid to the sending State. 4 . 5 .Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national. and prompt. Nevertheless. nor. In the performance of his functions he shall be 176 . regional or municipal dues and taxes whatsoever. Article 33 The consular archives and documents shall be inviolable at all times and wherever they may be. In communicating with the Government. the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post. if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence.3 . all possible steps shall be taken to avoid impeding the performance of consular functions.The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and taxes if.The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. under the law of the receiving State. Official correspondence means all correspondence relating to the consular post and its functions. they are payable by the person who contracted with the sending State or with the person acting on its behalf.The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes.The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use. Article 34 Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of nation al security.
protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. 6 .The sending State, its diplomatic miss ion s and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge. 7 .A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft. Article 36 1 .With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a ) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b ) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the s ending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2 .The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. Article 37 If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: (a ) in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred; (b ) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the s ending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments; (c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending
State suffers an accident on the territory of the receiving State, to inform consular post nearest to the scene of the occurrence. Article 38 In the exercise of their functions, consular officers may address (a ) the competent local authorities of their consular district;
without delay the
(b ) the competent central authorities of the receiving State if and to the extent that this is allowed by the law s, regulations and usages of the receiving State or by the relevant international agreements. Article 39 1 .The consular post may levy in the territory of the receiving State the fees and charges provided by the laws and regulations of the s ending State for consular acts. 2 .The sums collected in the form of the fees and charges referred to in paragraph 1 of this article, and the receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State. Article 40 The receiving State shall treat consular officers with du e respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity. Article 41 1 .Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. 2 .Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect. 3 .If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay. Article 42 In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel. Article 43 1 .Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. 2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either
(a ) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b ) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. Article 44 1 .Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings . A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him. 2 .The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing. 3 .Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State. Article 45 1 .The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in articles 41, 43 and 44. 2 .The waiver shall in all cases be express, except as provided in paragraph 3 of this article, and shall be communicated to the receiving State in writing. 3 .The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. 4 .The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be necessary. Article 46 1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits. 2 .The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee. Article 47 1 .Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour. 2 .Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligation s referred to in paragraph 1 of this article.
including capital gain s. having its source in the receiving State and capital taxes relating to investments made in commercial or financial undertakings in the receiving State. members of the consular post with respect to services rendered by them for the sending State. Article 49 1 . subject to the provisions of paragraph (b) of article 51. (b ) dues or taxes on private immovable property situated in the territory of the receiving State. personal or real.The exemption provided for in paragraph 1 of this article shall apply also to members of the private staff who are in the sole employ of members of the consular post. levied by the receiving State.Members of the consular post who employ persons whose wages or s alaries are not exempt from income tax in the receiving State shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax. regional or municipal.Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. and members of their families forming part of their households. 2 . (e) charges levied for specific services rendered. except: (a ) indirect taxes of a kind which are normally incorporated in the price of goods or services. mortgage dues and stamp duties. court or record fees. subject to the provisions of article 32. (f) registration. 2 . 180 . (d ) dues and taxes on private income.Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all dues and taxes. provided that such participation is permitted by that State. 4 . 3 .Subject to the provisions of paragraph 3 of this article. shall be exempt from social security provisions which may be in force in the receiving State. on condition: (a ) that they are not nationals of or permanently resident in the receiving State. subject to the provisions of article 32 .Article 48 1 . succession or inheritance duties. and (b ) that they are covered by the social security provisions which are in force in the sending State or a third State. national. 3 . (c) estate.The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntary participation in the social security system of the receiving State.Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services. and duties on transfers.
3 . his privileges and immunities and those of a member of his family forming part of his household or a member of 181 . or articles the import or export of which is prohibited by the laws and regulations of the receiving State or which are subject to its quarantine laws and regulations.Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or. the receiving State: (a ) shall permit the export of the movable property of the deceased. in accordance with such laws and regulations as it may adopt. 2 . (b ) articles for the personal use of a consular officer or members of his family forming part of his household. on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post. region al or municipal estate. permit entry of and grant exemption from all customs duties.Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this article in respect of articles imported at the time of first installation. The articles intended for consumption shall not exceed the quantities necessary for direct utilization by the persons concerned. taxes. Article 51 In the event of the death of a member of the consular post or of a member of his family forming part of his household. 3 . Such inspection shall be carried out in the presence of the consular officer or member of his family concerned.Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff. on: (a ) articles for the official use of the consular post. and from military obligations such as those connected with requisitioning. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of this article. Article 52 The receiving State shall exempt members of the consular post and members of their families forming part of their households from all personal services. military contributions and billeting.Personal baggage accompanying consular officers and members of their families forming part of their households shall be exempt from inspection. 2 . with the exception of any such property acquired in the receiving State the export of which was prohibited at the time of his death. from the moment when he enters on his duties with the consular post. whichever is the latest. and duties on transfers.When the functions of a member of the consular post have come to an end. from all public service of any kind whatsoever. and related charges other than charges for storage. including articles intended for his establishment.The receiving State shall. (b ) shall not levy national.Article 50 1 . Article 53 1 . succession or inheritance duties. if already in its territory. cartage and similar services.
w while proceeding to take up or return to his post or when returning to the sending g State. the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the e expiry o f a reasonable p period enabling them to do so. their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided. 5 . 2 .his private staff shall normally cease at the moment t when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so.In the event of the death of a member of the consular post. whichever is the sooner. 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs. for the purposes of the present Convention.However. even in case of armed conflict. provided that the p remises assigned to them are separate from those used by the consular post. Article 54 1 . it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. The same shall apply in the case of any member of his family forming part of his household enjoying such p privileges and immunities who are accompanying the consular officer or travelling separately to join him or to return to the sending State. In the case of the persons referred to in paragraph 2 of this article.The obligations of third States under paragraphs 1. their privileges and immunities shall subsist until the time of their departure. whose presence in the territory of the third State is due to force majeure. the third State shall accord to him all immunities provided for by the other articles of the present t Convention as may be required to ensure his transit or return. be considered to form part of the consular premises. 4 . They also have a duty not to interfere in the internal affairs of the State.The consular premises shall not be used in any manner incompatible with the exercise of consular functions. Article 55 1 . but shall subsist until that time. including messages in code or cipher.The provisions of paragraph 2 of this article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated. 4 . 2 . third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households. with respect to acts performed by a consular officer or a consular employee in the exercise of his functions. the same freedom and protection as the receiving g State is bound to accord under the present Convention. and to official communication s and to consular bags. however. the same inviolability and protection as the receiving State is bound to accord under the present Convention. They shall accord to consular couriers who have been granted a visa. whichever is the s sooner. 3 .Third States shall accord to o official correspondence and to other official communications in transit. immunity from jurisdiction shall continue to subsist without limitation of time. which has granted him a visa if a visa was necessary. and to consular bags in transit. that if such persons intend leaving the receiving State within a reasonable period thereafter. the said offices s hall not.If a consular officer passes through or is in the territory of a third State. if a visa was necessary. 3 . 182 .Without prejudice to their privileges and immunities. In that event.In circumstances similar to those specified in paragraph 1 of this article.
64. (c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in the receiving State. articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 s hall apply to consular posts headed by an honorary consular officer. paragraph 3 of article 44 . the facilities. 37. 61 and 62. 38 and 39.Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. Article 59 T he receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. 3 . other than such as represent payment for specific services rendered. 2 . 36. 30. privileges and immunities of such consular officers shall be governed by articles 63. 60. the facilities. in respect of insurance against third party risks arising from the use of any vehicle. vessel or aircraft. 65. 2 .The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned. Article 58 1 . 2 . 34. 183 . 4 . they are payable by the person who contracted with the sending State. Article 57 1 . In addition. 29. In addition. regional or municipal dues and taxes whatsoever.Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exempt from all national. Article 60 1 . 35.The exemption from taxation referred to in paragraph l of this article shall not apply to such dues and taxes if. 66 an d 67. (b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or to members of his private staff. under the laws and regulations of the receiving State.Articles 28. privileges and immunities of such consular posts shall be governed by articles 59.Article 56 Members of the consular post shall comply with an y requirements imposed by the laws and regulations of the receiving State.Career consular officers shall not carry on for personal profit any professional or commercial activity in the receiving State.Privileges and immunities provided in this chapter shall not be accorded : (a ) to consular employees or to members of the service staff who carry on any private gainful occupation in the receiving State.Articles 42 and 43.
office furniture. seals and stamps. flags. taxes. except when he is under arrest or detention.Article 61 T he consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be. When it has become necessary to detain an honorary consular officer. Article 68 Each State is free to decide whether it will appoint or receive honorary consular officers. cartage and similar services on the following articles. provided that they are kept separate from other papers and documents and. in a manner which will hamper the exercise of consular functions as little as possible. the proceedings shall be conducted with the respect due to him by reason of his official position and. in particular. with the exception of those who carry on for personal profit any professional or commercial activity in the receiving State. from the private correspondence of the head of a consular post and of any person working with him. Article 63 If criminal proceedings are instituted against an honorary consular officer. Article 69 1 . books. office equipment and similar articles supplied by or at the instance of the sending State to the consular post. military contribution s and billeting. 184 . Nevertheless. in accordance with such laws and regulations as it may adopt. the proceedings against him shall be instituted with the minimum of delay. books or documents relating to their profession or trade Article 62 The receiving State shall. and related charges other than charges for storage. Article 67 The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requisitioning. Article 64 T he receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position. he must appear before the competent authorities. shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits. signboards. and from the materials. provided that they are for the official use of a consular post headed by an honorary consular officer: coats-of-arms. official printed matter. and grant exemption from all customs duties. Article 66 A n honorary consular officer shall be exempt from all dues and taxes on the remuneration an emoluments which he receives from the sending State in respect of the exercise of consular functions.Each State is free to decide whether it will establish or admit consular agencies conducted by consular agents not designated as head s o f consular post by the sending State. Article 65 Exemption from registration of aliens and residence permits Honorary consular officers. permit entry of.
the proceedings shall. as w ell as members of the families of consular officers referred to in paragraph 1 of this article.Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families. regulations and usages of the receiving State or by relevant international agreements. Article 70 1 . consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions. Article 71 1 .In the application of the provisions of the present Convention the receiving State shall not discriminate as between States. shall enjoy facilities. to the exercise of consular functions by a diplomatic mission.However.2 . The receiving State shall. 2 . (b ) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. If criminal proceedings are instituted against such a consular officer. discrimination shall not be regarded as taking place: (a ) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State. except when he is under arrest or detention. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities.The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this article s hall continue to be governed by the rules of international law concerning diplomatic relations. 3 . privileges and immunities may be granted by the receiving State. and the privileges provided in paragraph 3 of article 44.In the exercise of consular functions a diplomatic mission may address: (a ) the local authorities of the consular district. exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post. so far as the context permits. privileges and immunities only insofar as these are granted to them by the receiving State. 2 . the receiving State shall likewise be bound by the obligation laid down in article 42. 2 . privileges and immunities only insofar as these are granted to them by the receiving State.Except insofar as additional facilities. however. be conducted in a manner which will hamper the exercise of consular functions as little as possible. So far as these consular officers are concerned.The conditions under which the consular agencies referred to in paragraph 1 of this article may carry on their activities and the privileges and immunities which may be enjoyed by the consular agents in charge of them shall be determined by agreement between the s ending State and the receiving State. (b ) the central authorities of the receiving State if this is allowed by the laws . 4 .The provisions of the present Convention apply also. 185 .The names of members of a diplomatic mission assigned to the consular section or otherwise charged with the exercise of the consular functions of the miss ion shall be notified to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. Article 72 1 .
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