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131329146 UPSolid2010PoliticalLawReviewer Unlocked

131329146 UPSolid2010PoliticalLawReviewer Unlocked

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LABOR LAW REVIEWER

POLITICAL LAW 2010

CONSTITUTIONAL LAW I CONSTITUTIONAL LAW II PUBLIC INTERNATIONAL LAW

Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law, the Faculty Editor and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the UP College of Law. All rights are reserved.

ADMINISTRATIVE LAW

ELECTION LAW LAW ON PUBLIC OFFICERS LOCAL GOVERNMENT LAW

POLITICAL LAW REVIEWER

CONSTITUTIONAL LAW 1
Table of Contents
Chapter I. The State .................................................3 I. Territory .......................................................3 A. 1987 Const., Art. I ...................................3 B. Treaty of Paris, Art. III .............................3 C. Archipelagic Doctrine ..............................4 II. People..........................................................4 A. Definition .................................................4 B. Citizenship ..............................................4 III. Sovereignty..................................................6 A. Kinds .......................................................6 B. Theory of Auto-Limitation ........................6 C. “Dominium” v “Imperium” ........................6 D. Jurisdiction ..............................................6 E. Suits Against the State and the Doctrine of Sovereign Immunity......................................7 IV. Government .................................................8 A. Definition .................................................8 B. Functions ................................................8 C. Doctrine of Parens Patriae ......................8 D. De Jure and De Facto Governments.......9 Chapter II. Structure and Powers of Government – Separation of Powers ............................................10 I. Legislative Department ..............................10 A. Nature and Classification of Legislative Power .............................................................10 B. Composition, Qualifications and Term of Office10 C. Election .................................................11 D. Salaries, Privileges and Disqualifications 12 E. Internal Government of Congress .........13 F. Electoral Tribunals ................................14 G. Commission on Appointments ..............15 H. Powers of Congress..............................16 II. Judiciary.....................................................21 A. In General .............................................21 B. Supreme Court......................................23 C. Judicial and Bar Council........................25 III. Executive ...................................................25 A. The President........................................25 B. Vice President.......................................41 IV. Constitutional Commissions.......................42 A. Common Provisions ..............................42 B. Civil Service Commission......................42 C. Commission on Elections......................43 D. Commission on Audit ............................44 V. Constitutionally-Mandated Bodies .............44 A. Sandiganbayan .....................................44 B. Ombudsman .........................................44 C. Commission on Human Rights..............45 Chapter III. National Economy and Patrimony.....46 I. General Principles .....................................46 A. Goals.....................................................46 B. Citizenship Requirements .....................46 C. Filipino First...........................................46 II. Natural Resources .....................................46 A. Regalian Doctrine [Jura Regalia] ..........46 Exploration, Development, and Utilization 47 C. Stewardship Concept ............................48 III. Private Lands .............................................48 A. General Rule .........................................48 B. Exceptions.............................................48 IV. Monopolies.................................................48 V. Central Monetary Authority ........................48 Chapter IV. Current Events and Special Topics ..49 I. Party-List System.......................................49 II. Question Hour v. Inquiries In Aid of Legislation ...........................................................51 III. Executive Privilege................................51 IV. People’s Initiative .......................................52 V. Right of Reply ............................................53 VI. The (Erstwhile) Province of Shariff Kabunsuan ..........................................................53 VII. MOA on Ancestral Domain (MOA-AD) ..54 B.

POLITICAL LAW REVIEWER

CONSTITUTIONAL LAW II
Table of Contents Chapter I. Bill of Rights .................................58 I. In General ...........................................58 II. Bases and Purpose.............................59 A. Bases: .............................................59 III. Accountability ......................................59 Chapter II. Fundamental Powers ..................60 of the State......................................................60 I. Police Power .......................................60 A. Definition .........................................60 II. Eminent Domain..................................63 A. Definition .........................................63 B. Who May Exercise..........................63 C. Requisites .......................................64 III. Taxation ..............................................65 A. Definition and Scope.......................65 B. Who May Exercise.........................65 C. Limitations.......................................65 D. Double Taxation..............................66 Chapter III. Due Process................................67 I. In General ...........................................67 II. Substantive Due Process....................67 A. Scope..............................................68 B. Requisites .......................................68 C. Doctrines.........................................68 III. Procedural Due Process .....................69 A. Scope..............................................69 B. Kinds ...............................................69 IV. Due Process As Limitation On Fundamental State Powers .........................70 A. Vis-à-vis Police Power ....................70 B. Vis-à-vis Eminent Domain ..............70 C. Vis-à-vis Power to Tax....................71 Chapter IV. Equal Protection of the Laws....72 I. Definition and Scope of Protection......72 II. Requisites of Valid Classification ........72 III. Examples of Valid Classification .........72 A. Aliens ..............................................72 B. Filipino Female Domestics Working Abroad .....................................................73 C. Land-based vs. Sea-based Filipino Overseas Workers...................................73 D. Qualification for Elective Office.......73 E. Office of the Ombudsman...............73 F. Print vs. Broadcast Media...............73 IV. Standards of Judicial Review..............73 A. “Rational Basis Test” ......................73 B. “Strict Scrutiny Test” .......................73 C. “Intensified Means Test” .................73 Chapter V. Requirements for Fair Procedure .........................................................................74 I. II. Nature and Scope ............................... 74 ARREST.............................................. 74 A. Requisites for Issuance of a Valid Arrest Warrant ......................................... 74 B. Requisites of a Valid Warrantless Arrest (Rule 113, Sec. 5, Rules on Criminal Procedure)............................................... 75 III. SEARCH AND SEIZURE.................... 77 IV. Detention/Custodial Investigation ....... 80 A. Rights under Custodial Investigation 80 B. Tests of Waiver of Miranda Rights . 83 V. Protocol After Conduct Of Investigation 84 VI. Other Rights Guaranteed Under Art. III. Sec. 12......................................................... 84 VII. Exclusionary Rules ......................... 84 VIII. Right to Bail .................................... 86 Chapter VI. Rights of the Accused ............... 88 II. Rights Post Trial.................................. 91 Chapter VII. Writs ........................................... 94 I. HABEAS CORPUS ............................. 94 II. WRIT OF AMPARO ............................ 96 III. WRIT OF HABEAS DATA................... 96 Chapter VIII. Privacy of Communication and Correspondence ............................................ 99 I. Intrusion, When Allowed ..................... 99 II. Forms of Correspondence Covered ... 99 III. ENABLING LAW ................................. 99 Chapter IX. Freedom of Expression ........... 101 I. Basis, Components, Scope and Limitations.................................................. 101 II. CONTENT-BASED RESTRICTIONS103 IV. CONTENT-NEUTRAL RESTRICTIONS 106 Chapter X. Freedom of Religion ................. 109 I. Non-establishment Clause................ 109 II. Free Exercise Clause........................ 110 III. Tests ................................................. 111 Chapter XI. Liberty of Abode and Travel ... 112 I. Liberty of Abode................................ 112 II. Right to Travel................................... 112 III. Right to Return to One’s Country...... 112 Chapter XII. RA 9372: Human Security Act* ....................................................................... 113 Chapter XIII. Latest Cases........................... 119

POLITICAL LAW REVIEWER

PUBLIC INTERNATIONAL LAW
Table of Contents
Chapter I. Preliminaries ...............................124 I. Public International Law (PIL) ...........124 II. Contra-Distinctions............................124 III. Relationship between PIL and Municipal Law 125 A. Monist View...................................125 B. Dualist View ..................................125 C. Monist-Naturalist View ..................125 D. Coordinationist View .....................125 IV. The Philippine Doctrine .....................125 A. Doctrine of Incorporation ..............125 B. Doctrine of Transformation ...........125 Chapter II. Actors of International Law ......126 I. Subjects and Objects of International Law 126 A. States............................................126 B. Individuals .....................................128 C. International Organizations (IO)....128 Chapter III. The Norms of International Law .......................................................................129 I. Concepts ...........................................129 II. Sources of International Law ............129 A. Treaty as Source of Law...............129 B. Customary International Law ........129 C. General Principle of Law...............131 D. Subsidiary Source: Judicial Decisions 132 E. Subsidiary Source: Publicists .......132 F. Other Sources...............................132 III. Status of Norms ................................132 A. Jus Cogens or Peremptory Norms132 B. Erga Omnes Norms ......................132 Chapter IV. The Law of Treaties .................133 I. Definition ...........................................133 II. Requisites for Validity........................133 A. Treaty Making Capacity ................133 B. Competence of the Representative/Organ Making the Treaty 133 C. Parties Must Freely Give Consent 133 D. Object and Subject Matter Must be Lawful ....................................................133 E. Ratification in Accordance with the Constitutional Process of the Parties Concerned .............................................133 III. The Treaty-Making Process ..............133 A. Negotiation....................................133 B. Adoption (Article 9, VCLOT) .........133 C. Authentication of the Text (Article 10, VCLOT) .................................................134 D. Expression of Consent to be bound by the Treaty (Article 11, VCLOT) ......... 134 E. Registration with the UN............... 135 IV. Philippine Law................................... 135 V. Amendment or Modification of Treaty 135 VI. Reservations ..................................... 135 VII. Invalid Treaties ............................. 135 VIII. Grounds for Termination............... 135 Chapter V. International Responsibility..... 137 I. Breach............................................... 137 A. Is Fault or Malice Necessary? ...... 137 B. The Standard of Diligence ............ 137 II. Attribution .......................................... 137 A. Direct and Indirect Attribution ....... 138 B. Conduct Attributable to the State . 138 III. Consequences of State Responsibility 138 A. Duty to Make Reparation.............. 138 B. Forms of Reparation..................... 138 IV. Circumstances Precluding Wrongfulness 139 V. Diplomatic Protection (“Espousal of Claim”) ....................................................... 139 A. Material Dates............................... 140 B. Exhaustion of Local Remedies ..... 140 Chapter VI. Sovereignty and Jurisdiction . 141 I. Sovereignty ....................................... 141 A. Characteristics .............................. 141 B. Sovereign Equality of States ........ 141 C. Corollaries..................................... 141 II. Jurisdiction ........................................ 141 A. Criminal Jurisdiction ..................... 141 B. Reserved Domain of Domestic Jurisdiction ............................................ 141 C. Doctrine of State Immunity ........... 141 Chapter VII. The Law of the Sea ................. 143 I. Concepts ........................................... 143 A. Distinguished from Maritime or Admiralty Law........................................ 143 B. Baseline ........................................ 143 II. Waters............................................... 143 A. Internal Waters ............................. 144 B. Territorial Waters .......................... 144 C. Contiguous Zone .......................... 144 D. Exclusive Economic Zone ............ 144 E. High Seas ..................................... 145 III. Archipelagic State ............................. 146 IV. Continental Shelf............................... 146 A. Limits of the Continental Shelf...... 148

POLITICAL LAW REVIEWER

B. Rights of the Coastal State over the Continental Shelf ...................................148 C. Rights with Respect to Continental Shelf vs. EEZ.........................................148 V. Settlement of Disputes ......................149 A. Peaceful Settlement of Disputes ..149 B. Compulsory Settlement of Disputes 149 C. Jurisdiction of Court or Tribunal....149 D. Composition of the International Tribunal for the Law of the Sea (ITLOS)149 E. Jurisdiction of ITLOS ....................149 F. Applicable Laws in Settlement of Disputes by the ITLOS ..........................149 Chapter VIII. The Use of Force in International Law..........................................150 I. Jus Ad Bellum v Jus in Bello .............150 II. Rules on the Use of Force ................150 A. General Rule.................................150 B. Exceptions ....................................150 Chapter IX. International Human Rights Law .......................................................................152 I. Definition of Human Rights ...............152 II. Classification of Human Rights .........152 III. “Internationalization” of Human Rights 152 IV. Sources of Human Rights .................152 A. Convention....................................152 B. Custom..........................................152 V. International Bill of Human Rights.....153 A. Universal Declaration of Human Rights (UDHR).......................................153 B. International Covenant on Civil and Political Rights (ICCPR) ........................153 C. International Covenant on Economic, Social and Cultural Rights (ICESCR) ....154 D. Common Provisions in the ICCPR and the ICESCR and differences ..........154 VI. Specific Norms in Human Rights ......154 A. Genocide.......................................154 B. Torture ..........................................155 C. Rights of the Child ........................155 D. Law against Discrimination ...........155 E. Refugee Law.................................156 Chapter X. International Humanitarian Law .......................................................................157 I. Definition of “Armed Conflict” ............157 II. Fundamental Principles of IHL..........157 III. Application of IHL ..............................158 IV. The Four Geneva Conventions and the Two Additional Protocols ...........................158 V. Application of the Four Geneva Conventions and the Two Additional Protocols ....................................................158 VI. Definition of Concepts and Phrases..159 A. Combatants...................................159

B. Hors de combat ............................ 159 C. Protected Persons ........................ 159 D. Martens clause ............................. 159 E. Military Objective .......................... 159 F. Belligerency Status ....................... 159 VII. IHL and Weapons of Mass Destruction................................................. 160 VIII. IHL and Non-International Armed Conflict 160 A. Common Article 3 and Protocol II. 160 B. Control-of-Territory ....................... 161 C. War of National Liberation ............ 161 IX. Neutrality ........................................... 161 X. Protective Emblems .......................... 161 A. Who May Use ............................... 162 B. Misuse of the Emblem .................. 162 C. Punishment................................... 162 XI. The International Criminal Court ....... 162 A. Crimes within the Court’s Jurisdiction 162 B. Modes of Incurring Criminal Liability 163 C. Sources of Law ............................. 163 D. Other Key Concepts ..................... 163 E. Landmark Cases .......................... 163 Chapter XI. Diplomatic Intercourse ............ 165 I. Agents of Diplomatic Intercourse...... 165 A. Head of State................................ 165 B. The Foreign Office........................ 165 C. The Diplomatic Corps ................... 165 II. Functions and Duties ........................ 165 III. Diplomatic Immunities and Privileges165 A. Personal Inviolability..................... 165 B. Inviolability of Premises and Archives 166 C. Right of Official Communication ... 166 D. Immunity from Local Jurisdiction .. 166 E. Exemption from Taxes and Customs Duties .................................................... 166 IV. Consular Relations............................ 167 A. Ranks............................................ 167 B. Necessary Documents ................. 167 C. Immunities and Privileges............. 167 Chapter XII. Recent International Law Issues in Philippine Law.......................................... 168 I. Daniel Smith and the Visiting Forces Agreement ................................................. 168 II. The Constitutionality of the Baselines Law 169 III. VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE ...................... 169 Appendix 1 - Straight and Normal Baselines ....................................................................... 171 Appendix 2 - Continental Shelf and the Maritime Zones............................................. 171

.... Doctrine of Primary Jurisdiction or Preliminary Resort ..... ........174 1..174 2....................174 7...................... Legislative Delegation......174 2.....174 5.....................174 B...............174 2..174 A.......................................... 8.. General Principles .............174 D......................................174 3......... 174 5........... Declaratory Relief ........... 174 Writ of Amparo.................. Doctrine of Exhaustion of Administrative Remedies... Basis ..174 4. Definition .............. Mandamus.................... Availability of Judicial Review depends on:...... Judicial Review and Enforcement of Agency Action..... General Rule....... Modes of Judicial Review....174 5........ General Rule........174 C..... Exceptions . Types of Administrative Agencies ....... Quasi-Legislative (Rule-making) Powers 174 1.............. Writ of Execution............................................ Law-fact Distinction....................................... 174 Habeas Data. 174 Injunction as Provisional Remedy 174 E.. Quasi-Judicial (Adjudicatory) Powers174 C............174 1...............174 1.... Doctrine of Qualified Political Agency 174 4...174 Chapter III........... Historical Considerations .......... Extent of Judicial Review ...174 2.......174 E.............. Definitions ....... Ripeness .....174 6............... Considerations .............. Enforcement of Agency Action ............174 B..... 7................................ Question of Law................. Modes of Creation of Administrative Agencies .......................174 3... Powers of Administrative Agencies ..............174 D.......... Question of Fact .. When judicial review is valid despite finality of administrative decisions: .....................174 C....................POLITICAL LAW REVIEWER ADMINISTRATIVE LAW Table of Contents Chapter I............................................. Certiorari .......174 4... Question of Discretion ......................... litis pendentia and res judicata also apply to administrative agencies........................... Mandamus .. Preliminary Considerations. 6..................... Non-delegation doctrine..................................................................... Finality of Judgment 174 2...174 Chapter II...174 Habeas Corpus.............................. Four Important Doctrines in Judicial Review ........... Res Judicata........... When is an agency administrative? ....174 3... Factors to Consider in Judicial Review: ....174 3..174 3..........................174 4......................174 A......................................................174 1....... Prohibition ........................... 174 1........ ... The doctrines of forum shopping.................................174 A.............174 6............174 2............174 B......... Determinative Powers ......

.................207 A.................. Definitions ........................................ Meetings and Other Political Activity.............................. 210 2. 217 5.................. System of Continuing Registration of Voters ........................... Election Surveys ..... 214 1... Prohibited Contributions .......................... Disqualifications......... Qualifications ..................................... 216 8.... 210 3............ 207 4..207 2...............202 Chapter III..................... Suffrage . Nomination of Party-List Representative ............205 E. Change of residence or address .................. Qualifications........... Procedure for Registration. Illiterate or disabled voters............ Qualifications........... Application for Rallies....... 214 2....... Overseas Absentee Voter ............ Effect of disqualification case... Party System .....................204 7.............204 6..198 A............................................................... In General .. 209 7...... Sec..........204 4............... Voters: Qualification and Registration .... Rendition of Decision .......205 9................... 210 1............................207 3...................... Petition to Deny Due Course or to Cancel Certificate . Composition .....................POLITICAL LAW REVIEWER ELECTION LAW Table of Contents Chapter I............. 212 9.......... Election Campaign or Partisan Political Activity............203 B.............. Registration of Political Parties .... Definition ................................... 210 10.. Filing and withdrawal of certificate of candidacy ....200 1........201 D........203 1..............................206 6........... Composition .................. 2]... Measures Designed for COMELEC’s Independence ......................... Certified List of Voters ................. Election Period ....200 A......200 2.............206 Chapter IV... 209 9.207 1..................................... 217 3........................................ 217 6............. General Principles ... 212 C.................................204 3................ Annulment of Book of Voters .........199 Chapter II........................ Reactivation of Registration....... Statutory powers ..200 B................... Prohibited Fund-raising Activities ................................... Definition ........................206 1..203 A.. 211 6.............. Election Contributions and Expenditures 216 1.. Deactivation of Registration.. 211 7. Lawful Election Propaganda... Certificates of Candidacy . Pre-Election Requirements . COMELEC....................................205 C... Parameters in Allocation of Seats for Party-List Representatives ............... Constitutional powers and functions [Art.............. 215 7. Petition to declare a duly registered candidate as a nuisance candidate............ 209 8.......... IX-C.............. 212 8. Scope......198 B. 213 Chapter V............. Equal Access to Media Time and Space ...................................... Requisites of a Prohibited Donation 218 Chapter VI. Constitutional Mandate on Congress 199 C..................204 5............206 5...........................203 2....... 214 A................ Election Campaign................................................198 1.............. Effect of filing certificate of candidacy 209 6.................. 219 .... Election Registration Board ................ 211 4....... Challenges to right to register.............. Definitions ...201 2............... Election Proper ....206 3................ Powers and Functions...... Candidate.................. Purpose ..206 2..205 8....... Inclusion and Exclusion Proceedings205 D............202 E................................201 1............... 215 5... Time Period and Votes Required ...... Definitions ....200 C....................... Grounds for refusal and/or cancellation of registration ... 211 5......... Party-list and District Representatives Distinguished ............................. Registration of Voters....................................... Duty of COMELEC .......... Substitution of Candidates. Who May Not be Registered ............................ COMELEC decisions reviewable by the Supreme Court ...... 217 4.... Qualifications ..... Effect of Change of Affiliation.................... 216 2... Prohibited Acts ... Statement of Contributions and Expenses................. Inclusion and Exclusion Proceedings 206 7... Disqualifications .........198 2..... Coverage ................... Personal Overseas Absentee Registration ........ Limitations on Expenses....... National Registry of Overseas Absentee Voters ......... 214 3......... 215 4.......................... Definitions ............ 219 A................................ Election Campaign and Expenditures ...........206 4. Campaign Period .........202 3.............. 208 5. 210 B................................. 216 B........

.................220 2........ Effect of Proclamation of Winning Candidate ...............220 Chapter VII.................................. Voting..............220 2. Other Prohibitions ......................... Canvassing of Votes .............220 D... Violence ................ 2....... 4........................220 2...............220 2.. Intimidation.............220 4...................................................... Issues That May Be Raised.... 3........................220 2... Election Offenses ...........................................220 1.......................220 5...... Canvass by the BOC ........ Preferential Disposition of Election Offenses....................... Procedure ............ Prosecution of Election Offenses................ Effect of Filing of Pre-Proclamation Controversy ....... 220 Canvassing .......... Grounds ..... 220 Counting of Votes ..... Board of Election Inspectors ..............220 10..220 1........................................220 4..220 2............220 1. Prohibitions on BOC ..220 A.........220 9...............219 Failure of Elections ... Challenge of Illegal Voters.. Nature of Proceedings ............ Definitions ................................ Composition of Board of Canvassers 220 3.... Election Offenses........ 6..........220 1............... 220 Acts of Government or Public Officers 220 8...... Modes of Challenging Candidacy and Election Results..........220 4........... Cancellation of Certificate of Candidacy 220 1.....................220 B.....220 C..... Petition to Annul or Suspend Proclamation...220 2........ Declaration of Failure of Election 220 C... 220 9.... 220 F........ When Not Allowed ................ Disqualification Cases......POLITICAL LAW REVIEWER What Constitutes an Election.... 220 E............................................................ Counting of Votes..........219 Postponement of Elections .... Prescription ........................ Nature of Proceedings............... Coercion......220 1...... 220 4.......... 220 10.. Procedure ................................ Penalties....220 3..220 1...220 B... Jurisdiction ..... 7.......... Arrests in Connection with Election Campaign ........................ Election Campaign....220 3....... Casting of Votes...................... Voting Hours ............ Counting Proper....... Effect ...............220 C.............. Challenge based on certain illegal acts 220 D......................... 220 G....................................220 8.... Election Returns ............ Voting.220 3......220 E..... Procedure .......................220 B......................... Pre-Proclamation Controversies ......................... Issues That Cannot Be Raised ....................220 6...... Jurisdiction over Election Offenses. 5.......................... Certificate of Candidacy. Proclamation .................220 5........... Registration...............220 6.........220 1..... Certificate of Canvass and Statement of Votes .......220 7..................................... 9369 ................................................................. ....................A.........................220 A... Prohibited Acts Under R..220 3...220 Chapter VIII........219 Special Elections ........

...................... .............. Public Office ...... 234 2................... Steps in Appointing Process....................................... Public Officer’s Power is Delegated (not Presumed).....................234 7..................................234 1............................................... Nature ... Public Office and Officers . 234 4.................... Eligibility is Presumed .. Right to Compensation of De Facto Officer .............. Definition ............... Classification of Public Offices and Public Officers..234 3....234 F.... Power to Prescribe Qualifications .......... 234 2............ 234 I............234 8.. Elements .......... De Facto Officer Defined .........234 1........................................... Election ................................ 234 .... Political Qualifications for an Office 234 3....... C. Definition ..234 9.............. Methods of Organizing Public Offices 234 11..... Creation of Public Office .....234 6.. 234 5............234 3..........................234 C............ .... 234 F...POLITICAL LAW REVIEWER LAW ON PUBLIC OFFICERS Table of Contents Chapter I.....234 2. Purpose........................ 234 4.................. Public Contract ......................................... Qualification Standards .....234 5......234 1......................... ... Effect of Removal of Qualifications During the Term ....... Appointments to the Civil Service .........234 2.... De Facto Doctrine............234 D...... No Property Qualifications................... Modification and Abolition of Public Office 234 12... 234 3. 234 5... Civil Service Commission’s (CSC’s) Jurisdiction.. Discretion of Appointing Official ... Definition ... Qualifications Prescribed By Constitution ....234 3........... A Person Cannot be Compelled to Accept a Public Office............. Presidential Appointees................. Nature of Power to Appoint ...234 7.......... Elements of a De Facto Officership 234 4........ Classification of Appointments ........................... Modes of Commencing Official Relation 234 B.............234 G................... Effectivity of Appointment ............... Public Employment 234 6.234 10.................... Public Office is not Property..............234 A......................234 5........ 234 E.... Citizenship . Public Officer........ 234 1... Estoppel in Denying Existence of Office 234 B............ Final and Irrevocable Appointment.. Time of Possession of Qualifications 234 D.......... 234 H. 234 D....... Definition. Effects of a Complete................ No vested right to public office................. Disqualifications to Hold Public Office 234 Chapter III...234 E........ Public Office v............................ Office created under an unconstitutional statute....... Eligibility and Qualifications .... Religious Test or Qualification is not Required .......................234 C...234 2...... Liabilities of De Facto Officers .................234 Chapter II................ Formation of Official Relation . Effect of Pardon upon the Disqualification to Hold Public Office ................................................... 234 Appointment.........234 B........... Qualification Standards and Requirements under the Civil Service Law234 1..234 A... Legal Effect of Acts of De Facto Officers ............. Public Office v..... De Facto Officers ..234 4....................... 234 6.........234 A.... 234 G..........

.......................... Effectivity...... Abolition .................................. Administrative Code of 1987...................... 303 II.. Effectivity of Local Propositions ..272 C...............292` C..... 296 F.... Definition ..... Basic Services and Facilities .............. 294 E........268 C.................... Disqualifications ..261 C.................. Local Initiative and Referendum ................................... 304 A............................... Closure of Roads ..............277 G..... 288 III........258 A......................267 B........258 II.............. Political and Corporate Nature of LGUs 268 III....... X......................... 26........... 288 LGC Sec. Manner of Election ... Personal Liability of Public Official............................269 A... Jurisdictional Responsibility for Settlement of Boundary Dispute....................................... General Provisions ....... Creation and Conversion of LGUs 263 E....270 3.... 283 E.. Limitations on Initiatives. 284 Chapter V..268 I...278 Chapter IV......................................................... Sources of Powers of LGUs..... 294 D.. Specific Requirements.................................................................. Executive Supervision.... Penalties .. Definition .........271 B................... Sec....... Relations with Non-Governmental organizations ....... Appointments ................. 300 1.............................. Removal ................. 288 B..... 287 A...............268 A...... Rules of Interpretation .....271 4................................................... General Welfare .268 B........ Scope.... Term of Office ..... Power to Generate Revenue . Plebiscite........ Power of Tribunals.............. Beginning of Corporate Existence 264 II................................. Limitations Upon Local Legislative Bodies ....... Prior Consultation ................... Inter-local Relations ............................ Division and Merger ................... 283 F......... Creation.................259 C........... Settlement of Boundary Disputes .............. Requirements......... 285 C. Limitations... State Policy................. Maintenance of the Status Quo ................. Division and Merger.... Maintenance of Ecological Balance 288 C.260 Chapter II........ Reclassification of Lands ........267 C... Principles of Local Government Law 259 A....................................... 2 and 4 287 B........ 2(c).......................... Declaration of Policy.............. Corporate Powers ...... Abatement of Nuisance ...... Governmental Powers ........ Local Officials .......... 306 C.....276 F...260 III..................... Elective Local Officials ....................................POLITICAL LAW REVIEWER LOCAL GOVERNMENT LAW Table of Contents Chapter I..... 291 B.......................269 1................... 283 A............................................. 285 A. Dual Nature.............. Powers in General ............ 290 Chapter VII.............. 306 ....266 III.............. Relations with Philippine National Police 289 LGC.............................. Sec............ 287 II................ Eminent Domain.. 283 C........................ 290 B...... Local Autonomy ...... Rules on Succession ........258 B........... 288 A. Consultations ....... 291 I................... Liability for Torts............. 286 Chapter VI..... Discipline. 289 IV...... Administrative Action ........................ Police Power ..... Municipal Liability.. The Local Government Code ..... 304 B............... General Powers and Attributes of LGUs .................261 B..........................................................266 B........................ Other Relations.................261 A..268 II.................... Authority to Create Local Government Units 262 D..........273 D............................... 299 G..................... Abolition ....... 27 ........ Discipline. Recall ................264 F... 28 ...266 A.......259 C......................... Appointive Officials............. Qualifications .. Creation and Dissolution of LGUs ... Decentralization ........................ 1987 Constitution................ 283 D..................... Nature and Status .................258 I.................... Procedure ......269 2.......... Appeal.. Principles of Decentralization.......................................................... 283 B................ Title XII Chapter I.........260 A. Specific Provisions making LGUs Liable 285 B.....275 E....... Classification of Powers of LGUs...................260 B................................................ Execution of Powers .............267 Chapter III..........267 A................ Basic Principles............................................... Art.................. Violation of the Law and Contracts .................. 300 2....261 I........ Local Legislative Power ... 287 I..................259 B...... 291 A.......................... 290 A......... 302 3....260 C. Devolution ........... Intergovernmental Relations – National Government and LGUs...................

..............307 C..................... Officials Common to All Municipalities... Posting and Publication of Ordinances with Penal Sanctions ..........307 A...............307 C...........................307 1......307 D........ Cities and Provinces .................. Application of LGC to Autonomous Regions and Other Entities. Katarungang Pambarangay..307 Chapter VIII.307 III...... Prohibition against Appointment ..307 A.......... The Municipality .......... Miscellaneous and Final Provisions ....................... Provisions Applicable to Elective and Appointive Officials ........................... Sangguniang Kabataan ..............................................307 ....................... Local Government Units ... Local Peace and Order Council .........................................307 D. The Autonomous Region in Muslim Mindanao ....307 C..............................307 II..306 III......... Prohibited Interests . Cordillera Administrative Region.......................... The Metropolitan Manila Development Authority.....307 Chapter IX.... Local School Board .... Practice of Profession ........307 B......... Local Boards and Councils .............................................. Penalties for Violation of Tax Ordinances................................. The Province ... Local Development Council . Provisions for Implementation....................................307 B...... 89 ... Local Health Board...307 IV.....307 2........................307 LGC Sec.....307 Chapter X...............................POLITICAL LAW REVIEWER D...............307 A......................................307 I............... The Barangay...................307 B. The City ...........307 B..307 C.....307 A...............

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................. Commission on Elections........ and Utilization 47 C.......44 A.......... Art..................6 A........3 I.............4 II.......................... Central Monetary Authority .................................................................................................................44 C...............23 C....................... 1987 Const......... People.......................11 D.......................46 C................... Citizenship .......... Suits Against the State and the Doctrine of Sovereign Immunity...............................................48 A......... Private Lands ................................49 I........ Doctrine of Parens Patriae ................42 A.........46 I............................................ People’s Initiative ........44 V.........................................................................................................3 A....... Inquiries In Aid of Legislation ............46 A.....14 G....................... Right of Reply .......... Nature and Classification of Legislative Power .............51 IV..49 II.................................................. “Dominium” v “Imperium” .............................................................46 Exploration.........25 B................................ Current Events and Special Topics ...........6 E... Civil Service Commission................................. The President..........46 II........................... Commission on Audit ......... Qualifications and Term of Office10 C....................45 Chapter III............. Treaty of Paris...10 B..53 VI....42 B...... Structure and Powers of Government – Separation of Powers ..... III ....... Jurisdiction ..... Vice President......... Powers of Congress.....42 C..21 B..................4 III................ Judicial and Bar Council............... Art...................................8 A....... Goals............... Development............................8 C......10 I...........7 IV....48 III................. Ombudsman ............... Exceptions........ Privileges and Disqualifications 12 E.. I . Constitutional Commissions................................................. National Economy and Patrimony.... Judiciary............3 B......48 B.....................44 B..3 C............ Question Hour v............46 A.. Electoral Tribunals ........... Supreme Court.......6 B...... Filipino First....................................... Commission on Appointments ........................... Party-List System....................... Salaries...............48 Chapter IV............................ Territory .............52 V..........6 D......................4 A.............25 A.53 VII.. MOA on Ancestral Domain (MOA-AD) .....15 H.............10 A..........8 D.................51 III.......................... Regalian Doctrine [Jura Regalia] ........ Functions ...8 B...... Commission on Human Rights.... Internal Government of Congress .................9 Chapter II......................... Composition.......... Natural Resources ..................... General Principles ........... Monopolies............................................................POLITICAL LAW REVIEWER TABLE of CONTENTS CONSTITUTIONAL LAW 1 Table of Contents Chapter I........................ Constitutionally-Mandated Bodies ...............13 F........................48 V......... Sandiganbayan .......... Definition ........... Common Provisions ................... In General ............25 III............................................................ The (Erstwhile) Province of Shariff Kabunsuan ................................................................. Government ........................... Archipelagic Doctrine ................. Theory of Auto-Limitation ......16 II...................6 C....................46 B................... Legislative Department .............. Kinds ... General Rule ..... Stewardship Concept ............. Executive ...................21 A.. Election ...........54 B.. Definition .........48 IV... Executive Privilege........................... Citizenship Requirements .. 2 CONSTITUTIONAL LAW I ..41 IV............................... Sovereignty. De Jure and De Facto Governments...............4 B.. The State ...43 D.................................

The State I. FUNCTIONS C. Seabed. TERRITORY A. POLITICAL LAW Jennifer Go Subject Editor ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief IV. DE JURE AND DE FACTO GOVERNMENTS 3 CONSTITUTIONAL LAW I Earla Langit Lead Writer Abigail Alameda Maricor Estrella Kate Lomoljo Writers II. Insular shelves.POLITICAL LAW REVIEWER Chapter I. DOCTRINE OF PARENS PATRIAE D. Territory (Asked 7 times in the Bar) DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Romualdo Menzon Jr. Treaty of Paris. and other submarine areas corresponding to (1) and (2) 4) (1) and (2) also consist of terrestrial. Subsoil. Art. JURISDICTION E. Rania Joya A. 1987 CONSTITUTION. DEFINITIONS B. THEORY OF AUTO-LIMITATION LIMITATION C. RT. KINDS B. ART. DOMINIUM V. and comprehending the islands lying within the following line” xxx MOCK BAR COMMITTEE Lilibeth Perez BAR CANDIDATES WELFARE Dahlia Salamat LOGISTICS Charisse Mendoza SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members *Image taken from: http://media. III.j pg . PRINTING & DISTRIBUTION Kae Guerrero I.. 1987 Const. and aerial domains LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers B. Art. IMPERIUM D. THE STATE CONSTITUTIONAL LAW I CONSTITUTIONAL LAW I TEAM Dean Marvic MVF Leonen Faculty Editor Chapter I. I B. fluvial.photobucket. SUITS AGAINST THE STATE ST AND THE DOCTRINE OF SOVEREIGN SOVEREIG IMMUNITY GOVERNMENT A. III “Spain cedes to the United States the archipelago known as the Philippines Islands. TREATY OF PARIS C. ARCHIPELAGIC DOCTRINE DOCTRIN PEOPLE A. I SCOPE OF THE NATIONAL TERRITORY AS DEFINED IN THE CONSTITUTION 1) Philippine archipelago 2) All other territories over which the Philippines has sovereignty or jurisdiction 3) Territorial sea. CITIZENSHIP SOVEREIGNTY A. DEFINITION B.com/image/philippine%20map%20image%2 0international%20law/jibrael_2007/Jibrael%202008/map1_rpterritory.

under conditions provided by law.POLITICAL LAW REVIEWER Chapter I. (BERNAS) C. (Sec 3. Definition The term assumes three different meanings. and elect Philippine citizenship upon reaching the age of majority iv. at all times. and to documents. or civil service. iii. houses. the sovereign Filipino people …” (Preamble) ii. Sovereignty resides in the people and all government authority emanates from them.e. The Armed Forces of the Philippines is the protector of the people and the State. supreme over the military. This is to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen. Citizens of the Philippines at the time of the adoption of this Constitution. Inhabitants. The same is declared a popular right of the people and indisputably applies to both citizens and foreigners in this country. Archipelagic Doctrine Elements: 1. Art III)  The right of an individual to be secure in his person is guaranteed by the Constitution.” (Sec 7. to Filipino mothers. as used in: i. citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. “The right of the people to be secure in their persons. in the fulfillment thereof. as used in: i. ARTICLE IV. and also capable of maintaining the continued existence of the community and held together by a common bond of law.” (Sec 4. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable x x x” (Sec 2. This is available only to: those born before January 17. “The Philippines is a democratic and republican State. in order to delineate the internal waters from the territorial waters of an archipelago  Refer to PIL. “Civilian authority is. Those naturalized in accordance with law. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Electoral Tribunal of the House of Representatives (1991)] 2. “We. Internal waters – “waters around. per Roa vs. [Co v. Those whose fathers or mothers are citizens of the Philippines. and papers pertaining to official acts. shall be afforded the citizen. With the adoption of the 1935 Constitution and the . jus soli and jus sanguinis. papers. Collector of Customs (1912). Only two. II for further discussion on Baselines 4 CONSTITUTIONAL LAW I II. “The prime duty of the Government is to serve and protect the people. Citizenship (Asked 25 times in the Bar) 1. 1987 Constitution is also applicable to those who are born to Filipino mothers and elected Philippine citizenship before February 2. those who elect Philippine citizenship in accordance with ARTICLE IV. Access to official records.. ii. Section 1 (3)  The term "natural-born citizens. and ii. Straight baseline method – consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast. could qualify a person to being a "natural-born" citizen of the Philippines. 12. 1973. to render personal military.” (Sec 1. i. between and connecting the islands of the archipelago” 2. Electors. Art VII) Citizens. Natural-born i. “The President and the Vice-President shall be elected by direct vote of the people” (Sec 4. Section 1 (3). The Government may call upon the people to defend the State and. Art II) 2. as well as to government research data used as basis for policy development. Chap. subject to such limitations as may be provided by law. as used in: i. or decisions. People A. “people” means a community of persons adequate in number for selfsufficiency and defense. did not last long. Art II) iii. while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. depending on the context in which it is used: (NACHURA) 1. THE STATE “The right of the people to information on matters of public concern shall be recognized. Art II) 3. transactions. Those who elected to be citizens. Who are citizens? i. 1987. Art III) As an element of a state." is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. [Qua Chee Gan vs Deportation Board (1963)] B." [Tecson vs COMELEC (2004)] ii. Jus soli. all citizens may be required.

Art VI) iv. THE STATE How may citizenship be reacquired? i. Art VII) ii. President (Sec. 3 and 6. 1 (1). seek citizenship in another country (cite source)  disqualified from running for any elective local position. Who must be Natural-Born? i. Art XII) xi. vi. a mere application for repatriation does not. 63 and CA No.) have good moral character d. Repatriation  Repatriation results in the recovery of the original nationality. if by the laws of her husband’s country. he is deemed to have renounced his foreign citizenship. Repatriation requires an express and equivocal act. Com. no need to wait for 3 years (1 year for declaration of intent.) be a resident for 6 months c. aliens who are naturalized as Filipinos but remain loyal to their country of origin (cite source) ii. 1 (3). [Republic vs Guy (1982)] 5 CONSTITUTIONAL LAW I ii. the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Legislative Act  both a mode of reacquiring citizenship acquiring and EXCEPTION: A Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country. Art IX B) viii. 3. vii. No one can be compelled to remain a Filipino if he does not want to. 1 (1). Secretary of Labor (1947). Taking an oath of allegiance to another country upon reaching the age of majority. 8. since there has been NO EXPRESS renunciation of his Philippine citizenship. 17 (2). Express renunciation or expatriation [Sec. while serving the government. Hence. in including §5 in Article IV on citizenship. Chapter I. Vice-President (Sec. ii.POLITICAL LAW REVIEWER reversal of Roa in Tan Chong vs. Naturalization (CA No. and cannot.  Expatriation is a constitutional right. Marriage by a Filipino woman to an alien. Art XIII) Grounds for Loss of Citizenship i. (1995) Loss of Philippine citizenship cannot be presumed.1 (1). Members of Congress (Secs. 4. Accepting a commission and serving in the armed forces of another country.1 (2). 2. amount to an automatic reacquisition of the applicant’s Philippine citizenship. COA (Sec. Justices of SC and lower collegiate courts (Sec. and 2 years for the judgment to become executory)  requirements: a. [Frivaldo vs COMELEC (1989)] In the absence of any official action or approval by proper authorities. 3. 1 (1) Art IX C) ix. 20. (Sec. unless there is an offensive/ defensive pact with the country. if he is a natural-born citizen before he lost his citizenship. 5. she becomes a citizen thereof. the mere fact that he has a certificate stating that he is an American does not mean that he is not still a Filipino. the phrase “dual   . Naturalization in a foreign country [Sec. Act No. [Bengson III vs. Members of the Commission on Human Rights (Sec. HRET (2001)]  Mere filing of certificate of candidacy is not a sufficient act of repatriation. Denaturalization. Art VII) iii. or it maintains armed forces in RP with RP’s consent. [Mercado vs Manzano (1999)] Clearly. jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. 7 (1). iv. Ombudsman and his deputies (Sec.) have no disqualification  Naturalization is never final and may be revoked if one commits acts of moral turpitude. 473)  now an abbreviated process. (Sec 40d. [Aznar vs COMELEC (1995)] Dual Allegiance i. iii. CSC (Sec. v. he will be restored to his former status as a natural-born Filipino. Osmeña was both a Filipino and an American. Local Government Code) Once a candidate files his candidacy.) be 21 years of age b. Considering the fact that admittedly. [Labo vs COMELEC (1989)]  iii. Members of Constitutional Commissions vii. Art XI) vi. COMELEC (Sec. Art VIII) v. 63)  Aznar v COMELEC. Members of the Central Monetary Authority (Sec. public officers who. Art IX D) x. Being found by final judgment to be a deserter of the AFP. CA 63]. CA 63]. Therefore. [Go Gullian vs Government] 6.

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and. (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: provided. 7854. — Any provision of law to the contrary notwithstanding. (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice. Cf: RA 9225 (Citizenship Retention and Re-acquisition Act of 2003) Sec. upon the filing of their certificates of candidacy.  Regalian doctrine  all lands of the public domain belong to the State. at the time of the filing of the certificate of candidacy. and defending it against foreign invasion.A. of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. after the effectivity of this Act. Retention of Philippine Citizenship.  covers such activities as passing laws governing a territory. 5. otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws. V of the Constitution. — Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Sec. 4. illegitimate or adopted. for candidates with dual citizenship. (b) Chapter I. therefore.”  Consequently. they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. B. Sovereignty is subject to restrictions and limitations voluntarily agreed to by the Philippines. and anyone claiming title has the burden to show ownership. External sovereignty (also known as independence) . 7160. comes within this concept. that they renounce their oath of allegiance to the country where they took that oath. and disposition or sale of the same.  covers such rights as title to land. Civil and Political Rights and Liabilities. natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: xxx Natural-born citizens of the Philippines who.power to control domestic affairs. In this capacity.A. Art. Sovereignty (Asked 4 times in the Bar)  Supreme and uncontrollable power inherent in a State by which the State is governed. below eighteen (18) years of age.  . — The unmarried child. Sec. No. as a member of the family of nations. 6 CONSTITUTIONAL LAW I III. maintaining peace and order over it. and/or are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. [Cruz v. be subject to strict process with respect to the termination of their status. who must. Unlike those with dual allegiance. persons with mere dual citizenship do not fall under this disqualification. §20 must be understood as referring to “dual allegiance. become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. 4. Internal sovereignty . 3.power to issue final commands. A. §40(d) and in R. Derivative Citizenship.  When the State acts in this capacity. whether legitimate. No. and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by. “Dominium” v “Imperium” [Lee Hong Hok v. Sec of DENR. or extended to.POLITICAL LAW REVIEWER citizenship” in R. make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.power behind the legal sovereign. Kinds 1. it generally enjoys sovereign immunity. David.power to direct relations with other states. Legal sovereignty . RA 9189. 2. [Tañada vs Angara (1997)]  C. exploitation and use of it. Sec. THE STATE citizens. or the sum total of the influences that operate upon it. (1972)]  “Dominium” –  capacity of the State to own property. 1. Political sovereignty . expressly or impliedly. (2000)] “Imperium”  State’s authority to govern. those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized 3. the State descends to the status of ordinary persons and thus becomes liable as such. Theory of Auto-Limitation  It is the property of the State-force due to which a State has exclusive legal competence of selflimitation and self-restriction. it should suffice if.

Special Agent  one who receives a definite and fixed order or commission. iii. ii. 1. ii. Villasor (1973)] A suit is against the State regardless of who is named the defendant if: i. foreign to the exercise of the duties of his office if he is a special official. and acts. iii. Suits Against the State and the Doctrine of Sovereign Immunity (Asked two times in the Bar)   The State may not be sued without its consent. a. THE STATE is clear that the respondent is a public officer sued in a private capacity. (1916)]  This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions . since the suit is intended to compel performance of a ministerial duty. it produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. condition and legal capacity of persons are binding upon citizens of the Philippines. 3.  Implied consent  when the State enters into a business contract or itself commences litigation.  In instances when the State takes private property for public use or purpose. [Kawananakoa v. suability will result only where the government is claiming affirmative relief from the defendant. officers and employees. when they act as special agents within the meaning of Art. In the following instances. things. cities and municipalities shall be liable for damages for the death or injuries suffered by any person by reason of the defective conditions of roads. CC: Provinces. It is effected only by the will of the legislature through the medium of a duly enacted statute. (1990)]  When it would be inequitable for the State to invoke its immunity. The Government is only liable for the acts of its agents. public buildings and other public works under their control and supervision. when the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment. CC: Laws relating to family rights and duties. Polyblank (1907)] If the State is amenable to suits. it was held that the suit is not against the State: i. PVA (1970)] ii. may be embodied either in a: General Law  authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law Special Law  may come in the form of a private bill authorizing a named individual to bring suit on a special claim  Art 2189. How the State’s consent to be sued is given: i. Express consent a. Extraterritorial jurisdiction E. when the action is not in personam with the government as the named defendant. (Art 15. it ii. their persons.  also called the doctrine of Royal Prerogative of Dishonesty. Personal jurisdiction  authority of the State over its nationals. or acts. property. Jurisdiction  Jurisdiction is the manifestation of sovereignty. streets. Govt of the Philippine Islands. The jurisdiction of the state is understood as both its authority and the sphere of the exercise of that authority. all its time would be spent defending itself from suits and this would prevent it from performing it other functions. Territorial jurisdiction  authority of the State to have all persons and things within its territorial limits to be completely subject to its control and protection. [Republic vs. Guinto. (SINCO) KINDS: i. but an action in rem that does not name the government in particular. 2180 (6) CC. Art XVI) There can be no legal right as against the authority that makes the laws on which the right depends. or to the status. cannot prosper unless the State has given its consent. (Sec 3. [Merritt v. D. When does Liability Attach? 2. whether within or outside its territory. when from the allegations in the complaint.POLITICAL LAW REVIEWER Chapter I. [US v. [Begoso v. even though living abroad.)  authority of the State over persons. b. 7 CONSTITUTIONAL LAW I 1. outside its territorial limits by reason of their effects to its territory iii.  State may only be liable for proprietary acts (jure gestionis) and not for sovereign acts (jure imperii)  When state files complaint.

made under the royal patronate powers then  . other forms of local government. regulates and determines contract between individuals vi.  C. transmission and interchange of property iv. regulation of the holding. for the protection of his rights.[US vs Dorr (1903)] B. This prerogative of parens patriae is inherent in the supreme power of every state. i. Federation of Labor Unions. public works ii.   b. even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the State and as its agents and servants. “Government of the Republic of the Philippines” is defined as: the corporate governmental entity through which the functions of government are exercised throughout the Philippines. the autonomous regions. municipal.  Consent to be sued includes actions based on quasi-delict even though committed by regular. city. i. having been created by the royal order of the King of Spain of July 8. including  the various arms through which political authority is made effective in the Philippines. define crime and punishment v. for acts without authority or in excess of the powers vested in him. public education iii. 2. and not special. but if it is.POLITICAL LAW REVIEWER which are inherent in and naturally pertain to his office and which are regulated by law and the regulations. Functions 1. (1969)] c. and children iii. [Republic v Sandoval. dealings of state with foreign powers Ministrant functions . and not through a special agent. fixing of legal relations between man and wife. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. optional. 2(1) Administrative Code. it invariably provides this corporation a separate entity and with the capacity to sue and be sued. compulsory.undertaken to advance the general interests of society. [ACCFA v. it can invoke the defense that it acted through its regular employee. Doctrine of Parens Patriae   Parens patriae is the task of the government to act as guardian of the rights of the people. Constituent functions . Definition Sec. keeping of order and providing protection ii. health and safety regulations v. public charity iv. the provincial. or barangay subdivisions. Government (Asked two times in the Bar) 8 CONSTITUTIONAL LAW I A. and an action against the officials or officers by one whose rights have been invaded or violated by such acts. whether that power is lodged in a royal person or in the legislature The Monte de Piedad y Caja de Ahorros de Manila is an institution organized in accordance with the canon law. THE STATE IV. or 3. trade and industry The distinction between constituent and ministrant functions is not relevant in our jurisdiction. is not a suit against the State. agents. 1880. The principle of State immunity from suit does not apply when the relief demanded requires no affirmative official action on the part of the State or the affirmative discharge of any obligation which belongs to the State in its political capacity.  Unauthorized acts of government officials or officers are not acts of the State. 2. When the Government creates a corporation.  Rule: a government entity can be sued for tort.constitute the very bonds of society. [Lansang vs CA (2000)] Chapter I. whether pertaining to: 1. (1993)] “Government” is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Aquino. president made by a co-equal branch of government cannot be reviewed by this Court. et al]. Indeed. [Co Kim Cham v. an institution for the safe investment of the savings of the poor classes and to assist the needy in time of need by loaning such savings to them at a low rate of interest. the community of nations has recognized the legitimacy of the present government. (2001)] 9 CONSTITUTIONAL LAW I D. still. we held that the government of former President Aquino was the result of a successful revolution by the sovereign people. she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. albeit a peaceful one.  It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In fine. In her oath. he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily.POLITICAL LAW REVIEWER existing in the Crown of Spain. [In re Bermudez. no power or control. Monte de Piedad. the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. (1992)] De facto government i. Lozano v. And the people have made the judgment. (1986) citing Lawyers League for a Better Philippines v. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure. either because this has been withdrawn from it. EDSA I presented a political question. or because it has not yet actually entered into the exercise thereof. THE STATE the 1987 Constitution. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. has rightful title ii. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution. they have accepted the government of President Corazon C. [Government of the Philippine Islands v. EDSA II involves legal questions. the government of respondent Arroyo is not revolutionary in character. [In re Letter of Associate Justice Puno. as reorganized. De jure government i. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. (1986)] In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. it actually exercises power or control without legal title. It belongs to the realm of politics where only the people of the Philippines are the judge. have sworn to uphold the fundamental law of the Republic under her government. The royal order referred to created. All the eleven members of this Court. she categorically swore to preserve and defend . Valdes. EDSA I is extra-constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review. De Jure and De Facto Governments 1. (1945)]  The legitimacy of the Aquino government is not a justiciable matter. but EDSA II is intraconstitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. President Corazon C. Moreover. according to the purpose expressed therein. that is. (1916)] Chapter I. [Estrada v Desierto/ Estrada v GMA. government of fact. Aquino. xxx Even if the petitioner can prove that he did not resign. as amended. In checkered contrast." 2.

unless otherwise provided by law.   Senate (Art. COMMON PROVISIONS B. of I. Able to read and write 4. 2-4) 24 senators elected at large House of Representatives (Art. COMMISSION ON AUDIT CONSTITUTIONALLY-MANDATED BODIES A. QUALIFICATIONS AND TERM OF OFFICE C. 5-8)  Not more than 250 members. Nature:  The authority to make laws and to alter or repeal them. PRIVILEGES AND DISQUALIFICATIONS E. V.possessed by the sovereign people  Derivative . Sectoral Representatives  Natural-born citizens  At least 25 years old on the day of the election  Able to read and write  Registered voter in the district he seeks to represent  A resident of the said district for at least 1 year immediately preceding the day of the election 3 years 3 consecutive terms. ELECTORAL TRIBUNALS G.delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people  Constituent . However. ELECTION D. cities.power to pass ordinary laws 2. COMMISSION ON APPOINTMENTS H. POWERS OF CONGRESS JUDICIAL DEPARTMENT A. OMBUDSMAN C. Natural-born citizen 2. LEGISLATIVE DEPARTMENT A. VI Secs. COMMISSION ON ELECTIONS D. . STRUCTURE and POWERS of GOVERNMENT – Separation of Powers Chapter II. IN GENERAL B. Nature and Classification of Legislative Power 1. JUDICIAL AND BAR COUNCIL EXECUTIVE DEPARTMENT A. B. Composition Qualifications   Term of Office Term Limits Natural-born citizen At least 35 years old on the day of the election  Able to read and write  A registered voter  Resident of the Philippines for at least 2 years immediately preceding the day of the election 6 years 2 consecutive terms.  Vested in Congress. except to the extent reserved to the people by provision on initiative and referendum  Plenary (Congress may legislate on any subject matter provided that the limitations are observed. commencing at noon  on the 30 election th day of June next following their Term Limits: only up to 2 consecutive terms. Qualifications and Term of Office Senate (Art. 2. IV. Composition. Party-List Representatives 3. VI secs. 2-4) Composition: 24 senators elected at large Qualifications: 1. consisting of: i. unless otherwise provided by law. they may serve for more than 2 terms provided that the terms are not consecutive. Legislative Department (Asked 23 times in the Bar) 10 CONSTITUTIONAL LAW I II. Resident of the Philippines for at least 2 years immediately preceding the day of the election Term of Office: 6 years. consisting of: 1. District Representatives 2.power to amend and revise the Constitution  Ordinary . SUPREME COURT C. At least 35 years old on the day of the election 3. SANDIGANBAYAN B. 5-8) Composition: Not more than 250 members. CIVIL SERVICE COMMISSION C. A registered voter 5.  District Representatives  elected from legislative districts apportioned among the provinces. Structure and Powers Government – Separation of Powers I. VI secs.) Classification of Legislative Power:  Original . NATURE AND CLASSIFICATION OF LEGISLATIVE POWER B. VI Secs. VICE-PRESIDENT CONSTITUTIONAL COMMISSIONS A. COMPOSITION. 1. PRESIDENT B. SALARIES. INTERNAL GOVERNMENT OF CONGRESS F. III.POLITICAL LAW REVIEWER Chapter II. COMMISSION ON HUMAN RIGHTS A.  House of Representatives (Art.

2. (c) In addition thereto. Handicapped 8. Veterans 11. as far as practicable. Each city with a population of at least 250.  Term of Office: 3 years. Women 9. The Comelec shall promulgate the rules and regulations to effectively provide for the election of such sectoral representatives. b. irrespective of the number of inhabitants. Synchronized Terms of Office (Secs 1-2. Re-apportionment by Congress within 3 years after the return of each census 11 CONSTITUTIONAL LAW I  ii. contiguous. Able to read and write 4. a special election iii. Elderly 7. disabled persons.000. Overseas Workers 12. And Appropriating Funds Therefor) o Parties. but may not have more than 3 seats o Disqualified: 1. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers of nominees by the respective sectors. Urban Poor 5.  In B. 25 seats shall be allotted to sectoral representatives. The term of office prescribed by the Constitution may not be extended or shortened by the legislature. XVIII. Indigenous Cultural Communities 6. as may be provided by law Until a law is passed. sec. Labor 2. indigenous cultural communities. A resident of the said district for at least 1 year immediately preceding the day of the election. one (1) from the workers. Proportional representation based on number of inhabitants a. organizations. At least 25 years old on the day of the election 3. Natural-born citizens 2. there shall be one (1) sectoral representative from the women.P.POLITICAL LAW REVIEWER  Chapter II. 3. Party-List Representatives  20% of the total number of representatives  chosen indirectly through a party selected by voters  RA 7941 (An Act Providing For The Election Of Party-List Representatives Through The Party-List System. [Dimaporo vs Mitra (1991)]  Term Limits: No member of the House of Representatives shall serve for more than 3 consecutive terms. to be chosen by appointment or election. Youth 10. Rules on Apportionment of Legislative Districts: 1. and one (1) from any of the following sectors: the urban poor. RA 7160 (An Act Providing for a Local Government Code of 1991): Manner of Election. . except for President and Vice-President. (Art. or each province. Tenure may be shorter than the term or it may not exist at all. Blg. Those Advocating Violence or Unlawful Means o Qualified Sectors: 1. Sectoral Representatives 2. (Sec 8. commencing th at noon on the 30 day of June next following their election. but the period during which an officer actually holds the office (tenure) may be affected by circumstances within or beyond the power of said officer. compact. as may be provided for by law. and the Metro Manila area. Art VI) Special Election  In case of vacancy in the Senate or in the House of Representatives. These situations will not change the duration of the term of office. Fisherfolk 4. Peasant 3. Religious Sects 2. Art XVIII) C. shall have at least 1 representative. and coalitions must obtain at least 2% of all votes cast to obtain a party-list seat o Those garnering more than 2% are entitled to additional seats in proportion to their total number of votes. 881 members of the legislature included in the enumeration of elective public officials are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office. 7) Sec. shall have at least 1 representative. Regular Elections  Unless otherwise provided by law. Registered voter in the district he seeks to represent 5. 41. Each province. or any other sector as may be determined by the sanggunian concerned within ninety (90) days prior to the holding of the next local elections. Each legislative district shall comprise. Professionals    For 3 consecutive terms from 2 February 1987. and adjacent territory. the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. they are appointed by the President from a list Qualifications of Representatives: 1. Foreign Organizations 3. Election 1.

(1960)] Disqualifications  May not hold any other office or employment in the government during his term without forfeiting his seat. He had acquired a mere P200. (Art VI Sec 13)  May not be appointed to any office created or the emoluments thereof were increased during the term for which he was elected. President of the Senate. Mathay. The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. Congressional immunity is a guarantee of immunity from answerability before an outside forum but not from answerability to the disciplinary authority of congress itself. Art VI) 12 . First. he had signified his intention to appear as counsel for respondent. Members of the House of Representatives. perhaps. electoral tribunal. the validity of the objection. to come under the guarantee the speech or debate" must be one made "in Congress or in any committee thereof. does not shield the member against the disciplinary authority of the Congress.POLITICAL LAW REVIEWER Chapter II. Speaker of the House of Representatives.843 outstanding shares. (1974)] Annual Salary Php 300.000 Official President Vice-President. Salaries. Before he moved to intervene. (Art VI Sec 13)  Cannot personally appear as counsel before any court. (1982)]   The Constitution mandates that there should always be adequate representation for every province or legislative district. an administrative body" and that is a circumvention of the Constitutional prohibition.000 Php 240. There was reiteration that. and one day before the scheduled hearing of the case before the SEC. (Art VI Sec 14)  Shall not be financially interested. such immunity. in any contract with. a clarification of the scope and limitation of the parliamentary immunity was made. If a vacancy occurs in a manner contemplated in the Constitution. Second. What constitutes disorderly behavior is entirely up to Congress to define.  No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase." [Jimenez v. to "intervene" on the ground of legal interest in the matter under litigation. after the quo warranto suit had been filed before SEC. Speech and Debate Clause  In this case. (1983)] 4. Pendatun. Salaries  The salaries of Senators and Members of the House of Representatives shall be determined by law. COMELEC. he decided. (1966)] CONSTITUTIONAL LAW I may be called to fill such vacancy in the manner prescribed by law. [Lozada v. and Chief Justice of the Supreme Court Senators. (Sec 9.00 worth of stock in IPI. 1987 Constitution)  A Senator or Member of the House of Representatives shall. Cabangbang. or franchise or special privilege granted by the government during his term of office. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers  Each House of the Congress can discipline its members for disorderly conduct or behavior.. in all offenses punishable by not more than six years imprisonment. instead. and Chairmen of the Constitutional Commissions Members of the Constitutional Commissions Php 204. be privileged from arrest while the Congress is in session.000 2.  No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. quasi-judicial and administrative bodies during his term of office. although absolute in its protection of the member of Congress against suits for libel. (Art VI Sec 14) Certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He acquired them after the contested election of Directors. [Ligot v. D.. Although a member of Congress shall not be held liable in any other place for any speech or debate in the Congress or in any committee thereof. (Art VI Sec 14)  Shall not intervene in any matter before any office of the government when it is for his pecuniary benefit or where he may be called upon to act on account of his office. but which was objected to by petitioners. But the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. representing ten shares out of 262. Realizing. Associate Justices of the Supreme Court. [Puyat v De Guzman. Privileges and Disqualifications 1. 3. then Congress has the authority if not the duty to call for special elections. [Osmena v.000  Php 180. Under those facts and circumstances that there has been an indirect "appearance as counsel before . directly or indirectly. Freedom from arrest (Art VI Sec 11.

Internal Government of Congress 1.POLITICAL LAW REVIEWER 5. and with the concurrence of 2/3 of ALL its members: 1. In this case. [Avelino v. [Alejandrino v. the contents of the enrolled bill are conclusive upon the courts. thus outside of each House’s coercive jurisdiction. deletion of unparliamentary remarks from the record 2. the legislature’s formulation and implementation of its rules. Issues may either be: o Political. Expulsion Other disciplinary measures: 1. A smaller number may adjourn from day to day and may compel the attendance of absent members. Such officers as deemed by each house to be necessary Election of Officers: respective members By a majority vote of all 2. and of the President of the United States.when the legislative rule affects private rights. Senate President 2. 4. The Senate had no authority to suspend an appointed Senator like Senator Alejandrino. Speaker of the House 3. The Court held that the resolution was illegal since it amounted to expulsion and it would deprive the electoral district of representation without any means to fill the vacancy. imprisonment 4. Therefore. “Majority” refers to the number of members within the “jurisdiction” of the Congress (those it can order arrested for the purpose of questioning). upon assumption of office and as often as may be required by law. The Enrolled Bill Theory  An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House. a solemn assurance by the legislative and executive . Cuenco. Senate adopted a resolution depriving Senator Alejandrino of all the prerogatives. the latter requiring less number than the first. members who are outside the country. Suspension (shall not exceed 60 days) 2.An enrolled Act in the custody of the Secretary of State. and net worth. privileges and emoluments of his office for the period of one year. Quorum    Majority of each House shall constitute a quorum. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers members of the House" and a majority of "the House". (1924)]   E. and having the official attestations of the Speaker of the House of Representatives. Quezon. o 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.  RATIONALE OF ENROLLED BILL THEORY. an absolute majority (12) of all members of the Senate less one (23) constitutes constitutional majority of the Senate for the purpose of the quorum. are not included. Rules of Proceedings   Each House shall determine its own procedural rules. so that the working majority was 23 Senators. Discipline of Members  Each house may punish its members for disorderly behavior. censure Senate expelled Senator Alejandrino for disorderly conduct for assaulting Senator de Vera during one of their debates in session. submit a declaration under oath of his assets. (Art VI Sec 12)  The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law. (1949)] Duty to Disclose  A public officer or employee shall. upon assumption of office. liabilities. make a full disclosure of their financial and business interests. Chapter II.On matters affecting only internal operation of the legislature. carries. In computing a quorum. of the President of the Senate.  Cases wherein declaration shall be disclosed to the public in the manner provided by law: o President o Vice-President o the Members of the Cabinet o the Congress o the Supreme Court o the Constitutional Commissions and other constitutional offices o officers of the armed forces with general or flag rank (Art XI Sec 17)  All Members of the Senate and the House of Representatives shall. Journal and Congressional Records a. (Art VI Sec 20) 13 CONSTITUTIONAL LAW I 3. o Justiciable . Election of officers Officers: 1. There is a difference between a majority of "all 5. one Senator was out of the Philippines which is not within the “jurisdiction” of the Senate. fine 3.  where the certifications are valid and are not withdrawn. o such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. on its face.

that it was passed by Congress. as the case may be. chosen on the basis of proportional representation from the political parties and party-list organizations. Lopez Vito.  Continues to be in session until 30 days before the start of its next regular session. Special Sessions  Called by the President at any time when Congress is not in session Adjournments  Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House. All bills enacted during the sine die session are valid and conclusive upon the Courts. leaving the courts to determine. (1974)] e. is in conformity with the Constitution [Astorga vs Villegas. when the question properly arises. Members chosen enjoy security of tenure and cannot be removed by mere change of party affiliation. 9)  Declaring a state of war (Sec. with the duty of enacting and executing the laws. the courts may resort to the journals and other d. b. Art XVII)  Voting Jointly  To revoke or extend martial law or suspension of privilege of habeas corpus (Sec. The five LDP members who are also members of the Senate Electoral Tribunal may not inhibit themselves since it is clear that the Constitution intended legislative and judiciary membership to the tribunal. as having passed Congress. 1. The Journals are conclusive evidence of the contents thereof and Courts are bound to take judicial notice of them.    CONSTITUTIONAL LAW I departments of the government. Clark]. The ET shall be constituted within 30 days after the Senate and the House shall have been organized with the election of the President and the Speaker. 1(1)." Thus it has also been stated in other cases that if the attestation is absent and the same is not required for the validity of a statute. all bills authenticated in the manner stated. Sec. F. charged. exclusive of Saturdays.  c. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers records of Congress for proof of its due enactment. so authenticated. The respect due to coequal and independent departments requires the judicial department to act upon that assurance. Sec. without the consent of the other. [Astorga v. and to accept. Matters required to be entered in the Journal  Yeas and Nays on third and final reading of a bill  Veto message of the President  Yeas and Nays on the repassing of a bill vetoed by the President  Yeas and Nays on any question at the request of 1/5 of members present.. Art VI)  Amending the Constitution (Sec. When the journal shows that Congress conducted a sine die session where the hands of the clock are stayed in order to afford Congress the opportunity to continue its session. 14 . Art VII)  Determining the President’s temporary disability (Id..  But when the contents of the journal conflicts with that of an enrolled bill. as having passed Congress. (1974) citing Field vs. 18 Art VII)  Respect due to a co-equal department requires the courts to accept the certification of the presiding officer of the legislative body. [US vs Pons (1916)] d. Congressional Record 6. all bills authenticated in the manner stated. whether the Act. Regular Sessions th  Convenes once every year on the 4 Monday of July. (1947)] b." which requires the judicial department "to accept.[Mabanag v. Sessions a. 6 Members of the Senate or House.  Neither can they adjourn to any other place than that where the two houses are sitting. Probative value of the Journal  The Journal is conclusive upon the courts. Villegas. 23(1). [Casco vs Gimenez (1963)] A duly authenticated bill or resolution imports absolute verity and is binding on the courts. the 2:1 ratio of c. Journal Entry Rule v. the enrolled bill prevails over the contents of the journal. and legal holidays. Par 4)  Confirming the nomination of a VicePresident (Id.POLITICAL LAW REVIEWER Chapter II. Enrolled Bill Theory  It may be noted that the enrolled bill theory is based mainly on "the respect due to coequal and independent departments. 4. Sundays. respectively.   Electoral Tribunals Composition 3 Supreme Court Justices to be designated by the Chief Justice (The senior Justice in the Electoral Tribunal shall be its Chairman). 11.  Congress may validly continue enacting bills even beyond the reglementary period of adjournment. Joint Sessions  Voting separately  Choosing the President (Sec. As a matter of fact.

an independent organ. Jurisdiction over such remains with the COMELEC. Grave abuse of discretion defies exact definition.POLITICAL LAW REVIEWER Chapter II. when acting within the limits of its authority.one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner. the Electoral Tribunal has no jurisdiction. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature [ Co vs HRET (1991) citing Angara vs. (1991)] The HRET was created to function as a nonpartisan court although two-thirds of its members are politicians.  Judicial Review of Decisions of Electoral Tribunals With the SC only insofar as the decision or resolution was rendered o without or in excess of jurisdiction. returns and qualifications of the members of the National Assembly. scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election. To be able to exercise exclusive jurisdiction. Composition: Senate President as ex-officio chairman (shall not vote except in case of a tie. while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. hence. o Resignation form political party which one  G." [Angara vs Electoral Commission (1936)]  Lazatin v. the House Electoral Tribunal must be independent. HRET. CONSTITUTIONAL LAW I legislative to judiciary indicates that legislative membership cannot be ignored. c. Pineda. (1991)] Valid grounds / Just cause for termination of membership to the tribunal. o Death or permanent disability.  Election Contest . the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. he is not yet a member of the House. but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. o Expiration of Congressional term of office. [Co vs HRET. as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET’s. and qualifications of the members of Congress. in the exercise of their functions independent organs — independent of Congress and the Supreme Court. the Electoral Tribunals are. Art VII) 1. The Electoral Tribunals are independent constitutional bodies and cannot be regulated by Congress.  5. Commission on Appointments (Sec. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. a. (1988) The HRET will only gain jurisdiction upon proclamation of the candidate. ET has jurisdiction only when there is an election contest. it is to all intents and purposes. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. [Abbas vs SET (1988)] o 4. returns. returns. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers represents in the tribunal. The Electoral Tribunal of each House is the SOLE judge of all contests relating to the election. or to act at all in contemplation of law.  Independence of the Electoral Tribunals Since the ET’s are independent constitutional bodies. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions. [Bondoc v. Supreme Court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character. "The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government. Removal from office for other valid reasons. It is a non-political body in a sea of politicians. As constitutional creations invested with necessary power. independent even of the respective House. or o with grave abuse of discretion tantamount to denial of due process. b. Nature of Function Jurisdiction: be the sole judge of all CONTESTS relating to the election. Electoral Commission [1936]). and qualifications of their respective members. Powers 15 .) 12 Senators 12 Members of the House  The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations. the HRET will not have jurisdiction over him.  2. In the absence of election contest. To exclude themselves is to abandon a duty that no other court can perform. [Garcia vs HRET (1999)]  3. Until such proclamation.

f.  Officers of the AFP from the rank of Colonel or Naval Captain. c.  give concurrence to treaties and amnesties. Appointments extended by the President to the above-mentioned positions while Congress is not in session shall only be effective until disapproval by the Commission on Appointments or until the next adjournment of Congress. Limitations: CONSTITUTIONAL LAW I The authority of the House of Representatives to change its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the political alignments of its membership. a. frame and enact laws Non-legislative Powers (Scope)  power to canvass the presidential elections.  impeach. Section 18 in effect works as a check on the majority party in the Senate and helps to maintain the balance of power. b.  powers of appropriation. Since the Commission on Appointments is also an independent constitutional body.    2. taxation and expropriation  authority to make. b. The Commission on Appointments shall act on all appointments within 30 session days from their submission to Congress.  Other officers whose appointments are vested in him by the Constitution (e.  The provision of Section 18 on proportional representation is mandatory in character and does not leave any discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation RATIONALE: The party with a majority representation in the Senate or the house of Representatives can by sheer force of numbers impose its will on the hapless minority. and establish all manner of wholesome and reasonable laws.  Ambassadors.    Meetings Commission on Appointments shall meet only while Congress is in session. liberty and property and the promotion of general welfare Power of Taxation Power of Eminent Domain Contempt power 3. 2. Meetings are held either at the call of the Chairman or by a majority of all its members. Inherent Powers a. d. statutes and ordinances as they shall judge for the good and welfare of the constituents.  declare the existence of war. b. Congress cannot by law require that the appointment of a person to an office created by such law shall be subject to confirmation by the Commission on Appointments. [Daza vs SIngson (1989) 16 . No party can claim more than what it is entitled to under such rule. Legislative Powers: (Scope: vested in Congress by the Constitution except to the extent reserved to the people by the provision on initiative and referendum).  Includes maintenance of peace and order. c.g. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers COMELEC members).  derivative and delegated power. Police Power  Make. protection of life. vs Gonzales. [Guingona. Constituent power Legislative Inquiries Appropriation Taxation Concurrence in treaties and international agreements War powers and delegations powers 3. e. Specific Powers a. H. c. ordain. Jurisdiction Commission on Appointments shall confirm the appointments by the President with respect to the following positions:  Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post).  propose constitutional amendments. By requiring a proportional representation in the Commission on Appointments. Powers of Congress 1.  implied powers such as the power to punish contempt in legislative investigations. other public ministers or consuls. d. Jr. General (Sec Art VI) a. b. The Commission on Appointments shall rule by a majority vote of all its members.POLITICAL LAW REVIEWER  Chapter II. 4. (1993)] The Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker. It is understood that such changes in membership must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another. its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.

etc is assigned to: 1. To be supported by appropriate vouchers iii. church.  Specific Limitations o For General Appropriations Bills 1. Art VI o Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title o No bill passed by either house shall become law unless it has passed 3 readings on separate days o Printed copies in its final form have been distributed to its members 3 days before the passage of the bill  Exception: president certifies to the necessity of its immediate enactment to meet a public calamity or emergency Substantive Limitations  Circumscribe both the exercise of the power itself and the allowable subject of legislation  Express limitations: o Sec 24-26. . Speaker of the House iv. o Cannot appropriate public funds or property. EXCEPT if the priest. denomination. the following may. 28-30. III) Appropriation General Limitations: o Appropriations must be for a PUBLIC PURPOSE. Discussion of Specific Powers a. Art VI  Express limitations on general powers o Bill of rights  Implied Limitations o No power to pass irrepealable law o Non-encroachment on powers of other departments o Non-delegability of powers 17 CONSTITUTIONAL LAW I o  b. even if it incidentally benefits a religion. the temporary use of public property for religious purposes is valid. be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations: i.  b. or other religious teacher or dignitary as such. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers appropriating money for a valid secular purpose. Also.  Constituent Powers Power to propose amendments to the Constitution Legislative Inquiries (Sec 21. Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. Senate President iii. BY LAW. the Armed Forces. minister. It shall remain in force and effect until the general appropriations bill is passed by Congress. 4. 5.POLITICAL LAW REVIEWER a. 3. Any sect. Any priest. as long as the property is available for all religions. Heads of the Constitutional Commissions Guidelines for disbursement of DISCRETIONARY FUNDS appropriated FOR PARTICULAR OFFICIALS: i. President ii. Procedure in approving appropriations FOR THE CONGRESS shall strictly follow the procedure for approving appropriations for other departments and agencies. Formal or Procedural Limitations  Prescribes the manner of passing bills in the form they should take  Limitations provided by Sec 26. 2. content and manner of preparation of the budget shall be prescribed by law. Art VI) Requisites: o Must be in aid of legislation o In accordance with duly published rules of procedure o Right of persons appearing in or affected by such inquiries shall be respected Additional limitation: Executive Privilege (Refer to Chap 4. 3. in favor of 1. or sectarian institution or system of religion or 2. appropriations for a national police force is valid even if the police also protects the safety of clergymen. e. Chief Justice of the Supreme Court v. 5. Chapter II.g. directly or indirectly. any penal institution. 2. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Subject to such guidelines as may be prescribed by law If Congress fails to pass the general appropriations bill by the end of any fiscal year: i. The general appropriations bill for the previous year is deemed reenacted ii. Form. preacher. For public purposes ii. However. government orphanage. leprosarium o Government is not prohibited from  c. 4. No law shall be passed authorizing any transfer of appropriations.

3.  Taxation (Sec 28. Shall be supported by funds actually available as certified by the National Treasurer or to be raised by corresponding revenue proposal therein 18 . any balance shall be transferred to the general funds of the Government o Limitation on Use of Public Funds (Sec 29. Art VI) Nature o Sec 28 is an enumeration of the limits on the inherent and otherwise unlimited power Purposes o Pay debts and provide for the common defense and general warfare. Reflects aim of the Convention that legislature following social justice command should use taxation as an instrument for more equitable distribution of wealth Constitutional Tax Exemptions: 1. All revenues and assets of NONSTOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually. or involve political issues or changes in national policies need the concurrence of 2/3 of the members of the Senate. 1.POLITICAL LAW REVIEWER o Chapter II. Tax burden is based on the taxpayers’ capacity to pay 3. Power to tax should be exercised only for a public purpose. 2. charitable. Once the special purpose is fulfilled or abandoned. o Raise revenue. Requirements for valid classification: i. Based on substantial distinctions which make real differences ii. Suited to the social conditions of the people 4. The rate increases as the tax base increases 2. Applies equally to those who belong to the same class o  e. for debt servicing. Budget accountability o o d. directly and exclusively used for educational purposes (sec. endowments. this rule does not prohibit continuing appropriations. Four phases of Government’s budgeting process: 1.    CONSTITUTIONAL LAW I For Special Appropriations Bill 1.    Concurrence in Treaties and international agreements (Sec 21. Germane to the purpose of law iii. Executive agreements which are merely implementation of treaties or statutes or of well-established policies or are of transitory effectivity do not require Senate concurrence. Art VI): 1. Religious. 2. for the reason that this rule does not require yearly or annual appropriation.g. Legislative authorization 3. subject to conditions prescribed by law (sec. Budget execution 4. 4 (4) Art XIV). 1. Applies to present and future conditions substantially identical to those of the present iv. donations or contributions used actually. Does not prohibit classification for the purpose of taxation 3. Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. Grants. Shall specify the purpose for which it is intended 2. Operates with the same force and effect in every place where the subject of it is found 2. 4 (3) Art XIV). War Powers (Sec 23 (1). However. educational institutions and their properties 2. Special Funds 1. the actual power to make war is lodged nonetheless in the executive f. Art VI) Congress in joint session assembled and voting separately shall have the sole power to declare the existence of war Philippines renounces war as an instrument of national policy Even though the legislature can declare existence of war and enact measures to support it. o Uniform and Equitable. No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law. o Imposition of tariffs designed to encourage and protect locally produced goods against competition for imports. o Tool for regulation. Limitations o Public. directly and exclusively for educational purposes shall be exempt from tax. o Instrument for extermination of undesirable acts and enterprises. Budget preparation 2. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers o Progressivity. o Instrument of national and social policy. Art VII) Treaties and other international agreements which are in the nature of original agreements of a permanent nature or which establish national policy. e.

Revenue bills (A bill specifically designed to raise money or revenue through imposition or levy. he shall veto the same and return it with his objections to the House from which it originated. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. not necessary that it be done through statute iii. the limits of which are sufficiently determinate or determinable. Auditor General. 23(2)). vii.  The President must communicate his decision to veto within 30 days from the date of receipt thereof. in order to become a law. The Completeness Test The law must be complete in all its terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except enforce it. at least 2/3 of ALL the members of each House must agree to pass the bill. A. and not the bill. 19 CONSTITUTIONAL LAW I b. such powers ceased at the time the war stopped ii. which is required to originate exclusively from the HoR. Legislative Process Bills that Must Originate EXCLUSIVELY from the House of Representatives (Sec. (1965)] 7. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers  RA 7716 (EVAT Law) did not violate Sec. v. Submission to the President.  To override the veto. To insist that a revenue statute. and not just the bill. . the veto is overridden and becomes a law without need of presidential approval.) A bill creating a new office.POLITICAL LAW REVIEWER Chapter II. though incidentally imposing a tax. VI (Origination Clause). Power may be withdrawn by resolution. vi. General rule: Congress cannot delegate its legislative power (Potestas delegate non potest delegare) Exceptions 1. 2. ii. President’s Veto power (Sec 27. 24. i. The bill as approved in the second reading is printed in its final form and copies are distributed three days before the third reading Third reading: Only the title is read. and amendments introduced. must be substantially the same as the House bill would be to deny the Senate’s power not only to “concur with amendments” but also to “propose amendments”. Procedure for the Passage of Bills Procedure for Enactment: Introduction: must be by any member of the House of Representatives or Senate except for some measures that must originate only from the former chamber First reading: The reading of the title and the number. the bill is passed by the Senate President or Speaker to the proper committee Second reading: Entire text is read and debates are held. 24. [Tolentino vs. The House shall enter the objections in the journal and proceed to reconsider it. because the bill may undergo such extensive changes in the Senate that the result may be the rewriting of the whole. The Sufficient Standard Test The law must fix a standard. Tests for a Valid Delegation 1. Since said grant was given to meet the emergencies incidental to the war. Delegation of Powers a. Subject to restrictions as the congress may provide 3. Sent to the other chamber: once the bill passes the third reading. Limited time period CA 671 – passed delegative emergency powers to the president in times of war and other national emergencies. o Preconditions: i. In such case. 4. the bill shall become a law as if he signed it. Delegation to administrative bodies (rule-making power). i. to which the delegate must conform in the performance of his functions. 5. iii. 28(2)). must be presented to and signed by the President. It is important to emphasize that it is the law. and appropriating funds therefor is NOT an appropriation bill. [Pelaez vs. 2. iv. Secretary of Finance (1994)] B. Art. Art VI)  Every bill. does not make the law a revenue bill. Delegation of tariff powers to the President (Art VI sec. it is sent to the other chamber where it will also go under three readings Enrolled Bill: The bill is printed as finally approved by the Congress. Delegation to local governments.) A law regulating an industry. If he fails to do so. Art VI): Appropriation bills (A bill appropriating a sum of money from the public treasury. It would violate the co-equality of legislative power of the Senate. Delegation to the people at large. no amendments are allowed.  If the President does not approve of the bill. authenticated with the signatures of the Senate President or the Speaker and the Secretary and approved by the President 6. Tariff bills Bills authorizing the increase of public debt Bills of local application Private bills ii. Delegation of emergency powers to the President (Art VI sec.

as an initiative upon a petition. while the Constitution has recognized or granted that right. (1990)] The Constitution provides that only a particular item or items may be vetoed. The inclusion of the word "Constitution" therein was a delayed afterthought. .A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. Held: RA 6735 is incomplete. rather intentionally. therefore. Effectivity of Laws Article 2 (CC) Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette. [Bengzon vs. the distinct and severable parts . not some general provision of law. That word is neither germane nor relevant to said section. The essence of amendments “directly proposed by the people through initiative upon a petition” is that the entire proposal on its face is a petition by the people. the details. and (b) the proposed changes constituted revision not amendment. 2.  The executive's veto power does not carry with it the power to strike out conditions or restrictions. Sec 2 of the Act does not suggest an initiative on amendments to the Constitution. Executive Order No. No agent or representative can sign on their behalf. no subtitle is provided for initiative on the Constitution. This code shall take effect one year after such publication. while RA 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation. it follows that the same produced no effect whatsoever. An 'item' of an appropriation bill means an item which in itself is a specific appropriation of money. Art.   unless otherwise provided – this phrase refers to the date of effectivity. 200 (June 18. Further. Drilon. a people’s initiative could only propose amendments not revisions. the proposal must be embodied in a petition. or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The veto is invalid since it is violated the separation of property and the judiciary’s fiscal autonomy. remains. for whatever reason. o Since it is an invalid provision under Section 25(2).   The right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. [Gonzales vs Macaraig. Art VI) Limited only to the proposal of amendments Requirements for people’s initiative:  12 % of the total number of registered voters  at least 3% of all registered voters in every district should be represented No amendments shall be authorized within 5 years following the ratification of the new Constitution. which happens to be put into an appropriation bill. a. (1992)] c.'" The president cannot veto unavoidable obligations such as the payment of pensions which has already been vested by the law. the people cannot exercise it if Congress. Stated otherwise. 1987): Amended Art II of CC to include any newspaper of general circulation as a means of publication other than the Official Gazette CONSTITUTIONAL LAW I Item veto o The President may veto particular items in an appropriation. b. Second. Unlike in the case of the other systems of initiative. and the restriction imposed by the appropriation bill. inadequate. It is an indivisible sum of money dedicated to a stated purpose. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. . it failed. Initiative and Referendum (Sec 32. The court cited the following reasons: 1. 8. to do so on the system of initiative on amendments to the Constitution. the people must author and thus sign the entire proposal. (1964)] DOCTRINE OF INAPPROPRIATE PROVISIONS. Only Congress or a constitutional convention can propose both amendments and revisions to the Constitution. C. revenue or tariff bill.XVII of the Constitution: (a) the initiative petition did not present the full text of the proposed amendments. An item in a bill refers to the particulars. First. If the veto is unconstitutional. unless it is otherwise provided. does not provide for its implementation.POLITICAL LAW REVIEWER Chapter II. the President may veto it as an item. and not to the very act of publication. [Bolinao Electronics Corp vs Valencia. Complete publication is indispensable. 20 . While the Act provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum. (1997)]  The court cited the following reasons for holding that there was failure to comply with §2. of the bill. A change in the form of government  “The terms item and provision in budgetary legislations and practice are concededly different. [Santiago vs Comelec. This means two essential elements must be present. Also. o This veto will not affect items to which he does not object. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers Veto of a Rider o A rider is a provision which does not relate to a particular appropriation stated in the bill. the Act does not provide for the contents of a petition for initiative on the Constitution.

(1995)] iii. The reason for this is the doctrine of separation of powers which requires that due respect be Requisites for exercise 1. Functions of Judicial Review a. Standing: personal and substantial interest 3. 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 the Government [Art. (2004)]. Request for an advisory opinion [Guingona vs. Par. requires partial consideration of the merits of the case in view of its constitutional and public policy underpinnings [Kilosbayan vs Morato. when the jurisdiction of the court is involved [NACHURA] Decision on the constitutional question must be determinative of the case itself. may be brushed aside by the court as a mere procedural technicality in view of transcendental importance of the issues involved [Kilosbayan vs Guingona. except: i. [Lambino v Comelec. Judicial Power v. (2003)] 21 . c. (1985)] Constitutional question must be raised at the earliest possible opportunity. CA. when questioning the validity of its own laws [People vs Vera. In General 1. [John Hay vs. if necessary for the determination of the case itself iii. Comelec. Judiciary (Asked 28 times in the Bar) A. Lis mota of the case  When the judiciary mediates to allocate constitutional boundaries. [Angara v. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. it does not in reality nullify or invalidate an act of the legislature. Checking Legitimating Symbolic [NACHURA] d. Standing: NOT the same as “real party in interest” A proper party is one who has sustained or is in imminent danger of sustaining a direct injury as a result of the act complained of [NACHURA. Actual case or controversy  This means that there must be a genuine conflict of legal rights and interests which can be resolved through judicial determination. (1998)] ii. Appropriate case: actual case or controversy 2. 1. when the enforcement of a public right is involved [Tañada vs Tuvera. The alleged injury must also be capable of being redressed by a favorable judgment [Tolentino v. it does not assert any superiority over the other departments. (2006)] Essential Requisites for Judicial Review a. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers II. (1995)] ii. i. in civil cases. (2004)]  Government of the Philippines.POLITICAL LAW REVIEWER Chapter II. at the discretion of the court ii. or  when the court feels called upon to exercise its symbolic function and provide future guidance [Salonga v. Question raised at the earliest opportunity 4. Sec. Cases that are or have become moot and academic. in criminal cases. (1997). 2] Jurisdiction – power to decide and hear a case and execute a decision thereof JUDICIAL REVIEW Supreme Court Lower courts Power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution [Angara v. (1937)]  legislators. Lim. (1936)] c. Electoral Commission. Zamora (2000)]. Paño.  CONSTITUTIONAL LAW I – from presidential and bicameral Congress to parliamentary and unicameral legislature— constitutes revision and not merely amendment. Executive Secretary. b. Mirasol. (2004)]. unless -- capable of repetition yet evading review [Alunan III v. citing IBP v. when public funds are involved [Tolentino vs Comelec. Electoral Commission (1936)] This precludes the courts from entertaining the following: i. Sanlakas v. VIII. Tatad vs DOE. Who are proper parties?  taxpayers. when the powers of Congress are being impaired [Philconsa vs Enriquez. (1994)]  citizens. (1994). Judicial Review (Asked 6 times in the Bar) Where vested Definition JUDICIAL POWER Supreme Court Lower courts Duty to settle actual controversies involving rights which are legally demandable and enforceable. (1985)] b. but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.

(1973): WON the 1973 Constitution had been ratified in accordance with the 1935 Constitution is justiciable. probity and independence  “Practice of law” is not confined to litigation. 2. Filipino At least At least 35 years 30 years old old Has been engaged for at least 5 years in the practice of law* in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite Age Experience Tenure Characteristics Javellana v. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers POLITICAL QUESTION XV. JUSTICIABLE CONTROVERSY given to the co-equal branches. [NACHURA] In recent years. Auditor General. Quezon. (1965) Certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized. Executive Secretary. knowledge. 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. [Cayetano v. (1962): The Commission on Appointments is a constitutional creation and does not derive its power from Congress. Lopez-Vito Lansang v. (1973): The people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article Tañada v. (1971): abandoned Mabanag v. Disqualification from Other Positions or Offices Art. legal procedure. Cuenco. (1960): disciplinary power of the legislature JUSTICIABLE CONTROVERSY Avelino v. [De la Llana v. Executive Secretary. Monsod. Vera v. Tan. which is what counts most. Jr. (1910): Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary (calling a special local election). after all. 12. POLITICAL QUESTION Alejandrino v. Alba. It is concerned with issues dependent upon the wisdom. it confers no rights. (1991)] 3. said Article has been substantially complied with. in effect. [Tañada v. it imposes no duties. (1949): election of Senate President was done without the required quorum b. not legality. Quitoriano. with discretionary power to act. Javellana v. Pendatun. It means any activity in and out of court. Tolentino v. hence. training and experience. Sec. which requires the application of law. Avelino. Castañeda. GovernorGeneral. (1954): President’s appointing power is not to be interfered with by the Court. or (2) those specifically delegated to some other department or particular office of the government. Garcia. (1924): The legislature’s exercise of disciplinary power over its member is not to be interfered with by the Court. Cuenco. for the same period Hold office during good behavior until they reach the age of 70 or become incapacitated to discharge their duties Person of proven competence. as if it had not been passed at all. Lopez-Vito. VIII. (1947): Proposal to amend the Constitution is a highly political function performed by Congress in its sovereign capacity. of a particular measure. and. 15 years or more as a judge or a lower court or has been engaged in the practice of law in the Phils. Manalang v. and because of the grave consequences of a declaration of unconstitutionality. it creates no office. (1957): The selection of the members of the Senate Electoral Tribunal is subject to constitutional limitations.POLITICAL LAW REVIEWER Chapter II. it is inoperative. Montenegro v. (1982)] 22 CONSTITUTIONAL LAW I Political Question Doctrine  The term “political question” refers to: (1) matters to be exercised by the people in their primary political capacity. .. Modern view  Pelaez v. Appointment and Qualifications SC and CA JUSTICE Citizenship Naturalborn Filipino At least 40 years old RTC JUDGE MTC/ MCTC JUDGE Severino v. (1946): inherent right of the legislature to determine who shall be admitted to its membership Mabanag v. (1967). the 1973 Constitution has been constitutionally ratified. the Court has set aside this doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislative and Executive branches [BERNAS]. it may be said that in its political aspect. Osmeña v. (1957)] Effect of a Declaration of Unconstitutionality a. Comelec. integrity. Comelec. Orthodox view An unconstitutional act is not a law. Cunanan v. (1971): Suspension of the privilege of the writ of habeas corpus is not a political question. Gonzales v. (1952): Authority to decide whether the exigency has arisen requiring the suspension of the privilege of the writ of habeas corpus belongs to the President. it affords no protection. Cuenco.

[Garcia vs Macaraig. VIII. final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of i. It may not increase or decrease the appellate jurisdiction of SC It may not pass a law reorganizing the Judiciary when it undermines the security of tenure of the Members of the latter Section 27 of Republic Act No. The Supreme Court shall have the following powers: xxx (2) Review. (1998)]  B. In fine. five. 7]. 07 (Rules of Procedure of the Office of the Ombudsman). Grounds Removal from Office Impeachment of Members of the SC (Art. VIII. (c) All cases in which the jurisdiction of any lower court is in issue. Petitions for certiorari. or affirm on appeal or certiorari. i. and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. v. VII. or seven Members iii. Sec. 4. (1932)] 23 . Sec. 2. Sec. the power to promulgate rules of pleading. and may promulgate its rules for the purpose [Art. modify. 3. iii. Supreme Court 1. The Congress shall have the power to define. Rule III of Administrative Order No. practice and procedure is no longer shared by this Court with Congress. practice and procedure. prescribe. together with Section 7. 6770 (Ombudsman Act of 1989). Sec. it cannot be said that transfer of appellate jurisdiction to the CA is an act of creating a new right of appeal because such power of the SC to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. (e) All cases in which only an error or question of law is involved. The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights. proclamation. Vacancy shall be filled within 90 days from the occurrence thereof 2. Composition i. alter. i. Sec. Appellate Art. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. 18. 5. ii. pleading. 5(1)]. mandamus. VIII. Other Powers Rule-making Art. The 1987 Constitution took away the power of Congress to repeal. as the law or the Rules of Court may provide. [Fabian vs Desierto. VII. b. Sec. par. and apportion the jurisdiction of the various courts [subject to the following conditions/limitations: 4. and legal assistance to the under-privileged. Congressional power vis-à-vis SC Art. par. other public ministers and consuls [Art. the admission to the practice of law. and habeas corpus [Art. [Echegaray vs Secretary of Justice. d. VIII. returns. practice. (b) All cases involving the legality of any tax. Sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof [Art. Sec. However. or supplement rules concerning pleading. Sole judge of all contests relating to the election. and qualifications of the President or Vice-President. order. presidential decree. or toll. quo warranto. to act in that capacity. or any penalty imposed in relation thereto. or regulation is in question.. 2) Culpable violation of the Constitution Treason Bribery Graft and corruption Other high crimes Betrayal of public trust on a. It was held that the SC and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected w/ the administering of judicial functions. iv. ordinance. sitting as a board of arbitrators. the decision of a majority of whom shall be final. Powers: Jurisdiction Original a. law. Cases affecting ambassadors.  ii. and procedure in all courts. (1999)] CONSTITUTIONAL LAW I The issue concerns the legal right of the members of the SC. [Meralco vs Pasay Transportation Co. impost. Sec. 5(1)]. international or executive agreement. more so with the Executive. VIII.  A judge in the CFI shall not be detailed with the Department of Justice to perform administrative functions as this contravenes the doctrine of separation of powers. XI. Chief Justice and 14 Associate Justices May sit en banc or in divisions of three. 5. assessment. (1972)] iii. prohibition. vi. the integrated bar. revise. reverse.POLITICAL LAW REVIEWER  Chapter II. c. ii. b. 3]. instruction. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers any treaty. are declared INVALID for increasing the Court’s appellate jurisdiction.

ii. Sec. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. the judgment or order appealed from shall stand affirmed. Procedure if opinion is equally divided. the original action commenced in the court shall be dismissed. Uniform for all courts in the same grade c. or order their dismissal [Art. iii. (2000)] 4. [Id. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers   When sitting as Presidential Electoral Tribunal [Art. i.[ Firestone Ceramics v. Shall not diminish. or dissented. increase or modify substantive rights 24 .  shall not exceed 6 months without the consent of the judge concerned b. the case shall be decided en banc: Provided: that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc  The Supreme Court sitting en banc is not an appellate court vis-à-vis its Divisions. Sec. Sec. iv. Sec. Sec. decided with the concurrence of a majority of the Members who actually took part in the deliberations and voted. 4. Requirements as to Decisions (applicable also to lower collegiate courts) Conclusions shall be reached in consultation before the case is assigned to a Member for the writing of the opinion. either rendered en banc or in division. the petition or motion shall de denied. CONSTITUTIONAL LAW I Limitations: a. or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted [en banc]. or abstained from a decision or resolution must state the reason. Rule 125. VII. 5. Where the court en banc is equally divided or the necessary majority cannot be had. 11]  Cases or matters heard by a division where the required number of votes to decide or resolve (the majority of those who took part in the deliberations on the issues in the case and voted thereon and in no case less than 3 members) is not met [Art. Supervision over all courts and the personnel thereof. 7] All other cases which under the Rules of Court are required to be heard by the SC en banc. Sec. 4(2)] ii. d. Administrative a. application. Manner of Sitting and Required Votes En banc a. Order a change of venue or place of trial to avoid a miscarriage of justice. Decision if opinion is equally divided. 4(3)]  Modifying or reversing a doctrine or principle of law laid down by the court in a decision rendered en banc or in division [Art. Sec. Sec. In divisions  Requirement and Procedures:  With the concurrence of a majority of the Members who actually took part in the deliberations and voted  In no case without the concurrence of at least three of such Members  When required number is not obtained. VIII. b. 7. 18] i. Any Member who took no part. the case shall again be deliberated upon and if no decision is reached after re-deliberation. Decision shall clearly and distinctly express the facts and the law on which it is based ii. Shall provide a simplified and inexpensive procedure for speedy disposition of cases b. the judgment of conviction of the lower court shall be reversed and the accused acquitted. Assign temporarily judges of lower courts to other stations as public interest may require. VIII. The only constraint is that any doctrine or principle of law laid down by the Court. 3. Provisions of the Rules of Court Rule 56. iii. and on all incidental matters. Certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. may be overturned or reversed only by the Court sitting en banc. VII. c. Discipline judges of lower courts.POLITICAL LAW REVIEWER Chapter II. or operation of: (TOILPIPOO)  Treaty  Orders  International or executive agreement  Law  Presidential decrees  Instructions  Proclamations  Ordinances  Other regulations  Exercise of the power to discipline judges of lower courts. VIII. – When the Supreme Court en banc is equally divided or the necessary majority cannot be had on whether to acquit the appellant. in appealed cases. CA.. par. the case shall again be deliberated on. Instances when the SC sits en banc: (C-DDMM-PO)  Those involving the constitutionality. and if after such deliberation no decision is reached. e. 4(3)]  Actions instituted by citizen to test the validity of a proclamation of martial law or suspension of the privilege of the writ [Art.

Function i. [Borromeo vs. unless reduced by SC Art. lawyers. Art VII)  natural-born citizen of the Philippines  a registered voter  able to read and write  at least forty years of age on the day of the election  a resident of the Philippines for at least ten years immediately preceding such election. Such other functions and duties as the SC may assign. depending on its evaluation of a case”. Lower courts  President shall issue the appointments within 90 days from the submission of the list III. from a list of at least 3 nominees prepared by the JBC for every vacancy  no confirmation needed ii. 2. Judicial and Bar Council 1. VIII.POLITICAL LAW REVIEWER   Chapter II. Ex Officio Members  Chief Justice as ex officio Chairman  Secretary of Justice  Representative of the Congress ii. provided a legal basis is given. Term and Oath Qualifications (Sec. and litigants that it disposes of the bulk of its cases by minute resolutions and decrees them as final and executory. directed to the Senate President. o residency and domicile mean the same thing under election law o The ff must be taken into consideration: 1. unless reduced by SC LOWER COURTS 1. ii. Members of the SC and Judges of lower courts  appointed by the Pres. animus manendi 3. (1990)] 25 CONSTITUTIONAL LAW I iii. 3. 15(3). the court. Sec. without further delay. where it is clear from the records that the petition is filed merely to forestall the early execution of judgment and for noncompliance with the rules. VIII. without prejudice to such responsibility as may have been incurred in consequence thereof. Mandatory Period for Deciding Cases LOWER COLLEGIATE COURTS 12 months. Procedure i.  No petition for review or MR of a decision shall be refused due course or denied without stating the legal basis The Court reminds all lower courts. The President 6. C. Upon the expiration of the corresponding period. animus revertendi  The candidate must be qualified on the day of the elections. This is the only way whereby it can act on all cases filed before it and. shall decide or resolve the case or matter submitted thereto for determination. the regular election for President and VicePresident shall be held on the second Monday of May. o Board of canvassers duly certifies returns of every election for President and VP and transmits them to Congress. 4. where the issues raised are factual in nature. 3 months. “The Court is not ‘duty bound’ to render signed Decisions all the time. Court of Appeals. Term and Election (Sec. Art VII)  Elected by direct vote of the people  Unless otherwise provided by law. Composition i. as where a case is patently without merit. Qualifications. a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy therefor attached to the record of the case or matter. 2. and served upon the parties. ii. Despite the expiration of the applicable mandatory period. accordingly discharge its constitutional functions. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers Representative of the Integrated Bar (4 years)  Professor of Law (3 years)  Retired Member of the SC (2 years)  Representative of the private sector (1 year) Clerk of SC as Secretary ex officio Recommending appointees to the Judiciary. Election. The resolution denying due course or dismissing the petition always gives the legal basis. Regular Members  appointed by the President for a term of 4 years with the consent of the Commission on Appointments but the term of those initially appointed shall be staggered as to create continuity .  Canvassing of votes: o Congress shall promulgate rules for canvassing of the certificates. It has ample discretion to formulate Decisions and/or Minute Resolutions. Executive (Asked 34 times in the Bar) A. 15(4). bodily presence 2. The certification shall state why a decision or resolution has not been rendered or issued within said period. As emphasized in In Re: Wenceslao Laureta (1987). where the decision appealed from is supported by substantial evidence and is in accord with the facts of the case and the applicable laws. SUPREME COURT 24 months from date of submission i. Sec. Art.

The persons having the highest number of votes shall be proclaimed elected. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers The person who succeeds as President and not just in an acting capacity.POLITICAL LAW REVIEWER o Chapter II. preserve and defend its Constitution. the President. The Congress. Sec. more than 18 months 3. This prohibition is similar to that applicable to Senators.” Canvassing of Election Returns o Electoral Tribunal for the Election of the President and Vice. (par 2. VII. So help me God. execute its laws. (1985)] o The Constitution is silent as to whether the persons elected in the special election shall serve only for the unexpired portion of the term. and may promulgate its rules for that purpose. Inc. Congress acts as Board of Canvassers of every election for President and VicePresident. Art VII). o o Privilege and Salary The President shall have an official residence. *The regular election for President and Vicend President shall be held on the 2 Monday of May. last sentence will be omitted. voting separately.  Unless the Congress provides otherwise. In case of a tie. and qualifications of the President. sitting en banc. Sec. those in the Executive are under the Supreme Court itself. Section 4. and may promulgate its rules for the purpose. returns. Whether the new President can run for reelection if he has not served more than 4 years (Art VII.  No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. and consecrate to myself to the service of the Nation. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. because of the Transitory Provisions. 4. shall not be considered an interruption in the continuity of the service for the full terms for which he was elected.President o The Supreme Court. 26 CONSTITUTIONAL LAW I B. shall canvass the votes. 1 Sec. o The failure of the SC to issue an injunction on time is a decision in itself in favor of the validity of the law calling for Snap Elections despite the absence of vacancy. par. [Philippine Bar Association. the President shall receive an annual salary of P Re-election A. Vice President o shall not serve for more than 2 successive terms. 4. Oath of Office (Sec 5. shall be the sole judge of all contests relating to the election. (par 7. the Vice-President or the Acting President shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines. a vacancy occurs in the offices of President and Vice. not later than 30 days after the day of election (2nd Tuesday of June). o No person who has "succeeded" as President and has served as such for more than 4 years. (Art. returns. (par. Sec. The Supreme Court en banc. v COMELEC. Before they enter into office. President o Not eligible for any re-election. one of the candidates shall be chosen by the vote of a majority of all the members of Congress.)  while election controversies in the Congress are under the exclusive jurisdiction of their respective Electoral Tribunals. 4 pars.President 2.  o o Senate President shall. 4. before the date of the next regular presidential election. Special Election and Term o A special election to elect the President and Vice-President shall be called by Congress. Section 10. shall be qualified for any election to the same office (the Presidency) at any time. 1 & 3).) iii. could either be (i) the Vice-President. o a voluntary renunciation of office for any length of time. if 1. or VP. 1) depends on the construction of the phrase "has succeeded as the President. open all certificates in the presence of the members of Congress in a joint public session." (In case of affirmation. do justice to every man. and qualifications of the President or Vice-President. shall be the sole judge of all contests relating to the election. Regular Election and Term o The President and Vice-President (who shall be elected with and in the same manner as the President) shall be elected by direct vote of the people for a term of 6 years o Term shall begin on the noon of June 30 next following the day of election. upon determination of the authenticity and due execution of the certificates. pursuant to Art VII. Art VII)  2.  applicable beginning 1992. or (ii) one who was elected President in a special election. Art VII) . Art VII.

Art IX-A No member of the Constitutional Commission during his term. Who are prohibited? 1. o engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office o be financially interested. Art IX B No elective official during his tenure shall: o be eligible for appointment or designation in any capacity to any public office or position. B. Art VIII) (2) Unless otherwise allowed by law or by the primary functions of his position. Art VII) c. Art. may: o hold any other office or employment in the Government.) Sec. Sec. and their deputies or assistants o The stricter prohibition applied to the Pres. shall: o hold any other office or employment. o Prohibitions (Sec 13. according to the Doctrine of Qualified Political Agency. or instrumentalities. or any of its subdivisions. Be financially interested in any contract with. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers increased during the term for which he was elected (2. 13. or special privilege granted by the Government or any subdivision. Cabinet (1) The Secretary of Justice shall be an exofficio member of the Judicial and Bar Council. Such appointment requires no confirmation (Sec 3. Appoint President’s spouse and relatives by consanguinity or affinity within the 4th civil degree as Members of the Constitutional Commissions. par. including governmentowned or controlled corporations or their subsidiaries. during his term. (1991)] o Prohibitions against other officials (1.) Sec. [Civil Liberties Union v Executive Secretary. Sec. Vice-President. including GOCCs and their subsidiaries. including government. the prohibition against holding dual or multiple offices or employment under Art. in any contract with. (4. or as Secretaries. Art VII (2) The President is the Chairman of NEDA. and his official family under Sec.000 (Sec 17. Directly or indirectly practice any other profession iii. President (1) The President can assume a Cabinet post. IX. Art VIII 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. Hold any other office or employment during their tenure. 13.owned or controlled o 3. Art XVIII) They shall not receive during their tenure any other emolument from the Government or any other source. Directly or indirectly participate in any business iv. 3.) Sec. agency or instrumentality thereof. or in any franchise. agencies.) Sec. ( Sec. 13. (3. or instrumentalities including GOCCs or their subsidiaries o be appointed to any office which may have been created or the emoluments thereof CONSTITUTIONAL LAW I 300. (because the departments are mere extensions of his personality. chairmen or heads of bureaus or offices. 8[1]. However. Art VII) Prohibited acts: i. appointive officials shall not hold any other office or employment in the Government or any subdivision. Art XII) b. 2 are proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricter prohibitions. 2. President 2. or the Office of the Ombudsman. any of its subdivisions. No appointive official shall: o hold any other office or employment in the Government or any of its subdivisions. VII as compared to the prohibition applicable to appointive officials in general under Art. Vice-President xxx The Vice-President may be appointed as member of the Cabinet. 12. agencies. unless otherwise provided in the Constitution ii. including GOCCs or their subsidiaries. agency or instrumentality thereof. or in any franchise or privilege granted by the Government. the Members of the Cabinet. VII. (Sec. agencies or instrumentalities. 9. 7. v. directly or indirectly. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials. 7. so no objection can be validly raised based on Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o additional compensation in an exofficio capacity as provided by law and as required by the primary functions of said official's office. including GOCCs or their subsidiaries. 27 .POLITICAL LAW REVIEWER Chapter II. o Exceptions to rule prohibiting executive officials from holding additional positions: a. Undersecretaries. Art VI No Senator or Member of the House of Representatives.

The reason is that before the term. When the vacancy comes before the term. par. Secretary of Trade and Industry as Chairman of NDC b. The Law on Succession must be passed by the Congress in both cases in the event that the President. 7. B. B. permanent disability. 2. removal from office (impeached) 4. Senate President and the Speaker are all unable to act as President. resignation* Both the President's and VP's 1. IX. or the Speaker. 10) and qualified. 3. death 2.POLITICAL LAW REVIEWER Chapter II. Sec. [Estrada v. proper criminal and civil cases may already be filed against him. become permanently disabled 1. or 2. 4. or.g. vacancy during the pendency of the terms that commences on June 30 i. the vacancy in the Presidency need not be filled up by election. and qualified. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers ii. Congress shall by law. resignation 28 . The vacancy must occur in the offices of both the President and Vice-President in order for the Senate President.(par. 2) * Causes President has not yet qualified (e. in their inability. or 4. the Constitution talks of the successor acting as President until a President has been "chosen" and "qualified".) Congress shall by law. the one provided to succeed according to the Law of Succession passed by the Congress. the Constitution allows a Cabinet member to hold another office provided either (1) such is necessitated by the primary functions of his position a. IX. Desierto (2001)] The totality test was applied to determine whether or not the president has indeed resigned. shall act as President until a President or a VP shall have been "chosen" and qualified. 1) corporations or their subsidiaries. removal from office (impeached). President has not yet been "chosen" and qualified (e. Comparisons and distinctions between the two vacancies: a) b) The incumbent President never holds-over the Presidency in any case. The president’s resignation must be willful and intentional. (pars. dies. die. Secretary of Agrarian Reform as Chairman of the Land Bank (2) such is allowed by law. have not qualified. VII. while in the case of a vacancy occurring during the term. the Speaker of the House. he had an operation and so he could not take his oath of office on June 30) 2. par. vacancy took place before the beginning of the term on June 30 2. (par. since it may be filled up by a c) d) CONSTITUTIONAL LAW I Causes President's 1. Vice-President. this refers to Art. Sec 7. Permanent Vacancy in the Presidency during the term Effect VP shall become President for the unexpired portion of the term. Succession Vacancy in the Presidency Two sets of rules in succession: 1. resigns Senate President or. (par. Sec 10. VII. becomes permanently disabled Both President and VP 1. 7. 2) Art. or 3. 10) and qualified. or shall have been "chosen” and qualified. When impeachment proceedings have become moot due to the resignation of the Pres. Acting President 1. Par VII). Art VII) Senate President. permanent disability 3. to succeed as Acting President until the qualification of the President. provide for the "manner of selecting" the one who will act as President until a President or VP shall have been either "chosen" or "elected" pursuant to the special election referred to in Art VII. 5) In case both Senate President and Speaker of the House are unable to act as President. or 4. Acting President shall be subject to the same restrictions of powers and disqualifications. Temporary or permanent vacancy in the Presidency before the term Effect VP shall act as President until the President-elect shall have qualified. there is a tie and Congress has not yet broken the tie) President-elect 1. Many things were considered including the Angara Diary. in case of his inability. Sec. 1. (par. it talks of "elected" and qualified. Sec. becomes permanently disabled 3. the Speaker of the House. 4. and it must be strictly construed. Thus. But in the case of a vacancy occurring before the term." In the case of Cabinet members. as the case may be. In both cases.g. [Res’n on the Motion for Recon (2001] * VP elect shall become the President. when it comes during. it provides for "the person" who shall act as President. the law provides only for the "manner of selecting" the Acting President. provide "who" shall be Acting President until the President or VP shall have been "elected" (pursuant to Art. 2 & 3. dies 2. (par. 13 talks of "unless otherwise provided by the Constitution. death 2. sec 7. (Art. shall become Acting President until the President or VP shall have been "elected" (pursuant to Art. VII. have not been "chosen" or 2. the stint of the Acting President is temporary. or in case of his inability.

Majority of the Cabinet insist on their original stand by transmitting a second written declaration of the President's inability within 5 days from resumption of office of the President. 2. Temporary Vacancy in the Presidency During the term o A vacancy in the Presidency arising from his disability can occur in any of the ff ways: 1. VII. 1. Section 25. b. 3. Art VII. in accordance with its rules. 4. . (“A special appropriations bill shall specify the purpose for which it is intended. A special election in both cases is held. Finding by Congress by 2/3 vote that the President is disabled. permanent disability. 10. However. or to be raised by a corresponding revenue proposal therein”) e) f) vote of Congress in case of a tie (Art. The Congress shall. the President shall continue exercising the powers and duties of his office. o Actions Required Voluntary Declaration Inability President Contested Inability of President of by President transmits to Senate President and Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office 1. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. the grounds are limited to 2 (death and permanent disability or both). convene in accordance with its rules without need of a call Within seven days enact a law calling for a special election to elect a President and a VicePresident to be held not earlier than forty-five days nor later than sixty days from the time of such call. 5). but during the term. the vacancy that occurs during the term of office can only be a permanent one. President contests by sending his own written declaration to the Senate President and Speaker that no inability exists. is deemed certified under paragraph 2. 4. Majority of all Cabinet members transmit to the Senate President and Speaker of the House their written declaration that the President is unable to discharge his office. If it is already in session.POLITICAL LAW REVIEWER Chapter II. Article VI of this Constitution. the only way to fill up the vacancy is by special election. 3. In all these cases. Congress shall convene. VII. par. and resignation). Article VI The convening of the Congress cannot be suspended nor the special election postponed. removal. while if the vacancy occurs during the term. a. Thus. 29 CONSTITUTIONAL LAW I  Appropriations for the special election a. If the President. b. then the VP shall act as President. if the vacancy occurs before the term. Effect VP to become Acting President until the President transmits to Senate President and Speaker of the House a written declaration that he is no longer unable to discharge his office. Sec. charged against any current appropriations exempt from the requirements of paragraph 4. a different set of rules applies. If less than 2/3 find him unable. the Vice-President temporarily acts as the President. and shall be supported by funds actually available as certified by the National Treasurer. by a 2/3 vote of both houses voting separately. if it is not in session. A written declaration by the President 2. 10. The vacancy that occurs before the term of office may be temporary or permanent. in case of the temporary inability of the President during the term of office. to be discussed next following. the grounds are 4 (death. Special election in Sec. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers (xxx the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency xxx) shall become law upon its approval on third reading by the Congress. it must meet immediately.  The bill calling such special election: a. at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs. Written declaration by the Cabinet 3. pursuant to Art. and decide before the 12th day after it is required to assemble. is determined to be "unable" to discharge his office. VP shall immediately assume the Presidency in an acting capacity 2. Section 26. and decide within 10 days after receipt of the second written declaration by the Cabinet b. the President shall automatically assume his office. Sec. iii. within 48 hours. only when both offices of President and Vice-President are vacant. without need of call.

Removal i. All other public officers and employees may be removed from office as provided by law. and by a majority vote of all its Members. 30 . the Senators shall be on oath or affirmation. 2. among others. or by the filing of at least 1/3 of the Members of the House with the Secretary General of the House. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers The same shall constitute the Articles of Impeachment. Sec. Art XI. But the party convicted shall nevertheless be liable and subject to prosecution. Number of votes necessary 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. In so ruling. XI. i. 3.. after hearing. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.e. or override its contrary resolution.POLITICAL LAW REVIEWER o Chapter II. 2. The members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines. 1. The vote of each Member shall be recorded. The Committee. The House Impeachment Rules were thereby declared unconstitutional for giving the term “initiate” a different meaning. [Francisco v. shall not be denied access to the President during such illness. (2003)] xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. The officer can still be tried for a criminal case aside from impeachment. Who may initiate The House of Representatives shall have the exclusive power to initiate all cases of impeachment. b. The latter is initiated when a verified complaint is filed and referred to the House Committee on Justice for action. Who are Subject to Impeachment:  The President  the Vice-President  the Members of the Supreme Court  the Members of the Constitutional Commissions  Ombudsman Reasons for Impeachment  culpable violation of the Constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust. CONSTITUTIONAL LAW I Serious Illness of the President (Sec 12. the finding by the House 6. 3. 4. shall submit its report to the House within sixty session days from such referral. and trial by the Senate shall forthwith proceed. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate. but shall not vote. Verified Complaint shall be included in the Order of Business within ten session days. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof b. 5. another impeachment complaint may not be filed against the same official within a 1-year period. House of Representatives. (BERNAS) “Initiation” . d. Art VII) a. In consequence therefore. Sec. o o ii. together with the corresponding resolution. Impeachment Process Art.governed by the rules of the House of Reps. but not by impeachment. The following are the pertinent constitutional provisions: Art. Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. o When the President of the Philippines is on trial. The Senate shall have the sole power to try and decide all cases of impeachment. XI. and punishment according to law. once an impeachment complaint has been initiated. the Court differentiated between the initiation of the impeachment case and the impeachment proceeding. 5. o When sitting for that purpose. another impeachment complaint may no longer be filed until after the lapse of one year. Judgment in cases of impeachment shall not extend further than: o removal from office and o disqualification to hold any office under the Republic of the Philippines. Verified Complaint a. c. The Court held that once an impeachment complaint has been initiated and subsequently dismissed. o Impeachment. “Trial”-governed by the rules of the Senate. The basic issue here was the constitutionality of the filing of the second impeachment complaint against then Chief Justice Davide. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House. it pegged the initiation of the impeachment proceedings to. The public shall be informed of the state of his health. and referred to the proper Committee within three session days thereafter. 7. the Chief Justice of the Supreme Court shall preside. trial.

the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive depts. . by the authority vested with the power. presumptively acts of the Chief Executive. modify. CA (1997)] Supervision and Control Distinguished Supervision . unless disapproved or reprobated by the Chief Executive. (Sec 1 Art VII) The President shall have control of all the executive departments. (Sec 4. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers the Constitution or by the law to act in person or the exigencies of the situation demand that he act personally. Art VII)  Control is the power of an officer to alter or modify or nullify or to set aside what a subordinate has done in the performance of his duties and to substitute one's own judgment to that of a subordinate. [National Electrification Commission vs.“all the different executive and administrative organizations are mere adjuncts of the Executive Department. [Marcos vs Manglapus (1989)] (D) Power of appointment o Definition: the selection. ambassadors. officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him. CONSTITUTIONAL LAW I 6. Qualified political agency doctrine (also alter ego principle). Minister of Labor and Employment (1981)] Committee on Justice that the verified complaint and/or resolution is sufficient in substance.. performed and promulgated in the regular course of business. Art X) (A) Executive Power o It is the duty to implement the laws within the standards imposed by the legislature. Heads of the Executive Department.Overseeing or the power or authority of the officer to see that subordinate officers perform their duties.” [Free Telephone Workers Union vs. usually by law. administer and carry out laws into practical operation. These unstated residual powers are implied from the grant of executive power and which are necessary for the Pres to comply with his duties under the Constitution. executive power is more than the sum of specific powers so enumerated. Appointment is distinguished from: 1. Those whom the President may be authorized to appoint. if these acts are within their discretion. o o (B) Control of Executive Departments (Sec 17. Powers and Functions of the President 31 . and. except in cases wherein the Chief Executive is required by  2. o The powers of the President cannot be said to be limited only to the specific power enumerated in the Constitution.Power of an officer to alter. then the former may take such action or steps as prescribed by law to make them perform these duties. In other words. The framers did not intend that by enumerating the powers of the Pres. Commission – written evidence of the appointment Classification of Power of Appointment: 1. nullify or set aside what a subordinate officer had done and to substitute the judgment of the former for that of the latter. Art X) The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. bureaus. o o o o o o o o o o o Executive power Control of executive departments General supervision of local governments Power of appointment Executive clemencies Commander in chief powers  Military powers  Suspension of the writ of habeas corpus  Martial law Emergency powers Contracting and guaranteeing foreign loans Powers over foreign affairs Power over legislation Immunity from suit (C) General Supervision of Local Governments and Autonomous Regions   The President shall exercise general supervision over local governments. and if the latter fail or neglect to fulfill them.  The Court held that as administrative head of the government. He shall ensure that the laws be faithfully executed (Sec 17). on a person already in the public service 2. the heads of the various executive departments are assistants and agents of the Chief Executive. of an individual who is to exercise the functions of a given office.This does not include the power to overrule their acts. he shall exercise those powers and no other. and offices. (Sec 16. Designation – imposition of additional duties. the President is vested with the power to execute. All other officers of the government whose appointments are not otherwise provided by law. 3. *This power is exercised by the President. are. With the consent of the Commission on Appointments There are 4 groups of officers whom the Pres may appoint: 1.POLITICAL LAW REVIEWER Chapter II. other public ministers and consuls. Control .

Mison 1987. [Sarmiento vs Mison. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers provides in an unconstitutional manner for such appointments the officers are considered as among those whose appointments are not otherwise provided for by law. as observed in Sarmiento v. Salonga 1989. Those other officers lower in rank whose appointment is vested by law in the President (alone).g. Also. (1987)] The seats reserved for sectoral reps may be filled by appointment by the President under Art XVIII. saying that the inclusion of the word "alone" was an oversight. Notes: From the rulings in Sarmiento III v. VII. 32 CONSTITUTIONAL LAW I  Heads of bureaus were deliberately removed from the provision of appointments requiring th confirmation and were included in the 4 group and hence. Sec 18 Art X) Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Sec7. the basis was the phrase. st referred to in the 1 sentence of Art. these doctrines are deducible: 1. Bautista v. Thus. Sec 1(2) Art Ix-D) (ii) Regular members of the Judicial and Bar Council (Sec 8 (2) Art VII) (iii) Sectoral representatives (Sec 7 Art XVIII. VII. The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not.The phraseology is muddled: 2. Constitutional Commission 1989. 3(2)] Those whose appointments are not otherwise provided by law. appointment shall be issued within 90 days from submission of the list (b) Ombudsman and his 5 deputies (for Luzon. Confirmation by the Commission on Appointments is required only for presidential appointees as mentioned in the first sentence of Sec. general and military) Sec 9 Art XI a. Appointment requires no confirmation Officers lower in rank whose appointments Congress may by law vest in the President alone. o 2. Art VII) . Art VII) 1.  Sarmiento v Mison (1987): In arguing that even bureau chiefs needed confirmation even if they are of inferior rank. 3. For lower courts. It is indubitable that sectoral representatives to the House are among the “other officers whose appointments are vested in the Pres in this Constitution”. 3. Sec. Art VIII) a. their appointments no longer need confirmation. Art. (Sec 9. Appointment of Vice-President as Member of the Cabinet (Sec 3. Art. and Deles v. then such appointment has to be confirmed. Upon Recommendation of the Judicial and Bar Council (a) Members of the Supreme Court and all other courts. Visayas. by law. b. including those officers whose appointments are expressly vested by the Constitution itself in the President: (a) Heads of the executive departments (b) Ambassadors. Appointments need no confirmation b. Sec. by law. Those whom he may be authorized by law to appoint. 16. other public ministers and consuls (c) Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain (because these are officers of a sizeable command enough to stage a coup) (d) Other officers whose appointments are vested in the President in the Constitution: (i) Chairman and Commissioners of the Constitutional Commissions (Sec 1 Art IX-B. or  Appointments solely by the President (Sec. 16. This meant that until a law is passed giving such appointing power to the President alone. be appointed as (sec 13. during his "tenure". vest the appointment of other officers lower in rank in the President. All vacancies shall be filled within three months after they occur. appointment of Vice-President to the Cabinet) [Art. Sec 1 (2) Art IX-B. These appointments require the confirmation of the Commission on Appointments.POLITICAL LAW REVIEWER 4. vest in the appointment of other officers lower in rank in the President alone". Those vested by the Constitution on the President alone (e. the Constitution should read "The Congress may. Such appointments shall require no confirmation. when Congress: o creates inferior offices but omits to provide for appointment thereto." o Limitations on appointing power of the President a. Chapter II. 16.VII) o 4. The SC dismissed this view however. 4. Mison. VII. "the Congress may. 2. Mindanao.

Chief of Staff). The mere filing of a motion for reconsideration of the confirmation of an appointment cannot have the effect of CONSTITUTIONAL LAW I members of the Constitutional Commissions. Congress. par. Exception: Temporary appointments. Chairmen or heads of bureaus or offices. and up to the end of his "term" (June 30). Ad-interim appointment . CA (2001)] b. they should be made in the capacity of a "caretaker" doubly careful and prudent in making the selection. (par 2. Appointments requiring confirmation are of two kinds (i) regular. 16. Art VII) o Interim or recess appointments 1) Regular and appointments  recess (ad-interim) c. The President shall have the power to make appointments during the recess of the Congress. whether voluntary or compulsory. so as not to defeat the policies of the incoming administration. The fact that it is subject to the confirmation of the Commission on Appointments does not alter its permanent character. VII. member of the Office of Ombudsman. and that the ad interim appointment of the petitioner chief of police here. The filling up of vacancies in important posts. Secretaries. It is permanent as it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. [De Rama v. [Aytona vs Castillo (1962)] The SC emphasized that the Aytona ruling does not declare all midnight appointments as invalid. This is the kind of appointment that the Constitution prohibits the Pres from making to the independent constitutional commissions.one made by the President while Congress is not in session. Undersecretaries. (Sec 15. said appointment is effective until (1) disapproved by the CA or (2) the next adjournment of Congress [Matibag vs Benipayo (2002)]  Acting/Temporary appointment – can be withdrawn or revoked at the pleasure of the appointing power. a President (or Acting President) shall not make appointments. 19]). (Art. Art VII) Two months immediately before the next presidential elections (2nd Monday of March). 33 . and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications. but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress.one made by the President while Congress is in session. takes effect only after confirmation by the Commission on Appointments.  The SC ruled that while "midnight appointments" (note: made by outgoing President near the end of his term) are not illegal. is in session (ii) during the recess of Congress (because the Commission shall meet only while Congress is in session [Art. may be undoubtedly permitted. continues until the end of the term of the appointee. if the CA. Sec. Moreover. VI. Hence. to executive positions.g.POLITICAL LAW REVIEWER (i) (ii) (iii) (iv) (v) Chapter II. The appointee does not enjoy security of tenure. or (2) endanger public safety (e. when continued vacancies will (1) prejudice public service (e. takes effect immediately. whose qualification and regularity were not disputed. there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Sec 16. is thus not invalid. [Quimsing vs Tajanglangit (1964)] 2) Regular appointment . if few. including governmentowned or controlled corporations and their subsidiaries. Sec. 2)  Ad interim appointment – a permanent appointment made by the Pres in the meantime that Congress is in recess. But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may be regarded as abuse of presidential prerogatives. except for the fact that it was made during the last few days of the old administration. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers  The prohibition against midnight appointments applies only to the president and does not extend to local elective officials. that is. and once approved.g Postmaster).

It is a remission of guilt. Art VII)  Amnesty .) (Sec 5.]  Parole . an absolute pardon is similar to commutation. granted by government generally to a class of persons who have been guilty usually of political offenses and who are subject to trial but have not yet been convicted. c. appointment to which is vested in him by law. and regulations shall be granted by the President without the favorable recommendation by the Commission (on Elections. CONSTITUTIONAL LAW I recalling or setting aside said appointment. Appointments extended by an Acting President shall remain effective unless revoked by the elected President within ninety days from his assumption or reassumption of office. w/c is also not subject to acceptance by the offender. (Sec.extinguishes all the penalties imposed upon the offender.  Probation . including accessory disabilities o Partial – does not extinguish all penalties imposed Absolute or conditional o Conditional . [Sec. after conviction by final judgment 2. rules. (BLACK. [Pacete vs Secretary (1971)] 3) Temporary Designations Admin Code of 1987. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers  (BLACK) It is an act of grace proceeding from the power entrusted with the execution of the laws. [People vs. The Consti is clear – there must either be a rejection by the Commission on Appointments or nonaction on its part for the confirmation to be recalled. a temporary suspension of execution. supra] Pardons. amnesty. parole or suspension of sentence for violation of election laws. [People vs. prescribing the terms upon which the sentence shall be suspended. In this sense.a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer. o Absolute pardon . Art VII) d. Art IX) The President shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. supra] Plenary or partial o Plenary . which exempts the individual on whom it is bestowed. 161 US 602). and  Permanent cancellation of sentence.   o Limitations on the appointing power of the Acting President 1. Also. absence or any other cause. service or any other competent person to perform the functions of any office in the executive branch. (BLACK)  It is a remission of a part of the punishment. (Sec 15. 17 The President may designate an officer already in the govt.a sovereign act of oblivion for past acts.POLITICAL LAW REVIEWER Chapter II. supra] b. 34 . Executive Clemencies o The President may grant: a. and (b) As otherwise provided in this Constitution  No pardon. 14 Art VII) A President or Acting President shall not make appointments two months immediately before the next presidential elections and up to the end of his term  except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. a forgiveness of the offense. Except: (a) In cases of impeachment. and often conditioned upon their return to obedience and duty within a prescribed time. a postponement of execution.suspension of the sentence of a convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty. (Sec 19. Commutations  Reduction of sentence. Vera. In no case shall a temporary designation exceed one (1) year. Brown v Walker. or (b) There exists a vacancy. from the punishment the law inflicts for the crime he has committed. a substitution of a less penalty for the one originally imposed. 3 (a). Vera. [People v Vera. (BLACK)  It is the withholding of a sentence for an interval of time. Reprieves  a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution.the offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. without granting a pardon. Book III Sec.pardonee has no option at all and must accept it whether he likes it or not. the power to approve or disapprove appointments is conferred on the CA as a body and not on the individual members. o Remit fines and forfeitures. when: (a) The officer regularly appointed to the office is unable to perform his duties by reason of illness. PD 968. [REYES] o 7.

The Chief Executive. supported their assertion that the President acted without factual basis. Subtitle A. But unless expressly grounded on the person's innocence (w/c is rare). as Notes: "Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. These are purely executive powers. the Constitution does not regulate its exercise radically It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Palatino (1941)] Pardon implies guilt and does not erase the fact of the commission of the crime and the conviction thereof. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion. subject to such terms and conditions as he may impose in the interest of the service Effects of Pardon (Case Law)  There are 2 limitations upon the exercise of the constitutional prerogative of the Pres. Subject to judicial review to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction (par. which are clearly less serious than criminal offenses. xxx" o Application of Pardoning Administrative Cases  Powers to o  If the President can grant reprieves. or c. with much more reason can she grant executive clemency in administrative cases. vested on the President by Sections 1 and 18. [Cristobal v Labrador (1940)] Absolute pardon has the effect of removing the disqualification from voting and being elected incident to criminal conviction under Sec 94(a) of the Election Code. 76 applies even to Hukbalahaps already undergoing sentence upon the date of its promulgation. [Llamas v Executive Secretary (1991)] Removal of Administrative Penalties Sec. was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. it cannot bring back lost reputation for honesty. in declaring a state of rebellion and in calling out the armed forces. none of the petitioners here have. However. or other antigovernment groups. integrity and fair dealing. the President may commute or a. The majority of the Court believes that by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. [Macaga-an vs People (1987)] o  8. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. The President. Article VII. Sec 1. the power of the President to grant executive clemency in administrative cases refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the govt. It does not ipso facto restore a convicted felon to a public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office. Administrative Code of 1987 Removal of Administrative Penalties or Disabilities. He may call out such armed forces to prevent or suppress lawless violence. after inquiry into the environmental facts. Powers as Commander-in-Chief o Powers as Commander-in-Chief: a. commutations and pardons.POLITICAL LAW REVIEWER o Chapter II. The acts for which they were convicted were ordinary crimes without any political complexion and consisting only of diversion of public funds to private profit. by way of proof. Art VIII) Call out the AFP to prevent lawless violence This is merely a police measure meant to quell disorder. and remit fines and forfeitures in criminal cases.    . 2. (2) that such power does not extend to cases of impeachment. invasion or rebellion. to grant pardon: (1) that the power be exercised after conviction.-. Title I.In meritorious cases and upon recommendation of the (Civil Service) Commission. Chapter 7. As such. He may proclaim martial law over the entire Philippines or any part thereof. should be at liberty to atone the rigidity of the law to the extent of relieving completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases. [Monsanto vs Factoran (1989)] 35 CONSTITUTIONAL LAW I o Who may avail of amnesty? (Case Law) (Asked 5 times in the Bar)  Amnesty Proclamation No. 53. [Pelobello v. b. Book V. He may suspend the privilege of the writ of habeas corpus. The amnesty proclamation covered only acts in the furtherance of resistance to duly constituted authorities of the Republic and applies only to members of the MNLF. [Tolentino vs Catoy (1948)] The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified from amnesty.

[David v. Sec. and 2) The public safety requires the suspension. par. III. But the military is. therefore. Article VI. o The "privilege of the writ" is that portion of the writ requiring the detaining officer to show cause why he should not be tested. 4) a. the period is extended to 72 hours. Effects of the proclamation of martial law: The President can: 1) Legislate 2) Order the arrest of people who obstruct the war effort. section 17. Sec. VII. with the suspension of the o But the following cannot be done (Art. is only to extend the periods during which he can be detained without a warrant.  Suspend the privilege of the writ of habeas corpus A "writ of habeas corpus" is an order from the court commanding a detaining officer to inform the court (i) if he has the person in custody. Supplant the functioning of the civil courts and the legislative assemblies. anyway since. Note that it is the privilege that is suspended. During the suspension of the privilege of the writ. VII. any person thus arrested or detained shall be judicially charged within 3 days. such as the taking over of privately-owned public utility or business affected with public interest. requires a delegation from Congress which is the repository of emergency powers. 125 for "delay in the delivery of detained persons.  Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest. b. o if the civil courts are not functioning. The crime for which he is arrested must be one related to rebellion or invasion.  martial law is proclaimed only because the courts and other civil institutions like Congress have been shut down. enabled to make the arrest. the exercise of the emergency powers. PP1017 did not authorize said temporary take over without authority from Congress. or otherwise he shall be released. 2) The SC held that while the President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. [Sanlakas v Executive Secretary (2004)]   Assailed is PP1017 (Declaration of State of National Emergency). o Proclaim Martial Law Requisites: 1) There must be an invasion or rebellion. .  The effect of the suspension of the privilege. (Art. there is no remedy available against such unlawful arrest (arbitrary detention).  The suspension of the privilege does not make the arrest without warrant legal. without authority or delegation from Congress. As to other crimes. It is different from the law in Sanlakas as this proclamation was woven out of the “calling out” and “take care” powers of the President joined with the “temporary takeover” provision under Art. o o Requisites: 1) There must be an invasion or rebellion. opposed to the delegated legislative powers contemplated by Section 23 (2). It should not happen that martial law is declared in order to shut down the civil institutions." The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Confer jurisdiction upon military courts and agencies over civilians. not the writ itself. par. and (ii) his basis in detaining that person. in effect. Suspend the operation of the Constitution.  What happens if he is not judicially charged nor released after 72 hours? The public officer becomes liable under Art. 5). 18.  "open court" doctrine o holds that civilians cannot be tried by military courts if the civil courts are open and functioning. VII. Sec. XII. Sec. 36 CONSTITUTIONAL LAW I  PP1017 purports to grant the President. where civil courts are able to function. c.POLITICAL LAW REVIEWER Chapter II. and 2) Public safety requires the proclamation of martial law all over the Philippines or any part thereof. The arrest without warrant is justified by the emergency situation and the difficulty in applying for a warrant considering the time and the number of persons to be arrested. Effects of the suspension of the privilege: 1) The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion (Art. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers privilege. 13) 3) c. (Art. Arroyo (2006)] b. par. to take over or direct the operation of any privatelyowned public utility or business affected with public interest. 18. 18. the suspension of the privilege does not apply. 6). When the privilege is suspended.

 Before the SC can decide on the legality of his detention. he or someone else in his behalf has the standing to question the validity of the proclamation or suspension. 3. because it is already valid. VII. If Congress extends the measure. (Sec 18 (3). (ii) To extend it beyond the 60-day period of its validity. 18. it must first pass upon the validity of the proclamation or suspension. but whether he acted arbitrarily in that the action had no basis in fact. in an appropriate proceeding filed by any citizen. rebellion or imminent danger. Zamora. it could be more. 3] o The Supreme Court may review. The Role of Congress [Art. The SC. d. o c. VII.  The President must suspend the privilege expressly. Sec. VII) The jurisdiction of the SC may be invoked in a proper case. but before the period of extension lapses the requirements for the proclamation or suspension no longer exist. Test of Arbitrariness: [IBP v. or (b) the extension thereof. par. (2000)]  to be used by the Supreme Court in so reviewing the act of the President in proclaiming or suspending. Marcos had a basis for doing so. concluded that the President did not act arbitrarily. 1-2] 37 . [This holding of the SC is now found in Art. o o 2 conditions must concur for the valid exercise of authority to suspend the privilege: (a) there must be an actual invasion. It must promulgate its decision thereon within 30 days from its filing. and (b) public safety must require the suspension of the privilege. but one cannot say that it is without basis. pars. to the Congress (meeting in joint session of the action he has taken). If Congress does not review or lift the order. in considering the fact that the President based his decision on (a) the Senate report on the condition in Central Luzon and (b) a closed door briefing by the military showing the extent of subversion.  When it so revokes. based on the persistence of the emergency. The Congress shall then vote jointly. o o Congress cannot "validate" the proclamation or suspension. 18. Sec. 18.POLITICAL LAW REVIEWER Chapter II. by an absolute majority. the President shall submit a report. Congress can lift the extension. the President cannot set aside (or veto) the revocation as he normally would do in the case of bills. If it is not in session. One may disagree with his appreciation of the facts. the sufficiency of the factual basis of: (a) the proclamation of martial law or the suspension of the privilege of the writ. Petition for habeas corpus  When a person is arrested without a warrant for complicity in the rebellion or invasion. The proper standard is not correctness but arbitrariness. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers The Role of the Supreme Court [Art. since the power to confer implies the power to take back. VIII)  The issue there raised was whether in suspending the privilege of the writ in 1971. Art. as Congress would determine. Congress shall convene at once.  amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction. o Martial law usually contemplates a case where the courts are already closed and the civil institutions have already crumbled. VII. the President can just suspend the privilege and achieve the same effect. that is a "theater of war. in person or in writing. It has two options: (i) To revoke such proclamation or suspension. Automatically suspend the privilege of the writ of habeas corpus." If the courts are still open. it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension. par.  The question is not whether the President or Congress acted correctly. insurrection. d. or the act of Congress in extending  seeks to determine the sufficiency of the factual basis of the measure. CONSTITUTIONAL LAW I then civilians can be tried by the military courts. [Lansang v Garcia (1971)] o o a. this can be reviewed by the Supreme Court pursuant to the next section. Sec. Within 48 hours from the proclamation or the suspension. If Congress fails to act before the measure expires.  Congress can only so extend the proclamation or suspension upon the initiative of the President. b.] The function of the court is to check and not supplant the executive or to ascertain merely whether he has gone beyond the constitutional limits of jurisdiction. (Sec 1(2) Art. Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation Upon such proclamation or suspension. The period need not be 60 days. it can no longer extend it until the President again redeclares the measure.

VI). other Persons Subject to Military Law. he acts under a Congressional delegation of law-making power. o Inconsistency between the Constitution and the cases: (BARLONGAY)  The Constitution [Art. Sec. which may include the law-making power. 15 of the 1973 Constitution. Different from the Commander-in-Chief clause:  When the President acts under the Commander-in-Chief clause. which in turn became Art. Cf. Congress held a special session. The SC held that the emergency power lasted only until Congress held its regular session. for the proclamation or suspension to be lifted: (P-C-S-O) 1) 2) 3) 4) Lifting by the President himself Revocation by Congress Nullification by the Supreme Court Operation of law after 60 days 38 CONSTITUTIONAL LAW I  Military trial of civilians void even under Martial Law. [Araneta v Dinglasan (1949)] The specific power to continue in force laws and appropriations which would lapse or otherwise become inoperative is a limitation on the general power to exercise such other powers as the executive may deem necessary to enable the government to fulfill its responsibilities and to maintain and enforce its authority. or. (b) upon the next (voluntary) adjournment of Congress. regardless of whether civilians are coaccused.POLITICAL LAW REVIEWER  Chapter II. VII.  The Congress granted the President certain emergency powers. and the Members of the Philippine National Police. To hold otherwise is a violation of the right to due process. if Congress fails to adopt such resolution. [Olaguer vs Military Commission No. The fact that Congress could now meet meant that there was no emergency anymore that would justify the delegation. if civil courts are open. Emergency powers (Sec 23. military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. 23 (2)] states that the emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress  Cases tell us that the emergency powers shall cease upon resumption of session. Art. For the fact that Congress is able to meet in session uninterruptedly and adjourn of its own will proves that the emergency no longer exists is to justify the delegation. o The Congress may by law authorize the President to exercise powers necessary and proper to carry out a declared national policy. otherwise such powers shall cease upon the next adjournment of Congress. . This rule or the termination of the grant of emergency powers is based on decided cases. 34 (1987)] o    9. The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. except when the offense. he acts under a constitutional grant of military power. VI. The power ceases: (a) upon being withdrawn by resolution of the Congress. and (2) subject to such restrictions as Congress may provide.  Reconciling the two: it would not be enough for Congress to just resume session in order that the emergency powers shall cease. [Rodriguez v Gella (1953)] There are 4 ways.  When the President acts under the emergency power. RA 7055 provides that when these individuals commit crimes or offenses penalized under the RPC. then. then it would be unlimited and indefinite. Sec. or local government ordinances. If a new law were necessary to terminate it. other special penal laws. As long as civil courts remain open and are regularly functioning. or offended parties which may be natural or juridical persons. This would create an anomaly since what was intended to meet a temporary emergency becomes a permanent law. they shall be tried by the proper civil court.). (CA671) After the war. (Sec 18(4) Art. VII. victims. is serviceconnected in which case it shall be tried by court-martial. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers o Meaning of “power necessary and proper”  Power to issue rules and regulations This power is: (1) for a limited period. It has to pass a resolution withdrawing such emergency powers. The assertion that new legislation is needed to repeal CA671 is not in harmony with the Constitution. Repealing for the Purpose Certain Presidential Decrees"  RA 7055 effectively placed upon the civil courts the jurisdiction over certain offenses involving members of the AFP and other members subject to military law. RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by Returning to the Civil Courts the Jurisdiction over Certain Offenses involving Members of the Armed Forces of the Philippines. as determined before arraignment by the civil court.

(Sec 21.  Executive Agreements  entered into by the President  need no concurrence. Art XII)  The agreement is not a "treaty" as the term is used in the Constitution. The distinction between an executive agreement and a treaty is purely a constitutional one and has no international legal significance. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers 10. The SC held that once the Senate performs the power to concur with treaties or exercise its prerogative within the boundaries prescribed by the Constitution. From the point of view of international law. executive agreements may be entered into with other states and are effective even without the concurrence of the Senate. September 8. Art VII) Treaty distinguished from executive agreements: 1. International agreements involving political issues or changes in national policy and those involving international agreements of permanent character usually take the form of TREATIES. 1966. With the concurrence of the monetary board (Sec 20. by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. information on foreign loans obtained or guaranteed shall be made available to the public (sec 21. Role of Congress: 1. which may be termed as presidential agreements. much less a grave abuse of discretion. The President does not need prior approval by the Congress a. Art VII) 2. subject to limitations as may be provided by law (Sec 21. the main function of the Executive is to enforce laws enacted by Congress. It must be noted that a treaty is not the only form that an international agreement may assume. But the international agreements involving adjustments in detail carrying out well-established national policies and traditions and those involving a more or less temporary character usually take the form of EXECUTIVE AGREEMENTS. [Gonzales v Hechanova (1963)] The issue in this case is the constitutionality of the VFA. acted within the confines and limits of the power vested in him by the Constitution. Under the Constitution. Or To Incur Such Foreign Indebtedness. [USAFFE Veterans Assn. Art XII) 3. and (2) agreements entered into in pursuance of acts of Congress. The President merely performed a constitutional task and o 11. Foreign Loans Obtained Or Bonds Issued By Corporations Owned Or Controlled By The Government Of The Philippines For Economic Development Purposes Including Those Incurred For Purposes Of Re-Lending To The Private Sector. enter into a transaction which is prohibited by statutes enacted prior thereto.POLITICAL LAW REVIEWER Chapter II. there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. The former may not interfere in the performance of the legislative powers of the latter. by executive agreement. Congress may provide guidelines and have them enforced through the Monetary Board Consequently. Contracting Loans o and Guaranteeing Foreign o Cf. He may not defeat legislative enactments that have acquired the status of law. And For Other Purposes  Approved. The President. As May Be Necessary To Finance Approved Economic Development Purposes Or Projects. he may not. For the grant of treaty making power to the Executive and the Senate does not exhaust the power of the government over international relations. And To Guarantee. except in the exercise of his veto power. Powers over Foreign Affairs (a) Treaty-making power o No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. Eastern Sea Trading (1961)] o  CONSTITUTIONAL LAW I Requisites for contracting and guaranteeing foreign loans: 1. Because the Constitution places the power to check the President’s power on the Monetary Board b. the concurrence cannot be viewed as an abuse of power. In Behalf Of The Republic Of The Philippines. under the American constitutional system enter into executive agreements without previous legislative authority. 39 . The agreement was never submitted to the Senate for concurrence. [ Commissioner of Customs vs.  Although the President may. vs Treasurer (1959)] o Nature of Executive Agreements: There are 2 classes: (1) agreements made purely as executive acts affecting external relations and independent of or without legislative authorization. or CongressionalExecutive Agreements. Appropriating The Necessary Funds Therefore. Republic Act 4860  An Act Authorizing The President Of The Philippines To Obtain Such Foreign Loans And Credits. in ratifying the VFA and submitting the same for concurrence of the Senate.

the President reveals the priorities of the government. and  subject to such limitations and restrictions as . o  o o o  o o o (d) Emergency Power o In times of war or other national emergency. for a limited period. The State has inherent power to deport undesirable aliens. his course of action is only to approve it or veto it as a whole. by law. If an implied grant of power. Power over Legislation (a) Message to Congress  The President shall address the Congress at the opening of its regular session. and (c) receipts from revenue-raising measures. by law. He may also appear before it at any other time. Art VII) Every 4th Monday of July. considering that no express authority was granted by law. however. The Deportation Board may not order the arrest of the alien in this case. it becomes the duty of the Court to draw the dividing line where the exercise of executive power ends and the bounds of legislative jurisdiction begin.POLITICAL LAW REVIEWER Chapter II. Said remedy. is available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to be ultra vires. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers that Congress can take during the regular session. Art VII) o The budget is the plan indicating: (a) expenditures of the government. (b) sources of financing. [Bayan vs Executive Secretary (2000)] (b) Deportation of undesirable aliens  o [Qua Chee Gan vs Deportation Board (1963] The President may deport only according to grounds enumerated by law since it would be unreasonable and undemocratic to hold that an alien be deported upon an unstated or undefined ground depending merely on the use of an unlimited discretion by the President. 27 [1]). and subject to such restrictions as it may prescribe. This power is exercised by the President. (Sec 22. Unless sooner withdrawn by resolution of the Congress. [Go Tek vs Deportation Board (1977)] The Deportation Board can entertain deportation based on grounds not specified in Sec 37 of the Immigration Law. However. Art VI) o The Congress may. including receipts from existing and proposed revenue measures. all bills must be approved by the President before they become law. authorize the President to fix:  within specified limits. would curtail the right of a person then a delegation of the implied power must be rejected as inimical to the liberties of the people. In the latter case. Art VI see discussion above) 12. This gives the President an actual hand in legislation. the Congress. [PHILCONSA v Enriquez (1994)] exercised a prerogative that chiefly pertains to the functions of his office. (Sec 23. welfare or interest of the state. (c) Veto power o As a general rule. and (ii) the bill passed is the special law to elect the President and Vice-President. except when: (i) the veto of the President is overridden by 2/3 vote of all the Members of the House where it originated. to exercise powers necessary and proper to carry out a declared national policy. he can influence the course of legislation  (e) Fixing of tariff rates (Sec 28. as the basis of the general appropriations bill. (See Legislative Power of Congress) It is true that the Constitution provides a mechanism for overriding a veto (Art. This budget is the upper limit of the appropriations bill to be passed by Congress. may. such powers shall cease upon the next adjournment thereof. the President delivers the State of the Nation Address. a budget of expenditures and sources of financing. authorize the President. Through this speech. therefore. 2 ways of deporting an undesirable alien: (a) by order of the President after investigation (b) by the Commissioner of Immigration due 40 CONSTITUTIONAL LAW I o o The President can delegate the power of investigation but not the power to order the arrest of an alien. The Chief Executive is the sole and exclusive judge of the existence of facts which would warrant the deportation of aliens. Through the budget. (Sec 23. The Board has jurisdiction to investigate Go Tek even if he had not been convicted yet. VI. The President’s power to deport aliens and to investigate them subject to deportation are provided in the Revised Administrative Code. which contains his proposals for legislation. (b) Prepare and Submit the Budget The President shall submit to Congress within thirty days from the opening of every regular session. There is no legal nor constitutional provision defining the power to deport aliens because the intention of the law is to grant the Chief Executive the full discretion to determine whether an alien’s residence in the country is so undesirable as to affect the security. Sec.

3) 6. Sec. Art VII) 2. a. Impeachment Process * same as President (Art. 3. 4. VII. a. 41 .  Petitioners theorize that the present petition for prohibition is improper because the same attacks an act of the President. The President may shed the protection afforded by the privilege and submit to the court's jurisdiction. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office b. Prohibitions * same as President 4.000 (Sec 17. in violation of the doctrine of presidential immunity from suit. He may be removed from office in the same manner as the President. B. Functions Right of succession The Vice-President shall assume the functions of the president in case of: 1. Marcos (1981)] The petition seeks clarification as to whom the Constitution refers to as the incumbent Pres and Vice Pres. or resignation of the President (Sec 8. not by any other person in the President's behalf. Such appointment requires no confirmation. Membership in Cabinet xxx The Vice-President may be appointed as member of the Cabinet. Section 3. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office. Art VII) Oath * same as President (except for the statement of position) 13.POLITICAL LAW REVIEWER Chapter II. XI. Aquino and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. Qualifications. [Soliven vs Makasiar (1988). There shall be a Vice President who shall have the same qualifications and term of office and be elected with. The Vice President may be appointed as a Member of the Cabinet. xxx [shall receive annual salary of] P240. Election. Sec. and in the same manner. Beltran vs Makasiar (1988)] The President’s immunity from suit extends beyond his term so long as the act in question was done during his term. an accused in a criminal case where the President is a complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against the accused. Privilege and Salary  * same as President except: the Vice-President. The questioned acts are those of petitioners and not of the President. Art XVIII) 3. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers o Reason for delegation: highly technical nature of international commerce. b. removal from office. death. presidential decisions may be questioned before the courts where there is grave abuse of discretion or that the President acted without or in excess of jurisdiction. Art VII) CONSTITUTIONAL LAW I it may impose. 1.  tariff rates  import and export quotas  tonnage and wharfage dues  other duties or imposts within the framework of the national development program of the Government. [Carillo vs. Art VII) Term and Election * same as President (Sec. Art VII) 3. [Gloria v CA (2000)] 2. permanent disability. Moreover. but the validity of his acts can be tested by an action against the other executive officials or such independent constitutional agencies as the Commission on Elections and the Commission on Audit. 9) 5. Petitioners’ contention is untenable for the simple reason that the petition is directed against petitioners and not against the President. Immunity from Suit  The President as such cannot be sued. and until he transmits to them a written declaration to the contrary (Sec 11. as the President. [In Re Bermudez (1986)] The SC held that the privilege of immunity from suit pertains to the President by virtue of the office and may be invoked only by the holder of the office. The petition amounts in effect to a suit against the incumbent Pres. Vice President Article VII. c. there is nothing in our laws that would prevent the President from waiving the privilege. Term and Oath Qualifications * same as President (Sec. (Sec 3.  Succession Removal * same as President (Art. Furthermore. Thus. and the need to constantly and with relative ease adapt the rates to prevailing commercial standards. enjoying as he does immunity from suit. Such appointment requires no confirmation.

B. including the right to strike in accordance with law. (sec.POLITICAL LAW REVIEWER Chapter II. o Disqualifications. 6) 1. in addition to the fact that there is an alleged shortage of funds. in any contract with. shall be Members of the Philippine Bar who have been engaged in the practice of law for at least 10 years Certified public accountants with not less than 10 years auditing experience. or Members of the Philippine Bar who have been engaged in the practice of law for at least 10 years. Right to strike) Art. no release” policy of the DBM which the latter is invoking. and must not have been must not have candidates for any been elective position in candidates for the lections any elective immediately position in the preceding their immediately appointment preceding elections Majority. and agencies of the Government.  Compensation Fixed by law and shall not be decreased during their tenure. It was held that such policy may not be validly enforced against offices vested with fiscal autonomy like the CSC and other Constitutional Commissions. to justify the withholding of the balance of the CSC’s annual budget. Sec. or in any franchise or privilege granted by the Government. . Right to self-organization (v. 2. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers IV.[ CSC v. The civil service embraces all branches.16) iv. Procedure i. iii. Inhibitions No member of a Constitutional Commission shall. hold any other office or employment engage in the practice of any profession engage in the active management and control of any business which in any way may be affected by the functions of his office be financially interested. ii. IX. Composition and Qualifications 2 COMELEC Chairman and 6 Comm COA Chairman and 2 Comm CSC Chairman and Commissioners (Comm) 8. order. or ruling of each Commission can invoke within 30 days from receipt of a copy. subdivisions. and degree. 6. otherwise. (Art. including government-owned or controlled corporations with original charters. including GOCCs or their subsidiaries. 5. 3. or modify substantive rights (sec. including the Chairman. 3) 42 CONSTITUTIONAL LAW I 4. Scope of Civil Service Art. i. Sec. v. agencies or instrumentalities. Terms and Conditions Employment of Government vi. the constitutional mandate of automatic and regular release would be significantly emasculated. Decision on any case or matter brought before it shall be decided by a majority vote of all its Members within 60 days of submission for decision or resolution SC has certiorari jurisdiction which a party aggrieved by any decision. XIII. increase. 8) At issue was the “no report.  Other functions provided by law (sec.…peaceful concerted activities. ii. Civil Service Commission (Asked 4 times in the Bar) 1.  Power to Appoint Personnel (sec. iii. during his tenure: i. IX-B. Common Provisions (Asked 3 times in the Bar) 3. Merit-based system No holding of other positions Standardization of salary No partisan political activity Security of tenure  Temporary employees of the Government shall be given such protection as may be provided by law. (2005)] Natural-born citizens At least 35 years of age Proven capacity for Holders of a public college administration. sec. ii. Being “automatic” means that the budget releases cannot be made contingent on the performance of a particular act or the availability of funds. [The State] shall guarantee the rights of all workers to self-organization.2) 7. directly or indirectly. instrumentalities. iv. 5) Rule-Making Power shall not diminish. (sec. In no case shall any Member be appointed or designated in a temporary or acting capacity. 2(1). 4) Fiscal Autonomy (sec. any of its subdivisions. Appointed by the President with the consent of the Commission on Appointments for a term of 7 years without reappointment Staggered term of Staggered term Staggered term those first appointed: of those first of those first a) Chairman 7 appointed: appointed: years a) 3 Members a) Chairman 7 b) 1 Comm  5 7 years years years b) 2 Members b) 1 Comm  5 c) Other Comm  3  5 years years years c) Last 2 c) Other Comm Members 3  3 years years Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. and must not have been candidates for any elective position in the elections immediately preceding their appointment At no time shall all Members of the Commission belong to the same profession. DBM. Constitutional Commissions A. 2.

or (2) negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. association. cannot be appointed to any office in the Civil Service. Administrative Code of 1987. as the central personnel agency of the Government. Powers and Functions Art. [SSS Employees’ Association v. and to prevent and penalize all forms of election frauds. Sec. i. Salary Standardized compensation. Decide administrative questions pertaining to election except the right to vote.  The law limits the right of free speech and of access to mass media of the candidates themselves. Recommend to the President the removal of any officer or employee it has deputized for violation or disregard of. offenses. i. and nuisance candidacies o Submit to the President and the Congress. office. Investigate and prosecute cases of violations of election laws. join or assist employees' organizations of their own choosing for the furtherance and protection of their interests (2) form. work councils and other forms of workers' participation schemes to achieve the same objectives 5. CA.POLITICAL LAW REVIEWER Chapter II. Deputize law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free. taking into account the nature of the responsibilities pertaining to. (1992)] 4. IX-B. within 1 year after such election. Regulation of public utilities and media of information. the dispute may be referred to the Public Sector LaborManagement Council for appropriate action. Commission on Elections (Asked 9 times in the Bar) 1. and courtesy in the civil service. including those in GOCCs with original charters Exception: (1) members of the AFP. or disobedience to its directive. or title of any kind from any foreign government 43 CONSTITUTIONAL LAW I ii. 3. The right to self-organization shall not be denied to government employees. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers Art. Government employees may. C. File petitions in court for inclusion or exclusion of voters. Sec. labor-management committees. any present. Title I. double. iii. organizations and coalitions and accreditation of citizens’ arms. emolument. The limitation however. either (1) petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation. Who: All government employees. progressiveness. and the qualifications required for their positions No additional. vii. iv. and institutionalize a management climate conducive to public accountability. ix. referendum. Chapter 6. Book V. in conjunction with appropriate government authorities. (1989)] 3. No appointive official shall hold any other office or employment in the Civil Service unless otherwise allowed by law or by the primary functions of his position. 2(5). i. Enforce all laws relating to the conduct of election: o Recommend to the Congress effective measures to minimize election spending. efficiency. walkouts and other temporary work stoppages in order to alter the terms and conditions of their employment. and the right to reply. Sec. . plebiscite. amnesty. Recommend pardon." [National Press Club vs Comelec. a comprehensive report on the conduct of each election. Disqualifications Candidate who has lost in any election. parole or suspension of sentence of election law violators. (2) police officers and policemen. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. (4) jail guards. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. III. Sec. orderly. time. or societies for purposes not contrary to law shall not be abridged. Subtitle A. malpractices. integrate all human resources development programs for all levels and ranks. in connection with "public information campaigns and forums among candidates. integrity. which are generally governed and fixed by law. Powers and Functions  Employees in the Civil Service may not resort to strikes. 38. (3) firemen. honest. It shall submit to the President and the Congress an annual report on its personnel programs. IX-B. initiative. bears a clear and reasonable connection with the objective set out in the Constitution. Scope of right: (1) form. including those employed in the public and private sectors. Registration of political parties. If there be any unresolved grievances. The right of the people. It shall strengthen the merit and rewards system. or recall ii. through their unions or associations. vi. 8. iii. or indirect compensation unless specifically authorized by law No elective or appointive public officer or employee shall accept without the consent of the Congress. Art." as well as uniform and reasonable rates of charges for the use of such media facilities. responsiveness. The purpose is to ensure "equal opportunity. viii. ii. The Civil Service Commission. iii. peaceful. shall establish a career service and adopt measures to promote morale. and space. v. to form unions. and credible elections.

1606. Under these new laws.  Under RA 8249 (AN ACT FURTHER DEFINING THE JURISDICTION OF THE SANDIGANBAYAN. taken his oath. from the jurisdiction of the Commission on Audit. (2005)] Congress cannot make decisions of MTC or MCTC in a barangay election appealable to the trial court. Qualification  Natural born citizen at time of appointment  At least 40 yrs old  With probity and independence  Member of the Bar  Not a candidate for elective office in immediately preceding election  At least 10 yrs had been a judge OR in practice of law Appointment  JBC to nominate at least 6 for original Ombudsman  JBC to nominate at least 3 for every vacancy thereafter  Vacancies to be filled within 3 months after occurrence  Appointed by the President  Appointment needs no confirmation Term  7 yrs without reappointment 1. CONSTITUTIONAL LAW I Art. Commission on Audit (Asked 1 time in the Bar) B. [Flores v. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever. and city officials Appellate: o elective municipal officials decided by trial courts of general jurisdiction o elective barangay officials decided by trial courts of limited jurisdiction Once a winning candidate has been proclaimed. Sandiganbayan (Asked 1 time in the Bar) Art. All such election cases shall be heard and decided in division. Jurisdiction Exclusive original: all contests relating to the elections. the jurisdiction of the Sandiganbayan is now confined to cases involving public officials occupying positions classified as salary grade 27 and higher. several amendments have been introduced to the original law creating it. audit. i. 3. Decide election cases Chapter II. IX-C. or any investment of public funds. questions of law go to the SC. because Comelec has exclusive appellate jurisdiction over all contests involving barangay elective officials decided by trial courts of limited jurisdiction. GOCCs with no original charters and their subsidiaries. the Sandiganbayan is presently composed of:  a Presiding Justice and  fourteen (14) Associate Justices  who sit in five (5) Divisions of  three Justices  each in the trial and determination of cases. 3. (1990)]  ii. o Promulgate accounting and auditing rules and regulations. and assumed office as a Member of the House of Representatives. however. The present anti-graft court known as the Sandigan-bayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. PROVIDING FUNDS THEREFOR. 2. Constitutionally-Mandated Bodies A. ii. As restructured. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers V. commissions and offices. Comelec. AND FOR OTHER PURPOSES). expenditures. o Establish techniques and methods required . which are required by law or the granting institution to submit such audit as a condition of subsidy or equity Exclusive Authority o Define the scope of its audit and examination. Sec.proclamation controversies. 44 . 7975 and No. to determine whether the Sandiganbayan has jurisdiction. and 2) The salary grade of the public official. XI. returns. 8249. namely: 1) The nature of the offense. Autonomous state colleges and universities. directly or indirectly. Art. AS AMENDED. Sec. from or through the Government. 3. including pre. and settle accounts pertaining to Government funds or property: its revenue. one must look into two (2) criteria. and qualifications of all elective regional. and the HRET’s own jurisdiction begins. the Comelec’s jurisdiction over election contests relating to his election. Nongovernmental entities receiving subsidy or equity.     D. i. 2. The Commission on Elections may sit en banc or in two divisions.POLITICAL LAW REVIEWER x. 4. To further strengthen the functional and structural organization of the Sandiganbayan. returns. the latest of which are Republic Acts No. [Aggabao vs Comelec. provided that motions for reconsideration of decisions shall be decided by the Commission en banc. is over questions of fact. receipts. Sec. Ombudsman (Asked 5 times in the Bar) 1. and uses o Post-audit basis: Constitutional bodies. Powers and Functions Examine. provincial. The jurisdiction of the Comelec. IX-D. AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. and shall promulgate its rules of procedure in order to expedite disposition of election cases. and qualifications ends.

taking into account its recommendations. i. however. Composition and Qualifications  Chairman and 4 Members o natural-born Filipinos o majority shall be members of the Bar o The term of office and other qualifications shall be provided by law. with due prudence. (1991)] CONSTITUTIONAL LAW I Removal By impeachment for:  culpable violation of the constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust 45 . in any contract. on its own or upon complaint. and Cultural Rights (ICESCR) are deemed part of Philippine law pursuant to the Incorporation Clause of the Constitution. directly or indirectly. all forms of human rights violations involving civil and political rights The Commission can only protect “civil and political rights. 2. whenever warranted  Determine the causes of the ff and make recommendations for their eradication. The limitation does not exclude the possibility of expanding the Commission’s scope later --. within tenure. and observance of high standards of ethics/efficiency:  Inefficiency  Red tape  Mismanagement  Fraud  Govt corruption 6. CHR. Disqualification  Cannot hold any other office or employment during tenure  Cannot engage in any profession or active management/control of any business affecting their office  Cannot be financially interested.as in fact Section 19 specifically allows (BERNAS). matters covered by investigation. or privilege granted by the Government or its agencies/corporations (Sec. direct the officer concerned to furnish copies of related documents/contracts entered by his office involving use of public funds:  Further report any irregularity to the Commission on Audit  Request assistance and information from other govt agencies for the discharge of his duties  Publicize. on its own or on complaint by any party.e. and net worth upon assumption of office and when required by law 7. Benefits  Ombudsman has rank of Chairman of a ConCom  Enjoys fiscal autonomy  Automatic and regular release of funds  Salary cannot be decreased during term Powers/Duties MAIN PURPOSE: protectors of the people  Shall act promptly on complaints against public officials/govt employees AND notify complainants of action taken and the result  Investigate on its own or any complaint when appears to be:  Illegal  Unjust  Improper  Inefficient  Direct. 2. or duplicate much less take over the functions of the latter. directly or indirectly. Sec. however. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers    Promulgate its rules of procedure Exercise other functions provided by law Declare his assets. receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. IX-A)  Cannot run for any office in the election immediately succeeding their term of office  Cannot be granted any financial accommodation for business purposes. CHR. 19. that the Commission may investigate. Powers and Functions  Investigate. any public official/govt employee to:  perform and expedite an act/duty required  stop/prevent/correct any abuse or impropriety of duty  Direct the officer concerned to take appropriate action against the public official/govt employee  Recommend for their:  removal  suspension  demotion  fine  censure  prosecution  Ensure compliance of the recommendation  Subject to limitations of law. It is conceded.POLITICAL LAW REVIEWER 4. C.  o IMPT: Section 25 of the Universal Declaration of Human Rights (UDHR) as well as the International Covenant on Economic.  The Commission was not meant by the fundamental law to be another court or quasijudicial agency in this country. XIII. Commission on Human Rights (Asked 5 times in the Bar) 1. (1994)] Note. liabilities. Social.” which do not include the less traditional social and economic rights.. that the reason for these modest objectives of the Framers of the Constitution is the desire not to overburden the CHR during its initial years. Art. [Cariño v. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission. franchise. 5. Chapter II. [Simon v. Art.

Practice of professions [Art. 2. all other natural resources shall not be alienated. REGALIAN DOCTRINE B. and requires no further guidelines or implementing rules or laws for its operation. 3] o Lease: < 500 ha. XII. FILIPINO FIRST NATURAL RESOURCES A. the Filipino First policy provision of the Constitution is applicable. Sec. 11] Art. Goals 1. o Private corpora-tions may lease not more than 1. UTILIZATION C. Art. XII. 4(2)] 70-30 Advertising Industry [Art. and other mineral oils. Such provision is per se enforceable. V. forests or timber. domestic materials and locally produced goods. [Cariño v. privileges. homestead or grant: < 12 ha. 3] 60-40 Operation of public utility [Art.  The term “patrimony” pertains to heritage. (1909)] As in previous Constitutions. XII. Sec. GENERAL PRINCIPLES A. Natural Resources A. Sec. GSIS. II. Sec. (1994)] . GOALS B. XII. [JG Summit Holdings v. it has become a part of our national economy and patrimony. all forces of potential energy. Filipino First Art. XII. National Economy and Patrimony (Asked 13 times in the Bar) I. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.  Under the Regalian Doctrine. Sec. 10] of as may can [Art. for 25 years. [Republic v.000 ha. thus a joint venture which would engage in the business of operating a public utility must comply with the 60%-40% Filipino-foreign capitalization requirement. par. XIV. Sec. 14]  Art. Joint venture. 2. and concessions covering the national economy and patrimony. petroleum. Educational Institutions [Art. A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence. XII. 2] 60-40 Natural Resources [Art. renewable for another 25 years. STEWARDSHIP CONCEPT PRIVATE LANDS MONOPOLIES CENTRAL MONETARY AUTHORITY 46 CONSTITUTIONAL LAW I II. Sec. minerals. and other natural resources are owned by the State. wildlife. waters. All lands of the public domain. 10. 2. DEVELOPMENT. Sec. IV. all lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. B. Areas Investment Congress prescribe (percentage be higher) XII. flora and fauna. fisheries. XVI.. Register of Deeds of Quezon. Sec. CITIZENSHIP REQUIREMENTS C. (1997)] 3. Regalian Doctrine [Jura Regalia]  The King had title to all the land in the Philippines except so far as it saw fit to permit private titles to be acquired. NATIONAL ECONOMY and PATRIMONY 100% Filipino Small-scale utilization of natural resources (as may be provided by law) [Art. coal. and given the history of the Manila Hotel. and adopt measures that help make them competitive. XII. [Manila Prince Hotel v. Thus. Citizenship Requirements 100% Filipino Marine Wealth [Art. XII. Production sharing agreemenents) Agreements shall not exceed a period of 25 years renewable for another 25 years. More equitable distribution of opportunities. Insular Government.  I. EXPLORATION. CA. The classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President. XII. 2. par. A joint venture falls within the purview of an “association” pursuant to Sec. The State shall promote the preferential use of Filipino labor. XII. 11] o Cannot be for longer period than 50 years o Executive and managing officers must be Filipino 70-30 Chapter III. General Principles A. In the grant of rights. With the exception of agricultural lands.POLITICAL LAW REVIEWER Chapter III. the 1987 Constitution adheres to this doctrine as illustrated by this section: Agricultural lands [Art. 11. (2000)] C. Sec. 2. Sec. Sec. income and wealth Sustained increase in amount of goods and services produced by the nation for the benefit of the people Expanding production as the key to raising the quality of life for all. o Purchase. the State shall give preference to qualified Filipinos. par. III. especially the underprivileged. 1] (Co-production. 12.

POLITICAL LAW REVIEWER Chapter III. is accorded the primary power and responsibility in the exploration.) A Filipino citizen. (WMCP) for being similar to service contracts. to wit: Provided. g.) SERVICE CONTRACT (1973 Const. which prescribes the eligibility of a contractor in an FTAA d. the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. Section 34. h. 39. 4. which specifies the rights and obligations of an exploration permit grantee c. That a legally foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit. and Utilization Art. being the owner of the natural resources. Section 36.  On motion for reconsideration. and only with corporations Only large-scale exploration. petroleum and other mineral oils. Art. which authorizes the issuance of a mineral processing permit to a contractor in an FTAA The following provisions of the same Act were likewise deemed void as they are dependent on the foregoing provisions and cannot stand on their own: a. FTAA or mineral processing permit b. 2. 33. development and utilization of minerals. Section 38. Ramos. which enumerates the terms and conditions for every FTAA e. petroleum. Section 90. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration. d.” insofar as it applies to a financial or technical assistance agreement. petroleum and other mineral oils Involving either financial or technical assistance . In such agreements. Section 40. (3) Congress may. which defines the term “contractor. The Court then struck down the Financial and Technical Assistance Agreement (FTAA) entered into between the Government and Western Mining Corporation (Phils. Sec. corporation or association with a “foreign person or entity” Contractor provides all necessary services and technology and the requisite financing. which defines a “qualified person”. Sec. based on real contributions to the economic growth and general welfare of the country. par. Sec. which allows the withdrawal of the contractor in an FTAA.) Parties Only the President (in behalf of the State). Sec. and other mineral oils according to the general terms and conditions provided by law.). The second and third paragraphs of Section 81. operations of the exploration and exploitation of the resources or the disposition of Following this framework. which allows the assignment or transfer of financial or technical assistance agreements. or 47 CONSTITUTIONAL LAW I The State. 23. XII. allow small-scale utilization of natural resources by Filipino citizens. [[La Bugal-B’Laan Tribal Assn. development and utilization thereof. Sec. Exploration. and assumes all exploration risks Virtually the entire range of the country’s natural resources Contractor provides financial or technical resources. which limits the term of financial or technical assistance agreements. 2. which allows the contractor to convert the FTAA into a mineral production-sharing agreement (MPSA) f. the State shall promote the development and use of local scientific and technical resources. v. which prescribes the procedure for filing and evaluation of financial or technical assistance agreement proposals. the SC declared the following provisions of the Philippine Mining Act of 1995 (RA 7942) unconstitutional for being contrary to Sec. (Jan. which provides for incentives to contractors in FTAAs insofar as it applies to said contractors. The proviso in Sec.) marketing resources B. c. or (4) For the large-scale exploration. Section 41. NATIONAL ECONOMY and PATRIMONY FTAA (1987 Const. the SC reversed its original decision and upheld the Size Activities of Natural Resources Covered Scope of the Agreements Minerals. or directly manages the productive enterprise. As such it may undertake these activities through four modes: (1) The State may directly undertake such activities. 3(aq).2004)] FTAA (1987 Const. f. by law. joint venture or production-sharing agreements with Filipino citizens or qualified corporations. e. which provide for the Government’s share in a financial and technical assistance agreement. Development. i. development. (2) The State may enter into co-production. Section 37. which prescribes the maximum contract area in a financial or technical assistance agreements. XII of the 1987 Constitution: a. development and utilization SERVICE CONTRACT (1973 Const. Inc. and utilization of minerals. performs the exploration work obligations. 35. previously allowed under the 1973 Constitution but which are now proscribed under the 1987 Constitution. Sec. which allows negotiations for financial or technical assistance agreements. 56. undertakes the exploitation or production of a given resource. b. Section 3 (g).

3. v. sec. (2003)]  C.as well as the subject Financial and Technical Assistance Agreement (FTAA). v. ii. Sec. 3. and operate economic enterprises. . and the rights of indigenous communities to their ancestral lands. they are subject to a higher level of State regulation than an ordinary business undertaking. Central Monetary Authority [Art. V. (Art. No combinations in restraint of trade or unfair competition shall be allowed. in the disposition or utilization of other natural resources. Majority shall come from the private sector Subject to such other qualifications disabilities as may be provided by law and III. homestead rights of small settlers. Sec. sec. PCA. Supervise the operations of banks. (1998)] Monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. Known probity. and its Implementing Rules. Sec. the Mining Law. 7) Until the Congress otherwise provides. life-giving strokes. and commend their efforts to uplift their communities. PIATCO. subject to limitations provided by law. it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise. 2. 20] Functions: 1. The Constitution should be read in broad. Jr. establish. including corporations. Rather. XII. The State shall regulate or prohibit monopolies when the public interest so requires. or associations qualified to acquire or hold lands of the public domain. subject to prior rights. a determination must first be made as to whether public interest requires a monopoly. It should not be used to strangulate economic growth or to serve narrow. General Rule No private lands shall be transferred or conveyed except to individuals. the Central Bank of the Philippines operating under existing laws. integrity and patriotism. XIII. The use of property bears a social function. As monopolies are subject to abuses that can inflict severe prejudice to the public. and credit. XIII. the humongous amounts of capital and financing required for large-scale mining operations. shall function as the central monetary authority. given the nature and complexity of such agreements. coupled with the State’s need to maintain flexibility in its dealings. 6. [La Bugal-B’laan Tribal Assn. the Court cannot justify the invalidation of an otherwise constitutional statute along with its implementing rules. The Court believes that it is not unconstitutional to allow a wide degree of discretion to the Chief Executive. XII. Monopolies Art. Exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions Qualifications of the Governors: 1. [Agan. parochial interests.  Although the Constitution enshrines free enterprise as a policy. and all economic agents shall contribute to the common good. Provide policy directions in the areas of money. 6. NATIONAL ECONOMY and PATRIMONY B. sec.  Natural-born Filipino. including lands of the public domain under lease or concession suitable to agriculture. the complicated technology needed. Sec. corporations. banking. the Court upholds the constitutionality of the Philippine Mining Law. it nevertheless reserves to the Government the power to intervene whenever necessary for the promotion of the general welfare. in order to preserve and enhance our country’s competitiveness in world markets. The State shall apply the principles of agrarian reform or stewardship. (Dec. and similar collective organizations. 19. 2004)] Chapter III. its Implementing Rules and Regulations -. Ramos. cooperatives. On the basis of this control standard. XII. whenever applicable in accordance with law. Private Lands A. However. Art. Individuals and private groups. Stewardship Concept Art.insofar as they relate to financial and technical agreements -. or the nullification of an otherwise legal and binding FTAA contract. Nonetheless. [Philippine Coconut Dessicators v. Hereditary succession (Art. XII. (Art. 2. as well as to secure for our people and our posterity the blessings of prosperity and peace. 7) A natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands. Exceptions i. and the intricacies of international trade. shall have the right to own. XII. 8) 48 CONSTITUTIONAL LAW I IV.POLITICAL LAW REVIEWER constitutionality of the subject FTAA. subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. The Court fully sympathize with the plight of La Bugal B’laan and other tribal groups.

Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. given the number of qualified parties and the voting percentages obtained. (2001)] 9) The Legal and Logical Formula for the Philippines Step One. then the first party shall be entitled to two additional seats or a total of three seats overall. Depending on the proportion of its votes relative to that of the first party whose number = If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups. And if the proportion is less than four percent.” [Veterans Federation Party v. It cannot be used to determine the number of additional seats of the other qualified parties. an arbitrary rounding off could result in a violation of the twenty percent allocation. organizations and coalitions from the highest to the lowest based on the number of votes they each received. the use of the same formula for all would contravene the proportional representation parameter. in order to be able to compute that for the other parties. CURRENT EVENTS and SPECIAL TOPICS of seats has already been predetermined. the second party should be given less than that to which the first one is entitled. deprive another party's fractional membership.000 votes cannot be entitled to the same number of seats. EXECUTIVE PRIVILEGE IV.000. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. but less than six percent. If the proportion of votes without a rounding off is equal to or greater than four percent.POLITICAL LAW REVIEWER Chapter IV. The Court has previously ruled in Guingona Jr. PEOPLE’S INITIATIVE V. Gonzales that a fractional membership cannot be converted into a whole membership of one when it would. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts. then the first party shall not be entitled to any additional seat. The initial step is to rank all the participating parties. As explained earlier. (2000)] Formula for Determining Additional Seats for the First Party The formula for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party -----------------Total votes for party-list system Proportion of votes relative to total votes for party list Chapter IV. RIGHT OF REPLY BILL VI. will definitely not end up in such constitutional contravention. Major political parties must comply with this statutory policy Religious sects are prohibited by the Constitution The party must not be disqualified under RA 7941 The part must not be an adjunct of an entity or project funded by the government The party and its nominees must comply with the requirements of the law The members must come from the marginalized and underrepresented sectors The nominee must be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation Their nominees must come from the same party. the first party received 1. [Ang Bagong Bayani v. II. and (2) the formula does not admit of mathematical rounding off.000 votes and is determined to be entitled to two additional seats. Current Events and Special Topics I. v. then the first party shall have one additional or a total of two seats. Comelec. . Since the distribution is based on proportional representation. All parties with at least two percent of the total votes are guaranteed one seat each. INQUIRIES IN AID OF LEGISLATION III. Only these parties shall be considered in the computation of additional seats. It would be a violation of the constitutional mandate of proportional representation. because there is no such thing as a fraction of a seat.  1) 2) 3) 4) 5) 6) 7) 8) Party-List System The SC laid down the following guidelines for screening party-list participants --The parties must represent the marginalized and underrepresented. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1. We said further that "no party can claim more than what it is entitled to x x x. Another qualified party which received 500. MOA ON ANCESTRAL DOMAIN (MOA-AD) 49 CONSTITUTIONAL LAW I I. The party receiving the highest number of votes shall thenceforth be referred to as the “first” party. in effect. since it garnered only fifty percent of the votes won by the first party. PARTY-LIST SYSTEM QUESTION HOUR V. For example. The next step is to determine the number of seats the first party is entitled to. THE (ERSTWHILE) PROVINCE OF SHARIFF KABUNSUAN VII. Step Two. Verily. the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. Comelec.

To repeat. as a limitation to the number of seats that a qualified party-list organization may occupy. directly or indirectly. unconstitutional. frustrate their sovereignty and betray the democratic spirit of the Constitution. most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. 11.A. our people recognized how the interests of our poor and powerless sectoral groups can be frustrated by the traditional political parties who have the machinery and chicanery to dominate our political institutions. of votes of the first party No. in order to be entitled to one additional seat. the following procedure shall be observed: The parties. Comelec. by a vote of 8-7. [Veterans Federation Party v. the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections. then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. as well as the legislative 1.  In determining the allocation of seats for party-list representatives under Section 11 of R. an exact whole number is necessary. it effectively defeats the declared constitutional policy. As such. we will surely suffocate the voice of the marginalized. as in the present state of the law. Separate Opinion: The inflexible 2% threshold vote required for entitlement by a party-list group to a seat in the House of Representatives in Republic Act (R. and remove cultural inequalities by equitably diffusing wealth and political power for the common good”. No. The next step is to solve for the number of additional seats that the other qualified parties are entitled to.) No. to every two-percenter. 50 CONSTITUTIONAL LAW I = x Incidentally. and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. 7941 is unconstitutional. and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. CURRENT EVENTS and SPECIAL TOPICS total number of votes until all the additional seats are allocated.POLITICAL LAW REVIEWER Formula for Additional Seats of Other Qualified Parties Step Three. of the Philippine Constitution. Comelec. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. pursuant to Sec. Nachura. Fractional seats are disregarded in the absence of a provision in R. organizations. 3. Those garnering sufficient number of votes. Concurring and Dissenting Opinion: Limiting the party-list system to the marginalized and excluding the major political parties from participating in the election of their representatives is aligned with the constitutional mandate to “reduce social. In fact. The three-seat cap. . If we allow major political parties to participate in the party-list system electoral process. and political inequalities. Hence.A. This minimum vote requirement ─ fixed at 2% of the total number of votes cast for the party list system ─ presents an unwarranted obstacle to the full implementation of Section 5 (2). The end result would be zero additional seats for each of the other qualified parties as well. The evils that faced our marginalized and underrepresented people at the time of the framing of the 1987 Constitution still haunt them today. where 55 seats are available to party-list representatives. However. It is through the party-list system that the Constitution sought to address this systemic dilemma. Furthermore.J. the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. remains a valid statutory device that prevents any party from dominating the party-list elections. But the law itself has set the limit: only two additional seats. RA 7941. shall be entitled to additional seats in proportion to their In computing the additional seats. organizations. organization. 4.. J. C. The formula is encompassed by the following complex fraction: Additional seats for concerned party No. based on proportional representation. 7941 allowing for a rounding off of fractional seats. obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. Thus. (2009)] Puno. [Barangay Association for National Advancement and Transparency (BANAT) v. the guaranteed seats shall no longer be included because they have already been allocated. Each party. we need to work within such extant parameter. No. according to the ranking in paragraph 1. 7941. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since. In ratifying the Constitution. Article VI. (2000)] SC declared the 2%-threshhold used for computing the allocation of additional seats under the Veterans Formula. if the first party is not entitled to any additional seat. of additional seats allocated to first party Chapter IV.. economic. 2. rounding off may result in the awarding of a number of seats in excess of that provided by the law. The parties. because it renders the attainment of the maximum number of available party seats mathematically impossible once the available party list seats exceeds 50.A. or coalition shall be entitled to not more than three (3) seats. of votes of concerned party --------------No. at one seat each.

and even if he does. Hence. the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. Accordingly. Must be conducted in accordance with duly published rules of procedure iii. the formula should be: 100% (Total # of votes cast for party-list) 55 party-list seats Chapter IV. Congress may refuse the initiative taken by a department secretary. A legal provision that poses an insurmountable barrier to the full implementation and realization of the constitutional provision on the party-list system should be declared void. The heads of departments may. The minimum vote requirement will gradually lessen as the number of party-list seats increases. Categories of Congressional Oversight Functions A. 1. Concurring and Dissenting Opinion: Scrutiny Primary purpose is to determine economy and efficiency of the operation of government activities In the exercise of legislative scrutiny. 7941. if the scenario we presented above should ever come to pass. Congressional Investigation 51 CONSTITUTIONAL LAW I 5. considering that there are 55 seats allocated for party-list groups. with the consent of the President. the appearance shall be conducted in executive session . based primarily on the power of appropriation of Congress Congress can ask the heads of departments to appear before and be heard by either House of Congress on any matter pertaining to their departments. Interpellations shall not be limited to written questions. Must be in aid of legislative functions ii. Sec.818% Art.J. 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. Likewise. B. 4. then the threshold vote should be 1%. which retains a “right” to approve or disapprove any regulation before it takes effect. Inquiries In Aid of Legislation  Macalintal v. C. Art. = 1. 3. (2003). A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which legislation is intended to affect or change. Puno.. and there are 100 seats allocated for party-list groups. Comelec. Congress exercises supervision over the executive agencies through its veto power. based on the following computation: 100% (Total # of votes cast for party-list) 100 party-list seats o Limitations i. until Congress shall have effected an acceptable amendment to the minimum vote requirement in R. but may cover matters related thereto. 2. or upon the request of either House. however. The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. [Arnault v. Thus. Question Hour v. When the security of the State or the public interest so requires and the President so states in writing. CURRENT EVENTS and SPECIAL TOPICS o Under the 1973 Constitution.POLITICAL LAW REVIEWER objective expressed in the enabling law. I submit that. Persons appearing therein are afforded their constitutional rights Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively. such power is so far incidental to the legislative function as to be implied. 22. the raison d’etre for the adoption of the party-list system.A. upon their own initiative. Congress exercises legislative scrutiny thru its power of confirmation. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. Reciprocally. we abide by the sensible standard of “proportional representation” and adopt a gradually regressive threshold vote requirement. 21. appear before and be heard by such House on any matter pertaining to their departments. VI. at present. VI. C. Sec. Congress may request information and report from the other branches of government. he may require that the appearance be in executive session. inversely proportional to the increase in the number of party-list seats. to allow the people’s broadest representation in Congress. (1950)] Legislative Supervision  = 1% II. Nazareno. The rights of persons appearing in or affected by such inquiries shall be respected. In contrast to such provision. These provisions require the President or an agency to present the proposed regulations to Congress. the tenor of its counterpart in the present Constitution is merely permissive. the President may or may not consent to the appearance of the heads of departments. a similar provision expressly referred to this appearance as the “question hour”. as the rules of each House shall provide. and where the legislative body does not itself possess the requisite information — which is not frequently true — recourse must be had to others who do possess it. In other words.

2. or to maintain the internal nature of the formulation of governmental decisions and policies. Scope Who are covered Basis Elements Presidential Communications Communications. involving what the court characterized as “quintessential and nondelegable Rooted in the constitutional principle of separation of power and the President’s unique constitutional role 1.” 2. Presidents invoke it in order to prevent a subversion of crucial military or diplomatic objectives. . Executive officials Common law privilege  How does one draw the line. 3. the competing claims of the presidency and the legislature? o Citing Senate v. Deliberative Process Advisory opinions. Ermita. (2006)]  exempts the executive from disclosure requirements applicable to the ordinary citizen or organization 52 CONSTITUTIONAL LAW I   1. and ultimately the public. [Senate v.S. the Court held that “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications. or balance. and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions. CURRENT EVENTS and SPECIAL TOPICS  where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need. such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.POLITICAL LAW REVIEWER Chapter IV. (3) It is based on the constitutional doctrine of separation of powers. (2) It takes on various forms. The protected communication must relate to a “quintessential and non-delegable presidential power. and covers final and postdecisional materials as well as pre-deliberative ones President  operational proximity test: meant to encompass only those functions that form the core of presidential authority. In this regard. Ermita (2006).” o It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. or to protect the identity of informers. Executive Privilege  Citing American sources. [Neri v Senate (2008)] Two kinds of executive privilege: [citing In re: Sealed Case] Presidential Communications Privilege Deliberative Process Privilege III. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. the courts. that is. The judicial test is that an advisor must be in “operational proximity” with the President. the SC defined and explained “executive privilege” as follows --(1) It is the right of the President and high-level executive branch officers to withhold information from Congress. documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential o applies to documents in their entirety. much will depend on the content and the manner the inquiry is conducted. whereby U.

” The Lambino petition seeks to use the same law for a new people’s initiative in order to convert the present government set-up into a parliamentary-unicameral system. the proposal must be embodied in the petition. Length of Reply o Not longer than the accusation or criticism. and b) the proposed changes constituted revision. suggestion or rumor for any lapse in behavior in public or private life. E. The Lambino petition warranted outright dismissal for failure to comply with the basic requirement of Section 2.POLITICAL LAW REVIEWER Chapter IV. Only a Congress or a Constitutional Convention can propose both amendments and revisions to the Constitution. the SC declared RA. 3. XVII such that an affirmation or reversal of Santiago will not change the outcome of the case. D. Not later than 1 day after the reply shall have been delivered to the editorial office of the publication concerned or to the station that carried the broadcast being replied to. 4. 2) As an “initiative upon a petition”. Further. Other Provisions It is the obligation of the publication or broadcast network which featured the accusations against a person. Failure or refusal to publish or broadcast a reply or the correction of an erroneous news item is carries penal sanctions consisting of both fines and imprisonment. No agent or representative can sign on their behalf. To Whom the Right to Reply is Granted All persons accused of any crime or offense defined by law. a people’s initiative could only propose amendments. 3306 A. 1. not revisions. 1. 2. or Criticized by innuendo. 2. COMELEC (1997). to correct its previous report. This means the 2 essential elements must be present: 1) The people must author and thus sign the entire proposal. or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. V. The publication or broadcasting of the reply shall be free of charge. The essence of amendments “directly proposed by the people through initiative upon petition” is that the entire proposal on its face is a petition by the people. o The Lambino petition failed to comply because: a) the initiative petition did not present the full text of the proposed amendments. Held: o The Court held that the Santiago decision need not be revisited. People’s Initiative  Lambino v. CURRENT EVENTS and SPECIAL TOPICS IV. C. if the latter is eventually cleared of the crime alluded to him. Where Reply is Published or Broadcast Same space of the printed media where accusation or criticism was published Same program where accusation or criticism was broadcast  Media covered include websites and any electronic devices When Reply is Published or Broadcast 53 CONSTITUTIONAL LAW I B. o 2. 1. The publication of the reply or correction does not preclude recourse to the exercise of other legal rights and remedies available to the party concerned. A change in the form of government—from presidential and bicameral to parliamentary and unicameral—constitutes revision and not merely an amendment. COMELEC (2006): In Santiago v. payment or fees. inadequate. Art. Right of Reply Highlights of House Bill No. 6735 on People’s Initiative to be “incomplete. not amendment. .

a power only Congress can exercise under Section 5. The (Erstwhile) Kabunsuan  Province of Shariff 2. the ARMM Regional Assembly. Comelec. Petitioners wanted to secure copies of the MOA but they were denied. Issue: WON the ARMM Regional Assembly can create the Province of Shariff Kabunsuan. Section 5 (3). Aguirre (2000). enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan. or each province. v. MMA Act 201. exercising its power to create provinces under Section 19. Similarly. President Arroyo issued Executive Order No. However. the Executive Department pronounced that it would not longer sign the MOA-AD and dissolved the GRP Peace Panel. Section 3 of the Ordinance appended to the Constitution provides. Jr. The exploratory talks culminated in the drafting of the subject of MOAAD intended to be signed on August 5.3 defining the policy and administrative structure for the government’s comprehensive peace effort. In Pimentel. Held: 1. the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional. Held: Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member. But despite two rounds of formal peace talks. though part of the first legislative district of Maguindanao. is void. voted against its inclusion in the ARMM in the plebiscite held in November 1989. Thus. violence still ensued. the power to create a province or city inherently involves the power to create a legislative district. Thus. shall have at least one representative” in the House of Representatives. “Each city with a population of at least two hundred fifty thousand. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan. Article X of the Constitution is followed. and the grant of legislative powers to its Regional Assembly under its organic act. the MILF and the AFP suspended all military actions and began the peace talks. VII. This violates Section 20. the creation of provinces and cities is another matter. “Any province that may hereafter be created. 2008 in Kuala Lumpur. Later on. Facts: o The ARMM's legislature. did not divest Congress of its exclusive authority to create legislative districts. o The province was composed of the eight municipalities in the first district of Maguindanao and the City of the Cotabato. Later on.POLITICAL LAW REVIEWER Chapter IV. To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMM’s territorial jurisdiction. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Later on. 54 . she issued Memorandum of Instructions to the GRP Peace Panel providing the General Guidelines on the Peace Talks with the MILF. this Court held that the mere enactment of the questioned law or the approval of CONSTITUTIONAL LAW I Sema v. (2008): Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts. Cotabato City. CURRENT EVENTS and SPECIAL TOPICS VI. The creation of the ARMM. However. the GRP and the MILF again agreed to a cessation of hostilities to give way to exploratory talks to be conducted in Kuala Lumpur. Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Petitioners still filed 13 petitions assailing the constitutionality of the MOA-AD arguing that there remains a justiciable controversy to resolve. Pursuant to this. Esperon (2008) Facts: In lieu of the historical hostilities occurring in Mindanao perpetrated by Muslim secessionist groups and the failure of a number of peace talks entered into between the government and the MNLF (the MILF broke away from MNLF and continued armed hostilities). Article VI of RA 9054. They filed petitions which resulted to a cease and desist order from the Supreme Court restraining the government to sign the MOA-AD and prompted the SolGen to submit to the court the final draft of the MOA-AD. provided the provisions of Section 10. GRP. Article VI of the Constitution provides.” Thus. enacted Muslim Mindanao Autonomy Act No. Article X of the Constitution which expressly limits the coverage of the Regional Assembly’s legislative powers “[w]ithin its territorial jurisdiction x x x. MOA on Ancestral Domain (MOA-AD)  Province of North Cotabato v.

the present petitions are not confined to the terms and provisions of the MOA-AD. Therefore. RA 7160 (LGC) and RA 8371 (IPRA). the need to have it signed or initialed by all the parties concerned on August 5. 2. On the substantive aspect. CURRENT EVENTS and SPECIAL TOPICS Also: 1. therefore. The MOA-AD cannot be reconciled with the Constitution and laws. the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding. Likewise. In fact. particularly the associative relationship envisioned between GRP and BJE." foremost of which is the creation of the BJE. the government and its negotiating entity. Respondent’s act of guaranteeing the amendments is. The mandate of the GRP Peace Panel emanated from Executive Order No. . Nachura believed that the constitutionality of the MOA-AD should be viewed from the perspective of executive power. it is unconstitutional. Consequently. by itself. but to other on-going and future negotiations and agreements necessary for its realization. The clause on the MOA-AD that “inconsistent provisions will not take effect until the framework is amended” does not cure the MOA-AD’s unconstitutionality. Implied from the calling out power of the President which does not require existence of actual invasion or rebellion. There can be no violation of the Constitution because the MOA-AD was not consummated.POLITICAL LAW REVIEWER the challenged action ripened the dispute to a judicial controversy even without any other overt act. committed grave abuse of discretion when he failed to carry out the pertinent consultation process as required by EO 3. there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Chapter IV. and the far-reaching Constitutional implications of these "consensus points. the bar. 4. the MOA-AD cannot be considered a mere "list of consensus points. when an act of the President. already a constitutional violation. but day-to-day problems of maintaining peace and order and ensuring domestic tranquility. 55 CONSTITUTIONAL LAW I 3. As Chief Executive and Commander-in-Chief. the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. there is no more actual case or controversy to be resolved. the public and. Moreover. 3 which was issued pursuant to the power of the President to maintain peace and order. there is an implied power given to the President as protector of peace. 2008. settling the dispute becomes the duty and the responsibility of the courts. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench. is seriously alleged to have infringed the Constitution and the laws. been rendered moot and academic simply by the public disclosure of the MOAAD.end of Constitutional Law I - . these petitions are imbued with paramount public interest. in this case. the President may exercise not only emergency powers. The Presidential Adviser on Peace Process." especially given its nomenclature. Nachura’s Dissent: In light of supervening events. By the same token. involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. General Esperon. The petitions have not. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Contrary to the contention of the respondents. who in our constitutional scheme is a coequal of Congress.

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................ WRIT OF HABEAS DATA...... Privacy of Communication and Correspondence .72 III........................ Definition .................................60 II............... Who May Exercise. Liberty of Abode............................................ Scope....... 75 III..........67 A..... Standards of Judicial Review......................................... Kinds ...59 III......................70 A..70 C...............69 A........................................66 Chapter III.............................69 B... 112 I.... Requisites .............. 99 Chapter IX............65 C.................... Right to Travel............................. 74 B.................. Definition .................................................58 I.....................65 D..POLITICAL LAW REVIEWER TABLE of CONTENTS CONSTITUTIONAL LAW II Table of Contents Chapter I.. Vis-à-vis Police Power ... In General .... 86 Chapter VI................. Land-based vs.......... Detention/Custodial Investigation ..................... In General ..... Forms of Correspondence Covered . 12... CONTENT-BASED RESTRICTIONS103 IV..................... 88 II...73 C.....73 Chapter V.....59 Chapter II. Examples of Valid Classification ..... Qualification for Elective Office........... 74 A........................ Protocol After Conduct Of Investigation 84 VI........74 I................. Components............. When Allowed ......... SEARCH AND SEIZURE.........................63 C... 5..... 112 Chapter XII.. Accountability ........73 D............ Sea-based Filipino Overseas Workers............ Scope................ Bases: ............................. Print vs......... Requisites for Issuance of a Valid Arrest Warrant ............................... 109 I............ 80 A.................................. Doctrines....... 99 III..................68 B.... Intrusion.... 119 57 CONSTITUTIONAL LAW II ..................................... Requirements for Fair Procedure ....... 101 I..... Writs .................................. Vis-à-vis Power to Tax.... 112 II............. Free Exercise Clause... 111 Chapter XI... 110 III........................ Rights under Custodial Investigation 80 B...........69 IV...................... Limitations................... 96 III.. Broadcast Media.................... 99 II........... Fundamental Powers .. 94 I....... Equal Protection of the Laws..............................................72 B............ Procedural Due Process .......... Other Rights Guaranteed Under Art.......... Vis-à-vis Eminent Domain .............................. Rights Post Trial..... Requisites of a Valid Warrantless Arrest (Rule 113........ Freedom of Religion ... Aliens ...........59 A...................... Taxation ..... Filipino Female Domestics Working Abroad .. 77 IV............ Tests .......... Sec...... Rights of the Accused .. Who May Exercise............................... Rules on Criminal Procedure).................................73 E..72 II........................................ Due Process..................... 112 III....... Basis.................................60 A....68 C..... Liberty of Abode and Travel ..................70 B.......... Bases and Purpose.. “Rational Basis Test” ............... 74 ARREST.....65 B............ 91 Chapter VII........ WRIT OF AMPARO .................. Non-establishment Clause........................... “Strict Scrutiny Test” ............ Nature and Scope ....................................................... Definition and Scope of Protection.......... Right to Bail ...71 Chapter IV........ Scope and Limitations.....73 B...... “Intensified Means Test” .................. 113 Chapter XIII.................. Eminent Domain...................... Requisites ...................... Substantive Due Process....... Right to Return to One’s Country.......... 84 VII.... Latest Cases............................. 109 II.......60 I............. II. Due Process As Limitation On Fundamental State Powers .................................................. Police Power .........73 A............. RA 9372: Human Security Act* ...................... 94 II.............. 101 II....... 83 V.............. HABEAS CORPUS .......................... ENABLING LAW ................72 I..63 B................67 II.................... Definition and Scope...73 IV................................. III..........58 II.............................64 III............ 96 Chapter VIII..63 A............ Tests of Waiver of Miranda Rights ... Double Taxation..... Requisites of Valid Classification .................................... Sec... Freedom of Expression .....60 of the State.......................68 III... CONTENT-NEUTRAL RESTRICTIONS 106 Chapter X........ Exclusionary Rules .73 F. 84 VIII...................67 I.................72 A................................................................ 99 I.... Bill of Rights ..73 C........ Office of the Ombudsman................................65 A..........

Gutierrez Faculty Editor CONSTITUTIONAL LAW II CONSTITUTIONAL LAW II TEAM Chapter I. Political rights – rights that pertain to an individual’s citizenship vis-à-vis the management of the government (e. Rights of the accused – civil rights intended for the protection a person accused of any crime ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief PRINTING & DISTRIBUTION Kae Guerrero DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Romualdo Menzon Jr. Marti. Its concern is not the relation between individuals. between a private individual and other individuals. marriage. BASES AND PURPOSE A. In General POLITICAL LAW Jennifer Go Subject Editor It is a declaration and enumeration of a person's fundamental civil and political rights. 674. rights to property. 1991): “The Bill of Rights governs the relationship between the individual and the state. Ibarra M. ACCOUNTABILITY Paula Deveraturda Lead Writer Tina Amador Dan Avila Richard Beltran Daniel Convocar Michael Manotoc Sam Nuñez Che Santos Alyanna Orbeta Writers 58 CONSTITUTIONAL LAW II I.” (Sponsorship Speech of Commissioner Bernas . right of suffrage. 1. 1. BILL of RIGHTS Prof. or by groups of individuals. Rania Joya LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers MOCK BAR COMMITTEE Lilibeth Perez BAR CANDIDATES WELFARE Dahlia Salamat LOGISTICS Charisse Mendoza SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members . IN GENERAL II. p. Social and economic rights – rights which are intended to insure the well-being and economic security of the individual 4. Emphasis supplied) It is generally self-executing. BASES B. 1986. right to hold public office. G. etc. right to petition government for redress. It also imposes safeguards against violations by the government. No. Vol. PURPOSE III. Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. etc.R.) 2.) 3. July 17. 81561 (January 18. Bill of Rights I. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. Civil rights – rights that belong to an individual by virtue of his citizenship in a state or community (e. freedom to contract. equal protection.g. by individuals.g. People vs.POLITICAL LAW REVIEWER Chapter I. Record of the Constitutional Commission.

POLITICAL LAW REVIEWER Chapter I. BILL of RIGHTS II. the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy. We cannot be faithful to this duty if we give no protection to labor when the violator of its rights happens to be private parties like private employers. Nature of Judicial Process. (1973): The Bill of Rights is designed to preserve the ideals of liberty. Protection against arbitrary actions of government and other members of society B. freedom of worship and assembly. the erosion of small encroachments. 1952 ed. 2. To preserve democratic ideals 2. to free speech. Marti (1991): That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals… Serrano vs. 71. Justice Robert Jackson." (West Virginia State Board of Education vs.) In the pithy language of Mr. Constitution of the Philippines. Philippine Blooming Mills Co.. 90-93. To safeguard fundamental rights 3. liberty and property. 59 CONSTITUTIONAL LAW II an Philippine Blooming Mills Employees Organization vs. and to establish them as legal principles to be applied by the courts. To promote the happiness of individual III. 624. One's rights to life. or free press. and the scorn and derision of those who have no patience with general principles. Bases: 1. to place them beyond the reach of majorities and officials. Purpose: 1. the expediency of the passing hour.. Barnette. To be sure. Bases and Purpose A. 319 U. equality and security "against the assaults of opportunism. Inc." (Justice Cardoso. and other fundamental rights may not be submitted to a vote. Importance accorded to the dignity and worth of the individual.S. 638) . they depend on the outcome of no elections. violation of the particular right of employees to security of tenure comes almost always from their private employers. Tanada and Fernando. Accountability People vs. NLRC (2000): Section 3 of Article XIII of the Constitution requires the State to give full protection to labor. A private person does not have a better right than the government to violate an employee's right to due process.

7160. 133. administrative bodies. Limitations US vs.POLITICAL LAW REVIEWER Chapter II. Mayor of Manila (1967): It is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort. DEFINITION AND SCOPE B. and with business and occupations.S. Limited Partnership vs. Scope General Coverage: Rubi vs. DEFINITION B. . and is not inaptly termed the 'law of overruling necessity. the rights of the individual are subordinated. at p. 1155. vs. 1919) "The police power of the State. Definition Ermita-Malate Hotel and Motel Operators Association." one court has said. ILLUSTRATION ON THE EXERCISE II. Justice Brown in his opinion in the case of Lawton vs.” (Mr. 70 Ill. Who May Exercise 1. POLICE POWER A. Rose Hill Cemetery Co. safety and welfare of society. Steele [152 U.. 2. EMINENT DOMAIN A.. vs.) It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort. Executive By virtue of a valid delegation of legislative power. DOUBLE TAXATION Bank and Trust Co. TAXATION A. [1873]. safety and welfare of society. B. 219 U. in order to secure the general comfort health and prosperity of the state and to this fundamental aim of our Government. 70 Ill. 136] C. 191.. with property. 1163) extending as it does "to all the great public needs. Police Power A. DEFINITION B. (Cf. Hernandez." (Lake View vs. SCOPE AND LIMITATIONS C. may interfere with personal liberty. sec. Rose Hill Cemetery Co.S.has been properly characterized as the most essential. 16). 412) Specific Coverage     Public Health Public Morals Public Safety Public Welfare 60 CONSTITUTIONAL LAW II I. WHO MAY EXERCISE C..) Ortigas & Co. G. TESTS FOR VALIDITY OF EXERCISE E. Fundamental Powers of the State I. Feati 2. No. Mayor of Manila (1967): .' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort. Inc. "is a power coextensive with selfprotection. FUNDAMENTAL POWERS Chapter II. (1979): …the state.. 191.A. safety and welfare of society.. Scope and Limitations 1. WHO MAY EXERCISE D. WHO MAY EXERCISE C. Provincial Board. Persons may be subjected to all kinds of restraints and burdens. Legislature Police power is lodged primarily in the national legislature." (Lake View vs. insistent and the least limitable of powers.R. (citations omitted) Ermita-Malate Hotel and Motel Operators Assoc. Toribio (1910): The legislative determination “as to what is a proper exercise of its police powers is not final or conclusive. LIMITATIONS D. L-14078 (March 7. Ichong v. in order to promote the general welfare. REQUISITES III. and lawmaking bodies of LGUs (R. it may also be exercised by the president." (Noble state Bank vs. Haskell. (1957) 101 Phil. [1873]. but is subject to the supervision of the court.

be held to be invalid. 2. and welfare. Edu.” 2. Bel-Air Village Association. Illustrations on the Exercise of Police Power 1. (Section 3(b). traffic engineering services and traffic education programs. No. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would. Note: MMDA vs. arbitrary and unconscionable.this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. Tests for Validity of Exercise of Police Power 1. Garin (2005): Rep. National Security Ichong vs. LAWFUL MEANS: Means employed is reasonably necessary for the accomplishment of the purpose.. rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace. According to the Court. Rep.R. City Mayor of Manila (1967): Ermita Malate Hotel and Motel Operations Assoc. G. suitably vague and far from precisely defined. (MMDA v.POLITICAL LAW REVIEWER Chapter II. Aliens did not question the exercise of police power. Rafferty (1915): . assails the constitutionality of Ordinance No. 2000) BUT it is not precluded—and in fact is duty-bound—to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management. public safety: The Court identified police power as a dynamic agency. 7924) Police power and national security: “The disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business. 135962. they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. as well as the administration and implementation of all traffic enforcement operations. the enactment clearly falls within the scope of the police power of the State. 61 . good order. Police power.. Public Morals Ermita-Malate Motel and Motel Operators Assn. Act No. let alone legislative power. (1979): Agustin questions President Marcos’ Letter of Instruction No. 3. Act No. LAWFUL SUBJECT: Interest of the general public (as distinguished from a particular class required exercise). thru which and by which it protects its own personality and insures its security and future. 7924 does not grant the MMDA with police power. and is not unduly oppressive E. Public Safety Agustin vs. safety. without doubt. they claim. March 27. 229 compelling owners of motor vehicles to install specific early warning devices to reduce road accidents. Hernandez (1957): SC upheld the constitutionality of RA 1180 (An Act to Regulate the Retail Business) which sought to nationalize the retail trade business by prohibiting aliens in general from engaging directly or indirectly in the retail trade. He argued that the said LOI violated the police power of the state for being oppressive. vs. FUNDAMENTAL POWERS Churchill and Tait vs. a heavy burden lies in the hands of the petitioner who questions the state’s police power if was clearly intended to promote public safety. CONSTITUTIONAL LAW II Scope of the police power: Since the Courts cannot foresee the needs and demands of public interest and welfare. and that all its functions are administrative in nature. D. Agustin already installed warning devices in his car but they were not the same ones specified in the LOI. that there was a violation of the due process and equal protection clauses. 4760. however.

The Supreme Court justified the application of the strict scrutiny test to this particular ordinance despite its lack of political significance by saying that it is not gravitas alone which is sheltered by the Bill of Rights. it cannot be denied that sexual behavior between consenting adults is constitutionally protected. the ordinance also proscribes other legitimate activities most of which are grounded on the convenience of having a place to stay during the short intervals between travels. The ratio decidendi started with an outline of the test of a valid ordinance i. Sexual behavior is one of these fundamental acts covered by the penumbra of rights. 62 . and (2) invasion of the right to privacy and the guaranty against self-incrimination because it requires clients to fill up the prescribed form in a lobby open to public view at all times and in his presence. City of Manila (2009): The case of White Light vs. These prohibitions are anchored in the power of the LGU to implement ordinances hinged on the general welfare clause—the devolved aspect of police power. The National Economy U. While the reality of illicit activity is judicially recognized. It made no distinction between lodgings and placed every establishment as susceptible to illicit patronage. This case churned out three standards for judicial review: the STRICT SCRUTINY TEST for laws dealing with freedom of the mind and curtailment of political process and the RATIONAL BASIS STANDARD OF REVIEW for economic legislation. et al vs. It was meant to identify its case within a spectrum of cases decided by the Supreme Court which dealt with ordinances which has for its view the regulation of public morals. G. this is a case where the ordinance in question severely restricts the services of the abovementioned establishments. if such is deemed by the legislature to be detrimental to the public welfare. White Light Corporation. manager.POLITICAL LAW REVIEWER Chapter II. 1910) Police power. it must be within the corporate powers of the local government to enact and pass and it must conform with substantive requirements. A reading of the ordinance at bar would yield that it prohibits two practices: the wash rate admission and renting out a room more than twice per day. FUNDAMENTAL POWERS Police power. 4. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. It is called a “middle case” because unlike its predecessors where the issue is either a wholesale ban against hotels and motels or a reasonable regulatory device as the one found in Ermita-Malate vs. national economy The State can restrict or limit private use. unless accompanied by parents or a lawful guardian and making it unlawful for the owner.R. The Ordinance was struck down as an arbitrary intrusion to private rights. No. public morals: The mantle of protection associated with the due process guaranty does not cover petitioners. CONSTITUTIONAL LAW II The grounds adduced were: (1) unreasonable and violative of due process insofar as it would impose different fees for different classes of hotels/motels and prohibit 18 year-olds from being accepted in such hotels.S. L-5060 (January 26.e. Toribio. City of Manila. wherein personal information are mandated to be divulged. keeper or duly authorized representative of such establishments to lease any room or portion more than twice every 24 hours. Police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort. City of Manila was termed by Justice Tinga as a “middle case”. and welfare of society xxx There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. vs. Apart from the right to privacy. safety. It is precisely these reflexive exercises of fundamental acts which best reflect the degree of liberty enjoyed. Cf. A third standard was created known as the IMMEDIATE SCRUTINY for evaluating standards based on gender and legitimacy.

Art. No. under ordinary conditions. such carabaos being the work animal almost exclusively in use in the fields as well as for draft purposes. the State shall respect the right of small landowners.R. transfer to public ownership utilities and other private enterprises to be operated by the government. but limit a power which would otherwise be without limit. XIII. Private property shall not be take for public use without just compensation. No. undertake. FUNDAMENTAL POWERS The scarcity of these animals. In determining retention limits. III. in cooperation with the private sector. Sec. to own directly or collectively the lands they till or. The National assembly may authorize. so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership. vs. The provisions found in most of the state constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the state. by law. Art. subject to such priorities and reasonable retention limits as the Congress may prescribe. L15870 (December 3. developmental. 63 . the increase in their sale value. Camus. 9 The State shall. to receive a just share of the fruits thereof. and for the common good. (citations omitted) II. Eminent Domain Art. 1919): The power of eminent domain does not depend for its existence on a specific grant in the constitution. be a perfectly legitimate and proper exercise of rights of ownership and control of the private property of the citizen. “…it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally. The State may. establish and operate vital industries and. Camus. 9. as distinguished from those of a particular class. to protect the community from the loss of the services of such animals by their slaughter by improvident owners. the State shall encourage and undertake the just distribution of all agricultural lands. by law. in the interest of national welfare or defense. Sec. upon payment of just compensation. Who May Exercise Inherently:   Executive Legislative Visayan Refining Co. Definition It is the right of the government to take private property with just compensation. XIII. upon payment of just compensation. Art. The State shall further provide incentives for voluntary land-sharing. L15870 (December 3. To this end. Visayan Refining Co. even to the extent of prohibiting and penalizing what would. 4 The State shall. In the implementation of such program the State shall respect the rights of small property owners. G. the general public interest and the country’s material welfare is affected because of the contagious disease that threatened to kill all the carabaos in the country. taking into account ecological. XII. a continuing program of urban land reform and housing which will make available at affordable cost. 18. vs. justified Legislature to adopt reasonable measures for the preservation of these work animals. Art XIV.POLITICAL LAW REVIEWER Chapter II. the expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens. Sec. 13. undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless. Sec. decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. or equity considerations. G. Sec." and that the prohibition of the slaughter of carabaos for human consumption. B. and subject to the payment of just compensation. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. in the case of other farmworkers. A. The police power rests upon necessity and the right of self-protection and. 1919): CONSTITUTIONAL LAW II In this case.R. It shall also promote adequate employment opportunities to such citizens. and the prevalence of carabao thefts.

Payment of just compensation. For public use. Specifically (LGUs. No. Due Process. L-14355 (October 31. …"Once authority is given to exercise the power of eminent domain.R. c. L-6690. G. Local Government Code): a. G. L-60549. Valid and definite offer has been previously made to owner of the property sought to be expropriated but such offer was not accepted (Municipality of Parañaque vs. Manila Railroad Co. b. is a question which the courts have the right to inquire into. general authority to exercise the right of eminent domain cannot be questioned by the courts. as well as what the property’s value is Delegate cannot expropriate private property already devoted to public use 64 . Nos. Taking of Private Property b. d. When a stature or charter or by general law has conferred the right of eminent domain upon a private entity. 1912) Extent of Power Question of Necessity Political question Re: private property C.R. the right of the latter to proceed therein is clear. The executive authorities may then decide whether the power will be invoked and to what extent. 60553 to 60555 (October 26. it must comply with the conditions accompanying the authority. (Tenorio vs. the matter ceases to be wholly legislative. Reyes. The moment the municipal corporation or entity attempts to exercise the authority conferred. …where the Legislature has expressly conferred the authority to maintain expropriation proceedings upon the Chief Executive. FUNDAMENTAL POWERS …the performance of the administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the Sovereign or other Chief Executive. with Just Compensation. 1983): The particular mention in the Constitution of agrarian reform and the transfer of utilities and other private enterprises to public ownership merely underscores the magnitude of the CONSTITUTIONAL LAW II AS EXERCISED BY CONGRESS Pervasive and allencompassing AS EXERCISED BY DELEGATES Can only be as broad as the enabling law and the conferring authorities want it to be Justiciable question..POLITICAL LAW REVIEWER Chapter II. The power of the legislature to confer. Ordinance by a local legislature council is enacted authorizing local chief executive to exercise eminent domain. 1998) Heirs of Ardona vs. 19. Chinese Community of Manila. upon municipal corporations and other entities within the State. for Public Use. Requisites Generally a. March 29. No. but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances." (citations omitted) By Delegation: City of Manila vs.R. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. Sec. c. G. 1919) The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. and d. purpose or welfare or for the benefit of the poor and of the landless. RTC has to determine whether there is a genuine necessity for its exercise. VM Realty. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority.

Delegated tax legislation: Congress may delegate law-making III. Limitations General Limitations    Power to tax exists for the general welfare. 10. It is as broad as the purpose for which it is given. for the support of the government and for all public needs. otherwise. electric and telecommunications systems. There can be no doubt that expropriation for such traditions' purposes as the construction of roads. 6. Exception: rule does not prohibit classification for purposes of taxation. hydroelectric power plants. and flood control or irrigation systems is valid. However. Who May Exercise   legislature (primarily) local legislative bodies (Sec. FUNDAMENTAL POWERS problems sought to be remedied by these programs. provided the ff requisites are met: i. Private bus firms. levied by the State by virtue of its sovereignty. the Court will invalidate it. taxicab fleets.  President (o a limited extent. all things being equal to both present and future conditions iv. parks.POLITICAL LAW REVIEWER Chapter II. the State’s power to legislate for the public welfare might be seriously curtailed 65 CONSTITUTIONAL LAW II Specific Limitations  Uniformity of taxation: a. should be exercised only for a public purpose might be justified as for public purpose even if the immediate beneficiaries are private individuals Tax should not be confiscatory: If a tax measure is so unconscionable as to amount to confiscation of property. bridges. Rules: i. Here as elsewhere the Idea that "public use" is strictly limited to clear cases of "use by the public" has been discarded. Progressive system of taxation: The rate increases as the tax base increases. Equal protection clause: taxes should be uniform (persons or things belonging to the same class shall be taxed at the same rate) and equitable (taxes should be apportioned among the people according to their capacity to pay) ii. schools. ports. roadside restaurants. markets and slaughterhouses. with basis as social justice  Taxation as an instrument for a more equitable distribution of wealth iii. 28 (2) Art. hospitals. categorization is germane to achieve the legislative purpose iii. 1987 Consti) C. Purpose:  To raise revenue  Tool for regulation  Protection/power to keep alive B. when granted delegated tariff powers under Sec. the law applies. Taxation A. meaning it operates with the same force and effect in every place where the subject of it is found b. commercial firms. applies equally to members of the same class c. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. and other private businesses using public streets end highways do not diminish in the least bit the public character of expropriations for roads and streets. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners. Definition and Scope It is the enforced proportional contributions from persons and property. standards used are substantial and not arbitrary ii. 1987 Consti) . But invalidating a tax measure must be exercised with utmost caution. government office buildings. entertainment and service companies. the concept of public use is not limited to traditional purposes. They do not preclude nor limit the exercise of the power of eminent domain for such purposes like tourism and other development programs. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. 5 Art. and other private concerns. waterworks. General Rule: simply geographical uniformity.

May either be constitutional or statutory i. b. but will not be allowed if it violates equal protection clause. Religious property 66 . except when it was granted for valuable consideration c. but only applied to property taxes not excise taxes ii. sec. Constitutional exemptions (1987 CONST. VI. Tax Exemptions a. the imposition of a different tax is not an impairment of the obligation of contracts. 28 (4)) d.. If statutory. Tax exemptions are granted gratuitously and may be revoked at will. A corollary power but must be for a public purpose. General Rule: Power of taxation may not be used to violate the constitutional right of every person to be secured against any statute that impairs the obligation of contracts.  Impairment of Obligations of Contracts a.POLITICAL LAW REVIEWER Chapter II. art. FUNDAMENTAL POWERS authority when the constitution itself specifically authorizes it. VI. Double Taxation Occurs when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period for the same purpose  No provision in the Constitution specifically prohibiting double taxation. Educational institutions (both profit and non-profit): Benefits redound to students. Charitable institutions: Religious and charitable institutions give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped iii. sec. 28(3)) i. uniform and equitable and in conformity with the equal protection clause b. COMPARATIVE TABLE POLICE POWER None (The altruistic feeling that one has contributed to the public good [NACHURA]) Not appropriated for public use Use of Property EMINENT DOMAIN Just compensation (Full and fair equivalent of the property taken) required. TAXATION None (The protection given and public improvements instituted by the State because of these taxes [NACHURA]) Use taxing power as an implement for the attainment of a legitimate police objective—to regulate a business or trade Earn revenue for the government Compensation Appropriated for public use Objective What it Regulates To destroy noxious property or to restrain the noxious use of property Liberty and Property Property taken for public use. Exception: But if the statute exempts a party from any one class of taxes. it has to have been passed by majority of all the  D. it is not necessarily noxious Property rights only Property rights only CONSTITUTIONAL LAW II members of Congress (Art.

MINIMUM REQUIREMENTS B. SCOPE B. Noted Exceptions to Due Process I. Substantive Due Process City of Manila vs. liberty or property without due process of law. VIS-A-VIS POLICE POWER B. previous judicial hearing may be omitted without violation of due process in view of: 1) the nature of the property involved. bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. To this end. . In such instances. A. NOTED EXCEPTIONS TO DUE PROCESS II. DOCTRINES III. KINDS IV. Due Process B. III. to compel his return to the country he has fled. like a mad dog on the loose. 1. contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing. Sec. II. 67 CONSTITUTIONAL LAW II     I. PROCEDURAL DUE PROCESS A. asks whether the government has an adequate reason for taking away a person’s life. (2005) Substantive due process. No person shall be deprived of life. use.” (Ynot vs. In General Due process of law simply states that “[i]t is part of the sporting idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. and disposition of property and its increments. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity. In other words. reduce social. IN GENERAL A. XIII. VIS-A-VIS POWER TO TAX Art. as in the summary abatement of a nuisance per se. 1. Minimum Requirements Due process of law guarantees:  notice and  opportunity to be heard  to persons who would be affected by the order or act contemplated. IAC. Laguio. Art. VIS-A-VIS EMINENT DOMAIN C. IAC. 1987)  The conclusive presumption. 1987) It covers any governmental action which constitutes a deprivation of some person's life. or 2) the urgency of the need to protect the general welfare from a clear and present danger. the State shall regulate the acquisition. substantive due process looks to whether there is a sufficient justification for the government’s action. Pornographic materials. liberty. SUBSTANTIVE DUE PROCESS A. REQUISITES C. nor shall any person be denied the equal protection of the laws. DUE PROCESS AS LIMITATION ON FUNDAMENTAL STATE POWERS A. and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good.POLITICAL LAW REVIEWER Chapter III. Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. economic. or property. liberty. (Ynot vs. SCOPE B. ownership. Sec. or property. There are instances when the need for expeditious action will justify omission of these requisites. DUE PROCESS Chapter III.

The statute is repugnant to the constitution in 2 respects: a. Still on David vs. Such claims have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. 2.POLITICAL LAW REVIEWER Chapter III. It leaves law enforcers an unbridled discretion in carrying out its provisions. b. 68 . means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. A facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects. Claims of facial overbreadth are entertained in cases involving statutes which by their terms seek to regulate only spoken words. C. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. Tuvera (1986): Publication of laws is part of substantive due process. Petitioners did not show WON there’s an instance when PP1017 may be valid. Arroyo (2006) a. liberty or property satisfy substantive due process when there is: A plain reading of PP 1017 shows that it is not primarily directed to speech / speech-related conduct. and just.e. Tañada vs. Requisites (US vs. Also. not merely the procedures by which the law would be enforced. the interests of the public in general (as distinguished from those of a particular class) require the intervention of the State. especially the parties targeted by it." It is subject to the same principles governing overbreadth doctrine. DUE PROCESS A. Nazario (1988): VOID FOR VAGUENESS DOCTRINE: An accused is denied the right to be informed of the charge against him and to DUE PROCESS where the statute itself is couched in such INDEFINITE LANGUAGE that it’s not possible for men of ordinary intelligence to determine therefrom what acts/omissions are punished. Toribio. c. David vs. the challenger must establish that there can be no instance when the assailed law may be valid. it is also an analytical tool for testing "on their faces" statutes in free speech cases. The law itself. People vs. b. Overbreadth Doctrine: A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Lawful object i.e. It violates due process for failure to accord persons. it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. B. For one. Doctrines 1. Scope Substantive due process is an aspect of due process which serves as a restriction on the lawmaking and rule-making power of the government. A facial review of PP 1017 on the ground of vagueness is unwarranted. Petitioners did not even attempt to show that PP 1017 is vague in all its application. should be fair. and 2. Arroyo: Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. Void for Vagueness: An act is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. fair notice of what conduct to avoid. 1. reasonable. 1910)  Laws which interfere with life. but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. Like overbreadth. not on the basis of CONSTITUTIONAL LAW II its actual operation to petitioners. Lawful means i.

Kinds 1. Art. Decision rendered must have support. Judicial Due Process Civil Due Process Requisites (Banco Espanol vs. Right to a hearing to present own case and submit evidence in support thereof. 1987 Consti. or at least contained in the record and disclosed to the parties affected. render its decision in such a manner that the parties to the proceeding can know the various issues involved. Administrative due process Requisites of Procedural Due Process in Administrative Agencies (Ang Tibay vs. 1937) a) Accused is heard by competent jurisdiction. otherwise the Court will not acquire jurisdiction and its judgment will not bind the defendant. c) The defendant must be opportunity to be heard given an 2. DUE PROCESS III. 7. The tribunal should. Evidence which supports the finding or conclusion is substantial (such relevant evidence as a reasonable mind accept as adequate to support a conclusion). 4. and the reasons for the decision rendered.. 3. To be meaningful. 1918) a) An impartial court of tribunal clothed with judicial power to hear and determine the matter before it.. Tribunal must consider the evidence presented. a court of 69 CONSTITUTIONAL LAW II b) Accused is proceeded against under the orderly process of law. Banco EspañolFilipino vs. CIR. (Mejia vs. Palanca)  Note: Reyes vs. d) Judgment must be rendered upon lawful hearing and must clearly explain its factual and legal bases. . CA (1977): The allowance or denial of motions for extension rests principally on the sound discretion of the court to which it is addressed. 2. also known as the Ang Tibay Rules): 1. The right to appeal is part of due process of law. b) Jurisdiction must be lawfully acquired over the person of the defendant and over the property subject matter of the proceeding Note: NOTICE is an essential element of due process. c) Accused is given notice and opportunity to be heard. Criminal Due Process Requisites (People vs. (Sec. Poverty is recognized as a sufficient ground for extending existing period for filing. 8. 6. and not simply accept the views of a subordinate in arriving at a decision. Vera. must act on its or his own independent consideration of the law and facts of the controversy. It refers to the method or manner by which a law is enforced. d) Judgment rendered is within the authority of a constitutional law. The decision must be rendered on the evidence presented at the hearing. 1988) B. The tribunal or any of its judges. in all controversial questions. Pamaran. Scope Procedural due process is that aspect of due process which serves as a restriction on actions of judicial and quasi-judicial agencies of the government. Palanca. Procedural Due Process A. 14.POLITICAL LAW REVIEWER Chapter III. but such discretion must be exercised wisely and prudently. it must be both as to time and place. 5. with a view to substantial justice.

It has a presumption of validity. Nor does it deny equal protection to petitioners since the LOI operates equally and uniformly w/ class to w/c petitioners belong. Taking B. it still mandates some form of proceeding wherein notice and reasonable opportunity to be heard are given to the owner to protect his property rights. Manotok vs. it is an appropriate response to a problem. Subjects of Judicial Review in Eminent Domain: a. Petitioners.POLITICAL LAW REVIEWER Chapter III. Article IV of the Philippine Constitution. the requirement does not need judicial process. NHA (1987): HEARING: What the due process clause requires is that the landowner must be given reasonable opportunity to be heard and to present his claim or defense. Although due process does not always necessarily demand that a proceeding be had before a court of law. Court held that it cannot be held void on its face. Although there are exceptional situations when in the exercise of the power of eminent domain. The courts have the power and authority to determine just compensation. Due Process As Limitation Fundamental State Powers A.” Here. Adequacy of compensation. private property to be taken cannot be chosen arbitrarily and capriciously. Vis-à-vis Eminent Domain De Knecht vs. The Court held that a municipal corp cannot prohibit the operation of nightclubs.” EPZA vs. They filed a prohibition suit to stop the Municipality of Bacaue from enforcing an ordinance prohibiting the operation of said nightclubs. While another act amended it to include the power to prohibit its operation. The government is not required to adhere to a policy of “all or none. as the landowner is entitled to CONSTITUTIONAL LAW II due process. when it is alleged that the landowner’s right to due process of law has been violated in the taking of his property. Guerrero (1987): SCOPE OF JUDICIAL REVIEW IN EXPROPRIATION PROCEEDINGS: In this case the Court held that “socialized housing” falls under the scope of public use. Bautista vs. owners of an 8 cylinder 1969 Buick and a 6 cylinder Willy’s Kaiser Jeep questioned the validity of LOI on grounds of it being discriminatory and a denial of due process. Vis-à-vis Police Power Cruz vs. DUE PROCESS IV. The Department of Public Highways originally established the extension in Cuneta Avenue. Paras (1983): On Petitioners are operators of nightclubs in Bulacan. independent of what the decrees state. and thus may appoint commissioners to help in determining just compensation. the Republic of the Philippines can take private property upon payment of just compensation. Juinio (1984): LOI No. consular corps vehicles. RA 938 granted municipalities the power to regulate establishments. 70 . c. such a construction of the amendatory act would be to construe it in a way that it violates the constitutional provision that “every bill shall embrace only 1 subject which shall be expressed in the title thereof. and is therefore a valid basis for expropriation. The change from Cuneta Avenue to Fernando Rein-Del Pan Streets cannot be justified on the ground of social impact. truck. Validity of taking b. 1. as the properties to be affected along Cuneta Avenue are mostly motels. “Public use” character of the purpose of taking. and it is assumed that they made extensive studies regarding it. LOI is an energy conservation measure. 869 banned the use of vehicles with A and EH plates on weekends and holidays in view of the energy crisis. the courts can probe and check on the alleged violation. the title of the amended RA remained the same so that the power granted is still regulation not prohibition. Dulay (1987): DETERMINATION OF JUST COMPENSATION IS JUDICIAL FUNCTION: The Presidential Decrees merely serve as a guide or a factor for the courts in determining amount of just compensation (which should be the fair and full value of the property at time of taking). Sumulong vs. Some exceptions are service. They may only regulate such. Bautista (1980): CHOICE OF PROPERTY TO BE EXPROPRIATED IS SUBJECT TO JUDICIAL REVIEW AS TO REASONABLENESS: Under Section 2. However.

Vis-à-vis Power to Tax  The inherent limitation on the power of taxation is public purpose. Reyes. Proerty must be devoted to public use or otherwise informally appropriated or injuriously affected e. Just Compensation Definition Province of Tayabas vs.  It may include trespass without actual eviction of owner. Taxes are exacted only for a public purpose. lest the tax collector kill the ‘hen that lays the golden eggs. Public Use Definition The idea that "public use" means "use by the public" has been discarded. (Heirs of Moreno vs. “taking” under social justice clause Agrarian Reform (Art. (Roxas y Cia vs. Castelvi. whatever may be beneficially employed for the general welfare satisfies the requirement of public use. and uniformly. CIR. or preventions of ordinary uses for which the property was intended. At present. 123 SCRA 220) That only a few benefit from the expropriation does not diminish its public-use character. Entry must be under warrant or color of legal authority d. They cannot be used for purely private purposes or for the exclusive benefit of private persons The reason for this is simple. Entry must be for more than a momentary period c. The expropriator must enter a private property b. this power must be used justly and not treacherously. [THESE ARE] essential elements of due process because they constitute the notice and opportunity to present one’s side. 2008) BASIS: Fair Market Value CONSTITUTIONAL LAW II Definition  A physical dispossession of the owner of his actual property. 23 SCRA 276)    Premature issuance of final assessment notice and demand letter is tantamount to denial of reply to the preliminary assessment notice. 4) This provision is an exercise of the police power of the State through eminent domain (Association of Small Landowners vs. 1974) Q: What happens if the expropriator does not use the property for a public purpose but sells it to a private user? A: Property reverts back to the owner in fee simple. CTA. “Taking” via eminent domain vs. inasmuch as pubic use now includes the broader notion of indirect public benefit or advantage (Filstream International vs. Secretary of Agrarian Reform) as it is a means to regulate private property. (Heirs of Juancho Ardona vs. Mactan-Cebu International Airport. Health Care Providers vs. Sec. CA. C. 284 SCRA 716) 3. such as the material impairment of value of property. Perez (1938): It is the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. XIII. 2005) 2. (Phil. DUE PROCESS Requisites for a valid taking: a.’ in order to maintain the general public’s trust and confidence in the Government. or its use. Price fixed by a buyer (desirous but not compelled to buy) and a seller (willing but not compelled to sell). 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 vs. equally. Must include consequential damages (damages to other interest of the owner attribute to the expropriation) and deduct consequential benefits (increase of value of other interests attribute to new use of the former property) 71 . It must be exercised fairly. Taxation should be exercised with caution to minimize the injury to the proprietary rights of a taxpayer.POLITICAL LAW REVIEWER Chapter III. The power to tax exists for the general welfare. hence. implicit in its power is the limitation that it should be used only for a public purpose.

The rights and interests of the state in these things are not simply political but also proprietary in nature. The political rights of aliens do not enjoy the same protection as that of citizens. 3. Statutes may validly limit to citizens exclusively the enjoyment of rights or privileges connected with the public domain. (Smith. such that if a new sugar central is established in Ormoc. OFFICE OF THE OMBUDSMAN F. Ruiz. 1971) II. Aliens General rule: The general rule is that a legislative act may not validly classify the citizens of the State on the basis of their origin. It must apply equally to all members of the same class. Examples of Valid Classification Lacson vs. In times of great and imminent danger. 4. DEFINITION AND SCOPE OF PROTECTION II. Requisites of Valid Classification People vs. QUALIFICATION FOR ELECTIVE OFFICE E. REQUISITES OF VALID CLASSIFICATION III. such a classification is permitted by the Constitution when the facts so warrant (e. it would not be subject to the ordinance. THREE STANDARDS OF JUDICIAL REVIEW A. EQUAL PROTECTION of the LAWS Chapter IV. vs. b. and it enjoys the equal protection of the law. such as a threatened invasion or war. so as to give undue favor to some and unjustly discriminate against others.)  A corporation as an artificial person is protected under the Bill of Rights against denial of due process. Diokno. 1919)  A corporation is also protected against unreasonable searches and seizures. and is protected against . BROADCAST MEDIA IV. 2. LAND-BASED VS. EXAMPLES OF VALID CLASSIFICATION A. in other words. SEA-BASED FILIPINO OVERSEAS WORKERS D. 1967)  It can only be proceeded against by due process of law. Laguio (2005) citing Ichong vs. III. vs.  A. It must not be limited to existing conditions only. Exceptions: 1. Definition and Scope of Protection Definition City of Manila vs.POLITICAL LAW REVIEWER Chapter IV. c. d. Executive Secretary (1999): All classifications made by law are generally presumed to be valid unless shown otherwise by petitioner.  Scope  Natural and juridical Persons (the equal protection clause extends to artificial persons but only insofar as their property is concerned. discriminatory legislation against Japanese citizens during WWII). PRINT VS. Ormoc Sugar Co. It must rest on substantial distinctions. or the natural resources of the State. ALIEN B. Natividad. Equal Protection of the Laws I. Similar subjects. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. Hernandez (1957):  Equal protection requires that all persons or things similarly situated should be treated alike. Cayat (1939): a.g. It must be germane to the purpose of the law.. the public works. both as to rights conferred and responsibilities imposed. should not be treated differently. RATIONAL BASIS TEST B. 72 CONSTITUTIONAL LAW II I. Bell & Co. (See Stonehill vs. STRICT SCRUTINY TEST C. vs Treasurer of Ormoc City: An ordinance was declared void because it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company and none other. and so the citizens may lawfully be given preference over 'aliens in their use or enjoyment. INTENSIFIED MEANS TEST unlawful discrimination. (Bache & Co. FILIPINO FEMALE DOMESTICS WORKING ABROAD C. race or parentage.

Immediate scrutiny was adopted by the U. was later adopted by the U. Chapter IV.S. “Rational Basis Test” The classification should bear a reasonable relation to government's purpose. The balancing test or the equality test is used. at the commencement of the term of office to which he seeks to be elected is valid. because there exists real and actual. Applicable to certain sensitive but not suspect classes. danger to life and limb. Office of the Ombudsman Allowing it to start an investigation based on an anonymous letter does not violate EP clause. by gauging the extent to which constitutionally guaranteed rights depend upon the affected individual interest. delay or dismiss investigations against them (Almonte vs. and accessibility to social. F. Land-based vs. certain important but not fundamental interest. it has in the United States since been applied in all substantive due process cases as well. Hernandez (1957): The Court upheld the Retail Trade Nationalization Law despite the objection that it violated the EP clause. EQUAL PROTECTION of the LAWS  Also important when the government attaches a morally irrelevant and negative significance to a difference between the advantaged and the disadvantaged. Filipino Female Domestics Working Abroad They are a class by themselves because of the special risks to which their class was exposed. POEA) D. Vasquez). Supreme Court in Craig.S. “Strict Scrutiny Test” This test is triggered when a fundamental constitutional right is limited by a law. can quash. Print vs. (Conference of Maritime Manning Agencies vs. (Dumlao vs. Sea-based Overseas Workers Filipino There is dissimilarity as to work environment. (Phil Association of Service Exporters vs. Supreme Court for evaluating classifications based on gender and legitimacy.) 73 CONSTITUTIONAL LAW II B. This requires the government to show an overriding or compelling government interest so great that it justifies the limitation of fundamental constitutional rights (the courts make the decision of WON the purpose of the law makes the classification necessary). through official pressure and influence. City of Manila (2009): A third standard. safety. Comelec) C. denominated as heightened or immediate scrutiny. Broadcast Media There are substantial distinctions between the two to warrant their different treatment under BP 881 (Telecommunications and Broadcast Attorneys of the Phil vs. civil and spiritual activities. positive and fundamental differences between an alien and a national. Drilon) C.o. COMELEC) IV. Standards of Judicial Review A. Qualification for Elective Office Disqualification from running in the same elective office from which he retired of a retired elective provincial/municipal official who has received payment of retirement benefits and who shall have been 65 y. B. While the test may have first been articulated in equal protection analysis. Applied also when the classification has a "suspect" basis (Suspect Classes – classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. E. Notes:  Important when there is no plausible difference between the disadvantaged class and those not disadvantaged. Immediate Scrutiny Test White Light Corporation vs. The Office of the Ombudsman is different from other investigatory and prosecutory agencies of government because those subject to its jurisdiction are public officials who. “Intensified Means Test” In this situation the Court accepts the articulated purpose of the legislation but it should closely scrutinize the relationship between the classification and the purpose based on a spectrum of standards. .POLITICAL LAW REVIEWER Ichong vs.

NATURE AND SCOPE OF THE RIGHT IN ART. III. Diokno) It may be waived expressly or impliedly only by the person whose right is invaded. SEC.POLITICAL LAW REVIEWER Chapter V. papers. III. 2 II. EXCLUSIONARY RULES A. Ruiz. VIS-À-VIS VIOLATION OF THE RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION C. SEARCH AND SEIZURE A. and particularly describing the place to be searched and the persons or things to be CONSTITUTIONAL LAW II THIS SECTION DEALS WITH THE RIGHTS OF A PERSON BEFORE AND DURING CUSTODIAL INVESTIGATIONS I. Damaso. Nature Personal It may be invoked only by the person entitled to it. 2. II. SEC. BEFORE HE HAS BEEN ACCUSED OF A CRIME 74 . 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. Marti) I. RIGHTS UNDER CUSTODIAL INVESTIGATION B. 1971) The opening of their account books is not protected. DETENTION/CUSTODIAL INVESTIGATION A. REQUISITES FOR ISSUANCE OF VALID ARREST WARRANT B. 1992) Directed Against the Government and Its Agencies (State Action Requirement) The right cannot be set up against acts committed by private individuals (People vs. Deportation Board. REQUIREMENTS for FAIR PROCEDURE Chapter V. the judge is not required to personally examine the complainant and his witnesses. (People vs. WHEN ARREST MAY BE MADE WITHOUT A WARRANT III. WHEN SEARCH MAY BE MADE WITHOUT WARRANT C. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Inc vs. PROTOCOL AFTER CONDUCT OF INVESTIGATION VI. Requisites for Issuance of a Valid Arrest Warrant Beltran vs.E. Nature and Scope ART. Makasiar (1988): What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.RIGHT TO BAIL Scope Natural Persons It protects all persons including aliens (Qua Chee Gan vs. Following established doctrine and procedure. VIS-À-VIS VIOLATION OF THE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES B. 12 VII. VIS-À-VIS VIOLATION OF THE RIGHT AGAINST SELF-INCRIMINATION VIII. The right of the people to be secure in their persons. ARREST A. Artificial Persons Artificial persons are protected to a limited extent. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. he shall: 1) Personally evaluate the report and the I. not by one who is not duly authorized to effect such waiver. (Stonehill vs. PROPERTIES SUBJECT OF SEIZURE IV. Procedure Requirements for Fair seized. REQUISITES OF A VALID SEARCH WARRANT B. SEC. III. (Bache & Co. houses. by virtue of police and taxing powers of the State. OTHER RIGHTS GUARANTEED UNDER ART. TESTS OF WAIVER OF MIRANDA RIGHTS V. ARREST A. 1963).

CONSTITUTIONAL LAW II supporting documents submitted by the fiscal regarding the existence of probable cause and. People vs. Requisites of a Valid Warrantless Arrest (Rule 113. Pangandaman vs. B. without warrant. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Unlawful arrest. (Webb vs. Hindoy (2001): BUY-BUST: A buy-bust operation is a valid in flagrante arrest. The subsequent search of the person arrested and the premises within his immediate control is valid as an incident to a lawful arrest. arrested the suspect at his house where dried marijuana leaves were found and seized. People vs. none of whom the witnesses could identify. Dir of Prisons: Though kidnapping w/ serious illegal detention is deemed a continuing crime. 75 . De Lara (1994): HOT PURSUIT: The arrest of the accused inside his house following hot pursuit of the person who committed the offense in flagrante was held valid. Sec. ii. the person to be arrested has committed. Therefore a rebel may be arrested w/o a warrant at any time of the day or the night as he is deemed to be in the act of committing rebellion. on the basis thereof. REQUIREMENTS for FAIR PROCEDURE Umil vs. were considered as “general warrants” and thus void. Personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and. with some descriptio persona that will enable the officer to identify the accused. People vs. When. issue the arrest warrant. o If not known. i. Rules on Criminal Procedure) 1. Casar (1988): JOHN DOE WARRANT: Warrants issued against 50 John Does. 2002). The arrest warrant must describe particularly the person to be seized. On the basis of their personal knowledge of the facts they are testifying to. then a “John Doe warrant” may be issued. OR If he finds no probable cause. It was only in the evening that he. As to warrant of arrest: i.POLITICAL LAW REVIEWER Chapter V. 5. issue a warrant of arrest. De Leon. o By stating the name of the person to be arrested. 1995) Determination of probable cause personally by the judge. Rodrigueza: EXCEPTION TO BUY-BUST. Parulan vs.  He may disregard the fiscal's report and  Require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. is actually committing. Existence of probable cause Such facts and circumstances which would lead a reasonably discreet and prudent mean to believe that an offense has been committed by the person sought to be arrested. 2. or is attempting to commit an offense. ii. Judge Areola. Instead of arresting the suspect after the sale in a buy-bust op. it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another. on the basis thereof. in his presence. the officer returned to the police headquarters and filed his report. Ramos: Rebellion is a continuing offense. he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause (Cruz vs. or 2) If he finds no probable cause.

Sec. It is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. On the other hand. Sec. Finally. People vs Gerente: PERSONAL KNOWLEDGE: The police saw the victim dead at the hospital and when they inspected the crime scene. threatening him with the use of firearm against his life and family. 3 of the Constitution safeguards against wanton and unreasonable invasion of the privacy and . Here the warrantless arrest only 3 hrs after the killing was held valid since personal knowledge was established as to the fact of death and facts indicating that Gerente killed the victim. In the instant case. ii. but his wife pointed to a place below their house where a gun was buried in the ground.POLITICAL LAW REVIEWER Chapter V. Burgos allegedly pointed to a stock pile of cogon where he had hidden subversive documents. the Court finds no compelling reason for the haste of the arresting officers to arrest Burgos if indeed he committed a crime. He was in fact plowing his field at the time of his arrest. REQUIREMENTS for FAIR PROCEDURE Requisites: i. IV. Person making the arrest has probable cause to believe based on PERSONAL KNOWLEDGE. Sec.  Neither was he committing any act which could be described as subversive. The offense must be committed in his presence or within his view. The information that a crime was probably committed was supplied by Masamlok who did not even give his testimony under oath. The next day the authorities went to arrest Burgos without a warrant. After the firearm was recovered. 6. and effects. the instant case does not fall under any of the exceptions in Rule 113. Burgos (1986) Burgos was convicted for the crime of Illegal Possession of Firearms in Furtherance of Subversion. Sec. (NACHURA) People vs Kimura: Warrantless arrest of accused for selling MJ 2 days after he escaped is invalid. However. Neither has Burgos committed any offense in their presence as he was merely plowing his field at the time of arrest. warrant of arrest must be secured. 6 (b) of Rule 113 requires that a crime must in fact or actually have been committed first.  At the time of the arrest. arrest and commission of crime. it requires that the officer arresting a person who has committed. Rule 113. liberty of a citizen as to his person. or is about to commit an offense must have personal knowledge of that fact. In the instant case:  The knowledge as to the offense was furnished by Masamlok. Exceptions to warrant of arrest: Art. The eyewitnesses reported the happening and pointed to Gerente as one of the killers. First. If there was an appreciable lapse of time bet. papers. They found him in his residence plowing his field. is committing. People vs. 76 CONSTITUTIONAL LAW II Note: There must be a large measure of immediacy between the time the offense is committed and the time of the arrest. The prosecution presented an extrajudicial confession made by Burgos. Offense had JUST been committed. There is no showing that there was real apprehension that Burgos was on the verge of flight or escape and that his whereabouts are unknown. One Masamlok claimed that he had been forcibly recruited by Burgos to the NPA. it was not even established that indeed a crime has been committed. Burgos denied the accusation. they found the instruments of death. It is clear that the arresting officers had no personal knowledge of the commission of the offense because such information was only supplied to them by an informant. Masamlok was also allegedly threatened to attend an NPA seminar. 6 of the Rules of Court provides the exceptions to the warrant requirement.  The location of the firearm was given by the Burgos’ wife. That a crime has actually been committed is an essential precondition. However. Burgos claimed that he had been mauled and hit repeatedly until he would admit and sign an extrajudicial confession. Burgos was not in actual possession of any firearm or subversive document.

3. 1999) DESCRIPTION OF PERSONS SEARCHED: SW valid despite the mistake in the name of the persons to be searched. ROC)  Mere affidavits of the complainant and his witnesses are thus not sufficient. 5. not merely routinary or pro-forma. PLACE TO BE SEARCHED: The search warrant issued to search petitioner’s compound for unlicensed firearms was held invalid for failing to describe the place with particularity. 6. SCOPE OF WAIVER: Waiver is limited to the illegal arrest. Peralta. or has escaped while being transferred from one confinement to another. if the claimed probable cause is to be established. CONSTITUTIONAL LAW II 3. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. The authorities conducted surveillance and test-buy ops before obtaining the SW and subsequently 2. How it is done: In the form of searching questions and answers. (Burgos vs. On the basis of their personal knowledge of the facts they are testifying to. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending. in writing and under oath (Rule 126. which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. Judge Makalintal.  The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Sec. (PICOP vs. 1 airstrip etc spread out over 155 hectares. considering that the compound was made up of 200 bldgs. People vs. or the subsequent seizure of evidence allegedly found during the search (People vs. SEARCH AND SEIZURE A. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause. 1984)  III. 1984) cause 4. Its nature will vary according to whether the identity of the property is a matter of concern. Asuncion. Chief of Staff. The warrant must describe particularly the place to be searched and the persons or things to be seized. Determination of probable personally by the judge. (Roan vs.  It is axiomatic that the examination must be probing and exhaustive. DESCRIPTION OF PLACE: The description of the property to be seized need not be technically accurate nor precise. (Kho vs. to hold liable for perjury the person giving it if it will be found later that his declarations are false  77 . Gonzales.POLITICAL LAW REVIEWER Chapter V. The description is required to be specific only in so far as the circumstances will allow. 2004). REQUIREMENTS for FAIR PROCEDURE ADDITIONAL EXCEPTION (NOT IN THE RULES): When the right is voluntarily waived (estoppel). It does not extend to the search made as an incident thereto. Salvatierra: Appellant is estopped from questioning the illegality of the arrest when he voluntarily submitted himself to the jurisdiction of the court by entering a plea of not guilty and by participating in the trial. Requisites of a Valid Search Warrant 1. 1999). 84 staff houses. 15 plants. Existence of probable cause     Such facts and circumstances. After personal examination under oath or affirmation of the complainant and the witnesses he may produce.

CA. People vs. The Court ruled that the John Doe search warrant was valid and held that there is nothing to prevent issue and service of warrant against a party whose name is unknown. Rule 126. Gesmundo: Failure to comply with Sec. as an incident of an arrest. the officers had the right to arrest the persons engaged in prohibited game. 12. Benny Go (2003): UNLAWFUL SEARCH: Police officers arrived at appellant’s residence and “side-swiped (sinagi) appellant’s car (which was parked outside) to gain entry into the house. when Valid General rule: Areas within the reach and control of the accused are the permissible areas of search for both stop-and-frisk and search-incident-to-a-valid-arrest (Espano vs. Conduct of “Areal Target Zoning” and “saturation drive” 9. Search of Moving Vehicles 3. Searches without Warrant. Visual Search at Checkpoints 8. who is the only one present in the house. Salanguit: FORCIBLE ENTRY JUSTIFIED: Occupants of the house refused to open the door despite the fact that the searching party knocked several times. (Nolasco vs. 2. "the extent and reasonableness of the . of a person who had been arrested. BIR. and (2) where probable cause has not been properly established. or w/c may furnish the person w/ means of committing violence or escaping. Appellant’s son. although they did not specifically know the names of the accused.  The provision (R126. People vs.A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense. 2000) Conduct of the Search (Sec. opened the door and was immediately handcuffed to a chair after being informed that they are policemen with a warrant to search the premises. Customs search 7. 7. Veloso (1925): It was alleged that Parliamentary Club was a gambling house. Rules of Court. the place or premises where the arrest was made can also be search without a search warrant. REQUIREMENTS for FAIR PROCEDURE implementing it. S12) is declaratory in the sense that it is confined to the search. (Uy vs. without a search warrant. 1. search warrant was obtained. 7 Rule 126 invalidates the search. Cubcubin. Sec.POLITICAL LAW REVIEWER Chapter V. Other specific situations: Quick Look: 1. An officer making an arrest may take from the person arrested any money / property found upon his person. Valid Express Waiver 6. Search incident to lawful arrest. Exigent and Emergency Circumstances 78 CONSTITUTIONAL LAW II People vs. Veloso read the warrant and said that he was not “John Doe”. 2003) GENERAL WARRANT: One that (1) does not describe with particularity the things subject of the search and seizure. Rule 126. ROC)  In the presence of a lawful occupant thereof or any member of his family. . without a search warrant. or was the fruit of the crime. It is a void warrant. (People vs. but not otherwise. Plain View Doctrine 4. In this latter case. Paño. They had personal knowledge of the identity of the persons and the place to be searched. 2001). Search is an Incident to a Lawful Arrest. w/c was used in commission of crime. B. OR  If occupant or members of the family are absent: In the presence of 2 witnesses of o sufficient age o discretion o residing in the same locality  Force may be used in entering a dwelling if justified by Rule 126 ROC. 1985) EXCEPTION TO GENERAL WARRANTS: General descriptions will not invalidate the entire warrant if other items have been particularly described. Besides. People vs. Stop and Frisk Searches 5. or w/c may be used as evidence on trial. Tiu Won Chua.  It is also a general rule that. People vs. and the agents saw suspicious movements of the people inside the house. Search is an incident to a lawful arrest.

Kagui Malasugui (1936): It was ruled that the right to be secure from unreasonable search may be waived. e. The SolGen offered no objection to declaration that the search was illegal and to the return of the seized items. Waiver does not extend to search made as an incident thereto. Search of Moving Vehicles Securing SW is not practicable since the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought (Papa vs. or to any subsequent seizure of evidence found in the search. he is precluded from later complaining. (Malacat vs. The Motion for Partial Reconsideration is granted. CA 1997. When one voluntarily submits to a search or consents to have it made of his person / premises. Peralta. the premises where the arrest was made can also be searched w/o search warrant. M. United States. Said person had an actual interest to relinquish the right. the Court also ruled that the search in question did not need a search warrant. Ohio) 5. What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals. Must appear that right exists. 2004): a. 1987: In this Motion for Partial Reconsideration of the 1985 decision. Also. as held in Weeks v. they cannot be considered unreasonable. 2. Noticed without further search 79 . much less unlawful.. assert that the search warrant in this case is void because (1) it doesn’t sufficiently describe things subject of the search & seizure and (2) probable cause hasn’t been established for lack of searching questions propounded to applicant’s witness. Evidence:  inadvertently discovered  by police who had the right to be where they were. Waiver may be express or implied. Evidence must be immediately apparent and d. Person involved had actual/ constructive knowledge of the existence of such right. a person charged w/ an offense may be searched for dangerous weapons or anything w/c may be used as proof of the commission of the offense.R. REQUIREMENTS for FAIR PROCEDURE  Test for validity:  Item to be searched was within the arrester’s custody. when the search of the person detained or arrested and seizure of effects found in his possession are incidental to an arrest made in conformity w/ the law. b. Prior valid intrusion into a place. Plain View Doctrine: Things seized are within plain view of a searching party Requisites (People vs. Sarap. the petitioners submit that a warrantless search can be justified only if it’s an incident to a lawful arrest and that since Aguilar wasn’t lawfully arrested. Nolasco vs. As an incident of an arrest. 1985) 3. allegedly connected w/ the CPP-NPA and accused of rebellion and subversion. Pano. 2003): a. citing Terry vs. Under the Rules of Court. Stop and Frisk Searches There should be a genuine reason to “stopand-frisk in the light of the police officer’s experience and surrounding conditions to warrant a belief that the person detained has weapons concealed. the appellant neither made objection nor even muttered a bit of protest when the search was conducted on his person. Paño. c.  Search was contemporaneous with the arrest Nolasco vs Cruz Paño (1985): Aguilar-Roque and Nolasco. Waiver is limited only to the arrest. People vs. 4. Mago 1968) CONSTITUTIONAL LAW II search must be decided on its own facts and circumstances. b. d. People vs. Valid Express Waiver made Voluntarily and Intelligently Requisites (People vs. (Nolasco vs. Court ruled that the search warrant is void. However.POLITICAL LAW REVIEWER Chapter V. In this case. a search w/o warrant couldn’t be made. Musa. c.

3. solitary. In case of doubt on the existence of probable cause. 4. Sec. the seizure of the latter was held unlawful. People vs. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce. Salanguit: Where the warrant authorized only the seizure of shabu. force. Detention/Custodial Investigation A. ROC) R126. 1990) 9. REQUIREMENTS for FAIR PROCEDURE 6. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices. 1968) 7. 12. Mago. it is sufficient that the property is within his control or possession. the judge may order the prosecutor to present additional evidence (THIS IS NOT FOUND IN THE PROCEDURE FOR A SEARCH WARRANT) within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. 1987 CONSTITUTION 1. or other similar forms of detention are prohibited. Comparison of Procedures in Obtaining Search Warrants and Arrest Warrants R112. Chief of Staff: It is not necessary that the property to be searched or seized should be owned by the person against whom the person is issued. threat. intimidation. or any other means which vitiate the free will shall be used against him. de Villa) 8. incommunicado. 2. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 2 Rule 126. III. Sec. If the person cannot afford the services of counsel. 6. the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. Requisites for issuing search warrant. or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. (Papa vs. SEC. Burgos vs. These rights cannot be waived except in writing and in the presence of counsel. he must be provided with one. Properties Subject to Seizure General rule: Only the articles particularly described in the warrant may be seized. Customs Search Searches of vessel and aircraft for violation of immigration and smuggling laws. 4. violence. Conduct of “areal target zoning” and “saturation drive” in the exercise of the military powers of the President (Guanzon vs. Exigent and Emergency Circumstances (People vs. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Secret detention places. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. o o o Property subject of an offense Stolen or embezzled property and other proceeds or fruits of an offense Used or intended to be used as a means of committing an offense (Sec. and their families. – Within ten (10) days from the filing of the complaint or information. No torture.POLITICAL LAW REVIEWER Chapter V. and not marijuana. Visual Search at Checkpoints (Valmonte vs. If he finds probable cause. de Villa. he CONSTITUTIONAL LAW II shall issue a warrant of arrest. When warrant of arrest may issue. 80 . Rights under Custodial Investigation ART. and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. de Gracia 1994) Example: 1989 Coup d’etat C. – (a) By the Regional Trial Court. IV.

12 of the 1987 Constitution) People vs.  who shall at all times be allowed to confer privately with the person arrested. he must be provided with a competent and independent counsel by the investigating officer. That any statement he does make may be used as evidence against him. or anyone acting under his order or his place. DETAINING AND INVESTIGATING OFFICERS. He has a right to remain silent. 81 . much less afforded the NOTE: These rights were further reiterated under RA 7438. who arrests. waiver of the right to counsel must be done in the presence of counsel. (enshrined in Art. Section 1. When Rights are Available:  When the custody person is already in CONSTITUTIONAL LAW II In Miranda vs.  of his rights to remain silent and  to have competent and independent counsel.” service of counsel notwithstanding his insistence.” Accused repudiated his alleged oral confession during trial. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. As used in this Act.It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights Section 2. In this case. AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF RA 7438. Statement of Policy. in a language known to and understood by him.” He was given the unacceptable excuse that there were no available lawyers. – (b) Any public officer or employee. Sec. the accused is from Samar and there is no showing that he understands Tagalog. People vs. Duero (1985): “Inasmuch as the prosecution in this case failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights. preferably of his own choice. without prejudice to the liability of the "inviting" officer for any violation of law. detains or investigates any person for the commission of an offense:  shall inform the latter. Since. People vs. REQUIREMENTS for FAIR PROCEDURE MIRANDA RIGHTS The person under custodial investigation must be warned that— 1. Galit (1985): The long question during the appraisal of Galit’s constitutional rights followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights. the procured statements will be inadmissible. III. detained or under custodial investigation. Arizona: The Federal Supreme Court made it clear that what is prohibited is the "incommunicado interrogation of individuals in a police dominated atmosphere. otherwise. otherwise known as AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED. That he has a right to the presence of an attorney. resulting in selfincriminating statements without full warnings of constitutional rights. Rights of Persons under Custodial Investigation. Detained or Under Custodial Investigation. Duties of Public Officers. DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING. Furthermore. the SC found that the procedure set out in the Miranda case was not followed. either retained or appointed. and 3.POLITICAL LAW REVIEWER Chapter V. Rights of Persons Arrested. his confession is inadmissible in evidence. . oral confession of accused to police station commander is inadmisible in evidence. Andag (1980): The SC reversed the lower court’s imposition of death penalty because “the accused was not even informed at the start of the investigation of his right to counsel.  If such person cannot afford the services of his own counsel. 2. 1. "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.

Art. the same can easily be taken not as a strictly voluntary invitation but as an authoritative command which one can only defy at his peril. Sec. Right to Remain Silent  The warning is needed simply to make the person under custodial investigation aware of the existence of the right. the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. necessitating presence of counsel for the accused. (1994): The rights under sec. Otherwise. a. or “police line-up” (suspect is identified by witness from a group of persons gathered for that purpose). since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment. the identification will be inadmissible in evidence. 12  The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. 3 are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect. HOWEVER. shall be considered as a waiver…and this Committee will be constrained to proceed in accordance with law.POLITICAL LAW REVIEWER Chapter V. During custodial investigations.Sec. REQUIREMENTS for FAIR PROCEDURE   Custodial investigation involves any questioning initiated by law enforcement During “critical pre-trial stages” in the criminal process Babst vs. Under certain circumstances. 218 (1967): Neither the lineup itself nor anything required therein violated respondent's Fifth Amendment privilege against self-incrimination. RA 7438 provides that custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed. Right against Self-Incrimination under Art. Wade 388 U. such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere. .S.  Further. b. 2. these types of identification have been recognized as “critical confrontations of the accused by the prosecution. however. Escordial: An out-of-court identification may be made in a “show up” (accused is brought face to face with the witness for identification). Mara. and contemplates effective communication which results in the subject/accused understanding what is conveyed. Here. 12. an invitation to attend a hearing and answer some questions which the person invited may heed or refuse is not unconstitutional. Agustin." 82 CONSTITUTIONAL LAW II People vs. People vs. U.  This warning is the threshold requirement for an intelligent decision as to its exercise. as when the suspect has been taken into police custody and the police carries out a process of interrogation that lends itself to eliciting incriminating statements. especially where the invitation carries the ominous seaming that "failure to appear . (1995): This carries the correlative obligation on the part of the investigator to explain. such an invitation can easily assume a different appearance. Discussion of Rights Accorded People vs. . . III. 2. Note: INVITATIONS . vs.  More importantly.S. NBI (1984): Ordinarily. where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp.

Detained or Under Custodial Investigation. the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time. B. hence. Illinois of the United States Federal Supreme Court. Duties of Public Officers. In order fully to apprise a person interrogated of the extent of his rights under this system then. An individual need not make a preinterrogation request for a lawyer. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made AFTER the warnings have been given. 83 CONSTITUTIONAL LAW II    d. What cannot be waived is THE RIGHT TO BE GIVEN THE MIRANDA WARNINGS.  The Miranda doctrine was modified to qualify the right to counsel to mean competent and independent counsel preferably of the suspect's own choice. 2. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs. Rights of Persons Arrested. Rights of Persons under Custodial Investigation. Rights to Visitation and Conference Sec. he should then and there be assisted by counsel. o The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. – (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with  any member of his immediate family. but the waiver shall be made in writing and in the presence of counsel. the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.  c. he was not yet entitled to counsel. uncle or aunt. but also of the consequences of forgoing it. grandparent or grandchild.  priest or religious minister chosen by him.   POLICE LINE-UPS (Gamboa vs. it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo vs. unless he waives the right. Section 2. 1988):  When petitioner was identified by the complainant at the police line-up. or  any medical doctor. What Cannot be Waived   The right to remain silent and the right to counsel may be waived. it is necessary to warn him not only that he has the right to consult with an attorney. and guardian or ward. nephew or niece. his failure to ask for a lawyer does not constitute a waiver. Detained or Under Custodial Investigation.  .POLITICAL LAW REVIEWER Chapter V. or  by his counsel. given the clear constitutional intent in the 1987 Constitution. from said suspect. Tests of Waiver of Miranda Rights 1. parent or child. Duties of Public Officers. However.  Thus. The police line-up is not a part of the custodial inquest. While such request affirmatively secures his right to have one. fiance or fiancee. Rights of Persons Arrested. Cruz. Right to Counsel RA 7438. he had not been held yet to answer for a criminal offense. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. or  by any national non-governmental organization duly accredited by the Commission on Human Rights or  by any international nongovernmental organization duly accredited by the Office of the President. 1964). but also that if he is indigent a lawyer will be appointed to represent him. REQUIREMENTS for FAIR PROCEDURE  This warning is needed in order to make him aware not only of the privilege to remain silent.  The person's "immediate family" shall include his or her spouse. brother or sister.

3.  upon a valid waiver. Consequently. Burden of Proving Voluntariness of Waiver (People vs. incommunicado. otherwise the waiver shall be null and void and of no effect. Duties of Public Officers. force. Rights of Persons Arrested. Sec. or thumb-marked (if the person arrested or A. Rights of Persons under Custodial Investigation. Other Rights Guaranteed Under Art. 3. Jara. violence. solitary. 12 A. detained does not know how to read and write).POLITICAL LAW REVIEWER Chapter V. . the municipal judge. (d) Any extrajudicial confession made by a person arrested. – (c) The custodial investigation report shall be:  Reduced to writing by the investigating officer. threat intimidation or any other means which vitiate the free will shall be used against him B. Protocol After Investigation Conduct Of Sec. Detained or Under Custodial Investigation. otherwise. Duties of Public Officers. district school supervisor. 3(2). Detained or Under Custodial Investigation. Section 2. III. Section 2.  V. 12: (1) Must be in writing (2) Made in the presence of counsel RA 7438. or under custodial investigation. the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused:  Willingly and voluntarily submitted his confession and  Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. detained or under custodial investigation:  shall be in writing and signed by such person in the presence of his counsel or in the latter's absence. 2. Vis-à-vis Violation of the Right Against Unreasonable Searches and Seizures Sec. Detained or Under Custodial Investigation. SEC. 84 CONSTITUTIONAL LAW II VI. Duties of Public Officers. 1986)  Whenever a protection given by the Constitution is waived by the person entitled to that protection. 1987 CONSTI. such extrajudicial confession shall be inadmissible as evidence in any proceeding. the presumption is always against the waiver.  The reading and explanation SHOULD BE DONE BEFORE such report is signed. or priest or minister of the gospel as chosen by him. Exclusionary Rules RA 7438. III. shall be in writing and signed by such person in the presence of his counsel. Rights of Persons Arrested. the municipal mayor. Secret detention places. Rule on Waiver ART. REQUIREMENTS for FAIR PROCEDURE 2. VII. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. – (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code.  It shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person. EFFECT OF FAILURE TO FOLLOW PROTOCOL: Such investigation report shall be null and void and of no effect whatsoever. Rights of Persons under Custodial Investigation. elder brothers and sisters. or other similar forms of detention are prohibited C. Art. Confessions or admissions obtained in violation of these rights are inadmissible evidence. No torture. his spouse. Rights of Persons Arrested. and  in the presence of any of the parents.

detained or under custodial such investigating investigation for the commission of an officer or in his place offense if the latter cannot afford the services of his own counsel who obstructs. own choice o The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense. 1967) Nardone vs. 17: No person shall be compelled to be a witness against himself. 2 Art. and a fine of four from visiting and conferring privately thousand pesos (P4.000.00) or a penalty of or any investigating investigation of his right to remain imprisonment of not less than silent and to have competent and officer eight (8) years but not more than independent counsel preferably of his ten (10) years. o a fine of Six thousand pesos or under custodial officer or employee. SEC. Public officer or fails to provide a competent and Same as above employee.POLITICAL LAW REVIEWER Chapter V. PERSON LIABLE FOR WHAT ACTS PENALTY Any arresting public fails to inform any person arrested. REQUIREMENTS for FAIR PROCEDURE Evidence obtained in violation of Sec.000. any secondary or derivative evidence is also inadmissible. 12(3)] 85 CONSTITUTIONAL LAW II B. 3 shall be inadmissible for any purpose and in any proceeding (Stonehill vs. or from examining and treating him. SEC. C. in urgent cases. Diokno. prevents or prohibits penalty of imprisonment of not less Any person any lawyer. Vis-à-vis Violation of the Right Against Self-incrimination ART. Vis-à-vis Violation of the Rights of Persons under Custodial Investigation ART. or anyone independent counsel to a person acting upon orders of arrested.00) with him. detained (P6. or both. III. 12(3): Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. [in relation to SEC. US: Once the primary source is shown to have been unlawfully obtained. III. of the night . or from ministering to his spiritual needs. any member of the than four (4) years nor more than immediate family of a person arrested six (6) years. RA 7438 | Rights of Persons under Custodial Investigation Section 4. at any hour of the day or. Penalty Clause.

In other words. given that the officers and members of the military are not similarly situated with others. All persons. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. Matter of Discretion Matter of right Bail is a matter of right in all cases not punishable by reclusion perpetua. 86 . III. 1. Therefore. Sec. Comendador vs. unless his guilt be proved beyond reasonable doubt. the order granting or refusing bail must contain a summary of the evidence for the prosecution followed by the conclusion on whether or not the evidence of guilt is strong (Note: it is not the existence of guilt itself which is concluded but the strength of the probability that guilt exists). Excessive bail shall not be required. bail is allowed. ROC) Bail is the security given for the release of a person in custody of the law. be bailable by sufficient sureties. 2001) It has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1. according to People vs. shall. the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. National security considerations should impress upon the Court that release on bail of respondents constitutes a damaging precedent. Enrile vs. Right to Bail Definition (Rule 114. They are allowed a fiduciary use of firearms and can easily continue their insurgent activities against the government. there must be a showing that the persons arrested or to be arrested has committed. In such a case. Enage (1971) Before conviction. Matter of Discretion In case the evidence of guilt is strong. xxx This requirement was not complied with particularly in the arrest of Senator Enrile. (1966). is actually committing or is attempting to commit the offense of rebellion. to justify a warrantless arrest under Section 5(a). 13. except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. every person is bailable except if charged with capital offenses when the evidence of guilt is strong. REQUIREMENTS for FAIR PROCEDURE VIII. be an overt act constitutive of rebellion taking place in the presence of the arresting officer. Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. San Diego. before conviction. 2001 are members of an outlawed organization intending to overthrow the government. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal. Also discretionary in extradition proceedings. there must “Since the evidence in this case is hearsay. Thus. Dela Camara vs. Sec. 2001 in the petition for habeas corpus filed by Senator Enrile. the evidence of guilt is not strong. because extradition courts do not render judgments of conviction or acquittal so it CONSTITUTIONAL LAW II Art. or be released on recognizance as may be provided by law. the court's discretion to grant bail must be exercised in the light of a summary of the evidence presented by the prosecution. conditioned upon his appearance before any court as may be required. In the Court's Resolution of May 5. Perez (En Banc Resolution. Consequently.POLITICAL LAW REVIEWER Chapter V.” 1. the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. De Villa (1991) The military men who participated in the failed coup d’ etat should be denied release on bail. furnished by him or a bondsman. Bail as a Matter of Right vs. his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense.

1945) Lavides vs CA. Section 5. Nature and circumstance of the offense. Age and health of the accused. guidelines. The Court considered the order of the TC releasing petitioner on bail as a lawful order contemplated by the above-quoted constitutional provision. Also. Judge Puruganan and Mark Jimenez. and (10) if th e accused is under bond for appearance at trial in other cases. / "Discretion…is with the court called upon to rule on the question of bail. (9) whether the accused wasa fugitive from justice when arrested." 4. (4) character and reputation of the accused. 2000: Arraigment of the accused is not essential to the approval of the bail bond. so long as one is under arrest. (h) Forfeiture of other bail. we will not hesitate to exercise our supervisory powers to provide the required remedy. Weight of the evidence against the accused. Penalty for the offense charged. however.00. 9. Excessive bail shall not be required. guidelines in the fixing of bail are: (1) ability of the accused to give bail. When bail is authorized. (2) nature of the offense. Enage (1971): CONSTITUTIONAL LAW II does not matter WON the crimes the accused is being extradited for is punishable by reclusion perpetua (US Government vs.” Where the lower court fixed bail at P 1. the following factors: (a) (b) (c) (d) (e) (f) (g) Financial liability of the accused to give bail. and (j) Pendency of other cases where the accused is on bail. public safety or public health. but not limited to. Sec. Probability of the accused appearing at the trial. REQUIREMENTS for FAIR PROCEDURE 2. Character and reputation of the accused. The Court held that the “constitutional right to travel being invoked by petitioner is not an absolute right. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily. Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court. No charge need be filed formally before one can file for bail. Otherwise the accused may be precluded from filing a motion to quash. it rendered the right to bail nugatory. or when necessary in the interest of national security. When Available:  From the very moment of arrest (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgment (which means after appeal). Right to Bail and Right to Travel Abroad Manotok vs CA (1986): The main issue in this case is WON a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. (6) character and strength of the evidence. (3) penalty for the offense charged. that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail. 2002) The constitution prohibits “excessive bail. (7) probability of the accused appearing in trial. (5) health of the accused.  STANDARDS FOR FIXING BAIL: Citing Villaseñor vs. (8) forfeiture of other bonds. We must stress. it should be granted before arraignment. (Heras Teehankee vs. 3. Dela Camara v. 87 .POLITICAL LAW REVIEWER Chapter V. the court will be assured of the presence of the accused at the arraignment precisely by grating bail and ordering his presence at any stage of the proceeding. Standards for Fixing Bail RULE 114. Amount of bail. 200. Rovica. Abano. (i) The fact that the accused was a fugitive from justice when arrested. 195.

and shall enjoy the right to be heard by himself and counsel. unless his presence is specifically ordered by the court for purposes of identification. (e) To be exempt from being compelled to be a witness against himself. unavailable. that he has been duly notified and his failure to appear is unjustifiable. (c) To be present and defend in person and by counsel at every stage of the proceedings. or otherwise unable to testify. SEC. involving the same parties and subject matter. TRIAL IN ABSENTIA H. RIGHTS POST TRIAL A. Rights During Trial ART. (h) To have speedy. RIGHT TO BE INFORMED OF NATURE AND CAUSE OF ACCUSATION D. However. RIGHT AGAINST DOUBLE JEOPARDY B. 88 CONSTITUTIONAL LAW II II. out of or cannot with due diligence be found in the Philippines. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. the adverse party having the opportunity to cross-examine him. RIGHTS of the ACCUSED Chapter VI. RIGHT TO BE HEARD PERSONALLY OR BY COUNSEL C. RULE 115. DEGRADING AND INHUMAN PUNISHMENT C. impartial and public trial. 1987 CONSTITUTION. – In all criminal prosecutions. (1) No person shall be held to answer for a criminal offense without due process of law. judicial or administrative. Rights of the Accused I. (2) In all criminal prosecutions. Either party may utilize as part of its evidence the testimony of a witness who is deceased. from arraignment to promulgation of the judgment. EXCESSIVE FINES AND CRUEL. to be informed of the nature and cause of the accusation against him. Rights of accused at trial. given in another case or proceeding. and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. RIGHT AGAINST SELFINCRIMINATION ROC. RIGHT OF CONFRONTATION F. RIGHT TO COMPULSORY PROCESSES G. and public trial. impartial. (f) To confront and cross-examine the witnesses against him at the trial. IMPRISONMENT FOR DEBT E. he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. III. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. waive his presence at the trial pursuant to the stipulations set forth in his bail. the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. The accused may. however. to meet the witnesses face to face. (i) To appeal in all cases allowed and in the manner prescribed by law. PRESUMPTION OF INNOCENCE B. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. 14. EX POST FACTO LAWS AND BILLS OF ATTAINDER I.POLITICAL LAW REVIEWER Chapter VI. INVOLUNTARY SERVITUDE D. RIGHTS DURING TRIAL A. after arraignment. RIGHTS OF ACCUSED Section 1. to have a speedy. the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. . the accused shall be presumed innocent until the contrary is proved. His silence shall not in any manner prejudice him. Upon motion. trial may proceed notwithstanding the absence of the accused: Provided. IMPARTIAL AND PUBLIC TRIAL E. When an accused under custody escapes. RIGHT TO SPEEDY.

If he does. at all times. Alejandro vs. RA 7438. xxx Sec. But where it is not the sole basis for conviction. Acevedo vs. –(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. People: Procedural due process requires that the accused must be informed why he is being prosecuted and what charge he must meet. 2. If the person cannot afford the services of counsel. the Court may appoint any person resident of the province and of good repute for probity and ability. the presumption of regularity of performance of official functions may prevail over the constitutional presumption of innocence. 1. Acuram: The presumption of regularity (in official duties) cannot by itself prevail over the presumption of innocence of the accused. SEC. III. the Court must give him one. People: EQUIPOISE RULE: Where the evidence adduced by the parties are evenly balanced. People vs. he must be provided with one. if the accused wishes to procure private counsel. Rights of Persons under Custodial Investigation. III.POLITICAL LAW REVIEWER Chapter VI. Right to be Heard Personally or by Counsel ART. even during Martial Law. Elements of the Right to Counsel: 1. – No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2). 1987 CONSTITUTION. Military Commission (1987): B. It must ask him if he desires the services of counsel. 3. 10. Corpus vs. 16. ART. Rights of Persons Arrested. 4. SEC. Where no lawyer is available. Duties of Public Officers. Court’s duty to inform the accused of right to counsel before being arraigned. Presumption of Innocence People vs. even if the accused pleads guilty. Sarmiento (1970): Dismissal based on the denial of the right to speedy trial amounts to an acquittal. . Pepito (1980): The accused cannot present evidence before the prosecution does so. quasi-judicial. Right to be Informed of Nature and Cause of Accusation Vera vs. All persons shall have the right to a speedy disposition of their cases before all judicial. Right to Speedy. Olaguer vs. III. RIGHTS of the ACCUSED A. Dramavo (1971): The requirement of proof beyond reasonable doubt is a necessary corollary of the constitutional right to be presumed innocent. These rights cannot be waived except in writing and in the presence of counsel. It violates the presumption of innocence. the constitutional presumption of innocence should tilt the balance in favor of the accused. 3. 89 CONSTITUTIONAL LAW II C. SEC. or administrative bodies. 12. Article III. 2. and is unable to get one. Civilian authority is. the Court must give him time to obtain one. SEC. D. of the 1987 Constitution. supreme over the military. IMPARTIAL TRIAL A civilian cannot be tried by a military court so long as the civil courts are open and operating. Impartial and Public Trial ART. Detained or Under Custodial Investigation. Law on speedy trial not a bar to provision on speedy trial in the Constitution. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.

case was set for hearing but the accused escaped. 1. Military Commission (1975)  Petitioner challenges the jurisdiction of military commissions to try him (for murder. the accused can be compelled to allow or perform the act. The Court held that because accused was not arraigned. Right to Secure Attendance of Witness 2. should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony. 1973 Constitution (trial of a capital offense may proceed even in the absence of the accused) and the absence of any law specifically requiring his presence at all stages of his trial. Such right to cross examine and present evidence on his behalf is waived by failure to appear during the trial of which he had notice. no logical reason why petitioner. The entire trial period shall not exceed 180 days. he cannot waive when he is to be identified. and the result can be used in evidence against him.  F. 90 . An issue has been raised as to WON petitioner could waive his right to be present during trial. He was tried in absentia. No person shall be compelled to be a witness against himself. although he is charged with a capital offense. Right to Compulsory Processes 1. Sec 19. since this right was conferred upon him for his protection and benefit. Trial in Absentia: As a general rule. and not to a merely physical activity. subject to certain exceptions. Right to Production of Other Evidence On a 7-5 voting: SEVEN justices voted that petitioner may waive his right to be present at ALL stages of the proceedings while FIVE voted that this waiver is qualified.POLITICAL LAW REVIEWER Chapter VI. illegal possession of firearms and for violation of the Anti-Subversion Act) arguing that he being a civilian. Considering Art IV. Art. 17. during which accused pleaded not guilty. RIGHTS of the ACCUSED E. Right Against Self-Incrimination Sec. Trial in Absentia Borja vs. G. Therefore. for identification 3) Promulgation of Sentence (Exception: Light offense -> can be via counsel) H. When Presence of the Accused is a DUTY 1) Arraignment and Plea 2) During Trial. Petitioner was found guilty. Aquino vs.  CONSTITUTIONAL LAW II Note: RA 8493 provides: a 30-day arraignment within the filing of the information or from the date the accused appeared before the court. any constitutional or statutory right may be waived if such waiver is not against public policy. except as otherwise authorized by the SC Chief Justice. Mendoza (1977): WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused failed to appear for trial despite postponement and notice to his bondsmen. there appears. Lower court held the proceedings against him in abeyance to give him the opportunity to cross examine witnesses against him and present his evidence. Gimenez vs. The indispensable requisite for trial in absentia is that it should come after arraignment. trial shall commence 30 days from the arraignment. such trial during martial law deprives him of his right to due process. Scope   Compulsory testimonial self-incrimination It refers therefore to the use of the mental process and the communicative faculties. as fixed by the court. The Court then allowed prosecution to present evidence despite the fact that accused had not been arraigned. The Court held that abeyance of proceedings was invalid. 3. Nazareno (1988) After arraignment. The issue is WON the court has jurisdiction. If the act is physical or mechanical. he was not informed of the nature and cause of accusation against him. the Court has no jurisdiction. Right of Confrontation This is the basis of the right to crossexamination.

Court of competent jurisdiction. Order to give a footprint sample to see if it matches the ones found in the scene of the crime is allowed (People vs. Tan Teh. 4. b. Use Immunity v. Sara). 1987 CONSTITUTION. Board of Medical Examiners. police). Obsania. SEC. 7. III. No person shall be twice put in jeopardy of punishment for the same offense. 1968) a. 1985) II. A doctor who was being investigated by a medical board for alleged malpractice who would lose his license if found guilty. On the other hand “transactional immunity” grants immunity to witness from prosecution for an offense to which his compelled testimony relates. 21. 18. a. XIII. A Complaint/Information sufficient in form and substance to sustain a conviction. The Commission on Human Rights shall have the following powers and functions: xxx (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority. Ong Sio Hong. 1937). 1968) 3. or be ordered to expel the morphine from his mouth (U. (Pascual vs. Salas and People vs. OUSTED OF JURISDICTION: When the privilege is violated by the Court itself. vs. (Chavez vs. vs. Elements of Double Jeopardy (Rule 117. for they may eventually lead to a criminal prosecution. as already noted. Otadura. that is. Transactional Immunity a.S. the court is ousted of its jurisdiction. Summers. 96 Phil 244. Castillo. CA. SEC. 5. Kinds of Proceeding Applicable General rule: The privilege is available in any proceedings.S. Pamaran (1985): “Use immunity” prohibits use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. Rights Post Trial A. Accused may be made to take off her garments and shoes and be photographed (People vs. c. 17 in relation to SEC. It extends to a fact-finding investigation by an ad hoc body. 1969) b. even outside the court. could not be compelled to take the witness stand without his consent. RIGHTS of the ACCUSED 2. SEC. conviction or acquittal under either shall constitute a bar to another prosecution for the same act. b. Sec. Examples a. 91 .POLITICAL LAW REVIEWER Chapter VI. If an act is punished by a law and an ordinance. Effect of Denial of Privilege EXCLUSIONARY RULE under ART. Handwriting in connection with a prosecution for falsification is NOT allowed. 1920) e. by the judge. for this involves the use of the mental processes (Beltran vs. all its proceedings and even judgment are null and void. 53 Phil 570. for this also involves the mental process. Samson. compelled to show her body for physical investigation to see if she is pregnant by an adulterous relation (Villaflor vs. is not admissible. 1912). Transactional Immunity CONSTITUTIONAL LAW II ART. Use and Fruit of Immunity Galman vs.g. People vs. Right against Double Jeopardy ART. Bermudez vs. 12: When the privilege against self-incrimination is violated outside of court (e. A person can be compelled to testify provided he is given immunity co-extensive with the privilege against self-incrimination (Galman vs. It extends to administrative proceedings which possess a criminal or penal aspect. 1950). then the testimony. 1917) b. Re-enactment of the crime by the accused is NOT allowed. d. The accused can be required to allow a sample of a substance taken from his body (U. Pamaran. 1. III.

 When the case is dismissed other than on the merits. b. 19. When Subsequent Prosecution is Barred 6. 5. the deplorable sub-human conditions of the National Penitentiary where the crime was committed. or dismissal of the case without the express consent. and all other laws. Termination of Jeopardy A. Same offense Attempt of the same offense Frustration of the same offense Offense necessarily included in the 1st offense (All the elements of the 2nd constitute some of the elements of the 1st offense) e. 8177. 7659. By acquittal b. 4. The imposition of the penalty of death is hereby prohibited. 1. acquittal. c. The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party. Dismissal because of denial of right to speedy trial. d. d. By final conviction c. nor cruel. Excessive Fines and Cruel. or through counsel. 1. Neither shall death penalty be imposed. RA 9346 (June 24. No.—A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. 2006): An Act Prohibiting the Imposition of Death Penalty in the Philippines: Sec. of the accused. Accordingly. Conviction. such . b. When Defense of Double Jeopardy is NOT Available RULE 117. Dismissal based on insufficiency of evidence. Offense that necessarily includes the 1st offense (All the elements of the 1st constitute some of the elements of the 2nd offense) a. R. RIGHTS of the ACCUSED c.A. Exceptions a. degrading or inhuman punishment inflicted. 92 a. III.A. The employment of physical. 2. R. upon motion of the accused personally. b. the Congress hereafter provides for it. executive orders and decrees. Arraignment and plea by the accused. Degrading and Inhuman Punishment ART. for compelling reasons involving heinous crimes. Any death penalty already imposed shall be reduced to reclusion perpetua. By “dismissal” on the merits CONSTITUTIONAL LAW II 2. Accused is discharged to be a state witness. otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. otherwise known as the Death Penalty Law. who is therefore deemed to have waived the right to plea double jeopardy. par 1. No. Excessive fines shall not be imposed.POLITICAL LAW REVIEWER Chapter VI. dela Cruz (1953): 3. 1987 CONSTITUTION. Sec. SEC. Provisional dismissal. When Defense of Double Jeopardy is Available a. The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information. dismissal is regarded as “with express consent of the accused”. People vs. in lowering the penalty to reclusion perpetua of the accused most of whom were already death row convicts. or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. By dismissal without express consent of accused d. unless. psychological. c. insofar as they impose the death penalty are hereby repealed or amended accordingly. c. The graver offense developed due to "supervening facts" arising from the same act or omission constituting the former charged. 8. In this case the Court took into account.

1987 CONSTITUTION.POLITICAL LAW REVIEWER Chapter VI. was contended to be a bill of attainder. Imprisonment for Debt ART. III. . III. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Involuntary Servitude ART. SEC. Although the law mentions the CPP in particular. No person shall be imprisoned for debt or nonpayment of a poll tax. Ferrer (1972): RA 1700 which declared the Communist Party of the Philippines a clear and present danger to Philippine security. Ex Post Facto Laws and Bills Of Attainder ART. People vs. 20. 93 CONSTITUTIONAL LAW II C. D. 22. 18 (2). No ex post facto law or bill of attainder shall be enacted. RIGHTS of the ACCUSED B. 1987 CONSTITUTION. and thus prohibited membership in such organization. 1987 CONSTITUTION. its purpose is not to define a crime but only to lay a basis or to justify the legislative determination that membership in such organization is a crime because of the clear and present danger to national security. SEC. SEC. III.

HABEAS CORPUS II. VII. they were prevented from exercising the liberty of going when and where they pleased. nor supplant the functioning of the civil courts or legislative assemblies. WRIT OF AMPARO III. if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted. which revocation shall not be set aside by the President. convene in accordance with its rules without need of a call. HABEAS DATA I. 1987 CONSTITUTION. Writs  I. when the public safety requires it. 2) in an appropriate proceeding. 18. Any restraint which will preclude freedom of action is sufficient. shall. Lansang vs. nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. nor automatically suspend the privilege of the writ. who deposited them in a distant region." "We believe the true principle should be that. if the invasion or rebellion shall persist and public safety requires it. in the same manner. Placed in Davao without either money or personal belongings.  The President shall be the Commander-inChief of all armed forces of the Philippines and whenever it becomes necessary. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary. WRITS Chapter VII. who handed them over to other parties. invasion or rebellion. A state of martial law does not suspend the operation of the Constitution. the President shall submit a report in person or in writing to the Congress. upon the authority of Proclamation 889 (Which suspended the privilege of the Writ of CONSTITUTIONAL LAW II thereof.  The Congress. Habeas Corpus  ART. he should be compelled to do so. extend such proclamation or suspension for a period to be determined by the Congress. Garcia (1971): Petitioners were arrested without warrants and detained. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right.  Upon the initiative of the President. he may call out such armed forces to prevent or suppress lawless violence. he may. and 5) must promulgate its decision thereon within thirty days from its filing. for a period not exceeding sixty days. III.  The Congress. ART.  Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. Lukban (1919): "A prime specification of an application for a writ of habeas corpus is restraint of liberty. 1987 CONSTITUTION. and to relieve a person therefrom if such restraint is illegal. if not in session. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. within twenty-four hours following such proclamation or suspension. 4) the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension Villavicencio vs. deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. 3) filed by any citizen. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. 94 . SEC. 15. voting jointly. SEC. The forcible taking of these women from Manila by officials of that city. by a vote of at least a majority of all its Members in regular or special session.  In case of invasion or rebellion.POLITICAL LAW REVIEWER Chapter VII. suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. the Congress may. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. may revoke such proclamation or suspension.  The Supreme Court may: 1) review.

In Cruz vs. insofar as the remedy of habeas corpus is concerned. the petition is valid as petitioner’s temporary release from detention is accompanied with restrictions w/ the ff effects: 1) curtailed freedom of movement by the condition that he must get approval of respondents for any travel outside Metro Manila. For the suspension of the privilege of the writ to be valid. His common-law wife filed a petition for habeas corpus. CA (1990): Sombong claims that she is the mother of the child Christina. WRITS Habeas Corpus) and subsequently filed a petition for writ of habeas corpus. but. In this case. Gumabon vs. VII of the Constitution. the Court acknowledged the existence of a sizeable group of men (Communists and the NPA) who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. is habeas corpus the appropriate remedy?” YES. section 10 of Art. There was no warrant. (a) there must be "invasion. because the evidence adduced does not warrant the conclusion that Christina is the same person as her child Arabella. In order to justify the grant of the writ of habeas corpus. 3) abridged freedom of speech due to prohibition from taking any interviews inimical to national security. The President did not act arbitrarily. and 4) petitioner is required to report regularly to respondents or their reps. the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Thus. as amended. However. the Court has the authority to inquire into the existence of the factual bases for the proclamation in order to determine its constitutional sufficiency. but arbitrariness. assailing the validity of the said Proclamation and their detention. and the Supreme Court agreed. The Supreme Court denied the petition. The test for such judicial inquiry is whether or not the Executive acted arbitrarily in issuing the Proclamation. Director of Prisons (1910). also. and filed a petition for the issuance of the writ of habeas corpus. 889. CA (1995): Larkins was arrested after a certain Alinea filed a complaint-affidavit for rape against him before the NBI." xxx “While the above decision speaks of a trial judge losing jurisdiction over the case. Enrile (1986): It is not physical restraint alone which can be inquired into by means of the writ of habeas corpus. 95 CONSTITUTIONAL LAW II . Director of Prisons (1971): It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed. The rule is that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid. "imminent danger thereof". The test is not correctness. The Supreme Court held that the authority to suspend the privilege of the writ is circumscribed. such sentence is void as to the excess.POLITICAL LAW REVIEWER Chapter VII. insurrection or rebellion" or. not only by the prescribed setting or the conditions essential to its existence. "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose. The said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the child is in the custody of a third person of her own free will. Sombong does not have the right of custody over the child. that both conditions are present.” Sombong vs. The Court upheld the violation of the Proclamation and dismissed the petitions. pursuant to paragraph (2). Moncupa vs. 2) abridged liberty of abode because prior approval of respondent is required in case petitioner wants to change place of residence. The President declared in Proclamation No. who is under the custody of Neri. as regards the time when and the place where it may be exercised. habeas corpus may still be resorted to even if the restraint is voluntary in cases where the rightful custody of any person is withheld from the person entitled thereto. Velasco vs. A complaint for rape was subsequently filed before the RTC. and (b) public safety must require the aforementioned suspension. Petitioners clearly have thus successfully sustained the burden of justifying their release. confined and restricted.

II. The court must thus look into the legality of his detention as of. or of a private individual or entity. or of a private individual or entity of The writ covers extralegal killings and enforced disappearances or threats thereof. No. by reason of some supervening events. the restraint of liberty is already by virtue of the complaint or information and.       HABEAS DATA Remedy Available to any person Whose right to life. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted an offense in the Philippines.POLITICAL LAW REVIEWER Chapter VII. 96 . which was approved by the Supreme Court on 22 January 2008. CONSTITUTIONAL LAW II Another is the filing of a complaint or information for the offense for which the accused is detained. which was approved by the Supreme Court on 25 September 2007. liberty. home and correspondence of the aggrieved party.M. liberty. 08-1-16-SC). Among such supervening events are:  The issuance of a judicial process preventing the discharge of the detained person. VIII. This Rule also governs existing cases involving extralegal killings and enforced disappearances or threats thereof. Sec. and security has been violated or is threatened with violation By an unlawful act or omission of a public official or employee. therefore. 5[5]). Art. No. increase or modify substantive rights. When does the Rule take The Rule takes effect on 24 October The Rule takes effect on 2 February effect? 2007. 5[5]). circulation. and security has been violated or is threatened with violation By an unlawful act or omission of a public official or employee. 07-9-12SC ). such as the instances mentioned in Section 4 of Rule 102. it may. What is the Supreme The Rule was drafted pursuant to (Constitution. family. supervening events may bar his release or discharge from custody. be no longer illegal at the time of the filing of the application. By then. Who may file a petition  the aggrieved party or by any  The aggrieved party. WRITS  The Supreme Court held that even if the arrest of a person is illegal. The Rule on the Writ of Habeas Data (A. in cases of extralegal of amparo? following order: killings and enforced Engaged in the gathering. Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. Court’s basis in issuing the Supreme Court’s constitutional the Rule? power to promulgate rules for the protection and enforcement of constitutional rights (Constitution. Writ of Amparo and Writ of Habeas Data QUERY What is the writ amparo?       WRIT OF AMPARO Remedy Available to any person Whose right to life. the filing of the application for a writ of habeas corpus." It may also be said that by filing his motion for bail. What rule governs petitions for and the issuance of a writ of amparo? It is governed by The Rule on the Writ of Amparo (A. at the earliest. the writ of habeas corpus is no longer available. following its publication in 2008. following its publication in three three (3) newspapers of general (3) newspapers of general circulation. for even if the detention is at its inception illegal. Sec. VIII. for the issuance of a writ qualified person or entity in the  However. Art. That Rule shall not diminish.M. collecting or storing of data or information regarding the person.

the petition may be filed by o Any member of the immediate family of the aggrieved party. children and parents of the aggrieved party. act or omission was committed or any of its elements occurred. or before the Sandiganbayan or the Court of Appeals or any of their justices.  Any ascendant. at the option of the petitioner. The Supreme Court. or to any Regional Trial Court to any Regional Trial Court of the place where the threat. or any justice  The writ shall be enforceable anywhere in the Philippines. WRITS QUERY Where can the petition be filed? WRIT OF AMPARO Any member of the immediate family. Court of Appeals. act or omission was committed or any of its elements occurred. The petition may be filed on any day and at any time with:  The Regional Trial Court of the place where the threat. or o Any ascendant. CONSTITUTIONAL LAW II HABEAS DATA disappearances. justice or judge shall docket the Regional Trial Court  where the petitioner or respondent resides. organization. association or institution. descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. in default of those mentioned in the preceding paragraph. or  Any concerned citizen. in default of those mentioned in the preceding paragraph. or with the Sandiganbayan. if there is no known member of the immediate family or relative of the aggrieved party. The court. namely: the spouse. How much is the docket or filing fees for the petition? No docket and other lawful fees shall be required from an indigent petitioner.  The writ shall be enforceable anywhere in the Philippines. Sandiganbayan: when the action concerns public data files of government offices. or to any Regional Trial Court of the place where the threat. 97 . or any justice of such courts.  or that which has jurisdiction over the place where the data or information is gathered. descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity.  It may be returnable before such court or any justice thereof. collected or stored.POLITICAL LAW REVIEWER Chapter VII. There is NO docket and other lawful fees for the petition. act or omission was committed or any of its elements occurred. the Court of Appeals.  the writ shall be returnable before such court or judge. namely: the spouse.  it may be returnable before such Court or any justice thereof. children and parents. Supreme Court.

The government also failed to provide them protection because the military themselves perpetrated the abduction. WRITS QUERY WRIT OF AMPARO petition and act upon it immediately. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws. 98 CONSTITUTIONAL LAW II What is the required burden of proof? The parties shall establish their claims by substantial evidence. rules and regulations was observed in the performance of duty. rules and regulations was observed in the performance of duty. or when the data or information cannot be divulged to the public due to its nature or privileged character Can the respondent invoke the legal presumption (Rules of Court. ROC. Such disclosure is relevant in ensuring the safety of the Manalo brothers. can it be done in chambers? Yes. Rule 131. and tortured repeatedly by the military. . They also said that the disclosure of the present places of assignment of the implicated military officers would not jeopardize the exercise of the military functions of the officers. HABEAS DATA The petition of the indigent shall be docketed and acted upon immediately. The threat vitiates their free will and they are forced to limit their movements and activities. they filed a petition for the privilege of the Writ of Amparo. and security. liberty. and torture. After their escape. Instead of having the hearing in open court. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws. The government also failed to provide an effective investigation. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. As regards the relief granted. there is still a threat to their lives.1. the Court held that the production order under the Amparo rule is different from a search warrant and may be likened to the production of documents or things under Rule27. Sec. Considering that they only escaped from captivity and have implicated military officers. Manalo (2008): The Manalo brothers were abducted. Secretary of National Defense vs. detention. without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition. 3[m]) that official duty has been regularly performed? No. detained.POLITICAL LAW REVIEWER Chapter VII. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets. The Supreme Court granted the petition and held that there was a continuing violation of the Manalos’ right to security.

to communicate the contents thereof. criminal investigation or trial of offenses mentioned in Sec. or any other such record. inciting to sedition 7. ENABLING LAW ART. who is authorized by a written order of the Court may lawfully execute any of the acts declared to be unlawful in the two preceding Sections in cases involving the crimes of: 1. 1987 CONSTITUTION. conspiracy and proposal to commit rebellion. FORMS OF CORRESPONDENCE COVERED III. as prescribed by law. to any other person Exception 1: That the use of such record or any copies thereof as evidence in any civil. be he a participant or not in the act or acts penalized in the next preceding sentence. 3 hereof. 2. intercept. Exception 2: II. letters messages telephone calls telegrams. or copies thereof. 2. 4. conspiracy to commit sedition. For any person. WHEN ALLOWED II. III. to knowingly possess any tape record. 4. 3. or when public safety or order requires otherwise. detectaphone or walkie-talkie or tape recorder. and the like (BERNAS) III. 5. shall not be covered by this prohibition. Section 3. rebellion. Unlawful Acts: 1. and mutiny in the high seas. PRIVACY of COMMUNICATION and CORRESPONDENCE Chapter VIII. whether complete or partial. to furnish transcriptions thereof. or by using any other device or arrangement. 99 CONSTITUTIONAL LAW II I. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court. For any person not being authorized by all the parties to any private communication or spoken word to tap any wire or cable. When public safety or public order requires otherwise. Forms of Correspondence Covered 1. or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or Any peace officer.POLITICAL LAW REVIEWER Chapter VIII. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. treason espionage provoking war and disloyalty in case of war piracy. of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law 4. or however otherwise described. 3. By lawful order of the court 2. INTRUSION. as may be provided by law 6. AND FOR OTHER PURPOSES (1965) Section 1. violations of Commonwealth Act No. Intrusion. When Allowed 1. ENABLING LAW Republic Act 4200: AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION. 3. either verbally or in writing. kidnapping as defined by the RPC 8. to secretly overhear. wire record. to replay the same for any other person/persons 5. 616. sedition. disc record. Privacy of Communication and Correspondence I. SEC. 2. inciting to rebellion 6. punishing espionage and other offenses against national security Requirements for valid issuance of written order: .

and inciting to sedition.A. as the case may be. contents. discussions. ii. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order. conversations. reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for. conspiracy to commit sedition. A showing of: i. or record the communications. any such crimes. unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. Section 4. 4200 because a telephone extension device was not among those "device(s) or arrangement(s)" enumerated therein. the period of the authorization. or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial. discussions. or recorded and. Upon written application and examination under oath or affirmation of the applicant and the witnesses he may produce. however. the telegraph line or the telephone number involved and its location. or spoken words 3. substance. Inadmissibility: Any communication or spoken word. such authority shall be granted only upon prior proof that a rebellion or acts of sedition. effect. legislative or administrative hearing or investigation. Gaanan vs. or to the prevention of. purport. or spoken words are to be overheard. the identity of the peace officer authorized to overhear. intercept. Contents of the order: 1. have actually been or are being committed. reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided. That in cases involving the offenses of rebellion. and 2. no other means readily available for obtaining such evidence. following the principle that "penal statutes must be construed strictly in favor of the accused”. or meaning of the same or any part thereof. in the case of telegraphic or telephonic communications. or the existence. the offense/offenses committed or sought to be prevented 4. intercepted.POLITICAL LAW REVIEWER Chapter VIII. or to the solution of. conspiracy and proposal to commit rebellion. the identity of the person/persons whose communications. sedition. conversations. inciting to rebellion. 2. PRIVACY of COMMUNICATION and CORRESPONDENCE 1. IAC (1986): The use of a telephone extension for the purpose of overhearing a private conversation without authorization did NOT violate R. quasijudicial. 100 CONSTITUTIONAL LAW II . and iii.

FREEDOM OF EXPRESSION AND NATIONAL SECURITY 2. wearing armbands as symbol of protest) c) Movies (BERNAS) Scope of Protected Freedoms Any and all modes of protection are embraced in the guaranty. Art. (New York vs. Basis. FREEDOM FROM SUBSEQUENT PUNISHMENT II.S. Bustos (1909): While indeed. giving the government a heavy burden to show justification for the imposition of such restraint. TESTS B. FREEDOM OF INFORMATION III. of expression. and that therefore. FREEDOM OF ASSOCIATION AND SELF-ORGANIZATION C. 3. this Court however believes that the alleged defamatory articles fall within the purview of a qualifiedly privileged matter. Even restriction of circulation constitutes censorship (Grosjean vs. MOVIE CENSORSHIP D. I. APPLICATIONS OF VARIOUS TESTS IN SPECIFIC INSTANCES 1. US) U. Examples Restraint: 1. FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY 4. Freedom from Censorship or Prior Restraint Concept: Censorship conditions the exercise of freedom of expression upon the prior approval of the government. of Unconstitutional Prior COMELEC prohibition against radio commentators or newspaper columnists . with a design to carelessly or wantonly injure the plaintiff. or of the press. FREEDOM FROM CENSORSHIP OR PRIOR RESTRAINT B.g. It is reinforced by Sec. usually applying only his own subjective standards in determining what is good and what’s not. SCOPE AND LIMITATIONS A. FREEDOM OF ASSEMBLY B. 3 No person shall be detained solely by reason of his political beliefs and aspirations. American Press Co. Components. BASIS. Sec. and press include: a) Written or spoken words (recorded or not) b) Symbolic speech (e. Art. 3. that he must prove that the defendants were actuated by ill-will in what they caused to be printed and published. Art. Freedom of Expression I. social and artistic arbiter for the people. that is. the news item subject of the present case might have ruffled the sensitivities of plaintiff. FREEDOM OF EXPRESSION AND LIBEL 3. 18. The censor serves therefore as the political. BROADCAST MEDIA accordingly shifted to the plaintiff. (1). Limitations Scope and Basis Sec. it cannot be presumed to be malicious.POLITICAL LAW REVIEWER Chapter IX. 18(1). vs. 4. robust and wide-open debate in the free marketplace of ideas” (Abrams vs. moral. expression. FREEDOM of EXPRESSION Chapter IX. CONTENT-BASED RESTRICTIONS A. 297 US 233) 2. All are indispensable to the “uninhibited. CONTENT-NEUTRAL RESTRICTIONS A. The onus of proving malice is General rules: 1. No law shall be passed abridging the freedom of speech. A. COMPONENTS. FREEDOM OF EXPRESSION AND THE ADMINISTRATION OF JUSTICE 5. 101 CONSTITUTIONAL LAW II Components Speech. or the right of the people peaceably to assemble and petition the government for redress of grievances. Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutionality. United States 1971) There need not be total suppression.

COMELEC) 3. Katigbak and Ayer vs. 3. except during the prescribed election period. Kottinger: Accused was convicted for exhibiting nude painting and pictures. (1931): a. The limits of freedom of expression are reached when it touches upon matters of private concern (Lagunzad vs. announcements or commentaries for or against the election of any candidate for office (Gonzales vs. 2006) the sailing dates of transports or the number and location of troops c. Libel. not merely artistic. which is violative of the right to free press. Court said that the purpose was commercial. vs. 354 of the RPC. (National Press Club vs. Incitements to acts of violence and the overthrow by force of orderly government 102 CONSTITUTIONAL LAW II 3. Freedom from Subsequent Punishment Concept: 4. (Chavez vs. If criticism is not to be conditioned on the government’s consent. notwithstanding his claim that he had done so in the interest of art. Right of students to free speech in school premises must not infringe on the school’s .S. embarrass or influence the courts in administering justice in a pending suit or proceeding (sub judice) (People vs. Ratio: police power of State to regulate media for purpose of ensuring equal opportunity. FREEDOM of EXPRESSION from commenting on the issues involved in a scheduled plebiscite (Sanidad vs. Chief of Staff) An announcement of a public figure to prohibit the media to issue a specific kind of statement amounts to prior restraint. then neither should it be subject to the government’s subsequent chastisement. time and space for political campaigns. COMELEC. the citizen would hesitate to speak for fear he might be provoking the vengeance of the officials he has criticized (chilling effect). Osmena vs. the making of speeches. B. (Alonzo vs. CA) Exceptions to this presumption are found in Art. Being a public figure does not automatically destroy in toto a person's right to privacy. When a nation is at war. Dans) COMELEC resolution prohibiting the posting of decals and stickers in mobile units like cars and other moving vehicles (Adiong vs. Alarcon) 4. (NACHURA citing Gonzales vs. (Pita vs. Obscenity. padlocking and sealing of the offices of newspaper publishers (We Forum) by military authorities (Burgos vs. Examples of Constitutional Prior Restraint: Examples of Valid Subsequent Restraints: 1. COMELEC) 2. obstruct. Actual obstruction to the government’s recruiting service or the publication of 1. Arbitrary closure of a radio station (Eastern Broadcasting vs. Judge Capulong) 4. Contempt for criticism/publications tending to impede. Prohibition on any person making use of the media to sell or to give free of charge print space or air time for campaign or other political purposes except to the COMELEC. Law which prohibits. Movie censorship: the power of the MTCRB can be exercised only for purposes of reasonable classification. not censorship. Freedom of speech includes freedom after speech. 5. many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right b. Obscene publications d. Gonzales. The determination of what is obscene is a judicial function. Near vs. Every defamatory imputation is presumed to be malicious. because he charged admission fees to the exhibition. CA) U. COMELEC) Search. 2. Without this assurance. COMELEC) 2.POLITICAL LAW REVIEWER Chapter IX. Minnesota. Gonzales) 5.

much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. test most applied to cases re: freedom of expression. Fair comment on matters of public interest. Balancing of Interest Test American Communications Douds. Gonzales vs. When a particular conduct is regulated in the interest of public order. and the regulation results in an indirect. if false. Cruz Paño (1986): In this case. there is no teaching of the moral propriety of a resort to violence. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Content-Based Restrictions A. then such words are punishable. the American case of Brandenburg vs. Direct Incitement Test: In the case before us. Bustos) 3. United States (1919): The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Nor is it even the uninhibited. Exceptions: 1. Note: This test has been adopted by the Philippine SC lock. It is a question of proximity and degree. Ohio (395 U. People vs. or unpleasantly sharp attack which is protected by the guarantee of free speech. robust. (339 US 282): Assoc. stock and barrel and is the . 103 CONSTITUTIONAL LAW II 2.POLITICAL LAW REVIEWER Chapter IX. Fair comment is that which is true or. Direct Incitement Test Salonga vs. COMELEC: This rule requires that “the danger created must not only be clear and present but also traceable to the ideas expressed”. Tests 1. Clear and Present Danger Test Schenck vs.S. the duty of the courts is to determine which of the two conflicting interests demands greater protection. FREEDOM of EXPRESSION right to discipline its students (Miriam College Foundation vs. Comelec: II. Fernandez: If the words uttered create a dangerous tendency of an evil which the State has the right to prevent. the Petitioner was charged with violation of the Revised Anti-Subversion Act after being apparently implicated by a certain Victor Lovely as being involved in the series of bombings in Metro Manila. conditional and partial abridgement of speech. (US vs. Parenthetically. vs. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Dangerous Tendency Test Cabansag vs. Political discussion even among those opposed to the present administration is 2. expresses the real opinion of the author based upon reasonable degree of care and on reasonable grounds. CA 2000). Criticism of official conduct is given the widest latitude. The test is applied when two legitimate values not involving national security crimes compete. Perez: 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. Gonzales vs. 4. caustic.

Such freedom. Grave-But-Improbable Danger Test: To determine the clear and present danger of the utterances bringing about the evil which that legislature has the power to punish. 104 CONSTITUTIONAL LAW II 5. making it to appear as if he were hanging lifeless at the end of a piece of rope suspended from the limb of a tree. does not confer an absolute right to speak or publish without responsibility whatever one may choose. although secured by the Constitution.POLITICAL LAW REVIEWER Chapter IX. Tests in Freedom of Expression and National Security Espuelas vs. an attempt to overthrow the Government by force is a sufficient evil for Congress to prevent. or to provoke violence from opposition groups who may seek to silence the writer. Finally. After securing copies of his photograph. he was merely standing on a barrel. (1951): In this case. FREEDOM of EXPRESSION within the protective clause of freedom of speech and expression. and (2) to knowingly and wilfully advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. Such writings are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself. Such wholesale attack is nothing less than an invitation to disloyalty to the government…. the letter instructed the wife to teach their children to burn pictures of Roxas if they come across one. for their publication with a suicide note or letter. Alberto Reveniera and addressed to the latter's supposed wife. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. his disappointments and humiliations because of the former and his lack of power to put under Juez de Cuchillo all the Roxas people in power. he sent copies to several newspapers and weeklies of general circulation throughout the Philippines and abroad. were indicted in a federal district court under § 3 of the Smith Act for (1) wilfully and knowingly conspiring to organize as the Communist Party a group of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence. national security: The letter is a scurrilous libel against the Government. "In each case [courts] must ask whether the gravity of the 'evil. The privilege of any citizen to criticize his government and government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market" is not to be restrained.' discounted by its improbability. reasoned or tempered. leaders of the Communist Party in this country. U. These reasons point to the Roxas administration. which is the sum and substance of the offense under consideration. wherein he made to appear that it . People (1951) Espuelas was convicted in the lower court of the crime of inciting to sedition. Applications of Various Specific Instances I. was written by a fictitious suicidee." In this case. the Petitioners.S. Malicious endeavors to stir up public strife are prohibited. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. B. when in truth and in fact. let such criticism be specific and therefore constructive. and not a contemptuous condemnation of the entire government set-up. Freedom of Expression. Espuelas had his picture taken. This kind of legislation must be weighed carefully vis-à-vis the fundamental right to freedom of speech. justifies such invasion of free speech as is necessary to avoid the danger. It is the existence of the conspiracy which creates the danger. However. It suggests or incites rebellious conspiracies or riots and tends to stir up the people against the constituted authorities. Grave-But-Improbable Danger Test Dennis vs. Our Legislature has spoken in article 142 of the RPC and the law must be applied. Espuelas admitted the fact that he wrote the letter and caused its publication and that he had impersonated one Alberto Reveniera and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree.

if need be.xxx Newsweek vs. Ayer Productions vs. which says that the pig is sacred for the Muslims. so that he can bring the action separately. Islamic Da’Wah Council of the Phil (2003) Islamic Da’Wah Council of the Philippines. it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class. discredit or contempt or to blacken the memory of one who is dead. arising from an article. filed a complaint for III. a local federation of more than 70 Muslim religious organizations. it would be a drab story of torture and brutality. that the victim had been arrested by members of special police unit brought by the mayor of Kabankalan who incidentally is a sugar planter). whether correct or not. Capulong (1988): Facts: TC issued a writ of preliminary injunction against petitioners ordering them to desist from . Panorama described Amir Mindalano as not belonging to a royal house. The right to invade a person’s privacy to disseminate public info does not extend to a fictional representation of a person.even those ideas that are universally condemned and run counter to constitutional principles. the limitation on liability would satisfactorily safeguard freedom of speech and expression. or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him. Sotto (1979) Being a public figure does not automatically destroy in toto a person’s right to privacy." Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech. Such a description cannot be regarded as defamatory. where the group referred to is large. 105 CONSTITUTIONAL LAW II II. IAC (1986): REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND COVERED BY PRESS FREEDOM: Where the defamation is alleged to have been directed at a group/class. or tending to cast dishonor. However pernicious an opinion may seem. cannot be defamatory. damages against MVRS Publications. Also. Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "all ideas are treated equal in the eyes of the First Amendment . It is to the standards of the national community. of expression. we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. the report in the Newsweek article referring as it does to an official act performed by an elective public official (i. and of the press. Inc. petitioner admits that he included a little romance in the film about Moises Padilla (despite efforts to present the true-to-life story of the latter) because w/o it. the rationale of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty. Freedom of Expression and Libel Bulletin Publishing vs.. effecting a sound compromise between the conflicting fundamental interests involved in libel cases. as well as of the press. In the case at bar. Libel: As the size of these groups increases. such an ascription.e. Inc. the chances for members of such groups to recover damages on tortious libel become elusive. Noel NATIONAL COMMUNITY STANDARD AS BASIS OF WHAT IS DEFAMATORY: Facts: An article in Phil. FREEDOM of EXPRESSION When the use of irritating language centers not on persuading the readers but on creating disturbance. is w/in the realm of privilege and is protected by the constitutional guarantees of free speech and press. the courts presume that no reasonable reader would take the statements as so literally applying to each individual member. no matter how public a figure he/she may be. and second.POLITICAL LAW REVIEWER Chapter IX. "there is no such thing as a false idea. Freedom of Expression. not to those of the region that a court must refer especially where a newspaper is national in reach and coverage." Under the right to free speech.. MVRS v. Held: Court held that there is no libel. an imputation of a vice or defect. This principle is said to embrace two important public policies: first. Freedom of Expression and the Right to Privacy Lagunzad vs. In a community like ours which is both republican and egalitarian.

Fugoso (1948): The right to freedom of speech and to peaceably assemble and petition the government for redress of grievances are fundamental personal rights of the people guaranteed by the constitutions of democratic countries. . Request was refused on the ground of confidentiality. but only the discretion in issuing the permit to determine or specify the streets or public places where the parade may pass or the meeting may be held. absent any clear and present Facts: Due to the delay in the disposition of his original case. Freedom of Expression Administration Of Justice Cabansag vs. injury to property and acts of vandalism must be avoided. are entitled to “access to official records. SC reversed the ruling which cited him in contempt. But although citizens have such right and. Bagatsing (1983): The Court held here that freedom of speech and freedom to peaceably assemble is entitled to be accorded utmost deference and respect. Freedom of Assembly Primicias vs. Held: The right to information is not absolute. Belmonte Facts: Media practitioners requested information from the GM of GSIS regarding clean loans granted to certain members of the defunct Batasang Pambansa on the guaranty of Imelda Marcos shortly before the Feb 1986 elections. Held: 1) Freedom of speech and expression includes freedom of filming and producing motion pictures and to exhibit them.” the Constitution does not accord them the right to compel custodians of official records to prepare lists. That the GSIS was exercising a proprietary function would not justify its exclusion of the transactions from the coverage of the right to info.B. Held: Freedom of Expression and the Administration of Justice: For his act (of sending his letter to the President and not to the Sec of Justice or SC) to be contemptuous. the danger must cause a serious imminent threat to the administration of justice. Enrile is a public figure because of his participation as a principal actor in the culminating events of the revolution. there must be no presentation of his private life and no revelation of intimate or embarrassing personal facts. We cannot infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance. 2) The right to privacy cannot be involved to resist publication and dissemination of matter of public interest. pursuant thereto. 3) The intrusion is no more than necessary to keep the film a truthful historical account. 4) There must be no knowing or reckless disregard of truth in depicting the participation of Enrile in EDSA I. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression. Furthermore. FREEDOM of EXPRESSION producing the movie “The Four-Day Revolution”. Freedom of Information Valmonte vs. Content-Neutral Restrictions 1. For the constitutional right to be invoked. Cabansag asked for help from the President through a letter addressed to the Presidential Complaints and Actions Commission (PCAC). Reyes vs.POLITICAL LAW REVIEWER Chapter IX. Also.L. summaries and the like in their desire to get info on matters of public concern. 106 CONSTITUTIONAL LAW II IV. and cannot be limited or denied unless there is showing of a clear and present danger of a substantive evil that the State has a right to prevent. Fernandez (1957) and the III. It is limited to matters of public concern and is subject to such limitations as may be provided by law. on the ground that it violated the right to privacy of Juan Ponce Enrile who was featured in the documentary. riotous conduct. City or town mayors are not conferred the power to refuse to grant the permit. J. V. a docu-drama of EDSA I. A contempt charge was brought against him for sending that letter which tended to degrade the lower court in the eyes of the President and of the people.

Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. 17. maximum tolerance. as a necessary consequence and part of maximum tolerance. 880 not unconstitutional  B. he is aware of only ONE declared freedom park Fuente Osmena in Cebu City. On the other hand.P. There is. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. 3 [c] of B. association. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time. 2.P. is NULL and VOID  CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. FREEDOM of EXPRESSION danger of a substantive evil.P. No. peaceable assembly in public places like streets or parks cannot be denied. or Group of Persons. it does not curtail or unduly restrict freedoms. in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. no such parks are so identified in accordance with Section 15 of the law.P. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard. No. It merely confuses our people and is used by some police agents to justify abuses. all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks. no prior restraint. place and manner of assemblies.  Far from being insidious. 880 provides that every city and municipality must set aside a freedom park within six months from the law’s effectivity in 1985. mayor to allow proper coordination and orderly activities. or 20 years ago. rallyists who can show the police an application duly filed on a given date can. 880. likewise.POLITICAL LAW REVIEWER Chapter IX. no prior permit of whatever kind shall be required to hold an assembly therein.  In such a situation. Human Security Act: SEC. however. Accordingly. the grant of the permit being then presumed under the law. B. 107 CONSTITUTIONAL LAW II B. after two days from said date.P. to deny the permit would in effect be to deny the right. or group of persons organized for the purpose of engaging in . 17. Ermita (2006) The CPR. the so-called calibrated pre-emptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. Bayan vs. and is illegal if it means something else. insofar as it would purport to differ from or be in lieu of maximum tolerance. what is to be followed is and should be that mandated by the law itself. The law is not vague or overbroad.  Hence. namely. Without such alternative forum. Proscription of Terrorist Organizations. -. Association. The only requirement will be written notices to the police and the office of the Conclusion  For this reason. No. Permit Application  There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one. A fair and impartial reading of B. after that period. If. place and manner of the assemblies.P. No.P. local governments are given a deadline of 30 days within which to designate specific freedom parks as provided under B. rally in accordance with their application without the need to show a permit. Freedom of Association and SelfOrganization SEC. 880). According to the SolGen (Nachura). since the content of the speech is not relevant to the regulation. 880 cannot be condemned as unconstitutional. the rally is immediately dispersed. Freedom Parks  B. “maximum tolerance” is for the benefit of rallyists. not the government.Any organization. and it will be the burden of the authorities to show that there has been a denial of the application. it merely regulates the use of public places as to the time.

8.POLITICAL LAW REVIEWER Chapter IX. association. Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety. including the right to strike in accordance with law. collective bargaining and negotiations. 1987 Constitution. Ferrer (1972): The right to associate is not absolute.” Held: Here the Court held that the power of the Board is limited to the classification of films. there must be reasonable apprehension about its imminence. 1987 Constitution. 108 . 1987 Constitution. health or any other legit public interest. 4. Kalaw Katigbak (1985): Facts: Gonzales was the producer of the movie Kapit sa Patalim w/c the Board of Review for Motion Pictures and Televisions classified as fit “For Adults Only. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. 3. and a living wage. actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall. par. morals. or group of persons concerned. FREEDOM of EXPRESSION 3. or group of persons by the said Regional Trial Court. or which. People vs. Sec. Art. Sec. 3(2). Art 9-B. although not organized for that purpose. Movie Censorship Gonzales vs. or societies for purposes not contrary to law shall not be abridged. humane conditions of work. 1) There should be no doubt what is feared may be traced to the expression complained of. association. The right to self-organization shall not be denied to government employees. It shall guarantee the rights of all workers to selforganization. 2) Also. The right of the people. 2. be declared as a terrorist and outlawed organization. and peaceful concerted activities. Sec. to form unions. with due notice and opportunity to be heard given to the organization. They shall be entitled to security of tenure. 2 (5). Art. 13. associations. For freedom of expression is the rule and restrictions the exception. upon application of the Department of Justice before a competent Regional Trial Court. It does not suffice that the danger is only probable. Broadcast Media CONSTITUTIONAL LAW II terrorism. including those employed in the public and private sectors.

Sec. Newdow vs. US (2003): Mandatory recitation in school of such a Pledge of Allegiance would tend to discriminate against students who are atheists. . Basis Rooted in the separation of Church and State (Sec. 6. Religious displays in public spaces Glassroth vs. Lynch v. At the option expressed in writing by the parents or guardians. 2. 335 F. 5. Vitale 1967. actually. FREEDOM of RELIGION Chapter X. endorsement or disapproval of religion (Victoriano v. buildings. Sec. CLEAR AND PRESENT DANGER TEST B.. charitable. No religious test shall be required for the exercise of civil or political rights. FREE EXERCISE CLAUSE A.POLITICAL LAW REVIEWER Chapter X. Abington School District v. Tax exemption Sec. Nothing in its setting de-emphasizes its religious nature. Acts NOT permitted establishment Clause 1. 28 (3). J. non-profit cemeteries. Educational institutions. Non-establishment Clause A. Religious instruction in public schools Sec. Schempp) Word “God” in the Pledge of Allegiance 109 CONSTITUTIONAL LAW II 5. NON-ESTABLISHMENT CLAUSE A. or prohibiting the free exercise thereof. 5(2). III. TESTS A. Elizalde Rope Workers Union 1974. 6. ACTS NOT PERMITTED BY THE ESTABLISHMENT CLAUSE D. 14. Operation of sectarian schools Sec. CONSCIENTIOUS OBJECTOR TEST Art. C. Allegheny County v. LAWS JUSTIFIED UNDER THE FREE EXERCISE CLAUSE III. 14. 29(2) Art. 465 US 668 (1984) O'Connor. Sec. shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens… 3. D. Mandatory religious subjects or prohibition of secular subjects (evolution) in schools (Epperson vs. shall forever be allowed. or educational purposes shall be exempt from taxation. and all lands. DUAL ASPECT B. 2(5). 6. The free exercise and enjoyment of religious profession and worship. Moore. ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE E. It engenders in viewers a sense that Christianity is endorsed by the government. Arkansas) Mandatory bible reading in school (a form of preference for belief over non-belief) (School District vs. COMPELLING STATE INTEREST TEST C. 9-C. 2003): Display of granite monument of 10 commandments in front of a courthouse is unconstitutional for being is unmistakably nonsecular. Greater Pittsburg ACLU 1989). Art. Freedom of Religion I. No law shall be made respecting an establishment of religion. Acts Permitted by the Establishment Clause 1. 3(3). 3. TEST II. without discrimination or preference. 4. Kurtzman) 2. CONCEPT B. Concept The clause prohibits excessive government entanglement with. Art. and improvements. Art.3d 1282 (11th Cir. and exclusively used for religious. other than those established by religious groups and mission boards. directly. churches and personages or convents appurtenant thereto. religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or I. by Non- Prayer and Bible-reading in public schools (Engel v. Art. 4(2). Charitable institutions. mosques. B. BASIS C. 1987 Consti). Schemp 1963) Financial subsidy for parochial schools (Lemon vs. Donnelly. concurring).

(434 Mass. Dual Aspect 1. court inquires if the law or conduct has a secular purpose. The benefit to religious sect is incidental to promotion of Philippines as a tourist destination. 236) 8. 141): WON zoning law giving exemption to religious sect (Mormons building a tall pointed steeple) is constitutional. FREEDOM of RELIGION approved by the religious authorities of the religion to which the children or wards belong. Traditions which used to be purely religious but have now acquired secular character are permissible (Garces vs. Book lending program for students in parochial schools. paid. .g. or employed. Allen. HELD: Yes. whenever possible: (1) Schools in every barrio. 9. The benefit redounds to students and parents and not to any particular sect. Must not foster excessive entanglement between government and religion. Corporation of the Presiding Bishop. HELD: Yes.POLITICAL LAW REVIEWER Chapter X. and merely depicts the origins of the holiday.absolute 2. or support of any sect. except when such priest. 672): WON a law that grants financial support for expansion of educational facilities in parochial schools is constitutional. Civil Code. Primary effect must be one that neither advances nor inhibits religion. 5.xxx 4. Freedom to believe . (403 U. 2. Donnely. or of any priest. for the use. The government promotes the full growth of the faculties of every child. 3. applied. or dignitary as such. 6. Art. Free Exercise Clause A. 602): Lemon Test 1. minister. directly or indirectly. church. Exemption from zoning requirements to accommodate unique architectural features of religious buildings Martin vs. 10. Display of crèche in a secular setting Lynch vs. Kurtzman.S. Laws Justified under Free Exercise Clause 1. municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian. II. The Constitution mandates accommodation and not merely tolerance. without additional cost to the Government. benefit. (Board of Education vs. Ruiz. e. preacher. other religious teacher. 110 CONSTITUTIONAL LAW II E. No public money or property shall be appropriated. Art. (64 Phil. denomination.S.S. Government sponsorship of town fiestas. Statute must have a secular legislative purpose. 29 (2). Public aid to religion Sec. secular purpose – facilities to be used for secular activities. Richardson. 201): Postage stamps which promote a Catholic event are constitutional. (1984): Crèche is displayed in a secular manner. or system of religion. The facilities built here were a library and a science center. 359. minister. For this purpose. Freedom to act on one’s belief – subject to regulation B. Postage stamps depicting Philippines as the site of a significant religious event Aglipay vs. (403 U. steeple pointing upwards into heaven for Mormons. sectarian institution. preacher. or dignitary is assigned to the armed forces. or to any penal institution. Division Superintendent of Schools of Cebu (1993): Conscientious Objectors cannot be compelled to salute the flag on pain of being dismissed from one's job or of being expelled from school. Financial support for secular academic facilities Tilton vs. Instead of an absolutist approach. court may not determine whether architectural features are necessary for a particular religion. the government will establish. 6. Exemption from flag salute Ebralinag vs. Estenzo) 7. Test Lemon vs. or government orphanage or leprosarium. 392 U.

Objection is sincere. 2. Non-disqualification from local government office Pamil vs. why not the latter. Tests A. it is invalid for it requires a religious test for qualification. provided it does not offend compelling state interests. Congress acted merely to relieve persons of the burden imposed by union security agreements. The means adopted in pursuing its interest is the least restrictive to religious freedom Estrada vs. health or any other legitimate interest. Opposition is based upon religious training and belief. 4. of a serious evil to public safety. 111 CONSTITUTIONAL LAW II 3. that the state has a right to prevent. law disqualifying religious leaders from public office is held valid. Escritor (2003): Although the morality contemplated by laws is secular. Conscientious Objector Test 1.POLITICAL LAW REVIEWER Chapter X. The free exercise of religious profession or belief is superior to contract rights. Clear and Present Danger Test Ebralinag vs. Teleron (1978): For lack of votes. III. Compelling state interest must override religious belief and practice 3. the statute must have a secular purpose and that purpose must not directly advance or diminish the interest of any religion. public morals. C. This expands the meaning of religion to cover not just recognized sects but also personal beliefs akin to traditional religion. Exemption from union shop Victoriano vs. Elizalde Rope Workers Union (1974): Neither does the law constitute an establishment of religion. Conscientiously opposed to war in any form. (US vs. US) Note: Meaning of religious training and belief: WON it is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God. Dean Pangalangan: There should be no distinction between ordinary believer and the Pope. Seeger. if the former can hold office. public . Freedom to propagate religious doctrines American Bible Society vs. City of Manila (1957): The power to tax the exercise of the privilege is the power to control or suppress its enjoyment. Div. (See Cassious Clay vs. Those who can tax the exercise of religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. FREEDOM of RELIGION 2. 380 US 163). benevolent neutrality could allow for accommodation of morality based on religion. Superintendent: The existence of a grave and present danger. It has been held that in order to withstand objections based on this ground. 3. of a character both grave and imminent. Determine sincerity and centrality of claimed religious belief and practice 2. B. As per free exercise clause. Compelling State Interest Test (from a benevolent neutrality stance) 1.

None of the rights of the citizen can be taken away except by due process of law. Her decision to bar the return of the Marcoses and subsequently. LIBERTY of ABODE and TRAVEL Chapter XI. IV of the 1973 Consitution is not an Absolute Right. LIBERTY OF ABODE II. Liberty of Abode Rubi vs. and unless a penalty is provinced for. to which the return of the Marcoses has been viewed to provide a catalytic effect. Art. it is "Liberty regulated by law. and can only be impaired upon lawful order of the court." The right of the individual is necessarily subject to reasonable restraint by general law for the common good. the remains of Mr. Lukban (1919): The executive of a municipality does not have the right to force citizens of the Philippine Islands to change their domicile from one locality to another. For as people accustomed to nomadic habit. a nomadic people with a wayfaring life and without permanent individual property is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. Liberty of Abode and Travel I. To allow him to travel. III. Right to Travel Manotok vs. especially abroad will make the order of the court nugatory as the court's jurisdiction cannot extend beyond the Philippines. One of her duties is to protect and promote the the interest and welfare of the people. CA (1986): 112 CONSTITUTIONAL LAW II I. their relocation (and the imposition that they are not allowed to emigrate to some other places under penalty of imprisonment) is a proper restraint to their liberty. RIGHT TO RETURN TO ONE’S COUNTRY police chief to restrain the liberty of abode of citizens of the Philippines. In short. have not been shown to have ceased. or of the public order and safety. Manglapus (1989): The threats to the government. you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. The government's measure in relocating the Manguianes. The President has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. Furthermore. . and there is no law nor regulation that allows a mayor or a RIGHT NOT ABSOLUTE: The Constitutional Right to Travel under Sec. or otherwise within the proper scope of the police power. and improve their education. Marcos at the present time and under present circumstances is in compliance with this bounden duty. he make himself available at all times is a valid restriction on his right to travel. is not license. Law defines power. II. The Liberty of the citizens may be restrained in the interest of the public health.POLITICAL LAW REVIEWER Chapter XI. everything is being done from them in order that their advancement in civilization and material prosperity may be assured. they will always long to return to the mountains and follow a wayfaring life. Right to Return to One’s Country Marcos vs. Releasing the petitioner on bail and that as a condition. 5. or when necessary in the interest of national security. Villavicencio vs. they being taught and guided in Tigbao to improve their living conditions. public safety or public health. RIGHT TO TRAVEL III. Provincial Board (1919): "Liberty" as understood in democracies.

III. REVISED PENAL CODE Delay in the delivery of detained persons to the proper judicial authorities. any communication. or of the press. 125. or group of persons by the court. III. 4. 3. association or group of persons organized for the purpose of engaging in terrorism. No law shall be passed abridging the freedom of speech. or which although not organized for this purpose. of expression. including those employed in the public and private sectors. or with the use of any other suitable ways and means for that purpose. 1987 CONSTITUTION. Proscription of Terrorist Organizations. The right of the people. having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall. 1987 CONSTITUTION. 113 CONSTITUTIONAL LAW II Surveillance of suspects and interception and recording of communications. “The provisions of RA 4200 to the contrary notwithstanding” Intercept and record. liberty. RA 9372: HUMAN SECURITY ACT Chapter XII. SEC. 1987 CONSTITUTION. without incurring any criminal liability for delay in the delivery of detained persons ART. ART. 1987 CONSTITUTION. with the use of any mode. § 17  Any organization. III. form. SEC. 1. or societies for purposes not contrary to law shall not be abridged. 1) No person shall be detained solely by reason of his political beliefs and aspirations. or when public safety or order requires otherwise as prescribed by law. RA 9372: Human Security Act* RELEVANT PROVISIONS VIS-À-VIS CONSTITUTIONAL GUARANTEES REPUBLIC ACT 9327 Conspiracy to Commit Terrorism. ART. message. SEC. associations. 8. or property without due process of law. §18  The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding.POLITICAL LAW REVIEWER Chapter XII. or the right of the people peaceably to assemble and petition the government for redress of grievances. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court. any police or law enforcement personnel. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. III. III. or spoken or written words between members of a judicially declared and outlawed terrorist organization. to form unions. with due notice and opportunity to be heard given to the organization. be declared as a terrorist and outlawed organization. § 4 CRITICISM If terrorism is defined by result. § 7 Upon written order of the Court of Appeals. discussion. nor shall any person be denied the equal protection of the laws. association or group of persons or of any person charged with or suspected of the crime of terrorism or of conspiracy to commit terrorism. kind or type of electronic or other surveillance equipment of intercepting and tracking devices.. then how can a conspiracy to commit the Section 3 offense arise? ART. 18. No person shall be deprived of life. upon application of the Department of Justice before a competent Regional Trial Court. SEC. association. who. SEC. — The penalties provided in the next preceding article . 1. ART. Association or Group of Persons. Note: “to terrorize” ≠ to commit the crime of terrorism? Periods of Detention without Judicial (sic) Warrant of Arrest. 2.  ART. association or group of persons concerned. 1987 CONSTITUTION. conversation. actually uses the acts to terrorize shall.

Excessive bail shall not be required. shall. SEC. 1987 CONSTITUTION. before conviction. or be released on recognizance as may be provided by law. in the interest of national security and public safety. ART. and taken into custody by the said police. shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of. for crimes or offenses punishable by correctional penalties. cellphones. deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested. detained. limit the right to travel of the accused to within the municipality or city where he resides or where the case is pending. eighteen (18) hours. _____________________________________________ * Acknowledgment: Thank you to Prof. or their equivalent. or their equivalent and thirty-six (36) hours. Note: Law is silent as to the MAXIMUM PERIOD OF DETENTION Restriction on Travel. 13. twelve (12) hours. May also be placed under house arrest by order of the court at his or her usual place of residence. he/she may not use telephones. or law enforcement personnel.  o ART. be bailable by sufficient sureties. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.POLITICAL LAW REVIEWER Chapter XII. III. for crimes or offenses punishable by light penalties. III. RA 9372: HUMAN SECURITY ACT   Periods of Detention in the Event of an Actual or Imminent Terrorist Attack. CONSTITUTIONAL LAW II to the proper judicial authorities. or offenses punishable by afflictive or capital penalties. 14. computers. upon application of the prosecution. §19 “suspects” may be detained for more than 3 days without the written approval of the Human Rights Commission or judge of the nearest court. 1987 CONSTITUTION. the accused shall be presumed innocent until the contrary is proved. for crimes. Theodore Te for allowing us to substantially lift the materials from his report on the HSA. emails. 114 . or their equivalent. except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. All persons. XXX 2. SEC. while under house arrest. §26 o o Situation contemplated: Bail is granted because “evidence of guilt is not strong” Court may. 1. In all criminal prosecutions. the internet or other means of communication with people outside the residence until otherwise ordered by the court.

the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. economic or social. To this end. which must be duly acknowledged in writing. no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property. liberty and equal protection of the law. bridge or other thoroughfare. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held.A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However. Section 6. street. or protesting or influencing any state of affairs whether political. public safety. the purpose of such public assembly.This Act shall be known as "The Public Assembly Act of 1985. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. at least five (5) working days before the scheduled public assembly. public morals or public health. the State shall ensure the free exercise of such right without prejudice to the rights of others to life. police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. Title . however.POLITICAL LAW REVIEWER Chapter XII. in which case only the consent of the owner or the one entitled to its legal possession is required. Section 4. (b) "Public place" shall include any highway. Section 3. the transport and the public address systems to be used. rallies. Application requirements . road. 880 AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES Section 1. square. That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. march. Definition of terms .The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State.All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers. public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided. Section 5. its implementing rules and regulations. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code. (d) Upon receipt of the application. and/or any open space of public ownership where the people are allowed access. Permit when required and when not required . the date. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Declaration of policy . BP 880 BATAS PAMBANSA BLG. parade. plaza. procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause. public convenience. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application 115 CONSTITUTIONAL LAW II . demonstrations. the volume of loud-speakers or sound system and similar changes. parades. (d) "Modification of permit" shall include the change of the place and time of the public assembly. avenue. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order. (c) "Maximum tolerance" means the highest degree of restraint that the military. and by the Batas Pambansa Bilang 227. boulevard." Section 2. or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of said educational institution. and place or streets to be used for the intended activity. rerouting of the parade or street march. and the probable number of persons participating. time and duration thereof. or petitioning the government for redress of grievances. demonstration.For purposes of this Act: (a) "Public assembly" means any rally. or expressing an opinion to the general public on any particular issue. park. The processions.

or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of 116 CONSTITUTIONAL LAW II Section 7. to the next in rank. to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. for an appreciable length of time. said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. road or street. Non-interference by law enforcement authorities . the Municipal Trial Court. boots or ankle high shoes with shin guards. reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. A decision granting such permit or modifying it in terms satisfactory to the applicant shall. he shall immediately inform the applicant who must be heard on the matter. any decision may be appealed to the Supreme Court. water cannons. In case suit is brought before the Metropolitan Trial Court. However. If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit. the mayor or any official acting in his behalf may.Should the proposed public assembly involve the use. the permit shall be deemed granted. Use of public thoroughfare . If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit. boulevard. (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully. in his absence. or the Intermediate Appellate Court. Towards this end. Responsibility of applicant . a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times. Section 9. In all cases. when their assistance is requested by the leaders or organizers.Law enforcement agencies shall not interfere with the holding of a public assembly. BP 880 (c) (d) (e) (f) (g) (h) (i) was filed. All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. be immediately executory. the Regional Trial Court. The action on the permit shall be in writing and served on the application within twentyfour hours.POLITICAL LAW REVIEWER Chapter XII. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or. gas masks. smoke grenades. and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks. to prevent grave public inconvenience. of any public highway. Police assistance when requested It shall be imperative for law enforcement agencies. Section 10. No appeal bond and record on appeal shall be required. (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit. to adequately ensure public safety.It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all . (c) Tear gas. the Municipal Circuit Trial Court. Section 8. Telegraphic appeals to be followed by formal appeals are hereby allowed. failing which. its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. the applicant may contest the decision in an appropriate court of law. (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly. avenue. crash helmets with visor. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit. shields. designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined.

organizer or participant shall also be made during the public assembly unless he violates during the assembly a law. the malicious burning of any object in the streets or thoroughfares. (b) violations of subparagraphs (b).When the public assembly is held without a permit where a permit is required. statute. (d) violations of item 2. 5. 4. (d) No arrest of any leader. (c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate. the carrying of a bladed weapon and the like. the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance. Obstructing. Freedom parks . impeding. Prohibited acts . 117 . (e). 2. (d). the police may disperse such public assembly as follows: (a) At the first sign of impending violence.POLITICAL LAW REVIEWER Chapter XII. Section 15. and the like. BP 880 violence. Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. item 3. (f). 1.Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding Section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months. Dispersal of public assembly with permit . The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf. however. or at any property causing damage to such property. its horns and loud sound systems. and item 4. Such arrest shall be governed by Article 125 of the Revised Penal Code. property. when an assembly becomes violent. the carrying of firearms by members of the law enforcement unit. bomb. However.Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" CONSTITUTIONAL LAW II (c) or held criminally liable for participating in or attending an otherwise peaceful assembly. the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists. (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants. The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly. disrupting or otherwise denying the exercise of the right to peaceful assembly. 1866. Penalties . Dispersal of public assembly without permit . Section 13. ordinance or any provision of this Act. That no person can be punished (d) (e) (f) (g) Section 14. pillbox. the public assembly will be dispersed. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle. as amended: (e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal. Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof. the carrying of a deadly or offensive weapon or device such as firearm. the said public assembly may be peacefully dispersed. the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly. Acts in violation of Section 10 hereof. (c) violation of item 1.The following shall constitute violations of this Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned.No public assembly with a permit shall be dispersed. or the use of such permit for such purposes in any place other than those set out in said permit: Provided. subparagraph (g) shall be punished by imprisonment of six months and one day to six years. or deliberate destruction of (b) Section 11. Section 12. and after allowing a reasonable period of time to lapse. or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. shall immediately order it to forthwith disperse. (c). 3. subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No.

Constitutionality . In the cities and municipalities of Metropolitan Manila.All laws. 1985. Section 18. BP 880 Section 16. orders. Approved. Section 17. letters of instructions. shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. Effectivity .POLITICAL LAW REVIEWER Chapter XII.Should any provision of this Act be declared invalid or unconstitutional. as far as practicable. ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed. the validity or constitutionality of the other provisions shall not be affected thereby.This Act shall take effect upon its approval. the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act. amended. decrees. resolutions. 118 . Repealing clause . October 22. CONSTITUTIONAL LAW II or mall in their respective jurisdictions which. or modified accordingly.

VIII. Laguardia (29 April 2009): There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief. But even assuming a person would not qualify as a public figure. The public’s primary interest is in the event. if and when he would be involved in a public issue. the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. But the principle remains. While it is true that a litigation is not a game of technicalities. The requirement is in pursuance to the bill of rights inscribed in the Constitution which guarantees that "all persons shall have a right to the speedy disposition of their before all judicial. 5[5]). taking into account the very public character of the election itself. that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. for instance. it is equally true that every case must be prosecuted in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. not the participant’s prior anonymity or notoriety.23 this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. the laws (including rules of procedure) of one State do not extend or apply—except to the extent agreed upon—to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. COMELEC (June 2009) Procedural rules should be treated with utmost respect and due regard since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration of justice. petitioner consequently assumed the status of a public figure. i. These are matters about which the public has the right to be informed.. it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. For he could. effect and significance of the conduct. As a political candidate. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. and reflect their bargaining power. There have Soriano vs. LATEST CASES Chapter XIII. as is normally encountered around the world. As early as 1918. the public focus is on the conduct of the participant and the content. they attracted media mileage and drew public attention not only to the election itself but to the candidates. it would not necessarily follow that he could not validly be the subject of a public comment. 119 CONSTITUTIONAL LAW II Pates vs. Latest Cases Salonga vs. . Daniel Smith (February 2009): Petitioners contend that these undertakings violate another provision of the Constitution. III. 1. Sec. Cañete. nothing furthering his avowed evangelical mission." the adjudicatory bodies and the parties to a case are thus enjoined to abide strictly by the rules. except to the extent agreed upon. namely.The Court finds no violation of the Constitution because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions.12 As a result.e. The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction. Villanueva vs. They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused. Sec. For this reason. there is no denying that the questioned articles dealt with matters of public interest. If a matter is a subject of public or general interest. which also violates the equal protection clause of the Constitution (Art. but rather one in which. the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated. according to the situation of the parties involved.POLITICAL LAW REVIEWER Chapter XIII. in United States v.24 In the instant case. Philippine Daily Inquirer (15 May 2009) The rule on privileged communication had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press.). quasi-judicial and administrative bodies.

property or a property right protected by the due process clause of the Constitution because timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. (5) searches of automobiles at borders or constructive borders. as expressly recognized in the Constitution. which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. LATEST CASES People vs.POLITICAL LAW REVIEWER Chapter XIII. under like circumstances and conditions both as to privileges conferred and liabilities enforced. and drug laws. granting it and the person to whom it is granted. or municipal. nor does it create a vested right. all licenses may thus be revoked or rescinded by executive action. It is not a contract.’ In proper cases. (4) searches of moving vehicles. neither is it property or property rights. x x x Time and again. customs. but is subject to reasonable classification. . nor is it taxation. it merely requires that all persons shall be treated alike. x x x Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. neither is it a property or a property right. to wit: (1) consented searches. ON TIMBER LICENSE AND THE NON-IMPAIRMENT CLAUSE Alvarez substituted by Gozun (DENR) vs. and building regulations.end of Constitutional Law II - CONSTITUTIONAL LAW II been some instances wherein this Court allowed a relaxation in the application of the rules. must always be avoided." (7) searches of buildings and premises to enforce fire. federal. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. 120 . state. The granting of license does not create irrevocable rights. Their strict and rigid application. which would result in technicalities that tend to frustrate rather than promote substantial justice. PICOP (03 December 2009): A timber license is not a contract within the purview of the nonimpairment clause is edifying. but this flexibility was "never intended to forge a bastion for erring litigants to violate the rules with impunity. the Court has the power to suspend procedural rules in the exercise of its inherent power. as well as hostile discrimination or the oppression of inequality. Comelec (01 December 2009): The equal protection of the law clause in the Constitution is not absolute. Lopez (26 September 2008): There are eight (8) instances when a warrantless search and seizure is valid. Quinto vs. sanitary. practice and procedure in all courts. The equal protection of the law clause is against undue favor and individual or class privilege. Needless to say." A liberal interpretation and application of the rules of procedure can be resorted to only in proper cases and under justifiable causes and circumstances. (6) where the prohibited articles are in "plain view. Sison vs. PNCC (04 December 2009): (NOTE: Also involves Remedial Law) Unquestionably. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class. and (8) "stop and frisk" operations. and is not a contract between the authority. (2) as an incident to a lawful arrest. and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. if it applies alike to all persons within such class. (3) searches of vessels and aircraft for violation of immigration. If the groupings are characterized by substantial distinctions that make real differences. it is only a license or a privilege. A license is merely a permit or privilege to do what otherwise would be unlawful. this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. It does not demand absolute equality among residents. which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. one class may be treated and regulated differently from the other. A timber license is not a contract within the purview of the due process clause. procedural rules may be relaxed or suspended in the interest of substantial justice. to promulgate rules concerning ‘pleading.

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..... Archipelagic State ...................................133 III.. Exhaustion of Local Remedies . The Philippine Doctrine ...................................................... 144 E.... 144 C..... Breach............................... Sources of International Law ............ Parties Must Freely Give Consent 133 D........................................132 Chapter IV.... Doctrine of Transformation .. International Responsibility........... Exclusive Economic Zone ..... Is Fault or Malice Necessary? ..................132 A.............................. Other Sources.125 D...... Criminal Jurisdiction ................. 141 C.... Sovereignty .... Status of Norms ........ 140 Chapter VI. 141 C............................. 137 I. Continental Shelf............ 146 IV...............124 II.... Sovereignty and Jurisdiction ..... Registration with the UN.............. 143 A..........126 I... 143 II..................... Amendment or Modification of Treaty 135 VI....... Subjects and Objects of International Law 126 A..............128 Chapter III.. General Principle of Law.................... The Standard of Diligence ....125 A.... High Seas .... Authentication of the Text (Article 10.....124 I..... Territorial Waters .. 145 III.......................... Customary International Law .............. Internal Waters ................................ Concepts ....... Grounds for Termination..... Corollaries.... Reserved Domain of Domestic Jurisdiction . Expression of Consent to be bound by the Treaty (Article 11....... Diplomatic Protection (“Espousal of Claim”) .................... Dualist View ........................................................... 135 VII........ 141 II............... Actors of International Law . Jus Cogens or Peremptory Norms132 B........133 C..125 B............................... Doctrine of State Immunity .............................. 137 B.....POLITICAL LAW REVIEWER TABLE of CONTENTS PUBLIC INTERNATIONAL LAW Table of Contents Chapter I............ 135 Chapter V.......................134 D....................... Adoption (Article 9..........125 Chapter II....125 C............... Reservations ........ Distinguished from Maritime or Admiralty Law......... Attribution .. Treaty as Source of Law.............. Characteristics ................... Jurisdiction ........................................................ Individuals .133 B....... Subsidiary Source: Judicial Decisions 132 E........................ 138 B.............128 C.. The Law of the Sea . 139 A............................. 143 A......... Conduct Attributable to the State .... 137 A. Ratification in Accordance with the Constitutional Process of the Parties Concerned .............................. Subsidiary Source: Publicists .. Material Dates................ Definition ..133 B............... States. 138 IV...125 B.... 137 A. 141 A.. 135 V.......129 B..................... Monist View.... Contiguous Zone ............ The Law of Treaties ............................. Preliminaries .................... 146 A... VCLOT) ......................... 143 I............. Requisites for Validity.........................129 II. VCLOT) ............133 A..... 138 III...................................... Monist-Naturalist View ............. Sovereign Equality of States .. 141 B.....132 F......... 144 D........ Invalid Treaties .........129 I......................131 D........................................129 C...132 III...... Public International Law (PIL) ...................... 141 A.... The Norms of International Law .. 141 I........ Direct and Indirect Attribution ..................133 I.... 141 B.... 137 II.. Erga Omnes Norms .. Coordinationist View ........133 II......126 B.. International Organizations (IO)................... Limits of the Continental Shelf....129 A. 148 122 PUBLIC INTERNATIONAL LAW ....... 143 B........... Relationship between PIL and Municipal Law 125 A........................... 134 E... Forms of Reparation. VCLOT) .............. 140 B........... 135 VIII............... Philippine Law......................124 III............... Baseline ............................ 141 Chapter VII............ Contra-Distinctions................. Waters.... 138 B. Concepts ........ Object and Subject Matter Must be Lawful ....................... 144 B........................ Doctrine of Incorporation ...... Consequences of State Responsibility 138 A........................125 IV..........133 A......... Competence of the Representative/Organ Making the Treaty 133 C............ Treaty Making Capacity ....... The Treaty-Making Process ........ Negotiation................... Duty to Make Reparation................133 E... Circumstances Precluding Wrongfulness 139 V...... 135 IV............................................

............153 B. Personal Inviolability.......... Other Key Concepts .. Protected Persons ..157 III............................... Punishment..................... 167 C.... 162 A......................... Torture ..........149 A. Rights of the Child ................... War of National Liberation ...........................150 Chapter IX....... International Humanitarian Law ....................................149 B............ 161 X....... Application of the Four Geneva Conventions and the Two Additional Protocols ....... 166 D.... 163 E.....152 B................... Ranks..........................152 II........ Immunities and Privileges....... 163 D....................... Specific Norms in Human Rights ..... Settlement of Disputes ...... Sources of Law . Rights of the Coastal State over the Continental Shelf .....149 D................... 162 XI.................. Definition of “Armed Conflict” ........155 D...... Neutrality ........... 165 A...155 E... Landmark Cases .......................150 II.............. 160 B....................... The International Criminal Court ... 171 Appendix 2 ............ 168 I........ Common Provisions in the ICCPR and the ICESCR and differences ......154 A........158 VI................ General Rule...........152 A.......... Crimes within the Court’s Jurisdiction 162 B.............. 159 C.......................... 166 E.............. Diplomatic Immunities and Privileges165 A.............. 166 IV..149 B...........152 I.153 C................. 167 B.................................150 A...150 B............................................... 165 I............156 Chapter X.................................. 159 D...... 159 VII....................153 A.. Who May Use .......... IHL and Weapons of Mass Destruction...............157 II.... Immunity from Local Jurisdiction ....................159 A......... Jurisdiction of Court or Tribunal. 165 B............ Convention.158 IV. The Foreign Office.................... 161 IX.... Sources of Human Rights ... 162 C......... Protective Emblems ................ IHL and Non-International Armed Conflict 160 A........................................................ 163 123 .............................. Military Objective .......................154 D.... Misuse of the Emblem ..152 III...... Functions and Duties ............................. Agents of Diplomatic Intercourse......... Belligerency Status .. 165 C............................. Modes of Incurring Criminal Liability 163 C...................... The Use of Force in International Law........... VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE ................................ Definition of Concepts and Phrases........ 161 A......................... The Constitutionality of the Baselines Law 169 III............. 171 PUBLIC INTERNATIONAL LAW B............... Head of State......... Definition of Human Rights ....... 167 A................................... 160 VIII....... Right of Official Communication ........158 V...........150 I............ 159 F............................ Necessary Documents ..... Diplomatic Intercourse ............149 F......... Classification of Human Rights ...... 162 B.................................148 V.. Consular Relations.......... 165 B......... Common Article 3 and Protocol II.... Refugee Law........................ 165 III........... EEZ........ The Diplomatic Corps ............... Peaceful Settlement of Disputes .157 I..... Jurisdiction of ITLOS ...........155 C............... International Covenant on Civil and Political Rights (ICCPR) ........ Fundamental Principles of IHL............... Social and Cultural Rights (ICESCR) ................... Application of IHL .......... Daniel Smith and the Visiting Forces Agreement ...................... International Bill of Human Rights....... Rights with Respect to Continental Shelf vs.148 C... Recent International Law Issues in Philippine Law......Straight and Normal Baselines .......... Combatants............................ 167 Chapter XII.152 V........ Custom... 165 II.......... The Four Geneva Conventions and the Two Additional Protocols ... Universal Declaration of Human Rights (UDHR)......... Hors de combat ........................ 169 Appendix 1 ........ Martens clause ............... Applicable Laws in Settlement of Disputes by the ITLOS ......... Composition of the International Tribunal for the Law of the Sea (ITLOS)149 E......... Rules on the Use of Force ................ 161 C.. “Internationalization” of Human Rights 152 IV.... Control-of-Territory .. Exemption from Taxes and Customs Duties ....154 VI.........154 B.................................. International Human Rights Law .......................... Exceptions ......... 168 II.......................................................... Compulsory Settlement of Disputes 149 C.......................... Law against Discrimination .......Continental Shelf and the Maritime Zones............ Jus Ad Bellum v Jus in Bello ..........POLITICAL LAW REVIEWER TABLE of CONTENTS Chapter VIII.......... 159 E.........159 Chapter XI..... Inviolability of Premises and Archives 166 C.. Genocide..... International Covenant on Economic..

COORDINATIONIST VIEW IV. Other jurists. RELATIONSHIP BETWEEN PIL MUNICIPAL LAW A.POLITICAL LAW REVIEWER Chapter I. DOCTRINE OF TRANSFORMATION Ma. Contra-Distinctions Municipal Law deals with the conduct or status of individuals. Asked 1 time in the Bar)) Private International Law is that part of the laws of each State (conflict of laws rules) which determines whether in dealing with a factual situation involving a foreign element. corporations. norms and processes which regulates the relations of states and other international persons. private international law is national or municipal in character (note: character of norms being applied). and other ‘private’ entities within states. Florence Therese Martirez Maricris Real Lead Writers AND POLITICAL LAW Jennifer Go Subject Head 124 PUBLIC INTERNATIONAL LAW ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Jerome Leccio Committee Heads I. LECTURES COMMITTEE Micha Arias Cams Maranan Anj Sandalo Committee Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers BAR CANDIDATES WELFARE Da Salamat II. PIL is understood to be the body of principles. PIL. Preliminaries I. however. CONTRA-DISTINCTIONS III. have defined PIL as "a continuing process of authoritative decisions by authorized decision-makers. It is not just the reference to the trend of past decisions which are termed 'rules' but a matrix of norms and process that come into being through the interaction of authority and international reality (MAGALLONA). (vs. when authority and power coincide (HIGGINS). PRELIMINARIES Prof. MONIST VIEW B. DUALIST VIEW C. Jay Batongbacal Faculty Editor PUBLIC INTERNATIONAL LAW PUBLIC INTERNATIONAL LAW TEAM Chapter I. THE PHILIPPINE DOCTRINE A. PUBLIC INTERNATIONAL LAW II. and governs their conduct affecting the interests of States (MAGALLONA). MONIST-NATURALIST VIEW D. Unlike PIL which is international in character and origin. It even involves the recognition and enforcement of a foreign judgment from another jurisdiction. LOGISTICS Cha Mendoza SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members . DOCTRINE OF INCORPORATION B. and the rights of other entities insofar as they implicate the community of states (note: whom it governs). PIL may be distinguished therefrom in that it prescribes rules and processes that govern the relations of states with each other. the law or judgment of some other State will be recognized or applied in the forum (SALONGA). Public International Law (PIL) PRINTING & DISTRIBUTION Kae Guerrero DESIGN & LAYOUT Pat Hernandez Malds Menzon Viktor Fontanilla Rania Joya Traditionally.

C. Note: Executive Agreements shall be effective in the Philippines after they are ratified by the Chief Executive. rules of international law form part of the law of the land. before an international norm can have an effect within a municipal legal system. PUBLIC INTERNATIONAL LAW Although distinct.21. or adopted into the municipal system through a positive act by a State organ. This view considers international law to be superior.” B. Lantion. Dualist View International law and municipal law are separate systems.POLITICAL LAW REVIEWER Chapter I. Thus.VII. and that both systems are but a part of a higher system of natural law. with municipal law being a mere subset of international law. but municipal law is (generally) obliged to be in conformity with international law. PIL and Municipal are interrelated. Though these principles do not become part of the Constitution. The Philippine Doctrine A. and no further legislative action is needed to make such rules applicable in the domestic sphere. PRELIMINARIES III. (Exception: Customary International Law and General Principles of International Law) “Under the doctrine of incorporation.II.2. Sec. Only those problems affecting international relations are within the scope of international law. Relationship between Municipal Law PIL and IV. A treaty is “transformed” when a treaty is ratified after it has been concurred in by the Senate (Art.  Secretary of Justice vs. Below are the four theoretical views on how they are related (CARTER AND TRIMBLE): A. that norm must be transformed. After ratification. . Thus. Coordinationist View International law and municipal law operate in different spheres. Doctrine of Transformation The rule is different with respect to treaties. international norms are applicable within municipal systemseven without some positive act of the State. without need for Senate concurrence or ratification (BERNAS). Sec. These “generally accepted principles of international law” refer to norms that are binding upon all states (international customs and general principles of international law). Constitution). (2000) 125 B. D. Doctrine of Incorporation The Philippines “adopts the generally accepted principles of international law as part of the law of the land” (Art. they nonetheless become part of the Philippine legal system. and may be subject to judicial notice as law (MAGALLONA). Monist-Naturalist View PIL is superior to municipal law. a treaty shall be deemed as if legislated by our Legislature. Constitution). They have to be transformed in order to be part of Philippine law. Monist View International and municipal legal systems are fundamentally part of one legal order.

INDEPENDENCE OR SOVEREIGNTY 2. No minimum land area is required. GOVERNMENT iv. an Object of International Law is the person or thing in respect of which rights are held and obligations are assumed by the subject. and  having the capacity to maintain these rights by bringing international claims (Reparations for Injuries Advisory Opinion. REQUISITE ELEMENTS i. a. Once statehood is established. not directly governed by the rules of international law. Thus. therefore. States States remain the most important actors in international law. Art. both subjects and objects are considered actors in international law. 126 PUBLIC INTERNATIONAL LAW ii. Although no minimum number is provided. Note: Under the Rules on Succession of States. Burundi. Government Government is the physical manifestation of a state. some states were deemed states even before their governments were "very well organized" (ex. Territory A state must exercise control over a certain area. individuals are objects in respect of which human rights obligations are imposed upon States. an effective government is not always strictly necessary (BROWLIE). Poland. For example. SUBJECTS AND OBJECTS INTERNATIONAL LAW A.POLITICAL LAW REVIEWER Chapter II. the aggrieved person’s State of nationality may “espouse” his claim and invoke the erring state’s responsibility (see: Discussion on Diplomatic Protection in Chapter 5. Actors of International Law I. Government must be organized. A State is a quintessential example of a subject of international law. ACTORS of INTERNATIONAL LAW Chapter II. PEOPLE ii. with the collapse of their governments. so long as there exists a reasonable certainty of identifying it. already long-existing. “Effective” Government Although an effective government is the best evidence of the existence of a State.INTERNATIONAL ORGANIZATIONS OF entering into legal relations with other states(Montevideo Convention on the Rights and Duties of States. Part V).INDIVIDUALS C. through the instrumentality of an intermediate agency (the subject). Further. 1. STATES 1.1 [1933]). permanently living in a definite territory. A. It need not be exactly defined by metes and bounds. but they remained states. RECOGNITION B. Subjects and Objects of International Law Subjects of International Law refer to entities:  capable of possessing international rights and duties. It is. even changes of entire governments do not affect the identity and personality of the state. Its rights may be asserted and its responsibilities imposed indirectly. They are: iii. A state is defined as a group of people. neither invasion nor disorder alone can remove its character as a state (BROWLIE). 1949). happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion. they should be permanent. under an independent government organized for political ends and capable of . more or less numerous. Notwithstanding this distinction. and sufficient to maintain and perpetuate themselves. I. People The term “people” refers to an aggregate of individuals of both sexes who live together as a community despite racial or cultural differences. Afghanistan and Somalia were deemed failed states. The requirement of effective government is not strictly applied when the State. Requisite Elements i. exercising control over and capable of maintaining law and order within its territory. When an individual’s human rights is violated by another State. and Rwanda). By contrast. TERRITORY iii.

coup d’etat or other forms of internal violence until freely elected representatives of the people have organized a constitutional government (US President Woodrow Wilson. that is. Only “laws of political nature affecting political relations” are suspended ipso facto. The establishment of a de facto government does not by itself abolish all lawsand structures established by thedeposedgovernment. In its logical extreme.POLITICAL LAW REVIEWER Chapter II. and (3) Government established as an independent government by inhabitants of a country who rise in insurrection against the parent state. the re-establishment of the de jure government does not void the acts of the preceding de facto government. The Constitutive View (Minority View) posits that the political act of recognition is a precondition to the existence of legal rights of a state. Governments de facto & de jure A government de jureis a government from law. laws that enforce public order and regulate social and commercial life remain in effect unless they are changed by the de facto sovereign. legal personality having been previously conferred by operation of law (BROWNLIE). Important Doctrines:  Wilson/Tobar Doctrine(Asked 1 time in the Bar)– precludes recognition of government established by revolution. A government de facto is one that governs without a mandate of law. (2) Government by paramount force is that which results from the occupation of a state or a part thereof by invading forces in time of war." Thus. this is to say that the very personality of a state depends on the political decision of other states (BROWNLIE). been advanced that the fact that a State “may be acting under the direction of another State” is not of concern to international law (SALONGA). Declaratory View vs. 1913 and Ecuadorian FM. iv. Recognition Act by which a state acknowledges the existence of another state. The practice of states has been to ignore— so far as the issue of statehood is concerned—various forms of political and emotional blackmail and interference directed against the weaker members of the community. A state must be free from outside control in conducting foreign and internal affairs. one with a color of legitimacy. So long as it is in place. The de facto ruler may suspend laws and enact new ones. Independence or Sovereignty (Asked 1 time in the Bar) Refers to the capacity to enter into relations with other states. civil war. government or belligerent community and indicates willingness to deal with the entity as such under international law. 1907)  Stimson Doctine – precludes recognition of any government established as a result of external aggression (US Sec. 2. (Asked 1 time in the Bar). however. Conversely. it may command obedience from the inhabitants of the occupied area. 1930) . 1932)  Estrada Doctrine(Asked 1 time in the Bar) – dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government (Mexican Minister Genaro Estrada. of State Henry Stimson. It has. Three kinds of de facto government: (1) Government de facto in the strict legal sense is that which usurps – either by force or the will of the majority – the legal government and maintains and control against it. it is sufficient for a State to possess external appearanceof capacity to enter into international relations (BROWNLIE). ACTORS of INTERNATIONAL LAW b. Constitutive View 127 PUBLIC INTERNATIONAL LAW The Declaratory View (Prevailing View) posits that recognition is a mere declaration or acknowledgement of an existing state of law and fact.

Right to sue in courts of recognizing state 3. Capacity to Bring a Claim for Reparation  An IO such as the United Nations (UN) must be deemed to have such powers which. between the organization [and] its member states. It must have legal powers that it may exercise on the internationalplane and not solely within the national systems of one or more states. All acts of the recognized state or government are validated retroactively. Individuals While States are have traditionally been deemed to be subject of international law. Diplomatic relations 2.” Further. its constituent rights and duties. or capacities and immunities. and III. (This will be discussed further in the Chapter on Human Rights) C. ACTORS of INTERNATIONAL LAW Effects of Recognition: 1. Right to possession of properties of predecessor in the recognizing state 4. are conferred upon it by necessary implication as being essential to the performance of its duties. International Organizations (IO) The status and powers of an IO is determined by agreement and not by general or customary international law. 2. though the UN Charter did not expressly clothe the UN with the capacity to bring an international claim for reparations. individuals have likewise become in some degree subjects of that law. II. 128 PUBLIC INTERNATIONAL LAW B. Preconditions Personality of IO I. . ¶147). 1. IO’s are considered subjects of international law “if their legal personality is established by their constituent instrument (charter). for International It must constitute a permanent association of states. with lawful objects. in terms of legal powers and purposes. equipped with organs. preventing the recognizing state from passing upon their legality in its own court. the UN nevertheless possessed functional personality (Reparations for Injuries Advisory Opinion.  IO’s are deemed to have powers not expressly granted in their charters where these unstated powers are either  implicitly bestowed in their charters or  necessary to effect powers expressly granted. Thus.POLITICAL LAW REVIEWER Chapter II. are limited to those set forth in the treaty creating the international organization” (MAGALLONA). though not expressly granted in its Charter. There must be a distinction.

the order the enumeration does not provide a hierarchy in all cases. for purposes of international law. etc.  International Custom. Material sources supply the substance of the rule. DUALITY OF NORMS C.  Concepts Formal Sources vs. the term “treaty” includes all agreements between states.2(1).(Art. it requires the concurrence of 2 elements: (1) State Practice and (2) Opinio juris. exchanges of notes. upon the other hand. Thus. regardless of how they are called. 21. SUBSIDIARY SOURCE: JUDICIAL DECISIONS E. Customary International Law Norms of international law are those that result from a general and consistent practiceof states which they follow under a sense of legal obligation. Although they are equally binding. SUBSIDIARY SOURCE: PUBLICISTS F. CUSTOMARY INTERNATIONAL LAW 1. TREATY AS SOURCE OF LAW B. Vienna Convention on the Law of Treaties (VCLOT))  Under the VCLOT. as evidence of a general custom accepted as law. Sec. No state may be bound by a treaty obligation unless it has so consented [Pacta tertiis nec nocet nec prosunt ](Art. CONCEPTS SOURCES OF INTERNATIONAL LAW A. Subsidiary Sources:  Judicial Decisions. Material Sources Formal sources consist of the methods and procedures for the creation of rules of general application which are legally binding upon States. Customs and General Principles (Primary Sources) create law. whether general or particular. Lex ferenda Lex lata – what the law is Lex ferenda – what jurists think the law should be or will become   II. they are not ipso facto superior to customs and general principles. Treaty as Source of Law A 'treaty' means an international agreement concluded between States in written form and governed by international law. although treaties are mentioned first. The NORMS of INTERNATIONAL LAW Chapter III. As a general rule. VCLOT). while court decisions publicists’ teachings constitute evidence of what is the law. executive agreements. however. Note. II. establishing rules expressly recognized by the contracting states (Treaties). treaties do not bind nonparties to the treaty I. ELEMENTS 2. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation" (Art. are the substantive evidence of the existence of the norms. B. ERGA OMNES NORMS   A. 34. treaties. only treaties require the concurrence of the Senate to be effective.26. PUBLIC INTERNATIONAL LAW Treaties. VCLOT). are all treaties. and  Teachings of the most highly qualified publicists of the various nations (Art. STATUS OF NORMS A.POLITICAL LAW REVIEWER Chapter III. that Philippine law makes a distinction between treaties and executive agreements.  Treaties shall be further discussed on the Chapter on the Law of Treaties. 1987 Constitution) A state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith [Pacta sunt servanda](Art. Sources of International Law (Asked 1 time in the Bar) Primary Sources:  International Conventions. The Norms of International Law I. With respect to the three primary sources. GENERAL PRINCIPLE OF LAW D.  Lex lata vs. Treaty Obligation is based on consent. For custom to exist. while formal sources confer upon it the force of law. JUS COGENS OR PEREMPTORY NORMS B. 7. 129 . OTHER SOURCES III. ICJ Statute).  General Principles of Law recognized by civilized nations. SCOPE 3. 38. Material sources. Thus.

Recitals in treaties and international instruments h. (Montebon v. They have no binding effect under the Charter. Human Rights as defined under the Universal Declaration of Human Rights (Reyes v. The principle of restrictive sovereign immunity (Sanders v. and from courtesy or protocol. The principle that judicial acts not of a political complexion of a de facto government established by the military occupant in an enemy territory. by permission of its government or sovereign. (Noceda v. Veridiano. ii. In cases it has decided. Bagatsing. Note: It is not a “maxim. Opinions of official legal advisers e. 130 PUBLIC INTERNATIONAL LAW . The right of a citizen to return to his own country (Marcos v. 1989) 7. 1949) 2. 1988) 5. 1983) 6. Fernandez. Elements i. the ICJ has indeed recognized the possibility of regional custom (Asylum Case) and of bilateral custom (Right of Passage over Indian Territory Case). Bagatsing. Diplomatic correspondence b. (1) Consistency requires substantial uniformity. The principle that private property seized and used by the enemy in times of war under circumstances not constituting valid requisition does not become enemy property and its private ownership is retained. a right not limited to its own territory but extending to the high seas (Asaali v. The absence of protest could be considered evidence of the binding nature of customary practice (AKEHURST). Opinio juris sive necessitatis Refers to the belief on the part of States that a particular practice is required by law. The principle that “a foreign army allowed to march through friendly country or to be stationed in it. save in limited fields like budgetary concerns. from comity. 1945) 8. 1984) 3. Policy statements c. However. 1950) 10. The principle that a State has the right to protect itself and its revenues. State Practice For custom to exist. Escobar. 2. subject to the Persistent Objector rule. The principle in diplomatic law that the receiving State has the special duty to protect the premises of the diplomatic mission of the sending State (Reyes v. 1947) 9. and not necessarily complete uniformity in practice. 1968) 1. Bradford. Jalandoni. Director of Prisons. Practice of international organs UN General Assembly Resolutionsare generally just recommendations. government comments on drafts by the ILC) f. Commissioner. It is the existence of opinio juris that distinguishes binding custom from mere usage. is valid under international law. the enemy having acquired only its temporary use. Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention (Kuroda v. (2) Generality likewise does not require universality. Official manuals on legal decisions (executive decisions and practices.POLITICAL LAW REVIEWER Chapter III. International and national judicial decisions g. Scope Custom may be: General  binding upon all or most statesor Particular  binding between only two or among a few states.such resolutions may nonetheless be an evidence of state practice that is relevant in the development of custom. Manglapus. the customary practice must be both consistent and general. 1983) 4. customary norms are legally binding upon states regardless of whether they consent. is exempt from criminal jurisdiction of the place”. Acts Evidencing State Practice (HARRIS): a. The NORMS of INTERNATIONAL LAW  Unlike treaties. Pacta sunt servanda (La Chemise Lacoste v.” it is an element required in order for custom to come into fruition. (Raquiza v. Norms or Principles of Customary International Lawas Identified by the Philippine Supreme Court as forming part of Philippine Law 1. Press releases d.

however. separate corporate personality (Barcelona Traction Case). ¶62-63). a state that cannot hold a state responsibility for a breach of a treaty obligation can still hold the erring state responsible for the breach of the identical customary norm (See Nicaragua vs. In some instances they have examined different legal systems. General Principle of Law Refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states (OPPENHEIM). The treaty must be law-making. the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to support a customary rule (BROWNLIE). prescription. 131 PUBLIC INTERNATIONAL LAW   C. by such persistent objection the norm will not be applicable as against that State. Norms of dual character come into being through any of the following ways: a. Examples: 1. The Prohibition against the Use of Force). it being sufficient that such principle is found in a number of legal jurisdictions (ROQUE). they merely declared a principle in municipal law as constituting a general principle of international law.  For a treaty provision to crystallize into custom. which showed that the Temple of Preah Vihear was within Cambodian territory (Temple of Preah Vihear Case). Circumstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized by international decisions. The customary norm retains a separate identity even if its content is identical with that of a treaty norm. must consist of a series of facts or events that lead to a single conclusion. pacta sunt servanda.POLITICAL LAW REVIEWER Chapter III. principle of reciprocity. in others. US Case. c. The number of parties. . It is thereby precluded from questioning Annex I thereof. Such norms are said to be of dual character. the explicit acceptance of rules of law. Duality of Norms It is possible for a norm of international law to exist both as a customary norm and a conventional norm(ex. it is deemed to have accepted said treaty.When a State has continuously objected to a new customary norm at the time when it is yet in the process of formation. Unlike custom. they can be used to prove a fact to the satisfaction of the court(Nicaragua vs. res judicata. the provision must be normcreating. creating legal obligations which are not dissolved by their fulfilment. Thus. it does not require to be supported by state practice that is consistent and virtually uniform. A treaty provision may simply restate a customary norm (as is true of many of the provisions in the VCLOT.(Corfu Channel Case) 3. and. Jurisdictional Principles – The power of a tribunal to determine the extent of its own jurisdiction (competence de la competence). b. the Treaty of 1904 for 50 years. when they demonstrate matters of public knowledge which have received extensive press coverage. Principles in Roman Law – estoppel. When Thailand did not object to. 2. and has in fact benefited from. in some cases. Procedural Rules – the use of circumstantial evidence. 3. The NORMS of INTERNATIONAL LAW The Persistent Objector. Such circumstantial evidence. hearsay evidence (press reports). Every breach of an engagement (international obligation) entails the obligation to make reparation. A treaty provision may crystallize into a customary norm. and. 4. Substantive – duty to make reparations. A treaty provision may constitute evidence of custom. US Case). res inter alios acta. Note: International tribunals have not been consistent in their manner of determining whether a principle in municipal law constitutes a general principle. The amount of reparation required is that amount which is necessary to bring the injured party back to the situation had the wrong not occurred [The Standard of “Full” Reparations] (Chorzow Factory Case). Press reports can be used to corroborate the existence of a fact.

Be that as it may. Subsidiary Source: Publicists Writings of highly qualified publicists likewise constitute evidence the state of the law. Erga Omnes Norms International obligations of such character and importance that:  their violation by any state allows any other state to invoke the violator's liability. it would be void. but of all states (i. unilateral declarations bind the State that makes them. though. Preliminary note: International law does not follow the rule on stare decisis. decisions of international tribunals exercise considerable influence as impartial and well-considered statements of the law by (qualified) jurists made in light of actual problems. Ihlen declared verbally to the Danish Minister that ". the grant of standing to sue because of violations of an erga omnes obligation is premised on the idea that the maintenance of some norms are of interest to the entire world community. Nils Claus Ihlen. their violation being an injury to the interest. It has often been applied in cases involving territorial disputes and maritime delimitations. In the Eastern Greenland case. The NORMS of INTERNATIONAL LAW D. may have the effect of creating legal obligations. . Nothing in the nature of a quid pro quo. b. 132 PUBLIC INTERNATIONAL LAW III.53. The problem. b. In the Barcelona Traction Light and Power Co. Subsidiary Source: Judicial Decisions a..POLITICAL LAW REVIEWER Chapter III. nor even any reaction from other states is required for such declaration to take effect. since it had bound itself to do what Australia and New Zealand wanted.38(1)(d) makes reference to) expressly limits the effect of a decision only to the parties to the case. Government respecting Danish sovereignty over the whole of Greenland would be met with no difficulties on the part of Norway. Status of Norms A. but that Norway was further bound by the Ihlen Declaration not to oppose Denmark’s claim. When a treaty provision violates jus cogens norms. outlawing acts of genocide or aggression). Unilateral Declarations declarations made by way of unilateral acts. VCLOT). France declared that it would cease atmospheric nuclear tests.e. F. Decisions of international tribunals constitute evidence of the state of the law (BROWLIE). Ex Aequo et Bono the court may apply this standard of “what is equitable and good” to decide a case when the parties to the dispute so agree. Equity  refers to the application of standards of justice that are not contained in the letter of existing law.. Art.  even if only one state or only a few incurred direct material damage." Also in the Nuclear Test cases. not only of the state directly offended. concerning legal or factual situations. Jus Cogens or Peremptory Norms Refer to norms accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of such character (Art. is that some publicists may be expressing not what the law is (lex lata). on the topic of Denmark's sovereignty over Greenland. Verily. the ICJ held that Denmark not only had a superior claim over the contested territory. which Mr. Other Sources a. The Ihlen Declaration is a statement made by the Norwegian Foreign Minister. E.the plans of the Royal [Danish] B. and a subsisting treaty provision shall be voided by the emergence of a new jus cogens norm.  It usually has to do with issues on standing. Case. but what they think the law should be or will be (lex ferenda). c. This signaled that there had ceased to be a dispute. nor any subsequent acceptance. 59 of the ICJ State (which Art.

Object and Subject Matter Must be Lawful E. Such a person is called a plenipotentiary. however. VCLOT)  Under the VCLOT. Adjusts details to carry out wellestablished national policies and traditions 3. exchanges of notes.POLITICAL LAW REVIEWER Chapter IV. Political Issues 2. Definition Full Powers– refers to the authority of a person to sign a treaty or convention on behalf of a state. executive agreements. Implements treaties. head of government or foreign minister must produce such instrument in order to sign a treaty binding their government. Sec. SIGNATURE 2. ADOPTION C. The Law of Treaties I. Changes in national policy 3. although limited by the organization’s purpose. Competence of Representative/Organ Making Treaty  Generally exercised by the head of state. It is preparatory to the authentication of the text of the treaty and to its signature. EXCHANGE OF INSTRUMENTS OF RATIFICATION E. Transitory effectivity 2. AMENDMENT OR MODIFICATION OF TREATY VI. policies Does not require concurrence by Senate to be binding III. THE TREATY-MAKING PROCESS A. Subject Matter B. the the I. for purposes of international law. regardless of how they are called. 133 PUBLIC INTERNATIONAL LAW B. DEFINITION II. Both are equally binding. Negotiation State representatives discuss the terms and provisions of the treaty. or it was induced by fraud. GROUNDS FOR TERMINATION II. Plenipotentiary .Persons other than the head of state. NEGOTIATION B. The LAW of TREATIES Chapter IV. Parties Must Freely Give Consent  If consent was given erroneously. Treaty Making Capacity  Possessed by all states as an attribute of sovereignty. A 'treaty' is:  an international agreement  concluded between States  in written form and  governed by international law. the treaty shall be voidable. D. treaties. Requisites for Validity A. International organizations also possess treaty-making capacity. INVALID TREATIES VIII. Adoption (Article 9. Thus.2(1). VCLOT) It means that the form and content have been settled by the negotiating States. RESERVATIONS VII. Temporary 4. CONSENT 1. that Philippine law makes a distinction between treaties and executive agreements. VII. Involves international agreements of a permanent character Requires ratification by the 2/3 of the Senate to be valid and effective (Art. Treaty 1. are all treaties. statutes. The Treaty-Making Process A. REGISTRATION WITH THE UN IV. RATIFICATION D.  whether embodied in a single instrument or in two or more related instruments and  whatever its particular designation(Art. Ratification in Accordance with the Constitutional Process of the Parties Concerned Executive Agreements 1. 21) C. the term “treaty” includes all agreements between states. PHILIPPINE LAW ON TREATIES V. Ratification . REQUISITES FOR VALIDITY III. Note. but only treaties require the concurrence of the Senate to be effective. etc.

VCLOT) Consent to be bound by the terms of a treaty may be expressed through: 1. D.14(1). By any other means agreed by the parties 134 PUBLIC INTERNATIONAL LAW 3. ratification is necessary when (a) the treaty provides for such consent to be expressed by means of ratification. VCLOT). when the intent was to make it subject to ratification. VCLOT) It means that the stage where the definitive text of the treaty is established as the correct and authentic one. Exchange of instruments Constituting the Treaty Acceptance Approval Accession . a treaty shall be deemed as if legislated by our Legislature. becomes a party to a treaty of which it is not a signatory and in the negotiation of which it did not take part.12(1). 6. Ratification. sometimes in conjunction with the legislature. Sec. when the negotiator is authorized to sign the treaty.21. that is. Signature. treaties have to be transformedin order to be part of Philippine law. A treaty is “transformed” when a treaty is ratified after it has been concurred in by the Senate (Art. (b) it is otherwise established that the negotiating States agreed that ratification should be required.VII. Doctrine of Transformation.POLITICAL LAW REVIEWER Chapter IV. under certain conditions. VCLOT. Expression of Consent to be bound by the Treaty (Article 11. or  Under international law. .the method by which a State.Signature alone would be sufficient to bind the state to the obligations under the treaty if (a) the treaty provides that signature shall have that effect. The LAW of TREATIES C. Authentication of the Text (Article 10. (c) the representative of the State has signed the treaty subject to ratification (Art. 5. 4. (b) it is otherwise established that the negotiating States agreed that signature should have that effect. or (c) if the State can be shown to have had the intention to be bound by the signature (look at full powers of its representative) 2. the formal consent to the treaty given by the Head of State. In Philippine Law. Constitution). Art. After ratification. 7.

Where the reservation is incompatible with treaty’s object and purpose (Reservation to the Genocide Conventions Advisory Opinion). V. provided that such fact formed an essential basis of a state’s consent to be bound. 1. or 3. Change is so substantial that the foundation of the treaty has altogether disappeared ii. Amendment or Modification of Treaty General Rule: Consent of all parties is required.62. Philippine Law In the Philippines. Invalid Treaties 1. Expiration of the term. 7. Fundamental Change of Circumstance (Rebus sic stantibus) (Art. 5. 6. VII. or withdrawal of a party in accordance with the treaty. sued local counterfeiters before Philippine courts. 2. treaties must receive the concurrence of the Senate before they may be effective. Doctrine was invoked within a PUBLIC INTERNATIONAL LAW La Chemise Lacoste v. and it would frustrate the object of these conventions if Lacoste is barred from filing its claims directly in Philippine courts. If the treaty violates a jus cogens norm of international law (void). If the conclusion of a treaty is procured by threat or use of force (void). If consent was obtained through fraudulent conduct of another negotiating state. Grounds for Termination VI. Error of fact. Under Art. Material breach or violation of treaty 9. Fernandez: Lacoste. 6. If consent was given in violation of provisions of internal law regarding competence to conclude treaties that is manifest and of fundamental importance. 7. Change was not caused by the party invoking the doctrine iv. 2. The LAW of TREATIES E. 2. 8. Requisites: i. Mutual agreement of parties. Extinction of a party to the treaty. Sec.VII. VIII. 5. Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: 1. Registration with the UN IV. provided:  the restriction was notified to the other negotiating States  prior to the representative expressing such consent. subject to concurrence of the Senate. Supervening impossibility of performance. 3. a French corporation. VCLOT). 135 . Loss of subject matter.21(Treaty Clause) of the Constitution. 3. Where the treaty expressly prohibits reservations in general. When the counterfeiters challenged its legal personality to sue before Philippine courts. two States may modify a provision only insofar as their relationship inter se. 4. the Court held that the Philippines has ratified international conventions for the protection of intellectual property. VCLOT) A contracting state may unilaterally withdraw from a treaty when a vital or fundamental change of circumstance occurs such that the foundation upon which its consent to be bound initially rested has disappeared. Reservations Definition:A unilateral statement made by a state upon entering a treaty whereby it purports to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state (Art. Conclusion of a subsequent inconsistent treaty. Exception:If the treaty itself so allows. If the representative of a state was corrupted to consent by another negotiating state. when the treaty rights and obligations would not devolve upon the successor-state. Denunciation or desistance by a party. Where the treaty expressly prohibits that specific reservation being made.19. If the representative consented in violation of specific restrictions on authority.POLITICAL LAW REVIEWER Chapter IV. 4. the negotiation of treaties and their ratification are executive functions. Change was unforeseen or unforeseeable at the time of the treaty’s perfection iii.

conflicting treaty. Doctrine cannot operate retroactively (it must not adversely affect provisions which have already been complied with prior to the vital change) 10. 11.POLITICAL LAW REVIEWER Chapter IV. 136 PUBLIC INTERNATIONAL LAW . 12. The Four Geneva Conventions). unless the treaty relates to the conduct of war (ex. Severance of diplomatic relations (if such relationship is indispensable for the treaty’s application). Jus Cogens Application: Emergence of a new peremptory norm of general international law which renders void any existing. Outbreak of war between the parties. Treaty’s duration is indefinite vi. The LAW of TREATIES reasonable time v.

SATISFACTION 4. (2) If they are not officers. BREACH A. It had the means to fulfill them. Those who subscribe to the Doctrine or Objective (or Strict) Liability hold that fault or malice is unnecessary to engage the responsibility of the state. IS FAULT OR MALICE NECESSARY? B. CONSEQUENCES OF STATE RESPONSIBILITY A.POLITICAL LAW REVIEWER Chapter V. . Is Fault or Malice Necessary?  The issue of whether the failure to fulfill a binding obligation must be coupled with fault or malice is a contested area in international law. Requisites to Engage the Responsibility of a State  A binding obligation and a failure to fulfill that obligation (breach)  The act or omission is attributable to the she state  The Relativist view holds that circumstances affecting a State’s ability to perform its duties would be relevant in determining the degree of diligence that must characterize its performance of its obligations. II. International Responsibility I. Where due diligence is relevant. ii. and the State maliciously or negligently fails to do so. ii. Thus. (1) when they are State organs or agent acting under color of authority. iv. THE STANDARD OF DILIGENCE II. 137 PUBLIC INTERNATIONAL LAW B. DIPLOMATIC PROTECTION (“ESPOUSAL OF CLAIM”) A. When due diligence or liability for culpa is stipulated in a treaty. The Objective view holds that the State’s ability to fulfill is irrelevant. is a state’s ability to fulfill an obligation relevant? Every internationally wrongful act of a State entails the international responsibility of that State. iii. When the breach results from acts of individuals not employed by the state or from the activities of licensees or trespassers on its territory. The Standard of Diligence  A state breaches its international obligation if it fails to exercise the due diligence which could reasonably have prevented the conduct that caused the injury. a State breaches its obligation only if: i. in which case responsibility may result from culpa in executing these lawful activities. I. it being sufficient that there is a causal connection between the act done and the injury suffered (or how “remote” the injury suffered is from the act perpetrated). When determining the amount of the damages. MATERIAL DATES B. the State is nonetheless liable when the state adopts the acts of individuals or (3) when it is negligent in preventing or in punishing the acts. CIRCUMSTANCES PRECLUDING WRONGFULNESS V. DECLARATORY RELIEF IV. CONDUCT ATTRIBUTABLE TO THE STATE III. RESTITUTION 2. and its wrongfulness is not affected by a contrary characterization in domestic law. Whether an act is “international wrongful” or not depends upon international law. FORMS OF REPARATION 1. ATTRIBUTION A. or has an international obligation to exert efforts to prevent certain acts. iii. EXAMPLE: When a State is bound by a duty to prosecute. the theory of culpa may be relevant in certain special situations. Breach A. It is aware of its obligation. such as: i. EXHAUSTION OF LOCAL REMEDIES Though the general rule for determining liability is objective responsibility. DIRECT AND INDIRECT ATTRIBUTION B. Attribution A State becomes liable for the acts of individuals. Yet it failed to do so (Tehran Hostages Case). When a state engages in lawful activities. INTERNATIONAL RESPONSIBILITY Chapter V. COMPENSATION 3. DUTY TO MAKE REPARATION B.

Forms of Reparation  Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution.35. To offer appropriate assurances and guarantees of non-repetition(Art. Conduct acknowledged and adopted by a State as its own (Art. 2.30. when done withapparent authority or in their official capacity. Injury includes any damage. and (iii) the State endorses as its own the acts of the individuals. if it is continuing. ASR)  The acts of public officials. whether it is the organ of the central government or a local unit of the State. ASR) 6. ASR). 2. ASR). 8. whether material or moral. Failure to Exercise Due Diligence  A State becomes indirectly responsible when it has an international obligation to prevent the internationally wrongful acts of individuals under its control. B.8. either singly or in combination (Art.  The conduct of a State organ is an act of that State. whatever position it holds in the organization of the State. not for the act itself. NOTE: While a breach gives rise to state responsibility. ASR)  When a State “adopts” the acts of individuals as its own. ASR) NOTE: Where the insurrectional movement does not succeed.11. agents in performing the offending acts. executive act.4. Indirect – the State becomes liable for being negligent in preventingor punishing the internationally wrongful conduct. even when these acts are beyond their authority or contravene superior orders 5. its conduct shall not be attributable to the State. Conduct carried out in the absence or default of official authorities (Levee en masse) (Art. The responsible State is under the obligation to make full reparation for the injury cause by the internationally wrongful act. are imputable to their State. Ultra vires conduct (Art.6. Duty to Make Reparation (Asked 1 time in the Bar) Every breach on an international obligation involves the duty to make reparations.  . Consequences Responsibility of State The responsible State is under the obligation: 1. Conduct of persons or entities not being state organs but exercising elements of government authority (Para-Statal Entities) (Art. Conduct of State organs (Art. it becomes responsible therefor. and 2. (ii) the individuals effectively act as III. law.9. whatever the function of that organ. is invalid. ASR) 3. Direct and Indirect Attribution 1. and (ii) Specific Restitution – restitution in kind. the duty to make reparations is the consequence of state responsibility. Conduct Attributable to the State 1.10.5. ASR)  Wiping out all the consequences of the breach. Direct – State is liable for an act imputable to it that breaches an international obligation.34.  Re-establishing the situation which would probably have existed had the wrongful act not been committed. ASR) 4. or other. Restitution (Art. 9. INTERNATIONAL RESPONSIBILITY A. Restitution could take the form of: (i) Legal Restitution – the declaration that an offending treaty. compensation and satisfaction. Conduct of organs placed at the disposal of a State by another State (Art. A. 138 PUBLIC INTERNATIONAL LAW B. Adoption occurs when (i) the State encourages these acts.POLITICAL LAW REVIEWER Chapter V. To cease the act.7. and the State maliciously or negligently fails to do so. Conduct directed or controlled by a State (Art. Conduct of an insurrectional movement that becomes the new government of the State (Art. 1. Articles of State Responsibility (ASR))  Refers to any person or entity that is considered as such under its domestic law. ASR) 7.

disputes over territory).POLITICAL LAW REVIEWER Chapter V. however. The object is not to give satisfaction for the wrong received (BROWNLIE) V. ASR) 5. Consists of the invocation by a State. is distinguishable from compensation on the basis of their intention. while compensation is intended to repair the injury caused. the proper way to deal with a dispute (ex. ASR) . and ii.23.   4. necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State. It is. Pecuniary satisfaction. ASR). Apology and other acknowledgment of wrongdoing. 6. 139 PUBLIC INTERNATIONAL LAW 3. Exception: When the State caused the distress or the act in question will cause a greater peril (Art. Satisfaction may also be in pecuniary form. INTERNATIONAL RESPONSIBILITY 2. and  the tribunal would award damages to the State(OPPENHEIM). Circumstances Wrongfulness Precluding 1. or of the international community as a whole c. Diplomatic Protection (“Espousal of Claim”) DEFINITIONS. The obligation violated must not be of peremptory character.20. The act was the only way to safeguard an essential interest from a grave and imminent peril b. Author of the wrongful act has no other reasonable way. Punishment of individuals concerned. Except when: a. Act done in compliance with the offender State's obligations under a peremptory norm (Art. Act was a countermeasure taken against the another State (Art. The award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it (Chorzow Factory Case).23. Taking measures to prevent a recurrence of the wrong. or the parties deem it to be. In such cases. 4. ii. The means to avert the peril must be absolutely necessary to avert the danger e. Act was done in due to a state of necessity (Art. Act must not seriously impair an essential interest of the State or States to which the obligation breached is owed. Compensation (Art. Wronged State consented to the act that caused injury (Art. 25)  As a general rule. The value in which a restitution in kind would bear.  of the responsibility of another State  for an injury caused by an internationally wrongful act of that State IV.36.22.  Pecuniary satisfaction is meant to be a token of regret and acknowledgement of wrongdoing (a monetary "sorry"). Act was done in self-defense (Art. ASR) 3. ASR) 7. in a situation of distress. The amount thereof must correspond to: i. It may consist of: i.24. or 2. the responsible State is under the obligation to render satisfaction.37. A procedure whereby the State asks relief  for the violation of the rights of the State  through the harm done to its citizens.21. to save his life or the life of a person entrusted to his case. Declaratory Relief Tribunals may give declaratory judgments when: 1. The existence and imminence of such a peril must be duly established d. through diplomatic action or other means of peaceful settlement. Satisfaction (Art. the act shall remain wrongful. ASR) 2. ASR)  Insofar as the injury suffered by the offended State is not made good by restitution or compensation. ASR)  The payment of money as valuation of the wrong done. Act was done due to force majeure (Art. and iii.

iii. DADP). Determining nationality is a matter of domestic law.4. that State shall be regarded as the State of nationality (Sec. There are no reasonably available local remedies to provide effective redress. B. Mavromattis case: the primary nexus for diplomatic protection is nationality. or v. The exhaustion of local remedies is a precondition before a State may present an international claim in behalf of its injured national.3(1). it is only through a State’s espousal of its national’s claims that the individual to the international scene upon its discretion. in accordance with the law of that State. However. There is undue delay in the remedial process which is attributable to the State alleged to be responsible. There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury. iv. is given Exceptions: i.1. The decision whether to espouse a claim or not is entirely for the State to determine. The State entitled to exercise diplomatic protection is the State of Nationality (Sec. Nottebohm failed to satisfy the test. A Corporation’s State of nationality pertains to the State under whose law the corporation was incorporated. by birth. When a person. Continuity is presumed if that nationality existed at both these dates (Sec. succession of States or in any other manner. descent. not inconsistent with international law (Sec. however. DADP). DADP). naturalization. Exhaustion of Local Remedies  Local remedies refers to the legal remedies which are open to an injured person before the judicial or administrative courts or bodies. A natural person’s State of nationality pertains to the State whose nationality that person has acquired. 2. of the State alleged to be responsible for causing the injury. In this case.4. whether ordinary or special. DADP). Even though he was a national of Liechtenstein. Material Dates  A State is entitled to exercise diplomatic protection in respect of a person who was a national of that State continuously from the (1) date of injury to the date of the (2) official presentation of the claim. INTERNATIONAL RESPONSIBILITY   to a natural or legal person that is a national of the former State with a view to the enforcement of such responsibility (Sec. Guatemala was not bound to recognize such citizenship because he merely had a citizenship of convenience (not a genuinelink to Liechtenstein). or the local remedies provide no reasonable possibility of such redress. ii.  140 PUBLIC INTERNATIONAL LAW 1. when the corporation is  controlled by nationals of another State or States and  has no substantial business activities in the State of incorporation.    . The State alleged to be responsible has waived the requirement that local remedies be exhausted.5. Draft Articles on Diplomatic Protection). the case now goes into the realm of international law.POLITICAL LAW REVIEWER Chapter V. The injured person is manifestly precluded from pursuing local remedies. and  the seat of management and the financial control of the corporation are both located in another State.  A. The test for the nationality of a person is the most significant link. nationality by 2 states. An injury to the national is also an injury to the State Amvatielos case: Since individuals are not within the jurisdiction of an international court. Nottebohm Case: Other states are not bound by another's claim of nationality.

Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States [UN GA Res. including its power to exercise legislative jurisdiction. DOCTRINE OF STATE IMMUNITY II. C. Sovereignty and Jurisdiction I. Each State has the right freely to choose and develop its political. The reservation of this domain. Each State enjoys the rights inherent in full sovereignty. Corollaries 1. social. according to which a state may not . Inalienable 6. and property are immune from judicial process of another state. Passive Personality Principle – a court has jurisdiction if the victim is a national of the forum state.2625(XXV)]).(S. and the power to acquire title to territory (BROWNLIE). 141 PUBLIC INTERNATIONAL LAW A. notwithstanding differences of an economic. Sovereign Equality of States All States enjoy sovereign equality. SOVEREIGNTY and JURISDICTION Chapter VI. Territoriality Principle – jurisdiction is determined by reference to the place where the crime is committed. Comprehensive 4. The territorial integrity and political independence of the State are inviolable. 4. 5. Sovereignty has also been used to refer to the general legal competence of states. II. RESERVED DOMAIN OF DOMESTIC JURISDICTION C. 1922) I. social. Protective Principle – court is vested with jurisdiction if a national interest is injured. Each State has the duty to respect the personality of other States. Lotus Case) 5.POLITICAL LAW REVIEWER Chapter VI. economic and cultural systems. 3. Jurisdiction  State jurisdiction is the power of a state under international law to govern persons and property by its municipal law. Imprescriptible B.S. 2.For example. CORROLARIES JURISDICTION A. This principle is premised on juridical equality of states. Characteristics (CRUZ): 1. Universality Principle – jurisdiction is asserted with respect to crimes considered committed against the whole of humanity (hostes humani generis). Lo-lo and Saraw. Absolute 5.   Sovereignty Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is governed (CRUZ). A.e. SOVEREIGN EQUALITY OF STATES C. piracy in the high seas. 2. CHARACTERISTICS B. 3. B. 4. Criminal Jurisdiction BASES: 1. its agents. when a norm crystallizes into custom). 6. States are juridically equal. Exclusive 3. (MAGALLONA) Domestic courts must decline to hear cases against foreign sovereigns out of deference to their roles as sovereigns. This may be criminal or civil. C. however. Doctrine of State Immunity This refers to a principle by which a State. Permanent 2. Reserved Domain Jurisdiction of Domestic The domain of state activities where the jurisdiction of states is not bound by international law: the extent of this domain depends on international law and varies according to its development (i. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States. is without prejudice to the use of enforcement measures under Chapter VII of the Charter. BASES OF CRIMINAL JURISDICTION B. (People v. Nationality Principle – court has jurisdiction if the offender is a national of the forum state. They have equal rights and duties and are equal members of the international community. political or other nature (Principle 6. and may be exclusive or concurrent with other states (HARRIS). SOVEREIGNTY A.

3 of the 1987 Constitution. a store. 1949) 2. Guinto. The lease by a foreign government of apartment buildings for use of its military officers (Syquia v. SOVEREIGNTY and JURISDICTION impose its authority or extend its jurisdiction on another state without the consent of the latter through a waiver of immunity. Restrictive Sovereign Immunity – a State is immune from suits involving governmental actions (jure imperii). and a coffee and pastry shop at John Hay Air Station in Baguio City. The change of employment status of military base employees (Sanders v. This doctrine is embodied under Article XVI. but not for those arising from purely commercial or nongovernmental activity (jure gestionis). Test: Whether. (Par in parem non habet imperium). Ruiz.POLITICAL LAW REVIEWER Chapter VI. to wit: “The State may not be sued without its consent. Acts characterised by the Supreme Court as Acts Juri Imperii: 1. enforcement of the decision will require an affirmative act on the part of the State. and has established certain rules in its application. to cater to American servicemen and the general public (USA v. consisting of 3 restaurants. The Philippine Supreme Court recognizes the second theory. a bakery. supra) 142 PUBLIC INTERNATIONAL LAW . Guinto. 1990) 2. The hiring of cook in the recreation center. The conduct of public bidding for the repair of wharf at a United States Naval Station (USA v. 1988) Acts characterised as Acts Juri Gestionis: 1.a State cannot be sued in a foreign court no matter what act it is sued for. assuming the public officer is found liable. then the act in question would be covered by State immunity. Absolute Sovereign Immunity . 2. a cafeteria. 1985) 3. Lopez. Sec. Veridiano. If the answer is yes.” Application:(Asked 1 time in the Bar) 1. The bidding for the operation of barber shops in Clark Air Base (USA v.

boundary of the coastal state. RIGHTS OF THE COASTAL STATE OV OVER THE CONTINENTAL SHELF C. EXCLUSIVE ECONOMIC ZONE ONE E. The extent of these waters depend on their distance from the state’s baseline I.(Asked 1 time in the Bar) A. UNCLOS) 143 PUBLIC INTERNATIONAL LAW II. Normal baseline – the territorial sea is the low-water water line along the coast as marked on large-scale scale charts officially recognized by the coastal state (Art. B. PEACEFUL SETTLEMENT OF DISPUTES B. Straight baseline– where the coastline is deeply indented or cut into. INTERNAL WATERS B. Content: Maritime law is (traditionally) associated with private law context of rights and obligations pertaining to carriage of persons and goods by sea. territorial. Distinguished Admiralty Law from Maritime or 1. Concepts The Law of the Sea (LOS) is the body of treaty rules and customary norms governing the use of the sea. It is the branch of PIL which regulates the relations tions of states with respect to the use of the oceans. CONTIGUOUS ZONE D. Baseline The e line from which a breadth of the territorial sea and other maritime zones. UN Convention on the Law of the Sea. BASELINE II. EEZ V. COMPOSITION OF THE INTERNATIONAL NTERNATIONAL TRIBUNAL NAL FOR THE LAW OF T THE SEA (ITLOS) E. The LAW of the SEA Chapter VII.(See Appendix 1) 1. ARCHIPELAGIC STATE IV. CONTINENTAL SHELF A. contiguous. APPLICABLE LAWS IN SETTLEMENT ETTLEMENT OF DISPUTES BY THE ITLOS Its purpose is to determine the starting point to begin measuring maritime zones. JURISDICTION OF COURT T OR TRIBUNAL D. 2. WATERS A. LIMITS OF THE CONTINENTAL ENTAL SHELF B. DISTINGUISHED FROM M MARITIME OR ADMIRALTY LAW: B. COMPULSORY SETTLEMEN SETTLEMENT OF DISPUTES C. . Waters The waters of a state can be classified generally as internal. 7. LOS deals with rights and duties of states. The Law of the Sea I.POLITICAL LAW REVIEWER Chapter VII. or UNCLOS). or belonging to the exclusive economic zone (EEZ). JURISDICTION OF ITLOS F. 2. . the exploitation of its resources. or if there is a fringe of islands along the coast in its immediate vicinity. and the exercise of jurisdiction over maritime regimes (MAGALLONA). CONCEPTS A. RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS. HIGH SEAS III. TERRITORIAL WATERS C. such as the “contiguous zone” and the “exclusive economic zone” is measured. SETTLEMENT OF DISPUTES A. 5. the method of straight lines joining the appropriate points may be employed in drawing the baseline from which the breadth th of the territorial sea is measured (Art. Scope: Maritime law concerns the rights and duties of individual private persons in commercial transactions.

e. are archipelagic waters. or good order of the coastal state. security. Internal waters are treated as part of a State's land territory. waters landward of the baseline other than those rivers. Resources covered by sovereign rights of coastal states in the EEZ include living and PUBLIC INTERNATIONAL LAW Designation of sea lanes and traffic separation schemes is subject to adoption by competent international organization upon the proposal and agreement of states bordering the straits. B. Note that the contiguous zone is merely a zone of jurisdiction for a particular purpose. Exclusive Economic Zone (Asked 1 time in the Bar) A coastal state may establish an EEZ that may stretch up to 200 miles from its baselines. Within this zone. The right cannot be unilaterally suspended by the coastal state. artificial installations. 1. the coastal state may exercise the control necessary to: a. TRANSIT PASSAGE A. Prevent infringement of its customs. INNOCENT PASSAGE Pertains to navigation of ships only Requires submarines and other underwater vehicles to navigate on the surface and show their flag. other economic resources. and suspension is effective only after having been duly published (Art. However. They are subject to the jurisdiction of the coastal state. rivers. fiscal. but under the condition that it does not discriminate among foreign ships. 144 . Under the UNCLOS. bays and lakes. to (2) transit passage. 2. or coming from internal waters and making for the high seas. D. Contiguous Zone (Asked 1 time in the Bar) This is the maritime zone (up to 24 nautical miles) adjacent to the territorial sea where the coastal state may exercise certain protective jurisdiction. going to internal waters. in the case of certain straits. b. 25. The coastal state must not extend its contiguous zone beyond 24 nautical miles from the baseline. Internal Waters (Asked 1 time in the Bar) These are waters of lakes. and pollution control. Can be suspended. Transit passage the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straights used for international navigation.(Asked 1 time in the Bar) 1. Except that the coastal state must respect the rights to (1) innocent passage and. UNCLOS) In the designation of sea lanes and traffic separation schemes. Innocent passage navigation through the territorial sea w/o entering internal waters. which jurisdiction almost approximates that which is exercised over land territory. and bays landward of the baseline of the territorial sea. Thus. The LAW of the SEA INNOCENT PASSAGE such suspension is essential for the protection of its security. the coastal state may designate which waters to open and which to close to foreign shipping. It is not a zone of sovereignty. submerged Cannot be suspended C. It must (a) involve only acts that are required by navigation or by distress. but shall share that part of the catch that is beyond its capacity to harvest. the coastal state shall only take into account the recommendations of the competent international organization.POLITICAL LAW REVIEWER Chapter VII. scientific research. Territorial Waters (Asked 1 time in the Bar) These waters stretch up to 12 miles from the baseline on the seaward direction. Thus. and (b) not prejudice the peace. immigration or sanitary laws and regulations within its territory or territorial sea. states have the sovereign right to exploit the resources of this zone. and TRANSIT PASSAGE Includes the right of overflight Submarines are allowed to navigate in “normal mode” – i. in case of archipelagic states. Punish infringement of the above laws and regulations committed within its territory or territorial sea. a State may regulate nonliving and living resources. and is subject to the full exercise of sovereignty.

where the master or any person in the service of the ship is subject to concurrent jurisdiction of the flag state and the state of which such person is a national. High Seas These are all parts of the sea that are not included in the EEZ. Note: In detention of foreign vessels. installations and structures. and no state may validly purport to subject any of the high seas to its sovereignty. every state may seize a pirate ship. 6. scientific research. the coastal state has the duty to promptly notify the flag state of the action taken. “Freedom of the high seas” comprises the (a) freedom of navigation.  taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same subregion or region. Under Art. ii. the preservation and protection of marine environment. is reserved for peaceful purposes. overflight. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living resources in its EEZ. and (f) freedom of scientific research. . a warship or aircraft of a state may stop and arrest a foreign ship on the high seas. UNCLOS). or ships taken by pirates. 2. 145 PUBLIC INTERNATIONAL LAW E. or in the internal waters of a state. in the territorial sea. Warships and ships owned and operated by a State also enjoy immunity from the jurisdiction of any other state other than the flag state. The LAW of the SEA non-living resources in the waters of the seabed and its subsoil. a. (d) freedom to lay submarine cables and pipelines. Note: a coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ is not required to share its resources. Coastal states have the primary responsibility to utilize. on equitable basis. arrest a ship and its crew and institute judicial proceedings against them. The coastal state has jurisdiction over the i. ensuring that living resources are not endangered by overexploitation. (e) freedom to construct artificial islands and installations. (c) freedom of fishing. 4. manage and conserve the living resources within their EEZ. It is the right of every state to sail ships flying its flag on the high seas. all states enjoy the freedom of navigation. (b) freedom of overflight. In the high seas. b. states may establish illusory levels. 59.POLITICAL LAW REVIEWER Chapter VII.” Hence. it shall give other states access to the surplus by means of arrangements allowable under the UNCLOS. the coastal state does not have the capacity to harvest the entire catch. All states must exercise these freedoms with due regard for the interests of other states. 3. 5. They are beyond the jurisdiction and sovereign rights of states. It may board and inspect a ship. hence it is called a “flag state”.e. c. The high seas. or are in the archipelagic waters of the archipelagic state. and the duty to promote optimum utilization of living resources by determining allowable catch. 58 of the UNCLOS. establishment and use of artificial islands. and thus no state can prevent ships or other states from using the high seas for lawful purposes. Note however that the UNLCOS does not specify the method for determining “allowable catch. a state has exclusive jurisdiction over ships sailing under its flag. 7. d. Also. however. Exceptions to this rule include collision of ships. iii. (Art. High seas are open to all states. If after determining the maximum allowable catch. whether coastal or land-locked. Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of  equity and in the light of all relevant circumstances. In cases of hot pursuit. and laying of submarine cables and pipelines in the EEZ of coastal states. i. Geographically disadvantaged states (those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked stateshave the right to participate.

e. is between 1 to 1 and 9 to 1. Remember that sovereignty over internal waters precludes the right of innocent passage and other rights pertaining to archipelagic waters under the UNCLOS. Continental margin the submerged prolongation of the land mass of the continental . Right of archipelagic sea lanes passage: It is the right of foreign ships and aircraft to have continuous. economic and political entity.Straight baselines join the outermost points of the outermost islands and drying reefs of an archipelago. between. Other Rights with Respect to Archipelagic Waters 1. It is subject to the sovereignty of the archipelagic state. and connecting the islands of the archipelago. prescribe or substitute them”. Coastal – situated close to a mainland and may be considered part thereof. regardless of their depth or distance from the coast. under the UNCLOS. Special Issue: Under Art.e. Continental Shelf (See Appendix 2) Definition– it is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to 1. It is the International Marine Organization (IMO) which adopts them through Art. Within its archipelagic waters. a distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance. Baselines of archipelagic states.” Thus. 4. conversion from internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine state.)  Territorial sea and other maritime zones – the breadth of the territorial sea. i. Rights under existing agreement on the part of third states should be respected by the archipelagic state. 1 of the 1987 Constitution. It may include other islands. the archipelagic waters of the Philippines are characterized as forming part of “the internal waters of the Philippines. the archipelagic state shall recognize traditional fishing rightsand other legitimate activities of immediately adjacent neighboring states. Mid-ocean– situated in the ocean at such distance from the coasts of firm land. after which such state may designate. Indonesia (note: The Archipelagic State provisions apply only to mid-ocean archipelagos composed of islands. Two Kinds of Archipelagoes 1. 146 PUBLIC INTERNATIONAL LAW  IV. Such are called straight archipelagic baselines. expeditious. Archipelagic waters– these are the waters enclosed by the straight archipelagic baselines. 2. Archipelagic State It is a state up made up of wholly one or more archipelagos. or 2.” However. The archipelagic state shall respect existing submarine cables laid by other states and “passing through its waters without making a landfall”. and the EEZ is measured from the straight archipelagic baselines. the outer edge of the continental margin. An archipelago is a group of islands. i. provided that within such baselines are included the main islands and an area in which the ratio of the water to the area of the land. and unobstructed passage in sea lanes and air routes through or over archipelagic waters and the adjacent territorial sea of the archipelagic state. archipelagic waters consist mainly of the “waters around. including parts of islands. waters and natural features form an intrinsic geographical. interconnecting waters and other natural features which are so closely related that such islands. 3. but subject to the right of innocent passage for the ships of all states. Norway 2. including atolls. the contiguous zone. or which historically have been regarded as such. The LAW of the SEA III.POLITICAL LAW REVIEWER Chapter VII. 53(9) of the UNCLOS which states that “the Organization may adopt only sea lanes and traffic separation schemes as may be agreed with the archipelagic state. Note: the archipelagic state designates the sea lanes as proposals to the “competent international organization”. and NOT to a partly continental state. regardless of breadth or dimension.

The LAW of the SEA state. the continental slope. consisting of the continental shelf proper. and the continental rise.POLITICAL LAW REVIEWER Chapter VII. 147 PUBLIC INTERNATIONAL LAW .

or are unable to move except in constant physical contact with the seabed or subsoil. Note: In instances where the continental margin is more than 200 nautical miles from the baselines. the coastal state shall establish its outer limits. including the mineral and other no non-living resources of the seabed and subsoil together with living organisms belonging to * the sedentary species. Limits of the Continental Shelf   Juridical or Legal Continental Shelf: 0 0-200 nautical miles from baselines Extended Continental Shelf: 200 200-350 nautical miles from baselines depending on geomorphological or geological data and information When the continental shelf extends beyond 200 nautical miles. For example. It only has sovereign rights with respect to the exploration and exploitation of its natural resources.POLITICAL LAW REVIEWER Chapter VII. or 100 nautical miles from the 2500-meter meter isobath (or the point where the waters are 2500 meters deep). no one may undertake these activities without the coastal state’s consent. are either immobile on or under the seabed. Rights with Respect to Continental Shelf vs. The LAW of the SEA 148 PUBLIC INTERNATIONAL LAW A. EEZ Continental Shelf No duty EEZ Coastal state is obliged to manage and conserve living resources in the EEZ Have to do with natural resources of both waters superadjacent to the seabed and those of the seabed and subsoil Do not pertain to sedentary species B. the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea. the coastal state has the exclusive right to authorize and regulate oil oildrilling on its continental shelf. its continental shelf or exploit its resources. Rights of the Coastal al State over the Continental Shelf  The continental shelf does not form part of the territory of the coastal state. at the harvestable state. . and hence extends beyond the EEZ.  At any rate. C. These rights are exclusive in the sense that when the coastal state does not explore Duty to manage and conserve living resources Rights of the coastal state as to natural resources Relate to mineral and other non-living resources of the seabed and the subsoil Apply only to sedentary species of such living resources Rights of the coastal state as to living resources  * Sedentary species are organisms which. the coastal state has the exclusive right to exploit mineral and non-living living resources in the “excess area”.

F. The choice of the State Parties must be expressed in a written declaration. The Tribunal shall apply the UNLCOS and other rules of international law not incompatible with the UNCLOS. Compulsory Settlement of Disputes Where no successful settlement can be achieved. C. Settlement of Disputes A. which is revocable and replaceable. The LAW of the SEA V. E. It also includes matters submitted to it under any other agreement. any dispute submitted to it concerning the application or interpretation of UNCLOS 2. Art. Jurisdiction of ITLOS Its jurisdiction covers all disputes submitted to it in accordance with the UNCLOS. . Compulsory Procedures that States Parties Can Choose From: i. * iii. ii. 2 of the UN Charter. The composition shall also be representative of the world’s principal legal systems and of equitable geographical distribution. This obligation extends to State Parties of the UNCLOS. States have the duty to settle disputes by peaceful means. Applicable Laws in Disputes by the ITLOS Settlement of 149 PUBLIC INTERNATIONAL LAW B. International Court of Justice. 3. Composition of the International Tribunal for the Law of the Sea (ITLOS) It is composed of 21 “independent members elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea”.POLITICAL LAW REVIEWER Chapter VII. * as established under the UNCLOS. any dispute concerning the interpretation or application of an international agreement:  related to the purposes of the UNCLOS  when such dispute is submitted to it in accordance with that agreement. * iv. Peaceful Settlement of Disputes Under par. Arbitral Tribunal . Special Arbitral Tribunal . Jurisdiction of Court or Tribunal The court or Tribunal has jurisdiction over: 1. or if the parties are unable to agree on the means of settlement of a dispute concerning the application of UNCLOS. D. underscoring the right of the parties to resort to peaceful means of their own choice on which they can agree any time. where procedures entail binding decisions. International Tribunal for the Law of the * Sea . such dispute may be governed by the principle of compulsory settlement. It may also decide a case ex aequo et bono (what is equitable and just) if the parties so agree.

There be an armed attack. "or its substantial involvement therein" (Art. The USE of FORCE in INTERNATIONAL LAW Chapter VIII. Authorization Enforcement Action by Security Council acting under its Chapter VII Powers  The collective security apparatus contained in Chapter VII of the Charter. . iii. SELF-DEFENSE b.3(g). Self-Defense (Asked 2 times in the Bar)  Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations. An armed attack is understood as including not merely action by regular armed forces across an international border. UN Charter) and customary international law. iv. Rules on the Use of Force (Asked 5 times in the Bar) The use of force must be necessary to defend against an armed attack (Necessity). 150 PUBLIC INTERNATIONAL LAW Requisites: i. AUTHORIZED ENFORCEMENT ACTION 2. B. RESPONSIBILITY TO PROTECT (“R2P”) b. JUS AD BELLUM v JUS IN BELLO RULES ON THE USE OF FORCE A. GENERAL RULE B.2[4]. EXCEPTIONS UNDER CUSTOM a. General Rule States are to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. GENERAL ASSEMBLY RESOLUTION d. which allows for a successive process of conflict resolution. UN Charter). Jus in bello The laws that govern the conduct of war by States. The force used must be proportional to the attack made (Proportionality) (Nicaragua v. WARS OF NATIONAL LIBERATION a. until the Security Council has taken measures necessary to maintain international peace and security (Art. HUMANITARIAN INTERVENTION c. Jus Ad Bellum v Jus in Bello Jus ad bellum Refers to the body of norms that govern the conditions when a State may have recourse to war or other uses of force. 2. US Case). The forcible response must be promptly after the attack (Immediacy). II.51. or in any manner inconsistent with the purposes of the United Nations. This norm is of dual character. which carry out acts of armed force against another State of such gravity as to amount to" (inter alia) an actual armed attack conducted by regular forces. but also "the sending by or on behalf of a State of armed bands. EXCEPTIONS UNDER THE CHARTER a. EXCEPTIONS 1. Exceptions under Custom a. existing both in treaty law (Art. Definition of Aggression annexed to General Assembly resolution 3314 [XXIX]) I. b. II. Exceptions (Asked 2 times in the Bar) 1. culminating in armed enforcement actions carried out under the aegis of the Security Council. A.POLITICAL LAW REVIEWER Chapter VIII. Responsibility to Protect (“R2P”)  A recently developed concept in international relations which relates to: (a) a state's responsibilities towards its population and to (b) the international community's responsibility in case a state fails to fulfill its responsibilities. (To be discussed further in the Chapter on International Humanitarian Law) ii. Exceptions under the Charter  The Charter provides two exceptions to the general prohibition against the use of force. irregulars or mercenaries. groups. The Use of Force in International Law I.

b. Humanitarian Intervention  The forcible intervention by external actors (ex. they "are entitled to seek and to receive support in accordance with the purposes and principles of the Charter (1970 Resolution 2625 [XXV]). The USE of FORCE in INTERNATIONAL LAW One important aim." and that any attempt to suppress such struggle is unlawful (Resolution 3103 [XXVIII]). Wars of National Liberation  Wars by peoples against racist. is to provide a legal and ethical basis for humanitarian intervention. c.POLITICAL LAW REVIEWER Chapter VIII. being the subsequent practice of the parties. UN Charter may provide a basis for the use of force to. VCLOT.31(3). d. or an irregular amendment of the Charter's provisions through the creation of new norms of customary law (Art.1(3). Peacekeeping Operations through General Assembly’s Uniting for Peace Resolution  This was necessitated by the paralysis of the Security Council that resulted from the disagreement of the latter's veto-wielding members. The peacekeeping operations initiated by the General Assembly constitute an interpretation of the Charter that creates another exception to the rule against the use of force. These declarations constitute either an authoritative interpretation of the Charter. When peoples subjected to alien domination resort to forcible action in order to exercise their right to selfdetermination. colonial and alien domination "for the implementation of their right to selfdetermination and independence is legitimate and in full accord with principles of international law. Humanitarian intervention. finds legal support under Art. it has been argued. Case concerning the Interpretation of the Air Transport Agreement Between the United States and Italy) 151 PUBLIC INTERNATIONAL LAW . among many others. Genocide). the international community through the UN) into a state that is unwilling or unable to prevent or rectify massive violations of human rights (ex. and was inaugurated by the Uniting for Peace Resolution.

and has therefore shifted matters or questions pertaining to human rights from exclusive domestic jurisdiction to international regulation. Sources of Human Rights A. “Internationalization” Rights  of Human The international community. TORTURE C. and Cultural Rights (ICESCR). INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) C. par. LAW AGAINST DISCRIMINATION E. with or without an “emergency that threatens the independence or security of a State Party. INTERNATIONAL BILL OF HUMAN RIGHTS A. Social. whatever the economic or other conditions of the states obligated of civil and B. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) B.” Chapter IX. International Human Rights Law I. Third generation – refers development.  Definition of Human Rights (Asked 3 times in the Bar) Human rights are those fundamental and inalienable rights which are essential for life as a human being. CLASSIFICATION OF HUMAN RIGHTS III. First generation – consists political rights. B. which imposes the obligation to promote and protect human rights (UN Charter. This is evidenced by the widespread acceptance of numerous international conventions and instrumentsthat require or signify assent to the protection of human rights. and the International Covenant on Economic. Second generation – consists social and cultural rights. has accepted the regulation of human rights. Art 1(1). RIGHTS OF THE CHILD D. when allowed may only be derogated in a public emergency 152 PUBLIC INTERNATIONAL LAW III. Two important general conventions protecting human rights in international law are the International Covenant on Civil and Political Rights (ICCPR). These are considered to be authoritative interpretations of the UN Charter I. “INTERNATIONALIZATION” OF HUMAN RIGHTS IV. GENOCIDE B. Classification of Human Rights A. environment. to right to and right to  It has been proposed that the protection of human rights now exists even in customary law. Convention  The first important multilateral convention protecting human rights was the United Nations Charter. INTERNATIONAL COVENANT ON ECONOMIC. CUSTOM V. right to peace. REFUGEE LAW Derogation/ Restriction. First generation strictly (or objectively) obligatory. INTERNATIONAL HUMAN RIGHTS LAW available resources” may be restricted for the general welfare. IV. C. SOURCES OF HUMAN RIGHTS A.  II. They pertain to rights of an individual as a human being which are recognized by the international community as a whole through their protection and promotion under contemporary international law. DEFINITION OF HUMAN RIGHTS II. Custom of economic. Widespread acceptance of the UN Declaration of Human Rights as a codification of international human rights law is evidence that international custom protects human rights (MERON).POLITICAL LAW REVIEWER Chapter IX. SOCIAL AND CULTURAL RIGHTS (ICESCR) D. COMMON PROVISIONS IN THE ICCPR AND ICESCR AND DIFFERENCES VI. through the UN Charter. Obligatory Force under International Law Second generation relatively obligatory: States are required to progressively achieve the full realization of these rights “to the maximum of their . CONVENTION B. SPECIFIC NORMS IN HUMAN RIGHTS A. 2).

or to use their own language. The right against self-incrimination. b. The right to life. 6. c. The right to equal pay for equal work. it is merely recommendatory. 10. 9. The right not to be subjected to arbitrary arrest. It must be noted. Universal Declaration). color. Right against the carrying out of death sentence on the part of a pregnant woman.) the International Covenant on Civil and Political Rights. 4. 3. 8. political or other opinion. 153 PUBLIC INTERNATIONAL LAW A. notwithstanding that  . Economic. birth or other status. language. 2. 3. Protection against double jeopardy. 5. Right to peaceful assembly and association. 7. conscience and religion. without distinction of any kind. Universal Declaration of Human Rights (UDHR)  The UDHR is the first comprehensive catalogue of human rights proclaimed by an international organization. national or social origin. The right to seek in other countries asylum from prosecution. a. religion. 2. It embodies the first generation of human rights. The right to work and protection against unemployment. State Parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR. to profess and practice their own religion. 9. Right to protection of a child as required by his status as a minor. 2. 7.) the Universal Declaration of Human Rights.  The UDHR embodies both first and second generation rights. privacy and security of person. B.POLITICAL LAW REVIEWER Chapter IX. although it lists more rights than the UDHR: 1. liberty. The right to social security. however. the UNDHR is considered a normative instrument that creates binding obligations for all States because of the consensus evidenced by the practice of States that the Declaration is now binding as part of international law (Juan Carillo Salcedo. The civil and political rights enumerated include: 1. social and cultural enumerated in the UDHR include: rights Obligations of State Parties 1. The right to own property. that the UDHR is not a treaty. d. 8. INTERNATIONAL HUMAN RIGHTS LAW V. Social and Cultural Rights. 12. 6. The right to freedom of thought. The right to freedom of opinion and expression. Right of every child to nationality. such as race. The right to legal assistance in criminal prosecution. The right to form and join trade unions. International Covenant on Civil and Political Rights (ICCPR) (Asked 1 time in the Bar)   The ICCPR is an international covenant and is binding on the respective State Parties. The right of members of ethnic. State Parties must ensure that any person whose rights or freedoms are violate have an effective remedy. It has no obligatory character because it was adopted by the UN GA as Resolution 217A (III). e. As a resolution. 3. Despite this. The right to rest and leisure. Prohibition against slavery. Right to review by higher tribunal in case of criminal conviction. These are 1. and 3. 4. religious or linguistic groups not to be denied to enjoy their own culture. 11. 2. Human Rights. The right to compensation in case of unlawful arrest. The right to a nationality. 5. sec. detention or exile. State Parties undertake to respect and to ensure to all individuals within their territory the rights enumerated therein. Right of persons below 18 years old not to be sentenced to death for crimes. The right to fair trial and presumption of innocence.) the International Covenant on Economic. The right to take part in the government of his country. International Bill of Human Rights  The “International Bill of Human Rights” is a convenient designation of the three main instruments of human rights on the international plane. Under the ICCPR.

4. as such (dolus specialis): 1. Right to health. a denial which shocks the conscience of mankind and results in great losses to humanity. The ICJ. Common Provisions in the ICCPR and the ICESCR and differences The common provisions of the two Covenants deal with collective rights. 3. 4. administrative or legislative authority. INTERNATIONAL HUMAN RIGHTS LAW the violation has been committed by persons action in an official capacity. It embodies the second generation of human rights. the right of peoples to freely dispose of their natural wealth and resources. and that they shall enforce the remedy when granted. 2. The ICJ also recognized the customary nature of the proscription. although it lists more rights than the UDHR: 1. in whole or in part. 4. Acts Punishable  The Convention defines the following acts as punishable: 1.  The Genocide convention provides that the crime of genocide shall be tried by a competent tribunal of  the State in which the act was committed. Complicity in genocide. The right of self-determination of peoples. and 5. 3.POLITICAL LAW REVIEWER Chapter IX. Right to be free from hunger. like the ICCPR. namely: 1. racial or religious group. Killing members of the group. Right to strike. genocide refers to any of the following acts (actus reus). with a view to achieving progressively the full realization of the rights enumerated in the covenant by all appropriate means. International Covenant on Economic. stating that the principle under the Convention are recognized by civilized nations as binding on States even without conventional obligation. or 154 PUBLIC INTERNATIONAL LAW C. Rights to enjoy the benefits of scientific progress. explained the nature of genocide as a crime under international law involving a denial of the right of existence of entire human groups. 4. 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Imposing measures intended to prevent births within the group. Note – unlike the ICCPR. 2. Statute of the International Criminal Court) Nature of the Prohibition  Genocide is covered by the Convention on the Prevention and Punishment of the Crime of Genocide. Direct and public incitement to commit genocide. D. Freedom for scientific research and creativity. VI. Conspiracy to commit genocide. in its advisory opinion. 2. Obligations of State Parties  State Parties are required to undertake the necessary steps to the maximum of its available resources. Genocide. Causing serious bodily or mental harm to the members of the group. 2. . Social and Cultural Rights (ICESCR)  The ICESCR. is an international covenant and is binding on the respective State Parties. the right not of peoples not to be deprived of their own means of subsistence Note – these rights are not covered by the UDHR. a national. Forcibly transferring children of the group to another group (Article 6. Genocide (Asked 1 time in the Bar)  Under international law. when such acts are committed with intent to destroy. the states under the ICESCR merely agree to take steps to the maximum of its available resources. ethnical. 5. Specific Norms in Human Rights A. 3. State Parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial.

C. whether such individual is a public official or a private person. One such tribunal is the International Criminal Court (Art 5. . 2. Political. It forms part of the principles and rules concerning the basic rights of the human person. and civil and criminal procedural rights. 55 and 56). Prohibition against discrimination. social and cultural rights. such as war or public emergency.POLITICAL LAW REVIEWER Chapter IX. 155 PUBLIC INTERNATIONAL LAW B. Notes – Individual criminal liability is provided for the crime of genocide. or any other field of public life. It is an obligation for State Parties to take measures to prevent torture and to ensure that the acts of torture are legally punishable in their jurisdiction. Salient Features Under the Convention. access to information. descent. or is suspected of having committed. For any reason based on discrimination of any kind  When such pain or suffering is inflicted by or at the instigation of or with consent or acquiescence of a public official or person acting in an official capacity. Obtaining from him or a third person information or a confession. association. No exceptional circumstance. 7. Law against Discrimination  The International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination as  any distinction. or national or ethnic origin  which has the purpose or effect of nullifying or impairing the recognition. To acquire a nationality. cultural. color. Punishing him for an act he or a third person has committed. Intimidating or coercing him or a third person. may be invoked to justify torture nor a superior’s order or other authority be used as a justification for torture. are not considered as contrary to the Convention. Substantive Rights of the Child Under the CRC: 1. or positive discrimination. D. Inhumane or Degrading Punishment defines torture as any act by which severe pain or suffering. adequate standard of living. religion. restriction or preference based on race. 5. Also. prohibition against torture is created by an obligation erga omnes. whether physical or mental. affirmative action. civil. Notes: the definition of racial discrimination is considered as an authoritative interpretation of the non-discrimination clause of the UN Charter (Art. an obligation of every state towards the international community as a whole. minority rights. including freedom of thought. The inherent right to life 2. Torture The Convention Against Torture and Other Cruel. Genocide may be committed during war/armed conflict or during time of peace. of human rights and fundamental freedoms  in the political. 3. is intentionally inflicted on a person for such purposes as 1. expression. 6. education. Nature of the prohibition As a principle of international law. INTERNATIONAL HUMAN RIGHTS LAW  by such international tribunal as may have jurisdiction with respect to the State Parties which shall have accepted its jurisdiction. exclusion. Rights of the Child  The Convention on the Rights of the Child (CRC) is the primary international instrument concerning the legal status of the child in international law. conscience. gender. 4. social. 3. legal protection and in general human rights standards have come under the regime of international law and are no longer confined to the exclusive domestic jurisdiction of States that are parties to the CRC. Right to family environment and the right to know the parents and be cared for by them. economic. the prohibition against torture is non-derogable. 4. Protection during armed conflict and refugee right. Rome Statute). Concerns pertaining to his personhood. enjoyment or exercise on an equal footing. To have a name from birth. social security and health care. economic.

having lost it. nationality. religion. INTERNATIONAL HUMAN RIGHTS LAW E. Refugee Law  A refugee is a person who. or a crime against humanity. a war crime. or  who. owing to such fear. 2. 3. is unwell to return to it (Convention Relating to the Status of Refugees) Note: the Convention requires that the refugee conform to the laws and regulations. nationality. The Right of Non-Refoulment  It is the right of the refugee no to be expelled or returned in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his of race. 3. . He has acquired a new nationality and enjoys the protection of the state of his new nationality.  owing to a well founded fear of being persecuted  for reasons of race. of the country of refuge. 2. He has committed a crime against peace.  is unable or. not having a nationality and being outside the country of his former habitual residence. He has voluntarily acquired his nationality. 5. non-political crime outside the country of refuge prior to his admission to that country as a refugee. as well as measures taken for the maintenance of public order.POLITICAL LAW REVIEWER Chapter IX. He can no longer continue to refuse the protection of the country of his nationality because the circumstance by which he has acquire the status of refugee no longer exists. He has voluntarily re-established himself in the country which he has left or outside which he remained owing to fear of persecution. 156 PUBLIC INTERNATIONAL LAW Cessation of Status as Refugee A refugee ceases to be such when: 1. membership in a particular social group or political opinion. He has been guilty of acts contrary to the purposes and principles of the UN. membership in a particular social group or political opinion.  is outside the country of his nationality and is unable or owing to such fear. Who May Not Qualify as Refugees  A status of a refugee may not apply to the following persons with respect to whom there are serious reasons for considering that: 1. is unwilling to avail himself of the protection of that country. 4. religion. He has committed a serious. He has voluntarily re-availed himself of the protection of the country of his nationality.

such as an armed conflict. IHL AND WEAPONS OF MASS DESTRUCTION VIII. APPLICATION VI. International Humanitarian Law I. at all times. do not have unlimited choice of methods or means of warfare. albeit from different angle. Para. Derogation.70). Both strive to protect the lives. which establishes the rights and obligations of belligerents in the conduct of military operations. IHL imposes duties only upon those who are parties to an armed conflict. Parties to an armed conflict. WHO MAY USE B.  Definition of “Armed Conflict” (Prosecutor vs. distinguish between civilian population and the combatants (Principle PUBLIC INTERNATIONAL LAW HUMANITARIAN LAW V. BELLIGERENCY STATUS VII. 2. Note: The two branches draw their names from the cities where each was initially codifies. CRIMES WITHIN THE COURT’S JURISDICTION B. health and dignity of human persons. that distinction is now of merely historical and instructive value (ICRC).e. WAR OF NATIONAL LIBERATION IX. IHL has Two Branches: (1) Law of The Hague. MODES OF INCURRING CRIMINAL LIABILITY C. NEUTRALITY X. Parties to an armed conflict shall. and limits the means of harming the enemy. Tadic. which is designed to safeguard military personnel who are no longer taking par in the fighting and people not actively engaged in hostilities (i. COMBATANTS B. together with their armed forces. An Armed Conflict exists when there is resort to the use of force  between two states (international armed conflict). 3. or  between government authorities and an organized armed group. which combine both branches. Human rights apply to all State governments. CONTROL OF TERRITORY C. Some human rights treaties permit governments to derogate from certain rights in times of public emergency (Art.    II. III. MISUSE OF EMBLEM C. OTHER KEY CONCEPTS E. The following distinctions may be noted (ICRC): 1. civilians) (INTERNATIONAL COMMITTEE OF THE RED CROSS [“ICRC”]). Holder of Obligation. CONCEPTS A. No derogations are permitted under IHL as it was conceived precisely to emergency situations.4. THE INTERNATIONAL CRIMINAL COURT (ICC) A. With the adoption of the Additional Protocols of 1977. HUMAN RIGHTS LAW IHL and IHR are complementary. THE MARTENS CLAUSE E. ARMED CONFLICT FUNDAMENTAL PRINCIPLES OF IHL APPLICATION OF IHL THE FOUR GENEVA CONVENTIONS AND THE TWO ADDITIONAL PROTOCOLS V. INTERNATIONAL HUMANITARIAN LAW Chapter X. IV. They are prohibited from employing weapons or means of warfare that cause unnecessary damage or excessive suffering. IHL applies in situations of armed conflict. HORS DE COMBAT C. PUNISHMENT XI. II. PROTECTED PERSONS D. 2. or  between such groups within the same territory (non-international armed conflict) Note: Wars of National Liberation have been classified as international armed conflicts (ICRC) Mere internal disturbances and tensions. LANDMARK CASES  I. or riots or isolated or sporadic acts of armed violence does not amount to an armed conflict (Tadic) Note: Cases of this type are governed by the provisions of human rights law and the relevant domestic laws. 157 .  IHL is the branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting those who do not or no longer participate in the hostilities. MILITARY OBJECTIVE F. COMMON ARTICLE 3 AND PROTOCOL II B. Fundamental Principles of IHL 1. NON-INTERNATIONAL ARMED CONFLICT A. PROTECTIVE EMBLEMS A. SOURCES OF LAW D.POLITICAL LAW REVIEWER Chapter X. ICCPR). Application. whereas IHR applies both in times of peace and in war. and the (2) Law of Geneva.

The Geneva Convention for the Amelioration of the Condition of Wounded. 158 PUBLIC INTERNATIONAL LAW III. 12. 6. Aug. Civilians shall be spared from military attacks which shall be directed only against military objectives. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces st in the Field (“1 Geneva Convention”. 1949). Their right to life and physical and moral integrity shall be respected. 3. 1949). 1949). 12. June 8. It is prohibited to kill or injure an enemy who is hors de combat or who surrenders. INTERNATIONAL HUMANITARIAN LAW of Distinction). whether such is the result of an unlawful threat or use of force. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Victims of NonInternational Armed Conflict (“Protocol II”. 5. The wounded and the sick shall be protected and cared for by the party to the conflict which has them in its power. The Four Geneva Conventions and the Two Additional Protocols  The four Geneva Conventions and the Additional Protocols are the primary legal instruments that embody IHL. Application of the Four Geneva Conventions and the Two Additional Protocols  The principles under the four Geneva Conventions are regarded by the international community as a whole as having a character of general or customary international law. 1977). Common Article 2 and 3 of the four Geneva Conventions states that the Convention shall apply in all cases of declared war or any other armed conflict between to or more [Contracting Parties] even if the state of war is not recognized by one of them. Namely. Sick and Shipwrecked Members of Armed Forces at Sea nd (“2 Geneva Convention”. 4. The application of IHL in armed conflict. . The Geneva Convention Relative to the rd Treatment of Prisoners of War (“3 Geneva Convention”. The Geneva Convention Relative to the Protection of Civilian Persons in Time th of War (“4 Geneva Convention”. IHL applies to all armed conflicts. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (“Protocol I”. and other personal rights. They shall be protected and treated humanely without any adverse distinction. 3. and therefore binding on all states. 1949). Combatants and civilian who are captured by authority of the party to a dispute are entitled to respect for their right to life. establishments. Aug. 6. pertains solely to the fact of armed conflict. regardless of whether resort to threat or the use of force was lawful or unlawful  IHL governs in both international and non-international armed conflicts. even if the use of force remains unlawful. As used in Article 3. June 8. insurgent IV. In the ICJ advisory opinion in the Legality of the Threat or Use of Nuclear Weapons. 12. armed conflict pertains to non-international armed conflicts in that it deals with armed confrontation between the V. dignity. Aug. the Court expressed that the fundamental rules of IHL are to be observed by all states whether or not they have ratified the conventions that contain them.POLITICAL LAW REVIEWER Chapter X. (Legality of the Threat or Use of Nuclear Weapons. they are: 1. transports and material. conviction. Persons hors de combat are those who have been injured in the course of hostile battle action and are no longer able to directly take part in hostilities. They shall be protected against acts of violence or reprisals. 4. 1977). Protection shall also apply to medical personnel. 5. not between states. Advisory Opinion by the ICJ) government and a rebel or movement. Application of IHL  IHL is not concerned with the lawfulness or unlawfulness of armed conflict. Aug. As such. 12. 2.

According to one commentator. while Protocol II pertains to the protection of victims of non-international armed conflicts.  The four Conventions are applicable only to international armed conflicts. c. The wounded. d. neutralization or capture makes an effective contribution to military action. Belligerency Status  It is the formal acknowledgement by a third party of the existence of a state of war between the central government and a portion of such state. Prisoners of War c.” Where gaps or loopholes arise in the interpretation and application of international agreements or treaties of humanitarian law. purpose. Civilians in occupied territories.  As to the Protocols. or location. Their right to life and physical and moral integrity shall be respected E. use. as he would be where he to the same as a normal citizen (Gasser. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. Definition of Concepts and Phrases A. Protocol 1). F. and is therefore incapable of defending himself.POLITICAL LAW REVIEWER Chapter X. Martens clause The Martens Clause provision” which reads: is an “umbrella “In cases not covered by Protocol I. and from the dictates of public conscience. Military Objective  An object. and will not be held personally responsible for his acts. Civilians internees 159 PUBLIC INTERNATIONAL LAW VI. EXCEPT common Article 3 which applies in the case of armed conflict not of an international character occurring in the territory of one of the State Parties. which by its nature. He clearly expresses an intention to surrender. 41(2) of Protocol I. Civilians  For purposes of protection. he abstains from any hostile act and does not attempt to escape. Combatants  Combatants are members of the armed forces of a Party to a conflict (Art. a person is hors de combat if he: a. Protocol I is designed for the protection of victims of international armed conflicts. Hors de combat  Under Art. and shipwrecked. from the principles of humanity. Civilians who are victims of conflict in countries involved b. 3(2).  which seeks to establish a separate government and   . civilians are further classified as: a. provided that in any of these cases. IHL-An Introduction)   D. C. even to kill. Protected Persons Protected persons are those who enjoy or are entitled to protection under the Geneva Conventions. b. and  whose total or partial destruction. He has been rendered unconscious or is otherwise incapacitated by wounds or sickness.  makes an effective contribution to military action. Persons hors de combat shall be protected and treated humanely without any adverse distinction. or by any other international agreements. the sick. Belligerency exists when  a sizeable portion of the territory of a state is under the effective control of an insurgent community. B. a combatant is allowed to use force. resort to the Martens Clause may be made. Categories of protected persons include: a. only combatants are allowed to engage in hostilities. INTERNATIONAL HUMANITARIAN LAW because they constitute intransgressible principles of customary international law. b. or c. In fact. They have the right to participate directly and indirectly in hostilities (Art 43(2) Protocol 1). Is in the power of an adverse party to the conflict. Civilians in territories of the enemy.

an insurgent or a rebel group does not assume belligerency status. 3. under responsible command. cruel treatment and torture. religion or faith. Those which are not directed at a specific military objective. indiscriminate attacks are prohibited. including members of the armed forces who have laid down their arms and PUBLIC INTERNATIONAL LAW VII. With respect to the persons mentioned above. iv. shall in all instances be treated humanely without any adverse distinction founded on race. The wounded and the sick shall becollected and cared for. ii. which would be excessive in relation to the concrete and direct military advantage anticipated (Art.  between its armed forces and dissident armed forces or other organized groups  which. Persons taking no active part in the hostilities.  Art. have a political organization. It defines the following obligations: 1. or any other similar criteria. or those that do not distinguish between military objectives and civilians or civilian objects. Hence. are governed by such principles and rules. IHL and Non-International Armed Conflict  Common Article 3 of the four Geneva Conventions is the only provision applicable to non-international armed conflicts. Those that employ a method or means of combat the effect of which cannot be limited as required by the protocol. Protocol I)   The application of provisions above does not affect the legal status of the parties to the conflict. the following acts shall remain prohibited: i. A. damage to civilian objects. para. sex. murder of all kinds. Common Article 3 and Protocol II  Protocol II develops and supplements common Article 3 (Art. INTERNATIONAL HUMANITARIAN LAW     the insurgents are in de facto control of a portion of the territory and population. 5(b). or a combination thereof. iii. Protocol II is a treaty and binding only States that are parties to it. Outrages upon personal dignity. 1. are able to maintain such control. Attacks which are considered indiscriminate. Article 3 is indifferent to the legal character of such group. in particular. Those which employ a method or means of combat which cannot be directed at a specific military objective. 54. An attack is also considered indiscriminate if it may be expected to cause incidental loss to human life. However. and conduct themselves according to the laws of war (Asked 1 time in the Bar). It applies to:  all armed conflicts which take place in the territory of a State Party. 160 . having been developed after most of the principles and rules of IHL applicable to armed conflicts. Application of Article 3 and Protocol II The rules in Article 3 are recognized as customary norms of international law. injury to civilians. 2. IHL and Destruction Weapons of Mass those placed hors de combat. or 3. and therefore applicable to all States. VIII. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. Violence to life and person. are: 1. in particular humiliating and degrading treatment. Nuclear Weapons In its advisory opinion in Legality of the Threat or Use of Nuclear Weapons. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Taking of hostages. mutilation.POLITICAL LAW REVIEWER Chapter X. color. 51(4) of Protocol I provide that as a measure of protection of civilian population. birth or wealth. 2. the ICJ expressed that nuclear weapons. It must be noted that Article 3 is to be applied as a minimum. exercise such control over a part of its territory  as to enable to carry out sustained and concerted military operations and to implement the Protocol. Protocol II).

may still develop into customary norms binding on all states. Red Cross (Geneva Conventions) 2. 3 and 4 of Protocol I. Red Crescent (Geneva Conventions) 3. clothing or relief required by humanity. War of National Liberation  An armed conflict may be of such nature in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. Control-of-Territory  The test of whether a dissident armed force has control of territory is when such armed force can (1) carry out sustained and concerted military operations. Interned persons among the civilian population. and not Protocol II may be applicable. d. e. Protecting Power A protecting power is a State or an organization  not taking part in the hostilities. c. INTERNATIONAL HUMANITARIAN LAW Its rules.POLITICAL LAW REVIEWER Chapter X.  by which it adopts impartiality in relation to the belligerents with their recognition. X. A neutral power is forbidden to allow belligerents to use its territory for moving troops. It may assign them a place of residence if it allows them to remain in its territory. The neutral power may authorize the passage into its territory of the sick and wounded if the means of transport bringing them does not carry personnel or materials of war 161 .  designated by one party to an armed conflict with the consent of the other  to safeguard or protect its humanitarian interests in the conflict. is considered an international armed conflict under Art. 1. even if the state of war is not recognized by one of them.  which may be a neutral state. establishing communication facilities. wounded and sick. Neutrality (Asked 1 time in the Bar) Neutrality is the legal status of a State in times of war. The territory of the neutral Power is inviolable. by the general practice of states coupled with their acceptance of them as law (opinio juris). g. in particular the children. the mothers with infants and young children. Troops of belligerent armies received by a neutral Power in its territory shall be interned by away from the theatre of war. may be accommodated in a neutral state in the course of hostilities. or forming corps of combatants. it shall leave them at liberty. by agreement between the parties to the conflict. In a non-international armed conflict where the dissident armed forces do not exercise such control over territory. f. IX. however. and the other where both Article 3 and Protocol II apply. the pregnant women. Protective Emblems Emblems: 1. Belligerents are forbidden to move troops or munitions of war and supplies across the territory of a neutral Power. The neutral Power may supply them with food. This conflict. The Hague Convention Respecting the Rights and Duties of Neutral Powers (Oct. B. 18. Red Crystal (Third Additional Protocol to the Geneva Conventions) Note: Protocol III is an amendment to the Geneva Conventions relating to the Adoption of an Additional Distinctive Emblem for use by PUBLIC INTERNATIONAL LAW b.  C. however. The Third Geneva Convention (Prisoners of War) allows neutral Powers to cooperate with the parties to the armed conflict in making arrangements for the accommodation in the former’s territory of the sick and wounded prisoners of war. 1907) governs the status of neutrality by the following rules: a. par.” Hence. and whether it has (2) the capacity to comply with the provisions of the Protocol. the Geneva conventions and Protocol I govern wars of national liberation. If the neutral Power receives escaped prisoners of war. Article 3. Article 2 common to the four Geneva conventions provides that “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties. The result is that this situation may give rise to two categories of non-international armed conflicts: one where only Article 3 applies. the performance of which IHL defines specific rights and duties.

may cause confusion with the emblem. ethnical. 2.8. ICC Statute). C. The International Criminal Court The ICC is a permanent criminal tribunal established to prosecute individuals who have violated laws applicable during armed conflict. ICC Statute) The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. This amendment may be proposed in the Review Conference to be convened by the UN Secretary General seven years after the Statute has entered into force (Art. Act constituting a crime within the Court’s jurisdiction. Perfidy – making use of the emblem in time of conflict to protect combatants or military equipment. Medical services of armed forces.  Such provision shall be adopted pursuant to the rules on amendment (Art.6. In any case.6. 3. subject to the same conditions as national societies (ICRC). 3. A. Punishment State Parties to the Geneva Conventions are required to take steps to prevent and punish misuse of the emblem both in time of peace and in war. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.123. six months after the second ratification. 3. ICC Statute). made pursuant to or in furtherance of a State or organizational policy.POLITICAL LAW REVIEWER Chapter X. Other voluntary relief agencies. XI. Who May Use During armed conflict. Requisite standards for incurring criminal liability are satisfied. Crimes Against Humanity (“CAH”) (Art. Art.e. Imposing measures intended to prevent births within the group.7. 4. INTERNATIONAL HUMANITARIAN LAW national societies. ICC Statute) Genocide refers to any of the following acts (actus reus) which are committed with intent to destroy. Red Crescent or Red Crystal societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces. Requisites to be held criminally liable: 1. 4. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: 1. first-aid posts. as such (dolus specialis): 1. the attack must involve the multiple commission of such acts. ICC Statute) Refer to grave breaches of the 1949 Geneva Conventions and other violations of the laws and customs applicable in international and non-international armed conflict. Causing serious bodily or mental harm to the members of the group. They include: 1. . Civilian hospitals and other medical facilities recognized as such by the government (i. in whole or in part. War Crimes (Art. Misuse of the Emblem Any use not expressly authorized by IHL constitutes a misuse. Killing members of the group. 2.8(2)(b)(vii) of the ICC Statute makes the improper use of the distinctive emblems of the Geneva Conventions a War Crime. Forcibly transferring children of the group to another group (Art. Genocide (Art. by its shape and/or color. 2. The Crime of Aggression The ICC shall exercise jurisdiction over the crime of aggression once a provision defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. and that 2. ambulances). the emblem may be used as a protective device by: 1. racial or religious group. ICC Statute) Refers to acts (actus reus) committed knowingly as part of a widespread or systematic attack directed against any civilian population.121. A. 162 PUBLIC INTERNATIONAL LAW B.5. ICC Statute). Crimes within the Court’s Jurisdiction (Art. 3. and 5. Imitation – the use of a sign which. a national. It entered into force on 14 January 2007. 4. National Red Cross. 2. Usurpation – the use of the emblem by bodies or persons not entitled to do so.

The ICC shall assume jurisdiction over a case only where national criminal jurisdictions are genuinely unwilling or unable to investigate and prosecute most serious crimes of international concern. torture. a crime within the jurisdiction of the Court. The iota of evidence required to convict an accused is proof beyond reasonable doubt (Art. D. Modes of Incurring Criminal Liability 1. C. ICC Statute). Nullum crimen nullum poena sine lege (Art. murder.28(b)(ii). Landmark Cases 1. Failing that. which may not exceed a maximum of 30 years.28. ICC Statute) A general principle in criminal law which provides that a person shall not be criminally responsible (under the ICC Statute) unless the conduct in question constitutes. The commander knew or should have known of the violations being perpetrated by his subordinates (Art. The Case of Thomas Lubanga Dyilo Thomas Lubanga Dyilo is a former rebel leader from the Democratic Republic of the Congo. at the time it takes place. orders. Note: A civilian superior may not be held criminally liable upon the basis of imputed knowledge (“should have known”). abets or otherwise assists in the its commission. In the first place. Individual Criminal Responsibility (Direct)(Art. B. He founded and led the Union of Congolese Patriots (UPC) and was a key player in the Ituri conflict. investigating and prosecuting only where national courts have failed. ICC Statute) The responsibility of military commanders and civilian superiors for crimes committed by subordinate members of their armed forces or other persons subject to their control. 2. the national laws of States that would normally exercise jurisdiction over the crime. Failure to prevent or to punish said violations. 163 PUBLIC INTERNATIONAL LAW  E. ICC Statute). Where a State is able or willing. The commander or superior must exercise effective control over those who committed the crime.28(a)(i). rape.22. the Elements of Crimes and its Rules of Procedure and Evidence. Requisites: 1. or aids. He must have consciously disregarded information which would have notified him of the violations being perpetrated by his subordinates. The Review Conference is scheduled to be convened this year (2009). 3. Applicable Penalties: The ICC may impose (a) imprisonment for a specified number of years. or (b) a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. mutilation. including the established principles of the international law of armed conflict. legal systems of the world including. General principles of law derived by the Court from national laws of . ICC Statute). this Statute. Sources of Law The Court shall apply: 1. ICC Statute) A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits. In no case may the Court impose capital punishment. In the second place. 2. a case is not admissible to the Court (CASSESE).17. applicable treaties and the principles and rules of international law. including ethnic massacres. Command and Superior Responsibility (Indirect)(Art. provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. INTERNATIONAL HUMANITARIAN LAW Note: The ICC Statute entered into force in 2002.  As in any criminal proceeding.POLITICAL LAW REVIEWER Chapter X. and forcibly conscripting child soldiers.66. as appropriate. 3. solicits or induces the commission of such a crime. Rebels under his command have been accused of massive human rights violations. or thatthe Superior knew or consciously disregarded information that indicate that the subordinates were committing or about to commit such crimes (Art. the accused shall be presumed innocent until proved guilty. ICC Statute) The ICC is intended as a court of last resort. Other Key Concepts Principle of Complementarity (Art.25.

164 PUBLIC INTERNATIONAL LAW . President of Sudan. the ICC Pre-Trial Chamber issued a warrant for the arrest of Omar Al Bashir. as an indirect (co-)perpetrator. Lubanga became the first person ever arrested under a warrant issued by the International Criminal Court. 2. raping. for intentionally directing attacks against an important part of the civilian population of Darfur. shall not bar the Court from exercising its jurisdiction over such a person. Al Bashir is charged of war crimes and crimes against humanity. The Chamber found that there is sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo is criminally responsible as co-perpetrator for the war crimes he is charged of. exterminating. Omar Al Bashir’s official capacity as sitting Head of State does not exclude his criminal responsibility. He is suspected of being criminally responsible.POLITICAL LAW REVIEWER Chapter X. Sudan President Omar Al Bashir On March 2009. INTERNATIONAL HUMANITARIAN LAW On 17 March 2006. murdering. and pillaging their property. torturing and forcibly transferring large numbers of civilians. nor does it grant him immunity against prosecution before the ICC. Status: The Pre-Trial Chamber I committed Thomas Lubanga Dyilo for trial. Under Article 27 0f the ICC Statute. Sudan. Immunities or special procedural rules which may attach to the official capacity of a person. He is on trial for the war crime of enlisting children under the age of fifteen years and using them to participate actively in hostilities. whether under national or international law. Significance: This is the first warrant of arrest ever issued for a sitting Head of State by the ICC.

FUNCTIONS AND DUTIES III. PUBLIC INTERNATIONAL LAW It is composed of: 1. It is headed by a Secretary or a Minister who. DIPLOMATIC INTERCOURSE Chapter XI. IMMUNITY FROM LOCAL JURISDICTION E.16. 4. (b) Envoys. Promote friendly relations between the sending State and receiving State. The Diplomatic Corps Refers to the collectivity of all diplomatic envoys accredited to a State. except when he himself is the plaintiff. Represent the sending State in the receiving State. DIPLOMATIC IMMUNITIES AND PRIVILEGES A. Diplomatic Staff – those engaged in diplomatic activities and are accorded diplomatic rank. Ministers and Internuncios – accredited to Heads of State. In the Philippines. RIGHT OF OFFICIAL COMMUNICATION D. the President appoints (Art. the conditions and developments in the receiving State and reporting the same to the sending State. Upon the principle of exterritoriality. which enables States to carry on friendly intercourse. Personal Inviolability  The receiving State shall treat him with due respect and take all steps to prevent any attack on his person. and is not subject to tax or exchange or currency restrictions. by all lawful means. EXEMPTION FROM TAXES AND CUSTOMS DUTIES IV. such as when he commits an act of C. sends and instructs the diplomatic and consular representatives. 2. Agents of Diplomatic Intercourse A. cultural and scientific relations. and developing their economic. I. may make binding declarations on behalf of his government (Legal Status of Eastern Greenland Case). Administrative and Technical Staff – thise employed in the administrative and technical service of the mission. II. within the limits allowed by international law. in proper cases. 3. may be arrested temporarily in case of urgent danger. The diplomatic envoy. 2. 4. B. Functions and Duties  The main functions of a diplomatic mission are the following: 1.VII. THE FOREIGN OFFICE C. Negotiate with the government of the receiving State. 5. INVIOLABILITY OF PREMISES AND ARCHIVES C. III. Head of State The head of State represents the sovereignty of the State. 3. PERSONAL INVIOLABILITY B. The Foreign Office The body entrusted with the conduct of actual day-to-day foreign affairs.POLITICAL LAW REVIEWER Chapter XI. Constitution). The diplomatic representative shall not be liable to any form of arrest or detention. Diplomatic Immunities and Privileges (Asked 9 times in the Bar) A. Diplomatic Intercourse I. is the right of the State to send and receive diplomatic missions. Head of Mission – classified into: (a) Ambassadors or nuncios – accredited to Heads of State. CONSULAR RELATIONS A. archives. and other heads of mission of equivalent rank. RANKS B. property and means of transportation are inviolate. his quarters. also referred to as the Right of Legation. however. and enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. He is immune from criminal and civil jurisdiction. THE DIPLOMATIC CORPS II. NECESSARY DOCUMENTS C. Ascertain.Sec. Protect in the receiving State the interests of the sending State and its nationals. freedom or dignity. Service Staff – those engaged in the domestic service of the mission(NACHURA REVIEWER) 165 . AGENTS OF DIPLOMATIC INTERCOURSE A. (c) Charges d’affaires – accredited to Ministers of Foreign Affairs. IMMUNITIES AND PRIVILEGES   Diplomatic Intercourse. HEAD OF STATE B.

Dues and taxes on private income sourced within the receiving State v. 166 PUBLIC INTERNATIONAL LAW E. With respect to official acts. orders or processes within the premises of mission or residence of the envoy is prohibited. C. regional or municipal. succession or inheritance taxes levied by the receiving State iv. and neither can the goods. He may not be arrested. prosecuted. be surrendered upon demand by local authorities. Inviolability of Premises and Archives  The premises occupied by a diplomatic mission. Exception to Tax Exemption: i. The diplomatic agent also cannot be compelled to testify. records and archives be detained by local authorities even under lawful process. seizure for debt. not even by deposition. In other cases. Exemption from Taxes and Customs Duties  Diplomatic agents are exempt from all dues and taxes. The envoy must consent to such entry. however. He is also exempt from all customs duties of articles for the official use of the mission and those for the personal use of the envoy or members of the family forming part of his household.  The diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving State. DIPLOMATIC INTERCOURSE violence which makes it necessary to put him under restraint for the purpose of preventing similar acts. These privileges are enjoyed by the envoy from the moment he enters the territory of the receiving State. This privilege.POLITICAL LAW REVIEWER Chapter XI.  The service of writs. whether personal or real. Capital taxes on investments in commercial ventures in the receiving State Duration of Immunities and Privileges. except when the right of asylum exists. which shall enjoy inviolability. only exempts a diplomatic agent from local jurisdiction. prosecuted or punished for any offense he may commit. including the private residence of the diplomatic agent. The mission may employ all appropriate means to send and receive messages by any of the usual modes of communication or by diplomatic courier. are inviolable. D. it does not import immunity from legal liability. Such premises cannot be entered or searched. except in extreme cases of necessity (ex. Immunity from Local Jurisdiction   A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving State. Dues and taxes on private immovable property situated in the receiving State iii. even with respect to his private life. The fugitive should. Indirect taxes incorporated in the price of goods purchased or services availed ii. His properties are not subject to garnishment. Even if a criminal takes refuge within the premises. Baggage and effects are entitled to free entry and are usually exempt from inspection. the peace officers cannot break into such premises to apprehend the same. immunity shall continue indefinitely. When there is imminent danger that a crime of violence is to be perpetrated in the premises. B. unless his immunity is waived. and shall cease when he leaves the country. execution and the like. Diplomatic privileges may be waived. when the premises are on fire). Estate. including articles intended for his establishment. . summons. however. national. Waiver of Immunities. Right of Official Communication  The envoy is entitled to fully and freely communicate with his government. before any judicial or administrative tribunal in the receiving State without the consent of his government. the waiver may be made either by the government or by the chief of the mission. Such waiver may be made only by the government of the sending State if it concerns the immunities of the head of the mission.

Ranks 1. or one exceptionally large consular district. Exequatur – the authorization given to the consul by the sovereign of the receiving State. 4. and  such other functions as are designed to protect nationals of the appointing State. but not of the premises where legal processes may be served and arrests made. Inviolability of archives.  issuance of visa (permit to visit his country). Exemption from taxes. 2. Freedom of communication. DIPLOMATIC INTERCOURSE IV. B. Immunities and Privileges 1. military or jury service. C. Necessary Documents  The following documents are necessary for the assumption of Consular functions: 1. 5. Consul General: heads several consular districts.POLITICAL LAW REVIEWER Chapter XI. but not for other offense except for minor infractions. 167 PUBLIC INTERNATIONAL LAW A. 3. 4. 2. Exemption from testifying on official communications or on matters pertaining to consular functions. allowing him to exercise his function within the territory. Vice Consul: assists the consul. Consular Relations Consuls are State agents residing abroad for various purposes but mainly  in the interest of commerce and navigation. Letters Patent(letter de provision) – the letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to serve. customs duties. 3. 2. Consul: in charge of a small district or town or port. Exemption from local jurisdiction for offenses committed in the discharge of official functions. . Consular agent:one entrusted with the performance of certain functions by the consul.

as it does. indeed. USC Sec. when the Congress so requires. the Court in Bayan said that “it is inconsequential whether the United States treats the VFA only as an executive agreement because. ___ (2008)) decided by the US Supreme Court which held that treaties entered into by the United States are not automatically part of US domestic law unless:  these treaties are self-executing or  there is an implementing legislation to make them enforceable. XVIII. and recognized as a treaty by the other contracting State. “bars the efficacy of such a treaty that is enforceable as domestic law only in the 168 PUBLIC INTERNATIONAL LAW I. The dissenting opinion of Chief Justice Reynato Puno follows his dissent in Bayan. The dissent of Justice Carpio follows the same line of reasoning. (Art. treating the controversy as an international law issue. the acknowledgement of the US President of the VFA as a “treaty” is not enough. Romulo contended that the Philippine Government should have custody of Daniel Smith because the VFA—which will govern such issue of custody—is void for being unconstitutional. 25). The Philippine Supreme Court answered that the VFA is enforceable because it is considered as an implementation of the RP-US Mutual Defense Treaty and the VFA is covered by an implementing legislation—i. Zamora. The petitioners in the recent case of Nicolas v. President has entered into with foreign States” as clearly stated in its provisions. not a case in international law. Art. nowhere in the text of the VFA states that it is self-executory both in the US and the Philippines. 25 of the Philippine Constitution. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and.e. the Case-Zablocki Act. He points out that “the CaseZablocki Act operates merely as a timely notification to the U. 175888) involving the custody of convicted rapist Lance Corporal Daniel Smith after the Philippine Supreme Court had already ruled in favor of its constitutionality in Bayan v. The controversy centers on a specific transitory provision in the 1987 Constitution which states that: After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases. No. There is apparently an international law issue in this case involving. Moreover. an executive . he says.S. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. II. They said this in the wake of Medellin v. Congress of the executive agreements. Recent International Law Issues in Philippine Law I. This seems to be the mindset of the Supreme Court in Bayan v. sec.S. Romulo (G. VIOLENCE AGAINST WOMEN AS TORTURE agreement is as binding as a treaty”—in other words. In particular. Senate concurrence) for the acceptance of a treaty. under international law.R. troops.S.” that the U. Notably. “other than a treaty. the main problem lies on what it means for the VFA “to be recognized as a treaty” by the United States.e. 112(b)—which treats VFA as an executive agreement to be immediately implemented 60 days from its ratification. He says that there is an “anomalous asymmetry” in the legal treatment of the VFA between the US and the Philippines because the VFA can never be considered as a binding treaty in the US if it has no concurrence of the US Senate. DANIEL SMITH AND THE VFA CONSTITUTIONALITY OF THE BASELINES LAW III. Texas (552 U. the recognition of a treaty. XVIII. sec. Dean Merlin Magallona argues that the Bayan Court should have treated the issue as a domestic case because it is a constitutional attack against the VFA. foreign military bases. Zamora when it affirmed the constitutionality of the VFA saying that “the phrase ‘recognized as a treaty’ means that the other contracting party accepts or acknowledges the agreement as a treaty” even without the US following its constitutional requirements (i. Daniel Smith and the Visiting Forces Agreement The issue of the constitutionality of the Visiting Forces Agreement (VFA) was once again raised in Nicolas v. RECENT INTERNATIONAL LAW ISSUES Chapter XII.POLITICAL LAW REVIEWER Chapter XII.

II. XIII. 169 PUBLIC INTERNATIONAL LAW III. There is currently a petition in the Supreme Court questioning its constitutionality for it allegedly violates Article 1 of the 1987 Constitution which used the Treaty of Paris. 22. some of which may be subtly disguised. expeditious. XII. Civil laws that appear to have little to do with violence also have an impact on women’s ability to protect themselves and assert their rights. RA 9522). 4. Art. In 1996. 2008. Sec. Including The Right To Development during the Seventh Session of the United Nations Human Rights Council last January 15. The Constitutionality of the Baselines Law Republic Act 9522 was enacted to comply with the deadline set by the United Nations Convention of the Law of the Sea (UNCLOS) for member states to draw its baselines as a result of the Third United Nations Conference on the Law of the Sea in 1973 (the UNCLOS III regime). sec. by disregarding Article 1 of the Philippine Constitution. 2. 20. sec. VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE* State acquiescence in domestic violence can take many forms. 52 in relation to Arts. 23). The baselines set by RA 9522 is said to be a radical departure from the baselines set by such treaties on which our Constitution is based. or that prevent them from gaining custody of their children. 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 (UNCLOS Art.POLITICAL LAW REVIEWER Chapter XII. and connecting the islands of the archipelago” into archipelagic waters under the UNCLOS III regime thus rendering nugatory the reservations of the Philippines under the UNCLOS and allowing ships of all states the right of innocent passage (UNCLOS Art. Laws that restrict women’s right to divorce or inheritance. Moreover. 2 on marine wealth and 5. Report on Torture and Other Cruel. For instance. sec. Civil. Inhuman or Degrading Treatment Or Punishment for Item 3 of the Provisional Agenda: Promotion and Protection of All Human Rights. Art. between.. 2. the rights of navigation and overflight solely for the purpose of continuous. whenever they create and implement discriminatory laws that may trap women in abusive circumstances State responsibility may also be engaged if domestic laws fail to provide adequate protection against any form of torture and ill-treatment in the home.e. Art. Manfred. nuclear-powered warships and other ships carrying weapons-grade nuclear substances (UNCLOS Art. . all serve to make women dependent upon men and limit their ability to leave a violent situation…States should be held accountable for complicity in violence against women. i. contiguous zone and exclusive economic zone and a continental shelf in accordance with the provisions of the Convention (Sec. 7 on the protection on offshore fishing grounds for fishermen. 3. the Special Rapporteur on violence against women stated that: “the argument that domestic violence should be * Nowak. Art. II. 16 on the policy of a balanced and healthful ecology. Other provisions of the Constitution that are said to be violated are: 1. Special Rapporteur. sec. II. 8 on the policy of freedom from nuclear weapons in Philippine territory— since foreign ships of all kinds to navigate in Philippine waters including nuclear-powered submarines. the new baselines law allegedly converts the internal waters of the Philippines—“the waters around. The statute amended Republic Act 3046 entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines” by changing the baselines of the Philippines and specifically excluding the Kalayaan Island Group and the Scarborough Shoal (also known as Bajo de Masinloc) from such baselines. Instead they are considered as a regime of islands under Article 121 of the UNCLOS which can have its own territorial sea. RECENT INTERNATIONAL LAW ISSUES Philippines but unenforceable as domestic law in the other contracting State”. International law has developed considerably over the years to become more genderinclusive. II. the Treaty of Washington and the 1930 Convention between the US and Great Britainas its basis in defining the national territory of the Philippines. Art. receiving financial compensation or owning property. 53). 7 on the pursuit of independent foreign policy. 52) and the right of archipelagic sea lanes passage.

RECENT INTERNATIONAL LAW ISSUES understood and treated as a form of torture and.POLITICAL LAW REVIEWER Chapter XII. establish measures to encourage women to report domestic violence to the authorities. provide shelters and other support to victims. it has called upon States to ensure that their justice systems incorporate restraining orders to protect women from violent family members. the Human Rights Committee indicated that domestic violence can give rise to violations of the right not to be subjected to torture or ill-treatment under article 7 of the ICCPR. In 2000. is one that deserves consideration by the rapporteurs and treaty bodies that investigate these violations together perhaps with appropriate NGO experts and jurists”. including legislation criminalizing marital rape. In line with this statement the Committee has mentioned the need for States to adopt specific legislation combating domestic violence. 170 PUBLIC INTERNATIONAL LAW .More specifically. ill-treatment. when less severe.and offer “material and psychological relief to the victims.

normal baselines baselines—the lines depicting the low water line—are are used. Straight baselines are employed on the part of the coastwhich is fringed with islets. For State C.Continental Shelf and the Maritime Zones . Appendix 2 . combinations of normal and straight baselines are used.Straight and Normal Baselines 171 PUBLIC INTERNATIONAL LAW For States A and B.POLITICAL LAW REVIEWER APPENDICES Appendix 1 .end of Public International Law - .

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192 Writ of Amparo..183 Chapter III........ Finality of Judgment 194 2......188 5.. General Rule....................... Historical Considerations .................... Enforcement of Agency Action ........185 1................ Writ of Execution................... Mandamus.........185 B.176 2............174 B.......... General Rule........... 194 5...........184 5.......POLITICAL LAW REVIEWER TABLE of CONTENTS ADMINISTRATIVE LAW Table of Contents Chapter I.............. Question of Law...................184 A.. General Principles .........184 2................176 B.... 193 Injunction as Provisional Remedy 193 E............ When is an agency administrative? . Question of Fact ................................ Modes of Judicial Review....... Quasi-Legislative (Rule-making) Powers 176 1...................................... Definitions ........ 173 ADMINISTRATIVE LAW ......................... Definition .......................190 1......................................184 1.................. Ripeness ........188 4.176 A.........................................176 3..........................191 4...................188 3.........................187 C........ Judicial Review and Enforcement of Agency Action..... litis pendentia and res judicata also apply to administrative agencies........192 Habeas Corpus........... Types of Administrative Agencies ...184 4.............. Quasi-Judicial (Adjudicatory) Powers178 C............ When judicial review is valid despite finality of administrative decisions: ...190 3............184 3................................. Determinative Powers .......... .......174 C................174 A...... Doctrine of Exhaustion of Administrative Remedies....................175 Chapter II........185 7. Four Important Doctrines in Judicial Review .................... Doctrine of Primary Jurisdiction or Preliminary Resort ........................ Exceptions ... Non-delegation doctrine.... Basis ...... 6. Considerations ......................... Law-fact Distinction. 8.................... Availability of Judicial Review depends on:............................185 2......... Certiorari ..... 193 Habeas Data....190 2.... Declaratory Relief ..................................................... Powers of Administrative Agencies ............................................... 7............ Factors to Consider in Judicial Review: ......188 2................. Extent of Judicial Review ...189 D................ Legislative Delegation......... Res Judicata.................................. Question of Discretion ..175 E... Mandamus ........ Modes of Creation of Administrative Agencies ....... The doctrines of forum shopping..188 6...... Prohibition ................. 194 1............. Preliminary Considerations......................................................174 D.....186 3........184 6.................188 1. Doctrine of Qualified Political Agency 187 4.....

g. Preliminary Considerations A.POLITICAL LAW REVIEWER Chapter I. CHR. PRELIMINARY CONSIDERATIONS ADMINISTRATIVE LAW ADMINISTRATIVE LAW TEAM Prof. Definitions 1. C. E. PRC. 1987 Constitution (e. Games and . Historical Considerations 1. Philippine Patent Office. interferes with the conduct of the individual for the purpose of promoting the well-being of the community (DEAN ROSCOE POUND) 2. Rodolfo Noel Quimbo Faculty Editor Chapter I. and  Increased difficulty of administering laws [Pangasinan Transportation vs Public Service Commission (1940)] 2. Commission on Appointments.g. DEFINITIONS HISTORICAL CONSIDERATIONS MODES OF CREATION OF ADMINISTRATIVE AGENCIES WHEN IS AN AGENCY ADMINISTRATIVE? TYPES OF ADMINISTRATIVE AGENCIES Diana Lutgarda Bonilla Lead Writer POLITICAL LAW Jennifer Go Subject Editor ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief A. Why did administrative agencies come about?  Growing complexities of modern life  Multiplication of number of subjects needing government regulation. acting in a quasi-legislative or quasi-judicial capacity. Administrative Agencies are the organs of government. COMELEC. Administrative Law is that branch of modern law under which the executive department of the government. Legislative Enactment (e. 174 ADMINISTRATIVE LAW PRINTING & DISTRIBUTION Kae Guerrero DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. NLRC. other than a court and other than the legislature. Rania Joya LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers B. Why are administrative agencies needed? Because the government lacks:  Time  Expertise and  Organizational aptitude for effective and continuing regulation of new developments in society (STONE) MOCK BAR COMMITTEE Lilibeth Perez BAR CANDIDATES WELFARE Dahlia Salamat LOGISTICS Charisse Mendoza SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members C. Judicial and Bar Council and NEDA) 2. Social Security Commission. COA. which affect the rights of private parties either through adjudication or through rule-making. Modes of Creation of Administrative Agencies 1. CSC. B. Commission on Immigration and Deportation. SEC. D.

g. special privilege (e. NTC. NFA. PAO). businesses and 6. it is administrative when it does not have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law. BIR. MWSS. and Chapter I. PNR.g. 2. LTFRB. Fact-finding Agencies) D. Land Registration Authority). 3. Customs.POLITICAL LAW REVIEWER Amusement Board. When is an agency administrative? 1. Types of Administrative Agencies 1. NLRC. COA). Veterans Admin. Bureau of Lands. Where its function is primarily regulatory  EVEN IF it conducts hearings and determines controversies to carry out its regulatory duty. On its rule-making authority. SSS. PRELIMINARY CONSIDERATIONS 3. Insurance Commission.g. NHA).. Philpost. Service for public benefit (e. 4. GSIS. Phil.g. 2.g. Adjustment of individual controversies because of a strong social policy involved (e. ECC. Executive Order/ Authority of law (e. Regulation of private individuals (e. Regulation of businesses affected with public interest (e. SEC). SEC. 5. HLURB). 175 ADMINISTRATIVE LAW E. Board Insurance Commission) of Energy. . Immigration. Government grant or gratuity.g. Carrying out the actual business of government (e.g. DAR.

Permissible Delegation i. prices Sec. SUBPOENA POWERS 8. What has been delegated cannot be delegated. Wages. ii. RULES OF EVIDENCE DETERMINATIVE POWERS i. Form of the sufficient standard: i. Legislative Delegation a. Prices iv. [Chiongbian vs Orbos (1995)] C. WHAT QUASI-JUDICIAL POWERS INCLUDE 6. the limits of which are sufficiently determinate or determinable. POWER TO CITE IN CONTEMPT 9. Requisites for a valid delegation iii. A sufficient standard: i.POLITICAL LAW REVIEWER Chapter II. PERMISSIBLE DELEGATION QUASI-JUDICIAL (ADJUDICATORY) POWERS 1. POWERS of ADMINISTRATIVE AGENCIES Chapter II. Ascertainment of Fact ii. They can be conferred upon executive officials provided the party affected is given the opportunity to be heard. Powers of Administrative Agencies A. and ii. c. maps out its boundaries and specifies the public agency to apply it. DUE PROCESS 12. Licensing Function. Ascertainment of Fact. Administrative Rule-Making i. ABAKADA Guro List vs Ermita (2005)] 176 . A statute may give to non-judicial officers:  the power to declare the existence of facts which call into operation the statute’s provisions and  may grant them and their subordinate officers the power to ascertain and determine appropriate facts as a basis of procedure in the enforcement of laws. QUASI-LEGISLATIVE (RULE-MAKING) POWERS 1. Non-delegation doctrine Potestas delegata non delegare potest. 2. Embodied in other statutes on the same matter and not necessarily in the same law being challenged. A SUFFICIENT STANDARD c. Indicates the circumstances under which the legislative command is to be effected. 2(3). Definition The authority delegated by the law-making body to the administrative agency to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy.  Such functions are merely incidental to the exercise of power granted by law to clear navigable streams of unauthorized obstructions. Quasi-Legislative Powers (Asked 5 times in the Bar) (Rule-making) 1. The law must be complete in itself and must set forth the policy to be executed The law must fix a standard. Fixing of Rates. Express ii. FORM OF THE SUFFICIENT STANDARD d. GENERAL RULE 5. 1987 Administrative Code. marks its limits. [Santiago v COMELEC (1997). [Lovina vs. DEFINITION 2. Filling in of Details iii. DEFINITION 2. INVESTIGATIVE POWERS 7. Implied [Edu vs Ericta (1970)] iii. wages. Moreno(1963)] Filling in of details  For necessity and as a means of enforcement and execution [Alegre vs Collector of Customs (1920)] The powers of administrative agencies are:  Quasi-legislative (Rule-making)  Quasi-judicial (Adjudicatory) and  Determinative A. LEGISLATIVE DELEGATION a. to which the delegate must conform B. d. Fixing of rates. ii. SOURCE 3. ADMINISTRATIVE SEARCHES 11. and v. “Rate” means any charge to the public for a ADMINISTRATIVE LAW b. 3. WARRANTS OF ARREST 10. NOTICE AND HEARING 13. ADMINISTRATIVE AND JUDICIAL PROCEEDINGS ARISING FROM THE SAME FACTS 14. NON-DELEGATION DOCTRINE 3. REQUISITES FOR VALID EXERCISE 4. Defines legislative policy. REQUISITES OF A VALID DELEGATION b.

the provisions concerning contested cases shall apply insofar as practicable. 1987 Administrative Code. iv. suspended. Interpretative legislation Pertains to rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed. a permission or authority to do what is within its terms. No expiry date does not mean the license is perpetual. registration. 17. renewal. 1987 Administrative Code.e. 1987 Administrative Code. Can the power to fix rates be delegated to a common carrier or other public service? NO. no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least 2 weeks before the first hearing thereon. or safety requires otherwise. Need not be published. Need publication. withdrawal. membership. revocation. Supplementary legislation Pertains to rules and regulations to fix details in the execution of a policy in the law. statutory exemption or other form of permission. – (1) When the grant. Public Participation. Sec. Licensing Procedure. IRRs of the Labor Code. Interpretative legislation c. The latter may propose new rates. certificate.g.POLITICAL LAW REVIEWER service open to all and upon the same terms. e.(e. Sec. Create a new law. Licensing Function Sec. passport. driver’s licenses). 2(11). Otherwise. limitation. with the force and effect of law. It is always revocable. it becomes judicial when the rate is applicable only to an individual. but these will not be effective without the approval of the administrative agency. [KMU vs Garcia (1994)] What are considered in the fixing of rates? (1) the present valuation of all the property of a public utility. denial. The court may review their correctness of the interpretation of the law . and (2) the fixed assets. annulment. health. i. suspension. Supplementary legislation b. – Where the licensee has made timely and sufficient application for the renewal of a license with reference to any activity of a continuing nature. (2) Except in cases of willful violation of pertinent laws. tolls. So long as the court finds that the legislative rules are within the Interpretative Rules Passed pursuant to quasi-judicial capacity. or regulation of the exercise of a right or privilege.g. However. The property is deemed taken and condemned by the public at the time of filing the petition. Administrative Rule-making o Types of Administrative Rules: a. Sec. [Ynchausti vs Public Utility Commissioner (1922)]   When are notice and hearing required in licensing? Only if it is a contested case. denial or cancellation of a license is required to be preceded by notice and hearing. its Merely clarify the meaning of a pre-existing law by inferring its implications. the power to fix rates is a quasi-legislative function. and the rate should go up and down with the physical valuation of the property. 177 ADMINISTRATIVE LAW    Generally. classification or schedules thereof. “Licensing” includes agency process involving the grant. 2(10). 1987 Administrative Code. – (2) In the fixing of rates. revoked or annulled without notice and hearing. Sec. rules and regulations or when public security. BIR Circulars. amendment. no license may be withdrawn. approval. the existing license shall not expire until the application shall have been finally GENERAL DISTINCTIONS FROM LEGISLATIVE RULES Legislative Rules Promulgated pursuant to its quasi-legislative / rule-making functions. Chapter II. 18. A license permit is a special privilege. 1987 Administrative Code. clearance. kilometrage and other special rates which shall be imposed by law of regulation to be observed and followed by any person. charter. renewal. [Gonzalo Sy Trading vs Central bank (1976)] v. b. Contingent legislation a. including individual or joint rates. “License” includes the whole or any part of any agency permit. modification or conditioning or a license. it can be dispensed with. Nonexpiration of License. 9. POWERS of ADMINISTRATIVE AGENCIES determined by the agency. a new policy. mileage. as well as communication.

(b) does not involve unlawful use of legislative or judicial power.e. but generally it is given great weight. Administrative interpretations: may eliminate construction and uncertainty in doubtful cases. Definition. o Requisites of a valid administrative rule (WRAP)  Authorized by law  Within the scope or authority of law  Reasonableness  promulgated in accordance with prescribed Procedure Publication Rules  Administrative rules and regulations are subject to the publication and effectivity rules a) The law itself must declare the act as punishable and must also define or fix the penalty for the violation. Administrative interpretation is merely advisory.  In case of imminent danger to public health. not 15 days from date of filing with the UP Law Center. POWERS of ADMINISTRATIVE AGENCIES o o o o Restrictions on interpretative regulations: (a) does not change the character of a ministerial duty.POLITICAL LAW REVIEWER Legislative Rules power of the administrative agency to pass. prohibit or punish acts which the law does not even define as a criminal act. it must be published before it takes effect. Omission of Some Rules. 178 ADMINISTRATIVE LAW c. Publication is indispensable. – (2) Every rule establishing an offense or defining an act which. 1987 Administrative Code. Quasi-Judicial (Adjudicatory) Powers (Asked 4 times in the Bar) 1. Contingent legislation Pertains to rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends. has a very persuasive influence and may actually be regarded by the courts as the controlling factor. as seen in the primary law. of the Admin Code in relation to the Civil Code. Chapter II. b) Can administrative bodies make penal rules? NO. Penal statutes are exclusive to the legislature and cannot be delegated. The power of the administrative agency to determine questions of fact to which the legislative policy is to apply. When laws are susceptible of two or more interpretations. Courts finally determine what the law means. 6. Administrative rules and regulations must not include. and substitute its own view of what is correct to the administrative body. in o . court can only invalidate the same but not substitute its decision or interpretation or give its own set of rules. then the rules bind the court. especially if the rule is general. EXCEPTIONS:  Different date is fixed by law or specified in the rule. [People vs Maceren (1977)] c) If a rule is penal. EXCEPTIONS:  Interpretative rules  Internal regulations (i. safety and welfare. The court cannot question the wisdom or correctness of the policy contained in the rules. Due process involves whether the parties were afforded the opportunity to be notified and heard before the issuance of the ruling. Interpretative Rules given by the administrative body. Due process means that the body observed the proper procedure in passing rules. If it is not within the scope of the administrative agency. pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text. the administrative agency should make known its official position. o Penal Rules Sec. regulating personnel)  Letters of instructions issued by administrative superior to subordinates  Effectivity: 15 days after publication. [People vs Que Po Lay (1954)] B.  EO 200 requires publication of laws in the Official Gazette or in a newspaper of general circulation. Administrative construction/ interpretation not controlling as to the proper construction of a statute.

2. 5. Subpoena powers. Effect of administrative acts outside jurisdiction—VOID. This power must be expressly granted in the charter (ex. and a full consideration of evidence) are accorded the greatest respect by courts DISTINCTIONS FROM JUDICAL PROCEEDINGS Kind of Proceedings Nature of Proceedings Rules of Procedure Administrative Judicial 7. conflicts with paragraph 3. Jurisdiction b. 179 ADMINISTRATIVE LAW Inquisitorial Liberally applied Adversarial Follow technical rules in the Rules of Court Decision includes matters brought as issue by the parties The parties are only the private litigants Nature and Extent of Decision Decision limited to matters of general concern Parties The agency itself may be a party to the proceedings before it 8. Only a judge may issue warrants. Power to cite in contempt. Subpoenas c. Investigative powers. Quasi-judicial powers include: (SF-SWIP) a. Administrative Searches f. Notice and 3. a. III of the 1935 Constitution. All agencies with quasi-judicial functions have the power to issue subpoena even if the charter is silent as to such power. PD 902-A creating the SEC).POLITICAL LAW REVIEWER Chapter II. General Rule: A tribunal. Power to Cite in Contempt d. conferred through the terms of the enabling statute. Incidental to the power of regulation but is often expressly conferred by the legislature through specific provisions in the charter of the agency. Warrants of Arrest (only upon final order of deportation) e. Administrative agencies’ power to conduct investigations and hearings. Imposition of Fines and penalties 6. solely for the purpose of investigation and before a final order of deportation is issued. [Qua Chee Gan v Deportation Board (1963)]  Two ways of deporting: i.  Test for valid enforcement of subpoena: [Evangelista vs Jarencio (1975)] (a) Within the authority of the agency. the agency must go to the RTC.  Contempt power can be used for quasijudicial functions (but NOT ministerial ones) [Guevarra vs COMELEC (1958)] 9. Requisites for a Valid Exercise: a. (c) Information reasonably relevant. President after due investigation (Sec 69 of Administrative Code) Can the Commissioner issue warrants of arrest? Issuance of the warrants of arrest by the Commissioner. [Salazar v Achacoso (1990)] EXCEPTION: Deportation of illegal and undesirable aliens following a final order of deportation. notice and hearing parties. b. Administrative agencies cannot issue warrants of arrest.g. which states that the power to determine probable cause for warrants of arrest is limited to judges.  Findings of facts by administrative bodies which observed procedural safeguards (e. POWERS of ADMINISTRATIVE AGENCIES accordance with the standards laid down by the law itself. Investigative b. and make findings and recommendations thereon is inherent in their functions as administrative agencies  . Jurisdiction to hear is explicitly or by necessary implication. (b) Demand not too indefinite. Source. Why? Because the power to cite in contempt is inherently judicial. Warrants of arrest. 1. board or officer exercising judicial functions acts without jurisdiction if no authority has been conferred to it by law to hear and decide cases.  If there is no grant. Commissioner of Immigration (Sec 37 of CA 618) ii. Art. Due process 4. Sec. Warrants of arrest issued solely for the purpose of investigation and before a final order of deportation is issued are therefore null and void. Why? Adjudicative power will be rendered inutile if there is no subpoena power.

Harvey or Qua Chee Gan? Qua Chee Gan prevails. In this case. determined by a judge. The particular agency’s demand for access will be measured against a flexible standard of reasonableness that takes into account the public need for effective enforcement of regulations. ii. Here. III of the Constitution. and (2) the exception is in cases of deportation of illegal and  undesirable aliens. Subpoena may not be made and enforced in the field. does not extend to deportation proceedings. while Harvey was decided by a division. Subpoena must designate the needed documents. for the purpose of the same.2. It is supported by more recent cases. th There is no justification for relaxing 4 Amendment safeguards for commercial establishments. The SC reaffirms the following principles: (1) Under Sec. Subpoenaed party may obtain judicial review of reasonableness of demand prior to suffering penalties for refusal to comply. What is essential however is that (1) there be a specific charge against the alien. iii. not penal.  The Qua Chee Gan ruling is reinforced by a case more recent than the Harvey and Lucien cases. vii. diverge from the Qua Chee Gan ruling. POWERS of ADMINISTRATIVE AGENCIES bonds are sufficient to ensure that the subject will appear at the hearing without prejudice to more drastic measures in case of recalcitrant respondents. Thus. The essential requisite of probable cause is absent (Implication: the Commissioner may issue warrants of arrest upon finding of probable cause). Specific directives so compliance will not be unreasonably burdensome. 180 . it need not be conducted strictly in accordance with ordinary court proceedings. Note also that Salazar was decided en banc. whom the President or the Commissioner may order arrested.   It is surely anomalous to say that the individual and his private property are fully protected by the constitution only when he is suspected of criminal behavior.  Harvey v Defensor-Santiago (1988]. Warrants are a necessary and tolerable limitation on the right to enter upon and inspect places of business. and (3) the charge be substantiated by competent evidence  Lucien Tran Van Nghia v Liwag (1989). Only a judge may issue search or arrest warrants.  Salazar v Achacoso (1990) Art. Relevant in purpose. iv. Administrative Searches. The requirement of probable cause. Warrants should normally be sought only after entry is refused unless there is a citizen complaint or other satisfactory reason for securing immediate entry. The Mission Order was issued on the basis of sworn complaints of a single individual. 38 of the Labor Code allowing the Secretary of Labor the power to issue warrants of arrest is unconstitutional. Art. Warrantless nonemergency inspection of residential and commercial premises are significant intrusions upon the interests protected by th the 4 Amendment. [Vivo v Montesa (1968)]  The cases of Harvey and Lucien Tran Van Nghia. following a final order of deportation. however.POLITICAL LAW REVIEWER Chapter II. [Camara vs Municipal Court (1967)] Limitations on administrative subpoenas of corporate books and documents are: i. v. Deportation proceedings are administrative in nature. (2) there be a fair hearing conducted. [See vs Seattle (1967)] ADMINISTRATIVE LAW 10. the particular circumstances place doubt on the propriety of the arrest. but merely preventive. the arrest and detention by the CID preparatory to the deportation proceedings was illegal. The Commissioner can arrest aliens upon a warrant issued by him and deported upon warrant issued by the same after a determination of the existence of a ground for deportation by the Board of Commissioners. only judges may issue search warrants and warrants of arrest. vi. Limited in scope.

Right to a hearing (Includes the right of a party to present his own case and submit evidence in support thereof) ii. If it involves the exercise of discretion and there is no grave abuse. Independent consideration of judge (Must not simply accept the views of a subordinate) vii. Urgent reasons. an opportunity to seek reconsideration iii. the review becomes a farce. it is rendered meaningless. If without his fault. ii. [UP Board of Regents vs CA (1999)] Presence of a party at a trial is not always the essence of due process.POLITICAL LAW REVIEWER Chapter II.  When required: i. he can be cross examined. Evidence must be substantial. as in emergency cases. [People vs Ayson (1989)]  12.  When not required: i. The right of a party to confront and cross-examine opposing witness is a fundamental right which is part of due process. an opportunity to be heard ii. in administrative proceedings. if he voluntarily takes the witness stand. There is failure to sufficiently explain the reason for the decision rendered. Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected vi. 11-14 cover Administrative Procedure (Asked 9 times in the Bar)] 11. he is entitled to have the direct examination stricken off the record. there must be a chance to seek reconsideration. contemplates that the reviewing officer is a person different from the one who issued the appealed decision. or ii. [American InterFashion vs Office of the President (1991)] BUT respondents in administrative cases are not entitled to be informed of findings of investigative committees but only of the decision of the administrative body.    Self-incrimination. Due Process. [Pefianco v Moral (2000)] Due process is violated when: i. Decision must be supported by evidence. The right against selfincrimination may be invoked by the respondent at the time he is called by the complainant as a witness. in which case. When it affects a person’s status and liberty. that the parties be given notice of trial and i. Substantial Evidence: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. WON to hold an adversarial trial is discretionary. in prescribing a process of appeal to a higher level. iii. If not supported by substantial evidence. [Vinta Maritime v NLRC (1978)]. Parties cannot demand it as a matter of right. Otherwise. Notice and Hearing. iv. And imputation of a violation and imposition of a fine despite absence of due notice and hearing. Hearing may occur after deprivation. ii. When the law specifically requires it. [Rivera vs CSC (1995)]   Is a trial necessary? NO. All that the law requires is the element of fairness. However. iii. POWERS of ADMINISTRATIVE AGENCIES [Nos.  Due process does not always entail notice and hearing prior to the deprivation of a right. Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered. an opportunity to explain one’s side The law. [Globe Telecom v NTC (2004)]. but he may still invoke the right when the question calls for an answer which incriminates him for an offense other than that charged. The tribunal must consider the evidence presented iii. Discretion is exercised by an officer vested with it upon an undisputed fact. [Bachrach Motors vs CIR (1978)] Evidence on record must be fully disclosed to the parties. ADMINISTRATIVE LAW  181 . even if other minds equally reasonable would opine otherwise v.  Ang Tibay v CIR (1950) lays down the cardinal primary rights: i. this right is violated.

there is no prohibition. imposition or mistake. [Ortua vs Singson (1934)] 14. and attenuating circumstances of value in administrative proceedings that are not admissible in criminal cases which can have a blunting effect on the conviction. unless law provides otherwise. Generally. Findings in criminal cases cannot be conclusive for administrative purposes. In the absence thereof. and take judicial notice of certain other matters. other than error of judgment in estimating the value or effect of the evidence. Due process should be upheld. iii. They may also make their inquiry into facts at issue. [Villanos vs Subido (supra)] administrative agencies to act with speed and flexibility. POWERS of ADMINISTRATIVE AGENCIES iv.  The difference in the proceeding (one administrative. Quantum of Evidence: Only substantial evidence is required to support a decision. as it is only an auxiliary remedy. In the valid exercise of police power. Conviction does not ex proprio vigore justify automatic suspension. They involve different causes of action and therefore can proceed simultaneously. apply the specific rules of the administrative agency. but merely physical incompatibility. The Pervasive Principle applies in at least three areas: i. [Maceda v ERB (1991)] When are findings of fact of administrative agencies not conclusive upon the courts? 182 ADMINISTRATIVE LAW     i. [Police Commission vs Lood (1980)] There can be a conviction in a criminal case and an acquittal in the administrative case. [Galang vs CA (1961)] Material matters in an administrative case are not necessarily relevant in the criminal case. Admissibility: Generally. Parties are still entitled to a hearing. ii. the other criminal) is not legal incompatibility. Rules of Evidence. the administrative body may except itself from technical rules and apply such suitable procedure as shall promote the objectives. The administrative case requires only a preponderance of evidence to establish administrative guilt. When the supported decision is not by substantial . Judicial Notice: Administrative bodies may take into account not only such evidence as may be presented by the parties in the determination of the case. (the Pervasive Principle) Why? To allow ii. apply the general rules on procedure. When rules to govern future conduct of persons or enterprises. so long as due process is observed. Such a relaxed procedure is especially true in administrative bodies. Movie Pictures Workers Association vs Premiere Productions (1953)] Can the order of testimony be changed? YES. [Phil. [Villanos vs Subido (1971)] Acquittal in the criminal case does not carry with it relief from administrative liability. agencies are not bound by the technical rules of admissibility. administrative agencies are not bound by the technical rules of evidence of ordinary courts. Different standards apply. it is within the discretion of the court. Administrative and judicial proceedings arising from the same facts.  However.  When the decision was rendered by an almost evenly divided court and the division was precisely on the facts as borne out by the evidence. v. There are defenses.  The practice in the Philippines has been to allow an administrative proceeding and a judicial proceeding to take place at the same time so long as the 2 actions are independent of each other. 13. the criminal case requires proof beyond reasonable doubt of the criminal charge. iii.  Ocular inspection is not equivalent to a trial or presentation of evidence.POLITICAL LAW REVIEWER Chapter II. In the broad interest of justice. [Gonzales vs Victory Labor Union (1969)] When the decision was rendered in consequence of fraud. But if the issue can be resolved through ocular inspection. excuses.

There is no trial through position papers where the adversarial process would ensure a better presentation and appreciation of the evidence. e. consists in requiring production of books.g. e. [Universal Camera vs NLRC (1951)] 183 C.g. authority of zoning d. Examining — investigatory power. (1988)] [Manahan v People iv. Enabling — to permit or allow something which the law undertakes to regulate. or relieve an individual or corporation from an affirmative duty. assessment by the BIR or Customs c. .g. licenses b. Dispensing — to exempt from a general prohibition.POLITICAL LAW REVIEWER Chapter II. and the attendance of witnesses and compelling their testimony e. Determinative Powers Determinative powers are: (DEEDS) a. fields of health inspection. Summary — power to apply compulsion or force to effect a legal purpose without a judicial warrant to authorize such action. When the findings are based merely on their position papers. POWERS of ADMINISTRATIVE AGENCIES evidence. [PAL vs Confessor (1994)]  ADMINISTRATIVE LAW The SC will intervene only when the standard appears to have been misapprehended or grossly misapplied. papers. e.e. abatement of nuisances. Directing — i.

Exercised unconstitutional powers. or in case the administrative decision is corrupt. LAW-FACT DISTINCTION 4. or d. D. judicial review may be granted or withheld as Congress chooses. Considerations 1. and 2. Intention of Congress prevails. Thus. Judicial review is proper in cases of lack of jurisdiction. PROHIBITION 3. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION Chapter III. Judicial Review Enforcement of Agency Action A. Factors to Consider in Judicial Review: a. Question of Law v Question of Fact (refer to discussion on Extent of Judicial Review on page 147) B. BASIS 2. QUESTION OF LAW 5. EXCEPTION: when the Constitution requires or allows it. E. c. Nature of problem involved: i. PRIMARY JURISDICTION 2. HABEAS CORPUS 6. 4. However. QUALIFIED POLITICAL AGENCY 4. 3. GENERAL RULE 5. [Manuel vs Villena (1971)] . grave abuse of discretion. Right (should be protected by law) v Privilege (can be unilaterally withdrawn) ii. CERTIORARI 2. MANDAMUS 4. Judicial review keeps the administrative agency within its jurisdiction and protects substantial rights of parties affected by its decisions. CONSIDERATIONS 1. 2 of the 1987 Constitution. EXHAUSTION OF ADMINISTRATIVE REMEDIES 3. Exceptions Administrative proceedings may be reviewed by the courts upon a showing that the board or official: a. General Rule Courts will refuse to interfere with proceedings undertaken by administrative bodies or officials in the exercise of administrative functions. b. b. WHEN JUDICIAL REVIEW IS VALID DESPITE FINALITY OF ADMINISTRATIVE DECISIONS 7. The doctrines of forum shopping. arbitrary or capricious. C. The decision is vitiated by fraud. error of law. RIPENESS EXTENT OF JUDICIAL REVIEW 1. c. Basis There is an underlying power in the courts to scrutinize the acts of administrative agencies exercising quasi-judicial power on questions of law and jurisdiction even though no right of review is given by the statute. DECLARATORY RELIEF 5. QUESTION OF DISCRETION MODES OF JUDICIAL REVIEW 1. AMPARO 7. DOCTRINES APPLICABLE TO ADMINISTRATIVE AGENCIES 4. GENERAL PRINCIPLES 3. If what is involved is a question of constitutionality. EXCEPTIONS 6. imposition or mistake. In such a case. WRIT OF EXECUTION.POLITICAL LAW REVIEWER Chapter III. A. INJUNCTION AS PROVISIONAL REMEDY ENFORCEMENT OF AGENCY ACTION 1. FINAL JUDGMENT 2. Art. MANDAMUS 184 ADMINISTRATIVE LAW d. QUESTION OF FACT 6. Finality of the administrative decision. Clearly acted arbitrarily and without regard to his duty. fraud or collusion. there is no violation of due process. [San Miguel Corp. FACTORS TO CONSIDER IN JUDICIAL REVIEW 3. 1 par. or with grave abuse of discretion. GENERAL RULE 2. RES JUDICATA. AVAILABILITY OF JUDICIAL REVIEW FOUR IMPORTANT DOCTRINES IN JUDICIAL REVIEW 1. the law may provide that a determination made by an administrative agency shall be final and irreviewable. HABEAS DATA 8. 8 Sec. judicial review is available. Has gone beyond his statutory authority. which provides that the judicial power includes the power of the courts of justice to determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government agency or instrumentality. clearly means that judicial review of administrative decisions cannot be denied the courts when there is an allegation of grave abuse of discretion. litis pendentia and res judicata also apply to administrative agencies. v Labor Secretary (1975)] 5.

unjust decision. When judicial review is valid despite finality of administrative decisions: a. k. 2. Lack of jurisdiction. Whether the defendant is the proper defendant. m. specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved. if the determination of the case requires the expertise. and does not amount to ouster of the court. [Industrial Enterprises v CA (1990)] Well-entrenched is the rule that courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. Administrative agency exercised unconstitutional powers. since administrative agencies are usually given the rank equal to or higher than the RTC. l. Doctrine of Primary Jurisdiction or Preliminary Resort ADMINISTRATIVE LAW a. Violates or fails to comply with some mandatory provision of law. It is a question of the court yielding to the agency because of the latter’s expertise. his case is said to be not ripe for judicial review yet. d. g. There is no problem when the statute itself expressly grants or prohibits judicial review. The period for filing the case must also be considered in view of the statute of limitations. Whether the enabling statute permits judicial review. When a person has not exhausted all the administrative remedies available to him. He is said to have invoked the intervention of the court prematurely. e. latitude which includes the authority to take judicial notice of facts within their special competence [(Quiambao vs CA (2005)] 185 7. o . Availability of Judicial Review depends on: i. It is very seldom that the forum is in the RTC. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION 6. or the very administrative agency before whom the right is being applied. [Texas & Pacific Railway v Abilene (1907)] o It is the recent jurisprudential trend to apply the doctrine of primary jurisdiction in many cases that demand the special competence of administrative agencies. judicial review is available j. Manifestly arbitrary. Primary Jurisdiction Exhaustion of Administrative Remedies Qualified Political Agency Ripeness 1. the Uniform Appeals Act is applicable. Decision is wrong. Grave abuse of discretion. Whether the time for the filing of the case is proper. Although this is not a jurisdictional requirement. Four Important Doctrines in Judicial Review 1. failure to abide by the doctrine affects petitioner’s cause of action. General rule. It can only occur where there is a concurrence of jurisdiction between the court and the administrative agency. Whether the forum is the proper forum. In its absence. Courts will not intervene if the question to be resolved is one which requires the expertise of administrative agencies and the legislative intent on the matter is to have uniformity in the rulings. generally. Whether the case is ripe for adjudication. capricious. which means that the matter involved is also judicial in character. h. Vitiated by fraud. Administrative body or officer has gone beyond its/his statutory authority. 3. Whether the plaintiff has standing. f. n. imposition or mistake. then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. 4. But when it is silent. as well as the period required by the statute or rules for the filing of appeals. Not based upon any reasonable interpretation of law. It may occur that the Court has jurisdiction to take cognizance of a particular case. Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions. The defendant could be either a private party. However.POLITICAL LAW REVIEWER Chapter III. B. b. c. The forum is usually provided for in the enacting statute.

[Sherwill vs Sitio Sto Nino (2005)] iii. Administrative body and the regular court have concurrent and original jurisdiction 2. Legislative intent on the matter is to have uniformity in rulings 4. Exceptions to the Doctrine of Exhaustion of Remedies:  Purely legal questions. The administrative agency is performing a quasi-judicial function. General Rule: Where the law has delineated the procedure by which administrative appeal or remedy could be effected. iii. Requisites: i. Legal reason: The law prescribes a procedure. If the agency has exclusive jurisdiction ii. convenience.  Effect. Practical reason: To give the agency a chance to correct its own errors [and prevent unnecessary and premature resort to the courts . but merely suspended until after the matters within the competence of the administrative agency are threshed out and determined.POLITICAL LAW REVIEWER Chapter III. in such cases. [Pascual vs Provincial Board (1959)]  Administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy. Question to be resolved requires expertise of administrative agency 3. the same should be followed before recourse to judicial action can be initiated. Between the power lodged in an administrative body and a court. the judicial process is suspended pending referral of such issues to the administrative body for its view. Administrative agency is performing a quasi-judicial or adjudicatory function (not rule-making or quasi-legislative function [Smart vs NTC (2003)]  Rationale: It is presumed that an administrative agency. The court acts in its appellate jurisdiction.  ADMINISTRATIVE LAW The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts. 4. have been placed within the special competence of an administrative body. under a regulatory scheme. and comes into play whenever enforcement of the claim requires the resolution of issues which. [Pascual vs Provincial Board (1959)] 2. Reasons of comity: Expedience. 3. Information b. Doctrine of Exhaustion Administrative Remedies of o Reason: In this era of clogged docket courts. in such case. if afforded an opportunity to pass upon a matter. would decide the same correctly. or correct any previous error committed in its forum [Caballes v Sison (2004)] When the Doctrine is Inapplicable: i. When the issue is not within the competence of the administrative body to act on. [Pascual vs Provincial Board (1959)]  Validity and urgency of judicial action or intervention. Requisites: 1. [Castro vs Secretary (2001)]  Steps to be taken are merely matters of form. ii. courtesy. [Vidad vs RTC (1993)] 186 . the need for specialized administrative boards with the special knowledge and capability to hear and determine promptly disputes on technical matters has become well nigh indispensable. speedy. And. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION o 2. [Paat v CA (1997)t. the court cannot arrogate into itself the authority to resolve a controversy. The case is not dismissed. Rationale: i. (GMA vs ABS CBN (2005)] 1. iii. the unmistakable trend has been to refer it to the former. adequate remedy in the ordinary course of the law. Judicial review is available. the jurisdiction over which is initially lodged with an administrative body of special competence. ii. When the issue involved is clearly a factual question that does not require specialized skills and knowledge for resolution to justify the exercise of primary jurisdiction. [Paat vs CA (1997)]  No other plain.

Paat vs CA (1997)] No administrative review provided for by law. [DAR vs Apex Investment (2003). Judicial review is available/appropriate iii. 2. The act of the department head is presumptively the act of the President (as his alter ego). Two-fold test for a controversy to be ripe [Abbot Laboratories v Gardner (1967)]  Fitness of the issue for judicial decision. [Tan v Director of Forestry (1983)] 187 ADMINISTRATIVE LAW 4. b. Example: The President . 5. [Corpus vs Cuaderno (1962)] Law expressly provides for a different review procedure. [Corpuz vs Cuaderno (1962)] Application of the doctrine will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action. the DOTC Secretary . [Paat vs CA (1997). The only effect of non-compliance is it that will deprive complainant of a cause of action. To prevent courts. ii. [Republic vs Sandiganbayan (1996)] Doctrine of qualified political agency Subject of controversy is private land in land case proceedings. thru avoidance of premature adjudication. [Smart vs NTC (2003)] Administrative agency is in estoppel. . [Paat vs CA (1997)] Resort to administrative remedy will amount to a nullification of a claim. [Paat vs CA (1997). Purpose [Abbot Laboratories v Gardner (1967)] i. which is a ground for a motion to dismiss. Cipriano vs Marcelino (1972)] When it involves the rule-making or quasi-legislative functions of an administrative agency. Administrative agency exercising its rule-making or quasi-legislative function a. Administrative agency’s decision is final. unless revoked by the latter. Cipriano vs Marcelino (1972)] Where the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings. [Estrada vs CA (2004)] In quo warranto proceedings. [Paat vs CA (1997). To protect agencies from judicial interference until a decision has been formalized and its effect is felt in a concrete way or the imminence of the effect is demonstrable. this ground is deemed waived. ii. Exception: Where the law expressly provides for exhaustion via an appeal to the President. [Samahang Magbubukid vs CA (1999)] But if not invoked at the proper time.[Republic vs Sandiganbayan (1996)] 3. [Estrada vs CA (2004)] Issue of non-exhaustion of administrative remedies rendered moot.through his duly constituted political agent and alter ego. Ripeness 1. When applied: i. from entangling themselves in abstract agreement over administrative policies.may legally and validly decree the reorganization of the Department. [Sec of DOTC v Mabalot (2002)] 3.  Hardship to the parties of withholding such court action. [Paat vs CA (1997)] Blatant violation of due process. Pagara vs CA] Where there is unreasonable delay or official inaction.POLITICAL LAW REVIEWER Chapter III. Doctrine of Qualified Political Agency 1. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION                Technology Found’n v COMELEC (2004)] Resort to exhaustion will only be oppressive and patently unreasonable. Effect of Failure to Exhaust Administrative Remedies: It does not affect jurisdiction of the court. [Republic vs Sandiganbayan (1996)] Administrative action is patently illegal amounting to lack or excess of jurisdiction.

[Ysmael vs CIR (1960)] 188 1. the happening of an event. 3. General rule d. if based on substantial evidence. Where the act of the administrative official constitutes not only an excess of regulatory power conferred upon him. Law-fact Distinction a. General Rule Laws creating administrative agencies and providing for judicial review may indicate the scope of that review. Examples 6. ii. Rationale e. and d. General rule b. Questions of law are always reviewable by the courts. Substantial Evidence Rule: Findings of fact. 5. courts can review if the decision is attended with capriciousness. b. A question of fact exists if the issue involved is the existence of a fact. 4. iii. General Rule: Finality is attached to findings of fact of some agencies when these findings are supported by substantial evidence and as long as there is no grave abuse of discretion. ii. Correctness of the agency’s interpretation and application of the law. Questions of jurisdiction are always reviewable as they go into the question of authority to decide. General Principles a. b. are conclusive and binding on the courts. There is no clear-cut line that separates questions of law from questions of fact. Question of Fact a. Definition b. 2. What may be questioned? i. General rule: Questions of law are subject to judicial review. but also an exercise of legislative power which he does not have. c. Extent of Judicial Review 1. ADMINISTRATIVE LAW b. examine the entire record including the evidence if necessary. The issue of WON an EmployerEmployee relationship exists is a question of law. Question of Fact a. the court will. 3. Judicial review of administrative discretion v Substitution of judicial discretion for administrative discretion c. If the decision of a case is discretionary on the part of the agency. When the conclusion drawn by an administrative official from the facts found is erroneous or not warranted by law. Examples 5. c. or iii. Discretionary Acts v Ministerial Acts b. General Rule General Principles Law-fact Distinction Question of Law a. of fact or of both as well as of administrative discretion will depend on the enabling act. Whether the courts may inquire into questions of law. Constitutionality of the statute creating the agency and granting its powers. Exception f. 2. but some cases may involve mixed questions of law and fact. 4. Examples: i. iv. Administrative official’s action which is based on a misconstruction of law can be corrected and is not conclusive upon the courts. There may be cases where the issues raised may easily be classified under one or the other. or which of the two versions of the happening of an event is correct. General Rule c. Question of Law a. Examples question of fact is so involved with and dependent upon a question of law as to be in substance and effect a decision on the latter. Definition. What may be questioned? c. in order to decide the legal question. Validity of the agency action if this transcends the limit established by law. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION C. Brandeis Doctrine of Assimilation of Facts: Where what purports to be a finding upon a . b.POLITICAL LAW REVIEWER Chapter III. Question of Discretion a.

[Universal Camera vs NLRC (1951)] EXCEPTIONS: i. [Mollaneda vs Umacob (2001)] iii. One circumstance where the court may not accept the agency’s findings of fact is when the decision rendered by an almost evenly divided court and the division was precisely on the facts as borne out by the evidence. Question of Discretion a. departure from statutory standards. Administrative proceedings are governed by the substantial evidence rule. [PAL v. propriety or expediency are for the agency and not for the courts. Discretionary Acts v Ministerial Acts Discretionary When applied to public functionaries. is in a better position to assess the demeanor of the witnesses and the credibility of their testimonies as they were within its proximal view during the hearing or investigation. to be substantial. It is a simple. or otherwise substitute its judgment for that of the administrative agency on the sufficiency of evidence. or lack of evidentiary support. When there is grave abuse of discretion amounting to lack of jurisdiction. the dismissal of the criminal case will not foreclose administrative action against respondent. b. [ Banco Filipino vs Central Bank (1991)] 6. determine the credibility of witnesses. discretion may be defined as the power or right conferred upon them by law to act officially under certain circumstances. in order to determine the substantiality of the evidence. as a trier of facts. [Velasco vs Hernandez (2004)] iii. Substitution of judicial discretion for administrative discretion o Questions of policy or discretion are reviewable only for unreasonableness. This is different from the quantum of proof required in criminal proceedings which necessitates a finding of guilt of the accused beyond reasonable doubt. must consider evidence not only in its quantitative but also in its qualitative aspects. Judicial review of administrative discretion vs.POLITICAL LAW REVIEWER Chapter III. Ministerial duty is one in respect to which nothing is left to discretion. In such a situation the court. and imposed by law. definite duty arising under conditions admitted or proved to exist. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION c. The very essence of discretionary power is that the person or persons exercising it may choose which of several courses of action should be followed. It is not for the reviewing court to weigh the conflicting evidence. Ministerial A ministerial act has been defined as one performed in response to a duty which has been positively imposed by law and its performance required at a time and in a manner or upon conditions specifically designated. For. Examples: GENERAL RULE: i. evidence must first of all be credible. according to the dictates of their own judgment and conscience and not controlled by the judgment of others. The substantial evidence standard is not modified in any way when officials of an administrative agency disagree in their findings. Confessor (1994)] 189 . ii. A finding of guilt in an administrative case would have to be sustained for as long as it is supported by substantial evidence that the respondent has committed the acts stated in the complaint or formal charge. Ergo. The court is inclined to review the findings of fact of an administrative official if they are not based on a thorough examination of the parties’ contending claims wherein the adversarial process would ensure a better presentation and appreciation of evidence. there is a justification for the courts to set aside the administrative determination. ADMINISTRATIVE LAW The court recognizes that the trial court or administrative body. and questions of wisdom. ii. the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion. [Gonzales vs Victory Labor Union (1969)] Discretion is the power to make a choice among permissive actions or policies.

vs NLRC (1989)] f. Modes of Judicial Review The Modes of Judicial Review are: 1. c. the court will not interfere. is nevertheless persuasive and given much weight especially if the agency is one of special competence and experience. The erroneous appreciation of the significance of the facts before the administrative agency does not mean that the administrative agency had abused its discretion. The special civil action of certiorari is still the proper vehicle for judicial review of the decision of the NLRC. Certiorari a. [Laguna Tayabas vs PSC (1957)] ii.POLITICAL LAW REVIEWER Chapter III. [PLDT vs NTC (1995)] 2. save upon a very clear showing of serious violation of law or of fraud. Mandamus 4. [Azores vs SEC (1996)] 190 ADMINISTRATIVE LAW d. personal malice or wanton oppression. ii. adequate. Purpose: The purpose of a certiorari is to set aside or nullify proceedings. General rule: In the exercise of discretion lawfully given. arbitrary. NOTE: Certiorari for COMELEC decisions is limited to Rule 65. it should suffer the consequences of its own negligence. Requisites i. Requisites i. f. Exception: If discretion was exercised in a capricious. Certiorari 2. d. No plain. c. and hostile manner. partial. Amparo 7. c. and speedy remedy available iii. abusive. on questions of law. while not as conclusive as its findings of facts. No plain. but will determine the lawfulness of its action. Prohibition is broader in scope compared to Certiorari because it applies to agencies performing both quasi-judicial and ministerial functions. e. Declaratory Relief 5. The ruling of an administrative agency. Involves question of lack of jurisdiction or grave abuse of discretion ii. [St. Failure of a party to perfect its appeal in the manner and within the period fixed by law renders the decision sought to be appealed final. Issues on the same grounds as certiorari must be timely availed of. Examples: i. The purpose of prohibition is to prohibit or stop proceedings. Nature. Prohibition D. Injunction as provisional remedy a. Purpose. For CSC and COA decisions. adequate and speedy remedy available. Habeas Corpus 6. This action is preventive and not for acts already performed. b. A motion for reconsideration is a remedy and since Purefoods filed a motion for reconsideration beyond the reglementary period. Courts should not intervene in that administrative process. The administrative agency must be performing a quasi-judicial function. b. 1. Rationale: Recognition of the expertise of the agency. Ground raised is lack of jurisdiction or grave abuse of discretion. Martin Funeral Homes vs NLRC (1998)] e. whimsical. Prohibition 3. Habeas Data 8. [Purefoods Corp. . Courts have none of the technical and economic or financial competence which specialized administrative agencies have at their disposal. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION The court will not substitute its discretion or judgment for that of the administrative agency. Certiorari cannot be invoked if what is involved is merely a ministerial function. d. A special civil action for certiorari however is within the concurrent original jurisdiction of the SC and CA and it would be advantageous to the aggrieved party to recourse from the NLRC to CA as an initial step in the process of judicial review. the rules on ordinary appeal apply. with the result that no court can exercise appellate jurisdiction to review the decision.

the citizenship issue should be allowed to be decided first in a judicial proceeding. Mandamus will lie against a ministerial duty when the official/agency refuses to exercise its ministerial duty to act on its quasi-judicial functions. Petitioner has a clear. vs CHR. When the evidence is not conclusive on either side. iii. the CHR. CHR’s contention that prohibition is moot and academic cannot be sustained. (1924)] l. speedy and adequate remedy. Mandamus only lies to compel the performance of a ministerial duty. (1982)] Mandamus will not issue to: o compel an official to do anything which is not his duty to do or o give the applicant anything to which he is not entitled by law. suspending the administrative proceedings in the meantime that the alienage or citizenship is being determined in the courts. d. of Foreign Affairs. the courts should promptly enjoin the deportation proceedings. c. No other plain. mandamus will not lie. [Province of Pangasinan v. While it is true that prohibition as a preventive remedy is not intended as a remedy to restrain what has already accomplished. (1996)] Mandamus is a command issuing from a court of competent jurisdiction. controlling right. e. Mandamus will lie only to compel the board to take some action when it refuses but it will not prescribe the action to be taken. it becomes the ministerial duty of the Commission to give due course to petitioner’s application. has yet to promulgate its resolutions. while specific performance is based on contract. The Commissioner cannot be compelled to impose tax assessment not found by him to be due for that would be tantamount to a usurpation of an executive function. (1959)] i. b. Mandamus will not lie to review or control the action or decision of the Board where such action or decision is one resting in the discretion of the Board and involves the construction of the law and the application of the facts thereto. [Ng Gloc Liu vs Sec. Mandamus will not issue to control or review the exercise of discretion of a public officer. Having been satisfied that Tan is not among those excluded from the coverage of said law. The difference between the 2 remedies lies in their basis: mandamus is based on the ministerial duty imposed by law. Requisites: i. The act of confirming is not a ministerial duty. (1977)] Tax assessment is discretionary. Reparations Commission. The Backpay Law enumerates those not entitled to backpay.POLITICAL LAW REVIEWER Chapter III. [Cruz v. directed to some inferior court. Veterans Board. (1994)] h. j. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION iii. Jr. the remedy in this case is specific performance. Applies to agencies performing both quasi-judicial and ministerial functions. Duty is ministerial. (1950)] g. Mandamus is an order compelling a party to perform an act arising out of a positive duty imposed by law. or to some corporation or person requiring the 3. CA. [Blanco vs Board of Examiners. The exception stated in Chua Hiong should be allowed only in the sound discretion of a competent court in a proper proceeding [Co vs Deportation Board. (1977)] f. therefore. [Policarpio vs Phil. [Tan vs Veterans Backpay Commission. [Simon. It is simply a command to exercise a power already possessed and to perform a duty already imposed. e. and no prohibition is made against aliens in receiving backpay. and the prohibition is intended to prevent just that. The issuance of a visa is a discretionary function on the part of the consul and carries with it the concern of public safety. Savellano. Mandamus will not lie to enforce a contractual obligation. [Meralco Securities Corporation v. or board. Nature. [Chua Hiong vs Deportation Board. tribunal. in this case. ii. k. ADMINISTRATIVE LAW g. If one seeks to settle contractual rights and obligations and to regulate a course of conduct. Mandamus a. The remedy will be specific performance. (1956)] 191 . When the evidence submitted is conclusive of his citizenship. CHR had no jurisdiction to issue the writ of preliminary injunction since what is involved is neither political nor civil rights. (1955)] f. in the name of the state or the sovereign.

b. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION performance of a particular duty therein specified. the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. iii. and test the validity of detention as ordered by an agency. which is a constitutionally guaranteed right. d. There is illegal confinement or detention. Rightful custody of any person is withheld from the person entitled thereto. ii. Requisites i. Habeas Corpus a.  Where declaratory relief would not terminate the uncertainty of the controversy. 6) Controversy must be ripe for adjudication 7) All administrative remedies have been exhausted. status and other relations commonly expressed in written instruments  since this remedy is available only if it is limited to a declaration of rights. Purpose: To determine the construction. will. MMDA’s obligation to perform their duties as defined by law. and not to a determination. c. corporation. 2 Situations when a writ of mandamus may issue: When any tribunal. are two different concepts. be the the are 5. There is illegal restraint of liberty. Neglects the performance of an act which the law specifically enjoins as a duty resulting from an office.  Where the relief sought would be determinative of issues rather than a construction of definite stated rights. A person detained upon the orders of an agency may test the validity of his detention through the privilege of the writ of habeas corpus. (Art. [MMDA v. 1) Subject matter must be a deed. validity and declaration of rights. An action for declaratory relief must brought in the RTC. officer or person unlawfully: i. board. c. Concerned Citizens of Manila Bay (2008)] A continuing mandamus is a mandamus issued by the court under extraordinary circumstances with directives with the end of ensuring that its decision would not be set to naught by administrative inaction or indifference. Requisites. 8) Adequate relief is not available through other means or other forms of action or proceeding. De Guzman. 4) There must be an actual justiciable controversy between persons with adverse interests. or ii. or from operation of law. Purpose: Secure the release of a person deprived of his liberty. trust. or law or governmental regulation which affects his rights. 2) The terms of the written instrument are.  Where petition for declaratory relief is filed after the breach of law took place. 1987 Constitution) b. When Not Applicable  In securing a judicial declaration of citizenship. contract or written instrument in which petitioner is legally interested. It is not among actions within the original jurisdiction of SC even if only questions of law involved. and how they are to carry out such duties. on the other.  Where petitioner never acquired any interest in the object of the controversy. 3) Petition is filed before breach or violation of the instrument or regulation. 15. Excludes another from the use and enjoyment of a right or office to which the other is entitled. III. While the implementation of the MMDA’s mandated tasks may entail a decision-making process. or station. Nature: The great writ of liberty is intended as a speedy remedy to secure the release of a person deprived of his liberty. n. which duty results from the official station of the party to whom the writ is directed. [PRC v. 192 ADMINISTRATIVE LAW 4. sec. Declaratory Relief a. (2004)] m. trial or judicial investigation of issues. or the validity of the law or regulation is doubtful and requires judicial construction. on one hand. and enjoyed no rights which were violated.POLITICAL LAW REVIEWER Chapter III. . 5) Petitioner must have legal interest in the controversy.

Nature and Purpose: The writ of habeas data is an independent remedy to protect the right to privacy. renders a petition for the writ of habeas corpus moot and academic. is doing. (Annotation to the Writ of Habeas Data) 193 ADMINISTRATIVE LAW 8. Liwag. b. Injunction can only be issued by superior to an inferior body.POLITICAL LAW REVIEWER Chapter III. or ii. Valencia (1966)]  Commission or continuance of an act complained of would probably work injustice to him. and the injury is a continuing one. especially the right to informational privacy. Requisites: i. The writ of habeas corpus will issue when:  an alien has been detained by the DOJ for an unreasonably long period of time after it has become apparent that the deportation order cannot be effectuated. and effect of the writ is to re-establish the preexisting relation. Habeas Data a. For the judicial review of the constitutionality of statutes (called amparo contra leyes). Nature: Amparo. The writ of habeas data is also a remedy to protect the right to life. Plaintiff is entitled to relief demanded. i. literally “to protect. It covers violations committed by public officials or employees and private individuals or entities. (Annotation to the Writ of Amparo) c. For the judicial review of the constitutionality and legality of a judicial decision (called amparo casacion). Injunction as Provisional Remedy 6. the order of deportation which was not executed is functus officio and the alien is being held without authority of law. and v. The release of a detained person. Writ of Amparo a. iv.  Defendant. (The Rationale for the Writ of Amparo) b. For the protection of peasants’ rights derived from the agrarian reform process (called amparo agrario). Bail renders a writ of habeas corpus moot and academic. [Co v Deportation Board. iv. ii. It covers both actual and threatened violations of such rights. if co-equals. (1951)] e. [Lucien Tran Van Nghia v. iii. liberty or security of a person from violation or threatened violation by an unlawful act or omission of a public official or employee or of a private individual or entity. c. [Lemi vs. d. To order the continued performance of some act for the purpose of preventing further injury. (1966)] . and  no criminal charges have been formally made or a judicial order issued for his detention. iii. [Honda vs San Diego. Rights protected: (1) right to life. For the judicial review of administrative actions (called amparo administrativo). For the protection of personal freedom. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION d. [Mejoff vs Director of Prisons. In such case. threatens or about to do an act in violation of petitioner’s rights which may render the judgment ineffective. To prevent the commission of certain acts complained of. Purposes/Types: i. (2) liberty and (3) security of persons. It complements the writ of amparo and writ of habeas corpus. as the bail bond gives petitioner liberty. whether permanent or temporary. the injunction cannot prosper. unless there are restraints attached which preclude his freedom. (1977)] f. The right to the writ is clear when:  There is willful invasion of the petitioner’s right. (1989)] people are already enforced through different remedies. The reason for limiting the coverage of its protection only to the three rights is that other constitutional rights of our a. Purpose.” is designed to protect those other fundamental rights in the Constitution not covered by habeas corpus. Nature: An ancillary remedy provided to preserve the petitioner’s rights while main action is pending. Philippine Version: i. equivalent to the habeas corpus writ (called amparo libertad). (Annotation to the Writ of Amparo) 7. ii.

Finality of Judgment a. It must be a judgment on the merits. [Apolega vs Hizon. Mandamus a. ii. Provided. vs NLRC (1989)] b. Summary enforcement without need for adjudication:  Distraint of personal property or levy on real property (Commissioner of Internal Revenue). Sec. E. Refusal to grant clearance paper to ships. viii. Exclusion and deportation. and iv. EXCEPT: If the enabling law expressly provides otherwise. seizure and sale or destruction of property. — xxx No appeal taken by the Court of Appeals from the decision of the Collector of Internal Revenue or the Collector of Customs shall suspend the payment. An exception is that if the collection of the tax is prejudicial to the interest of the government and of the taxpayer. RA 1125 (An Act Creating the Court of Tax Appeals): Who may appeal. the force and effect of a final judgment within the purview of the doctrine of res judicata. Withholding or denying benefits. presume that the agency has the power to enforce its decisions emanating from its quasi-judicial powers.POLITICAL LAW REVIEWER Chapter III. subject matter and cause of action [Ipekdijan Merchandising vs CTA (1963). v. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions. . Firestone Ceramics vs CA (1999). Types i. res judicata does not apply. If the law is silent. b. levy. iv. Imposing conditions. [Collector vs. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION e. vi. and or sale of any property of the taxpayer for the satisfaction of his tax liability as provided by existing law. iv. The legislature may aid the enforcement of administrative determination by providing for a penalty for failure to comply therewith. ii. after which hearing is then held to decide propriety of the injunction. Writ of Execution. Reyes. Requisites: i. Imposition and collection of fines and penalties. vii. d. upon their finality. It must have been rendered by a court having jurisdiction over the subject matter and the parties. Also. DBP vs CA (2001)] c. the writ is dissolved). Preliminary Mandatory Injunction: Plaintiff wants to compel defendant to do something. effect of appeal. The general rule is that injunction cannot be issued in tax collection. Preliminary Injunction: To prevent or stop defendant from doing something iii. distraint. (1957)] ii. c. [Nasipit Lumber Co. Revocation. the CTA is authorized to restrain the Collector from proceeding with its collection. however. The former judgment must be final. and ix. e. 11. direct and positive sanctions (grant of subpoena power and contempt powers) are afforded by provisions for administrative or judicial processes to compel obedience or prevent violation of the determination. Decisions and orders of administrative bodies rendered pursuant to their quasi-judicial authority have. f. which forbids the reopening of matters once judicially determined by competent authorities. iii. (1968)] g. injunction becomes permanent (otherwise. Effect. iii. Res Judicata. Administrative enforcement includes: i. Enforcement of Agency Action 1. Administrative proceedings are non-litigious and summary in nature. Permanent Injunction: If plaintiff wins the case. General rule: Administrative agencies performing quasi-judicial functions have the implied power to issue writs of execution. There must be identity of parties. Suspension. 194 ADMINISTRATIVE LAW 2. hence. That when in the opinion of the Court the collection by the Bureau of Internal Revenue or the Commissioner of Customs may jeopardize the interest of the Government and/or the taxpayer the Court at any stage of the proceeding may suspend the said collection and require the taxpayer either to deposit the amount claimed or to file a surety bond for not more than double the amount with the Court. When it applies. Refusal to renew license. Restraining Order: Life span of 20 days.

[Clavano v HLURB. and Sequestration of ill-gotten wealth (PCGG). Abatement of nuisance (Secretary of Health). JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION   f. 195 . What is the remedy if officials refuse to implement a final and executory judgment? Mandamus. (2002)] . the order pro tanto has no validity.POLITICAL LAW REVIEWER Chapter III. [Vda. Execution must conform to that ordained or decreed in the dispositive part of the decision.end of Administrative Law - ADMINISTRATIVE LAW g. De Corpuz vs The Commanding General of the Philippine Army (1978)] Where the order of execution is not in harmony with and exceeds the judgment which gives it life.

.

...................................204 5..................... Nomination of Party-List Representative ...........................206 2..198 2.......................................................... Effect of Change of Affiliation.... Definitions ..............206 Chapter IV......... 211 6.... Constitutional Mandate on Congress 199 C.......... Powers and Functions...................... Composition ..... COMELEC... Effect of disqualification case...... 217 3......201 D.................. 217 5............. 214 3...........................207 A.......................................................POLITICAL LAW REVIEWER TABLE of CONTENTS ELECTION LAW Table of Contents Chapter I.......204 7................ 215 7.................206 1........ Substitution of Candidates....................... Party System ........ Voters: Qualification and Registration ................... Time Period and Votes Required ............. Duty of COMELEC ................ Certified List of Voters ........... Requisites of a Prohibited Donation 218 Chapter VI............ 209 9.... 210 3............. Parameters in Allocation of Seats for Party-List Representatives ........................... 217 4..... Petition to Deny Due Course or to Cancel Certificate ......................201 2.................202 3......... Qualifications......... Election Contributions and Expenditures 216 1......................... Challenges to right to register........... Meetings and Other Political Activity......205 E................205 C......... System of Continuing Registration of Voters .......................204 6.............................................................203 A... Inclusion and Exclusion Proceedings 206 7..... Filing and withdrawal of certificate of candidacy ...................198 A............ Campaign Period ................... Suffrage ......... 210 1....................... Rendition of Decision .......200 1...199 Chapter II......... Election Period ..207 3.................................................................... Qualifications.................... Coverage ........... 214 2. Annulment of Book of Voters ............. Candidate....201 1. 208 5......................... Application for Rallies............ Deactivation of Registration...................... 210 B.... Measures Designed for COMELEC’s Independence .................... Sec...207 2...203 2..... Grounds for refusal and/or cancellation of registration ......... Composition ....................... Limitations on Expenses.................... In General .... Definitions ................................. Registration of Voters......207 1...........198 B........... Prohibited Fund-raising Activities ............................ IX-C........... Registration of Political Parties ................... 214 1...................... COMELEC decisions reviewable by the Supreme Court ............... Scope................................. Statutory powers ....... 215 5...........................202 Chapter III.... Election Campaign and Expenditures ...... Election Registration Board .200 A. Prohibited Acts ........ Effect of filing certificate of candidacy 209 6......... Who May Not be Registered ............. 212 8.. Lawful Election Propaganda... 209 7............204 3........ 2]...... Party-list and District Representatives Distinguished ..... Petition to declare a duly registered candidate as a nuisance candidate....205 8................... 212 9..................... Definition ....... Election Campaign or Partisan Political Activity... Certificates of Candidacy .... 211 4........................................................ Equal Access to Media Time and Space ..............200 2.. 212 C... Qualifications .. 211 5..............198 1..................... 216 2......................................... Inclusion and Exclusion Proceedings205 D.202 E......... Prohibited Contributions ...........200 B.............. 207 4..... Procedure for Registration......... Definitions ............. Election Campaign........ 217 6.. Disqualifications....200 C. Election Surveys .... Statement of Contributions and Expenses..... Change of residence or address .............. Personal Overseas Absentee Registration .206 4..203 B..205 9..... 219 A................. Purpose ....................... 219 197 ELECTION LAW .. Illiterate or disabled voters..... 210 2... Disqualifications ............. Election Proper ................... 214 A.... General Principles ............ Qualifications .... Definitions ....... 211 7.. Constitutional powers and functions [Art.. 210 10.........206 6..... 216 8.... Reactivation of Registration.....204 4.... 215 4.........206 5................................................... Definition ....... 213 Chapter V....203 1................................. National Registry of Overseas Absentee Voters ................... 209 8... 216 B.. Pre-Election Requirements .................................... Overseas Absentee Voter .................206 3.....

. 230 F......220 B.228 C........226 7............... 230 4..................................227 2.. Effect of Filing of Pre-Proclamation Controversy ......... Procedure .................................................. Casting of Votes....................222 E... Election Campaign..........................220 1.................................. 229 10.................................... Intimidation.221 4........................ 9369 ........................228 D........... Voting..............................227 1........................ Challenge of Illegal Voters..225 3........ Voting............. Election Offenses ... 229 Canvassing ....227 10...................... Counting Proper..220 2..... Procedure ... 3.....................219 Postponement of Elections ............. Prescription ...... Penalties................... 7...................................................222 1....................... Pre-Proclamation Controversies ................. Grounds ............. Certificate of Candidacy.................. 229 E........................225 1.. Board of Election Inspectors ............................ Petition to Annul or Suspend Proclamation............... Jurisdiction ......................................223 6....... Composition of Board of Canvassers 223 3.......225 3................. Counting of Votes...........................223 4........ 6...... Preferential Disposition of Election Offenses........228 1.....POLITICAL LAW REVIEWER TABLE of CONTENTS What Constitutes an Election. Election Returns .................. 229 Acts of Government or Public Officers 229 8........... 230 G........... Issues That Cannot Be Raised ........... Proclamation . Other Prohibitions ......................227 Chapter VIII............... Nature of Proceedings....... 5...222 2......... Jurisdiction over Election Offenses.223 5.... Cancellation of Certificate of Candidacy 225 1............. 4............ Canvass by the BOC .....228 3..226 8...........222 1.225 B.......... 229 9.....226 9..............220 C. Arrests in Connection with Election Campaign ..........225 2............228 B.................... Effect ........................................ Issues That May Be Raised....... Procedure .........................220 3.228 2................................. Prohibitions on BOC ..228 A........... Violence ..... Disqualification Cases..219 Failure of Elections ............222 2..... Modes of Challenging Candidacy and Election Results............ Prohibited Acts Under R........ 2......... Election Offenses................................................... Coercion. 228 Counting of Votes .............................. Voting Hours .. Registration.......225 4........ Effect of Proclamation of Winning Candidate .................................. Nature of Proceedings .............. When Not Allowed ................A............... 3 ELECTION LAW ...........228 1..... Definitions ....224 Chapter VII.......225 2.. Declaration of Failure of Election 227 C....... Canvassing of Votes ..............225 A.........225 5.. Challenge based on certain illegal acts 221 D.............. Certificate of Canvass and Statement of Votes ..........219 Special Elections ....................226 6.......... Prosecution of Election Offenses......

POLITICAL LAW REVIEWER

Chapter I. GENERAL PRINCIPLES

Prof. Rodolfo Noel Quimbo
Faculty Editor

ELECTION LAW

ELECTION LAW TEAM

Chapter I. General Principles
A. DEFINITIONS 1. SUFFRAGE 2. SCOPE a. ELECTION b. PLEBISCITE c. REFERENDUM d. INITIATIVE e. RECALL B. CONSTITUTIONAL MANDATE ON CONGRESS C. ELECTION PERIOD

Ria Dooc
Lead Writer Dianne Patawaran Mike Rivera Writers

POLITICAL LAW
Jennifer Go
Subject Editor

ACADEMICS COMMITTEE
Kristine Bongcaron Michelle Dy Patrich Leccio
Editors-in-Chief

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

198
ELECTION LAW

PRINTING & DISTRIBUTION
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2. Scope
i. Election: the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government.  Kinds:  Regular: one provided by law for the election of officers either nation-wide or in certain subdivisions thereof, after the expiration of the full term of the former officers.  Special: one held to fill a vacancy in office before the expiration of the full term for which the incumbent was elected.

DESIGN & LAYOUT
Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

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Lilibeth Perez

BAR CANDIDATES WELFARE
Dahlia Salamat

LOGISTICS
Charisse Mendoza

ii. Plebiscite: election at which any proposed amendment to, or revision of, the Constitution is submitted to the people for their ratification. iii. Referendum: submission of a law pass by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection. iv. Initiative: the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. [Sec. 3a, R.A. 6735, The Initiative and Referendum Act]  3 systems of initiative:  Initiative on the Constitution: petition

SECRETARIAT COMMITTEE
Jill Hernandez
Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

POLITICAL LAW REVIEWER

Chapter I. GENERAL PRINCIPLES

proposing amendments Constitution.  

to

the

Please refer to page 206 for a more detailed discussion The Overseas Absentee Voting Act of 2003. ii. To design a procedure for the disabled and the illiterate to vote without the assistance of other persons.

Initiative on statutes: petition proposing to enact a national legislation. Initiative on local legislation: petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance.

C. Election Period
Unless otherwise fixed by the COMELEC in special cases, the election period shall commence 90 days before the day of the election and shall end 30 days thereafter. [Art. IX-C, Sec. 9, Const.]

v. Recall: the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

B. Constitutional Mandate on Congress
[Art. V, Sec. 2, Constitution] i. To provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.  Laws providing for absentee voting:  Sec. 12, R.A. 7166, An Act Providing for Synchronized National and Local Elections and Electoral Reforms:  applies only to elections for the President, Vice President and Senators  limited to members of the AFP and PNP and other government officers and employees who are: o duly registered voters and o on election day, may be temporarily assigned in connection with the performance of election duties to places where they are not registered voters.  R.A. 9189 (The Overseas Absentee Voting Act of 2003)

ELECTION LAW

The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed. R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Note: Section 2 of Art. XVII Constitution is limited to proposals to AMEND — not to REVISE — the Constitution. [Santiago vs COMELEC (1997)]

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POLITICAL LAW REVIEWER

Chapter II. COMELEC

Chapter II. COMELEC
A. B. C. COMPOSITION QUALIFICATIONS POWERS AND FUNCTIONS 1. CONSTITUTIONAL POWERS AND FUNCTIONS 2. STATUTORY POWERS D. RENDITION OF DECISION 1. COMPOSITION 2. TIME PERIOD AND VOTES REQUIRED 3. COMELEC DECISIONS REVIEWABLE BY THE SUPREME COURT E. MEASURES DESIGNED FOR COMELEC’S INDEPENDENCE

C. Powers and Functions
1. Constitutional powers and functions [Art. IX-C, Sec. 2]
i. Enforce and administer all laws relative to the conduct of an election, plebiscite, initiative referendum and recall     Promulgate rules and regulations in the enforcement of laws relative to elections. Fix appropriate periods for accomplishment of pre-election acts. Annul/cancellation illegal registry lists of voters and order the preparation of a new one. Cancel canvass of election returns and annul proclamation based on incomplete results. (Note: COMELEC does not have the power to annul an election which may not have been free, orderly, and honest; such power is merely preventive, not curative.)

200
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A. Composition
   1 chairman and 6 Commissioners Appointed by the President with the consent of the Commission on Appointments for a term of 7 years without reappointment. No member shall be appointed or designated in a temporary or acting capacity. [Art. IX-C, Sec. 1, Constitution]

ii.

Quasi-Judicial Powers
 Exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective regional, provincial and city officials.  The possibility of a conflict of jurisdiction between the COMELEC and the Electoral Tribunal regarding contests involving congressional elections has been foreclosed by Sec. 15, R.A. 7166, An Act Providing for

B. Qualifications
1. 2. 3. 4. Natural born Filipino citizens At least 35 years old Holders of a college degree Not candidates for any elective position in the immediately preceding election 5. Majority, including the chairman, must be members of the Bar who have been engaged in the practice of law for at least 10 years. [Art. IX-C, Sec. 1, Const.]  Inhibitions/Disqualifications: 1. Shall not, during tenure, hold any other office or employment. 2. Shall not engage in the practice of any profession. 3. Shall not engage in the active management or control of any business which in any way may be affected by the functions of his office. 4. Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries.

Synchronized National and Local Elections and Electoral Reforms, which prohibits pre-proclamation controversies in national offices.
 Jurisdiction of the Electoral Tribunal is exercised over the members of the House or Senate. A party to the election controversy is a member of the House or Senate only after he has been proclaimed, has taken his oath and has assumed the functions of the office. [Aquino vs COMELEC (1995)]

Exclusive appellate jurisdiction over all contests involving municipal officials decided by the RTC, or involving elective barangay officials decided by the MTC. In these cases, the decisions therein shall be final, executory and unappealable.  The fact that decisions, final orders or rulings of the COMELEC in contests

POLITICAL LAW REVIEWER

Chapter II. COMELEC

involving elective municipal and barangay officials are final, executory and not appealable, does not preclude a recourse to the Supreme Court by way of a special civil action for certiorari. iii. Decide all questions affecting elections  Including:  Determination of the number and location of polling places  Appointment of election officials and inspectors  Registration of voters  However, it has no jurisdiction over questions involving the right to vote (i.e. disqualifications of voters, right of a person to be registered, etc.)

pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations

x.

Supervise or regulate during the election period the use or enjoyment of all franchises or permits for operation of:
   transportation and other public utilities media of communication or information all grants, special privileges, or concessions granted by the Government or any instrumentality thereof

to ensure equal opportunity, time, and space, and the right to reply for the holding of free, orderly, honest and peaceful elections

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iv. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities, including the AFP, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections. v. Register political parties, organizations or coalitions.

2. Statutory powers
i. Sec. 52 and 57, B.P. 881, Omnibus Election Code Power to postpone election [Sec. 5, B.P. 881]

ii.

vi. Accredit citizens' arms. vii. File, upon a verified complaint, or on its own initiative, petitions in court for the inclusion or exclusion of votes.
viii. Investigate and prosecute cases of violation

iii. Power to declare failure of elections [Sec. 6, B.P. 881] iv. Power to call a special election [Sec. 4, R.A. 7166] Please refer to page 219 for a more detailed discussion of power to postpone election, declare failure of elections and to call a special election.

of election laws  The COMELEC has the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the election law. The power may be exercised upon complaint or motu proprio.

D. Rendition of Decision
1. Composition
The COMELEC may sit en banc or in 2 divisions.  General Rule: Election cases, including preproclamation controversies, shall be heard and decided in division  The rule applies only when COMELEC exercises its adjudicatory or quasijudicial functions, not when it exercises purely administrative functions. Exceptions: Decisions that must be rendered by the COMELEC en banc include: i. Decisions on motions for reconsideration [Art. IX-C, Sec. 3, Const.] ii. Petitions for correction of manifest

ix. Recommend  to Congress effective measures  to minimize election spending  to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates  to the President  removal of any officer or employee it has deputized  imposition of disciplinary action for violation or disregard of, or disobedience to its directive, order, or decision

POLITICAL LAW REVIEWER

Chapter II. COMELEC

errors in the tabulation or tallying of results [Sec. 5, Rule 27 of the 1993 Rules of the COMELEC] iii. Questions pertaining to proceedings of the Board of Canvassers [(Mastura v. Comelec, (1998)] iv. Postponement of election [Sec. 4, R.A. 7166, An Act Providing for

E. Measures Designed for COMELEC’s Independence
1. Constitutionally created, may not be abolished by statute. 2. Conferred certain powers and functions which cannot be reduced by statute. 3. Chairmen and members cannot be removed except by impeachment. 4. Chairman and Commissioners are given fixed terms of 7 years. 5. Chairmen and members may not be reappointed or appointed in an acting capacity. 6. Salaries shall not be decreased during their continuance in office. 7. Enjoy fiscal autonomy. 8. May promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the SC). 9. Chairmen and members are prohibited from engaging in the practice of any other profession or management of any business, or to be financially interested in any contract with the Government during their tenure in office. 10. May appoint their own officials and employees in accordance with the Civil Service Law.

Synchronized National and Local Elections and Electoral Reforms] v. Declaration of failure of election [Sec. 4, R.A. 7166] vi. Calling of special elections [Sec. 4, R.A. 7166]

2. Time Period and Votes Required
Decide by majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution. [Art. IX-A, Sec. 7 Const.]

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3. COMELEC decisions reviewable by the Supreme Court
 Only decisions of the COMELEC en banc may be brought to the Supreme Court by petition on certiorari within 30 days from receipt of a copy thereof. [Art. IX-A, Sec. 7, Const.]  By certiorari, a party raises questions of law in the Supreme Court. Findings of fact made by the COMELEC are conclusive upon the Supreme Court.  Only decisions of the COMELEC made in the exercise of its adjudicatory or quasi-judicial power may be brought to the Supreme Court on certiorari. Determinations made by the COMELEC which are merely administrative (not quasijudicial) in character, may be challenged in an ordinary civil action before the RTC. The Supreme Court has no power of supervision over the COMELEC except to review its decisions on petitions by certiorari.

POLITICAL LAW REVIEWER

Chapter III. Voters: QUALIFICATION and REGISTRATION

Chapter III. Voters: Qualification and Registration
A. B. QUALIFICATIONS REGISTRATION OF VOTERS 1. DEFINITION 2. SYSTEM OF CONTINUING REGISTRATION 3. DISQUALIFICATION 4. ELECTION REGISTRATION BOARD 5. CHANGE OF RESIDENCE OR ADDRESS 6. CHALLENGES TO RIGHT TO REGISTER 7. DEACTIVATION OF REGISTRATION 8. REACTIVATION OF REGISTRATION 9. CERTIFIED LIST OF VOTERS INCLUSION AND EXCLUSION PROCEEDINGS 1. JURISDICTION 2. PETITION FOR INCLUSION 3. PETITION FOR EXCLUSION ANNULMENT OF BOOK OF VOTERS OVERSEAS ABSENTEE VOTER 1. DEFINITIONS 2. COVERAGE 3. QUALIFICATIONS 4. DISQUALIFICATIONS 5. PERSONAL OVERSEAS ABSENTEE REGISTRATION 6. INCLUSION AND EXCLUSION PROCEEDINGS 7. NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS

It is not necessary that a person should have a house in order to establish his residence or domicile in a municipality. It is enough that he should live there, provided that his stay is accompanied by his intention to reside therein permanently. [Marcos vs COMELEC (1995)] ii. Not otherwise disqualified by law: i. Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty)  shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence ii. Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law)  shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence iii. Insane or incompetent persons as declared by competent authority  Note: These are the same 3 grounds for disqualification to register as a voter under Sec. 11, R.A. 8189, Voter’s Registration Act of 1996.

C.

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D. E.

A. Qualifications
[Art. V, Sec. 1, 1987 Const.] 1. Citizenship: Filipino citizen by birth or naturalization 2. Age: at least 18 at the time of the election 3. Residency: i. Resident of the Philippines for at least 1 year and ii. Resident of the place wherein they propose to vote for at least 6 months immediately preceding the election  Note: Any person who temporarily resides in another city, municipality or country solely by reason of his:  employment in private or public service  educational activities  work in the military or naval reservations within the Philippines  service in the AFP, PNP or  confinement or detention in government institutions in accordance with law shall not be deemed to have lost his original residence [Sec. 9, R.A. 8189, Voter’s Registration Act of 1996]

5.

Registered voter: In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of Voters for the city or municipality in which he resides. [Sec. 115, B.P. 881, Omnibus Election Code] No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage

B. Registration of Voters
1. Definition
 Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board. [Sec. 3a, R.A. 8189]

System of Continuing Registration of Voters  The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. Par. 189868. 8 of R. By Sec. both the dates of filing of the petition and the extension sought are prior to the 120-day prohibitive period. [Sec. or in his absence. Period of registration:  No registration shall be conducted within  120 days before a regular election  90 days before a special election [Sec.A. 8189] Change of address in the same municipality or city – voter shall immediately notify the Election Officer in writing.A. 2. candidate or representative of a registered political party Form:  In writing . December 15. Illiterate or disabled voters  Illiterate person .A.may register with the assistance of the Election Officer or any member of an accredited citizen’s arms Physically disabled person – application for registration may be prepared by:  any relative within the 4th civil degree of consanguinity or affinity or  by the Election Officer or  any member of an accredited citizen’s arm [Sec. COMELEC. 3. COMELEC is granted the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. 8189. There is no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by Sec. Voters: QUALIFICATION and REGISTRATION 2. any other appointive civil service official from the same locality as designated by the COMELEC. R. 8189]  6. 13. the day before the 120-day period prior to the 10 May 2010 regular elections. No. Change of residence or address  Change of residence to another city or municipality – the registered voter may apply with the Election Officer of his new residence for the transfer of his registration records. 8189]  Disqualification: relation to each other or to 5. R. 14. COMELEC argued that it is authorize under the law to fix other dates for pre-election acts which include voter registration and in Akbayan-Youth vs. COMELEC shall designate an acting Election Officer  Members:  Public school official most senior in rank  Local civil registrar. 11)   204 ELECTION LAW 4. Ruling: Yes. 12. R.A. If neither are available.A. any incumbent city or municipal elective th official within the 4 civil degree of consanguinity or affinity. R. the city or municipal treasurer. [Sec.R. 8189] PALATINO VS COMELEC G. 9369 The Poll Automation Law now defines a disabled voter as “a person with impaired capacity to use the Automated Election System (AES)” (Sec. Challenges to right to register   Who may challenge application for registration: Any voter. 8189]  R. COMELEC. Issue: WON COMELEC Resolution 8585 should be declared void. The case is different from Akbayan-Youth vs. wherein the petitioners filed their petition with the Court and sought the conduct of a two-day registration all within the 120-day prohibitive period. 8189. Petitioners asked the SC to declare the resolution null and void. 8. Election Registration Board  Composition:  Chairman: Election Officer  If disqualified.A. the SC denied a similar prayer for extension of deadline for voter registration for the 14 May 2001 elections. In this case. Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections.A.A.POLITICAL LAW REVIEWER Chapter III. 2009 Facts: COMELEC Resolution 8585 set the deadline for voter registration to 31 October 2009. R. [Sec. 8 R. and to require COMELEC to extend the voter registration until 9 January 2010. 15.

8189]  When: must be filed not later than the 2 Monday of the month in which the same is scheduled to be heard or processed by the ERB [Sec. Did not vote in the 2 successive preceding regular elections (excluding SK elections) v. 28. R.A. 8189] Petition for Exclusion of Voters in the List:  When: any time except 100 days prior to a regular election or 65 days prior to a special election. force. 30. R. forgery. Deactivation of Registration  The board shall remove the registration records of the following persons from the corresponding precinct book of voters and place the same in the inactive file: i. [Sec.  Who may file:  One whose application for registration has been disapproved by the Board of Election Inspectors or  One whose name has been stricken out from the list [Sec. and after notice and hearing. rebellion. 8189 or the Voters’ Registration Act of 1996 prepared through fraud. Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e. 27. 8189] 205 ELECTION LAW    8. Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty)  shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence as certified by clerks of courts ii. Annulment of Book of Voters  The COMELEC shall. intimidation.A. Voters: QUALIFICATION and REGISTRATION    State the grounds therefor Under oath and Attached to the application.A.A.A. 8189] Appeal: Decisions of the MTC or MeTC may be appealed by the aggrieved party to the RTC within 5 days from receipt of notice thereof.  Any representative of a political party.A. 18. [Sec. bribery. upon verified petition of any voter or election officer or duly registered political party. No motion for reconsideration shall be entertained. together with the proof of notice of hearing to the challenger and the applicant nd 9. [Sec. impersonation. Inclusion and Exclusion Proceedings  Jurisdiction in inclusion and exclusion case: The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. 8189] D. R. Insane or incompetent persons as declared by competent authority iv. R.g. sedition.A.A. When: Any time not later than 120 days before a regular election and 90 days before a special election. or any similar irregularity contains data that are statistically improbable  iii. 34. Registration has been ordered excluded by the Court and vi. not prepared in accordance with R. R. R. 33.  the Election Officer 7.POLITICAL LAW REVIEWER Chapter III. Lost his Filipino citizenship. Reactivation of Registration  Any voter whose registration has been deactivated may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist. violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law)  shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence iii. Certified List of Voters  The ERB shall prepare and post a certified list of voters 90 before a regular election and 60 days before a special election.  Who may file:  Any registered voter. 8189] C. R. 33. [Sec. annul any book of voters that is: i. 8189] Petition for Inclusion of Voters in the List:  When: any time except 105 days prior to a regular election or 75 days prior to a special election. ii. [Sec. .

When an overseas absentee voter’s name was ordered removed by the Comelec from the Registry of Overseas Absentee Voters for his/her failure to exercise his/her right to vote under R. E. Voters: QUALIFICATION and REGISTRATION   No order. 6. 9189] Grounds for cancellation/amendment entries therein: i. ruling or decision annulling a book of voters shall be executed within 90 days before an election. an affidavit prepared for the purpose by the Commission declaring that:  he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his/her registration and  he/she has not applied for citizenship in another country 7.A. senators and party-list representatives [Sec.A. 3f.5. or that his/her name be transferred to the regular registry of voters. consulates or foreign eservice establishments concerned. R. Qualifications    All Filipino citizens abroad Not otherwise disqualified by law At least 18 years of age on the day of elections [Sec. (Sec. 9189] 206 . Overseas Absentee Voter 1.A. R. have been approved by the Election Registered Board.7. R. R.A. R. 9189]  5.A. 3f. 6. 8189] v. R. Definitions  Absentee Voting: process by which qualified citizens of the Philippines abroad exercise their right to vote. who is abroad on the day of elections. have lost their Filipino citizenship in accordance with Philippine laws ii. Personal Registration  Overseas Absentee 6. have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year. upon registration. vice-president. not otherwise disqualified by law. [Sec. 39.A. R. [Sec. When the overseas absentee voter files a letter under oath addressed to the Comelec that he/she wishes to be removed from the Registry of Overseas Absentee Voters. Inclusion and Exclusion Proceedings 2. 9189] When: any time not later than 210 days before the day of the elections Who may file: any interested person [Sec.A. 9189] Petition for Exclusion:   4. approved and maintained by the COMELEC.5. 9189) ELECTION LAW Registration as an overseas absentee voter shall be done in person. have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country iii. [Sec. 9189] 3. [Sec. Coverage  Elections for president.A.A. immigrant or a permanent resident who is recognized as such in the host country  unless he/she executes. R.  of ii. R. [Sec.POLITICAL LAW REVIEWER Chapter III. 9189]   Petition for Inclusion of Voters in the List:   When: within 5 days from receipt of the notice of disapproval Who may file: applicant or his authorized representative [Sec. of overseas absentee voters whose applications for registration as absentee voters.A. 9. 9189 for 2 consecutive national elections. National Registry Absentee Voters  of Overseas Definition: the consolidated list prepared. 3e. 9189. 3a. including those registered voters who have applied to be certified as absentee voters. as verified by the Philippine embassies. 3f.A. R.A. 9189] Effect of failure to return: cause for the removal of his/her name from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia Previously declared insane or incompetent by competent authority in the Philippines or abroad.7. including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the RPC iv. [Sec. R. The Overseas Absentee Voting Act] Overseas Absentee Voter: citizen of the Philippines who is qualified to register and vote under this Act. Disqualifications i.

8758. Sentenced by final judgment for:  Subversion. Pre-Election Requirements A. NOMINATION PARTY-LIST AND DISTRICT REPRESENTATIVES DISTINGUISHED 3. CERTIFICATES OF CANDIDACY 1.e) xiv. or the participation in any campaign. Coerced. [Sec.A. or any promise of such registration. or used fraud to compel. disbursement or expenditure of public B. punishment. organization or coalition thereof that has filed a manifestation to participate under the party-list system which has not withdrawn or which has not been disqualified before the start of the campaign period. 15. PURPOSE 4. Removed. WHO MAY BE REGISTERED 6. vote. Engaged in prohibited forms of election propaganda (Sec. 207 ELECTION LAW C. PETITION TO DECLARE NUISANCE CANDIDATE 9. COMELEC (1989). Given money or other material consideration to influence. Certificates of Candidacy 1. 15. Definition  Any person who files his certificate of candidacy within prescribed period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. loss or disadvantage upon any person or of the immediate members of his family. 68) vi. or omission therefrom (Sec. induce or corrupt voters or public officials performing electoral functions (Sec. 9369] Any registered national. Solicited. induce or prevent the registration of any voter. DEFINITION 2. A. EFFECT OF CHANGE OF AFFLIATION 9. 83) x. 85) xi. intimidated. intimidated. Feb. . Qualifications  Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure [Frivaldo v. defaced lawful election propaganda (Sec. Permanent resident of or an immigrant to a foreign country  unless he has waived such status (Sec.A. PRE-ELECTION REQUIREMENTS Chapter IV. 80) ix. caused. SUBSTITUTION OF CANDIDATES 7. Unlawful electioneering (Sec. 68) vii. his honor or property. EFFECT OF FILING 6. received or made prohibited contributions (Sec.d) xiii. inflicted or produced any violence. QUALIFICATIONS 3. PETITION TO DENY DUE COURSE/CANCEL CERTIFICATE 10. or the casting of any vote. FILING AND WITHDRAWAL 5. compelled. [Sec. campaign. 12) iv. EFFECT OF DISQUALIFICATION CASE REGISTRATION OF POLITICAL PARTY 1. or employees to aid. PARAMETERS IN ALLOCATION OF SEATS 8. CANDIDATE. R. DISQUALIFICATIONS 4. Candidate. PROCEDURE FOR REGISTRATION 5. 68) viii.POLITICAL LAW REVIEWER Chapter IV. 68) iii. members. Threatened. rebellion  Any offense for which he has been sentenced to a penalty of more than 18 months imprisonment  A crime involving moral turpitude (Sec. Violated the prohibition against release. 12) ii. Declared incompetent or insane by competent authority (Sec. regional. Committed acts of terrorism to enhance his candidacy (Sec. [Comelec Res. campaign or vote for or against any candidate or aspirant for the nomination or selection of candidates (Sec. Poll Automation Law] Unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. insurrection. 261. 2010]   2. DUTY OF COMELEC 8. injury. Labo v. COMELEC (1989)]. 4. 261. Spent in his election campaign an amount in excess of that allowed (Sec.k) xv. DEFINITIONS 3. R. 9369. Disqualifications  Under the Omnibus Election Code i. or influenced any of his subordinates. damage. Violated election rules and regulations on election propaganda through mass media (Sec. GROUNDS FOR REFUSAL/CANCELLATION 7. destroyed. or sectoral party. 86) xii. Engaged in election campaign or partisan political activity outside the campaign period and not pursuant to a political party nomination (Sec. 68) v. 261. PARTY SYSTEM 2.

Solicited votes or undertook propaganda on election day for or against any candidate or any political party within the polling place or within a 30m radius (Sec. Manzano. who have been naturalized as citizens of a foreign country. the Court held that candidate’s oath of allegiance to the Republic of the Philippines and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship. Section 5(2) of R. B. [Sec. Like any other natural-born Filipino. a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. [Mercado v. B. (1999)]  Under R. 75. 9225 Citizenship Retention and Re-acquisition Act of 2003. 9225 compels natural-born Filipinos. Fugitive from justice in criminal and nonpolitical cases here and abroad vi.6)  Under Section 40 of the LGC i.  In cases of postponement or failure of election. 9225. No. withdraw the same by submitting to the  .POLITICAL LAW REVIEWER Chapter IV. it is enough for a person with dual citizenship who seeks public office to (1) file his certificate of candidacy and (2) swear to the Oath of Allegiance contained therein.  Dual citizenship is not a ground for disqualification from running for elective position. COMELEC. Filing and withdrawal of certificate of candidacy  No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. Removed from office as a result of an administrative case iii.v) xvi.P.P. 881]  Filing of 2 certificates of candidacy:  No person shall be eligible for more than one office to be filled in the same election. Sentenced by final judgment for an offense punishable by at least 1 year imprisonment within 2 years after serving sentence ii. [Cordora vs. 261.A.  If he files a certificate of candidacy for more than one office he shall not be eligible for either. the person who has filed more than one certificate of candidacy. no additional certificate of candidacy shall be accepted except in cases of substitution of candidates. Insane or feeble-minded 208 ELECTION LAW 4. and (2) for those seeking elective public offices in the Philippines. Convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines iv. 73.cc.P. 261. B. 881] A person who has filed a certificate of candidacy may. prior to the election.  Before the expiration of the period for the filing of certificates of candidacy. Dal. to qualify as candidates in Philippine elections.A. 881]  The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative. PRE-ELECTION REQUIREMENTS funds 45 days before a regular election or 30 days before a special election (Sec. 73. Dual citizenship  Dual citizenship as a disqualification must refer to citizens with dual allegiance. but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. [Sec. [Jacot vs. (February 2009)]  With respect to a person with dual allegiance. to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy.  When: any day from the commencement of the election period but not later than the day before the beginning of the campaign period. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship. (November 2008)] v. may  declare under oath the office for which he desires to be eligible and  cancel the certificate of candidacy for the other office/s [Sec.

certificate may be filed with:  any Board of Election Inspectors in the political subdivision where he is a candidate or  with the COMELEC if it is a national position [Sec. B. 8678 Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10.  Effect of filing or withdrawal of a certificate of candidacy: shall not affect whatever civil. The Electoral Reforms Law of 1987]  Who may file: any registered candidate for the same office  When: within 5 days from the last day for the filing of certificates of candidacy  How: personally or through duly authorized representative with the COMELEC .P. Since the classification justifying Section 14 of R. 881]  General rule: The COMELEC shall have the ministerial duty to receive and acknowledge receipt of the certificates of candidacy provided said certificates are: under oath and contain all the required data and in the form prescribed by the Commission.A. While the COMELEC may look into patent defects in the certificate. 881. Petition to deny due course or to cancel a certificate of candidacy  The COMELEC has no discretion to give or not to give due course to a certificate of candidacy filed in due form. Duty of COMELEC [Sec. 4. an official candidate of a registered political party dies. 14 R. 9369. the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Imperial.  No substitute shall be allowed for any independent candidate. [Sec. B. 6646. [Abcede v.A.P. not infringed. 2010 Held: The SC reversed its earlier ruling (1 Dec. and other officers and employees in GOCCs. Fair Election Act.A. Sec. 6. 67 B.P. 9006 is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated. [Sec. Effect of filing certificate of candidacy  Any person holding a public appointive office or position including active members of the AFP. it may not go into matters not appearing on their face. Petition to declare a duly registered candidate as a nuisance candidate [Sec.POLITICAL LAW REVIEWER Chapter IV. 13(3) R. 881] Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. It is not within the power of the Court to pass upon or look into the wisdom of this classification. (1958)] 8. Comelec Resolution No. thus. 881 and Sec.A 9006. PRE-ELECTION REQUIREMENTS office concerned a written declaration under oath. Ratio: By repealing Section 67 but retaining Section 66 of B.that deemed appointive officials automatically resigned once they filed their certificates of candidacy. 881] 5. 5. withdraws or is disqualified for any cause:  He may be substituted by a candidate belonging to and nominated by the same political party. 2010 National and Local Elections]  Sec. 2009) and upheld the constitutionality of 3 provisions in election laws – Sec. withdrawal or disqualification should happen between the day before the election and mid-day of the election day. the equal protection clause of the Constitution is.  Exception: COMELEC may go beyond the face of the certificate of candidacy – i. 66(1). February 22. Nuisance candidates ii. 811 which deemed elective officials automatically resigned from office upon filing of their certificate of candidacy was repealed by Sec. 4(a) COMELEC Resolution 8678 . B. 76. 77.  The substitute must file his certificate of candidacy not later than mid-day of the election day If the death.P. criminal or administrative liabilities which a candidate may have incurred.  209 ELECTION LAW  7.P. shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Substitution of Candidates  If after the last day for filing of the certificates of candidacy. 66 B.P. R. QUINTO VS COMELEC (MR Ruling) GR 189698.

R. Party-List System: Mechanism of proportional representation in the election of representatives to the House of Representatives from national. or protest and  Upon motion of the complainant or any intervenor. not later than 15 days before the election. coalition shall be valid. [Art. 881] Proceeding: summary in nature  9. except for those registered under the party-list system. and if proclaimed. [Sec. it must be made with the intention to deceive the electorate as to the would-be candidate’s qualifications for public office. The Electoral Reforms Law of 1987] Where a similar complaint/petition is filed: i.P. to suspend the effects of proclamation. if the evidence of guilt is strong. 6. [Sec.] No votes cast in favor of a political party. after due notice and hearing. 8678] 210 ELECTION LAW B. 7. 69.P. IX-C. residence or status as a registered voter. PRE-ELECTION REQUIREMENTS   Grounds: certificate of candidacy has been filed  To put the election process in mockery or disrepute or  To cause confusion among the voters by the similarity of the names of the registered candidates or  Clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate [Sec. 881] SALIC MARUHOM VS COMELEC GR NO. may during the pendency thereof. 179430. or hide a fact that would otherwise render a candidate ineligible. Political party: An organized group of citizens advocating an ideology or platform. 4) Decision: Shall be decided. In other words. 6. the COMELEC may order the suspension of the proclamation of respondent. IX-C. Registration of Political Parties 1. .  disqualified and he is voted for and receives the winning number of votes in such election  The Court or COMELEC shall continue with the trial and hearing of the action. 78. misinform.]  2.POLITICAL LAW REVIEWER Chapter IV.A. inquiry. after the election and before the proclamation of the respondent  the trial and hearing of the case shall be suspended and referred to the Law Department for preliminary investigation In either case. Petition to Deny Due Course or to Cancel Certificate 1) Who may file: Any person 2) When: Any time not later than 25 days from the time of the filing of the certificate of candidacy 3) Exclusive ground: any material representation contained in the certificate of candidacy is false. B. Sec. Such material fact refers to a candidate’s eligibility or qualification for elective office like citizenship. Sec. Definitions i. Const. B. 2009 Held: The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC. July 27. [Sec. principles and policies for the general 10. Aside from the requirement of materiality. 4. Effect of disqualification case  Any candidate who has been declared by final judgment to be disqualified –  shall not be voted for and  the votes cast for him shall not be counted If a candidate is not declared by final judgment before an election to be  ii. [Art. 6646. regional and sectoral parties or organizations or coalitions registered with the COMELEC. Resolution No. the false representation must consist of a deliberate attempt to mislead. Party System  A free and open party system shall be allowed to evolve according to the free choice of the people. order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Const. organization. before the election and proclamation of the respondent and the case is not resolved before the election  the trial and hearing of the case shall continue and referred to the Law Department for preliminary investigation ii.

motu propio or upon verified complaint of any interested party. foreign political party. regional or sectoral party or organization or a coalition of such parties or organizations  attaching thereto its constitution. Party-List System Act] 6.constituency is spread over the geographical territory of at least a majority of the regions. Coalition: an aggrupation of duly registered national. after due notice and hearing.constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. COMELEC shall. coalition . to become members of the House of Representatives. PRE-ELECTION REQUIREMENTS conduct of government and which. sectoral parties or organizations for political and/or election purposes. [Sec. ii. IX-C.  3 kinds:  National party .  Sectoral party – organized group of citizens belonging to any of the following sectors: labor. Religious denominations and sects Those which seek to achieve their goals through violence or unlawful means iii. interests or concerns. regional. fisherfolk. COMELEC shall publish the petition in at least 2 national newspapers of general circulation iii. R. women. organized for religious purposes ii.POLITICAL LAW REVIEWER Chapter IV. the registration of any national. Ceased to exist for at least 1 year viii. regularly nominates certain of its leaders and members as candidates for public office.A. organization or coalition on any of the following grounds: i.A. agreement and other relevant information as the COMELEC may require ii.  Regional party . and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes v. organization. Who May Not be Registered i. Those which refuse to uphold and adhere to the Constitution iv. Declares untruthful statements in its petition vii. employment. peasant. R. Fails to participate in the last 2 preceding elections or ix. rules or regulations relating to elections vi. as the most immediate means of securing their adoption. Grounds for refusal and/or cancellation of registration  The COMELEC may. foundation. R. Sec. handicapped. Religious sect or denomination. overseas workers and professionals whose principal advocacy pertains to the special interests and concerns of their sector. 7941] 3. Fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered [Sec. Violates or fails to comply with laws. platform or program of government. Receives support from any foreign government. after due notice and hearing. 7941] 4. resolve the petition within 15 days from the date it was submitted for decision but in no case not later than 60 days before election [Sec. 7941. bylaws. Sectoral organization: group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics. regional or sectoral party.A. youth. organization or association. R. Foreign party or organization iv. 7941] 5. veterans. 6. 2. list of officers. Procedure for Registration i. 3. File with the COMELEC not later than 90 days before the election  a petition verified by its president or secretary stating its desire to participate in the party-list system as a national. [Sec. iv. 5. Constitution] 211 ELECTION LAW iii. Purpose To enable Filipino citizens belonging to marginalized and underrepresented sectors. 2 (5).A. urban poor. indigenous cultural communities. Those supported by foreign governments [Art. Advocates violence or unlawful means to seek its goal iii. organizations and parties. elderly. refuse or cancel.

Parameters in Allocation of Seats for Party-List Representatives i. Number of seats available to legislative districts .POLITICAL LAW REVIEWER Chapter IV. iii.20 = party-list representatives Formula for percentage of votes garnered by each party-list candidate = No. 7941] 212 ELECTION LAW 9. 179271. regardless of the number of votes it actually obtained.80 Number of seats available to x . of seats available to party-list representatives Guaranteed seats of the twopercenters  Any elected party-list representative who changes his political party or sectoral affiliation:  during his term of office shall forfeit his seat  within 6 months before an election shall not be eligible for nomination as partylist representative under his new party or organization [Sec. one qualifying and 2 additional seats. Nomination Representative  of Party-List    Each registered party. 8. 2009 Held: In computing the allocation of additional seats. COMELEC GR NO. 7941 which provides that “those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes” is unconstitutional. iv. including those elected under the party-list. The whole integer of the product corresponds to a party’s share in the remaining available seats Formula for remaining available seats = No. organization or coalition shall submit to the COMELEC not later 45 days before the election a list of at least 5 names from which party-list representatives shall be chosen in case it obtains the required number of votes. R. 7941] .A.A. 8. 3-seat limit – each party. There are 2 steps in the second round of seat allocation: 1) The percentage of votes garnered by each party-list candidate is multiplied by the remaining available seats. [Sec. A person may be nominated:  in 1 list only  if he/she has given their consent in writing  is not a candidate for any elective office or  has not lost his bid for an elective office in the immediately preceding election No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except where the nominee:  dies  withdraws in writing his nomination or  becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list Incumbent sectoral representatives in the HR who are nominated in the party-list system shall not be considered resigned. 15. 11(b) of R. PRE-ELECTION REQUIREMENTS 7. 20% allocation – the combined number of all party-list congressmen shall not exceed 20% of the total membership of the House of Representatives. R. July 8. the continued operation of the 2% threshold for the distribution of the additional seats as found in the second clause of Sec. is entitled to a maximum of 3 seats. of votes garnered by each party ÷ Total no. Effect of Change of Affiliation ii. 2% threshold – only those parties garnering a minimum of 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. Proportional representation – the additional seats shall be computed in “proportion to their total number of votes”. The 2% threshold frustrates the attainment of the permissive ceiling that 20% of the members of the HR shall consist of party-list representatives. BANAT VS.A. of votes cast for party-list candidates 2) Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed.

Party-list and District Representatives Distinguished Scope of electorate Residence requirement Party-list representative National None District representative Legislative district Resident of his legislative district for at least 1 year immediately before the election Elected personally Does not lose seat Special elections provided that the vacancy takes place at least 1 year before the next election.POLITICAL LAW REVIEWER Chapter IV. Loses his seat. Cannot sit ELECTION LAW Effect of change in affiliation within 6 months prior to election Effect of loss during previous election 213 . will be substituted by another Substitution will be made within the party Prohibited from sitting as representative under his new party or organization. Does not prevent a district representative from running under his new party. Can run again Manner of election Effect of disaffiliation with party Effect of vacancy Voted upon by party or organization. PRE-ELECTION REQUIREMENTS C.

79. COMELEC Resolution 8758] PENERA VS COMELEC G.P. in violation of Sec. PROHIBITED ACTS 5. ELECTION CAMPAIGN and EXPENDITURES Chapter V.POLITICAL LAW REVIEWER Chapter V.   . Penera was not officially a “candidate” albeit she already filed her certificate of candidacy. STATEMENT OF CONTRIBUTIONS AND EXPENSES 6. IX-B. Campaign Period i. Const. 80. ELECTION CAMPAIGN 1. No. PROHIBITED CONTRIBUTIONS 3. Civil service officers or employees [Art. Surigao del Norte. [Sec. Monica. [Sec. Election Expenditures A.90 days before the day of the election. XVI. a candidate is liable for an election offense only for acts done during the campaign period. 173. Sec.P. B.A. Campaign and 2.] iii. arguing that she was not yet a candidate at the time of the supposed premature campaigning. B. Issue: WON Penera’s disqualification for engaging in premature campaigning should be reconsidered.A. [Sec. November 25.A. 881] ii. 881] Persons Prohibited from Campaigning: i.P. Const. Penera moved for reconsideration. Before the start of the campaign period. For Members of the HR and elective provincial. CAMPAIGN PERIOD 3. Acts performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party.45 days before the day of the election. B. 80 of B. 5.R. ii. 9369. Foreigners. 9369. aggroupment. city and municipal officials . 2 (4). PROHIBITED FUND-RAISING ACTIVITIES 4. for engaging in election campaign outside the campaign period. 881] Exclusions: i. [Sec. 15. a person who files his certificate of candidacy is considered a candidate only at the start of the campaign period. ELECTION SURVEYS 7. the SC affirmed the COMELEC’s decision to disqualify Penera as mayoralty candidate in Sta. Poll Automation Law] Prohibited campaigning days: It is unlawful for any person to engage in an election campaign or partisan political activity on:  Maundy Thursday  Good Friday  eve of Election Day and  Election Day [Sec. not before. Election Campaign or Partisan Political Activity  An act designed to promote the election or defeat of a particular candidate or candidates to a public office. B. R. 79. EQUAL ACCESS TO MEDIA TIME AND SPACE 6.] iv. 5 (3). whether juridical or natural persons.P. or coalition of parties. 9369 one is not officially a candidate until the start of the campaign period. 3. For President. ii. 2009 Facts: On 11 September 2009. LIMITATIONS ON EXPENSES 5. since under Sec. RALLIES. [Sec. Vice-President and Senators . Election Campaign 1.P. 7166] General rule: Any election campaign or partisan political activity for or against any candidate outside of the campaign period is prohibited and shall be considered as an election offense. Thus. 881] Exception: Political parties may hold political conventions to nominate their official candidates within 30 days before the start of the period for filing a certificate of candidacy. 181613. ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY 2. and unlawful acts applicable to such candidate take effect only at the start of such campaign period. B. Sec. REQUISITES FOR PROHIBITED DONATION   214 ELECTION LAW  A. 881. R. Under Section 15 of R. DEFINITIONS 2. Members of the military [Art. MEETINGS AND OTHER POLITICAL ACTIVITY ELECTION CONTRIBUTIONS AND EXPENDITURES 1. LAWFUL ELECTION PROPAGANDA 4. Held: At the time the supposed premature campaigning took place. Public expressions of opinions or discussions of probable issues in a forthcoming election or on attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. 15 of R. Members of the board of election inspections [Sec.A.

POLITICAL LAW REVIEWER

Chapter V. ELECTION CAMPAIGN and EXPENDITURES

such election offenses cannot be committed and any partisan political activity is lawful.

ii.

3. Lawful Election Propaganda
i. Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials not larger than 8.5x14 inches Handwritten or printed letters urging voters to vote for or against any political party or candidate 

Take part or influence in any manner any election iii. Contribute or make any expenditure in connection with any election campaign or partisan political activity [Sec. 81, B.P. 881] For any person during the campaign period to: i. Remove, destroy, obliterate or in any manner deface or tamper with lawful election propaganda ii. Prevent the distribution of lawful election propaganda [Sec. 83, B.P.881] For any candidate, political party, organization or any person to: i. Give or accept, directly or indirectly, free of charge, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; ii. Give or contribute, directly or indirectly, money or things of value for such purpose (Sec. 89, B.P. 881) Note: Sec. 85 “Prohibited election propaganda” of B.P. 881 was repealed by Sec. 14 R.A. 9006.

ii.

iv. Paid advertisements in print or broadcast media  Bear and be identified by the reasonably legible or audible words “political advertisement paid for” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. [Sec. 4.1, R.A. 9006]  If the broadcast is given free of charge by the radio or TV station, identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. [Sec. 4.2, R.A. 9006]  Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by said candidate or political party. Written acceptance must be attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. [Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006] v. All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001. [Sec. 3, R.A. 9006, The Fair Election Act]

5. Equal Access to Media Time and Space
 Print advertisements shall not exceed 1/4 page, in broad sheet and 1/2 page in tabloids thrice a week per newspaper, magazine or other publications. Bona fide candidates and registered political parties running for nationally elective office are entitled to not more than 120 mins of TV advertisement and 180 mins of radio advertisement whether by purchase or by donation. Bona fide candidates and registered political parties running for locally elective office are entitled to not more than 60 mins of TV advertisement and 90 mins of radio advertisement whether by purchase or by donation. Broadcast stations or entities are required to submit copies of their broadcast logs and certificates of performance to the COMELEC for the review and verification of the frequency, date, time and duration of advertisement broadcast for any candidate or political party.

4. Prohibited Acts
 For any foreigner to: i. Aid any candidate or political party, directly or indirectly

ELECTION LAW

iii. Cloth, paper or cardboard posters, framed or posted, not larger than 2x3 feet  Streamers not larger than 3x8 feet are allowed at a public meeting or rally or in announcing the holding of such. May be displayed 5 days before the meeting or rally and shall be removed within 24 hours after such

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Chapter V. ELECTION CAMPAIGN and EXPENDITURES

All mass media entities are required to furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within 5 days after its signing. No franchise or permit to operate a radio or TV station shall be granted or issued, suspended or cancelled during the election period. Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall:  be deemed resigned, if so required by their employer or  take a leave of absence from his/her work as such during the campaign period No movie, cinematograph or documentary shall be publicly exhibited in a theater, television station or any public forum during the campaign period which:  portrays the life or biography of a candidate  is portrayed by an actor or media personality who is himself a candidate. [Sec. 6, R.A. 9006]

ii. Pollsters shall wear distinctive clothing iii. Pollsters shall inform the voters that they may refuse to answer and iv. The result of the exit polls may be announced after the closing of the polls on election day and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. [Sec. 5, R.A. 9006]

8. Application for Rallies, Meetings and Other Political Activity

ELECTION LAW

All applications for permits must immediately be posted in a conspicuous place in the city or municipal building, and the receipt thereof acknowledged in writing. Applications must be acted upon in writing by local authorities concerned within 3 days after their filing. If not acted upon within said period, deemed approved. The only justifiable ground for denial of the application is when a prior written application by any candidate or political party for the same purpose has been approved. Denial of any application for said permit is appealable to the provincial election supervisor or to the COMELEC whose decision shall be made within 48 hours and which shall be final and executory. [Sec. 87, B.P. 881)]

216

7. Election Surveys
 The measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period. Surveys affecting national candidates shall not be published 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election. Exit polls may only be taken subject to the following requirements: i. Pollsters shall not conduct their surveys within 50m from the polling place, whether said survey is taken in a home, dwelling place and other places

B. Election Contributions Expenditures
1. Definitions

and

Contribution: gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute  WON legally enforceable  made for influencing the results of the elections  excludes services rendered without compensation by individuals volunteering their time in behalf of a candidate or political party  includes the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]

POLITICAL LAW REVIEWER

Chapter V. ELECTION CAMPAIGN and EXPENDITURES

Expenditures: payment of money or anything of value or a contract, promise or agreement to make an expenditure  for the purpose of influencing the results of the election  includes the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]

       

2. Prohibited Contributions
i. From Public or private financial institutions  Unless:  the financial institutions are legally in the business of lending money  the loan is made in accordance with laws and regulations AND  the loan is made in the ordinary course of business Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works Grantees of franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs Grantees, within 1 year prior to the date of the election, of loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs Educational institutions which have received grants of public funds amounting to no less than P100,000 Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines Foreigners and foreign corporations, including foreign governments. [Sec. 95 and 96, B.P. 881]

ii.

4. Limitations on Expenses
 For Candidates  President and VP: P10 for every voter currently registered  Other candidates: P3 for every voter currently registered in the constituency where he filed his certificate of candidacy Candidates Without a Political Party: P5 for every voter For Political Parties: P5 for every voter currently registered in the constituency or constituencies where it has official candidates [Sec. 13, R.A. 7166, Act Providing for Synchronized National and Local Elections and Electoral Reforms]

iii.

iv.

 

v.

vi.

5. Statement Expenses

of

Contributions

and

vii.

viii.

3. Prohibited Fund-raising Activities
 The following are prohibited if held for raising campaign funds or for the support of any candidate from the start of the election period up to and including election day:  Dances

Every candidate and treasurer of the political party shall file:  in duplicate with the COMELEC  the full, true and itemized statement of all contributions and expenditures in connection with the election  within 30 days after the day of the election Effect of failure to file statement:  No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures

ELECTION LAW

Lotteries Cockfights Games Boxing bouts Bingo Beauty contests Entertainments, or cinematographic, theatrical or other performances For any person or organization, civic or religious, directly or indirectly, to solicit and/or accept from any candidate or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the start of the election period up to and including election day  Except: normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days [Sec. 97, B.P. 881]

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The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statements

6. Requisites of a Prohibited Donation
 Who: By candidate, spouse, relative within 2nd civil degree of consanguinity or affinity, campaign manager, agent or representative; treasurers, agents or representatives of political party When: During campaign period, day before and day of the election Directly or indirectly:   donation, contribution or gift in cash or in kind undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization.

 

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Exceptions:  Normal and customary religious dues or contributions  Periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period [Sec. 104, B.P. 881]

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

Chapter VI. Election Proper
A. IN GENERAL 1. WHAT CONSTITUTES AN ELECTION 2. FAILURE OF ELECTIONS; GROUNDS 3. POSTPONEMENT OF ELECTIONS 4. SPECIAL ELECTIONS BOARD OF ELECTION INSPECTORS CASTING OF VOTES 1. VOTING HOURS 2. VOTING 3. CHALLENGE OF ILLEGAL VOTERS 4. CHALLENGE BASED ON CERTAIN ILLEGAL ACTS COUNTING OF VOTES 1. COUNTING PROPER 2. ELECTION RETURNS CANVASS(ING OF VOTES) 1. DEFINITIONS 2. COMPOSITION OF BOARD OF CANVASSERS 3. PROHIBITION ON BOC 4. CANVASS BY THE BOC 5. CERTIFICATE OF CANVASS AND STATEMENT OF VOTES 6. PROCLAMATION

election may occur before or after the casting of votes or on the day of the election. [Sec. 4, R.A. 7166]  The postponement, declaration of failure of election and the calling of special elections shall be decided by the COMELEC sitting en banc by a majority vote of its members. [Sec. 4, R.A. 7166] The COMELEC shall call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect:  upon a verified petition by any interested party and  after due notice and hearing [Sec. 6, B.P. 881] When: on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect  but not later than 30 days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Sec. 6, B.P. 881]

B. C.

D.

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E.

A. In General
1. What Constitutes an Election
 Plurality of votes sufficient for:  a choice conditioned on the plurality of valid votes or  a valid constituency regardless of the actual number of votes cast.

3. Postponement of Elections
 Grounds: i. Violence ii. Terrorism iii. Loss or destruction of election paraphernalia or records iv. Force majeure v. Other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. [Sec. 5, B.P. 881] The COMELEC shall postpone the election therein motu proprio or upon a verified petition by any interested party and after due notice and hearing.  Decided en banc by a majority vote of its members. [Sec. 4, R.A. 7166] When: on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect  but not later than 30 days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Sec. 5, B.P. 881]

2. Failure of Elections
 Grounds: in any of such cases the failure or suspension of election must affect the result of the election i. Election in any polling place has not been held on the date fixed due to force majeure, violence, terrorism, fraud, or other analogous causes. ii. Election in any polling place had been suspended before the hour fixed for the closing of the voting due to force majeure, violence, terrorism, fraud, or other analogous causes. iii. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect due to force majeure, violence, terrorism, fraud or other analogous causes. [Sec. 6, B.P. 881] Causes for the declaration of failure of

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

4. Special Elections
 Ground: permanent vacancy in the Senate or House of Representatives at least 1 year before the expiration of the term. [Sec. 4, R.A. 7166] The COMELEC shall call and hold a special election to fill the vacancy. When:  Vacancy in HR (House of Representatives) – not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy.  Vacancy in the Senate – simultaneous with the succeeding regular election. [Sec. 4, R.A. 7166]

 

 Prohibitions:
B. Board of Election Inspectors
 Constituted by COMELEC for each precinct at least 30 days before the date when the voter’s list is to be prepared (regular election) or 15 days before a special election. Composition:  Chairman, poll clerk and member  All of whom shall be public school teachers, with priority given to those with permanent appointments  If there are not enough public school teachers, the following may be appointed, provided that the Chairman shall be a public school teacher: i. teachers in private schools ii. employees in the civil service or iii. citizens of known probity and competence who are registered voters of the city or municipality  at least 1 member shall be an ITcapable person as certified by the DOST after the training of the same. [Art. 1, Sec. 1, COMELEC Res. 8739] Disqualification: He or his spouse is related th within the 4 civil degree of consanguinity or affinity to any member of the Board, or to any candidate to be voted for or to the latter’s spouse. [Art. 1, Sec. 3, Comelec Res. 8739] Powers: i. Conduct the voting in the polling place and administer the electronic counting of votes ii. Print the election returns and transmit  No member of the Board shall engage in any partisan political activity or take part in the election except to discharge his duties as such and to vote. [Sec. 173, BP 881] No member of the Board shall, before the termination of the voting, make any announcement as to whether a certain registered voter has already voted or not, as to how many have already voted or how many so far have failed to vote, or any other fact tending to show or showing the state of the polls, nor shall he make any statement at any time as to how any person voted, except as witness before a court. [Sec. 205, BP 881]

C. Casting of Votes
1. Voting Hours
 The voting period is from 7AM to 6PM. However, if after 6PM there are still voters within 30 meters from the polling place who have yet to cast their votes, such voters may still be allowed to vote. [Art. IV, Sec. 21, Comelec Res. 8739]

2. Voting

 Manner of voting:
i. Using a ballot secrecy folder and the marking pen provided by the COMELEC, fill his ballot by fully shading the oval beside the names of the candidates and political party of his choice.

ELECTION LAW

electronically the election results, through the use of the PCOS machine, to the:  City/Municipal Board of Canvassers  Dominant majority party, dominant minority party, accredited citizens' arm and KBP and  Central server iii. Act as deputies of the COMELEC in the supervision and control of the election in the polling places wherein they are assigned iv. Perform such other functions prescribed by the Omnibus Election Code or by the rules and regulations promulgated by the Comelec. [Art. 1, Sec. 10, Comelec Res. 8739]

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ii.

The voter shall approach the PCOS, insert his ballot in the ballot entry slot and wait until the ballot is dropped into the ballot box. iii. The BEI shall monitor the PCOS screen to make sure that the ballot was successfully accepted. iv. The chairman shall apply indelible ink at the right forefinger nail of the voter, or any other nail if there be no forefinger nail. v. The voter shall affix his thumbmark on the corresponding space in the Voter’s List. [Art. V, Sec. 35, Comelec Res. 8739]  Rejected ballots:  In the event of a rejected ballot, the voter shall be allowed to re-insert the ballot. If the PCOS still rejects the ballot, the voter shall return the ballot to the Chairman who shall: i. Distinctly mark the back thereof as “Rejected” ii. Require all members of the BEI to sign at the back thereof, and place inside the Envelope for Rejected Ballots.  No replacement ballot shall be issued to a voter whose ballot is rejected by the PCOS.  Any party objecting to the rejection of the ballot shall reduce his objection in writing, which the board shall attach and note in the Minutes. [Art. V, Sec. 36, COMELEC Res. 8739] No voter shall be allowed to: i. Bring the ballot, ballot secrecy folder or marking pen outside of the polling place ii. Speak with anyone other than as herein provided while inside the polling place iii. Prepare his ballot without using the ballot secrecy folder or exhibit its contents iv. Fill his ballot accompanied by another, except in the case of an illiterate or person with disability/disabled voter v. Erase any printing from the ballot, or put any distinguishing mark on the ballot vi. Use carbon paper, paraffin paper or other means of making a copy of the contents of the ballot, or otherwise make use of any other scheme to identify his vote, including the use of digital cameras, cellular phones with camera or similar gadgets vii. Intentionally tear or deface the ballot

viii. Disrupt or attempt to disrupt the normal operation of the Precinct Count Optical Scan (PCOS). [Art. IV, Sec. 29, COMELEC Res. 8739]  Preparation of ballots for illiterates and disabled persons: i. No voter shall be allowed to vote as an illiterate or as a physically disabled unless it is so indicated in his registration record. ii. He may be assisted in the preparation of his ballot by:  A relative by affinity or th consanguinity within the 4 civil degree  Any person of his confidence who belongs to the same household  Any member of the board of election inspectors. iii. In no case shall an assistor assist more than 3 times, except the members of the BEI. iv. The person assisting shall:  Prepare the ballot using a ballot secrecy folder  Bind himself in writing and under oath to fill the ballot strictly in accordance with the instructions of the voter and not to reveal the contents thereof. v. A person with physically impaired capacity to use the AES may also be assisted in feeding his ballot into the PCOS. The assistor shall ensure that the contents of the ballot are not displayed during the feeding of the same into the PCOS. [Art. IV, Sec. 30, Comelec Res. 8739]

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ELECTION LAW

3. Challenge of Illegal Voters
 Any voter or watcher may challenge any person offering to vote for: i. not being registered ii. using the name of another iii. suffering from existing disqualification In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration, identity or qualification of the voter. [Sec. 199, B.P. 881]

4. Challenge based on certain illegal acts
 Any voter or watcher may challenge any voter offering to vote on the ground that he:

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

i.

Received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another. ii. Made or received a promise to influence the giving or withholding of any such vote. iii. Made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. [Sec. 200, B.P. 881]   The challenged person shall take an oath before the BEI that he has not committed the acts alleged. Upon the taking of oath, the challenge shall be dismissed and the voter allowed to vote, but in case of his refusal to take such oath, challenge shall be sustained and he shall not be allowed to vote. [Sec. 200, B.P. 881]

The chairman shall publicly announce the total number of votes received by each candidate, stating their corresponding offices. The poll clerk shall announce the posting of a copy of the second copy of the ER both for national and local positions on a wall within the premises of the polling place/counting center which must be sufficiently lighted and accessible to the public, and proceed to post such copies. [Sec. 19, R.A. 9369]

D. Counting of Votes
1. Counting Proper
 Unless otherwise ordered by the COMELEC, the BEI shall not stop or postpone the counting until it has been completed. the PCOS shall automatically count the votes After all the votes have been counted, the PCOS shall automatically print 30 copies of the Election Returns for the national and local positions. [Art. V, Sec. 38, Comelec Res. 8739]

Transmittal of ERs:  Within 1 hour after the printing of the election returns, the chairman or any official authorized by COMELEC shall, in the presence of watchers and representatives of the accredited citizen's arm, political parties/candidates, if any, electronically transmit the precinct results to: i. the respective levels of board of canvasser ii. to the dominant majority and minority party iii. to the accredited citizen's arm and iv. Kapisanan ng mga Broadcasters ng Pilipinas (KBP) [Sec. 19, R.A. 9369]

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ELECTION LAW

 

E. Canvassing of Votes
1. Definitions
  Canvass - the process by which the results in the election returns are tallied and totalled. Certificates of canvass - official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on the election returns, which are the results of the ballot count at the precinct level.

2. Election Returns
 A document in electronic and printed form directly produced by the counting or voting machine. [Sec. 2(4), R.A. 9369] Contents:  the date of the election  the province, municipality and the precinct in which it is held and  the votes in figures for each candidate [Sec. 2(4), R.A. 9369] Number of copies and their distribution:  30 copies  Sec. 19, R.A. 9369 for manner of transmittal and distribution Announcement of results:

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

2. Composition of Board of Canvassers
[Sec. 20, R.A. 6646] Province Provincial election supervisor or lawyer in the COMELEC regional office City City election registrar or a lawyer of COMELEC; In cities with more than 1 election registrar, COMELEC shall designate City fiscal City superintendent of schools Municipality Election registrar or COMELEC representative

Chairman

Vice Chairman

Member

Provincial fiscal Provincial superintendent of schools

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members, COMELEC may appoint the following as substitutes, in the order named: Province City Ranking lawyer of the COMELEC a. City auditor or equivalent; b. Registrar of Deeds; c. Clerk of Court nominated by the Executive Judge of the RTC; d. Any other available appointive city official Same as Chairman for ViceMunicipality Ranking lawyer of the COMELEC a. Municipal Administrator; b. Municipal Assessor; c. Clerk of Court nominated by the Executive Judge of the MTC; d. Any other available appointive municipal official Same as for ViceChairman

Chairman Vice Chairman

Ranking lawyer of the COMELEC a. Provincial auditor b. Registrar of Deeds c. Clerk of Court nominated by the Executive Judge of the RTC; d. Any other available appointive provincial official Same as Chairman for Vice-

Member

3. Prohibitions on BOC
 Chairman and members shall not be related th within the 4 civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. [Sec. 222, B.P. 881] No member or substitute member shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates. [Sec. 223, B.P. 881] No member shall feign illness to be substituted on election day until the proclamation of the winning candidates. Feigning of illness constitutes an election offense. [Sec. 224, B.P. 881]

4. Canvass by the BOC
 The BOC shall canvass the votes by consolidating the electronically transmitted results or the results contained in the data storage devices used in the printing of the election returns. [Sec. 20, R.A. 9369]

5. Certificate of Canvass and Statement of Votes
 Within one hour after the canvassing, the Chairman of the district or provincial BOC or the city BOC of those cities which comprise one or more legislative districts shall electronically transmit the certificates of canvass to:  COMELEC sitting as the National BOC for senators and party-list representatives and  Congress as the National BOC for the president and vice president, directed to

ELECTION LAW

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

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Chapter VI. ELECTION PROPER

 

the President of the Senate. [Sec. 20, R.A. 9369] The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate. [Sec. 20, R.A. 9369] 30 copies shall be distributed in accordance to Sec. 21, R.A. 9369. National BOC for president and vicepresident  Composition: The Senate and the House of Representatives in joint public session.  Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session.  Congress upon determination of the authenticity and the due execution thereof in the manner provided by law shall: i. canvass all the results for president and vice-president and ii. proclaim the winning candidates. [Sec. 22, R.A. 9369] National BOC for Senators and Party-List Representatives  Composition: The chairman and members of the COMELEC sitting en banc  It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives. [Sec. 23, R.A. 9369]

a. When proclamation void:  When it is based on incomplete returns [Castromayor v. Comelec (1995)] or  When there is yet no complete canvass. [Jamil v. Comelec (1997)]  A void proclamation is no proclamation at all, and the proclaimed candidate’s assumption into office cannot deprive the COMELEC of its power to annul the proclamation. b. Partial proclamation: Notwithstanding pendency of any pre-proclamation controversy, COMELEC may summarily order proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. [Sec. 21, R.A. 7166] c. Election resulting in a tie: BOC, by resolution, upon 5 days notice to all tied candidates, shall hold a special public meeting at which the board shall proceed to the drawing of lots of tied candidates and shall proclaim as elected the candidates who may be favored by luck. [Sec. 240, B.P. 881]  There is a tie when:  2 or more candidates receive an equal and highest number of votes; or  2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected.

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ELECTION LAW

6. Proclamation
 Proclamation shall be after the canvass of election returns, in the absence of a perfected appeal to the COMELEC, proclaim the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay, on the basis of the certificates of canvass. Failure to comply with this duty constitutes an election offense. [Sec. 231, B.P. 881]

d. Proclamation of a lone candidate: Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and VP, when there is only 1 qualified candidate, he shall be proclaimed elected without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected. [Sec. 2, R.A. 8295, Law on Proclamation of Solo Candidates]

POLITICAL LAW REVIEWER

Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS

Chapter VII. Modes of Challenging Candidacy and Election Results
A. CANCELLATION OF CERTIFICATE OF CANDIDACY 1. GROUNDS 2. NATURE OF PROCEEDINGS 3. PROCEDURE PRE-PROCLAMATION CONTROVERSIES 1. JURISDICTION 2. WHEN NOT ALLOWED 3. NATURE OF PROCEEDINGS 4. ISSUES THAT MAY BE RAISED 5. ISSUES THAT CANNOT BE RAISED 6. PROCEDURE 7. EFFECT OF FILING OF PREPROCLAMATION 8. EFFECT OF PROCLAMATION OF WINNING CANDIDATE 9. PETITION TO ANNUL/SUSPEND PROCLAMATION 10. DECLARATION OF FAILURE OF ELECTION DISQUALIFICATION CASES 1. PROCEDURE 2. EFFECT

any matter raised under Sec. 233-236 of BP 881 (see below) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. [Sec. 241, BP 881]

1. Jurisdiction
COMELEC has exclusive jurisdiction over preproclamation cases. It may order, motu proprio or upon written petition, the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. [Sec. 242, BP 881]

B.

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ELECTION LAW

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

C.

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

A. Cancellation Candidacy
1. Grounds
i. ii.

of

Certificate

of

False material representation in the certificate of candidacy; If the certificate filed is a substitute Certificate of Candidacy, when it is not a proper case of substitution under Sec. 77 of BP 881.

4. Issues That May Be Raised
 This enumeration is restrictive and exclusive: i. Illegal composition or proceedings of the board of election canvassers; ii. Canvassed election returns are either:  Incomplete;  Contain material defects;  Appear to be tampered with or falsified;  Contain discrepancies in the same returns or in other authentic copies; iii. The election returns were: a) Prepared under duress, threats, coercion, intimidation or b) Obviously manufactured or not authentic iv. Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s). v. Manifest errors in the Certificates of Canvass or Election Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]

2. Nature of Proceedings
 Summary

3. Procedure
   Who may file: any citizen of voting age, or a duly registered political party, organization, or coalition of political parties When filed: Within 5 days from the last day for the filing of certificates of candidacy Where filed: With the Law Department of the COMELEC

B. Pre-Proclamation Controversies
(asked in 1987, 1988, 1996) Any question or matter pertaining to or affecting:  the proceedings of the board of canvassers, or

A. (1987)] ii. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS 5. [Loong v. 226 7.POLITICAL LAW REVIEWER Chapter VII. as this is performed by the BEI at the precinct level and is not part of the proceedings of the BOC [Sanchez v. Appreciation of ballots. 7166] When: 1. If the petition is for correction. must be filed immediately when the board begins to act as such [Laodeno v. Technical examination of the signatures and thumb marks of voters [Matalam v. Prayer for re-opening of ballot boxes [Alfonso v. Effect of Filing of Pre-Proclamation Controversy  The period to file an election contest shall be suspended during the pendency of the pre-proclamation contest in the COMELEC or the Supreme Court. a petition involves the illegal composition or proceedings of the board. 17. Comelec. or immediately at the point where the proceedings are or begin to be illegal. is Who: Any candidate.  The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case. [Sec. COMELEC Rules of Procedure]   8. 6. Fraud. 2. Questions involving the composition or proceedings of the board of canvassers. or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board. or  . R. and must implead all candidates who may be adversely affected thereby. Effect of Proclamation of Winning Candidate  General rule: A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. Padding of the Registry List of Voters of a municipality. by participating in the proceedings. The remedy is an election protest before the proper forum. Exceptions: The prevailing candidate may still be unseated even though he has been proclaimed and installed in office if:  The opponent is adjudged the true winner of the election by final judgment of court in an election contest. the petitioner is deemed to have acquiesced in the composition of the BOC. it must be filed not later than 5 days following the date of proclamation. Rule 27. Despite the pendency of a pre-proclamation contest. Otherwise. transmission. Procedure a. political party or coalition of political parties ELECTION LAW Note: Non-compliance with any of the steps above is fatal to the pre-proclamation petition. Comelec (1990)] v. Comelec]. (1997)] iv. custody and appreciation of the election returns and certificates of canvass Where: Only with the Board of Canvassers When: At the time the questioned return presented for inclusion in the canvass. Comele (supra)] vi. Matters relating to the preparation. [Sec. Comelec. The right of the prevailing party in the preproclamation contest to the execution of COMELEC’s decision does not bar the losing party from filing an election contest. massive fraud and terrorism [Ututalum v. receipt. 5(b). or correction of manifest errors Where: Either in the Board of Canvassers or directly with the COMELEC. (1992)] b. Comelec. Comelec (1997)] iii. Challenges directed against the Board of Election Inspectors [Ututalum v. exclusive jurisdiction. terrorism and other illegal electoral practices. the COMELEC may order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. These are properly within the office of election contests over which electoral tribunals have sole. Issues That Cannot Be Raised i.

Requisites: The following conditions must concur: a. 1996. indicating therein the date of hearing. or even if there was voting. Procedure: 1) Petitioner files verified petition with the Law Department of the COMELEC. Comelec. 5) The COMELEC then decides whether to grant or deny the petition. 3) Unless a shorter period is deemed necessary by the circumstances. The votes cast would affect the results of the election.    ELECTION LAW 10. the election nonetheless resulted in a failure to elect. through the fastest means available. 2003) Any candidate who has been declared by final judgment to be disqualified shall not be voted for. When: Any day after the last day for filing of certificates of candidacy. This lies within the exclusive prerogative of the COMELEC. within 2 days from receipt of the notice of hearing. Comelec. (1989)] No law provides for a reglementary period within which to file a petition for the annulment of an election if there is as yet no proclamation. [Alangdeo v. or any duly registered political party. Comelec (supra)]  2. and b. Disqualification Cases 1. Procedure i. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS  The incumbent is removed from office for cause. [Borja v. C. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected. the Clerk of Court concerned serves notices to all interested parties.  It is neither an election protest nor a preproclamation controversy. within 24 hours. The COMELEC may delegate the hearing of the case and the reception of evidence to any of its officials who are members of the Philippine Bar. any interested party may file an opposition with the Law Department of the COMELEC. Declaration of Failure of Election 227 . sitting en banc. organization or coalition of political parties ii. may declare a failure of election by a majority vote of its members.POLITICAL LAW REVIEWER Chapter VII. does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. but not later than the date of proclamation 9. Petition to Proclamation  Annul or Suspend The filing of the petition suspends the running of the period to file an election protest. 4) The COMELEC proceeds to hear the petition. and the votes cast for him shall not be counted. (1998)] Jurisdiction: COMELEC. 2) Unless a shorter period is deemed necessary by circumstances. Effect (asked in 1990. Where: Law Department of the COMELEC iii. 1992. Who may file: Any citizen of voting age. [Loong v. No voting has taken place in the precincts concerned on the date fixed by law.

261r.A. or tampering of lawful election propaganda. loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election [Sec. 4. punishment.POLITICAL LAW REVIEWER Chapter VIII. OTHER PROHIBITIONS 10. 881): A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality. 4. 83. 268. damage. PRESCRIPTION G. 9. [Sec. city or province has been D.P. R. R. the complainant may file the complaint with the fiscal or the Department of Justice.A. COERCION.P. destruction. intimidating. 6646] 2) Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate [Sec. B.P. terrorizing. it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman.P. INTIMIDATION. B. water or aircraft during the campaign period [Sec. B. 2) Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter [Sec. R. VIOLENCE 9. inflicting or producing violence.A. special agents or the like during the campaign period [Sec. ELECTION CAMPAIGN 4. The courts shall give preference to election cases over all other cases except petitions for writ of habeas corpus. Art. B. 881] 3) Unlawful electioneering [Sec.P. harassing. CERTIFICATE OF CANDIDACY 3. injury. PENALTIES E. [Sec.A. Registration 1) Failure of the Board of Election Inspectors . ELECTION OFFENSES 1. 261k. Election Offenses 1.P. ARRESTS IN CONNECTION WITH ELECTION CAMPAIGN F. 5. Election Campaign 1) Appointment or use of special policemen. In the event that the COMELEC fails to act on any complaint within 4 months from its filing.P. Voting 1) Vote-buying and vote-selling (Sec. 881) 2) Conspiracy to bribe voters (Sec. ACTS OF GOVERNMENT AND PUBLIC OFFICERS 8.A. 7166]. bribing. Jurisdiction over Election Offenses  RTCs have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. B. 261b. 1987 Const] However. threatening. 9369 to post the list of voters in each precinct.P. 881] 3. 261a. obliteration. Certificate of Candidacy 1) Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate [Sec. 3) Coercing. C. 881] 2) Use of armored land. B.A. COUNTING OF VOTES 6. Election Offenses A. R. 27f. B. B. 881)   C. VOTING 5. 261t. [Sec. 881] B.P. 261m. 6646]. B. Prosecution of Election Offenses  The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. 2 (6). B. Preferential Disposition of Election Offenses   The investigating officer shall resolve the case within 5 days from submission.P. IX-C. 8295] 228 ELECTION LAW A. ELECTION OFFENSES Chapter VIII. [Sec. torture. 262. or actually causing. 265. 8189] 2. REGISTRATION 2. 27f. CANVASSING 7. R. or preventing the distribution thereof (Sec. 881 vis-à-vis Sec. B. 881] 4) Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period (Sec. 881) 5) Removal. PROHIBITED ACTS UNDER R. JURISDICTION OVER ELECTION OFFENSES PROSECUTION OF ELECTION OFFENSES PREFERENTIAL DISPOSITION OF ELECTION OFFENSES D. if warranted.

valuable consideration or other expenditure by a candidate's relatives. 261i. Violence 1) Coercion of election officials and employees 2) Threats.P. or similar forces during the election period (Sec. 881) 7) Construction of public works. B. B. B.A.  Good faith is not a defense.P. Coercion. B. 881) 6) Release. 261d. B. R. cockfights. B. laborers.P.P. terrorism.P. 261v. 261g. or tenants for refusing or failing to vote for any candidate (Sec. Other Prohibitions 1) Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC (Sec. 881) 4) Dismissal of employees. Acts of Government or Public Officers 1) Appointment of new employees. 261x.P. on election day (Sec. 881) 5) Carrying firearms outside residence or place of business (Sec.A. B. use of fraudulent devices or other forms of coercion (Sec. 261c. 261d(2). 27b. In addition to the prescribed penalty. etc. 881) 4) Use of public funds for an election campaign (Sec. or giving salary increases within the election period (Sec. 6646] 229 ELECTION LAW 9. ELECTION OFFENSES offered. 881) In addition to the prescribed penalty.P. 261n. such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise.P.P.P. RA 9369] 2) Refusal to issue to duly accredited watchers the certificate of votes cast and the announcement of the election. B. 6646) 7. leaders and/or sympathizers for the purpose of promoting the election of such candidate. B. during the prohibited period (Sec.P. 6646) 3) Coercion of subordinates to vote for or against any candidate (Sec. disbursement or expenditure of public funds during the prohibited period (Sec. 6646]  A special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. increasing. 261dd (2). 261q. B. as election offenses are generally mala prohibita. or the day before the election or on election day (Sec. 881) 5) Illegal release of prisoners before and after election (Sec. B. B. 261dd (1). 881) 8.P.A. 881) 4) Opening booths or stalls within 30 meters of any polling place (Sec. 7) Discrimination in the sale of air time (Sec. 261w. [Sec. 881) 10. Counting of Votes 1) Tampering.P. such refusal constitutes a ground for cancellation or revocation of the franchise. Canvassing  Any chairperson of the board of canvassers who fails to give notice of meeting to other members of the board. R. without probation . R. 881). 27a. etc. 42. B. etc. 261o. R.P. 261dd (3). 6. 261z (2). promotion. strike forces. 27c. 261e. decreasing votes. 261h. 261j. B.P. 27e. 881) 3) Use of undue influence (Sec. B. 881) 5) Holding fairs. Intimidation.A. 881) 6) Refusal to carry election mail during the election period (Sec. promised or given money. Penalties  For individuals  Imprisonment of not less than 1 year but not more than 6 years.P. or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors [Sec. B. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place. B.P. by any member of the board of election inspectors [Sec. 261p. 881) 3) Intervening of public officers and employees in the civil service in any partisan political activity (Sec. 881) 6) Organization or maintenance of reaction forces. B.POLITICAL LAW REVIEWER Chapter VIII. 881) 4) Carrying deadly weapons within the prohibited area (Sec. 881) 5. 881) 2) Transfer of officers and employees in the civil service within the election period without the prior approval of the COMELEC (Sec.P. B. candidate or political party as required (Sec.P. R. 28. B. 261dd (4).P. B. B.P. creation of new positions. 261dd (5). 881) 3) Sale. 261u. (Sec. intimidation.P. 881) 8) Suspension of elective local officials during the election period without prior approval of the COMELEC (Sec. 881) 5) Being a flying voter (Sec.A. 6646) 2) Wagering upon the results of elections (Sec.

perpetual disqualification to hold public and any non-elective public office and iii.  7. 267. Prohibited Acts Under R. destroying or disclosing any computer data. prison mayor in its maximum period. facilities. Arrests in Connection with Election Campaign  Only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution have been strictly complied with. 9369 1. generation and ELECTION LAW transmission of election results. preventing the installation or use of computer counting devices and the processing. peripherals or supplies used in the AES such as counting machine. destroying or stealing: i. F. Prescription 5 years from the date of their commission. storage. altering. or any computer-related devices.P. [Sec.P. Utilizing without authorization. imprisonment of 8 years and one day to 12 years without possibility of parole ii. B. tampering with. and certificates of canvass of votes used in the system. and ii. Exception: Those convicted of the crime of electoral sabotage. 264. 881] 4. E. memory pack/diskette. B. election returns. increase and/ or decrease votes refusal to credit the correct votes or to deduct tampered votes. 264.000 after a criminal conviction Persons Required by Law to Keep Prisoners in their Custody: For prisoners illegally released from any penitentiary or jail during the prohibited period." 230 . system software. Electronic devices or their components. For a Foreigner  Imprisonment of not less than 1 year but not more than 6 years (without probation). deprivation of the right of suffrage. duration and in the designated location shall constitute an election offense on the part the election officer concerned. Interfering with. the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. When the tampering.A. whether classified or declassified Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers Presentation by the citizens' arm of tampered or spurious election returns Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns and The failure to post the voters' list within the specified time. increase and/or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes b. 881] Disqualification to hold public office Deprivation of the right of suffrage 3.P. B. is/are committed in the election of a national elective office which is voted upon nationwide and c. [Sec. memory pack receiver and computer set 2. absconding for purpose of gain.  Deportation after service of sentence For a Political Party  Payment of a fine not less than P10. the tampering. Official ballots. If the discovery of the offense be made in an election contest proceeding. ELECTION OFFENSES    [Sec. damaging. hardware or equipment.POLITICAL LAW REVIEWER Chapter VIII. data or information Gaining or causing access to using.  5. 881] G. network. where such prisoners commit any act of intimidation. terrorism or interference in the election.  PENALTY i. shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is /are made to appear the winner/s. program. which includes acts or offenses committed in any of the following instances:  National elective office: a. 6. impeding.

ELECTION OFFENSES  Regardless of the elective office involved.000 votes. and that the same adversely affects the true results of the election Any and all other forms or tampering increase/s and/ or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes. 231 ELECTION LAW   .POLITICAL LAW REVIEWER Chapter VIII. when the tampering. shall be meted the same penalty of life imprisonment. involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed 5.end of Election Law - .000 votes PENALTY .Any and all other persons or individuals determined to be in conspiracy or in connivance with the members of the BEIs or BOCs involved. increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated a. is accomplished in a single election document or in the transposition of the figure / results from one election document to another and b. where the total votes involved exceed 10.

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Methods of Organizing Public Offices 237 11............................. Civil Service Commission’s (CSC’s) Jurisdiction................ Elements of a De Facto Officership 240 4.............. De Facto Officers .... Qualification Standards ............... De Facto Doctrine..........237 2...... Estoppel in Denying Existence of Office 237 B..... Qualification Standards and Requirements under the Civil Service Law250 1....... 250 5................. Public Office is not Property.....234 1... Eligibility is Presumed .....238 3...................................243 B............ ............244 E...... ...244 F...... De Facto Officer Defined .239 1.. Nature of Power to Appoint ................. 252 I............ Presidential Appointees........... .. Religious Test or Qualification is not Required .... Legal Effect of Acts of De Facto Officers ....... 248 2................ Effects of a Complete.......236 7.......................................... C..................239 2......... 251 E........ 249 5..........................241 5.......... Public Office ........................ Effect of Pardon upon the Disqualification to Hold Public Office ..............235 5.................. 248 3...239 D.........234 A.. Office created under an unconstitutional statute.....................241 7... Purpose.......234 2.... Classification of Public Offices and Public Officers...238 C...236 10......................................... Definition . Political Qualifications for an Office 250 3......... Steps in Appointing Process. Public Contract ............. Discretion of Appointing Official ...................... Right to Compensation of De Facto Officer ....... Public Office and Officers .................... Definition ........ 248 1..239 3........... Elements .............. Public Office v..................... Creation of Public Office ..........241 6. 251 F.......... Modification and Abolition of Public Office 237 12.241 Chapter II..................... Definition......237 1................ Public Office v. 251 6............ Liabilities of De Facto Officers . 249 D......... Public Officer’s Power is Delegated (not Presumed)...........235 3............ Citizenship ..... Formation of Official Relation ....................236 9... No Property Qualifications....... Effectivity of Appointment ..................................................... Power to Prescribe Qualifications .... A Person Cannot be Compelled to Accept a Public Office........236 8...... Public Employment 235 6............................................... 248 Appointment............... Effect of Removal of Qualifications During the Term .... 251 G..... Final and Irrevocable Appointment.. Classification of Appointments .................................. 250 2.. No vested right to public office.......... Disqualifications to Hold Public Office 245 Chapter III............... Election .... Nature . 250 4.............. Eligibility and Qualifications ......235 4............... 252 233 LAW ON PUBLIC OFFICERS ... Qualifications Prescribed By Constitution ............................................248 A.... 252 H... Time of Possession of Qualifications 244 D.............. Definition .....243 C.........POLITICAL LAW REVIEWER TABLE of CONTENTS LAW ON PUBLIC OFFICERS Table of Contents Chapter I.......................243 A...................... Appointments to the Civil Service ..245 G....... Modes of Commencing Official Relation 248 B........ Public Officer.... 248 4.................

[Fernandez v. NO VESTED RIGHT TO PUBLIC OFFICE 8. CREATION OF PUBLIC OFFICE 10. PROPERTY 9. RIGHT TO COMPENSATION OF DE FACTO OFFICER Ria Dooc Lead Writer Dianne Patawaran Mike Rivera Writers POLITICAL LAW Jennifer Go Subject Editor ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief B. PUBLIC OFFICE V. NOT PRESUMED CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC OFFICERS DE FACTO OFFICERS 1. authority and duty. DEFINITION 2. PUBLIC OFFICER’S POWER IS DELEGATED. PUBLIC OFFICE V. DE FACTO DOCTRINE 2. Rania Joya C. Public Office 1. for a given period either fixed by law or enduring at the pleasure of the creating power. ESTOPPEL IN DENYING EXISTENCE OF OFFICE PUBLIC OFFICER 1. EXCEPTIONS 3. OFFICER DE FACTO V. A PERSON CANNOT BE COMPELLED TO ACCEPT PUBLIC OFFICE. DE JURE B. Public Office and Officers A. MODIFICATION AND ABOLITION OF PUBLIC OFFICE 12. OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE 5. Gisella Dizon-Reyes Faculty Editor LAW ON PUBLIC OFFICERS LAW ON PUBLIC OFFICERS TEAM Chapter I. PUBLIC OFFICE 1. created and conferred by law. Kae Guerrero DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. PUBLIC OFFICE and OFFICERS Prof. Tomas (1995)] Breakdown of the definition:  (nature) right. PUBLIC CONTRACT 7. PUBLIC OFFICE V. authority and duty  (origin) created and conferred by law  (duration) by which for a given period – either: 1) fixed by law or BAR CANDIDATES WELFARE Dahlia Salamat LOGISTICS Charisse Mendoza SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members  LAW ON PUBLIC OFFICERS PRINTING & DISTRIBUTION 234 . by which. ELEMENTS 5. METHODS OF ORGANIZING PUBLIC OFFICE 11. ELEMENTS OF DE FACTO OFFICERSHIP 4. to be exercised by that individual for the benefit of the public. Sto. DEFINITION 2. PUBLIC EMPLOYMENT 6. PURPOSE 3. INTRUDER 3. LIABILITIES OF DE FACTO OFFICERS 7. DEFINITION OF DE FACTO OFFICER A. an individual is invested with some portion of the sovereign functions of government. LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers MOCK BAR COMMITTEE Lilibeth Perez A. DE FACTO V. LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS 6.POLITICAL LAW REVIEWER Chapter I. Definition  The term "public office" is frequently used to refer to the right. D. NATURE 4.

page 8-9]) 1   iii. 24. (Bernard v.  Here.POLITICAL LAW REVIEWER Chapter I. and thus may not be considered as a Public Office. XI Sec. family or class of persons [63 Am Jur 2d 667]  3. Desierto (2002)] as in the case of Ad Hoc Bodies or commissions 2. v. though created by law. at all times. Nature Philippine Constitution Art. 235 LAW ON PUBLIC OFFICERS  Public office is a responsibility. the court held that Laurel. directly or impliedly iv. All public office is public employment. NOT profit. is a public officer. Public office is a public trust. yet its duties are only for a limited period of time. Created by law or by authority of law  Public office must be created by:  Constitution  National Legislation  Municipal or other body’s legislation. Rex Bookstore (2000). serve them with utmost responsibility.   Must have permanence and continuity Note: The elements of permanence and continuity are dispensable. and efficiency. Elements i.   ii. to be exercised for the benefit of the public There are certain GOCCs which. or private interest of any person. Public Office v. loyalty. act with patriotism and justice. On the dispensability of the element of continuance: Mechem in one case states that the “the most important characteristic” in characterizing a position as a public office is the DELEGATION to the individual of some of the sovereign functions of government. as chair of the National Centennial Commission (NCC). On the dispensability of the element of permanence: an example is the public office of the Board of Canvassers. via authority conferred by the Legislature The first element defines the mode of creation of a public office while the other elements illustrate its characteristics. Possess a delegation of a portion of the sovereign powers of government. the element of continuance is not indispensable. The public office of NCC was delegated and is performing executive functions: it enforces the conservation and promotion of the nation’s historical and cultural heritage. are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature). but not all public employment is a public office. THE LAW ON PUBLIC OFFICERS AND ELECTION LAW.  Such delegated function is a policy embodied in the Constitution. UNLESS for duties of an created by contract rather than by force of law ALL DE LEON CITATIONS BASED ON: De Leon. inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body  Defined as unhindered performance. Purpose   to effect the end for the government’s institution : common good. Public officers and employees must. 1. be accountable to the people. Humble [182 S. Also. integrity. Public employment as a position lacks either one or more of the foregoing elements of a public office. 2d. PUBLIC OFFICE and OFFICERS   2) enduring at the pleasure of the appointing power an individual is invested with some portion of the sovereign functions of the government (purpose) to be exercised by him for the benefit of the public. 1 Cited by De Leon. Public Employment Public employment is broader than public office. Duties must be performed independently and without the control of a superior power other than the law.W. Hector. honor. 5. Powers conferred and duties imposed must be defined. . It is inconsequential that Laurel was not compensated during his tenure. A salary is a usual (but not necessary) criterion for determining the nature of a position. not a right. [Morfe v. and lead modest lives. [Laurel v. Mutuc (1968)] 4.

 It is a public trust/agency. Public Office is not Property. the individual is not a public officer. Duties are very specific to the contract. does not vest any right in the holder of the office. 236 LAW ON PUBLIC OFFICERS Object Subject Matter Scope Where duties are defined Duties that are generally continuing and permanent. Legislature should Validly Delegate the Power to Create a Public Office 7. Creation of Public Office  Modes of Creation of Public Office  by the Constitution  by statute / law  by a tribunal or body to which the power to create the office has been delegated How Public Office is Created  GENERAL RULE: The creation of a public office is PRIMARILY a Legislative Function. duration. Gabriel (1920)]  It is personal. Due process is violated only if an office is considered property. Obligations imposed only upon the persons who entered into the contract. His widow and/or heirs cannot be substituted in the counterclaim suit. a public office is not property within the constitutional guaranties of due process.  A public office is neither property nor a public contract. EXCEPTION: When the law is vague. executive or judicial. in a   . It is a public trust or agency. and the duties connected therewith are generally continuing and permanent. the terms should be clear. to be exercised by him for the benefit of the public. Public Contract How Created Public Office Incident of sovereignty. Public Office v. Yet the incumbent has.  where the Legislature validly delegates such power. Public Contract Originates from will of contracting parties. to be exercised for the public benefit. GENERAL RULE: A public office. either legislative. Unless the powers so conferred are of this nature. and neither may depart therefrom without the consent of the other. If that right is to be taken away by statute. the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. To carry out the sovereign as well as governmental functions affecting even persons not bound by the contract. for the time being. continuity. As public officers are mere agents and not rulers of the people. a right to his office.  A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution. [Abeja v. However.POLITICAL LAW REVIEWER Chapter I. Desierto (2002)] sense. This rule applies when the law is clear. Tañada (1994)] 6. No vested right to public office. Public office being personal. [Laurel v. being a mere privilege given by the State. Its terms define and limit the rights and obligations of the parties. [Segovia v. no man has a proprietary or contractual right to an office. Sovereignty is omnipresent.  EXCEPTIONS:  where the offices are created by the Constitution. The law Limited duration and specific in its object. [Cornejo v. PUBLIC OFFICE and OFFICERS  the most important characteristic which distinguishes an office from an employment is that:  the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government. attached. Noel (1925)] 8. the person’s holding of the office is protected and he should not be easily deprived of his office. Contract  Exceptions:  In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office  In an action for recovery of compensation accruing by virtue of the public office 9. A public office embraces the idea of tenure. and  that the same portion of the sovereignty of the country.

popular election. or appointment by competent authority. or shall perform in said Government or in any of its branches public duties as an employee. an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void. (14) The term “officer” includes any government employee. Public Officer 1. or body authorized to exercise governmental power in performing particular acts or functions Revised Penal Code Art 203. The President’s authority to "reorganize within one year the different executive departments. (Who ARE Public Officers) Administrative Code Sec. 1987 Constitution] carries with it the power to abolish it. agent. shall take part in the performance of public functions in the Government of the Philippine Islands. [Ocampo v. 30. shall be deemed to be a public officer 10. Revised Penal Code. LAW ON PUBLIC OFFICERS A person is estopped from denying that he has occupied a public office when he has acted as a public officer. more so when he has received public monies by virtue of such office. bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. any person who. as Congress alone has the "power to define. by direct provision of the law. [UST v. 2. Methods of Organizing Public Offices Method Singlehead Composition one head assisted by subordinates Efficiency Swifter decision and action but may sometimes be hastily made Mature studies and deliberations but may be slow in responding to issues and problems Board System collegial body for formulating polices and implementing programs   11.POLITICAL LAW REVIEWER Chapter I. of Justice (1955)]  Is Abandonment equivalent to Abolition? When a public official voluntarily accepts an appointment to an office newly created by law -.which new office is incompatible with the former -. Board of Tax Appeals (1953)] Therefore.e. Modification and Abolition of Public Office  GENERAL RULE: The power to create an office includes the power to modify or abolish it (i. De La Costa (1938)]  12.he will be considered to have abandoned his former office. Except when the public official is constrained to accept because the nonacceptance of the new appointment would affect public interest. VI. court) also abolishes the unexpired term. Estoppel Office  in Denying Existence of B. The legislative power to create a court   Persons in authority and their agents. [Art.e. agent or subordinate official of any rank or class. sec. The legislature’s abolition of an office (i. Sec.  Where the Constitution gives the people the power to modify or abolish the office [i. [Mendenilla v. 1987 Constitution] But note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. Definition  (What he is) He performs governmental public functions / duties which involve the exercise of discretion ( not clerical or manual) (How he became Public Officer) by virtue of direct provision of law. Who are public officers—for the purpose of applying the provisions of this and the preceding titles of this book. VIII sec. Legislature generally has this power) EXCEPTIONS:  Where the Constitution prohibits such modification / abolition. (no abandonment) [Zandueta v." [Art. Article 152. popular election or appointment by competent authority.e. Onandia (1962)] 237 . 2. Recall]  Abolishing an office also abolishes unexpired term. PUBLIC OFFICE and OFFICERS  Or else. prescribe and apportion the jurisdiction of the various courts. the office is inexistent.

Subido (1971)]  Money order-sorter and –filer. [Villegas v. public duties as an employee. either express or implied. A Person Cannot be Compelled to Accept a Public Office. 238 . shall be imposed upon any person who.  Art 234. having been elected by popular election to a public office. either an individual or a member of a governmental body. to render personal military or civil service (see Sec. or shall perform in said government or any of its branches. o The barrio captains and barangay chairpersons are included. As such. A person performing public functions . People (1951)] 3. There must be a DELEGATION of such authority.POLITICAL LAW REVIEWER Chapter I.). Lagradante (1956)]  Company cashier of a private corporation owned by the government [Tanchoco v. under conditions provided by law. 4. the law is comprehensive: “who.  (Who are NOT Public Officers)  Special policemen salaried by a private entity and patrolling only the premises of such private entity [Manila Terminal Co. An AGENT of a person in authority is charged with the maintenance of public order and the protection and security of life and property. II.even temporarily – is a public official. v. Public Officer’s Power is Delegated (not Presumed)  A public official exercises power. by direct provision of law. barangay leader. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. agent or subordinate official or any rank or class [Maniego v. shall take part in the performance of public functions in the Philippine Government. and any person who comes to the aid of persons in authority. o For RPC Articles 148 [Direct Assaults] and 151 [Resistance and Disobedience].000 pesos. refuses without legal motive to be sworn in or to discharge the duties of said office. not rights. A person sorting and filing money orders in the Auditor's Office of the Bureau of Posts is obviously doing a public function or duty. and persons charged with the supervision of public or duly recognized private schools. Paloma (1997)] LAW ON PUBLIC OFFICERS A PERSON IN AUTHORITY is any person. RPC: Refusal to discharge elective office.the penalty of arresto mayor or a fine not exceeding 1. Art. Here. [People v. or both. a laborer temporarily in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203. they are devoid of power. Such person here was convicted for infidelity in the custody of documents. colleges and universities are included. The government itself is merely an agency through which the will of the state is expressed and enforced. barrio policeman. 1987 Const. CIR (1952)]  Concession forest guards [Martha Lumber Mill v. by election or by a competent authority’s appointment. having been elected by popular election to a public office. shall refuse without legal motive to be sworn in or to discharge the duties of said office. This is a felony. there is no presumption that they are empowered to act. popular election or appointment by competent authority.  EXCEPTIONS:  When citizens are required.  When a person who. barrio councilman. who is directly vested with jurisdiction. o Examples are barrio captain. PUBLIC OFFICE and OFFICERS    Temporary performer of public functions. o They become such either by direct provision of law. GSIS (1962)] 2. teachers. According to the Court. In the absence of a valid grant. professors.

County of Shelby (1886)] 239 LAW ON PUBLIC OFFICERS 2. PUBLIC OFFICE and OFFICERS C. unconstitutional law. and they submit to him or invoke his action. He possessed public office under color of a known and valid appointment or election. [Norton v. and relying on the supposition that he is the officer he assumes to be. but he failed to conform to some precedent requirement or condition (e. 3. De Facto Doctrine  It is the doctrine that a person who is admitted and sworn into office by the proper authority is deemed to be rightfully in such office until: (a) he is ousted by judicial declaration in a proper proceeding.  (Important) The public does NOT KNOW of such ineligibility. [Torres v. The public cannot afford to check the validity of the officer's title each time they transact with him. Consequently. to submit to or invoke his action.  A person is a de facto officer when the duties of his office are exercised under ANY of the following circumstances: 1. but such is VOID because:  He’s ineligible.  under color of title and under such circumstances of reputation or acquiescence by the public and public authorities. 2. without inquiry.  He possessed public office under color of an election or an appointment by or pursuant to a public.  . before the same is adjudged to be such. De Facto Officers 1. and  induce people.POLITICAL LAW REVIEWER Chapter I. De Facto Officer Defined  One who has the reputation of being the officer that he assumes to be.  His exercise of his function was defective or irregular. Doctrine’s Purpose: to ensure the orderly functioning of government. (not creation of an unconstitutional office). There is no known appointment or election. and yet is not a good officer in point of law. taking an oath or giving a bond).  as to afford a presumption of election or appointment.  The electing or appointing body is not empowered to do such. but people are induced by circumstances of reputation or acquiescence to suppose that he is the officer he assumes to be. Classification of Public Offices and Public Officers Creation Public Body Served Department of government to which their functions pertain Nature of functions Exercise of Judgment Discretion Legality of Title to office Compensation or Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary  D.g.. He possessed public office under color of a known election or appointment. or (b) his admission thereto is declared void.  What is unconstitutional is the officer’s appointment to an office not legally existing. Ribo (1948)] He must have:  acted as an officer for such length of time. want of power. people do not to inquire into his authority. or defect being.

He is legally qualified for the office. subject to exceptions (e. Reputation or acquiescence.POLITICAL LAW REVIEWER Chapter I. b. acting beyond his scope of authority. Absolutely void. Officer De Facto v. De Facto De jure office. 119) Not entitled to compensation at all. 2004) Requisites De Jure A de jure office exists. or want of authority of the appointing or electing authority. want of authority or irregularity being unknown to the public LAW ON PUBLIC OFFICERS Reputation: He possesses office and performs its duties under color of right. when the public presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer..) Rightfully entitled to compensation. (≠ collaterally) Valid as to the public until his title to the office is adjudged insufficient. His acts can be impeached at any time in any proceeding (unless and until he continues to act for a long time. iii. etc. ii. He is lawfully chosen to such office. Neither lawful title nor color of right to office. An intruder / usurper may be presumed a de facto officer with the passage of time. no pay" is inapplicable to him. The principle "No work. 3. PUBLIC OFFICE and OFFICERS a. Known and valid appointment or election but the officer failed to conform to a legal requirement c. None. Basis of authority Validity "official" acts of Rule on compensation  Entitled to receive compensation only when no de jure officer is declared and only for actual services rendered. He assumed office under color of right or general acquiescence by the public. such ineligibility. Officer De Facto (Asked in 2000. but he is not technically qualified to act in all points of law In a direct proceeding (quo warranto). Valid. b. He undertakes to perform the duties of such office according to law’s prescribed mode. Known appointment or election but void because of ineligibility of the officer. Officer De Jure v.g. 240 . or because of an irregularity in his appointment or election. He is paid only for actual services rendered. Conditionally entitled to receive compensation: only when no de jure officer is declared. creating a presumption of his right to act) (De Leon. Elements of a De Facto Officership i. Intruder Nature De Facto He becomes officer under any of the 4 circumstances discussed under Part II (above). Basis Authority of How ousted Validity of official acts Rule on Compensation Cannot be ousted. Color of right or title to office Valid as to the public until his title to the office is adjudged insufficient Intruder He possesses office and performs official acts without actual or apparent authority. A validly existing public office. Actual physical possession of the office in good faith. Color of title to the office: a. Right: He has the lawful right / title to the office He actually and physically possessed the office in good faith.

PUBLIC OFFICE and OFFICERS d. 130-131)   A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer. CA (1967)]  As regards the officers themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. Executive Secretary (1991).  REMEDY: Quo warranto proceedings filed by:  The person claiming entitlement to the office.  ineligibility for the public office as required by law The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status. It is not sufficient that he be merely a de facto officer. Known appointment or election pursuant to an unconstitutional law before declaration of unconstitutionality  Who are NOT considered De Facto Officers?  A judge who has accepted an appointment as finance secretary and yet renders a decision after his acceptance: if he has ceased to be judge by actually accepting and entering into some other office and has actually entered upon the performance of the duties of the other office.  exercising the functions of public office without lawful right. Liabilities of De Facto Officers (De Leon. [Monroy v. for the duties he has performed. A de facto officer cannot sue for the recovery of salary.  The Republic of the Philippines (represented by the SolicitorGeneral or a public prosecutor). but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office. The de facto officer may be liable for all imposable penalties for ANY of the following acts:  usurping or unlawfully holding office. it is difficult to understand how he can still be considered as actually occupying and performing the duties of the office which he had abandoned and vacated. So (1995)]  RULE: A de facto officer’s and his acts’ validity cannot be collaterally questioned (in proceedings where he is not a party. 284 was declared unconstitutional because it allowed Cabinet members to hold multiple offices in direct contravention of the 5. An abandonment and a vacation of an office is inconsistent and repugnant to the idea of actually continuing to perform the duties of such office. are void. Legal Effect of Acts of De Facto Officers [Monroy v. CA [1967])  In Civil Liberties Union v. even as EO No. as far as he himself is concerned. 6. Office created under unconstitutional statute  an The prevalent view is that a person appointed or elected in accordance with a law later declared to be unconstitutional may be considered de facto at least before the declaration of unconstitutionality. (63A Am. His acts. and yet promulgates a decision in a criminal case after the abolition and over the fiscal’s objection [People v. the officer de facto who in good faith has had possession of the office and has discharged the duties pertaining thereto is legally entitled to the emoluments of the office. [Luna v. Rodriguez (1917)]  A judge whose position has already been lawfully abolished. or were not instituted to determine the very question). As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. fees or other emoluments attached to the office. even though he entered into the office in good faith and under color of title. 241 LAW ON PUBLIC OFFICERS  4. 2d 1094-1095) the rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure. Jur.  RATIONALE: The doctrine is intended not for the protection of the public officer. 7.[ Monroy v CA (1967)]  EXCEPTIONS  Where there is no de jure public officer. De Facto Officer’s Official Acts are not subject to collateral attack   . Right to Compensation of De Facto Officer  GENERAL RULE: None.POLITICAL LAW REVIEWER Chapter I.

[Gen. for which she received compensation: while her assumption to the said position and her acceptance of the corresponding emoluments do not constitute abandonment of her rightful office. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. Philippine Ports Authority v. it was held that during their tenure in the questioned positions. she cannot recover full back wages for such. even if he occupied the office in good faith. Monserate (2002)] 242 . not having good title. the respondents may be considered de facto officers and as such entitled to the emoluments of the office/s for actual service rendered. Manager.  BUT when the de jure officer assumed another position under protest.  A de facto officer. takes the salaries at his risk and must account to the de jure officer (when there is one) for whatever salary he received during the period of his wrongful tenure.POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS LAW ON PUBLIC OFFICERS Constitution.

 Congress cannot impose conditions of eligibility inconsistent with constitutional provisions. Power to Prescribe Qualifications  GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office. E. D. he has none at all.. ELIGIBILITY and QUALIFICATIONS Chapter II. Congress has the same right to provide disqualifications that it has to provide qualifications for office. the holdover officer is the rightful occupant. A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created. the office of any elected official who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant unless said failure is for cause or causes beyond his control. [Mendoza v.  A proviso which limits the choices of the appointing authority to only one eligible. [Flores v. [Cuyegkeng v. Quitorano (1954)]  Requiring inclusion in a list. 23)  RESTRICTIONS on the Power of Congress to Prescribe Qualifications:  Congress cannot exceed its constitutional powers. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete.g. Sandiganbayan (1999)]  Once proclaimed and duly sworn in office. DEFINITIONS POWER TO PRESCRIBE QUALIFICATIONS TIME OF POSSESSION OF QUALIFICATIONS PRESUMPTION OF ELEGIBILITY QUALIFICATIONS USUALLY PRESCRIBED RELIGIOUS TEST/QUALIFICATION IS NOT REQUIRED G. [Manalang v.POLITICAL LAW REVIEWER Chapter II. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. (De Leon. Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice. DISQUALIFICATIONS TO HOLD PUBLIC OFFICE  A. Rilloraza (1948)]  Automatic transfer to a new office.  Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment: it is unconstitutional and therefore void for being a usurpation of executive power – examples:  Extensions of the terms of office of the incumbents. B. Medical Association as one of the qualifications for appointment. a public officer is entitled to assume office and to exercise the functions thereof. Under BP 881.  An oath of office is a qualifying requirement for a public office. the incumbent Mayor of Olongapo City. Cruz (1960)] 243 LAW ON PUBLIC OFFICERS . and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications. and for as long as he has not qualified. Qualification: endowment / act which a person must do before he can occupy a public office. Laxina (2003)]   B. The People's Court Act.  Where the Constitution establishes specific eligibility requirements for a particular constitutional office.  The qualification must be germane to the position ("reasonable relation" rule). the constitutional criteria are exclusive. which provided that the President could designate Judges of First Instance. A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list. [Vargas v. F. In the absence of constitutional inhibition. Drilon (1993)]  Designating an unqualified person. C. Definition  Eligibility: endowment / requirement / accomplishment that fits one for a public office. Note: Failure to perform an act required by law could affect the officer’s title to the given office. Eligibility and Qualifications A. Until then. e. [Lecaroz v.

IXB. For Senator (Sec.e. integrity. [Frivaldo v. 2. and must exist throughout the holding of the public office. Art. Eligibility is Presumed   IN FAVOR of one who has been elected or appointed to public office. Supreme Court Justice  Natural born citizen  at least 40 years old  15 years or more as a judge or engaged in law practice  of proven competence.P. Constitution)  Natural-born citizen  35 years old at time of appointment  proven capacity for public administration  not a candidate for any elective position in election immediately preceding appointment 6. This liberal interpretation gives spirit. ≠ on filing candidacy). 1[1]. VII. [Castaneda v. qualification / eligibility during election or appointment (De Leon. ELIGIBILITY and QUALIFICATIONS C. Time of Possession of Qualifications   At the time specified by the Constitution or law. The right to public office should be strictly construed against ineligibility. 6. Once the qualifications are lost. probity and independence (C. The Local Government Code does not specify any particular date or time when the candidate must possess the required citizenship. VI. Yap (1952)]  Citizenship requirement should be possessed on start of term (i. IXC)  Natural-born citizen  35 years old at time of appointment  college degree holder  not a candidate for elective position in election immediately preceding appointment  chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years 7. Estoppel will not apply in such a case. life and meaning to our law on qualifications consistent with its purpose. COMELEC Commissioners (Sec. Constitution)  Natural-born citizen  25 years old on election day  able to read and write  registered voter in district in which he shall be elected  resident thereof for not less than one year immediately preceding election day 4.  No estoppel in ineligibility. qualification during commencement of term or induction into office. Qualifications Constitution Prescribed By 1. Art. the public officer forfeits the office. COA Commissioners  Natural-born citizen  35 years old at time of appointment  CPA with >10 year of auditing experience or  Bar member engaged in practice of law for at least 10 years  244 LAW ON PUBLIC OFFICERS D. Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Art.POLITICAL LAW REVIEWER Chapter II. An official begins to govern or discharge his functions only upon proclamation and on start of his term. (De Leon. If time is unspecified.) 5. unlike for residence and age.I. 1 [1]. 26) E. For Congressmen (Sec. 3.I. Civil Service Commissioners (Sec. Art. Constitution) and Vice President (Sec. Constitution)  Natural-born citizen  35 years old on election day  able to read and write  registered voter  resident of the Philippines for not less than two years immediately preceding election day 3. b. COMELEC (1996)] 2. 26-27) Eligibility is a continuing nature. The requirement is to ensure that no alien shall govern our people and country or a unit of territory thereof. VI. Art. 2 views: a. VI. Art. Constitution)  Natural-born citizen  40 years old on election day  Philippine resident for at least 10 years immediately preceding election day . For President (Sec. 3.

Religious Test or Qualification is not Required Philippine Constitution Art. citing Agpalo. IX-B Sec. VII. knowledge.  Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications. in or out of court. VI. COMELEC (1995)] Presumption in favor of domicile of origin. Generally. ELIGIBILITY and QUALIFICATIONS  Not candidates for any elective position in election immediately preceding appointment. [Marcos v. provided that the prescribed disqualifications do not violate the Constitution. To successfully effect a change of domicile. i. Disqualifications Office  to Hold Public IN GENERAL: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public office are .e. disqualified from holding such office). he stated that engaging in the practice of law presupposes the existence of lawyer-client relationship. Domicile of origin is not easily lost. ineligible (i. 7(1)) 3. agency or instrumentality thereof. or any subdivision. Vice President. where he intends to return. Monsod (1991)] In the dissenting opinion of Justice Padilla in the case of Cayetano v.POLITICAL LAW REVIEWER Chapter II. Domicile requires the twin elements of actual habitual residence and animus manendi (intent to permanently remain). Monsod. 6) 2. as provided by law and as required by the primary functions of his office. it is deemed to continue absent a clear and positive proof of a successful change of domicile. he cannot be said to be engaged in the practice of his profession or a lawyer “Residency” defined. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. COMELEC (1995)]   245 LAW ON PUBLIC OFFICERS  Specific Constitutional Disqualifications Public Officer The President. to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill. Practice of law means any activity. training and experience. the candidate must prove an actual removal or an actual change of domicile. IX-B Sec 7 (2))  Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one can’t receive compensation or other honoraria anyway). (Art. including government owned or -controlled corporations or their subsidiaries effect: or else he forfeits his seat shall also not be appointed to any office when such was created or its emoluments were increased during his term. COA (2004)]  “Practice of Law” defined. (Art. III Sec.  Unless otherwise allowed by law or his position’s primary functions (Art. which requires the application of law. General Constitutional Disqualifications 1. Hence. where a lawyer undertakes an activity which requires knowledge of law but involves no attorneyclient relationship. Appointive officials shall not hold any other governmental position. … No religious test shall be required for the exercise of civil or political rights. the place where a party actually or constructively has his permanent home. [Cayetano v. Sec. G. residence refers to domicile. such as teaching law or writing law books or articles. (Art. Losing candidates cannot be appointed to any governmental office within one year after such election. 5. UNLESS otherwise provided in the Constitution. IX-B Sec. the Members of the Cabinet and their deputies or assistants Disqualifications shall not hold any other office or employment during their tenure. [Aquino v. legal procedure. In election law. 13) may not hold during his term any other office or employment in the Government.e. Sec 13)  Senator or Member of the House of Representatives F. [ National Amnesty Commission v.

Representative = 3 consecutive terms iv. Article IX-B to Section 13. Article VII prohibition. control. XI. This provision does NOT cover the President. VIII. 1. Sec. agent. 1. Sec. Holding more than one office: to prevent offices of public trust from accumulating in a single person. Senator = 2 consecutive terms   8. LAW ON PUBLIC OFFICERS Members of Constitutional Commissions. Article VII would obliterate the distinction set by the framers of the Constitution as to the highranking officials of the Executive branch. Ombudsman and Deputies the shall not be designated to any agency performing quasi-judicial or administrative functions. or accept employment as officer employee. Impeachment 4. Sec. an appointed Ombudsman is absolutely disqualified for reappointment (Article XI. Sec. (Art. 5. Constitution). directly or indirectly. Vice-President = 2 consecutive terms ii. Article IX-B of the Constitution generally prohibits elective and appointive public officials from holding multiple offices or employment in the government unless they are otherwise allowed by law or by the primary functions of their position. IX-A. Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. However. 13) Chapter II. manage. Mental or physical incapacity 2. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IX-B. C. 12) shall not hold any other office or employment [during their tenure]. IX-D.POLITICAL LAW REVIEWER Members of the Supreme Court and other courts established by law Members of Constitutional Commission Ombudsman and Deputies Members Constitutional Commissions. 1(2) of Arts. VIII. his of the his 7. including governmentowned-or -controlled corporations. X. the Ombudsman and his Deputies The President’s spouse and relatives by consanguinity or affinity within the fourth civil degree Civil Liberties Union v. Sec. or the Office of the Ombudsman. Art. Previous tenure of office: for example. 246  Other Disqualifications 1. IX-C.  To apply the exceptions found in Section 7. Sec. Art. 8. Sec. 8) are appointed to 7-year term. Holding of office in the private sector: Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own. trustee or nominee in any private enterprise regulated. 3. Art. public officials holding positions without additional compensation in ex-officio capacities as provided by law and as required by their office’s primary functions are not covered by the Section 13. (Art. 6. consultant. XI. D. Art. or as Secretaries. Consecutive terms limit: i. Art XI. Undersecretaries. ELIGIBILITY and QUALIFICATIONS iii. supervised or . Sec. any pecuniary benefit by virtue of their holding of dual positions. 2) (Art. IX-B. Sec. broker. Constitution)  Public officer’s voluntary renunciation of office for any length of time ≠ an interruption in the continuity of his service for the full term for which he was elected. counsel. Removal or suspension from office: not presumed  non-imposable when such ineligibility is not constitutional or statutory declared. Executive Secretary (1991):  Section 7. Elective local officials = 3 consecutive terms (Sec. without reappointment (Sec. (Art. chairmen or heads of bureaus or offices. Vice-President and cabinet members – they are subject to a stricter prohibition under Section 13 of Article VII. and to prevent individuals from deriving. 1. 11) shall not be appointed during President’s tenure as Members of the Constitutional Commissions.

iii.A. the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. person exercising immediate supervision over the appointee  Relative: related within the third degree of either consanguinity or of affinity. loyalty to two or more states. Manzano (1999):  Dual citizenship is different from dual allegiance. While dual citizenship is involuntary. . 40) i. vi. within 2 years after serving sentence. as a result of the concurrent application of the 247 LAW ON PUBLIC OFFICERS  v.”  9. ii. ELIGIBILITY and QUALIFICATIONS different laws of two or more states. 7160. Under the Local Government Code (sec. a person is simultaneously considered a national by the said states.  Section 7 of RA 6713 also generally provides for the prohibited acts and transactions of public officials and employees. chief of the bureau office. dual allegiance is the result of an individual’s volition. vii.  Exceptions to rule on nepotism:  persons employed in a confidential capacity  teachers  physicians  members of the Armed Forces of the Philippines 10. As an exception.A. Fugitive from justice in criminal or non-political cases here or abroad.  Dual allegiance. §20 must be understood as referring to “dual allegiance. iii. or tend to conflict. the phrase “dual citizenship” in R.POLITICAL LAW REVIEWER licensed by their office unless expressly allowed by law. No. Chapter II. with his or her official functions. The former arises when. ii. Relationship with the appointing power  General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: i. appointing authority. §40(d) and in R. Hence. Mercado v. iv. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. by some positive act. Convicted by final judgment for violating the oath of allegiance to the Republic. Dual citizenship. Insane or feeble-minded. or iv. and second. on the other hand. the private practice is authorized by the Constitution or by the law. refers to the situation in which a person simultaneously owes. the practice will not conflict. Removed from office as a result of an administrative case. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment. No. recommending authority. a public official or employee can engage in the practice of his or her profession under the following conditions: first. [I]n including §5 in Article IV on citizenship. 7854. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code.

Classification of Appointments  Permanent:  the permanent appointee:  must be qualified  must be eligible Extent Powers of Limited . ELECTION C. Paredes (1921)] Must be unhindered and unlimited by Congress. Election  Selection or designation by popular vote  C. Appointment 1. CLASSIFICATION OF APPOINTMENTS 4. Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. Formation of Official Relation A. upon which no limitations may be imposed by Congress. APPOINTMENT 1. The appointing power is the exclusive prerogative of the President. ii.g. MODES OF COMMENCING OFFICIAL RELATION B. the President is precluded from exercising his discretion to choose whom to appoint. [Cuyegkeng v. Quitoriano (1954)] The President’s power to appoint under the Constitution should necessarily have a reasonable measure of freedom. Definition Definition Designation Imposition of additional duties upon existing office Appointment Appointing authority selects an individual who will occupy a certain public office Comprehensive 3. Drilon (1993)] 248  A. EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD PUBLIC OFFICE E. latitude. ex-officio officers  B. is no power at all and goes against the very nature of appointment itself. Others: i. or discretion in choosing appointees. PRESIDENTIAL APPOINTEES D. STEPS IN APPOINTING PROCESS 5. EFFECTS OF A COMPLETE. …a 2nd appointive position is assumed? Usually YES Chapter III. NATURE OF POWER TO APPOINT 3. FORMATION of OFFICIAL RELATION Security of tenure? Is prior/1st office abandoned when… No. Such supposed power of appointment. [Flores v. Appointment 3. Appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law. [Concepcion v. …a 2nd designated position is assumed? NO Yes. [Manalang v. DISCRETION OF APPOINTING OFFICIAL F. POLITICAL QUALIFICATIONS FOR AN OFFICE (I. sans the essential element of choice. For the appointment to be valid. the position must be vacant [Castin v. Election 2. Quimbo (1983)]  2. EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM 6. CITIZENSHIP 5. EFFECTIVITY OF APPOINTMENT G. DEFINITION 2. Vacancy for Validity. EXCEPT those:  requiring the concurrence of the Commission on Appointments. QUALIFICATION STANDARDS AND REQUIREMENTS UNDER THE CIVIL SERVICE LAW 1. Succession by operation of law. Nature of Power to Appoint  LAW ON PUBLIC OFFICERS The power to appoint is intrinsically an executive act involving the exercise of discretion. CIVIL SERVICE COMMISSION’S (CSC’S) JURISDICTION I. APPOINTMENTS TO THE CIVIL SERVICE  Political. e. Direct provision of law.POLITICAL LAW REVIEWER Chapter III. NO PROPERTY QUALIFICATIONS 4. FINAL AND IRREVOCABLE APPOINTMENT H. Cruz (1960)] Where only one can qualify for the posts in question. Modes of Relation Commencing Official 1.E. MEMBERSHIP IN A POLITICAL PARTY) 3. QUALIFICATION STANDARDS 2. and  resulting from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office.

2. Steps in Appointing Process  For Appointments requiring confirmation:  Regular Appointments (NCIA) 1. FORMATION of OFFICIAL RELATION     is constitutionally guaranteed security of tenure (Duration) until lawful termination.  Officers of the armed forces from the rank of colonel or naval captain. Recess appointment power keeps in continuous operation the business of government when Congress is not in session. CSC (1991)]  EXCEPT Fixed-Period Temporary Appointments: may be revoked ONLY at the period’s expiration.  Ombudsman and his deputies Kinds of Presidential Appointments  Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments.POLITICAL LAW REVIEWER Chapter III. Art. the Civil Service Commission must bestow attestation. 1 (2) for CSC. and continues until the end of the term.  Members of the Supreme Court. Commission on Appointments confirms. Temporary:  an acting appointment. Commission issues appointment. 3. 1987 Const. before confirmation by the Commission on Appointments. Commission issues appointment.  (No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY.  Ambassadors.  an “acting” appointment is a temporary appointment and revocable in character. President nominates.  Those whom he may be authorized by law to appoint. [Sevilla v. Thus he does not enjoy security of tenure – he is terminable at will.  Ad interim: made while Congress is not in session. 4. IXC.  Judges of lower courts. 2.  (Duration) until a permanent appointment is issued. Sec. Appointee accepts. Appointing authority appoints. This is a permanent appointment and it being subject to confirmation does not alter its permanent character. Commission issues appointment. Note: If a person is appointed to the career service of the Civil Service.  Efficient.  For Appointments Not Requiring Confirmation (AIA) 1. [Marohombsar v. IX-B. Ad-Interim Appointments (NIAC) 1. The individual chosen 249 LAW ON PUBLIC OFFICERS   4. CA (1992)]  Even a Career Service Officer unqualified for the position is deemed temporarily-appointed. Who can the President appoint WITHOUT CA’s approval?  All other officers of the government whose appointments are not otherwise provided for by law.)  Heads of the executive departments.  Other public ministers and consuls. Presidential Appointees  Who can be nominated and appointed only WITH the Commission on Appointments’ consent? (Art. 3.  . [Romualdez III v. Appointee accepts. Appointee accepts. Note: Conditional appointments are not permanent. IX-D. Art.  5. VII. Sec.  the temporary appointee NEED NOT be qualified or eligible. immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. Commission on Appointments confirms. Sec. 16.  A public officer who later accepts a temporary appointment terminates his relationship with his former office. 1 (2) for COA). Revocation before expiration must be for a valid cause. Alonto (1991)]  A temporary appointee is like a designated officer – they: o occupy a position in an acting capacity and o do not enjoy security of tenure. President nominates. 1 (2) for COMELEC. 3. 2. 4. including Constitutional Commissioners (Art. Sec.  Other officers whose appointments are vested in him by the Constitution.

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may thus qualify and perform his function without loss of time.  Duration. The appointment shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. Permanent. It takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. [Matibay v. Benipayo (2002)] Not Acting. An ad interim appointment is distinguishable from an “acting” appointment which is merely temporary, good until another permanent appointment is issued. Applicable to COMELEC Commissionsers, being permanent appointments, do not violate the Constitutional prohibition on temporary or acting appointments of COMELEC Commissioners. By-passed Appointee may be Reappointed. Commission on Appointments’ failure to confirm an ad interim appointment is NOT disapproval. An ad interim appointee disapproved by the COA cannot be reappointed. But a bypassed appointee, or one whose appointment was not acted upon the merits by the COA, may be appointed again by the President.

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

2. Political Qualifications for an Office
(i.e. membership in a political party)   GENERAL RULE: Political qualifications are NOT Required for public office. EXCEPTIONS:  Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.);  Party-list representation;  Commission on Appointments;  Vacancies in the Sanggunian (Sec. 45, Local Government Code)

3. No Property Qualifications
 Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate’s wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. [Maguera v. Borra and Aurea v. COMELEC (1965)]

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

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owing allegiance to another nation, shall govern our people and country or a unit of territory thereof. [Frivaldo v. COMELEC (1996)]

The exercise of the power to transfer, reinstate, reemploy or certify is widely used (need not state reason) To hold that the Civil Service Law requires filling up any vacancy by promotion, transfer, reinstatement, reemployment, or certification IN THAT ORDER would be tantamount to legislative appointment which is repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible. [Pineda v. Claudio (1969)]

5. Effect of Removal of Qualifications During the Term
 Termination from office.

6. Effect of Pardon upon the Disqualification to Hold Public Office
(Asked in 1999)   GENERAL RULE: Pardon will not restore the right to hold public office. (Art. 36, Revised Penal Code) EXCEPTIONS:  When the pardon’s terms expressly restores such (Art. 36, RPC);  When the reason for granting pardon is non-commission of the imputed crime. [Garcia v. Chairman, COA (1993)]

E. Discretion of Appointing Official
 Presumed. Administrators of public officers, primarily the department heads should be entrusted with plenary, or at least sufficient, discretion. Their position most favorably determines who can best fulfill the functions of a vacated office. There should always be full recognition of the wide scope of a discretionary authority, UNLESS the law speaks in the most mandatory and peremptory tone, considering all the circumstances. [Reyes v. Abeleda (1968)] Discretionary Act. Appointment is an essentially discretionary power. It must be performed by the officer in whom it is vested, the only condition being that the appointee should possess the qualifications required by law. [Lapinid v. CSC (1991)] Scope. The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of the appointment intended (i.e., whether the appointment is permanent or temporary). Inclusive Power. The appointing authority holds the power and prerogative to fulfill a vacant position in the civil service. 

When Abused, use Mandamus. Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. [Gesolgon v. Lacson (1961)] “Upon recommendation” Advisory. is not Merely

Sec. 9. Provincial/City Prosecution Offices. [par. 3] All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary.

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

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

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Promotion of “next-in-rank” career officer is not Mandatory. The appointing authority should be allowed the choice of men of his confidence, provided they are qualified and eligible.

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

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Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)] Review Appointee’s Qualifications. The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. [Lapinid v. CSC (1991)] What it cannot do.  It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. [Lapinid v. CSC (1991)]  The CSC cannot co-manage or be a surrogate administrator of government offices and agencies.  It cannot change the nature of the appointment extended by the appointing officer. [ Luego v. CSC (1986)]

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I.

Appointments to the Civil Service
SCOPE: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service 1. Career Service – Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure. 2. Non-career Service – Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project. (i.e. elective officials, Department Heads and Members of Cabinet)

H. Civil Service Commission’s (CSC’s) Jurisdiction
 Exclusive Jurisdiction  Disciplinary cases  Cases involving “personnel action” affecting the Civil Service employees  Appointment through certification  Promotion  Transfer  Reinstatement  Reemployment  Detail, reassignment  Demotion  Separation  Employment status  Qualification standards Recall of appointment. Includes the authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations. as opposed to Recall under Sec 69-75 of the Local Government Code:

Requisites:  Appoint only according to merit and fitness, to be determined as far as practicable.  Require a competitive examination.  Exceptions: (Positions where Appointees are exempt from

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o

NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly technical

Other Personnel Actions  Promotion is a movement from one position to another with increase in duties and responsibilities as authorized by law and is usually accompanied by an increase in pay.  Next-in-rank Rule. o The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated. o BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the “special reason or reasons” for not appointing the officer nextin-rank. Automatic Reversion Rule. o All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. o The disapproval of the appointment of a person proposed to a higher position

Appointment through Certification is issued to a person who is:  selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles  qualified Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service.  This may be imposed as an administrative remedy.  If UNconsented = violates security of tenure.  EXCEPTIONS: o Temporary Appointee o Career Executive Service Personnel whose status and salaries are based on ranks (≠ positions) Reinstatement. It is technically the issuance of a new appointment and is discretionary on the part of the appointing power.  It cannot be the subject of an application for a writ of mandamus.  Who may be reinstated to a position in the same level for which he is qualified: o Any permanent appointee of a career service position

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Competitive Examination Requirements) o Policy determining - in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries o Primarily Confidential – denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state (“Proximity Rule” as enunciated in De los Santos v Mallare [1950]) o Highly Technical – requires possession of technical skill or training in a superior degree. (i.e. City Legal Officer)

o

o

invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code) Requisites: 1. series of promotions 2. all promotional appointments are simultaneously submitted to the Commission for approval 3. the Commission disapproves the appointment of a person to a higher position.

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

Reassignment. An employee may be reassigned from one organizational unit to another in the SAME agency.  It is a management prerogative of the CSC and any dept or agency embraced in the Civil Service.  It does not constitute removal without cause.  Requirements: o NO reduction in rank, status or salary. o Should have a definite date or duration (c.f. Detail). Otherwise, a floating assignment = a diminution in status or rank. Reemployment. Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.

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

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................................................ Abolition ... 303 II............................269 2........267 B.... Administrative Code of 1987................................ Manner of Election ............. Municipal Liability................ Sec.......... Local Autonomy ...................... Art.................... Beginning of Corporate Existence 264 II.. Administrative Action .....266 III..............................POLITICAL LAW REVIEWER TABLE of CONTENTS LOCAL GOVERNMENT LAW Table of Contents Chapter I............ Power of Tribunals........................ 28 .. 285 C... Appointive Officials................260 A..... Specific Provisions making LGUs Liable 285 B...... Inter-local Relations ..... 288 LGC Sec...... Term of Office ............................. Local Initiative and Referendum .........261 C..... Execution of Powers ........................................... Abolition ................................. 299 G.........260 C.................268 A......271 B..... 286 Chapter VI....259 B...... Consultations ............. 27 ......... Elective Local Officials ......................................... 291 A.................... 306 C...................................................... Classification of Powers of LGUs.............. Other Relations.......272 C.... 283 E.........................................261 A....261 I... Prior Consultation .............260 III.. 2 and 4 287 B....267 C..........271 4......... Creation...................... Penalties .258 A........................................... Executive Supervision......... 288 B.... 294 D...... Reclassification of Lands ........268 II............. 283 F....273 D.. The Local Government Code ................258 I... 304 B........ 283 A............ Qualifications .... Plebiscite................. Basic Principles..............................................269 1............ 288 A...... 26... General Welfare ... Powers in General .... Closure of Roads ........... Title XII Chapter I............ 285 A.............. 306 256 LOCAL GOVERNMENT LAW .... Local Legislative Power ..................... Appointments .......... Definition ... Rules of Interpretation .......... 283 D............ 300 2............ Scope................... Principles of Decentralization.............................266 B............... 283 C... 300 1........... 290 Chapter VII.......268 B. State Policy............... Relations with Non-Governmental organizations ....... Maintenance of Ecological Balance 288 C....................................... 283 B. Effectivity of Local Propositions ....... 294 E......258 II.... Limitations on Initiatives..............276 F....... Abatement of Nuisance ..277 G...............278 Chapter IV.................. Decentralization .269 A...........................260 Chapter II........... Discipline......................266 A.................................................. 289 IV..........264 F............................. Relations with Philippine National Police 289 LGC...... Settlement of Boundary Disputes ..................... Procedure ............................. Discipline..... Creation and Dissolution of LGUs ........... Appeal.............................................. Jurisdictional Responsibility for Settlement of Boundary Dispute.. Dual Nature............................................................... 287 A....... Division and Merger ........... Personal Liability of Public Official....... 287 I....... 288 III... Disqualifications ...... X................. Declaration of Policy.................................292` C..................................... 291 B...... Governmental Powers ... Effectivity................. Maintenance of the Status Quo ........... Power to Generate Revenue ....... 1987 Constitution. General Provisions ......... 302 3.........267 A................261 B.. Corporate Powers ............268 I.......259 C......... 2(c)................... Nature and Status ......... 291 I.. Creation and Conversion of LGUs 263 E................. Removal ..... Basic Services and Facilities ................ Political and Corporate Nature of LGUs 268 III.................... Limitations........270 3.................................... Division and Merger........................................ Police Power . Sources of Powers of LGUs.. Authority to Create Local Government Units 262 D... 287 II............. Sec..275 E.................... Devolution ...... Local Officials ........................268 C........ Eminent Domain...260 B.................... Limitations Upon Local Legislative Bodies ... Definition .............. Recall ..... 296 F................................ 290 B...................258 B. Intergovernmental Relations – National Government and LGUs............................ General Powers and Attributes of LGUs ...........................267 Chapter III.......... Liability for Torts............................... Violation of the Law and Contracts .. Principles of Local Government Law 259 A............259 C........ Rules on Succession ..... Specific Requirements....................... 284 Chapter V.. 304 A................. 290 A.. Requirements........

. The Autonomous Region in Muslim Mindanao ........... The Barangay............................ Posting and Publication of Ordinances with Penal Sanctions ............................. Application of LGC to Autonomous Regions and Other Entities............... The Province ....................... The City ...... Local Development Council .............307 LGC Sec...315 II............... Provisions for Implementation...............308 IV............ Officials Common to All Municipalities.310 1.309 Chapter VIII............. Local Health Board..............316 257 LOCAL GOVERNMENT LAW ...315 III................................................. Katarungang Pambarangay............POLITICAL LAW REVIEWER TABLE of CONTENTS D....307 A................................... Sangguniang Kabataan ..... Prohibition against Appointment .......311 C......................311 B.................... Provisions Applicable to Elective and Appointive Officials ..............................................309 D...........312 D...................308 B........ Cities and Provinces .......306 III........... Local Boards and Councils ............310 2...........314 C... Local Government Units .......309 C. The Municipality .314 B.. Practice of Profession ..................................... Miscellaneous and Final Provisions .310 A....314 Chapter X....... Penalties for Violation of Tax Ordinances..313 Chapter IX.............. Cordillera Administrative Region............308 A......... Prohibited Interests ...................315 I...............314 A...307 B............................... 89 ................. Local Peace and Order Council ................................ The Metropolitan Manila Development Authority..............307 C............ Local School Board ............

BASIC PRINCIPLES Prof. [ Alvarez vs Guingona (1996)] “Local government” is interchangeable with “municipal corporation. Principles of Decentralization B.  The obligations of the old City of Manila survives the cession of the Phil. Devolution III. A quasimunicipal corporation operates directly as an agency of the state to help in the administration of public functions. Dual Nature Sec. State Policy. (1955)] PRINTING & DISTRIBUTION Kae Guerrero DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. authority. Rules of Interpretation Sherwin Ebalo Lead Writer Paulyne Caspillan Karlo Noche Writers POLITICAL LAW Jennifer Go Subject Editor ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief I. PRINCIPLES OF LOCAL GOVERNMENT LAW A. Every LGU created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. Nature and Status A.POLITICAL LAW REVIEWER Chapter I. Remaining to be an intra sovereign subdivision of a sovereign nation.  The City of Manila. and is governed by. because of the corporate nature of the city. it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory. As such. [Singco. the LGU is autonomous in the sense that it is given more powers. LGC.S. Effectivity B. THE LOCAL GOVERNMENT CODE A. Scope C. but not intended to be an imperium in imperio. [Basco vs PAGCOR (1991)] Municipal Corporation vs Quasi-municipal corporation  A municipal corporation exists by virtue of. being a mere municipal corporation. its charter. Rania Joya 258 LOCAL GOVERNMENT LAW LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers MOCK BAR COMMITTEE Lilibeth Perez BAR CANDIDATES WELFARE Dahlia Salamat LOGISTICS Charisse Mendoza B. has no right to impose taxes. the LGU has the duty to ensure SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members  . Decentralization C. to the U. 15. Definition B. Gisella Dizon-Reyes Faculty Editor LOCAL GOVERNMENT LAW LOCAL GOVERNMENT LAW TEAM Chapter I. responsibilities and resources. [Villas vs Manila (1921)] As a body politic with governmental functions. Basic Principles I. Definition A Local Government Unit (LGU) is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. Dual Nature II. NATURE AND STATUS A.

fees and charges. BASIC PRINCIPLES the quality of the environment (S16. State Policy. It cannot claim exemption from PD 158 which imposes the same duty. [Republic vs Davao (2002)] B. Decentralization of power is the abdication of political power in favor of LGUs declared to be autonomous. These rules were made in furtherance of local autonomy. Such provision is in consonance with local autonomy. 5. [San Juan vs CSC (1991)]  An A. the Constitution did not intend. The President exercises "general supervision" over them. Local Autonomy  The principle of local autonomy under the 1987 Constitution simply means decentralization (discussed below). Decentralization NOTE: Decentralization is a means to achieve local autonomy. Cf. 1987 Constitution Sec. Decentralization Art. 2 (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with:  appropriate local government units. is a valid exercise of the President’s power of general LOCAL GOVERNMENT LAW Illustrations  The CSC cannot declare the provision “upon recommendation of the local chief executive concerned” as merely directory. but only to "ensure that local affairs are administered according to law.  and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. o and all other matters relating to the organization and operation of the local units.POLITICAL LAW REVIEWER Chapter I. 2. Supervising officials may not lay down or modify the rules. [Pimentel vs Aguirre (2000)]  HOWEVER. initiative. appointment and removal. o allocate among the different local government units their powers. Autonomy is either (1) decentralization of administration or (2) decentralization of power. [Limbona v.)  Sec.  subject to such guidelines and limitations as the Congress may provide. The President of the Philippines shall exercise general supervision over local governments. and cities and municipalities with respect to component barangays  shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. [Basco vs PAGCOR (1991)] II. Sec. responsibilities.  nongovernmental and people's organizations. may not compel LGUs to reduce their total expenditures. term. not to the central government. deprive the legislature of all authority over LGUs. 1 of AO 372 (Adoption of Economy Measures in Government for FY 1998). The Congress shall enact a local government code which shall o provide for a more responsive and accountable local government structure  instituted through a system of decentralization  with effective mechanisms of recall. in particular. for the sake of local autonomy. and referendum. Provinces with respect to component cities and municipalities. insofar as it “directs” LGUs to reduce expenditures by at least 25%. 3. X. salaries.  Purpose: to relieve the central government of the burden of managing local affairs and enable it to concentrate on national concerns. Each local government unit shall have the power to create its own sources of revenues and to levy taxes. fees. (Note: not allowed by our Constitution. [Ganzon vs CA (1991)] 259 . Sec.  Local Government Code (RA 7160) Sec. Principles of C. o and provide for the qualifications. The territorial and political subdivisions shall enjoy local autonomy. and resources.  consistent with the basic policy of local autonomy. Such taxes. Principles of Local Government Law A.O. but to its constituents. and charges shall accrue exclusively to the local governments. powers and functions and duties of local officials. LGC). election. concerning discipline. Mangelin (1989)] Sec." He has no control over their acts in the sense that he can substitute their judgments with his own. 4. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power. There is self-immolation where autonomous government is accountable.

POLITICAL LAW REVIEWER Chapter I. 5 Sec. LGC). Sec. supra] C. . Effectivity LGC. 5. B. 17. Aguirre. In case of doubt on any tax ordinance or revenue measure:  Construed strictly against LGU LOCAL GOVERNMENT LAW III. Resolution of controversies under the LGC:  Where no legal provision or jurisprudence applies  Resort to customs and traditions in the place where the controversies take place   260 . Scope RA 7160 (LGC). Rules of Interpretation. A.  After complete publication in at least one (1) newspaper of general circulation. [Pimentel v. The Local Government Code Construed liberally in favor of taxpayer Tax exemption. Supervisory power. and  to the extent herein provided. 1992. In case of doubt on any provision on a power of an LGU:  Liberal interpretation  in favor of devolution of powers  in favor of existence of power 2. when contrasted with control. is the power of mere oversight over an inferior body.In the interpretation of the provisions of this Code. Sec. 24. to officials. the following rules shall apply: 1. offices. Devolution (asked in 1999)  Refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities (Sec. C. the transfer of power and authority from the National Government to LGUs to enable them to perform specific functions and responsibilities (Art. unless otherwise provided. 536  January 1. BASIC PRINCIPLES supervision over LGUs as it is advisory only. 4 The LGC shall apply to:  provinces  cities  municipalities  barangays  other political subdivisions as may be created by law. General welfare provisions  Liberally interpreted to give more powers to LGU in accelerating economic development and upgrading quality of life for the people of the community 4. OR  law in force at the time the rights were vested 5. incentive or relief is construed strictly against person claiming it 3. it does not include any restraining authority over such body. IRR of the LGC). Sec. or agencies of the national government. Rules of Interpretation LGC. Rights and obligations existing on effectivity of LGC:  Arising from contracts or other source  Shall be governed by  original terms and conditions of contract.

and resources for purposes:  commonly beneficial to them  in accordance with law. city. A. Creation and Dissolution of LGUs I. 15. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly. CREATION and DISSOLUTION of LGUs Chapter II. No province. CREATION A. or its boundary substantially altered. The organic acts shall likewise provide for special courts with personal. X.18. shall be independent of the province. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces. 1987 Consti. and responsibilities not granted by this Constitution or by law to the autonomous regions  shall be vested in the National Government. municipality. The Congress may. regional heads of departments and other government offices. abolished. PLEBISCITE F. 13. MAINTENANCE OF THE STATUS QUO B. merged. whose charters contain no such prohibition. All powers. services. AUTONOMOUS REGIONS C. and property law jurisdiction consistent with the provisions of this Constitution and national laws. both of which shall be elective and representative of the constituent political units. APPEAL C. DIVISION AND MERGER B. subject to a plebiscite as set forth in Section 10 hereof. GENERAL PROVISIONS B. and component cities whose charters prohibit their voters from voting for provincial elective officials. AUTHORITY TO CREATE LGUS D. functions. except:  in accordance with the criteria established in the Local Government Code and  subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.12. ABOLITION A. The President shall provide for regional development councils or other similar bodies composed of local government officials. BEGINNING OF CORPORATE EXISTENCE II. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. 16. ABOLITION III. CREATION AND CONVERSION OF LGUS E. and geographical areas sharing common and distinctive historical and cultural heritage. JURISDICTIONAL RESPONSIBILITY FOR SETTLEMENT OF BOUNDARY DISPUTE B. 2) Highly Urbanized Cities and Independent Component Cities Sec. The component cities and municipalities:  shall retain their basic autonomy and  shall be entitled to their own local executive and legislative assemblies. Sec. 10. Local government units may:  group themselves.) 3) Autonomous Regions Sec. Sec. METROPOLITAN POLITICAL SUBDIVISIONS 2. SETTLEMENT OF BOUNDARY DISPUTES A. HIGHLY URBANIZED CITIES AND INDEPENDENT COMPONENT CITIES 3. divided. 11. cities. Cities that are highly urbanized. DIVISION AND MERGER. 14. 17. or barangay may be created. and representatives from non-governmental organizations within the regions:  for purposes of administrative decentralization  to strengthen the autonomy of the units therein and  to accelerate the economic and social growth and development of the units in the region. Creation (Art. . General Provisions Sec. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. as determined by law. Sec. and other relevant characteristics  within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. 261 LOCAL GOVERNMENT LAW I.POLITICAL LAW REVIEWER Chapter II.  consolidate or coordinate their efforts. Specific Requirements 1) Metropolitan Political Subdivisions Sec. municipalities. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The voters of component cities within a province. family. economic and social structures. create special metropolitan political subdivisions. Sec. Sec. SPECIFIC REQUIREMENTS 1. shall not be deprived of their right to vote for elective provincial officials. by law.

Auditor General (1965)] The enactment of a LGC is not a condition sine qua non for the creation of a municipality. (b) attempt in good faith to organize it. its creation can no longer be questioned. bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Sinacban has attained de jure status2 by virtue of the Ordinance appended to the 1987 Constitution. 2 De jure: by virtue of the ordinance appended to the 1987 Constitution. legal existence has been recognized and acquiesced publicly and officially. Admin Code  The alleged power of the President to create municipalities under Sec. Attack Against Validity of Incorporation  When the inquiry is focused on the legal existence of a body politic. and (d) assumption of corporate powers. apportioning legislative districts throughout the country. 68 of the Revised Administrative Code of 1917. even if the EO was invalid. Sec. which considered Sinacban part of the Second District of Misamis Occidental. 68 of the Admin Code amounts to an undue delegation of legislative power. the action is reversed to the state in a proceeding for quo  The authority to create municipal corporations is essentially legislative in nature [Pelaez v.’ [Malabanan v Benito (1969)] The Municipality of Sinacban1 possesses legal personality. COMELEC (2008)]   262 LOCAL GOVERNMENT LAW  Creations under Sec. Requisites: (LACA) (a) valid law authorizing incorporation. Moya (1988)] De Facto Corporations De facto municipal corporation: There is defect in creation. (Constitution allows delegation of creating municipalities and barangays only. (c) colorable compliance with law. This requirement applies only to new municipalities created for the first time under the Constitution. However. Sibagat (1987)] The SC held that sec. Sec. Above all. Since Sinacban had attained de facto status at the time the 1987 Constitution took effect on February 2. the power remains plenary except that the creation should be approved by the people concerned in a plebiscite called for the purpose. municipality. and before the enactment of such code. Auditor General (1965)]  Effect if created under Sec 68. or any other political subdivision. The authority to create municipal corporations is essentially legislative in nature. 1 Sinacban was created by EO 258 of then President Elpidio Quirino.) [Bai Sema v. 6 A local government unit may be o created. Admin Code: The municipality is non-existent. it does not mean that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity. it is not subject to the plebiscite requirement. It does not include the authority either to abolish or create such. It cannot be a party to any civil action [Mun. o subject to such limitations and requirements prescribed in this Code. [Pelaez v. Where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity. pursuant to Sec. Sec. and creates no office. of Kapalong v. Sec. abolished. 68. 442(d) of the LGC of 1991 must be deemed to have cured any defect in the creation of Sinacban. This is because the existence of the EO is ‘an operative fact which cannot justly be ignored. The power of control of the President over executive departments. CREATION and DISSOLUTION of LGUs C.POLITICAL LAW REVIEWER Chapter II. LGC curative. 1987. 19 of RA 9054 insofar as it grants ARMM Regional Assembly the power to create provinces and cities is void. Authority to Create Local Government Units LGC. or its boundaries substantially altered  either by law enacted by Congress in the case of a province. OR  by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction. . 442(d). Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities. imposes no duties. affords no protection. LGC: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. divided. An unconstitutional act confers no rights. merged.  There can be no color of authority in an unconstitutional statute. [Torralba v. 442 (d). city.

more importantly. [Mariano v. in addition to income. based on  . of Candijay v. to provide for all essential government facilities and services and special functions commensurate with the size of its population. Sec.. to wit: (IPL) 1. (2) RA 7854 provided that the territory of the City of Makati will be the same as that of the Municipality of Makati. Creation and Conversion of LGUs Requirements 1. 3. AC). A cadastral type description is not necessary. Sec. the determination of the territorial jurisdiction over which governmental powers may be exercised) has been sufficiently served. and without interruption or objection for a period long enough to afford title by prescription.  Purpose of plebiscite: to prevent gerrymandering (i. Municipal Corporation by Prescription Existence is presumed where the community has claimed and exercised corporate functions with the knowledge and acquiescence of the legislature.  Compliance with population OR land area. .total number of inhabitants within the territorial jurisdiction of the local government unit cozncerned. Public Corporations (1977)]  The municipality was created under a void law (S68. to the result of the unsettled boundary dispute).  Compliance attested to by:  Department of Finance (DOF)  National Statistics Office (NSO)  Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).e. the practice of creating legislative districts to favor a particular candidate or party) and creation or abolition of units for purely political purposes. In accordance with the criteria established in the LGC 2. and various governmental acts indicate the State’s recognition of its existence. CA (1995)] 263 LOCAL GOVERNMENT LAW D. Mendez] acceptable standards.  Properly identified by metes and bounds with technical descriptions.must be:  Contiguous o unless it comprises two or more islands or is separated by a LGU independent of the others. The funds generated from local taxes. Majority of the votes cast in a plebiscite in the political units directly affected. Commenced by the Sol Gen or the fiscal when directed by the president 3. 7 As a general rule. COMELEC (1995)] NOTE: The ruling in Mariano is an exception to the general rule of proper identification because of its peculiar facts: (1) the legislature deliberately omitted the description in metes and bounds because of the pending litigation between Makati and Taguig over Fort Bonifacio.POLITICAL LAW REVIEWER Chapter II.e. of course. And. Illustrations  The requirement on metes and bounds was meant merely as a tool in the establishment of LGUs. the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services. Collateral attacks shall not lie. . . is sufficient to satisfy the requirements in the creation of a city. [Mun. [Martin. Land Area. Aguirre (1999)] Internal Revenue Allocations (IRAs) form part of the income of LGUs. Income. Population.  Proceeding must be: (RST) 1. This is because the State itself recognized the continued existence of San Andres when th it classified it as a 5 class municipality. [Samson v. [Municipality of San Narciso v. and  Sufficient to provide for such basic services and facilities to meet the requirements of its populace. But it should be considered a de jure personality because it existed 1 year before the Pelaez case.442(d) of the LGC cured whatever defect there was in its creation. CREATION and DISSOLUTION of LGUs warranto or any other direct proceeding. 2. thus making the territorial jurisdiction of Makati ascertainable (subject.must be sufficient. Brought in the name of the Republic of the Philippines 2. Timely raised [Municipality of San Narciso v Mendez (1994)]  The municipality can still be considered to have attained at least a status closely approximating that of a de facto corporation despite the invalidity of the EO creating it. So long as the territorial jurisdiction of a city may be reasonably ascertained. the intent behind the law (i. IRAs and national wealth utilization proceeds accrue Criteria LGC.

When a new local government unit is created. and non-recurring income. There is material change in the political and economic rights of the LGUs directly affected as well as the budget preparation. 14 Sec. Sec. [Miranda v. abolition. COMELEC (1992)]  The downgrading of Santiago City from an ICC to a component city falls within the meaning of creation. Aguirre (1999)]  The creation of a separate congressional district of Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly-urbanized city but is a natural and logical consequence of its conversion…The Court found no need for the people of San Juan to participate in the plebiscite. there is no minimum requirement for area and income. 264 LOCAL GOVERNMENT LAW E. and EITHER population OR territory. which budget should reflect the estimates of the income of the LGU. [Tobias v. merger.  Said plebiscite shall be conducted by the commission on elections (COMELEC) . the income requirement must be satisfied. CREATION and DISSOLUTION of LGUs to the general fund of the LGU and are used to finance its operations subject to specified modes of spending the same as provided for in the LGC and its implementing rules and regulations. 14. [Alvarez v. (c) Taxes will have to be shared with the province. o unless some other time is fixed therefor by the law or ordinance creating it. division. average annual income shall include the income accruing to the general fund. Guingona (1996)] economically dislocated by the separation of a portion thereof have the right to vote in said plebiscite. the IRAs and the share in the national wealth utilization proceeds are considered items of income. Beginning of Corporate Existence LGC. abolition. Illustrations  When the law states that the plebiscite shall be conducted “in the political units directly affected”.  As such. which budget should reflect the estimates of people therein.Within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action. 10  No creation. hence. (b) resolutions and ordinances will have to be Reviewed by the provincial board. or substantial alteration of boundaries of local government units shall take effect unless there is:  Law or ordinance  Approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. division. . ratification in a plebiscite is necessary. What is contemplated by the phrase “political units directly affected” is the plurality of political units which would participate in the plebiscite. Plebiscite LGC. among others. Effects of downgrading: (ART) (a) the city mayor will be placed under the Administrative supervision of the governor. Sec. It is therefore but reasonable to require the consent of the people to be affected. [Padilla v. unless said law or ordinance fixes another date. for purposes of budget preparation. transfers.POLITICAL LAW REVIEWER Chapter II. As to the income requirement. They had nothing to do with the change of status of neighboring Madaluyong. merger.   In the creation of barangays. exclusive of special funds. or substantial alteration of boundaries. it means that the residents of the political entity who would be F. Abalos (1994)] NOTES:  For provinces and cities.  its corporate existence o shall commence upon the election and qualification of its chief executive and a majority of the members of its sanggunian.

460-461 LOCAL GOVERNMENT LAW 2. of at least P2.000 inhabitants Territory contiguous territory of at least 2 2.000 based on 1991 constant prices City RA 9009 (2001) Average annual income.000 inhabitants 5. as certified by the Department of Finance.000 inhabitants. as certified by the provincial treasurer.000.000 inhabitants Barangay LGC 385-386 No minimum requirement for income Population 250.000. 449-450. 441-442.000. as certified by the Department of Finance.POLITICAL LAW REVIEWER Chapter II. the territory need not be contiguous if it comprises 2 or more islands By an Act Congress of Manner of Creation By an Act Congress of requirement on land area shall not apply where the municipality proposed to be created is composed of 1 or more islands.500. territory need not be contiguous if it comprises 2 or more islands By an Act of Congress Territory need not be contiguous if it comprises 2 or more islands By law or by an ordinance of the sangguniang panlalawigan or panlungsod. please check LGC 385-386. the recommendation of the sangguniang bayan concerned shall be necessary 3 For creation of specific LGUs. of at least P100. of not less than P20.000 km territory need not be contiguous if it comprises 2 or more islands or is separated by a chartered city or cities which do not contribute to the income of the province contiguous territory 2 of at least 100 km contiguous territory 2 of at least 50 km requirement on land area shall not apply where the city proposed to be created is composed of 1 or more islands. CREATION and DISSOLUTION of LGUs Summary: Creation of Specific LGUs3 Requirements Income Province LGC 460-461 Average annual income. In case of the creation of barangays by the sangguniang panlalawigan. in cities and municipalities within MM and other metropolitan political subdivisions or in highly urbanized cities No minimum requirement for area 265 .000 inhabitants Municipality LGC 441-442 Average annual income.00 for the last two consecutive years based on 1991 constant prices 25.000 for the last 2 consecutive years based on 2000 constant prices 150.

Effects of Merger 1. 266 LOCAL GOVERNMENT LAW II. Change of sovereignty 4. Change of name . 8. That the income classification of the original local government unit or units shall not fall below its current classification prior to such division. rights and powers are acquired by the dividing LGUs [Martin. or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code. Legal existence of LGU to be annexed is dissolved Laws and ordinance of the annexing LGU prevails The right of office in the annexed LGU is terminated Title to property is acquired by the annexing LGU Debts are assumed by the annexing LGU [Martin. That such division shall not reduce the income. 9  A local government unit may be abolished:  when its income.  The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein. population. Non-user or surrender of charter 2. except otherwise provided in the Act of Congress. When there is no dissolution 1. except otherwise provided in the Act of Congress. further. except otherwise provided in the Act of Congress.POLITICAL LAW REVIEWER Chapter II. or barangay with which the local government unit sought to be abolished will be incorporated or merged. to enhance the delivery of basic services in the indigenous cultural communities Approval must be by majority of the votes cast. Failure to elect municipal officers 3. 4. Abolition LGC.  The law or ordinance abolishing a local government unit shall specify the province. 2.  Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation:  Provided. supra] B. The legal existence of the original municipality is extinguished 2. CREATION and DISSOLUTION of LGUs Requirements Province LGC 460-461 City RA 9009 (2001) Municipality LGC 441-442 Plebiscite (in LGUs directly affected) Approval must be by majority of the votes cast. city. 3. Division and Merger LGC. the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action Approval must be by majority of the votes cast. however. or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code:  Provided. Abolition A. population. Property. the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action Approval must be by majority of the votes cast. Sec. plebiscite shall be held within such period of time as may be determined by the law or ordinance creating said barangay. the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action Barangay LGC 385-386 By an Act of Congress. 5. Division and Merger. municipality. as the case may be. as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned. Sec. supra] Effects of division 1.

Baz (1996)] The conduct of plebiscites. be settled amicably. jointly referred settlement to respective sanggunians of parties. Appeal LGC. Thereafter.  B.  The Regional Trial Court shall decide the LOCAL GOVERNMENT LAW Boundary disputes shall be referred for settlement to: sangguniang panlungsod or sangguniang bayan concerned. as much as possible. to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility.  In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto. Settlement of Boundary Disputes (asked in 2005) LGC. Sec. appeal within one (1) year from the filing thereof. C. any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. provincial boards do not have the authority to approve agreements which in effect amend the boundary stated in the creating statute [Municipality of Jimenez v. CREATION and DISSOLUTION of LGUs III. 119. Sec. sangguniang panlalawigan concerned. 18 Pending final resolution of the dispute: status of the affected area prior to the dispute shall be maintained and continued for all purposes.  Within the time and manner prescribed by the Rules of Court. 118 If the LGUs involved are: two (2) or more barangays in the same city or municipality two (2) or more municipalities within the same province municipalities component cities different provinces or of for jointly referred to the sanggunians of the provinces concerned. Precisely because territorial jurisdiction is an issue raised in the pending boundary dispute. to determine whether or not a barangay is to be created. Jurisdictional Responsibility Settlement of Boundary Dispute LGC. COMELEC(1999)] A.  Policy: Boundary disputes between or among LGUs shall. Maintenance of the Status Quo IRR of LGC. until and unless such issue is resolved with finality. Thus.  The power of provincial boards to settle boundary disputes is limited to implementing the law creating a municipality. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.  267 .POLITICAL LAW REVIEWER Chapter II. should be suspended or cancelled in view of a pending boundary dispute between two local governments. 118-119  Boundary dispute—when a portion or the whole of the territorial area of an LGU is claimed by two or more LGUs. it shall issue a certification to that effect. for the the a component city or municipality on the one hand and a highly urbanized city on the other. Sec. the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above. [City of Pasig v. or two (2) or more highly urbanized cities. Sec.

GENERAL WELFARE (POLICE POWERS) B.18 LGC) o Purpose: productive. encumber. GOVERNMENTAL POWERS A. Sec. Sec. and priorities. develop. POWER TO GENERATE REVENUE (POWER TO TAX) C. Sec. LOCAL LEGISLATIVE POWER I. LGC Sec. 15.18 LGC) o Real or personal property o Made in a proprietary capacity  Apply resources and assets (Sec.18 LGC) o Determined by law o Automatically and directly released  Equitable share in utilization and development of national wealth (Sec.18   Local government units shall have the power and authority to generate and apply resources Establish an organization responsible for implementation of development plans. Art. e. Discretionary or Municipal Corporations LGC Sec.. Powers in General A. II . Ministerial. EXECUTION OF POWERS II. Note: Art. POLITICAL AND CORPORATE NATURE OF LGUs III. X Statutes. LGUs have discretion to select reasonable means and methods of exercise The election and qualification of  chief executive AND  majority of the members of the Sanggunian unless some other time is fixed therefore by the law or ordinance creating it. GENERAL POWERS and ATTRIBUTES of LGUs Chapter III. Beginning of Corporate Existence   C. Implied. RECLASSIFICATION OF LANDS F.14 applies when the law creating it is SILENT as to the beginning of its corporate existence.18 LGC) o Within respective territorial jurisdictions o In the manner provided by law o Sharing with inhabitants by way of direct benefits  Acquire. Execution of Powers   Where statute prescribes the manner of exercise.5. Inherent Public or Governmental.6. BASIC SERVICES AND FACILITIES E. CORPORATE POWERS G. or otherwise dispose of property (Sec. Constitution.X. Political and Corporate Nature of Local Government Units  II. Private Proprietary Intramural. LGC Charter (particularly of cities) Doctrine of the right of self-government.X. SOURCES B.18 LGC) which include:  Power to create own sources  Levy taxes. 5-7. alienate. the procedure must be followed Where statute is silent. 14. development. Constitution.  Local government unit created or recognized under this Code is a  Body politic AND  Corporate endowed with powers to be exercised by it in conformity with law Exercise of power (as a):  Political subdivision of the national government AND  Corporate entity representing the inhabitants of its territory LOCAL GOVERNMENT LAW Own sources of revenues (Sec. Directory. 25. Sec. Art.7. Art. lease. Classification of Powers of LGUs     Express. Powers and  POWERS IN GENERAL A. program objectives. Art. Sources of Powers of LGUs     1987 Consti. fees and charges o Shall accrue exclusively for their own use and disposition o Limitation: guidelines Congress may provide  Just share in national taxes (Sec. General Attributes of LGUs I. CLASSIFICATION C. Political and Corporate Nature of LGUs LGC Sec. EMINENT DOMAIN D. Art. Sec.g.X Constitution.POLITICAL LAW REVIEWER Chapter III. but applies only in States which adhere to the doctrine B. or welfare purposes o In the exercise of their governmental or proprietary powers and functions 268 . Extramural Mandatory.

appropriate or incidental for efficient and effective governance 4. post offices. The drift is towards social welfare legislation geared towards state policies to provide adequate social services. judicial. Powers essential to the promotion of general welfare 5. GENERAL POWERS and ATTRIBUTES of LGUs Implications  A municipal corporation performs twin functions. Local police shall be organized. It is in the latter character that it is a separate entity acting for its own purposes and not a subdivision of the state.16 LGC) 1. Secondly. cemeteries. General Welfare LGC Sec. supervised and utilized in accordance with applicable laws. Powers expressly granted 2. etc. it acts as an agency of the community in the administration of local affairs. maintained. Defense and security of regions (Sec. public and political LGU cannot be held liable except: o If statute provides otherwise Art. Shall ensure and support:  Preservation and enrichment of culture  Promotion of health and safety  Enhancement of the right of the people to a balance ecology  Development of self reliant scientific and technological capabilities  Improvement of public morals  Economic prosperity and social justice  Promotion of full employment among residents  Maintenance of peace and order  Preservation of the comfort and convenience of inhabitants 269 . Constitution) 1. Gonzales] III. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. [Lidasan v COMELEC (1967)]  The holding of a town fiesta is a proprietary function.21.POLITICAL LAW REVIEWER Chapter III.16 This includes: Police Power. [Torio v Fontanilla (1978)] Difference Between the Political Nature and Corporate Nature of LGUs Political/ Governmental Political subdivision of national government Includes the legislative. for which a rd municipality is liable for damages to 3 persons ex contractu or ex delicto. disease  Preservation of public peace  Maintenance of municipal plaza  Establishment of schools. Constitution) o Responsibility of National Government General Welfare Clause (Sec.X. Powers necessarily implied 3. Governmental Powers A. Corporate/ Municipal Corporate entity representing inhabitants of its territory Includes those which are ministerial.21.2189. Abatement of Nuisance and Closure of Roads 1. Civil Code Examples:  Regulations against fire. and. X. Art. Art. in a broad sense includes all legislation and almost every function of the municipal government. Responsibilities of local police agencies 2 Branches of the GWC  The General Welfare Clause has 2 branches: (1) the general legislative power which authorizes municipal councils to enact LOCAL GOVERNMENT LAW 2. airports Nature  The police power of a municipal corporation extends to all the great public needs. Police Power  Preservation of peace and order within respective regions (Sec. golf courses. though not for profit. it serves as an instrumentality of the State in carrying out the functions of a government. private and corporate Can be held liable ex contractu or ex delicto   Examples:  Municipal waterworks  Slaughterhouses  Markets  Stables  Bathing establishments  Wharves  Fisheries  Maintenance of parks. Firstly. Powers necessary. the promotion of general welfare and social justice [Binay v Domingo (1991)]  To constitute “public use”:  The public in general should have equal or common rights to use the land or facility involved on the same terms  The number of users is not the yardstick in determining whether property is properly reserved for public use or public benefit [Republic v.

peace. [Binay vs Domingo. Powers of the LGUs under the general welfare clause (LGC Sec. [De La Cruz vs Paras (1983)]  “Anxiety. which authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety. Moreover. The amorphous. (1994)] restiveness” cannot be a permit. for purposes of regulation enacted by the municipal council of Makati. . Here. It may only regulate. Not unreasonable Illustrations: Police Power Applies  A municipal ordinance prescribing the zonification and classification of merchandise and foodstuff sold in the public market [Eboňa v Municipality of Daet (1950)]  A proclamation reserving parcels of the public domain for street widening and parking space purposes [Republic v Gonzales] Condemnation and demolition of buildings found to be in a dangerous or ruinous condition within the authority provided for by municipal ordinances [Chua Huat vs CA (1991)]  270 LOCAL GOVERNMENT LAW     Illustrations: Police Power Does Not Apply  The LGU has no power to prohibit the operation of night clubs. Limitations 1. [Tano vs Socrates (1997)]   2. the ordinances imposing the licenses and permits for any business establishments. Not unfair or oppressive 3. this power is still subject to the guidelines prescribed by the DOTC. For ordinance to be valid exercise of police power [Tatel v. Corollary thereto. Must not be partial or discriminatory 4. Not prohibit but may regulate trade 5. and occupations. the newly delegated powers pertain to the franchising and regulatory powers therefore exercised by the LTFRB. [Technology Developers vs CA (1991)] Provide for burial assistance to the poor. morals. Not contrary to the Constitution and/or statute 2. Mun. comfort and convenience of the municipality and its inhabitants. a lawful trade or pursuit of occupation. or incidental for its efficient and effective governance 3. and for the protection of their property.POLITICAL LAW REVIEWER Chapter III. However. uncertainty and among stallholders and traders ground to revoke the mayor’s General Welfare claim is too [Greater Balanga vs Mun. of Balanga   Butuan city board passes an ordinance requiring that the sale of tickets to movies. The theater operators are merely conducting their legitimate business. 2.16)  Powers expressly granted to the LGU  Power necessarily implied therefrom  Powers necessary. st falls under the 1 branch. of Virac (1992)]: 1. [Patalinhug vs CA (1994)] Demolition of stalls causing traffic and deteriorated sanitation [Villanueva vs Castaneda (1987)] Deny an application for permit or avoid the injury to the health of residents. Inc v Municipality of Makati (2004)]  Regulation and operation of tricycles-for-hire and to grant franchises for the operation thereof. [LTO vs City of Butuan (2000)] The declaration of an area as a commercial zone through a municipal ordinance. [Rural Bank of Makati. (2) the police power. good order. The said ordinance was declared void. the state may interfere with personal liberty with property. prosperity. business. exhibitions or other performances to children between 7-12 years of age should be at half price. supra] Abatement of a public nuisance because stored inflammable materials created a danger to the people within the neighbourhood [Tatel vs Mun. of Virac (1992)] Rescind contracts [Tamin vs CA (1994)] Enforcement of fishery laws in municipal waters including the conservation of mangroves. GENERAL POWERS and ATTRIBUTES of LGUs  ordinances and make regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law. General and consistent with public policy 6. appropriate. The General Welfare Clause cannot be used to justify an act that is not specifically authorized by law.

It may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve. the jurisprudence holds that LGUs can abate extrajudicially only nuisances per se. foodstuffs. cultural. thus creating a presumption that LGUs can abate all kinds of nuisances without need of a judicial order. merchandise.POLITICAL LAW REVIEWER Chapter III. The right of the public to use the city street may not be bargained away through contract. Abatement of Nuisance LGC sec. outside the commerce of man. or civic activities: must be officially sponsored. GENERAL POWERS and ATTRIBUTES of LGUs There is nothing immoral or injurious in charging the same price for both children and adults. buildings and structures within their jurisdiction  To promote the general welfare and  For said purpose declare. flea or night markets. commodities. Such leases are null and void for being contrary to law. recognized. or any other public place  By any city. or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity [Monteverde v Generoso (1928)]. road. those within Illustrations  A public street is property for public use hence. thoroughfare. an adequate substitute for the public facility should be provided  Make provision for public safety  If permanently withdrawn from public use  May be used or conveyed for any purpose for which other real property belonging in LGU may be lawfully used or conveyed  Freedom park: must have provision for relocation to new site Temporary close or open  Ordinance  May be done:  During actual emergency  Fiesta celebrations  Public rallies  Agricultural or industrial fairs  Undertaking of public works and highways. and waterworks projects  Duration specified in written order by local chief executive  If for athletic. [Dacanay vs Asistio (1992)] . However. prevent or abate any nuisance Coverage  Respondents cannot seek cover under the General Welfare Clause authorizing the abatement of nuisances without judicial proceedings.447 and 458 Sangguniang Bayan and Sangguniang Panlungsod have:  Power to regulate activities relative to the use of land. or approved by LGU. [Balacuit v CFI (1988)]  The power of the municipal government to issue fishing privileges is only for revenue purposes. or barangay  Where shopping malls. telecommunications. The authorization given for the use of the city street as a vending area for stallholders who were granted licenses by the City Government contravenes the general law that reserves city streets and roads for public use. municipality. CA (1995)]  Permanently close or open  Ordinance: Vote of at least 2/3 of all members of the Sanggunian  When necessary. or shopping areas may be established  Where goods. Temporary closure and regulation of any local street.  271 LOCAL GOVERNMENT LAW  4. It may not be the subject of lease or other contract. no person is under compulsion to purchase a ticket. NOTES: The provisions of the Code DO NOT make a distinction between nuisance per se and nuisance per acccidens.21  What roads are jurisdiction of LGU  Local road  Alley  Park  Square subject. or articles of commerce may be sold 3. BUT the power of the LLDA to grant permits is for the purpose of effectively regulating and monitoring activities in the lake region and is in the nature of police power. Sunday. In fact. [Laguna Lake Development Authority v. Closure of Roads LGC Sec. That tenet applies to a nuisance per se.

products actually exported. Taxes. Equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits Fundamental principles governing the exercise of the taxing and other revenue-raising powers of LGUs LGC Sec 130 (PE-PUB) 1. or confiscatory. Taxation shall be uniform in each LGU. not contrary to law. Excise taxes 9. GENERAL POWERS and ATTRIBUTES of LGUs      The provincial council has the authority to determine whether or not a certain property (in this case a provincial road) is still necessary for public use [Cabrera vs CA (1991)] The power of the LGU to enact zoning ordinances for the general welfare prevails over the deed of restrictions. Taxes. fees. charges and other imposition shall in no case be left to any private person. not unjust. the LGU. Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight. except tricycles 13. fees and charges and other impositions upon goods carried in or out of. but the LGUs do. fees. national economic policy. respectively. or other charges in Phil. Percentage taxes or VAT 10. Taxes. Taxes on premiums paid by way of reinsurance or retrocession 12. and common carriers 11. 2. the territorial jurisdiction of local government units in the guise of charges for wharfage. There should have been an ordinance by the LGU to effect an opening of roads. [MMDA vs Bel Air (2000)] 4. or charges of any kind on the National Government. Customs duties. LGC 1. levied and collected only for public purposes. except as otherwise provided therein 14. fees. fees. registration fees of vessels and all other kinds of customs fees and charges 5. Own sources of revenues 2. Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for a period of 6 and 4 years. Power to Generate Revenue LGC Sec. Estate tax 4. Taxes. fees or charges in any form whatsoever upon such goods or merchandise 6. from date of registration 8. fees. evolve a progressive system of taxation. and be subject to disposition by. charges and other impositions shall be equitable and based as far as practicable on the taxpayer’s ability to pay. unless otherwise specifically provided herein. charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof. fees or charges. [Cabrera vs CA (1991)] Effect: The determination of the location of the camino vecinal through an ordinance will defeat the testimonies of witnesses as to the location of said passageway. on Countryside and Barangay Enterprises and cooperatives duly registered under RA 6810 and the Cooperative Code 15. Taxes.18 Sources of LGU funds: (O-TIU) 1. The revenue shall inure solely to the benefit of. [Pilapil vs CA (1992)] The MMDA does not have police power. No grant of damages are awarded. 3. Taxes. Taxes. as far as practicable. and 5. Just share in national taxes which shall be automatically and directly released to them without need for any further action (Internal Revenue Allotments) 4. The collection of local taxes. Income tax (except when levied on banks and financial institutions) 2. Each LGU shall. [Sangalang vs IAC(1989)] The closure of roads under police power is not eminent domain. excessive. or in restraint of trade. Taxes. its agencies and instrumentalities 272 LOCAL GOVERNMENT LAW B. fees and charges: which shall accrue exclusively for their use and disposition and which shall be retained by them 3. tolls for bridges or otherwise. oppressive. Documentary stamp tax 3. public policy. fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen 7. or passing through. Common Limitations on the Taxing Powers of LGUs Sec 133.POLITICAL LAW REVIEWER Chapter III. or other taxes. .

A basic feature of local fiscal autonomy is the automatic release of the shares of the LGUs in the national internal revenue. Local governments shall formulate sound financial plans. 6. (1992)] LGUs. GENERAL POWERS and ATTRIBUTES of LGUs Fundamental principles governing the financial affairs. and projects. National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices. 11. Acting pursuant to an ordinance c. Local budgets shall operationalize approved local development plans. Fiscal responsibility shall be shared by all those exercising authority over the financial affairs. and 12. 3. even GOCCs when the beneficial use of the property has been granted to a taxable person for consideration or otherwise. 10. the reasons for the acquisition. transactions. 5. 8. LGUs shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units. in addition to administrative autonomy. and the price offered. transactions and operations of LGUs LGC sec 305 1. This is mandated by no less than the constitution. The properties of NDC belong to the Government. therefore. Local government funds and monies shall be spent solely for public purposes. Through the Chief Executive of LGU b. Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received. MCIAA is a GOCC and an instrumentality.19 Eminent Domain -. . (1837)] Requisites for a Valid Exercise of Eminent Domain (COP-JO) a. Every officer of the LGU whose duties permit or require the possession or custody of local funds shall be properly bonded. and operations of the local government units. All monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds.   RPT exemption granted under its charter is withdrawn [MCIAA vs Marcos (1997)] Tax exemption of property owned by the Republic refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). and such officer shall be accountable and responsible for said funds and for the safekeeping thereof in conformity with the provisions of law. No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law. Local revenue is generated only from sources expressly authorized by law or ordinance. 9. It shall specify the property sought to be acquired. Any retention is prohibited. 2. unless otherwise provided by law. Payment of just compensation  Amount determined by proper court  Based on fair market value at the time of the taking e. in addition to their equitable share in the national taxes as well as the power to allocate resources in accordance with their own priorities. in terms of expected results.It is the ultimate right of the sovereign power to appropriate not only public but private property of citizens within the territorial sovereignty to public purpose [Charles River Bridge vs. LGUs have the power to create their own sources and revenue. For the purposes of:  Public use or welfare  For the benefit or the poor and the landless d. also enjoy fiscal autonomy.POLITICAL LAW REVIEWER Chapter III. Warren Bridge. and the local budgets shall be based on functions. [Pimentel v Aguirre (2000)] 273 LOCAL GOVERNMENT LAW C. and collection thereof shall at all times be acknowledged properly. activities. [NDC vs Cebu. 4. Valid and definite offer made Right by the State to immediately take possession:  Upon filing of expropriation proceedings  Upon deposit with proper court of at least 15% of the fair market value of the property Article 35 IRR of LGC  Offer to buy private property for public use or purpose shall be in WRITING. Eminent Domain LGC Sec. 7. The LGU shall endeavor to have a balanced budget in each fiscal year of operation Cases  Sec 234 withdrew all exemptions from real property taxes.

POLITICAL LAW REVIEWER Chapter III. such law cannot prevail over the Local Government Code.10 (MODES of acquisition). the rule admits of an exception: where the SC fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings. Otherwise. The LGC did not put a time limit as to when a LGU may immediately take possession of the property. the issuance of a writ of possession becomes ministerial. [Republic vs CA (2002)] Immediate Entry by the LGU Requisites for immediate entry of LGU: 1. Sec. it would be premature. [City of Iloilo v Legaspi (2004)] 274 .e. Cases  Under the Urban Land and Housing Act. not just lands or personal property. Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation. No hearing is required for the issuance of the writ. As long as the expropriation proceedings have been commenced and the deposit made.9 of the Urban Land and Housing Act.  complaint Although the general rule in determining just compensation in eminent domain is the value of the property as of the date of filing of the complaint. [Meycauyan vs IAC (1988)]  The ordinance which requires cemeteries to set aside a portion of their lots to paupers is not an exercise of police power. NOT at the time of filing Socialized Housing  The UDHA and the Expropriation by the LGUs i. [Cebu vs Apolonio (2002)] It is possible that the purpose for expropriation is changed after such is granted.  If the land sought to be expropriated is located in urban areas and fall under the UDHA. the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The contract of sale shall be supported by the following documents:  Resolution of the Sanggunian authorizing the local chief executive to enter into a contract of sale. any member of the Sanggunian duly chosen as its representative. Filing of complaint for expropriation sufficient in form and substance 2. shall participate in the conference.4.9 and 10 for their suit to prosper. The chairman of the appropriation or finance committee of the Sanggunian. the LGU cannot be barred from praying for the issuance of writ of possession. and  Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disturbed or spent for any purpose other than to pay for the purchase of the property involved. but a taking without compensation. When an agreement is reached by the parties. a contract of sale shall be drawn and executed. The resolution shall specify the terms and conditions to be embodied in the contract. a contract of sale shall be executed and payment made If the owner/s are willing to sell their property but at a price higher than that offered to them. GENERAL POWERS and ATTRIBUTES of LGUs    Illustrations of Eminent Domain  There is no need to get DAR approval before expropriation [Camarines Sur vs CA (1993)]  There must be genuine necessity of a public character. There is no genuine necessity if another road more ideal is available. the LGU must allege compliance with Secs. [NPC vs Jocson (1992)]  Necessity does not contemplate the economic relief of a few families devoid of any other public advantage [Manila vs Arellano (1950)]  Eminent domain requires an ordinance. Finally. which speaks of PRIORITIES in acquisition) should be read in connection with Sec. The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on the current tax declaration [Bardilion v Masili (2003)]  Upon compliance with the requirements for immediate entry. [QC vs Ericta (1983)]  Eminent domain may be exercised over easements (property rights).  Ordinance appropriating the amount specified in the contract. or in his absence. while sec. there is a priority in expropriation of which the properties of the government or any of its subdivision rank number one and LOCAL GOVERNMENT LAW If the owner’s accept the offer in its entirety. Res judicata does not apply to expropriation cases [Paranaque vs VM Realty (1998)]  Just compensation shall be determined at the time of taking. which is substantive law. not just a resolution.

slaughterhouses Implementation of community-based forestry projects See municipality province and Katarungang Pambarangay Maintenance of roads. tax and marketing information systems and public library Public markets. 2. 17 Barangay Agricultural services support Municipality Agriculture and fishery extension and on-site research services and facilities Province Agricultural extension and on-site research services and facilities. giving way to other modes of acquisition like community mortgage and swapping. communal irrigation. plaza. organization of farmers and fishermen’s cooperatives Same. flood control Municipal buildings. Otherwise it would be deprivation of property. The elements of small property owners are: 1. Basic Services and Facilities LGC Sec . They do not own real property other than the same. public parks Information services. drainage.POLITICAL LAW REVIEWER Chapter III.meters in highly urbanized cities (800 in other urban cities). bridges and water supply systems Infrastructure facilities (e. small-scale mining law. Those owners of real property which consists of residential lands with an area of not more than 300 sq. Also. artesian wells. GENERAL POWERS and ATTRIBUTES of LGUs privately owned properties ranked last. pollution control law. health centers and clinics Same See municipality province See municipality province and Social welfare services and General hygiene and sanitation Solid waste collection Same Solid waste disposal system or environmental management system N/A Road.g. the said act provides that expropriation should be the last alternative. limited to community-based forestry projects. multipurpose hall) Information and reading center N/A Similar to those municipality for N/A See municipality province and See municipality province Upgrading and modernization of tax information and collection services See municipality province and and Satellite market or public Enforcement of forestry laws. including rebel returnees and evacuees. cultural centers. mini-hydroelectric See municipality province See municipality province and and . [Filstream International Inc v CA (1998)]  The UDHA introduced a limitation on the size of the land sought to be expropriated for socialized housing. It exempted “small property owners”. [City of Manadaluyong v Aguilar (2001)] D.relief operations population development services City See municipality province and 275 LOCAL GOVERNMENT LAW Health services Same. bridges. including hospitals and tertiary health services Same.

as determined by the Sanggunian  Limited to the following percentage of the total agricultural land area at the time of passage of the ordinance  For highly urbanized and independent component cities: 15%  For component cities and first to the third class of municipalities: 10%  For fourth to sixth class municipalities: 5%  Limited by RA 6657 or the “Comprehensive Agrarian Reform Law”  Agricultural lands distributed to agrarian reform beneficiaries shall not be affected  Conversion into other purposes governed by sec. The land is not currently used as agricultural. jail LGC Sec. fire station. although it is classified as such Requisites for Reclassification of Land: (PAO) 1. from receipt  Proper and complete application for reclassification  Comprehensive Land Use Plans  Enacted through zoning ordinances  Shall be the primary and dominant bases for the future use of land resources  Factors to consider-requirements for o Food production o Human settlements o Industrial expansion NOTES:  Land use conversion: the act or process of changing the current use of a piece of agricultural land into some other use as approved by the DAR  Reclassification: designation of intended use of land within the territory. GENERAL POWERS and ATTRIBUTES of LGUs Barangay Municipality Province projects purposes City for local See municipality province See municipality province See municipality province Same Same Same Same Adequate communication and transportation facilities. Reclassification of Lands By the President  When public interest so requires  Upon recommendation of the NEDA  May authorize a city or municipality to reclassify lands in excess of the limits 276 .POLITICAL LAW REVIEWER Chapter III. shall not be unreasonably withheld  Failure to act: deemed approval  Within 3 mos.56 RA6657  Nothing repealing. 20  By a City or Municipality  Through an ordinance passed by Sanggunian  After conducting public hearings  Provide manner of disposition  Land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture  Land shall have substantially greater economic value for residential. amending or modifying RA6657  Approval of national agency  When required. and and and School Buildings Public cemetery Tourism facilities Tourism development and promotion programs Same Industrial research and development services Low cost housing and other mass dwellings Investment support services Inter-municipal telecommunication services  Police. Ordinance passed by Sanguniang Bayan or Panglungsod after public hearings conducted for the purpose LOCAL GOVERNMENT LAW E. commercial. or industrial purposes.

or change their existing corporate seals  Newly established LGUs or those without corporate seals  May create own corporate seals  Registered with the DILG  Change of corporate seal shall be registered with the DILG Contract entered into by local chief executive un behalf of LGU  Prior authorization by Sanggunian  Legible copy of contract posted at a conspicuous place in the  Provincial capitol or  City. However. have substantially greater economic value for residential. modify. cease to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture. To exercise such other powers as are granted to corporations  Limitations: as provided in LGC and other laws Corporate Seal  LGUs may continue using. In which case. [Province of Zamboanga v City of Zamboanga (1968)] 277 LOCAL GOVERNMENT LAW F.23   Who may negotiate:  Local Chief Executive (upon authority of Sanggunian) What are negotiated  Financial grants or donations in kind in support of basic services or facilities  From local and foreign assistance agencies Approval by national agency concerned  No necessity of securing clearance from national agency  IF with national security implications  Shall be approved by national agency concerned  Failure to act on request for approval within 30 days from receipt: deemed approved Reporting duty: local chief executive shall report to both Houses of Congress and the President  Nature  Amount  Terms  Within 30 days upon signing of grant agreement or deed of donation     . To have and use a corporate seal d.POLITICAL LAW REVIEWER Chapter III. as a corporation has the following powers: (SC-PCSO) a. To acquire and convey real or personal property e. then it is patrimonial and Congress has no absolute control. OR b. even without these provisions the authority of the municipality to fix and collect fees from its waterworks would be justified from its inherent power to administer what it owns privately. [NAWASA v Dator (1967)]  If the property is owned by the municipality in its public and governmental capacity. GENERAL POWERS and ATTRIBUTES of LGUs 2. Agricultural land must either: a. Reclassification shall be limited to the percentages of the total agricultural land area at the time of the passage of the ordinance as prescribed by the LGC Take note however. municipal or barangay hall Authority to Negotiate and Secure Grants LGC Sec. of: o LGU need not obtain approval of DAR to convert or reclassify land from agri to nonagri [Fortich v Corona (1998)] o DAR is mandated to approve or disapprove applications for conversion [Roxas v CA (1999)] Cases  The authority of a municipality to fix and collect rents for water supplied by its waterwork system is expressly granted by law. the property is public and Congress has absolute control over it. Corporate Powers LGC Sec 22  Every LGU. or industrial purposes. as determined by the Sanggunian concerned 3. the municipality cannot be deprived of it without due process and payment of just compensation. commercial. To enter into contracts f. To sue and be sued c. if the property is owned in its private or proprietary capacity. To have continuous succession in its corporate name b.

suspension for not more than 60 days or expulsion o Suspension or expulsion: requires concurrence of at least 2/3 vote of all Sanggunian members o A member convicted by final judgment to imprisonment of at least 1 year for any crime involving moral turpitude shall be automatically expelled from the Sanggunian  Other rules as the Sanggunian may adopt 278 .53)  Quorum. the general jurisdiction of each committee o Election of the chairman and members of each committee  Order and calendar of business for each session  Legislative process Quorum (Sec.50): st  Adopted/update on the 1 regular session following election of its members.POLITICAL LAW REVIEWER Chapter III. [Perez vs Dela Cruz (1969)]  The incumbent local chief executive acting as the chief executive may not preside over the sessions of the Sanggunian. Local Legislative Power LGC Sec. GENERAL POWERS and ATTRIBUTES of LGUs G.52)  Regular sessions: fixed by resolution on st 1 day of the session immediately following the election of its members  Minimum numbers of regular sessions: once a week (panlalawigan.within 90 days  Provides for:  Organization of the Sanggunian and the election of its officers  Standing Committees o Creation (Including the committees on appropriations. [Gamboa vs Aguirre] Inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer Who shall certify within 10 days from the passage of the ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided         Internal Rules of Procedure (Sec. Why? To ensure better delivery of public services and provide a system of checks and balances between the executive and legislative. youth and sports development. bayan) and twice a month for the Sangguniang Barangay  Special session: may be called by the local chief executive or by a majority of the members of the Sanggunian-cause: when public interest demands  Written notice: served personally at the member’s usual place of  LOCAL GOVERNMENT LAW Parliamentary procedures (including the conduct of members during sessions) Discipline of members for disorderly behavior and absences (without justifiable cause for 4 consecutive sessions) Penalty: censure. environmental protection. women and family. human rights.48)  Sangguniang panlalawigan for the province  Sangguniang panglungsod for the city  Sangguniang bayan for the municipality  Sangguniang barangay for the barangay Presided by (Sec. and cooperatives. panlungsod.49):  Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because he is not a member of the Sanggunian. Majority of all members of the Sanggunian who have been elected and qualified  Questions of quorum is raised: the presiding officer shall immediately proceed to call the roll of the members and announce the results  No quorum: the presiding officer may declare a recess until such time as a quorum is constituted  OR a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by arresting the absent member and present him at the session  No business shall be transacted Sessions (Sec. reprimand. or exclusion from the session.48-59  Exercised by (Sec.

after the disapproval. otherwise. stating his reasons for writing  LOCAL GOVERNMENT LAW How many votes required  General Rule: Majority of the members constituting a quorum  When the enactment itself specifies the number of votes required. when such enactment is to be amended. the secretary shall forward to the Sangguniang Panlalawigan for review. Why? Because the municipal authorities are in a better position to determine the votes required.55): local chief executive may veto any ordinance on the ground that it is ultravires or prejudicial to the public welfare. the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney. decency or morality No 2 sessions may be held in a single day Journal and record of its proceedings which may be published upon resolution of the Sanggunian concerned   Approval. Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program. copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils o Within 30 days after the receipt of copies. as the case may be  Approves: affix his signature on each and every page  Disapproves: veto it and return the same with his objections to the Sanggunian o Override: 2/3 vote of all its members making the ordinance effective even without the approval of the local chief executive concerned o Veto communicated to the Sanggunian within 15 days in the case of a province.POLITICAL LAW REVIEWER Chapter III. or if there be none. and 10 days in the case of a city or a municipality. [Casino vs CA (1991)] Veto an ordinance or resolution only once  Local chief executive (except the punong barangay) power to veto any particular item or items o An appropriations ordinance o Ordinance or resolution adopting a local development plan and public investment program o Ordinance directing the payment of money or creating liability o (where the veto shall not affect the item or items which are not subjected to)  Review of (component) City or Municipal Ordinances o Within 3 days after approval. shall be sufficient ground for the suspension or dismissal of the official or employee o No action within 30 days after submission: presumed consistent with the law and valid Ordinance enacted by the Sangguniang barangay shall upon approval by the 279 . the ordinance shall be deemed approved  Veto (Sec. it shall declare such ordinance or resolution invalid in whole or in part--action entered in the minutes and shall advise the corresponding city or municipal authorities of the action—(sec 58). no other matters may be considered except those stated in the notice  Open to the public  UNLESS a closed-door session is ordered by an affirmative vote of a majority of the members present (there being a quorum)  In the public interest or for reasons of secrecy. GENERAL POWERS and ATTRIBUTES of LGUs   residence at least 24 hours before the session  Unless otherwise concurred in by 2/3 vote of the Sangguniang members present. such requirement will govern over the general rule specified in the charter or the LGC. Veto and Review of Ordinances  Every ordinance shall be presented to the governor or mayor. Provincial attorney or prosecutor shall: within 10 days from receipt. inform the Sanggunian in writing of his comments or recommendations  Finding: beyond the power conferred. to the provincial prosecutor for examination. there being a quorum.

the sangguniang barangay shall furnish copies to o The sangguniang panglungsod or sangguniang bayan concerned for review as to whether the ordinance is consistent with law and city or municipal ordinances  No action for 30 days from receipt: ordinance shall be deemed approved o Finding: inconsistent with law or city or municipal ordinances—the sanggunian shall. amendment. within 30 days from receipt. it may also be transmitted to the provincial attorney or prosecutor for examination. said atty. amend or modify the ordinance within 30 days from receipt from the sangguniang panglungsod or sangguninang bayan . after which the ordinance or resolution is presumed valid if no action is taken. or prosecutor shall give his written recommendations within 10 days from receipt of document Ordinance or resolution is beyond the power conferred upon the Sanggunian concerned 30 days after receipt of copies. be signed by the punong barangay Review by Sangguniang Panglungsod or Bayan o Within 10 days after its enactment. or modification Effectivity: suspended until such time as the revision called for is effected o Summary of Review of Ordinances Component City or Municipality Ordinances and Resolutions Sangguniang panlalawigan 3 days after approval of ordinance or resolution approving the local development plans and public investment programs formulated by the local development councils Barangay Ordinances Sangguniang panglungsod or sangguniang bayan 10 days after enactment of ALL ordinances Reviewed by Furnish copies of ordinances or resolution within 280 LOCAL GOVERNMENT LAW Period to documents examine Ground to invalidate ordinance or resolution 30 days after receipt of copies.POLITICAL LAW REVIEWER Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs  majority of all its members. Within 30 days. the sangguniang barangay may adjust. return the same with its comments and recommendations to the sangguniang barangay for adjustment. after which ordinance is presumed valid if no action is taken Ordinance is inconsistent with law and city or municipal ordinances In such case.

 Highly urbanized and independent componen