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I. GENERAL PRINCIPLES Definition of Political Law • Is the branch of public law which deals with the organization and operation of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. It embraces constitutional law, law of public officers, law on elections, and law of public corporations.
Background of the 1987 Constitution 1. Proclamation of the Freedom Constitution
a. Proclamation No. 1, February 25, 1986, announcing that she (Corazon Aquino) and VP Laurel were assuming power. b. Executive Order No.1, (Febrauary 28, 1986) c. Proclamation No.3, March 25, 1986, announced the promulgation of the Provisional (Freedom) Constitution, pending the drafting and ratification of a new Constitution. It adopted certain provisions in the 1973 Constitution, contained additional articles on the executive department, on government reorganization, and on existing laws. It also provided of the calling of a Constitutional Commission to be composed of 30-50 members to draft a new Constitution.
2. Adoption of the Constitution a. Proclamation No. 9, creating the Constitutional Commission of 50 members. b. Approval of the draft Constitution by the Constitutional Commission on October 15, 1986 c. Plebiscite held on February 2, 1987 d. Proclamation No. 58, proclaiming the e. Ratification of the Constitution. 3. Effectivity of the 1987 Constitution: February 2 In re: Puno
The government under Cory Aquino and the Freedom Constitution is a de jure government. It was established by authority of the legitimate sovereign, the people. It was a revolutionary government in defiance of the 1973 Constitution.
Estrada vs. Arroyo ISSUE NO. 1: Our leading case is Tanada v. Cuenco, where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 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, as amended." In 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 checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, 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. 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. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief 2
discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. (in short: Arroyo’s ascendancy is subject to judicial review, which comes to the next question, is her administration a legitimate one?) ISSUE NO. 2: The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer. • The petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. Former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power." There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it cannot be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. • "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery."
(Therefore, through his implied acts, notwithstanding section 12 of RA 3019, petitioner is deemed resigned.) ISSUE NO. 3 What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability. Through House Resolution 176 and 178 and Senate Resolution 82 and 83 which confirms PGMA’s assumption of office and confirming Guingona’s nomination as well as both houses of Congress started sending bills to be signed into law by respondent Arroyo as President is clear proof that Estrada’s claim for inability has been rejected by Congress; The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco, we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr, there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, 4
he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. They involve plunder. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. In fine. which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. By no stretch of the imagination can these crimes. would put a perpetual bar against his prosecution. among others. President Nixon himself was named an unindicted co-conspirator. The plea if granted. To be sure. The claim was 5 . even if the petitioner can prove that he did not resign. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President. that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. Nixon. US President Richard Nixon. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses. especially plunder which carries the death penalty. president made by a co-equal branch of government cannot be reviewed by this Court.which cannot be decided by this Court without transgressing the principle of separation of powers. was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. the proper criminal and civil cases may already be filed against him. ISSUE NO. In the 1974 case of US v. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. 4 Since. be covered by the alleged mantle of immunity of a non-sitting president. still. the Impeachment Court is now functus officio. bribery and graft and corruption. We now come to the scope of immunity that can be claimed by petitioner as a nonsitting President. The cases filed against petitioner Estrada are criminal in character. President Nixon moved to quash the subpoena on the ground. a sitting President.
the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. xxx xxx xxx. In People vs. there must be allegation and proof that the judges have been unduly influenced. et al. In Martelino. it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. Fitzgerald. not 6 . It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality." Recently. Teehankee. appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation.. The mere fact that the trial of appellant was given a day-to-day. court of Appeals.. we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity. later reiterated in the case of Larranaga vs. For another. gavel-togavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality.. ISSUE NO. 5 Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. Alejandro. the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." In the 1982 case of Nixon v. our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. For one. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. Jr. it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartially. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process.rejected by the US Supreme Court. we laid down the doctrine that: Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. et al. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. v. These news form part of our everyday menu of the facts and fictions of life. et al. At best. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.
The Armed Forces of the Philippines is the protector of the people and the State. promote the common good. ART. PRINCIPLES AND POLICIES OF THE PHILIPPINE GOVERNMENT THE PREAMBLE We. cooperation. II: PRINCIPLES AND STATE POLICIES PRINCIPLES Section 1. The Philippines is a democratic and republican State. by the barrage of publicity. and establish a Government that shall embody our ideals and aspirations. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity. adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace. do ordain and promulgate this Constitution. and peace. Sovereignty resides in the people and all government authority emanates from them. to render personal. in the fulfillment thereof.' II. Civilian authority is. The prime duty of the Government is to serve and protect the people. military or civil service. the blessings of independence and democracy under the rule of law and a regime of truth. the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. Appellant has the burden to prove this actual bias and he has not discharged the burden. and property. equality. conserve and develop our patrimony. all citizens may be required. liberty. and amity with all nations. equality. Section 5. justice. imploring the aid of Almighty God. the sovereign Filipino people. The Government may call upon the people to defend the State and. In the case at a bar. supreme over the military. Section 3. and promotion of the general welfare are 7 Section 2. love. which is incapable of change even by evidence presented during the trial. and secure to ourselves and our posterity. under conditions provided by law.simply that they might be. at all times. freedom. The Philippines renounces war as an instrument of national policy. in order to build a just and humane society. . the protection of life. Section 4. justice. freedom. The maintenance of peace and order. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
national interest. The separation of Church and State shall be inviolable. Section 6. promote full employment. In its relations with other states. and encourage their involvement in public and civic affairs. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. Section 10. Section 9. Section 13. and an improved quality of life for all. The State values the dignity of every human person and guarantees full respect for human rights. a rising standard of living. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services. The State shall promote social justice in all phases of national development. Section 12. It shall equally protect the life of the mother and the life of the unborn from conception. the paramount consideration shall be national sovereignty. and the right to self-determination. Section 11. The State shall pursue an independent foreign policy. spiritual. 8 . The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. It shall inculcate in the youth patriotism and nationalism. Section 14. STATE POLICIES Section 7.essential for the enjoyment by all the people of the blessings of democracy. The Philippines. intellectual. The State recognizes the role of women in nation-building. Section 8. moral. adopts and pursues a policy of freedom from nuclear weapons in its territory. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. consistent with the national interest. territorial integrity. and social well-being. and shall ensure the fundamental equality before the law of women and men.
Section 24. Section 17. Section 18. Section 23. accelerate social progress. Section 22. communitybased. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Section 19. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. The State shall ensure the autonomy of local governments. or sectoral organizations that promote the welfare of the nation. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. arts. The State recognizes the vital role of communication and information in nation-building.Section 15. and promote total human liberation and development. The State recognizes the indispensable role of the private sector. The State shall encourage non-governmental. Section 25. Section 27. science and technology. and sports to foster patriotism and nationalism. Section 26. encourages private enterprise. The State shall promote comprehensive rural development and agrarian reform. The State shall give priority to education. culture. Section 21. 9 . Section 16. and provides incentives to needed investments. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Section 20. The State shall protect and promote the right to health of the people and instill health consciousness among them. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.
independent of external control. and possessing a government to which a great body of inhabitants render habitual obedience. permanently occupying a definite portion of territory. fluvial and aerial including its territorial sea. and connecting the islands of the archipelago. the seabed. and all other territories over which the Philippines has sovereignty or jurisdiction. The waters around. (ART. the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. and other submarine areas. • with all the islands and waters embraced therein. • People • Refers to the sovereign Filipino people of the Philippines. The Concept of State • A State is a community of persons. I) • Art. The Preamble of the 1987 Constitution expressly states that “ We. 2 of the Revised Penal Code makes certain crimes punishable even if committed outside the Philippines or Art. 15 of the Civil Code which provides that Laws relating to family rights and duties or to the status. of its terrestrial. more or less numerous. • • • consisting domains. regardless of their breadth and dimensions. Subject to reasonable conditions prescribed by law. condition. between. and legal capacity of persons are binding upon the citizens of the Philippines. form part of the internal waters of the Philippines. the subsoil. Campos Rueda) The Elements of a State • Territory • The national territory comprises the Philippine archipelago. (CIR vs. even though living abroad.Section 28. the insular shelves. the sovereign 10 .
they are not the sovereign Filipino people. and the naturalized citizen. where they meet the required qualifications. of Filipino mothers. A person who at the time of his birth is a citizen of a particular country. Those who are naturalized in accordance with law. to have renounced it. Section 5. While foreigners living in the country are entitled to protection under the laws and required to obey the laws. Those whose fathers or mothers are citizens of the Philippines. Section 2. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Citizenship (Art. The following are citizens of the Philippines: 1. Section 3. and 4. entitled to vote and be voted to public positions and be appointed to public offices. Those who elect Philippine citizenship in accordance with paragraph (3). Those who are citizens of the Philippines at the time of the adoption of this Constitution.” They are the Citizens of the country because they alone enjoy civil and political rights. who elect Philippine citizenship upon reaching the age of majority. Philippine citizenship may be lost or reacquired in the manner provided Citizens of the Philippines who marry aliens shall retain their citizenship. 11 . 1987 Constitution) Section 1. they are deemed. 4. Those born before January 17. and (2) by naturalization. 3. is a natural-born citizen thereof.Filipino people” “do ordain and promulgate this Constitution. unless by their act or omission. 1973. by law. Bengzon vs Cruz There are two ways of acquiring citizenship: (1) by birth. Section 1 hereof shall be deemed natural-born citizens. 2. Section 4. under the law. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.
In Angat v. It bears stressing that the act of repatriation allows him to recover." On the other hand. Republic. Parenthetically.As defined in the same Constitution. otherwise known as the Revised Naturalization Law. we held: xxx. under these statutes [referring to RA Nos. (2) has dedicated himself to a lawful calling or profession. and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. the applicant has (1) not left the Philippines. natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. [Italics in the original. 530. repatriation results in the recovery of the original nationality. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period. which repealed the former Naturalization Law (Act No. however. he will be restored to his former status as a natural-born Filipino. a status which he acquired at birth as the son of a Filipino father. respondent Cruz is deemed to have recovered his original status as a natural-born citizen. • Government 12 . Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem. an applicant has to prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino citizen. 473. To be naturalized. his original status before he lost his Philippine citizenship. On the other hand. 2927). generally under Commonwealth Act No. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. and by Republic Act No. or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. Pangasinan in accordance with the aforecited provision. naturalized citizens are those who have become Filipino citizens through naturalization. or return to.] Moreover. 965 and 2630]. if he was originally a natural-born citizen before he lost his Philippine citizenship. (3) has not been convicted of any offense or violation of Government promulgated rules. the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court. now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. The present Constitution.
Republic. but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Thus. the general law waiving its immunity from suit "upon any money claim involving liability arising from contract express or implied. since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments. KAWAWANAKOA vs POLYBANK A sovereign is exempt from suit. • Sovereignty Sovereign means the supreme uncontrollable power. The State may not be sued without its consent. Immunity from suit Art. the absolute right to govern. it may limit claimant's action "only up to the completion of proceedings anterior to the stage of execution" and that the power of the Courts ends when the judgment is rendered. 7 thereof 13 . the pauper-claimant therein must look specifically to the Compensation Guarantee Fund provided by the Workmen's Compensation Act for the corresponding disbursement in satisfaction of his claim. or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. not because of any formal conception or obsolete theory. while the State has given its consent to be sued in compensation cases. as appropriated by law. XVI. Section 3. since the State in Act 3083.Government is defined as 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. Jus Imperii vs Jus Gestionis PUBLIC HIGHWAYS vs SAN DIEGO The universal rule that where the State gives its consent to be sued by private parties either by general or special law." imposed the limitation in Sec. the power to make laws and enforce them by all the means of coercion it cares to employ. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects. as pointed out by the Court in Belleng vs. is based on obvious considerations of public policy. the jures summi imperii. Government is the aggregate of authorities which rule a society. Disbursements of Public funds must be covered by the corresponding appropriation as required by law. it is the supreme will of the State.
OPOSA vs FACTORAN Since timber licenses are not contracts. granting further that a law has actually been passed mandating cancellations or modifications. – "There are two conflicting concepts of sovereign immunity. the obligation of contracts shall be passed. even if it is to be assumed that the same are contracts. ACTS JURE IMPERII AND JURE GESTIONIS. this Court stated: The freedom of contract. The logical question is whether the foreign state is engaged in the activity in the regular course of business." The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach. which reads: “Sec. each widely held and firmly established. According to the classical or absolute theory. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health. the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology. promoting their health and enhancing the general welfare. safety and 14 . This is because by its very nature and purpose. moral. then it is an act jure imperii. the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. No law impairing. the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. a sovereign cannot. the claimant would have to prosecute his money claim against the State under Commonwealth Act 327. Hence. under our system of government. According to the newer or restrictive theory. x x x Certainly. 10." and that otherwise. In Abe vs. is not meant to be absolute. the same cannot still be stigmatized as a violation of the non-impairment clause.” cannot be invoked. Foster Wheeler Corp. but not with regard to private act or acts jure gestionis. If the act is in pursuit of a sovereign activity. Nevertheless. especially when it is not undertaken for gain or profit. the particular act or transaction must then be tested by its nature. or an incident thereof. the non-impairment clause cannot as yet be invoked. be made a respondent in the Courts of another sovereign. If the foreign state is not engaged regularly in a business or trade. without its consent. DISTINGUISHED. the non-impairment clause.that "no execution shall issue upon any judgment rendered by any Court against the Government of the (Philippines) under the provisions of this Act. In the second place.
privileges. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. The reason for this is emphatically set forth in Nebia vs. in the interest of public health. A provision which lays down a general principle. certain areas of investments. the non-impairment clause must yield to the police power of the state. Equally fundamental with the private right is that of the public to regulate it in the common interest. are self-executing. In other words. to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. In the grant of rights. particularly Article XII Section 10. New York. when the national interest dictates. the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State. vs. moral and general welfare. But neither property rights nor contract rights are absolute. In short. for government cannot exist if the citizen may at will use his property to the detriment of his fellows. The general rule is that both shall be free of governmental interference. Sec. Auditor General. XII. and concessions covering the national economy and patrimony. The Congress shall. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. But a provision which is complete in itself and becomes operative without the 15 . the State shall give preference to qualified Filipinos. safety. • Whether the 51% share is part of the national patrimony. reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens.welfare. is usually not self-executing. 10: Section 10. quoted in Philippine American Life Insurance Co. or such higher percentage as Congress may prescribe. MANILA PRINCE vs GSIS • Whether the provisions of the Constitution. Art. upon recommendation of the economic and planning agency. such as those found in Article II of the 1987 Constitution. or exercise his freedom of contract to work them harm.
The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. the term patrimony pertains to heritage. and the function of constitutional conventions has evolved into one more like that of a legislative body. the presumption now is that all provisions of the constitution are selfexecuting. Art. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not. the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself. modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments. When the Constitution speaks of national patrimony. positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. Hence. As against constitutions of the past. is self-executing. provide a convenient remedy for the protection of the rights secured or the determination thereof. and concessions. it has since then become the venue of various significant events which have shaped Philippine history. unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate. In fine. the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. Section 10. but any legislation must be in harmony with the constitution. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject. and there is no language indicating that the subject is referred to the legislature for action. In the granting of economic rights. In the present case. so that they can be determined by an examination and construction of its terms. further the exercise of constitutional right and make it more available. further the operation of such a provision. a concourse for the elite. when a choice has 16 . privileges. by itself. From its very words the provision does not require any legislation to put it in operation. as the Constitution could have very well used the term natural resources. second paragraph. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing. In self-executing constitutional provisions. it refers not only to the natural resources of the Philippines. It also refers to Filipino’s intelligence in arts. In its plain and ordinary meaning. or place reasonable safeguards around the exercise of the right. especially on matters involving national patrimony. While it was restrictively an American hotel when it first opened in 1912. sciences and letters.aid of supplementary or enabling legislation. or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected. XII of the 1987 Constitution is a mandatory. a living testimonial of Philippine heritage. but also to the cultural heritage of the Filipinos. fully enforceable. Manila Hotel has become a landmark. prescribe a practice to be used for its enforcement.
The Supreme Court gave due 17 the Resolution No. to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose. and Sections 10 and 12. The Supreme Court directed the GSIS. services. after deliberation and voting. On December 14. While the constitution mandates a bias in favor of Filipino goods. Resolution No. gave its consent to the WTO Agreement thereby making it “a part of the law of the land”. 97 is not unconstitutional. 1994. It contemplates neither “economic seclusion” nor “mendicancy in the international community. it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino interests only against foreign competition and trade practices that are unfair. the Committee on Privatization and the Office of the Government Corporate Counsel to cease and desist from selling 51% of the Share of the MHC to Renong Berhad. the Constitution did not intend to pursue an isolationalist policy. Article II. at the same time. providing for the development of a self reliant and independent national economy. the constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out the entry of foreign investments. Issue Whether or not unconstitutional Ruling The Supreme Court ruled the Resolution No. 97 ratifying the WTO Agreement is .to be made between a “qualified foreigner” and a “qualified Filipino. and to accept the matching bid of Manila Prince Hotel at P44 per shere and thereafter execute the necessary agreements and document to effect the sale. Article XII. This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19. 97 was adopted by the Philippine Senate to ratify the WTO Agreement. goods and services. TANADA vs ANGARA Facts On April 15. In other words. the Manila Hotel Corporation. providing for the “Filipino first” policy.” The Senate. the Philippine Government represented by its Secretary of the Department of Trade and Industry signed the Final Act binding the Philippine Government to submit to its respective competent authorities the WTO (World Trade Organization) Agreements to seek approval for such.” the latter shall be chosen over the former. labor and enterprises. 1994. Furthermore.
6) • Section 1. shall be elected through a party-list system of registered national. 3. and such other sectors as may be provided by law. contiguous. The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. and those who. one-half of the seats allocated to party-list representatives shall be filled. the ratification of the WTO Agreement limits or restricts the absoluteness of sovereignty. indigenous cultural communities. As a result. women. as far as practicable. • Section 5 1. For three consecutive terms after the ratification of this Constitution. Each legislative district shall comprise. urban poor. except the religious sector. except to the extent reserved to the people by the provision on initiative and referendum. regional. and the Metropolitan Manila area in accordance with the number of their respective inhabitants.respect to an equal department in government. A treaty engagement is not a mere obligation but creates a legally binding obligation on the parties. and sectoral parties or organizations. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. as provided by law. youth. and on the basis of a uniform and progressive ratio. unless otherwise fixed by law. cities. by selection or election from the labor. who shall be elected from legislative districts apportioned among the provinces. The House of Representatives shall be composed of not more than two hundred and fifty members. compact. It presumes its actions as regular and done in good faith unless there is convincing proof and persuasive agreements to the contrary. and adjacent territory. Each city with a population of at least two hundred fifty thousand. 18 . III. THE BRANCHES OF GOVERNMENT The Congress (Art. 2. peasant. or each province. as provided by law. shall have at least one representative. A state which has contracted valid international obligations is bound to make its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
7941 allow political parties to participate in the party-list elections. where public interest is involved." Under the Constitution and RA 7941. peasant. regional. like the impleaded political parties. provides as follows: (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list.or any organization or group for that matter -may do so. but more so by enabling them to become veritable lawmakers themselves. as provided by law.) The intent of the Constitution is clear: to give genuine power to the people. that any political party -. notwithstanding the presence of other remedies. and sectoral parties or organizations. submits that the Constitution and RA No. the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. It argues that the party-list system is." That political parties may participate in the party-list elections does not mean. the Office of the Solicitor General." On the other hand. however. Section 5. youth. for it potentially involves the composition of 20 percent of the House of Representatives. indigenous cultural communities. Consistent with this intent." (Emphasis supplied. as laid down in the Constitution and RA 7941. open to all "registered national. except the religious sector. Within three years following the return of every census." Indeed." For its part. Petitioner Bayan Muna objects to the participation of "major political parties. Section 5. in fact. For three consecutive terms after the ratification of this Constitution. and in case of urgency.4. Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties in the party-list system is the most objectionable portion of the questioned Resolution. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system. the policy of the implementing law. Article VI of the Constitution provides that members of the House of Representatives may "be elected through a party-list system of registered national. private respondents cannot be disqualified from the party-list elections. we repeat. urban poor. and such other sectors as may be provided by law. by selection or election from the labor. "where the issue raised is one purely of law. is 19 . the instant case is indubitably imbued with public interest and with extreme urgency. merely on the ground that they are political parties. Article VI of the Constitution. one-half of the seats allocated to party-list representatives shall be filled. regional and sectoral parties or organizations. BAGONG BAYANI vs COMELEC It has been held that certiorari is available. In its Petition. not only by giving more law to those who have less in life. women.
and a resident thereof for a period of not less than one year immediately preceding the day of the election. able to read and write. is at least twenty-five years of age. resident of the Philippines for not less than one year immediately preceding the election day. it must be applied according to its express terms. Obviously. organizations and parties. The Supreme Court ruled likewise that “not only must the candidate party or organization represent marginalized and underrepresented sectors. x x x. 4. and. the "open house" is for the benefit of outsiders only. 3. for purposes of election laws are synonymous…) 20 . The import of the open party-list system may be more vividly understood when compared to a student dormitory "open house. a registered voter in the district in which he shall be elected. on the day of the election. In the same vein. not the dormers themselves who can enter the dormitory even without such special privilege.likewise clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors. “a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election. 2.” Sec. except the partylist representatives. able to read and write.” • Section 6 No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and. the open party-list system is only for the "outsiders" who cannot get elected through regular elections otherwise. registered voter. as follows: 1. twenty-five years of age." which by its nature allows outsiders to enter the facilities. MARCOS vs COMELEC (residence and domicile. 9 of RA 7941 lists the qualifications of nominees. natural-born citizen." Where the language of the law is clear. it is not for the non-marginalized or overrepresented who already fill the ranks of Congress. and 6. to become members of the House of Representatives. 5. so must its nominees.
is synonymous with domicile which imports not only intention to reside in a fixed place. In his petition. this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. the Court held that "the term residence. that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. It stands to reason therefore. Guray. domicile can exist without actually living in the place. filed a "Petition for Cancellation and Disqualification" with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. 1995. . Residence is acquired by living in place. the incumbent Representative of the First District of Leyte and a candidate for the same position. even if residence is also established in some other place. Private respondent Cirilo Roy Montejo. coupled with conduct 21 . As these concepts have evolved in our election law. such as a country residence and a city residence. what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. The important thing for domicile is that. Residence in the civil law is a material fact.The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter." Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 8. referring to the physical presence of a person in a place. A person can have two or more residences. there be an intention to stay there permanently. on the other hand. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification. but also personal presence in that place. . Held: So settled is the concept (of domicile) in our election law that in these and other election law cases. from an elective office to serve that community. private respondent contended that Mrs. once residence has been established in one place. In Nuval vs.
indicative of such intention." Larena vs. Teves reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as domicile. AQUINO VS COMELEC Aquino was a resident of Tarlac for 52 years prior to his winning the Congressional seat in Makati, to which he only resided for at least 10 months while renting a condominium; Held: Clearly, the place "where a party actually or constructively has his permanent home," where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the elective position of Representative of Makati City's Second District on the basis of respondent commission's finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. 22
A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. • Section 21 The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected. BENGZON VS BLUE RIBBON Petition for prohibition to review the decision of the Senate Blue Ribbon Committee. Granted. FACTS: On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on Good Governance (PCGG), filed a complaint with Sandiganbayan against the petitioners of this case. PCGG allege, among others, that: defendants (petitioners therein) Benjamin “Kokoy” Romualdez and Juliette. Gomez Romualdez, alleged “cronies” of former President Marcos and First Lady Imelda Romualdez Marcos, engaged in schemes and stratagems to unjustly enrich themselves at the expense of the Filipino people. Among these stratagems are (1) obtained control of some big business enterprises such as MERALCO, Pilipinas Shell, and PCI Bank, (2) manipulated the formation of Erectors Holding Inc, to appear viable and borrow more capital, reaching a total of more that P2 billion, (3) collaborated with lawyers (petitioners therein) of the Bengzon Law Offices in concealing funds and properties, in maneuvering the purported sale of interests in certain corporations, in misusing the Meralco Pension Fund worth P25 million, and in cleverly hiding behind the veil of corporate entity. On 13 September 1988, Sen. Juan Ponce Enrile delivered a speech before the Senate on the alleged take-over of SolOil Incorporated by Ricardo Lopa (who died during the pendency of this case) and called upon the senate to look into possible violation of the Anti Graft and Corrupt Practices Act or RA 3019. The Senate Committee on Accountability of Public Officers or Blue Ribbon Committee (SBRC) started its investigation through a hearing on 23 May 1989, but Lopa and Bengzon declined to testify. The SBRC rejected petitioner Bengzon’s plea and voted to pursue its investigation. Petitioner claims that the SBRC, in requiring their attendance and testimony, acted in excess of its jurisdiction and legislative purpose. Hence this petition. ISSUES: 23
1. WON the court has jurisdiction over this case. 2. WON the SBRC’s inquiry has a valid legislative purpose. 3. WON the sale or disposition of the Romualdez corporations is a purely private transaction which is beyond the power of the SBRC to inquire into. 4. WON the inquiry violates the petitioners’ right to due process. HELD: 1. YES. As the court held in Angara vs. Electoral Commission, the separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution provided for an elaborate system of checks and balances to secure coordination in the workings of the departments of the government, and it is the judiciary that was vested of the powers to determine the scope, nature and extent of such powers. 2. NO. As held in Jean L. Arnault vs. Leon Nazareno, et al., the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power vested by the Constitution, such as to legislate or to expel a member. The speech of Sen. Enrile contained no suggestion on contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA 3019. The purpose of the inquiry to be conducted by respondent SBRC was to find out WON the relatives of President Aquino, particularly Ricardo Lopa, had violated the law in connection with the alleged sale of the 36/39 corporations of Kokoy Romualdez to the Lopa Group. There appears, therefore, no intended legislation involved. The inquiry also is not conducted pursuant to Senate Resolution No. 2123 (SR 2123), as the committee alleges. The inquiry under SR 2123 is to look into the charges against PCGG filed by stockholders of Oriental Petroleum in connection with the implementation of Section 26 Article XVIII of the Constitution. 3. YES. Mr. Lopa and the petitioners are not connected with the government and did their acts as private citizens, hence such a case of alleged graft and corruption is within the jurisdiction, not of the SBRC, but of the courts. Sandiganbayan already took jurisdiction of this issue before the SBRC did. The inquiry of the respondent committee into the same justiciable controversy already before the Sandiganbayan would be an encroachment of into the exclusive domain of judicial jurisdiction. 24
In Watkins vs United States: The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social,economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad as it is, this power of inquiry, is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of congress. This was freely conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted soly for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. 4. NO. The Constitution provides the right of an accused of a crime to remain silent; this extends also to respondents in administrative investigation but only if they partake of the nature of a criminal proceeding. This is not so in this case. BUT since the court already held that the inquiry is not in aid of legislation, the petitioners therein cannot be compelled to testify. FISCAL PROVISIONS • Section 24
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. • Section 28 1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 2. The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. 3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, 25
charitable. 26 . Sec. H. VI. 24 of the Constitution will not bear analysis. VI. bills authorizing an increase of the public debt. Secs. 11197 and S. No. 24 and 26(2) of the Constitution Held: The argument that RA 7716 did not originate exclusively in the House of Representatives as required by Art. No. taxation. There are various suits challenging the constitutionality of RA 7716 on various grounds. Issue: Whether or not RA 7716 violates Art. or educational purposes shall be exempt from 4. TOLENTINO VS SEC. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. VI. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House. barter or exchange of goods and properties as well as on the sale or exchange of services. One contention is that RA 7716 did not originate exclusively in the House of Representatives as required by Art. private bills and bills of local application must come from the House of Representatives on the theory that. it is not the law but the revenue bill which is required by the Constitution to originate exclusively in the House of Representatives. 1630 did not pass 3 readings as required by the Constitution. Sec. so long as action by the Senate as a body is withheld pending receipt of the House bill. because it is in fact the result of the consolidation of 2 distinct bills. what the Constitution simply means is that the initiative for filing revenue. There is also a contention that S. Indeed. To begin with. 1630. elected as they are from the districts. RA 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. 24 of the Constitution. No. OF FINANCE Facts: The value-added tax (VAT) is levied on the sale. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be 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. tariff or tax bills. the members of the House can be expected to be more sensitive to the local needs and problems.
1630 did not pass 3 readings on separate days as required by the Constitution because the second and third readings were done on the same day. Original – possessed by the sovereign people b. and the yeas and nays entered in the Journal. Sec. • Section 26 1. Derivative – that which is delegated by the sovereign people to the legislative bodies and is subordinate to the original power of the people. except to the extent reserved to the people by the provision on initiative and referendum. vested in Congress • Power according to its application: 1. Ordinary – power to pass ordinary laws 27 . Constituent – power to amend the Constitution 2. No. POWERS: Legislative • Republican Systems: a. 1: The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. No. No bill passed by either House shall become a law unless it has passed three readings on separate days. Upon the last reading of a bill. Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Two Houses Sec. 2. 1: One Congress. and printed copies thereof in its final form have been distributed to its Members three days before its passage. except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. 1630 as urgent. That upon the certification of a bill by the President the requirement of 3 readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice.The next argument of the petitioners was that S. and the vote thereon shall be taken immediately thereafter. no amendment thereto shall be allowed. But this was because the President had certified S. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days.
including GOCCs or its subsidiary. and. unless a different date is fixed by law. legislative power. The people. 12: Full Disclosure Sec. 13 and 14: Disqualifications • • • • Cannot hold any other office or employment in the Government. Sec. or in any franchise or special privilege granted by the Government. Discipline of Members • DISCIPLINE: Expulsion – disorderly behavior Suspension – should not be for more than 60 days NOTA BENE: The 60-day suspension imposed by Congress to discipline its member does not include the preventive suspension which may be imposed by the Sandiganbayan for prosecution of offenses. can exercise constituent power. or any subdivision. or any subdivision. 15: Sessions • • REGULAR – once every year on the fourth Monday of July. or instrumentality thereof. through amendatory process. 28 . agency or instrumentality thereof. through initiative and referendum. and shall continue to be in session for such number of days as it may determine until 30 days before the next regular session SPECIAL – anytime when called by the President Sec.Non-legislative NOTA BENE: Powers of Congress may be inherent (like the determination of its rules of proceedings and discipline of its members) or implied (like the power to punish for contempt in legislative investigations). agency. during term without forfeiting his seat (incompatible office) Cannot be appointed to an office created or the emolument of which was increased during his term (prohibited office) Cannot personally appear as counsel before any court of justice or before the Electoral Tribunals. or quasi-judicial and other administrative bodies Cannot be directly or indirectly interested financially in any contract with. Rules of Proceedings. including GOCCs or their subsidiaries. Quorom. during term Cannot intervene in any matter before any government office for his pecuniary benefit or where he may be called upon to act on account of his office • Sec. 16: Officers.
the proclamation of the candidate cannot divest Comelec en banc of its jurisdiction to review its validity. 150605. the action was only taken after the proclamation of the winning candidate. the proper forum should have been the SET. and not the Comelec. Sept. Ministerial duty of the House to administer oath of office Codilla vs. 10. in the Barbers case. On the other hand. House has no power to interfere. However. G. Appeal. since the act of proclaiming the winner made the latter a member of the Senate and thus within the sole jurisdiction of the SET. 29 . the Supreme Court may exercise its power of judicial review if the circumstances warrant. HRET members are entitled to security of tenure. 26. no. 17: Electoral Tribunals COMPOSITION: (9 members) 3 SC Justices – senior Justice is the Chairman 6 Congressmen (Senators or Representatives) Based on proportional representation from the political parties or party-lists Instituted within 30 days after organization of Senate and House with election of President and Speaker FUNCTIONS: Exclusive power to determine the qualifications of members of Congress Sole jurisdiction to judge election contest between a member and the defeated candidate HRET has sole and exclusive jurisdiction to judge election contests concerning its members. de Venecia.Courts have no authority to interfere in the manner of choosing officers in the Senate. 1991 If the validity of the proclamation is the core issue of the disqualification case. the action was still pending in the Comelec when the proclamation was made and the main issue raised was the legality of the proclamation. In Codilla.R. G. does not lie in election contests decided by the SET/HRET. Thus. Comelec could not be divested of its jurisdiction to see the case through even when the proclaimed winner already assumed office. Thus. No. Pineda.R. Dec. 2002 NOTA BENE: Distinguish between Codilla and Barbers. such prerogative belongs to the Senate Sec. as a general rule. regardless of any change in their political affiliations Bondoc vs. 97710.
a noncandidate may question his qualification. only a losing candidate (2nd or 3rd placer) can file an election contest. the appointment shall only last until the next adjournment of Congress and official may be reappointed to the same position Ad interim appointments that the President may make during the recess of the Congress are those made during a period of time from the adjournment of the Congress to the opening session. The proper party is the one who stands to benefit or lose as a result of the decision.Q: Who is the proper party to put up an election contest against a winning candidate? A: Follow the rule on real party-in-interest. Remedy: Petition for Cancellation of Candidacy before election. can return to his old post but cannot be reappointed. at the request of 1/5 of the members present The yeas and nays upon repassing a bill over the President’s veto The President’s objection to a bill he had vetoed Sec. if revoked by CA. or Quo Warrant within 10 days from proclamation Sampayan vs. 18: Commission on Appointments COMPOSITION: President of Senate as ex officio Chairman 12 Senators 12 Reps Act on all appointments within 30 session days of Congress from their submission Majority vote of all members KINDS OF APPOINTMENT: 1. Q: What if the winning candidate is a lone candidate. Daza. if bypassed by CA. regular or special. the ad interim appointment remains effective until such 30 . if revoked by CA. of the same Congress. cannot return to his old post or be reappointed. Thus. 213 SCRA 807 Enrolled Bill and Journal MATTERS REQUIRED TO BE ENTERED IN THE JOURNAL: The yeas and nays on the third and final reading of a bill The yeas and nays on any question. In which case. if bypassed. Ad Interim – permanent and effective until revoked or disapproved by CA. Who can question his qualification? Who has jurisdiction? A: It is submitted that in case of a winning candidate who is a lone candidate. Thus. Regular – requires concurrence of CA. reappointment is allowed 2. jurisdiction belongs with the electoral tribunal of the House concerned in quo warranto proceedings.
The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. 31 .An ad interim appointment can be terminated for two causes specified in the Constitution. signifying that it can no longer be withdrawn or revoked by the President. no need for concurrence of CA and shall last only for a period not exceeding one year Legislative Inquiries/Investigations KINDS: In Aid of Legislation (Sec. 3. Temporary – appointments in acting capacity. Congress is empowered to issue subpoenas and may rightly cite anyone called before it in contempt should they refuse to appear. as a rule. right against self-incrimination) Question Hour – Congress may summon heads of executive departments to shed light on certain matters in aid of legislation or the heads may appear before Congress upon their own initiative with approval of the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.disapproval or next adjournment. via two-thirds vote of all its members in a joint session. either in the Congressional Chamber or the Executive Office Q: Can a member of the Cabinet refuse to appear before Congress? A: A distinction must be made between the question hour and inquiries in aid of legislation. Sec. All that the Congress can do. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment.g. 22) In Aid of Legislation CONDITIONS: Must be in aid of legislation – either in making a new legislation or improving a defective one The rules and regulations providing for its conduct must be duly published The rights of individuals must be respected (e. include compulsory processes such that a Cabinet member may validly refuse to appear before Congress. However. is to declare its existence. The power to declare war rests with the President. The only exemption to this power is if the President or the Executive Secretary by the President’s authority invokes executive privilege. The former is merely permissive and does not. 21) Question Hour (Sec. 23: Power to Declare Existence of War and Delegate Emergency Powers Q: Can Congress declare war? A: No. if the inquiry is in aid of legislation.
It ceases with the passing of another resolution from Congress without need for President’s approval. representative of the people. Requisites to Declare Existence of War (See David vs. denomination. Q: Does Sec. They are also more numerous. Sec. Transfer of Funds. therefore. or any priest. benefit or support of any sect. EXCEPT: when such priest. If no resolution is passed. hence. or government orphanage or leprosarium 32 . they are more familiar with the needs of their constituents. church. However. because the Senate can still file ahead of the House Reps any of the bills mentioned above. minister or other religious teacher. the power will automatically cease upon the next adjournment of Congress. etc. or dignitary as such. or system of religion. sectarian institution.Q: How does Congress delegate emergency powers to the President? A: Through a law passed for purpose of carrying out a declared national policy. 24: Bills Originating from the House of Reps MUST ORIGINATE FROM THE HOUSE OF REPS: Appropriation. Arroyo) Sec. or to any penal institution. 24 violate the co-equality between the House Reps and Senate? A: No. preacher. revenue and tariff bills (ART) Bills authorizing the increase of public debt Bills of local application Private bills Q: Why should these bills originate from the House of Reps? A: The House Reps are elected by district. Discretionary Funds Appropriation Bill – a statue the primary and specific purpose of which is to authorize the release of funds from the treasury 2 KINDS OF APPROPRIATION BILLS: General Appropriation Special Appropriation SPECIFIC REQUIREMENTS OF GENERAL APPROPRIATION BILL: Must originate from the House of Reps which has the power of the purse Must be based on a budget prepared by the President The particular provision must relate to a particular item in the said bill Must not be for the use. is assigned to the armed forces. they must withhold any action on the bill until it has received the version filed by the House of Reps. 25: ART Bills.
wherein a special appropriations measure is done even though the funds are not available. because the main purpose of that law is not the disbursement of funds but the creation of an office. levied by the State by virtue of its sovereignty. But a special appropriation bill may be filed even if there is no budget yet so long as there is an accompanying revenue proposal on how to raise the funds. for the support of government and for public needs INHERENT CONSTITUTIONAL LIMITATIONS OF TAXATION: Taxes are for public purposes Non-delegation of taxing power Territoriality or situs of taxation Tax exemptions as provided in the Constitution with concurrence of majority of Congress International comity Taxes should not be oppressive Due process must be observed Adheres to the bill of rights Non-infringement of religious freedom Non-impairment of contracts 33 . SPECIFIC REQUIREMENTS OF SPECIAL APPROPRIATION BILL: Must be for a specific purpose Must have a certification from the National Treasurer that the funds are available or if there is an accompanying revenue proposal as to how to raise the funds needed NOTA BENE: Certification from the National Treasurer is needed in order to avoid “sub rosa” appropriation.Q: Can a law creating an office and at the same time provide for disbursement of funds be considered an appropriation bill? A: No. Tax/Revenue – enforced proportional contributions from persons and property. but Congress can decrease the amount. Q: What happens if Congress fails to pass a general appropriations act? A: The previous act will be re-enacted to be used for the fiscal year until such time that a General Appropriations Bill shall be passed. Q: Can Congress increase the budget appropriated or recommended by the President? A: No.
Tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only (any balance shall be transferred to the general funds of the Government Tax laws must be uniform and equitable Progressive tax system Discretionary Funds CONDITIONS: Disbursed for a public purpose Duly supported by appropriate vouchers Subject to guidelines prescribed by law Transfer of Funds GR: transfer of funds is not allowed EXC: if the transfer is only within one department. or if there is surplus or savings and the transfer is for the purpose of augmenting any item in the appropriation law WHO MAY TRANSFER FUNDS: President Senate President Speaker of the House Chief Justice Heads of the Constitutional Commissions Sec. 26: Requirements as to Bills REQUIREMENTS: One subject per title – to prevent hodgepodge or logrolling legislation wherein many subjects are contained in a single bill in order to accommodate some subjects that cannot possibly pass through a single bill on its own and so that greater support for the bill is garnered Subject of the bill must be expressed in the title – to prevent surprise or fraud beause some members of Congress might not be able to read the whole bill. a way of informing the public of what the bill is all about Some bills must originate EXCLUSIVELY from the House of Reps 3 readings on 3 separate days and printing and distribution at least 3 days before final approval – EXCEPTION: when the President certifies the necessity of its immediate enactment to meet a public calamity or emergency NOTA BENE: Logrolling legislation is sought to be prevented in order to avoid a situation wherein what had been disapproved if taken on its own. may be approved because it was lumped in a favorable subject. 34 .
27: President’s Veto HOW PRESIDENT EXERCISES VETO POWER: General – for all bills except ART bills. Q: When does a law take effect? A: A law becomes effective 15 days after publication. Q: What is a pocket veto? A: The rule is that if the President. The phrase “unless otherwise provided”does not mean that publication may be dispensed with. the inappropriate provision shall be treated as an item and therefore can be vetoed Any provision blocking admnistrative action in implementing the law or requiring legislative approval for executive action Any provision that is unconstitutional Any provision that amends a certain law Q: When does a bill become a law? A: A bill becomes a law after the President’s approval.It is enough that the title must be able to state what the bill is all about. the 35 . as a general rule. Q: What is the effect of an invalid veto? A: It will be like there was no veto at all. This is not subject to judicial review. unless otherwise provided. which may be done on the same day. without necessarily enumerating the details of the bill. The exception is before the lapse of the 30-day period the Congress adjourns and the President does not act on the bill until the said period lapses. Since Congress cannot vote while in adjournment. Rather. In other words. Presidential certification dispenses with both the 3-day printing and the 3 readings on 3 separate days. distinctive appropriation or item. A bill may also become a law through the President’s inaction (given 30 days to either approve or veto a bill. the bill shall pass into law as if he had signed it. because there is no factual basis of grave abuse of discretion to speak of. or “putting a bill in one’s pocket” until Congress adjourns is thus called a pocket veto. after receiving a copy of the bill. Sec. in such a case. veto only certain provisions that are inappropriate INAPPROPRIATE PROVISIONS: Any provision that does not relate to a particular. But the bill must still go through 3 readings. it is implied approval). a pocket veto cannot be overridden. if no action. Ignoring legislation. thus effectively vetoing it. the phrase refers to the 15-day period. overrides the same by 2/3 votes of the members of each House. veto the whole bill (general rule) Line or Item – only for ART bills because each item of ART is a bill in itself in terms of importance. Another way for a bill to become a law is if Congress. neither indicating his approval nor veto. after the President’s veto. does not act on the same within 30 days.
voting will be done through yeas and nays Referral – after the 3rd reading. if approved by both Houses. 31) Procedural – curtail the manner of passing a law The President (Art. if any. Tuvera) The Legislative Mill Drafting – done by either a member of the House or the Bill Drafting Division.law itself may provide. if necessary. the amendments agreed upon are finalized. 7) • Section 1 The executive power shall be vested in the President of the Philippines. not just the title and docket number. in case of conflict. if required by law. the bill as amended is then printed and distributed to the members at least 3 days before the 3rd reading Third Reading – no more debates or discussions or questions. after which. the sponsor of the bill will make his Sponsorship Speech.g. members are only there to vote to approve or reject the bill and. First Reading – only the title and the number of the bill is read. the bill will be referred to the Bicameral Chamber.curtail the contents of a law • Non-delegation of legislative power • Prohibiting passage of irrepealable laws • Prohibiting passage of law that increases the appellate jurisdiction of SC without its advice and concurrence (Sec. the Bicameral Chamber will draft a compromise measure that. then comes the debate and interpellation. (See Tanada vs. followed by the Turno en Contra who will oppose the passage of the bill. the committee will study the bill and. after which. The draft goes to the Plenary Affairs Bureau of the Index and Bills Division where it will be docketed and assigned a bill number. 30) • Prohibiting law granting royalty or nobility (Sec. will be submitted to the President for him to veto or approve into law Limitations on Legislative Power Substantive . through its effectivity clause. with amendments. which is a committee composed of members of each House. depending on the title. House Bill No. e. the Senate President or the House Speaker will refer it to the right committee. or consolidated with other bills on the same subject Second Reading – involves a reading of the whole text of the bill. to explain why so. that it becomes effective after the lapse of a different period. this is where the bill either gets “killed” or recommended for approval. MARCOS VS MANGLAPUS I AND II 36 . the bill will be referred to the other chamber where it will also undergo 3 readings. conduct public hearings.
their right to return to the Philippines is guaranteed particularly by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. in the exercise of the powers granted by the constitution. They further assert that under international law. They contended that Pres. Petitioners assert that the right of the Marcoses to return in the Philippines is guaranteed by the Bill of Rights. the President (Aquino) may prohibit the Marcoses from returning to the Philippines. as a generally accepted principle of International Law and under our Constitution as part of the law of the land. public order. On the other hand. Held: "It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. The court held that President did not act arbitrarily or with grave abuse of discretion in determining that the return of the Former Pres. It would be therefore inappropriate to construe the limitations to the right to return to ones country in the same context as those pertaining to the liberty of abode and the right to travel. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. Essentially. Issue: Whether or not. etc. Nor the President impair their right to travel because no law has authorized her to do so.Facts: This case involves a petition of mandamus and prohibition asking the court to order the respondents Secretary of Foreign Affairs. To issue a travel documents to former Pres. Such rights may only be restricted by laws protecting the national security. However. Marcos and 37 . and the right to enter one's country as separate and distinct rights. a distinct right under international law. What the Declaration speaks of is the "right to freedom of movement and residence within the borders of each state". but it is a well-considered view that the right to return may be considered. the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state. including his own. which has been ratified by the Philippines. the Covenant guarantees the right to liberty of movement and freedom to choose his residence and the right to be free to leave any country. the right to leave the country. Aquino is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits prescribed by law. These are what the right to travel would normally connote. The Bill of rights treats only the liberty of abode and the right to travel. the right involved in this case at bar is the right to return to one's country. public health or morals or the separate rights of others. Thus. specifically Sections 1 and 6. right to enter one's country cannot be arbitrarily deprived. independent from although related to the right to travel.
Issues: 38 . The letter. Amendment No. have not been shown to have ceased. Motion for Reconsideration denied because of lack of merit. MOTION FOR RECONSIDERATION No. The threats to the government. She bound to comply w/ that duty and there is no proof that she acted arbitrarily ALMONTE VS VASQUEZ A subpoena duces tecum was issued by the Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. was addressed to the Secretary of Finance. Executive unlike Congress can exercise power from sources not enumerates so long as not forbidden by constitutional text (Myers vs. to which the return of the Marcoses has been viewed to provide a catalytic effect. purporting to have been written by an employee of the EIIB and a concerned citizen. This does not amount to dictatorship. including the Office of the Ombudsman. US). with copies furnished several government offices. the instant petition is hereby DISMISSED. The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines. Ratio: Petitioners failed to show any compelling reason to warrant reconsideration. Imelda Marcos also called President Aquino “illegal” claiming that it is Ferdinand Marcos who is the legal president. Enumerations are merely for specifying principal articles implied in the definition. President Aquino has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years after the Marcos regime. leaving the rest to flow from general grant that power. It is within Aquino’s power to protect & promote interest & welfare of the people. interpreted in conformity with other parts of the Constitution (Hamilton). The Marcoses were not allowed to return. 6 expressly granted Marcos power of legislation whereas 1987 Constitution granted Aquino with implied powers.his family poses a serious threat to national interest and welfare. Factual scenario during the time Court rendered its decision has not changed. President has unstated residual powers implied from grant of executive power.
will have to prevail.WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES. The privilege is fundamental to the operation of the government and inextricably rooted in the separation of powers under the Constitution. the claim of privilege should not be lightly accepted. THEREFORE. but not limited to. made under the circumstances of this case. while in cases which involve state secrets it may be 39 . where necessity is dubious. is the necessity for protection of the public interest in candid. A fortiori. has all the values to which we accord deference for the privacy of all citizens and. but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Where there is a strong showing of necessity. SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND. such as. In the case at bar. EIIB's function is the gathering and evaluation of intelligence reports and information regarding "illegal activities affecting the national economy. BEYOND THE REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM. Indeed." Consequently. . WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES. dollar salting. Nixon: The expectation of a President to the confidentiality of his conversations and correspondence. objective. . SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988. smuggling. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. like the claim of confidentiality of judicial deliberations. the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. tax evasion. These are the considerations justifying a presumptive privilege for Presidential communications. In each case. and even blunt or harsh opinions in Presidential decision-making. there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of the EIIB. a formal claim of privilege. economic sabotage. . Held: In United States v. for example. added to those values.
shall act promptly on complaints filed in any form or manner against public officials or employees of the Government. the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or manner" concerning official acts or omissions. upon the proper suit filed by the person affected. an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. agency. The provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure. depending on the 40 . wherein a clear pattern of abuse of the legislative power of inquiry might be established. notify the complainants of the action taken and the result thereof. As already stated. § 12 provides: The Ombudsman and his Deputies. or instrumentality thereof. as protectors of the people. as concession to the nature of the functions of the EIIB and just to be sure no information of a confidential character is disclosed. Article VI establishes crucial safeguards that proscribe the legislative power of inquiry. remediable before the courts. or any subdivision. no similar excuse can be made for a privilege resting on other considerations. Above all. Section 21. this decision would only justify ordering their inspection in camera but not their nonproduction. Art. necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. or course. (Emphasis added) SENATE VS ERMITA The power of Congressional inquiry is not absolute. However. even if the subpoenaed documents are treated as presumptively privileged. These abuses are. and subject to such limitations as may be provided by law" and that because the complaint in this case is unsigned and unverified. XI. the examination of records in this case should be made in strict confidence by the Ombudsman himself. § 13(4) the Ombudsman can act only "in any appropriate case. including government-owned or controlled corporations and shall in appropriate cases. Nonetheless. even if they belong to the executive branch. the case is not an appropriate one. Thus. XI. Petitioners contend that under Art. This contention lacks merit. In such instances. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected.sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production. there may be exceptional circumstances.
executive officials have claimed a variety of privileges to resist disclosure of information. mean that the legislature is 41 . 121 F. (In re Sealed. recommendations and deliberations comprising part of a process by which government decisions and policies are formulated. beginning with Washington. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. Executive privilege is “the power of the Government to withhold information from the public. It has encompassed claims of varying kinds. 326 U. as it is presently understood in this jurisdiction. Finally. the courts and ultimately the public. attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. App. Executive privilege is not a clear or unitary concept. Since the beginnings of our nation. One variety of the privilege. 276.particulars of each case. 729. Another variety is the informer’s privilege. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets.C.S. Presidents. D. To that extent. or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. the courts. on the ground that the information is such nature that its disclosure would subvert crucial military or diplomatic objectives. is the state secrets privilege invoked by U.) Appearance during the question hour not mandatory. departs from the question period of the parliamentary system. Basis for the three kinds of executive privilege. Types or kinds of executive privilege. the question hour. and the Congress. however. That department heads may not be required to appear in a question hour does not.” It is the right of the President and high-level executive branch offices to withhold information from Congress.S. ed. the confidentiality of which they felt was crucial to the fulfillment of the unique role and responsibilities of the executive branch of our government. a generic privilege for internal deliberations has been said to attach to intra-governmental documents reflecting advisory opinions. Concept of executive privilege. The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers.
even without mentioning the term “executive privilege.O. has determined that the requested information is privileged. Such declaration. In view thereof. Basis of the power of Congress to compel the appearance of executive officials or the lack of it. The provision allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.” such official is subject to the requirement that he first secure the consent of the President prior to appearing before the Congress. the need to enforce Congress’ right to executive information in the performance of its legislative function becomes more imperative.O. 464. otherwise. that such official is in possession of information that is covered by executive privilege.O. Meaning of the requirement of prior consent of the President or the head of office ing an official to appear before the Congress. and that the President has not reversed such determination. authorized by the President under E. or a head of office authorized by the President. 464.” amounts to an implied claim that the information is being withheld by the executive 42 .rendered powerless to elicit information from them in all circumstances. or by the President herself. In fact. in light of the absence of a mandatory question period. 464 to justify his failure to be present. it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. This determination then becomes the basis for the official’s not showing up in the legislative investigation. however. underlying this requirement of prior consent is the determination by the head of office. whenever an official invokes E. Upon a determination by the designated head of office or by the President that an official is “covered by the executive privilege. Thus. such invocation must be construed as a declaration to Congress that the President. The power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation powers. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. it would not be able to perform intelligently its power of legislation. While the executive branch is a co-equal branch of the legislature.
et al. Certainly. Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. No claim of executive privilege by mere silence. The doctrine of executive privilege is thus. it is essential to limit to the President the power to invoke the privilege. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Verily. The invocation of executive privilege must be accompanied by specific reasons. do not seem like a claim of privilege only makes it more pernicious. Congress has the right to know why the executive considers the requested information privileged. Such presumptive authorization is contrary to the exceptional nature of the privilege.branch. by authority of the President. in this case to Congress. or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. She may of course authorize the Executive Secretary to invoke the privilege on her behalf. the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.” which means that he personally consulted with her. Only the President can claim privilege. by definition. In view of the highly exceptional nature of the privilege. vs. Executive privilege is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique rule and responsibilities of the executive branch. an exemption from the obligation to disclose information. as a matter of necessity. The privilege being an extraordinary power. it must be wielded only by 43 . there is an implied claim of privilege. Ermita. It does not suffice to merely declare that the President. No need to specify the exact reason. be kept confidential in the pursuit of the public interest. on the basis of executive privilege. That the message is couched in terms that. The privilege being. and that the President has not overturned that determination. et al. (Senate. Invocation of executive privilege to be accompanied by reasons. on first impression. has determined that it is so.). in which case the Executive Secretary must state that the authority is “By the order of the President. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested. or an authorized head of office. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. premised on the fact that certain information must.
2 successive terms Q: If the Vice-President succeeds in the Presidency. in relation to Section 2(b). directed to the Senate President 44 . the President may not authorize her subordinates to exercise such power. 2: Qualifications Natural-born citizen Registered voter Able to read and write At least 40 yrs old on the day of election Resident for at least 10 yrs immediately preceding the election Sec. is he allowed to run for President in the next election? A: Yes. 4: Election and Term of Office PRESIDENT – six years without re-election VICE-PRESIDENT – six years. Congress as Board of Canvassers PROCEDURE: Duly certified returns from each province or city shall be transmitted to Congress. Sec. 1: President “The executive power shall be vested in the President of the Philippines.the highest official in the executive hierarchy. Section 3. 3: Vice-President Same qualifications and term of office as President Elected and removed in same manner as President May be a member of the Cabinet without need of confirmation Sec. provided he did not hold the office of the President for more than 4 yrs. There is even less reason to uphold such authorization where the authorization is not explicit but mere silence. is invalid on this score.” Sec. In other words.
COMELEC has no jurisdiction over pre-proclamation controversies in presidential. senatorial and congressional elections. Congress shall vote separately and the candidate having the majority votes of all members of both Houses shall be proclaimed the winner Role of Congress in Presidential Election is to canvass the votes (See Barbers vs. Poe vs Arroyo Sec. Comelec) Supreme Court en banc as Presidential Electoral Tribunal Sole judge of all contents relating to the election. returns. open all the certificates in the presence of the Senate and the House of reps in a joint public session Congress shall determine the due authenticity and due execution of the certificate canvass and start canvassing the votes Congress shall proclaim the candidate having the highest number of votes In case of tie. EXCEPT: the correction of manifest errors in the certificate of canvass or election returns or State of Votes. and qualifications of the President or Vice-President. Correction of Manifest Error in the Statement of Votes may be filed directly with COMELEC en banc Protestant cannot be substituted by widow in case of death of the former pending resolution of election protest. Substitute must be a real party in interest.Upon receipt of certificate of canvass. and may promulgate its rules for the purpose NOTA BENE: No pre-proclamation controversy is allowed against Presidential or Vice-Presidential candidates. 6: Privilege and Salary PRIVILEGES: • Official residence (Malacanang Palace) 45 . vice-presidential. Only the candidate who garners the second or third highest number of votes may question the proclamation of a winner. not later than 30 days after election day. the Senate President shall.
the Vice-President will assume or act as President If the President. 9: Vacancy of Vice-Presidency 46 . the Vice-President becomes the President SUCCESSION IN CASE OF VACANCY: • • • Vice-President Senate President Speaker of the House Sec. gets disabled permanently. 7 and 8: Assumption of Office and Succession • • • • • WHEN: before noon of June 30 If President-elect fails to qualify.• Immunity from suit – not provided in the Constitution. VicePresident-elect becomes the President If the President-elect becomes incapacitated temporarily. dies. is removed from office. to prevent distraction from performance of duties SALARY • • • Fixed by law Cannot be decreased during tenure (actual time he held office) and cannot be increased during his term (only upon expiration of the term) Shall not receive during tenure any other emolument from Government or any other source Sec. or resigns. dies or is permanently incapacitated. the Vice-Presidentelect will act as President until such a time that the President can assume office If there is failure to elect the president. during his term.
13: Prohibition • • Cannot hold any other office or employment during tenure Cannot.The President shall nominate one from the Senate and the House of Reps who shall assume office upon confirmation by a majority vote of all the Members of the Houses. by 2/3 vote Sec. participate in any business or be financially interested in any contract with. during tenure. or special privilege granted by the Government 47 . voting separately Sec. or in any franchise. 12: Illness of the President • • Public shall be informed of the state of his health Members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces shall not be denied access to the President during such illness Sec. 11: Acting President • • • • GROUND: inability to discharge the powers and duties of the office HOW: written declaration of the President or majority of his Cabinet Vice-President shall assume office as Acting President RESUMPTION OF OFFICE: also through written declaration of the President.m. if majority of Cabinet denies such declaration. directly or indirectly practice any profession. Congress shall decide the issue (if not in session. Congress will convene within 48 hrs) within 10 days (12 days if not in session). 10: Special Election in Case of Vacancy • • WHEN: 10:00 a. of the third day after the vacancy Congress will convene without need of a call and within 7 days enact a law calling for a special election to be held not earlier than 45 days nor later than 60 days from time of such call Sec.
including GOCCs and subsidiaries WHO CANNOT HOLD ANY OTHER OFFICE DURING TENURE: • • • • President Vice-President Cabinet Members Deputies and Assistants EXCEPTIONS: • • • When Vice-President is appointed as member of the Cabinet When Vice-President acts as President When Secretary of Justice is also a member of the Judiciary Q: Does the President have the same prohibition as Congress? A: No. ESTRADA VS ARROYO SUPRA CLINTON VS JONES A sitting President of the United States has no immunity from civil law litigation against him. Sec. or as Secretaries. for acts done before taking office and unrelated to the office. or the Office of the Ombudsman. because Congress is only prohibited from holding offices in GOCCs and any other government instrumentality. Undersecretaries.• • Strictly avoid conflict of interest in the conduct of their office President’s spouse and relatives by consanguinity or affinity within the 4th civil degree be appointed as members of the Constitutional Commissions. chairmen or heads of bureaus or offices. whether public or private during tenure. 14 and 15: Appointments extended by Acting President • Effective unless revoked by the elected President within 90 days from his assumption or reassumption of office 48 . agency or subsidiary during term while Executive is prohibited from holding any other office. Q: What is ex officio capacity? A: When an official holds other duties for the same office where he does not receive additional compensation and the office is required by his primary function.
other public ministers and consuls. effect and validity (See Pimentel vs.• Acting President shall not make appointments 2 mos immediately before the next presidential elections and up to the end of his term. ambassadors. Q: How long will ad interim appointments last? A: Such appointments will last until disapproved by Appointments or until the next adjournment of Congress. and other officers whose appointments are vested in him in this Constitution – requires confirmation from Commission on Appointments All other officers of the Government whose appointments are not otherwise provided by law Those whom the President may be authorized by law to appoint Officers lower in rank whose appointments the Congress may by law vest in the President alone the Commission on • • • Section 17 49 . WHO ARE APPOINTED BY PRESIDENT: • Heads of executive departments. 16: Appointing Power TYPES OF APPOINTMENT: • • • Regular Ad Interim Temporary Acting Appointments. The recess referred to here is the times of interval of the session of the same Congress. EXCEPT: temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety Sec. officers of the armed forces from the rank of colonel or naval captain. Executive Secretary) Q: When is Congress considered to be in recess? A: Recess it not the time between the adjournment of Congress and the start of its regular session.
Congress cannot limit or curtail the President’s power of control over the Executive branch. is that as far as bureaus. This proceeds from the legal precept that the power to create includes the power to create includes the power to destroy. however. all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The declaration of martial law. Thus. President’s Power of Control The presidential power of control over the Executive branch of government extends to all executive employees from the Department Secretary to the lowliest clerk. by statute. but there must be a showing that the executive power in question is of similar gravitas and exceptional import. the suspension of the writ of habeas corpus. He shall ensure that the laws be faithfully executed. or certain laws may grant him the broad authority to carry out reorganization measures. The exception.The President shall have control of all the executive departments. Indubitably. which arises not from any extraordinary incident. except where the office was created by the Constitution itself. and if exercised. would involve the suspension of fundamental freedoms. 50 . A public office is either created by the Constitution. or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. This constitutional power of the President is self-executing and does not require any implementing law. but from the established functions of governance. The list is by no means exclusive. agencies or offices in the executive department are concerned. What powers may not be delegated xxx There are certain presidential powers which arise out of exceptional circumstances. but only akin to any contractual obligation undertaken by the sovereign. the President’s power of control may justify him to inactivate the functions of a particular office. bureaus. or by authority of law. and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused. and offices. the decision to contract or guarantee foreign debts is of vital public interest. GR: Congress has power to abolish The general rule has always been that the power to abolish a public office is lodged with the legislature. may be abolished by the same legislature that brought it into existence. We cannot conclude that the power of the President to contract or guarantee foreign debts falls within the same exceptional class.
rebellion or invasion. G. (See Sanlakas vs. unless sooner revoked by Congress Within 48 hours after declaration. The Secretary of Finance or any designated alter ego of the President is bound to secure the latter’s prior consent to or subsequent ratification of his acts. Feb. Sec. President is required to submit a report to Congress 51 . rebellion or invasion Whenever it becomes necessary MARTIAL LAW • • • Conditions for declaration of Martial Law: When there is (1) rebellion or (2) invasion (grounds) Public safety requires the declaration NOTA BENE: There must be actual rebellion or invasion. 18: Commander-in-Chief Powers of the President: • • • Power to call on the military or armed forces Power to suspend the writ of habeas corpus Power to declare martial law CALLING OUT POWER Conditions for calling out the armed forces: • • To suppress lawless violence. No. Reyes. 3.Another important qualification must be made.R. Differ this from the calling out power which does not require actual rebellion or invasion but only that whenever it (the exercise of the calling out power) becomes necessary to suppress lawless violence. 2004) What happens when Martial Law is declared: • • • • No suspension of operation of the Constitution No supplanting of the functioning of the civil courts and legislative assemblies No conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function No automatic suspension of the writ of habeas corpus Constitutional guards against the power to declare Martial Law: • • Will last only for 60 days. 159085.
declaring that the state of national emergency has ceased to exist. they shall convene within 24 hours from such declaration without need for call Supreme Court may nullify the declaration on the ground of lack of factual basis. in effect. thereby. No. otherwise he shall be released DAVID VS ARROYO • • • "Take Care" Power of the President Powers of the Chief Executive The power to promulgate decrees belongs to the Legislature FACTS: These 7 consolidated petitions question the validity of PP 1017 (declaring a state of national emergency) and General Order No. President Arroyo issued PP 1021. 5 arrogated upon the President the power to enact laws and decrees If so.O. 5 are unconstitutional HELD: “Take-Care” Power 52 . lifting PP 1017. ISSUE: • • Whether or not PP 1017 and G. judgment to be rendered within 30 days from its filing by any ordinary citizen SUSPENSION OF THE WRIT OF HABEAS CORPUS (NOTE: the conditions and effect of the suspension of the writ is similar to declaration of martial law) Restrictions to the suspension of the writ of habeas corpus: • • • Apply only to persons judicially charged for rebellion Apply only to persons judicially charged for offenses inherent in or directly connected with invasion The person arrested must be judicially charged within 3 days from arrest.O.• • • Congress shall revoke or extend the period by jointly voting with an absolute majority and President may not reverse such revocation If Congress is not in session. No. whether or not PP 1017 and G. 5 issued by President Gloria MacapagalArroyo. While the cases are pending.
” she cannot call the military to enforce or 53 . Art.O. 1. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution. The specific portion of PP 1017 questioned is the enabling clause: “to enforce obedience to all the laws and to all decrees.” To be sure. cannot be enforced. 292. He shall ensure that the laws be faithfully executed. therefore. VI categorically states that “the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.” In the exercise of such function. Art.” Legislative power is peculiarly within the province of the Legislature. Before assuming office. orders and regulations promulgated by me personally or upon my direction. He sees to it that all laws are enforced by the officials and employees of his department. President Arroyo’s ordinance power is limited to those issuances mentioned in the foregoing provision. This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.This refers to the power of the President to ensure that the laws be faithfully executed. including the Philippine National Police under the Department of Interior and Local Government. “execute its laws. Book III of E. 17. may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country. neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. Sec. It follows that these decrees are void and. 2. bureaus and offices.” Is it within the domain of President Arroyo to promulgate “decrees”? The President is granted an Ordinance Power under Chap. the President. among others. if needed. With respect to “laws. VII: “The President shall have control of all the executive departments.” As the Executive in whom the executive power is vested. he is required to take an oath or affirmation to the effect that as President of the Philippines. President Arroyo has no authority to enact decrees. the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. he will. But can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier. based on Sec.
thus. the criminal liability of the offender and all the effects of the crime are completely erased. In case of administrative cases. or as otherwise provided in this Constitution. Pardon – a private act of the President granted after judgment by final conviction for ordinary offenses. It is a blanket pardon given to a class of persons who committed crimes that are political in nature. and remit fines and forfeitures. the President may grant reprieves. She can only order the military. It may be absolute or condition. under PP 1017. acceptance of condition – if burdensome to the accused – is necessary.” EXECUTIVE CLEMENCIES: • • • • • Amnesty Pardon Reprieve Commutation Remit fines and forfeitures Amnesty – an act of grace by the Chief Executive as a result of the grant of amnesty. commutations. laws governing family and property relations. to enforce laws pertinent to its duty to suppress lawless violence. it is a public act) and the accused must admit his guilt. effect is reinstatement but no payment of backwages. and pardons. if given after sentence has been served. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.implement certain laws. after conviction by final judgment. in which case. laws on obligations and contracts and the like. such as customs laws. Reprieve – discretionary upon the President to suspend the enforcement of judgment MONSANTO VS FACTORAN 54 . Sec. 19: Executive Clemencies “Except in cases of impeachment. Congress has to concur with a majority vote (thus. The effect is to relieve the accused from further punishment. its effect is to extinguish the accessory penalties. To be valid.
These are "historical" facts which. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. To regain her former post as assistant city treasurer. 20: Power to Contract or Guarantee Foreign Loans Sec. 23: SONA The President shall address the Congress at the opening of its regular session. Petitioner must re-apply and undergo the usual procedure required for a new appointment. 21: Treaty-making Power “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. Sec. we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office.Pardon cannot mask the acts constituting the crime. it cannot bring back lost reputation for honesty." Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. integrity and fair dealing. despite the public manifestation of mercy and forgiveness implicit in pardon. 22: Preparation and Submission of Budget The President shall submit to the Congress within thirty-days from the opening of every regular session. "ordinary. prudent men will take into account in their subsequent dealings with the actor. Thus. notwithstanding the expansive and effusive language of the Garland case. Sec. a budget of expenditures and sources of financing. But unless expressly grounded on the person's innocence (which is rare). including receipts from existing and proposed revenue measures. Ratification by President vis-à-vis Concurrence of Senate 55 .” Power to enter into and ratify treaties is sole prerogative of the Executive Sec. He may also appear before it at any other time. as the basis of the general appropriations bill.
it now becomes obligatory and incumbent on our part. is that the ratification. affirming the principle of judicial review. through which the formal acceptance of the treaty is proclaimed. under the principles of international law. by the President. there must be a legal remedy. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. as the case may be. 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. Acts of Congress that conflict with the Constitution are not laws and the Courts are bound instead to follow the Constitution.Worth stressing too. to be bound by the terms of the agreement. and with the exchange of notes between the Philippines and the United States of America. in the legislature. In our jurisdiction. 56 . of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty. to the ratification. The role of the Senate is limited only to giving or withholding its consent. the power to ratify is vested in the President and not. The Supreme Court Section 1 The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. undertaken by the head of the state or of the government. as commonly believed. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification. With the ratification of the VFA. or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. A State may provide in its domestic legislation the process of ratification of a treaty. Ratification is generally held to be an executive act. (b) it is otherwise established that the negotiating States agreed that ratification should be required. with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. (c) the representative of the State has signed the treaty subject to ratification. which is equivalent to final acceptance. or concurrence. or was expressed during the negotiation. MARBURY VS MADISON • • That for every violation of a vested legal right.
pleading. Such temporary assignment shall not exceed six months without the consent of the judge concerned. 3. presidential decree. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases. expound and interpret that rule. other public ministers and consuls. prohibition. All cases in which the jurisdiction of any lower court is in issue. All cases involving the legality of any tax. law. All criminal cases in which the penalty imposed is reclusion perpetua or higher. international or executive agreement. All cases in which only an error or question of law is involved. and procedure in all courts. as the law or the Rules of Court may provide. c. Exercise original jurisdiction over cases affecting ambassadors.• • "To what purpose are powers limited. b. quo warranto. or toll. d. Promulgate rules concerning the protection and enforcement of constitutional rights. if these limits may. If two laws conflict with each other. All cases in which the constitutionality or validity of any treaty. practice. impost. the integrated bar. 2. final judgments and orders of lower courts in: a. Review. 5. Order a change of venue or place of trial to avoid a miscarriage of justice. Section 5 The Supreme Court shall have the following powers: 1. revise. reverse. ordinance. instruction. assessment. proclamation. be passed by those intended to be restrained?" It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. 57 . and legal assistance to the under-privileged. or any penalty imposed in relation thereto. mandamus. increase. and habeas corpus. the Courts must decide on the operation of each. and shall not diminish. 4. and over petitions for certiorari. shall be uniform for all courts of the same grade. of necessity. the admission to the practice of law. modify. e. Assign temporarily judges of lower courts to other stations as public interest may require. Those who apply the rule to particular cases must. or affirm on appeal or certiorari. at any time. and to what purpose is that limitation committed to writing. or regulation is in question. order.
and other similar activities "in collaboration. if we must. ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were invoking only an indirect and general interest shared in common with the public.or modify substantive rights. The ramifications of such issues immeasurably affect the social. opposed by Kilosbayan composed of concerned citizen. Do they have legal standing? Is the contract valid? Held: General Rule: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained. Blg. 6.A. prohibits the PCSO from holding and conducting charity sweepstakes races. such that the latter would operate lotteries with their own operational expenses for 15 years after which termination of lease would then succeed all properties to PCSO. direct injury as a result of its enforcement. brushing aside. Legal Standing KILOSBAYAN VS GUINGONA Section 1(B) of R. The Court dismissed the objective that they were not proper parties and ruled that the transcendental importance to the public of these cases demands that they be settled promptly and definitely. The issues it raised are of paramount public interest and of a category even higher than those involved in many of the aforecited cases. We have since then applied this exception in many other cases. economic. We find the instant petition to be of transcendental importance to the public." PCSO enters into a contract of lease with PGMC. No. 1169. lotteries. technicalities of procedure. company or entity.P. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. foreign or domestic. association or joint venture with any person. 42. or will sustain. and moral well-being of the people even in the remotest barangays of the country and 58 . as amended by B. association. However: In the first Emergency Powers Cases.
Contract of Lease is contrary to law. in the exercise of its sound discretion. association. No. operations. like almost all powers conferred by the Constitution. namely: 1. this Court hereby brushes aside the procedural barrier which the respondents tried to take advantage of. association or joint venture with any person. direct injury as a result of its enforcement. and ( 4. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken. from the very inception." PCSO had nothing but its franchise. Electoral Commission. company or entity. 1169. he must have a personal and substantial interest in the case such that he has sustained. The legal standing then of the petitioners deserves recognition and. FRANCISCO VS FERNANDO Essential Requisites for Judicial Review As clearly stated in Angara v.the counter-productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the billions in pesos it is expected to raise. the question of constitutionality must be raised at the earliest possible opportunity. or will sustain. which it solemnly guaranteed it had in the General Information of the RFP. the PCSO and the PGMC mutually understood that any arrangement between them would necessarily leave to the PGMC the technical. whether domestic or foreign. Section 1 of R. is subject to several limitations. an actual case or controversy calling for the exercise of judicial power. provide the franchise. but by concerned citizens. as amending by B. 59 . Blg. the person challenging the act must have "standing" to challenge. 2. 42. Howsoever viewed then. primarily.P. 3.A. Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. the courts' power of judicial review. the issue of constitutionality must be the very lis mota of the case. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. and management aspects of the on-line lottery system while the PCSO would. prohibits the PCSO from holding and conducting lotteries "in collaboration.
In fine. however. the interest of the petitioner assailing the constitutionality of a statute must be direct and personal.taxpayers or voters who actually sue in the public interest. Taxpayer’s Suit In the case of a taxpayer." xxx On the other hand.'" When suing as a citizen. he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator. or the 'party entitled to the avails of the suit. and not merely that he suffers thereby in some indefinite way. which provides for the disbursement of public funds. he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. not only that the law or any government act is invalid. the mere fact that he is a citizen satisfies the requirement of personal interest. but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement. or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. As for a legislator. Indeed. which may be enjoined by a taxpayer. or that public money is being deflected to any improper purpose. A taxpayer may challenge the validity of a statute. the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment. he is allowed to sue where there is a claim that public funds are illegally disbursed. He must be able to show. Before he can invoke the power of judicial review. a member of the House of Representatives has standing to maintain 60 . when the proceeding involves the assertion of a public right. It is not sufficient that he has merely a general interest common to all members of the public. upon the theory that the expenditure of public funds.
Feliciano are instructive: 1. the following instructive determinants formulated by former Supreme Court Justice Florentino P. if and when the latter is challenged in an appropriate legal proceeding. 160365 as a class suit ought to fail. G. when dealing with class suits filed in behalf of all citizens. RIPENESS AND PREMATURITY In Tan v. or in regard to which full discretionary authority has been delegated to the Legislature or 61 . namely. in legal parlance. held that for a case to be considered ripe for adjudication. a question of policy. Macapagal. powers and privileges vested by the Constitution in his office. In the same vein.inviolate the prerogatives. JUSTICIABILITY The term "political question" connotes. under the Constitution. Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court. this Court is satisfied that the issues raised herein are indeed of transcendental importance. through Chief Justice Fernando.R. There being no doctrinal definition of transcendental importance. are to be decided by the people in their sovereign capacity." Only then may the courts pass on the validity of what was done. however. No. persons intervening must be sufficiently numerous to fully protect the interests of all concerned to enable the court to deal properly with all interests involved in the suit. it refers to "those questions which. binding on all members of the class whether or not they were before the court. Since petitioners additionally allege standing as citizens and taxpayers. Applying these determinants. what it means in ordinary parlance. 2. this Court. In other words. for a judgment in a class suit. under the res judicata principle. their petition will stand. the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government. the character of the funds or other assets involved in the case. whether favorable or unfavorable to the class. the lack of any other party with a more direct and specific interest in raising the questions being raised. in the language of Corpus Juris Secundum. and 3. is. "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture.
and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3. not legality.executive branch of the Government. In his amicus curiae brief. unless such question is raised by the parties and that when it is raised. Succinctly put. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality It is thus clear that the framers intended "initiation" to start with the filing of the complaint. by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House. paragraph (2). that rules of constitutional law shall be formulated only as required by the facts of the case 3. that there be actual injury sustained by the party by reason of the operation of the statute 5. courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. if the record also presents some other ground upon which the court may rest its judgment. the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated. another impeachment complaint may not be filed against the same official within a one year period. of a particular measure. in the case of Sotto v." Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or. (Italics in the original) Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Commission on Elections. that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable. this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid. 1. 62 . Article XI of the Constitution. that judgment may not be sustained on some other ground 4. Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint. that there be absolute necessity of deciding a case 2." It is concerned with issues dependent upon the wisdom. Thus.
It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. only applies as a matter of equity and fair play. Issue: Whether or not the investigation made by the Ombudsman constitutes an encroachment into the SC’s constitutional duty of supervision over all inferior courts Held: 63 . what it means in ordinary parlance. POLITICAL QUESTION The term "political question" connotes. namely." ." It is concerned with issues dependent upon the wisdom. Respondent Abiera alleged that petitioner Maceda has falsified his certificate of service by certifying that all civil and criminal cases which have been submitted for decision for a period of 90 days have been determined and decided on or before January 31. petitioner Maceda knew that no decision had been rendered in 5 civil and 10 criminal cases that have been submitted for decision. 1989. it refers to "those questions which. (Italics in the original) MACEDA VS VASQUEZ Facts: Respondent Napoleon Abiera of PAO filed a complaint before the Office of the Ombudsman against petitioner RTC Judge Bonifacio Sanz Maceda. in the language of Corpus Juris Secundum. in legal parlance. In other words. are to be decided by the people in their sovereign capacity. of a particular measure. when in truth and in fact.Doctrine of Operative Fact "The doctrine of operative fact. not legality. Respondent Abiera alleged that petitioner Maceda falsified his certificates of service for 17 months. a question of policy. or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. as an exception to the general rule. under the Constitution. The past cannot always be erased by a new judicial declaration.Planters Products vs Fertiphil Corp.
Art. By virtue of this power. it is only the SC that can oversee the judges’ and court personnel’s compliance with all laws. In the absence of any administrative action taken against him by the Court with regard to his certificates of service. The judgment was made by the Second Division of the SC. the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judge or court employee had acted within the scope of their administrative duties. the investigation being conducted by the Ombudsman encroaches into the Court’s power of administrative supervision over all courts and its personnel. Rule 140 of the Rules of Court. The respondent judge was also sanctioned with a reprimand and a fine of P10. PEO VS GACOTT Facts: For failure to check the citations of the prosecution. Section 11 The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. Jr.A judge who falsifies his certificate of service is administratively liable to the SC for serious misconduct and under Sec. in violation of the doctrine of separation of powers. No other branch of government may intrude into this power. The Supreme Court en banc shall have the power to discipline judges of lower courts. and take the proper administrative action against them if they commit any violation thereof. from the Presiding Justice of the CA down to the lowest municipal trial court clerk. 1. 6 of the Constitution exclusively vests in the SC administrative supervision over all courts and court personnel. Where a criminal complaint against a judge or other court employee arises from their administrative duties. VIII. without running afoul of the doctrine of separation of powers.000. Issue: Whether or not the Second Division of the SC has the competence to administratively discipline respondent judge 64 . and criminally liable to the State under the Revised Penal Code for his felonious act. the order of respondent RTC Judge Eustaquio Gacott. dismissing a criminal case was annulled by the SC.00 for gross ignorance of the law. Sec. 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 thereon.
THE CONSTITUTIONAL COMMISSIONS IX-A COMMON PROVISIONS Civil Service Commission Commission on Elections Commission on Audit What are the Commissions? Section 2 No member of a Constitutional Commission shall. or either the suspension of any of them for a period of more than 1 year or a fine exceeding P10. to require the entire Court to deliberate upon and participate in all administrative matters or cases regardless of the sanctions.00 or both. Justice Regalado relied on his recollection of a conversation with former Chief Justice Roberto Concepcion who was the Chairman of the Committee on the Judiciary of the 1986 Constitutional Commission of which Regalado was also a member. imposable or imposed. the administrative case must be deliberated upon and decided by the full Court itself. VIII of the Constitution clearly shows that there are actually two situations envisaged therein. a decision en banc is needed only where the penalty to be imposed is the dismissal of a judge. would result in a congested docket and undue delay in the adjudication of cases in the Court. It was not therein intended that all administrative disciplinary cases should be heard and decided by the whole Court since it would result in an absurdity. especially in administrative matters. declares on the other hand that the Court en banc can “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 therein. 65 inhibitions on the members of the Constitutional .” In this instance. and the determination of the procedure in the exercise thereof by.” is a declaration of the grant of that disciplinary power to. disbarment of a lawyer. Pursuant to the first clause which confers administrative disciplinary power to the Court en banc. The first clause which states that “the SC en banc shall have the power to discipline judges of lower courts. 11. The very text of the present Sec. since even cases involving the penalty of reprimand would require action by the Court en banc. Art. Indeed. which refers to the second situation contemplated therein and is intentionally separated from the first by a comma. the Court en banc. 000. officer or employee of the Judiciary. during his tenure. The second clause.Held: To support the Court’s ruling.
or in any franchise or privilege granted by the Government. brief. Be financially interested. or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. including government-owned or controlled corporations or their subsidiaries. in any contract with. • • Chairman (2) Commissioners o Natural born citizens o At least 355 years at the time of appointment o Must not have been candidates for any elective position in the elections immediately preceding their appointment Appointed by the President with the consent of the Commission on Appointments 7 years for Chairman 66 • • . Hold any other office or employment Engage in the practice of any profession Take part in the active management or control of any business which. any decision. Section 7 Each Commission shall decide by a majority vote of all its Members. including government-owned or controlled corporations with original charters. like the Chairman of the Comelec (Brillantes vs Yorac) Nota bene: • Appointment to any vacancy shall only be for the unexpired term of the predecessor. subdivisions. in any way. order. directly or indirectly. Salaries are fixed by law and shall not be decreased during their tenure Shall enjoy fiscal autonomy The Commissioners can be removed by impeachment only The President cannot designate an acting Chairman. any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading. Some evidence of the independence of the Constitutional Commission 1. 2. agencies. or memorandum required by the rules of the Commission or by the Commission itself. 4. or instrumentalities. 3. Civil Service Commission The Civil Service embraces all branches. instrumentalities. Unless otherwise provided by this Constitution or by law. and agencies of the government. any of its subdivisions. may be affected by the functions of his office.
unless specifically authorized by law. double. or title of any kind from any foreign government. agency or instrumentality thereof. Section 6 No candidate who has lost in any election shall. emolument. nor accept without the consent of the Congress. any present. or indirect compensation. or indirect compensation. office.• 5 years for Commissioners and another commissioner for 3 years without reappointment • No temporary or acting capacity in appointments Positions exempt from competitive examination • Policy determining • Primarily confidential • Highly technical Nota bene: • No officer or employee in the civil service shall engage directly or indirectly in any electioneering or partisan political campaign. double. within one year after such election. Commission on Elections • Chairman • 6 Commissioners Qualifications • Natural born citizen • At leats 35 at the time of appointment 67 . Section 8 No elective or appointive public officer or employee shall receive additional. including Government-owned or controlled corporations or their subsidiaries. be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. Unless otherwise allowed by law or by the primary functions of his position. (soliciting votes is prohibited) mere introduction in a political rally is not sufficient to warrant electioneering. no appointive official shall hold any other office or employment in the Government or any subdivision. Section 7 No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Pensions or gratuities shall not be considered as additional.
fiscal has no power to assume the role of prosecutor of election offenses. and the last members for 3 years. Appointed by the President with the consent of the COA 7 years for Chairman. Persons holding a public appointive office is considered resigned upon filing of his certificate of candidacy for public office. There is no law passed yet and RA 6735. whether government owned or controlled corporation with or without original charters. Comelec may issue a writ of injunction only in appellate jurisdiction. IV. No temporary or acting capacity Nota bene: • • • • Comelec has the exclusive power to investigate and prosecute election offenses. ISSUE: 68 . A majority of the members. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. Can. however. opposed on the ground that the constitutional provision on people’s initiative to amend the Constitution can only be implemented by law to be passed by Congress. THE AMENDING PROCESS Article XVII. including the Chairman. SANTIAGO VS COMELEC Constitutional provision on People's Initiative is not self-executory Principle of Non-delegation of Powers.• • • • • Holders of a college degree Must not have been candidates for any elective position in the immediately preceding elections. deputize the fiscal to conduct preliminary investigation on election offenses and prosecute them. 2 members for 5 years. if not deputized. Exceptions FACTS: Petitioners in this case sought to amend certain provisions of the Constitution. Section 2 Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters. specifically lifting the limit of terms of elective officials. three members first appointed shall hold office for 7 years. shall be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years. of which every legislative district must be represented by at least three per centum of the registered voters therein. through people’s initiative. which provides for initiative on statues and local legislation but not initiative on the Constitution. Santiago et al.
in whole or in part. recognized and guaranteed. XVII of the Constitution.is not self-executory. They can only do so with respect to “laws. approve. while the Constitution has recognized or granted that right. or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed. – The power of the people under a system of initiative and referendum to directly propose. intended to cover initiative to propose amendments to the Constitution. The said section reads: SECTION 2. in whole or in part. ordinances. Stated otherwise. for whatever reason. The inclusion of the word “Constitution” therein was a delayed afterthought. of course. laws. That section is silent as to amendments on the Constitution. initiative on the Constitution is confined only to proposals to AMEND. ordinances. xxx We agree that RA 6735 was. 2 of Art. Contrary to the assertion of public respondents COMELEC. approve or reject. which exclusively relates to initiative and referendum on national laws and local laws. xxx Bluntly stated. The people are not accorded the power to “directly propose. or resolutions. But is RA 6735 a full compliance with the power and duty of Congress to “provide for the implementation of the exercise of the right?” A careful scrutiny of the Act yields a negative answer. no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act.” xxx 69 . Sec. does not provide for its implementation. the people cannot exercise it if Congress. enact. 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. ordinances.Whether or not RA 6735 adequately provided for people’s initiative on Constitution RULING: Constitutional provision on people’s initiative is not self-executory. Statement and Policy. 2 of the Act does not suggest an initiative on amendments to the Constitution. and resolutions. enact. That word is neither germane nor relevant to said section. Has Congress “provided” for the implementation of the exercise of this right? There is. as its history reveals. As pointed out earlier.. First.. Sec. or reject. the Constitution. the Constitution” through the system of initiative.
the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative. the primacy of interest. amended or repealed. Art. statement of the proposed law sought to be enacted. The recognized exceptions to the rule are as follows: Delegation Delegation Delegation Delegation Delegation of tariff powers to the President under Sec. of emergency powers to the President under Sec. It does not include. 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. and that Sec. VI. It is true that Sec. no subtitle is provided for initiative on the Constitution.Second. as the case may be. among other things. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III). Sec. as among the contents of the petition. xxx Third. But unlike in the case of the other systems of initiative. inadequate. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC “to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. paragraph (c) requires. an administrative body exercising quasi-judicial functions. the Act does not provide for the contents of a petition for initiative on the Constitution. to local governments. approved or rejected. Empowering the COMELEC. Art. the provisions of the Constitution sought to be amended. to the people at large. considering that in the order of things. and to administrative bodies. xxx The foregoing brings us to the conclusion that RA 6735 is incomplete. 5. to promulgate rules and regulations is a form of delegation of legislative 70 . 28(2). VI. 23(2).” Principle of non-delegation of power The rule is that what has been delegated. it could have provided for a subtitle therefor. If Congress intended RA 6735 to fully provide for the implementation of the initiative on amendments to the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. or hierarchy of values. cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. in the case of initiative on the Constitution.
While police power rests primarily with the legislature. By virtue of a valid delegation. or the Chief of Police. as it is in fact increasingly being delegated.00 fee per annum for first class motels and P4. Insofar as initiative to propose amendments to the Constitution is concerned. ERMITA VS MAYOR OF MANILA • • Whether Ordinance No. setting forth therein the policy to be executed. Inc. in every case of permissible delegation. the power may be exercised by the President and administrative boards as well as by the lawmaking bodies of municipal corporations or local governments under an express delegation by the Local Government Code of 1991. supra. INHERENT POWERS • POLICE POWER Police power is the plenary power vested in the legislature to make. carried out.. It indicates the circumstances under which the legislative command is to be effected. RA 6735 miserably failed to satisfy both requirements in subordinate legislation. ordain. and establish wholesome and reasonable laws. such power may be delegated. operator or representative. statutes and ordinances. 5 above. maps out its boundaries and specifies the public agency to apply it. CONSTITUTIONAL LAW I. motels and lodging houses would be open for inspection either by the City Mayor.500. This power to prescribe regulations to promote the health. or their duly authorized representatives 71 • • . 4760 of the City of Manila is violative of the due process clause. good order or safety.authority under no. However. marks its limits. It is valid only if the law (a) is complete in itself. owner. That Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6. The delegation of the power to the COMELEC is then invalid.000. or implemented by the delegate. Viron Trans. morals. v. it also being provided that the premises and facilities of such hotels.). et al. That it requires that guest need to fill up required information to be admitted to such hotel or motels in the presence of the hotel manager. Co. not repugnant to the Constitution. and (b) fixes a standard – the limits of which are sufficiently determinate and determinable – to which the delegate must conform in the performance of his functions. there must be a showing that the delegation itself is valid. education.. and general welfare of the people flows from the recognition that salus populi est suprema lex – the welfare of the people is the supreme law. A sufficient standard is one which defines legislative policy. (MMDA. for the good and welfare of the people.00 for second class motels.
is the power to prescribe regulations to promote the health. restaurant and laundry similarly offends against the due process clause for being arbitrary. liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious. a dining room or. unreasonable and oppressive.• • • that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room. unless the statute or ordinance is void on its face which is not the case here Valid exercised of police power: • On the legislative organs of the government. In view of the requirements of due process. equal protection and other applicable constitutional guaranties however. it cannot be too often emphasized. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity”. safety and general welfare of the people. a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. good order. Taxation may be made to implement the state's police power: • In the equally leading case of Lutz v. morals. primarily rest the exercise of the police power. manager. a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels. peace. Araneta24 this Court affirmed the doctrine earlier announced by the American Supreme Court that taxation may be made to implement the state's police power. 72 . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. the necessity for evidence to rebut it is unavoidable. whimsical. keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would. tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner. It admits of no doubt therefore that there being a presumption of validity. lodging houses. unjust or unreasonable. whether national or local. cause the automatic cancellation of the license of the offended party Held: The presumption of validity of a statute: • Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. the exercise of such police power insofar as it may affect the life. which. motels.
in order to secure the general comfort. especially in of licenses for the sale of liquors. so that there may be established the resultant equilibrium. declined to interfere with such discretion. with property. 2. without which life is a misery. courts have. and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable. then. ACEBEDO VS CA • • • Police Power as exercised by LGUs. lies at the bottom of the enactment of said law. Liberty is a blessing. or tyrannical. but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former. and with business and occupations. In fact. Non-impairment of contracts still subject to police power: • The liberty of the citizen may be restrained in the interest of the public health. of course. as a general rule. for revenue purposes only. which means peace and order and happiness for all. restrictions and qualifications Power of city mayor to grant/cancel/revoke business permits Granting of business permits vs. health. and the state in order to promote the general welfare may interfere with personal liberty. As was explained more in detail in the above Cu Unjieng case: (2) Licenses for nonuseful occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. or otherwise within the proper scope of the police power. oppressive. in the latter cases the fees have rarely been declared unreasonable. but liberty should not be made to prevail over authority because then society will fall into anarchy. Persons and property may be subjected to all kinds of restraints and burdens. generally an important factor in the determination of the amount of this kind of license fee. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is. granting of permit to practice profession FACTS: 73 .• It has been the settled law. and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are subordinated. for the regulation or restriction of non-useful occupations or enterprises and 3. regulating occupations or regular enterprises. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld. or of the public order and safety. as far back as 1922 that municipal license fees could be classified into those imposed for 1. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline. • A similar observation was made by Justice Laurel: "Public welfare.
examining and/or prescribing reading and similar optical glasses. A professional license. order. its business permit was cancelled. to engage in business or some form of commercial activity. comfort and convenience of the community. the power to grant or issue licenses or business permits must always be exercised in accordance with law. When it was found that petitioner violated these conditions. is the grant of authority to a 74 . Did the conditions or restrictions imposed amount to a confiscation of the business? • Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. This delegation of police power is embodied in the general welfare clause of the Local Government Code xxx The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health. peace.Petitioner applied with the Office of the City Mayor of Iligan for a business permit. education. as agencies of the State. morals. ISSUE: Whether or not the imposition of special conditions by the public respondents were acts ultra vires RULING: Police Power exercised by LGUs Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health. etc. is within the ambit of this power. It is provided for by law. has delegated the exercise of police power to local government units. on the other hand. • But can city mayor cancel business permits or impose special conditions? As aptly discussed by the Solicitor General in his Comment. • However. peace. Permit was therefor issued. likewise includes the power to restrict through the imposition of certain conditions. subject to certain conditions like prohibition of putting up an optical clinic. withdraw or cancel the same. with utmost observance of the rights of all concerned to due process and equal protection of the law. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. And the power to revoke or cancel. The State. in order to effectively accomplish and carry out the declared objects of their creation. safety. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits. natural or otherwise. morals. through the legislature. Power of city mayor to grant business permits • The authority of city mayors to issue or grant licenses and business permits is beyond cavil. if exercised for a regulatory and not revenue-raising purpose. the power to issue licenses and permits necessarily includes the corollary power to revoke. A business permit authorizes the person. good order or safety and general welfare of the people.
Held: A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power. In State ex. the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. The petitioner further argues that revocation or suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right to appeal the revocation. when operated by careless or incompetent persons. The use of them constitutes an element of danger to persons and property upon the highways. The Legislature. persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. in the exercise of the police power of the commonwealth. but is a privilege subject to reasonable regulation under the police power in the interest of the public safety and welfare. One of the primary purposes of a system of general regulation of the subject matter. it becomes an engine of destruction.• natural person to engage in the practice or exercise of his or her profession. It may be exercised in any reasonable manner to conserve the safety of travelers and pedestrians. not only may. Respondent opposed the sanction of MMDA claiming it has no authority to exercise police power. but a privilege granted by the state. “the legislative power to regulate travel over the highways and thoroughfares of the state for the general welfare is extensive. but a privilege subject to reasonable regulation. their registration and the licensing of their operators have been required almost from their first appearance. what is sought by petitioner from respondent City Mayor is a permit to engage in the business of running an optical shop. the Court held that. prescribe how and by whom motor vehicles shall be operated on the highways. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity. as here by the 75 • • . to the effect that: “Automobiles are vehicles of great speed and power. although it does have in its employ. an automobile is still a dangerous instrumentality. Carefully operated. • The petitioner correctly points out that a license to operate a motor vehicle is not a property right. Funk. MMDA contends that a license to operate a motor vehicle is neither a contract nor a property right.” Likewise. The power to license imports further power to withhold or to revoke such license upon noncompliance with prescribed conditions. Rel. which may be suspended or revoked by the state in the exercise of its police power. Since motor vehicles are instruments of potential danger. subject to the procedural due process requirements. in the interest of the public safety and welfare. under the police power. MMDA VS GARIN MMDA confiscated Respondent’s driver’s license. but must. in the interest of the public safety and welfare. In the case at bar. Sullivan. but. The right to operate them in public places is not a natural and unrestrained right.
it has no power to enact ordinances for the welfare of the community. • Sec. the Metro Manila Commission. in the absence of an ordinance from the City of Makati. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations • This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the purpose of laying down policies and coordinating with the various national government agencies. unlike its predecessor. SUPERDRUG VS DSWD Facts: Petitioners are domestic corporations and proprietors operating drugstores in the Philippines. Act No. people’s organizations. because they impose a mark-up of only 5% to 10% on branded medicines. nongovernmental organizations and the private sector.. is to insure the competency of the operator of motor vehicles. since compelling them to grant the discount will result in a loss of profit and capital. Public respondents are DOH. Inc. and. and that all its functions are administrative in nature.” The MMDA is not vested with police power • In Metro Manila Development Authority v. Petitioners assail the constitutionality of Sec. Held: 76 . Thus. Tracing the legislative history of Rep. on the ground that it constitutes deprivation of private property. its own order to open the street was invalid. Bel-Air Village Association. DILG and DSWD. we categorically stated that Rep. 7924 does not grant the MMDA with police power.Vehicle Code. 7924 creating the MMDA. we concluded that the MMDA is not a local government unit or a public corporation endowed with legislative power. which were tasked to monitor the drugstores’ compliance with the Expanded Senior’s Citizen Act. 4(a) of the Expanded Senior’s Citizen Act. ordinances. DOJ. and the law failed to provide a tax deduction scheme which will give them just compensation. which may enforce. Act No. let alone legislative power. Issue: Whether or not the Expanded Senior’s Citizen Act is unconstitutional. but not enact. Such a general law is manifestly directed to the promotion of public safety and is well within the police power.
Police power is not capable of an exact definition. The measure is not the taker’s gain but the owner’s loss. The Court believes so. the law provides that business establishments extending the twenty percent discount to senior citizens may claim the discount as a tax deduction. this raises the question of whether the State. and to convey the idea that the equivalent to be rendered for the property to be taken shall be real. in promoting the health and welfare of a special group of citizens. The word just is used to intensify the meaning of the word compensation. Having said that. and diagnostic and laboratory fees. and purchases of medicines for the exclusive use or enjoyment of senior citizens. restaurants and recreation centers. As a form of reimbursement. As such. thus assuring the greatest benefits.The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for public use or benefit.” It is “[t]he power vested in the legislature by the constitution to make. can impose upon private establishments the burden of partly subsidizing a government program. leisure and amusement. The law grants a twenty percent discount to senior citizens for medical and dental services. statutes. and other similar places of culture. A tax deduction does not offer full reimbursement of the senior citizen discount. The law is a legitimate exercise of police power which. This constitutes compensable taking for which petitioners would ordinarily become entitled to a just compensation. concert halls. either with penalties or without. insistent and the least limitable of powers. substantial. not repugnant to the constitution. admission fees charged by theaters. full and ample. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. but has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response to conditions and circumstances. ordain. carnivals. has general welfare for its object. fares for domestic land. it would not meet the definition of just compensation. similar to the power of eminent domain. 77 . utilization of services in hotels and similar lodging establishments. extending as it does to all the great public needs. and establish all manner of wholesome and reasonable laws. Accordingly. it has been described as “the most essential. circuses. air and sea travel. and ordinances.
various laws and jurisprudence. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX A. Moreover. continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the promotion of public good. 1904]). in the absence of evidence demonstrating the alleged confiscatory effect of the provision in question. and of the subjects of the same. Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital. While Article XIII of the Constitution provides the precept for the protection of property. must yield to general welfare. Moreover. 78 .” For this reason. (Freund. The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive pricing component of the business. While the Constitution protects property rights. there is no basis for its nullification in view of the presumption of validity which every law has in its favor. petitioners must accept the realities of business and the State. the questioned provision is invalidated. can intervene in the operations of a business which may result in an impairment of property rights in the process.as they shall judge to be for the good and welfare of the commonwealth. Definition / Description Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. though sheltered by due process. when the conditions so demand as determined by the legislature. The Police Power [Chicago. property rights must bow to the primacy of police power because property rights. in the exercise of police power. the right to property has a social dimension. Scope & Basis 1. particularly on agrarian reform and the regulation of contracts and public utilities. Definition.
It is not capable of an exact definition but has been. IAC. and morals or the promotion of the public convenience and general prosperity. Civ. it consists of (1) an imposition of restraint upon liberty or property. veiled in general terms to underscore its all-comprehensive embrace. Salus populi est suprema lex. ever-expanding to meet the exigencies of the times. (2) in order to foster the common good. Basis The justification for police power is found in the ancient Latin maxims. IAC. (Sangalang vs. App.Police power is the power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety. The welfare of the people is the supreme law. the liberty of private persons.” As defined. even to anticipate the future where it could be done provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits.W. 169 N. Hayes. 25 August 1989]) 3. [GR 71169. (Lingo Lumber Co. morals and general welfare within constitutional limits and is an essential attribute of government (Marshall vs. (Sangalang vs. Salus populi est suprema lex. security. 835. 883) Police power has been defined as the “state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. and Sic utere tuo ut alienum non laedas.2d 877. vs.. It is a power not emanating from or conferred by the constitution. 30. Barnett. Kansas City. 2d 212. which call for the subordination of individual benefit to the interests of the greater number.E. health. Mo. Comm. 306. App. Tex. plenary. more importantly. and especially to the requirement of due process. suitably vague and far from precisely defined. 839) Sic utere tuo ut alienum non laedas. 355 S. (Common law maxim meaning that) one should use his own property in such a manner as not to injure that of another (1 Bl. Scope Police power regulates not only the property but. 214). 79 . Chapman vs. and virtually all the people. health. but inherent in the state. safety. purposely. The scope of police power. 131 Ind. [GR 71169. 64 SW 2d. Police power is the exercise of the sovereign right of a government to promote order. 25 August 1989]) 2. The police power is subject to limitations of the Constitution.
insistent and illimitable of powers. [GR L-63419. 18 December 1986]) Dynamic Police power is a dynamic force that enables the state to meet the exigencies of changing times.’ 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. [GR 71169. 18 December 1986]) Police power is dynamic. and welfare of society. insistent and illimitable The police power of the state has been described as the most essential. IAC. (Lozano vs. must move with the moving 80 . 31 July 1987]) Essential. It is the plenary power of the State “to govern its citizens. safety. There are occasions when the police power of the state may even override a constitutional guaranty. (Lozano vs. and it is not inaptly termed the ‘law of overwhelming necessity.” (Sangalang vs. which enables it to prohibit all things hurtful to the comfort. (Lozano vs. good order and welfare. safety. 146 SCRA 323) The police power of the State is a power coextensive with self-protection. Martinez. [GR 78164. Martinez. It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. safety and welfare of society. [GR L63419.rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace. Judge Gutierrez. (Tablarin vs. Along with the taxing power and eminent domain. Characteristics Pervasive and non-waivable The police power is the pervasive and nonwaivable power and authority of the sovereign to secure and promote all the important interests and needs — or the public order — of the general community. such as that the constitutional provision on nonimpairment of contracts must yield to the police power of the state. Martinez. not static. 25 August 1989]) B. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. it is inborn in the very fact of statehood and sovereignty.
unjust or unreasonable. equal protection and other applicable constitutional guaranties. City Mayor. Castaneda. good order. as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety. peace. as often as it is necessary for the protection or the promotion of the public welfare. Police power may sometimes use the taxing power as an implement for the attainment of a legitimate police objective. whimsical. a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. No mandamus is available to coerce the exercise of the police power. lies in the discretion of the legislative department. it is not deemed exhausted and may be exercised repeatedly. Who exercises said power? On the legislative organs of the government. [GR L-24693. and for the protection of property therein. however. improve the morals. good order. and the ascertainment of facts to which police power is to be based. it may also be exercised by the President and administrative boards as well as the lawmaking bodies on all municipal levels. Where such exercise of police power may be considered as either capricious. The only remedy against legislative inaction is a resort to the bar of public opinion. and convenience of the municipality and the inhabitants thereof. Police power cannot be bargained away through the medium of a contract or even a treaty. morals. 21 September 1987]) The exercise of police power. In view of the requirements of due process. peace. Police power under the general welfare clause authorizes the municipal council to enact such ordinances and make such regulations. safety and general welfare of the people. (Villanueva vs. including the barangay. promote the prosperity. [GR L-61311. primarily rest the exercise of the police power. By virtue of a valid delegation of legislative power. the exercise of such police power insofar as it may affect the life. liberty or property of any person is subject to judicial inquiry. Once exercised. comfort. (Ermita-Malate Hotel & Motel Operators v. the choice of measures or remedies if indeed action is made. C. not repugnant to law. whether national or local. which is the power to prescribe regulations to promote the health. 31 July 1967]) Police power is lodged primarily in the national legislature.society it is supposed to regulate. a refusal of the electorate to return to members of the legislature who have been remiss in the discharge of 81 .
The means employed for the accomplishment of the police objective must pass to the test of reasonableness and conform to the safeguards embodied in the Bill of Rights for the protection of private rights. inefficacious. [GR L-31195. The lawful objective must be pursued through a lawful method. The remedy chosen by the legislature cannot be attacked on the ground that it is not the best suggested solution. These issues are political in nature. PBM. Clear and present danger Test (human rights) A constitutional or valid infringement of human rights requires a more stringent criterion. or even immoral.their duties. Lawful means The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. (Bautista v. impractical. Tests of Police Power Lawful subject . D. require the exercise of the police power.” the “rational relation test” still retains its validity. Rational Relations Test (property rights) A mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. may be subordinated to the interests of the greater number. 31 January 1984]) b. (PBMEO vs. The enjoyment of private rights. namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. 5 June 1973]) Notwithstanding the “new equal protection approach” with its emphasis on “suspect classification” and “fundamental rights and interests standard. that it is unwise. PBM. when within the scope of police power. (PBMEO vs. Juinio [GR L-50908. a. [GR L-31195.The interests of the public generally. and cannot be inquired into by the legislature. 5 June 1973]) Zoning and Regulatory Ordinances: Test of a valid ordinance An ordinance must conform to the following substantive requirements: 82 . as distinguished from those of a particular class.
as in the case of the police power. there is no need to expropriate where the owner is willing to sell under terms also acceptable to the purchaser. De Knecht. 2. The power of eminent domain is lodged primarily in the national legislature. Quasi-public corporations (Example. vs. 67 Phil. 3. 182 SCRA 142 ). The President of the Philippines 3. Secretary of Agrarian Reform [GR 78741. that the power of eminent domain will come into play to assert the paramount authority of the State over the interests of the property owner. are questions which are essentially political and which are to be exclusively determined by the legislature. 9 83 . quasi-public corporation: PEZA) Expropriation may be initiated by court action or by legislation. in which case an ordinary deed of sale may be agreed upon by the parties. Certain public corporations 5. The Congress 2. and are usually not subject to judicial review. It must not contravene the constitution or any statute. It must be general and consistent with public policy. 1) It is only where the owner is unwilling to sell. the expediency of constructing it. [GR 111097. (Noble v. Obviously. City of Manila. Sec. but its exercise may validly delegated to other government entities and even to quasi-public corporations serving essential public needs or operating public utilities. (Republic v. It must not be unfair or oppressive. (Association of Small Landowners in the Philippines Inc. 14 July 1989]) The following exercise the power of expropriation: 1. Constitutional limitation Art. the suitableness of the location selected and the consequent necessity of taking the land selected for its site. and It must not be unreasonable. 4. Private rights must then yield to the irresistible demands of the public interest on the time-honored justification. (Magtajas v. III. Pryce Properties Corp. It must not be partial or discriminatory. or cannot accept the price or other conditions offered by the vendee. that the welfare of the people is the supreme law. It must not prohibit but may regulate trade. The various local legislative bodies 4. 20 July 1994]) EMINENT DOMAIN Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment of just compensation to the owner. 5. The utility of the proposed improvement. the extent of the public necessity for its construction.1. 6.
Private property shall not be taken for public use without just compensation. Camus [40 Phil. than the right to the freehold of inhabitants. 23 N. The exercise of the right of eminent domain. Mountainlake Water Co. 13 Cal. but limit a power which would otherwise be without limit. The only exceptions to this rule are money and choses in action. 84 .. A chose in action is essentially conjectural as to its validity and its value. Further. destruction from necessity cannot require the conversion of the property taken to public use. is necessary in derogation of private rights. whether applied to persons or to property. Destruction from necessity may be validly undertaken even by private individuals. v. It is a private right vested in every individual. Objects of Expropriation Anything that can come under the dominion of man is subject to expropriation. D. nor is there any need for the payment of compensation. whether directly by the State. 590). It is the right of selfdefense.Section 9. This includes real and personal. tangible and intangible properties.J. 306. 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.L. provided this is done directly by the national legislature or under a specific grant of authority to delegate. Lawrence. The constitutional restraints are public use and just compensation. Expropriation of money is futile inasmuch as payment of just compensation is also money. (Bensley vs. or by its authorized agents. and none is guarded by the Constitution and laws more sedulously. the plain meaning of the law should not be enlarged by doubtful interpretation. Distinguished from destruction due to necessity The destruction of the property does not come under the right of eminent domain. and with which the right of the state or state necessity has nothing to do (American Print Works vs. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. When the legislature interferes with that right and. but under the right of necessity. and cases cited 73 Am. No species of property is held by individuals with greater tenacity. E. Even property already devoted to public use is still subject to expropriation. 550]). appropriates the land of an individual without his consent. The right of necessity arises under the laws of society or society itself. (Visayan Refining Co. Dec. for greater public purposes. of self-preservation. Such is not allowed in the case of eminent domain.. of self-preservation. 576) The power of eminent domain does not depend for its existence on a specific grant in the constitution. and the rule in that case is that the authority must be strictly construed.
regardless of the value of the subject property. 372. Property subject of expropriation must be by its nature or condition wholesome. if regulation goes too far it will be recognized as a taking. 260 US 393) 85 .A. Real property may. 6th Edition. (Pennsylvania Coal Co. which can consist of preventing best use of land or extinguishing fundamental attribute of ownership (Vari-Build Inc. Mahon. Also. to gain or receive in possession. Com. 673.E. Colvin. Supp. To constitute a “taking. 20 June 2000]) Taking Definition and Scope Common A physical dispossession of the owner. Legal To take is to lay hold of. vs. 594 F..C. 1007. but no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of condemned property.. (Barangay San Roque v.Nev. demand. 1453). or to assume ownership (Black’s Law Dictionary. 216 N. Heirs of Pastor [GR 138896. the expropriated property. and is thus deprived of all beneficial use and enjoyment of his property. 540). Reno. US. Accordingly. Where Expropriation Suit is filed An expropriation suit is incapable of pecuniary estimation. it falls within the jurisdiction of the regional trial courts. as when he is ousted from his land or relieved of his personal property. 596 F. or damages on a cause of action ex contractu or for a tort or omission of a duty (Moran vs. There is taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property (Brothers vs.. as it is intended to be devoted to a public use. or is the right to receive or recover a debt. Adkerson. 168 Tenn. taking of property is affected if application of zoning law denies property owner of economically viable use of his land..2d 643. the power of eminent domain results in the taking or appropriation of title to.2d 44.Or. it is not essential that there be physical seizure or appropriation.Pl. 363 S.W. and possession of. or right to recover a personal chattel or a sum of money by action (Gregory vs. v. 45) Normally.2d 539. D. 6 Ohio Msc. without loss of title and possession. and any actual or material interference with private property rights constitutes a taking (Board of Com’rs of Lake County vs.A chose in action is the right of proceeding in a court of law to procure payment of sum of money. The general rule at least is that while property may be regulated to a certain extent.W. through expropriation. to seize. 235 Ark. be subjected to an easement of right of way.. 741). 79 S. C. Mentor Lagoons Inc. 126. 646).2d 740. to deprive one of the use or possession of.” within constitutional limitation. 679).
S. devoting it to a public use. or obscene materials. (City of Baguio v. Property condemned under the police power is noxious or intended for a noxious purpose. cited in Municipality of La Carlota v. 256. The confiscation of such property is not compensable. and is. The state does not appropriate it or make any use of it. there is a “taking” when the owner is actually deprived or dispossessed of his property. But restriction imposed to protect the public health. which should be destroyed in the interest of public morals. The state merely prevents the owner from making a use which interferes with paramount rights of the public.1. Carolina Virginia Coastal Corporation. Causby. 144) A. v. The power being exercised was eminent domain when the property involved was wholesome and intended for a public use. and. (U. which requires the payment of just compensation to the owner. 12 SCRA 164. which should be demolished for the public safety. vs. under the warrant or color of legal authority. for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him 86 . an abridgment by the State of rights in property without making compensation. 57 SE 2d 817) In the context of the State’s inherent power of eminent domain. such as a building on the verge of collapse. or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. in that sense. however. Taking under police power and power of eminent domain distinguished Taking under police power and taking under the power of eminent domain.S. 106 Phil.) There is a “taking” in this sense when the expropriator enters private property not only for a momentary period but for a more permanent duration. should be distinguished. NAWASA. Taking under police power If an owner is deprived of his property outright under the State’s police power. Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed. NAWASA. Whenever the use prohibited ceases to be noxious — as it may because of further changes in local or social conditions — the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. (Penn. Taking under the power of eminent domain “Taking” under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period. B. unlike the taking of property under the power of expropriation. safety or morals from dangers threatened is not a taking. 382 U. when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. The property so restricted remains in the possession of its owner. The restriction is merely the prohibition of a noxious use. the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare.
if not of dismissal of the action. for the public use or purpose described in the complaint. after all. Vda. “is nothing without the inherent rights of possession. The entry must be for more than a momentary period. 27 May 1946]) 87 . the latter can exercise all rights pertaining to an owner. Garcia. if permanent and not merely temporary. 12 SCRA 164) 2. de Castelvi. 58 SCRA 336 ). normally would be the equivalent of a fee interest. Inc. 2. Where the owner is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public use. 4. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. Consequently. there is taking within the Constitutional sense. Deprivation of Use 1. Causby [328 US 256. 5. (United States vs. “of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned. v. It ends with an order. ownership over the property being expropriated remains with the registered owner. Therefore. including the right to dispose of his property. For ownership. 175 SCRA 343 ). The expropriator must enter a private property. Stages The expropriation of lands consists of two stages. Moreover.of all beneficial enjoyment thereof (Republic v. until the action for expropriation has been completed and terminated.” The second phase of the eminent domain action is concerned with the determination by the court of the just compensation for the property sought to be taken. Requisites 1. 3. NAWASA. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. it is only upon payment of just compensation that title over the property passes to the government.” This is done by the court with the assistance of not more than three (3) commissioners. 583-584 ) It is only upon the completion of these two stages that expropriation is said to have been completed. The property must be devoted to public use or otherwise informally appropriated or injuriously affected. subject to the power of the State ultimately to acquire it through expropriation. The entry must be under warrant or color of legal authority.” (Municipality of La Carlota v. It would be a definite exercise of complete dominion and control over the surface of the land. upon the payment of just compensation to be determined as of the date of the filing of the complaint. 180 SCRA 576. (Municipality of Biñan v. In General Easement. Secretary of Agrarian Reform. (Association of Small Landowners in the Philippines. control and enjoyment.
2.E. Jacksonville. Specifically.Y. For condemnation purposes. 451. 145 Atl. The only substantial difference. it is plain. it is not confined to actual use by public. Constitutional Law. even though it were possible. (People vs. 827) Public use Over many years and in a multitude of cases the courts have vainly attempted to define comprehensively the concept of a public use and to formulate a universal test. 212. 133 So. Sweeny. by zoning. 1110. then certainly the public. and not the private individuals. Co. Thatcher (N. the State may not. permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. between restriction and actual taking. Use of property is an element of ownership therein. (Justice Cruz. (Arverne Bay Constr. Taylor vs. beyond regulation and must be recognized as a taking of the property. means any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. Woolhiser (1933) 352 111. as traditionally understood. They have found here as elsewhere that to formulate anything ultimate. Zoning Bd. 2000 edition. under the guise of police power. be unwise if not futile. 29 August 1958]) Zoning which admittedly limits property to a use which cannot reasonably be made of it cannot be said to set aside such property to a use but constitutes the taking of such property without just compensation. such principle finds no support in the genius of our government nor in the principles of justice as we know them. also Eaton vs. 185 N. would. It is measured in terms of right of public to use proposed facilities for which condemnation is 88 . the State may prohibit structures offensive to the sight. 114). Local Government Units An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes.. in an inevitably changing world. is that the restriction leaves the owner subject to the burden of payment of taxation. (Matter of New York City Housing Authority v.) 117 ALR. Fajardo [GR L12172. Regardless of the opinion of zealots that property may properly. should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use. be utterly destroyed without compensation. Such a doctrine shocks the sense of justice. while property may be regulated in the interest of the general welfare such as to regard the beautification of neighborhoods as conducive to the comfort and happiness of residents. A regulation which substantially deprives an owner of all beneficial use of his property is confiscation and is a deprivation within the meaning of the 14th Amendment. in such case. while outright confiscation would relieve him of that burden. 177 NE 412. and in its pursuit. 1 NE 2d 153) Public Use. vs. Muller. (Sundlum vs. ‘public use’ is one which confers some benefit or advantage to the public. 74) Public Use is “the constitutional and statutory basis for taking property by eminent domain. (Tews vs. If it be of public benefit that property remain open and unused. 1116).
Mitchel. (Katz v. The Constitution of the Philippines. 521. does not mean absolutely indispensable but requires only a reasonable necessity of the taking for the stated purpose. (Rindge Co. as in the case of streets or parks. 67 L. But each and every member of society need not be equally interested in such use. 43 S. expropriation is not allowable. 523-524) Genuine Necessity In the exercise of eminent domain. Otherwise.Ed. but must be in common. 773. 772. new appliances in the sciences.Ct.sought and. It may be limited to the inhabitants of a small or restricted locality. if the object is to satisfy a great public want or exigency. 457 P. a ‘public advantage’ or ‘public benefit’ accrues sufficient to constitute a public use. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. it is well-settled that the utility of the proposed improvement. means a use concerning the whole community as distinguished from particular individuals. As long as the purpose of the taking is public.” (Montana Power Co. growth and future needs of the enterprise. Los Angeles County. of utilities and other private enterprise to the government. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. 262 U..586.2d 769. pp. 2nd ed. The term “necessary”. that is sufficient.2d 579.) The taking to be valid must be for public use. The use must be a needful one for the public. Whatever project is undertaken must be for the public to enjoy. Bokma. as long as public has right of use. or advantage. The term may be said to mean public usefulness. in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain.S. only as much land can be taken as is necessary for the legitimate purpose of the condemnation. and it may select the exact location of the improvement. 245 A. (Fernando. Mont. (Manila Railroad Co. and other differing circumstances brought about by an increase in population and new modes of communication and transportation. 692. 689. It is not any more. 156 Conn. or what is productive of general benefit. 700. A ‘public use’ for which land may be taken defies absolute definition for it changes with varying conditions of society. which cannot be surrendered without obvious general loss and inconvenience. in this connection. vs. 89 . In such a case. or be personally and directly affected by it. There was a time when it was felt that a literal meaning should be attached to such a requirement. The Legislature may directly determine the necessity for appropriating private property for a particular improvement for public use. through the exercise of this power. vs. whether exercised by one or many members of public. utility. 837838 ). 50 Phil 832. Brandon. and not for a particular individual. v. The other is in the transfer. 1186).) Public use.. then the power of eminent domain comes into play. changing conceptions of scope and functions of government. the existence of the public necessity for its construction. The constitution in at least two cases determines what public use is.
Just compensation means not only the correct amount to be paid to the owner of the land but also the payment of the land within a reasonable time from its taking. the suitableness of the location selected. (Export Processing Zone Authority vs. its improvements and capabilities. 29 April 1987]) Upon the rendition of the order of expropriation. 25 Phil. Estrada. It has been repeatedly stressed by this Court that the measure is not the taker’s gain but the owner’s loss. 208). full. the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. 467) The word “just” is used to intensify the meaning of the word “compensation” to convey the idea that the equivalent to be rendered for the property to be taken shall be real. Rule 67. In General The determination of just compensation is a function addressed to the courts of justice and may not be usurped by any other branch or official of the government. ample (City of Manila v. 1997 Rules of Civil Procedure) The commissioners shall assess the consequential damages to the 90 . and the courts have no power to interfere or to substitute their own views for those of the representatives of the people. Dulay [GR L-59603. All the facts as to the condition of the property and its surroundings. Perez. 40 Phil 349 ) Just Compensation Defined Just compensation means the value of the property at the time of the taking. Without prompt payment. Chinese Community of Manila.the expediency of constructing it. (Export Processing Zone Authority vs. substantial. (Eslaban vs. (Province of Tayabas v. compensation cannot be considered “just” for then the property owner is made to suffer the consequence of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Velasques. In the absence of some constitutional or statutory provision to the contrary. should be considered. the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. 286). 32 Phil. It means a fair and full equivalent for the loss sustained. (City of Manila v. Vda. 66 Phil. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. 29 April 1987]) Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator (Manila Railroad Co. are all questions exclusively for the legislature to determine. 28 June 2001]) Determination of Just Compensation A. v. (Section 5. de Onorio [GR 146062. Dulay [GR L-59603.
Eminent Domain. however. further. not as of the time of filing of the action of eminent domain. pursuant to the provisions of the Constitution and pertinent laws: Provided. This is so provided by the Rules of Court. 32 Phil. or the owner be deprived of the actual value of his property so taken. according to section 8 of Rule 67. Tantuico [GR 50147. – A local government unit may. This Court may substitute its own estimate of the value as gathered from the record (Manila Railroad Company v. Velasquez. through its chief executive and acting pursuant to an ordinance. the court is not bound by the commissioners’ report. But in no case shall the consequential benefits assessed exceed the consequential damages assessed. the just compensation shall be determined as of the time of taking. based on the fair market value at the time of the taking of the property. That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner. upon payment of just compensation. B. (Section 6. 286). It may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of condemnation. Rule 67. 1997 Rules of Civil Procedure) Still. That. 3 August 1990]) 91 . When Determined A. There are instances. and to the defendant just compensation for the property expropriated. where the expropriating agency takes over the property prior to the expropriation suit. and such offer was not accepted: Provided. exercise the power of eminent domain for public use. the assumption of possession by the expropriator ordinarily being conditioned on its deposits with the National or Provincial Treasurer of the value of the property as provisionally ascertained by the court having jurisdiction of the proceedings. (Ansaldo vs. the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. In these instances. When Where the institution of an expropriation action precedes the taking of the property subject thereof. however. the amount to be paid for the expropriated property shall be determined by the proper court.property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken. the just compensation is fixed as of the time of the filing of the complaint. or purpose or welfare for the benefit of the poor and the landless. That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided finally. Local Government Units Section 19. Republic Act 7160.
3rd Edition. its value shall be provisionally ascertained and the 92 .. Camus and Paredes. not of filing of the complaint and the latter should be the basis for the determination of the value. Traditional Although it may be said that “where the State itself is the expropriator. This is the only way that compensation to be paid can be truly just. 550) Further. ”just not only to the individual whose property is taken. the commencement of the proceedings. Law of Eminent Domain. and all the resources of taxation may be employed in raising the amount. Manner 1.When plaintiff takes possession before the institution of the condemnation proceedings. pp.e. And what he loses is only the actual value of his property at the time it is taken. If personal property is involved. 1 SCRA 957 ) B. v. Such deposit shall be in money. it is not intended that his compensation shall extend beyond his loss or injury. the value should be fixed as of the time of the taking of said possession. Indeed. Section 3. (Republic v.” “but to the public. or.” (Republic v. the method of expropriation adopted in Philippine jurisdiction is such as to afford absolute reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. which is to pay for it. it is not necessary for it to make a deposit upon its taking possession of the condemned property. 40 Phil. there may have been a natural increase in the value of the property from the time the complaint is filed. 1166-1167).G. unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. (Visayan Refining Co. otherwise. the value thereof may be enhanced by the public purpose for which it is taken. Lara. i. the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. 5778 ) Manner of Payment A. the Rules provide that “upon the filing of the complaint or at any time thereafter and after due notice to the defendant. directing that compensation ‘be determined as of the date of the filing of the complaint’ would never be operative. Why Where property is taken ahead of the filing of the condemnation proceedings. The owner of private property should be compensated only for what he actually loses. the provision of Rule 69. Philippine National Bank. as ‘the compensation is a public charge. when the taking of the property involved coincides with or is subsequent to. the good faith of the public is pledged for its payment. due to general economic conditions. the entry by the plaintiff upon the property may have depreciated its value thereby. 50 O.’” (Lewis.
binding upon both parties. and anything short of that is less. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. Secretary of Agrarian Reform [GR 78741. 32 Phil. (Mandl v. v. not whatever gain would accrue to the expropriating entity. Tuazon Co. upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act. 18 p 2d 273. Rule 67. and the law has fixed that standard as money in cash. but not compelled to sell.M. The condemnor cannot compel the owner to accept anything but money. v. but not compelled to buy. Velasquez. and an owner. Land Tenure Administration.) 93 . the market value being that sum of money which a person desirous. 286) Just compensation means the equivalent for the value of the property at the time of its taking. the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. xxx” (Section 2. than just compensation. which is the measure of the indemnity. which should be neither more nor less. nor can the owner compel or require the condemnor to pay him on any other basis than the value of the property in money at the time and in the manner prescribed by the Constitution and the statutes. willing. whenever it is possible to make the assessment. 1997 Rules of Civil Procedure) 2.amount to be deposited shall be promptly fixed by the court. vs. 14 July 1989]) B. there must be a standard medium of payment.” (Association of Small Landowners in the Philippines Inc. City of Phoenix. Traditional The fundamental rule in expropriation matters is that the owner of the property expropriated is entitled to a just compensation. Medium 1. Anything beyond that is more. (Manila Railroad Co. It means a fair and full equivalent for the loss sustained. When the power of eminent domain is resorted to. The market value of the land taken is the just compensation to which the owner of condemned property is entitled. than the money equivalent of said property. in case of rejection or no response from the landowner. Revolutionary Section 16(e) of the CARP Law provides that “Upon receipt by the landowner of the corresponding payment or. (J. Just compensation has always been understood to be the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. 31 SCRA 413) The medium of payment of compensation is ready money or cash. would agree on as a price to be given and received for such property.
Trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all. 979. shall be the payment of the interest agreed upon. 31 Am. Burlington & C. pl. 243-247. which is 6% per annum. 313. There was the suggestion to “fine tune” the requirement to suit the demands of the project even as it was also felt that they should “leave it to Congress” to determine how payment should be made to the landowner and reimbursement required from the farmer-beneficiaries. Vol. 9 35. (Record of the Constitutional Commission.” Central Bank Circular 416 does not apply as it only applies to loan or forbearance of money. 980. 8 May 1992]) 94 . 329.) “Just compensation” for property taken by condemnation means a fair equivalent in money. there being no stipulation to the contrary. 23 Words and Phrases. 178. (City of Waterbury v. (Sacremento Southern R. goods or credits and to judgments involving such loan or forbearance of money.R.Y. 39 N. Such innovations as “progressive compensation” and “State-subsidized compensation” were also proposed. 51 Cal 266. 156 Cal. Schweikart. Co. however. which provides that “If the obligation consists in the payment of a sum of money. v. Angas [GR 60225-26. no special definition of the just compensation for the lands to be expropriated was reached by the Commission. pp. 16-20. 665. 704. In the end.. 2. 13 February 1992]) Legal Interest for Expropriation Cases Article 2209 of the Civil Code. the indemnity for damages. Dec. a trial before the Commissioners is indispensable to allow the parties to present evidence on the issue of just compensation. 18 Wend. Pineda [GR 59791. 460. bonds. Revolutionary The records of the Constitutional Commission do not provide any categorical agreement among the members regarding the meaning to be given the concept of just compensation as applied to the comprehensive agrarian reform program being contemplated.. in the nature of things. v. 647. 3. Bloodgood v. and the debtor incurs a delay. 435 citing Butler v.Part cash and deferred payments are not and cannot. Sanborn v. Mohawk v. be regarded as a reliable and constant standard of compensation. and in the absence of stipulation. Vol. (National Power Corporation vs. Co.) 2. N. which must be paid at least within a reasonable time after the taking. H. Helden. and it is not within the power of the Legislature to substitute for such payment future obligations.R. pp. 104 pp. 408.J. Platt Bros. (Manila Electric Company (MERALCO) vs. 14 p.R.L. the legal interest. Co. or other valuable advantage. Heilbron. 56 A 856.) Trial with Commissioners In an expropriation case where the principal issue is the determination of just compensation. 10 Colo. goods or credits. Ravine Road Sewer Com’rs. 76 Conn. & Co.
and adequate remedy in the ordinary course of law. 2. A petition for certiorari is the suitable remedy in view of Rule 65. nor any plain. the issuance of the writ of possession becomes ministerial. and the Regional Trial Court. Issuance of writ of possession A writ of execution may be issued by a court upon the filing by the government of a complaint for expropriation sufficient in form and substance and upon deposit made by the government of the amount equivalent to the assessed value of the property subject to expropriation.Writ of Possession 1. the following requisites must be met: 1. Rule 45. §1 of the 1997 Rules of Civil Procedure applies only to final judgments or orders of the Court of Appeals.” 95 . (Biglang-awa v. There must be a Complaint for expropriation sufficient inform and in substance. 29 May 1987]) 2. Remedy for party assailing validity of writ of possession A petition for review could not have been resorted to inasmuch as the order of the trial court granting a writ of possession was merely interlocutory from which no appeal could be taken. GR 139927 and 139936. or with grave abuse of discretion amounting to lack or excess of jurisdiction. speedy. a person aggrieved thereby may file a verified petition in the proper court. 22 November 2000. Guerrero [GR L-49088. alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal. Bacalla. and granting such incidental reliefs as law and justice may require. and 3. Rule 67 must be complied with. and there is no appeal. The deposit requirement under Section 2.) It is imperative that before a writ of possession is issued by the Court in expropriation proceedings. Upon compliance with these requirements. the Sandiganbayan. (Ignacio v. board or officer. §1 which provides “When any tribunal. A provisional determination of just compensation for the properties sought to be expropriated must be made by the trial court on the basis of judicial (not legislative or executive) discretion. board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction.
Landed Estates and Municipal Property Art. to own directly or collectively the lands they till or. in the case of other farmworkers. 4 Section 4. Vol. the State shall encourage and undertake the just distribution of all agricultural lands. Art. Property held by a municipal corporation in its private capacity is not subject to the unrestricted control of the legislature. a continuing program of urban land reform and housing which will make available at affordable cost. undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless. except by the exercise of eminent domain with payment of full compensation. The State may. establish and operate vital industries and. and subject to the payment of just compensation. The State shall. decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. Art. XIII. in cooperation with the private sector. in the interest of national welfare or defense. Sec. XIII. In the implementation of such program the State shall respect the rights of small property owners. The people of a compact community usually require certain conveniences which cannot be 96 . Sec. To this end. The State shall. In its private capacity a municipal corporation is wholly different. pp. to receive a just share of the fruits thereof.Expropriation of Utilities. It shall also promote adequate employment opportunities to such citizens.” (McQuillin Municipal Corporation. upon payment of just compensation. and for the common good. developmental. Sec. XII. or equity considerations. In determining retention limits. I. undertake. 670-681). 2nd Ed. the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. 9 Section 9. transfer to public ownership utilities and other private enterprises to be operated by the Government. subject to such priorities and reasonable retention limits as the Congress may prescribe. by law. taking into account ecological. by law. 18 Section 18.. and the municipality cannot be deprived of such property against its will.
furnished without a franchise from the State and which are either unnecessary in the rural districts. Because of the protests of residents of the latter. originally called for the expropriation of properties along Cuneta Avenue in Pasay City. Acts of Congress. the Ministry of Public Highways decided to make the proposed extension pass through Fernando Rein and Del Pan Streets. Section 2. It is. it is clothed with the capacities of a private corporation and may claim its rights and immunities. p.” It is recognized. and is subject to the liabilities of such a corporation. It negates state power to act in an oppressive manner. can deny due process only under pain of nullity. Later on. however. 698) DE KNECHT VS BAUTISTA The plan to extend EDSA to Roxas Boulevard to be ultimately linked to the Cavite Coastal Road Project. however.C. The choice of Fernando Rein and Del Pan streets is arbitrary and should not receive judicial approval. it stands as a guaranty of justice.L. as had been stressed so often. the embodiment of the sporting idea off air play. It is a mandate of reason. As was so emphatically stressed by the present Chief Justice. In that sense. even as against third parties. even as against the sovereign. such as water or gas. among whom was petitioner. Held: There is no question as to the right of the Republic of the Philippines to take private property for public use upon the payment of just compensation. or which on account of the expenses it would be financially impossible to supply except where the population is reasonably dense. that the government may not capriciously or arbitrarily choose what private property should be taken. the Commission on Human Settlements recommended the reversion to the original plan. it is the antithesis of any governmental act that smacks of whim or caprice. but the Ministry argued that the new route will save the government P2 million. The Human Settlements Commission concluded that the cost factor is so minimal that it can be disregarded in making a choice between the two 97 . That is the standard that must be met by any governmental agency in the exercise of whatever competence is entrusted to it. Article IV of the Constitution of the Philippines provides that “Private property shall not be taken for public use without just compensation. as well as those of the Executive. (19 R. such as a system of sewers. A landowner is covered by the mantle of protection due process affords. It frowns on arbitrariness. But in so far as the municipality is thus authorized to exercise the functions of a private corporation. The government filed expropriation proceedings against the owners of Fernando Rein and Del Pan streets. or parks and open spaces.
lines. its improvements and capabilities should be considered. It means a fair and full equivalent for the loss sustained. To peg the value of the lots on the basis of those documents which are outdated would be arbitrary and confiscatory. The factor of functionality strongly militates against the choice of Fernando Rein and Del Pan streets. and progress and development. the tax declarations used as basis for the just compensation were made long before the declaration of martial law when the land was much cheaper. In this case. its task would be relegated to simply stating the lower value of the property as declared either by the owner or the assessor.00 per square meter. on the other. it is to be remembered that progress and development are carried out for the benefit of the people. Although the court technically would still have the power to determine the just compensation for the property. following the decree. whichever is lower. on one hand. It tends to render the Supreme Court inutile in a matter which under the Constitution is reserved to it for final determination. The valuation in the decree may only serve as a guiding principle or one of the factors in determining just compensation but it may not substitute the court’s own judgment as to what amount should be awarded and how to arrive at such amount. arguing that under PD 1533 the compensation should be the fair and current market value declared by the owner or the market value determined by the assessor. EPZA VS DULAY The San Antonio Development Corporation was the owner of a piece of land in LapuLapu City which the EPZA expropriated in 1979. The commissioners appointed by the trial court recommended that the San Antonio Development Corp. HELD: The method of ascertaining just compensation under PD 1533 constitutes impermissible encroachment on judicial prerogatives. While the issue would seem to boil down to a choice between people. MORENO VS MACTAN-CEBU AIRPORT Held: 98 . Just compensation means the value of the property at the time of the taking. All the facts as to the condition of the property and its surroundings. EPZA filed a petition for certiorari. while the factor of social and economic impact bears grievously on the residents of Cuneta Avenue. be paid P15.
In Fery, which was cited in the recent case of Reyes v. National Housing Authority, we declared that the government acquires only such rights in expropriated parcels of land as may be allowed by the character of its title over the properties – If land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned, the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. If x x x land is expropriated for a public street and the expropriation is granted upon condition that the city can only use it for a public street, it returns to the former owner, unless there is some statutory provision to the contrary x x x x If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings x x x x When land has been acquired for public use in fee simple, unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may be abandoned, or the land may be devoted to a different use, without any impairment of the estate or title acquired, or any reversion to the former owner x x x x Our stand on the amount of repurchase price remains unperturbed. When the State reconveys land, it should not profit from sudden appreciations in land values. Any increase or decrease in market value due to the proposed improvement may not be considered in determining the market value. Thus, reconveyance to the original owner shall be for whatever amount he was paid by the government, plus legal interest, whether or not the consideration was based on the land’s highest and best use when the sale to the State occurred. TAXATION A. Definition and Nature 1. Definition a. Taxation is: the method by which enforced proportional contributions are exacted. the power by which the sovereign, through its lawmaking body, raises revenue to defray the necessary expenses of government. 99
a way of apportioning the costs of government among those who in some measure are privileged to enjoy its benefits and must bear its burden. a “Symbiotic” relationship, whereby in exchange for the protection that the citizens get from the government, taxes are paid. b. Taxes Taxes are enforced proportional contributions from persons and property levied by the lawmaking body of the State by virtue of its sovereignty for the support of the government and for public needs. (Cooley, Taxation, 4th edition, Section 1) Distinction with license fees. The term “tax” applies — generally speaking — to all kinds of exactions which become public funds. The term is often loosely used to include levies for revenue as well as levies for regulatory purposes. Thus license fees are commonly called taxes. Legally speaking, however, license fee is a legal concept quite distinct from tax; the former is imposed in the exercise of police power for purposes of regulation, while the latter is imposed under the taxing power for the purpose of raising revenues (MacQuillin, Municipal Corporations, Vol. 9, 3rd Edition, p. 26). Distinction with special assessments. While the word “tax” in its broad meaning, includes both general taxes and special assessments, and in a general sense a tax is an assessment, and an assessment is a tax, yet there is a recognized distinction between them in that assessment is confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity and levied with reference to special benefits to the property assessed. The differences between a special assessment and a tax are that: 1. A special assessment can be levied only on land; 2. A special assessment cannot (at least in most states) be made a personal liability of the person assessed; 3. A special assessment is based wholly on benefits; and 4. A special assessment is exceptional both as to time and locality. The imposition of a charge on all property, real and personal, in a prescribed area, is a tax and not an assessment, although the purpose is to make a local improvement on a street or highway. A charge imposed only on property owners benefited is a special assessment rather than a tax notwithstanding the statute calls it a tax. (Apostolic Prefect of the Mountain Province vs. the Treasurer of Baguio City [GR 47252, 18 April 1941]; citing Cooley) 2. Attributes / Characteristics of taxation A forced charge, imposition or contribution and as such it operates in invitum. (Rochester vs. Bloss, 175 NY 42, 27 NE 794, 61 LRA [NS] Ann 7, Cas. 15) Taxes are not in the nature of contracts between the party and party but grow out of a duty to, and are the positive acts of the government, to the making and enforcing of which, the personal consent of individual taxpayers is not required (Republic vs. Mambulao Lumber [GR L-17725, 28 February 1962]). 100
It is a pecuniary burden payable in money, but such a tax is not necessarily confined to those payable in money (1 Cooley 3). It is levied by the legislative body of the State because the taxing power is pecuniary and exclusively legislative in character. (51 Am. Jr. 71) It is assessed in accordance with some reasonable rule of apportionment, conformably with the constitutional mandate on progressivity of a taxing system. (Article VI, Section 28, 1987 Constitution). It reaches even the citizen abroad and his income earned from sources outside his State; as well as all income earned in the taxing State, whether by citizens or aliens, and all immovable and tangible personal properties found in its territory, as well as tangible personal property owned by persons domiciled therein, are subject to its taxing power (Justice Cruz, Constitutional Law, 2000 edition, 86) A tax is levied for a public purpose as taxation itself involves a burden to provide revenue for public purposes of a general nature. 3. Nature of taxing power Inherent The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds. Taxes being the lifeblood of the government, their prompt and certain availability is of the essence. (Sison v. Ancheta [GR L-59431, 25 July 1984]) High prerogative of sovereignty As the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate, must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied. (84 C.J.S. pp. 659-800) Legislative Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof, clear and explicit in its terms. (51 Am. Jur. 71-73) Constitutionally limited The power to tax is an attribute of sovereignty. It is the strongest of all the powers of government. For all its plenitude, the power to tax has restrictions. The Constitution sets forth such limits. Adversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked to invalidate in appropriate cases a revenue measure. (Sison v. Ancheta [GR L-59431, 25 July 1984])
B. Purpose Taxes are the lifeblood of the government and so should be collected without unnecessary hindrance. Despite the natural reluctance to surrender part of one’s hard-earned income to the taxing authorities, every person who is able to must contribute his share in the running of the government. The government for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values. This symbiotic relationship is the rationale of taxation and should dispel the erroneous notion that it is an arbitrary method of exaction by those in the seat of power. (Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February 1988]) Revenue: The purpose of taxation is to provide funds or property with which the State promotes the general welfare and protection of its citizens. (51 Am. Jur. 71-73) Raising of revenues is the principal object of taxation. (Bagatsing vs. Ramirez [GR L41631, 17 December 1976]) Non-Revenue: Regulation: Taxes may also be imposed for a regulatory purpose as for example, in the promotion, rehabilitation and stabilization of industry which is affected with public interest. (See Lutz vs. Araneta [GR L-7859, 22 December 1955] , and Caltex Philippines vs. Commission on Audit [GR 92585, 8 May 1992]) Promotion of general welfare: If objective and methods alike are constitutionally valid, no reason is seen why the state may not levy taxes to raise funds for their prosecution and attainment. Taxation may be made to implement the state’s police power. (Lutz V. Araneta, 98 Phil. 148 ; citing Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. v. Butler, 297 U.S. 1, 80 L. Ed. 477; M’Culloch v. Maryland, 4 Wheat, 316, 4 L. Ed. 579. ) Reduction of social inequality: Made possible through the progressive system of taxation where the objective is to prevent the undue concentration of wealth in the hands of a few individuals. (Aban, Benjamin. Law of Basic Taxation in the Philippines, Second Edition 1994, page 6). Encourage economic growth: In the realm of tax exemptions and tax reliefs, the purpose of taxation (the power to tax being the power also not to tax. — Ed.) is to grant incentives or exemptions in order to encourage investments and thereby promote the country’s economic growth. (Ibid.) Protectionism: In some important sectors of the economy, taxes sometimes provide protection to local industries like protective tariffs and customs duties. (Ibid.) 102
C.]) So pervasive is the power of taxation that it reaches even the citizen abroad and his income earned from sources outside his State. it is not discriminatory within the meaning of this clause and is therefore uniform. all income earned in the taxing State. Ancheta [GR L-59431. Palomar (GR L23645. 86) Tariff and customs duties are taxes constituting a significant portion of the public revenue which are the lifeblood that enables the government to carry out functions it has been instituted to perform. firms and corporations placed in similar situation. 2000 edition. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation. (Hilado vs. Makasiar [GR 79307. As a matter of fact. Constitutional Law. as well as tangible personal property owned by persons domiciled therein. There is quite a similarity then to the standard of equal protection for all that is required is that the tax applies equally to all persons. The taxing authority can select the subjects of taxation (Gomez vs. In other cases. Scope (The power to tax is the power to destroy) Philippine internal revenue laws are not political in nature and as such were continued in force during the period of enemy occupation and in effect were actually enforced by the occupation government. Where the differentiation conforms to the practical dictates of justice and equity. Second Edition 1994. income tax returns were filed during that period and income tax payment were effected and considered valid and legal. 29 October 1988). page 8). CIR [GR. a classification is reasonable where 103 . and all immovable and tangible personal properties found in its territory. limited to a particular locality. Benjamin. are subject to its taxing power (Justice Cruz. L-9408. 25 July 1984]) Thus. or mixed) Situs of taxation Manner and mode of enforcement and collection (Aban. Such tax laws are deemed to be the laws of the occupied territory and not of the occupying enemy. (Sison v. Taxpayers may be classified into different categories. 31 October 1956. (Commissioner of Customs v. 29 August 1989]) Legislative taxing power or discretion extends to the following: Subjects and objects of tax Amount and rate of tax Purpose for which taxes are to be levied Apportionment of the tax ( general. Law of Basic Taxation in the Philippines. whether by citizens or aliens. It is enough that the classification must rest upon substantial distinctions that make real differences.
Southern Coal & Coke Co. Still. would banish that confidence which is essential to all government. Treasurer of Ormoc City [GR L23794. But all inconsistencies are to be reconciled by the magic of the word confidence. should be in terms applicable to future conditions as well. To carry it to the excess of destruction. Knox. with respect to those very measures. These are germane to the purpose of the law.1. that the power to destroy may defeat and render useless the power to create. (51 Am. (Chief Justice Marshall. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. Maryland  — Ed. 104 . 4. (Ormoc Sugar Company vs. 29 Oct 1966]). Panhandle Oil Co. 1245. is declared to be supreme over that which exerts the control. vs. If the States had any power it was assumed that they had all power. 71-73) It is inherent in the power to tax that a state be free to select the subjects of taxation. to presume which. but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. 277 US 218 ). citing numerous authorities. 1251). 17 US 316 ) In those days (the case of McCullough vs. Maryland. to be reasonable.” it merely describes “not the purposes for which the tax may be used but the degree of vigor with which the taxing power may be employed in order to raise revenue (1 Cooley 179-181). 495. In general Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof. Ed. McCulloch vs. Jur. 17 February 1968]) That the power to tax involves the power to destroy. Taxation. The classification applies only to those who belong to the same class (Felwa v. clear and explicit in its terms. which other. 2. State of Mississippi Ex Rel. that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another. D. Salas [GR L-26511. The power to tax is not the power to destroy while this Court sits. 3. or exemption infringe no constitutional limitation” (Carmichael vs. The power to fix rates is the power to destroy if unlimited. Construing the “power to tax is the power to destroy.) it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. S. would be an abuse. (Dissenting opinion of Justice Holmes. it is said. does not necessarily and unavoidably destroy. are propositions not to be denied. 301 U. 81 L. and it has been repeatedly held that “inequalities which result from a singling out of one particular class for taxation. The classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present. the classification.. It is based on substantial distinctions which make real differences. and that the necessary alternative was to deny it altogether. Who exercises the power? 1. at p.
Amusement Tax. Title I. Local Government Units Previously. Its charter must plainly show an intent to confer that power or the corporation cannot assume it. That the taxes. then the taxpayer has a right to complain and the courts will then come to his succor. Annual Fixed Tax For Every Delivery Truck or Van of Manufacturers or Producers. Wholesalers of. vs. 870. tax collection should be made in accordance with law as any arbitrariness will negate the very reason for government itself. or Retailers in. Certain Products (Section 134). a municipal corporation has no inherent power of taxation. Further. Tax on Sand. et al. Book II. Tax on Business of Printing and Publication. may be achieved. fees. and charges not otherwise levied by provinces (Section 142). A municipal corporation. the province may levy only the taxes.. and charges which the province or municipality may impose: Provided. (Santos Lumber Co. and charges shall accrue exclusively to the local governments. 105 . which is the promotion of the common good. and Provided further that the rates of taxes that the city may levy may exceed the maximum rates allowed for the province or municipality by not more than 50% except the rates of professional and amusement taxes (Section 151). Furthermore. 102 Phil. 98 Phil. fees. To enact a valid ordinance.. Now. however. Article X thereof. specifically Section 5. Raffiñan. the City must find in its charter the power to do so. Gravel and Other Quarry Resources. and charges as provided in Article I. It is therefore necessary to reconcile the apparently conflicting interests of the authorities and the taxpayers so that the real purpose of taxation. consistent with the basic policy of local autonomy. Any doubt or ambiguity arising out of the term used must be resolved against the municipal corporation. which provides that “Each local government unit shall have the power to create its own sources of revenues and to levy taxes. he may still be stopped in his tracks if the taxpayer can demonstrate that the law has not been observed..Still. fees. the city. unlike a sovereign state. fees and charges subject to such guidelines and limitations as the Congress may provide. fees. For all the awesome power of the tax collector. Algue [GR L-28896. It is a requirement in all democratic regimes that it be exercised reasonably and in accordance with the prescribed procedure. fees and charges levied and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance with the provisions of the Local Government Code. 17 February 1988]) 2. Such taxes. is clothed with no inherent power of taxation. may levy the taxes. (Commissioner of Internal Revenue v. 422). And the power when granted is to be construed strictissimi juris. If it is not. municipalities may levy taxes. Franchise Tax. for said power cannot be assumed. Dealers. direct authority has been conferred to local government units by the 1987 Constitution. City of Cebu. Chapter II. Professional Tax.” Except as otherwise provided in the Local Government Code (RA 7160). See also Arong vs. such the Tax on Transfer of Real Property Ownership.
VI Sec.Section 130 of the Local Government Code provides for fundamental principles that shall govern the exercise of the taxing and other revenueraising powers of local government units. non-profit cemeteries. fees. oppressive. and all lands. and improvements. fees. XIV. 28 Section 28 The rule of taxation shall be uniform and equitable. actually. not be contrary to law. fee. d) The revenue collected pursuant to the provisions of the Local Government Code shall inure solely to the benefit of. and. excessive. charges and other impositions shall: 1. Sec. the local government unit levying the tax. 4 (3) Section 4 xxx 106 . tariff rates. and be subject to the disposition by. Art. authorize the President to fix within specified limits. charitable. be equitable and based as far as practicable on the taxpayer’s ability to pay. national economic policy. b) Taxes. Art. mosques. (exclusively means primarily not necessarily solely) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. be levied and collected only for public purposes. The Congress may. 4. or confiscatory. tonnage and wharfage dues. 2. or educational purposes shall be exempt from taxation. public policy. 3. and other duties or imposts within the framework of the national development program of the Government. a) Taxation shall be uniform in each local government unit. evolve a progressive system of taxation. directly. buildings. or in the restraint of trade. that is. and exclusively used for religious. The Congress shall evolve a progressive system of taxation. not be unjust. import and export quotas. charge or other imposition unless otherwise specifically provided herein. and subject to such limitations and restrictions as it may impose. as far as practicable. charges and other impositions shall in no case be let to any private person. e) Each local government unit shall. Charitable institutions. churches and personages or convents appurtenant thereto. by law. c) The collection of local taxes.
consistent with the basic policy of local autonomy. A donee’s gift tax is not a property tax but an excise tax imposed on the transfer of property by way of gift inter vivos. as contra-distinguished from excise taxes. directly. but an excise upon the use made of the properties.” as employed in the Constitution should not be interpreted to mean exemption from all kinds of taxes. It does not rest upon general ownership. 466. 53 Phil. with or without cause. Posadas. Tax Exemptions 1. 49 Phil. See also House vs. Art. Such taxes. 92-93) Statutory exceptions are granted in the discretion of the legislature. Where the taxation is granted gratuitously. Exemption is granted religious and charitable institutions because they give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped. Sec. fees and charges subject to such guidelines and limitations as the Congress may provide. An exemption from the common burden cannot be permitted to exist upon vague implication. (Justice Cruz.. 94-95) By its very nature. and he who claims an exemption must be able to justify his claim by the clearest grant of organic or statute law. and exclusively for educational purposes shall be exempt from taxes and duties. it may be validly revoked at will. Exemption from taxation are highly disfavored in law.) The test of exemption from taxation is the use of the property for purposes mentioned in the Constitution (Apostolic Prefect of the Mountain Province vs. and charges shall accrue exclusively to the local governments.. if the exemption is granted for valuable consideration it is deemed to partake of the nature of a contract and the obligation thereof is protected against impairment (Ibid. The phrase “exempt from taxation. X. 5 Section 5 Each local government unit shall have the power to create its own sources of revenues and to levy taxes. fees. Llanes. non-profit educational institutions used actually. However. the law that exempts one from tax must be clearly expressed because the exemption cannot be created by implication.All revenues and assets of non-stock. vs. 18 April 1941]). 2000 Edition. upon the exercise of the privilege of receiving the properties. Its assessment was not on the property themselves. The imposition of such excise tax on property used for religious purposes do not constitute an 107 . (Asiatic Petroleum Co. Upon the dissolution or cessation of the corporate existence of such institutions. their assets shall be disposed of in the manner provided by law. Constitutional Law. Nature Tax exemptions are either constitutional or statutory.. the Treasurer of Baguio City [GR 47252. but such law should be passed with the concurrence of a majority of all the Members of Congress. The exemption from the payment of taxes assessed on such properties enumerated in the Constitution are property taxes. 338.
” (Philippine Acetylene vs. Meer. Co. Gaz. and for the same purpose. vs. 52 Off. this not being in violation of the rule against double taxation (Compania General de Tabacos de Filipinas vs. Tax and license fee Both a license fee and a tax may be imposed on the same business or occupation.. 30 June 1975]) The burden is on the taxpayer to prove the validity of the claimed deduction. exemption is the rule and taxation. 17 August 1967] 2. (Cooley on Taxation. Manuf. 48) Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same governmental entity (cf. It is the universal rule that he who claims an exemption from his share of the common burden of taxation must justify his claim by showing that the Legislature intended to exempt him by words too plain to be mistaken. the exception.impairment of the Constitution. 4th ed. Municipal Board of Manila [GR L4817. 6579. (Statutory Construction by Francisco. Commissioner of Internal Revenue [GR L-19201. 42. 357). Interisland Gas Service. Monte de Piedad. 26 May 1954]) Possibly both local. “tax exemption must be strictly construed and that the exemption will not be held to be conferred unless the terms under which it is granted clearly and distinctly show that such was the intention of the parties. 25 Phil. 89 Phil. or for selling the same article. CIR [GR L-19707. citing Government of Philippine Islands vs.) It is axiomatic that when public property is involved. (SSS vs. Manila vs. 21 July 1982]) Double Taxation There is double taxation when additional taxes are laid on: 1. 108 . during the same taxing period 4. Bacolod City [GR L-35726. p. Vol. Burden of Proof The cardinal rule in taxation is that exemptions therefrom are highly disfavored in law and he who claims tax exemption must be able to justify his claim or right thereto by the clearest grant of organic or statute law. by the same taxing jurisdiction 3. the argument against double taxation may not be invoked. National vis-a-vis local Where one tax is imposed by the state and the other is imposed by the city. (Lladoc v. Life Ins. the same subject 2. (Wonder Mechanical Engineering vs. CTA [GR L-22805 & L-27858. 16 June 1965]) As to franchise grantees and other entities specifically granted exemption by the legislature. as there is nothing inherently obnoxious in the requirement that license fees or taxes be exacted with respect to the same occupation. calling or activity by both the state and the political subdivisions thereof. I. (Punsalan v.
pp. 357). 83). without contributing to the production of the wealth that is being taxed. 3516-17) The power to regulate as an exercise of police power does not include the power to impose fees for revenue purposes. Vol. (CIR vs. Co. 89 Phil. and the United States. vs. but in regard to this matter there is a marked distinction between license fees imposed upon useful and beneficial occupations which the sovereign wishes to regulate but not restrict. and not from the Philippines. In the latter case the fee may be very large without necessarily being a tax. (Cu Unjieng vs. If it were possible to prove in advance the exact cost. Non-payment of a license fee for a business makes the business illegal unlike tax. and those which are inimical and dangerous to public health. IV.Manila [GR L-16619. it is indisputable that justice and equity demand that the tax on the income should accrue to the benefit of the Philippines. Vol. Fees for purely regulatory purposes “may only be of sufficient amount to include the expenses of issuing the license and the cost of the necessary inspection or police surveillance. Interisland Gas Service. Licenses for the regulation of useful occupations.. 188 SO. 109 . Licenses for the regulation or restriction of non-useful occupations or enterprises. Lednicky [GR L-18169. 29 June 1963]. Meer. citing Bentley Gray Dry Goods Co. 9. where that income was not earned and where the taxpayer did not reside. Manila vs. 2. 3rd Edition. Municipal Corporations. 42 Phil. 641. L-18286. (Cooley on Taxation. 129135). the Philippine government only receives the proceeds of one tax. Licenses for revenue only. MacQuillin. Where the taxpayers would have to pay two taxes on the same income (one in the Philippines and one in the United States. for example). Life Ins. National vis-a-vis another country Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same governmental entity (cf. 758. since the former’s right to burden the taxpayer is solely predicated on his citizenship. 6579. p. Auditor General. 818) The regulatory fee “must be no more than sufficient to cover the actual cost of inspection or examination as nearly as the same can be estimated. vs. The amount may be so large as to itself show that the purpose was to raise revenue and not to regulate. taking into account not only the expense of direct regulation but also incidental expenses. Manuf. & L-21434.]) License Fees There are three kinds of licenses recognized by law: 1. Any relief from the alleged double taxation should come from the United States. that would be the limit of the fee (Manila Electric Co. The amount of the fee or charge is properly considered in determining whether it is a tax or an exercise of the police power. 73 Phil. vs. where the income was earned and where the taxpayer is domiciled. morals or safety. and 3. 31 July 1964. Gaz. As between the Philippines. Patstone. City of Tampa 137 Fla. 52 Off.
DUE PROCESS AND EQUAL PROTECTION Due Process Art. 200 Edition.S. 572 ) Due process is described as “responsiveness to the supremacy of reason. Mr. People of State of California [110 U. Nature and Scope a.) b. City of Manila [GR L-24693. and immunities under the protection of the general rules which govern society. (Hurtado vs. Art. (Frankfurter. or property without due process of law. City of Manila [GR L-24693. 14 (1) No person shall be held to answer for a criminal offense without due process of law. (Ermita Malate Hotel & Motel Operators Association v. Sec. It is the embodiment of the sporting idea of fair play. Definition / Concept The concept of due process is that it is a law which hears before it condemns. Constitutional Law. 516. III. The very elasticity of the provision makes this possible and thus enlarges the rights of the individual to his life. 3 March 1884]) It is responsiveness to the supremacy of reason. obedience to the dictates of justice. obedience to the dictates of justice . 32-33. California. adaptable to every situation calling for its application. so that every citizen shall hold his life. which proceeds upon inquiry. 98-99) “Due process of law” mean law in its regular course of administration.”(Ermita Malate Hotel & Motel Operators Association v. Definition. Sec. nor shall any person be denied the equal protection of the laws. Due process continues to be dynamic and resilient. Chuoco Tiaco. and renders judgment only after trial. 129) Due process. liberty. III. 534. Justice Holmes and the Supreme Court (1938) pp. 31 July 1967]) No attempt was made to spell out the meaning of due process or to define the concept with some degree of exactitude. citing Rowan v. 16 Phil. supra II. (Forbes vs. and in accordance with the general rules for the protection of individual rights. (Justice Cruz. property. Nature 110 . in any particular case. according to prescribed forms. means such an exercise of the powers of the government as the settled maxims of law permit and sanction under such safeguards for the protection of individual rights as those maxims prescribe. liberty.TOLENTINO VS SECRETARY OF FINANCE. (Hurtado vs. liberty or property. 30 Wis. 1 No person shall be deprived of life. State. 31 July 1967]) It has been identified as freedom from arbitrariness.
380. The 1987 Constitution of the Republic of the Philippines: A commentary. People vs. Inc. Thompson. adaptable to every situation calling for its application. vs.Dynamic Due process continues to be dynamic and resilient. Waivable c. Even the State is entitled to due process (Uy vs. Liberty Liberty means the right to exist and the right to be free from arbitrary personal restraint or servitude. Court of Appeals [GR 88050. 10 Nov 1978]). 111 . Bernas. 57 SCRA 123. liberty or property. Meaning of Life. 200 Edition. 274 US 200). and validly so. Hiu Chiong Tsai Pao Ho [GR L-29646. b.30 January 1990]).S. 40 Phil. If he opts to be silent where he has a right to speak. vs. and Property a. 7 March 1919]) c. Natividad. 98-99) The right to be heard is as often waived as it is invoked. Buck vs. (Fr. al. The right to life is also the right to a good life. 138 SCRA 166). Provincial Board of Mindoro [GR 14078. it includes the right to secure and dispose of them (Tonaco vs. 1996 Edition. 102). (Justice Cruz. Bocar. et. It includes aliens and their means of livelihood (Villegas v. vs. It represents more than the things that a person owns. Bell. and extends to the use of God-given faculties which make life enjoyable (Justice Malcolm. he cannot later be heard to complain that he was unduly silenced (Stronghold Insurance Co. 163). It includes the right of the citizen to be free to use facilities in all lawful ways (Rubi. Genato. The constitutional protection of the right to life is not just the protection of the right to be alive or to the security of one’s limb against physical harm. 263 U. without regard to any difference of race. The very elasticity of the provision makes this possible and thus enlarges the rights of the individual to his life. Philippine Constitutional Law. Life Life includes the right of an individual to his body in its completeness. 197). as long as the party is given an opportunity to be heard on his behalf. Constitutional Law. Property Property means anything that can come under the right of ownership and be the subject of contract. color or nationality. Scope Due process applies and protects all persons. Liberty. Artificial persons are covered by the protection but only insofar as their property is concerned (Smith Bell & Co.
however. Burson. liberty or property. Requisites: The means are reasonable for the accomplishment of the purpose of the law. Dartmouth College vs. but is deemed a privilege withdrawn when public interest required its withdrawal. [GR L-20387. (Bell vs. Once licenses are issued. Still. continued possession may become essential in the pursuit of a livelihood. 539 ) Public office is not property but a public trust or agency. 279 [28 October 1986]). Procedural Due Process The justice that procedural due process guarantees is the one “which hears before it condemns. 112 . 31 January 1968]). Carnation Philippines Inc. Due process may be relied upon by public officials to protect the security of tenure which in the limited sense is analogous to property (Morfe vs. Woodward. The right to office. The 1987 Constitution of the Republic of the Philippines: A commentary. 1996 Edition. is protected right. a privilege may evolve into some form of property protected by the Constitution when a holder of such privilege has been enjoying it for so long and has put in substantial investment making the business the source of employment for thousands. Inc.Protected property has been deemed to include vested rights as a perfect mining claim. The inquiry is whether the law is a proper exercise of legislative power. Bernas. or a final judgment. 402 US 535. profession. trade. (Vinta Maritime Co. Suspension of issued licenses involve state action that adjudicated important interests of the licensees.. and The law must be intended for the interest of the public rather than for private interest. which proceeds upon inquiry and renders judgment only after trial. One’s employment. Substantive Due Process Substantive due process requires the intrinsic validity of the law in interfering with the rights of the person to his life. The court must have jurisdiction over the person of the defendant and over the property which is the subject matter of the proceeding. or a perfected homestead. vs. It also includes the right to work and the right to earn a living (Fr. 145 SCRA 268.” (Daniel Webster. 101). if any. Mutuc. or calling is protected property (Callanta vs. NLRC. 286 SCRA 656) Requisites: There must be an impartial tribunal clothed with judicial power to hear and determine the matter before it. 4 Wheaton 518) The twin requirements of notice and hearing constitutes the essential elements of due process and neither of these elements can be eliminated without running afoul of the constitutional guaranty. A license is not considered protected property.
The 15 days can be lengthened or shortened but not to the point of allowing no publication at all. or to counsel within the fourth degree. There can be no such thing as a law that is effective immediately. 122). 165 SCRA 186. Bernas. 30 May 1961]). Related to the rule on publication is the rule on vagueness. 195-196) Impartial Court or Tribunal A court affected by bias or prejudice cannot be expected to render a fair and impartial decision. Commission on Elections. 1996 Edition. or in which he has been presided in any inferior court when his ruling or decision is the subject of review. A law that is utterly vague is defective because it fails to give notice of what it commands. citing Connally vs. signed by them and entered upon the record. trustee or counsel. There must be opportunity to be heard. Disqualification of judges. (People vs. Santos [GR L-15624. The underlying reason for this rule is that due process. General Construction Co. Rule 137 of the Revised Rules of Court. is pecuniarily interested as heir. (Fr. computed according to the rules of the civil law. Section 1. especially the parties targeted by it. a statute or act may be said to be vague when it lacks comprehensible standards that men “of common intelligence must necessarily guess at its meaning and differ as to its application (Tribe. Publication Requirement The phrase “unless it is otherwise provided” refers not to the need of publication but to the requirement of 15 days. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. — No judge or judicial officer shall sit in any case in which he. or in which he has been executor. or in which he is related to either party within the sixth degree of consanguinity or affinity. fair notice of the conduct to avoid. creditor or otherwise. 144 SCRA 194). and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. which is a rule of fairness. without the written consent of all parties in interest. 269 US 385 ). American Constitutional Law 718 (1987). guardian. The judgment must be rendered after trial and in accordance with law. or his wife or child. As a rule. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed. even if the law is not penal in nature. requires that those who must obey a command must first know the command. on the basis of the established facts and the pertinent law (Javier vs. Nazario. legatee. Every litigant is entitled to the cold neutrality of an impartial judge (Gutierrez vs. 113 .. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons. The 1987 Constitution of the Republic of the Philippines: A commentary. administrator.
vs. 166 SCRA 316) Aside from statute. (Zaldivar vs. 94 SCRA 707). require trial-type proceedings. is accorded . Exceptions to notice and hearing requirements Due process as a constitutional precept does not. Aquilizan. In so far as generalization is possible in view of the great variety of administrative proceedings. and that is the only way for the judiciary to get an acquittal from the bar of public opinion. in the exercise of his sound discretion. Where opportunity to be head.A judge may. there is no denial of procedural due process. the judiciary always stands as a silent accused. the Supreme Court reminds a trial judge in high profile criminal cases of his/her duty to control publicity prejudicial to the fair administration of justice. (Webb v. However. Sandiganbayan. Inc. Court of Appeals [GR 88050. If he opts to be silent where he has a right to speak. there must be allegation and proof that the judges have been unduly influenced by the barrage of publicity. One may be heard also through pleadings. (People v. either through oral arguments or pleadings. it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action 114 . Due process is not violated where a person is not heard because he has chosen. “’To be heard’ does not only mean verbal arguments in court.30 January 1990]). the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. Sanchez [GR 121039-45. 23 August 1995]) Notice and Hearing: Notice to a party is essential to enable it to adduce its own evidence and to meet and refute the evidence submitted by the other party. always and in all situations. for whatever reason. The essence of due process is to be found in the reasonable opportunity to be heard and to submit any evidence one may have in support of one’s defense. 18 October 2001]) Still. Prejudicial Publicity Pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. To warrant a finding of prejudicial publicity. the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done. More than convicting the guilty and acquitting the innocent. he cannot later be heard to complain that he was unduly silenced (Stronghold Insurance Co. not to be heard. The ability to dispense impartial justice is an issue in every trial and in every criminal prosecution. for just or valid reasons other than those mentioned above. disqualify himself from sitting in a case. de Leon [GR 121234. A decision rendered without a hearing is null and void ab initio and may be attacked directly or collaterally (David vs. pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere exposure of judges to publications and publicity stunts does not per se fatally infect their impartiality.
sec. The decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties. or regulation is in question. There must be a hearing. but where a public administrative body acts in a judicial or quasi-judicial matter. The evidence must be substantial. All cases in which the constitutionality or validity of any treaty. and not simply accept the views of a subordinate in arriving at a decision.J. or toll. Administrative Due Process Requisites: 1. The right to appeal is not essential to the right to a hearing. 115 . which includes the right to present one’s case and submit evidence in support thereof. administrative. proclamation. and its acts are particular and immediate rather than general and prospective. All criminal cases in which the penalty imposed is reclusion perpetua or higher. 4. All cases involving the legality of any tax. and 5. and the reasons for the decision. 4. The board or body should. as specified in Article VIII. Except when guaranteed by the constitution. Alcuaz [GR 84818. impost.where the administrative body acts in the exercise of executive. The decision must have something to support itself.. 130. or any penalty imposed in relation thereto. Petitioners claim that on March 1. 2. 2. Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union. and petitioners. All cases in which the jurisdiction of any lower court is in issue. Inc. Public Administrative Bodies and Procedure. appeal may be allowed or denied by the legislature in its discretions. 6. assessment. the person whose rights or property may be affected by the action is entitled to notice and hearing (73 C. The tribunal must consider the evidence presented. cited in Philcomsat v. or legislative functions. PBM EMPLOYEES VS PBM Facts: The petitioner Philippine Blooming Mills Employees Organization (PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co. render its decision in such a manner that the parties to the proceeding can know the various issues involved. The tribunal or any of its judges must act on its or his own independent consideration of the facts and the law of the controversy. Section 5 (2) of the 1987 Constitution. ordinance. law. order. instruction. international or executive agreement. presidential decree. All cases in which only an error or question of law is involved. But as long as the law allows him to appeal. 3. 3. pages 452 and 453. The legislature cannot deprive anyone of the right to appeals in 1. 18 December 1989]).S.. 5. and 7. in all controversial questions. denial of that remedy is a denial of due process.
1969. they decided to stage a mass demonstration at Malacañang on March 4.M. Herein respondent employer did not even offer to intercede for its employees with the local police. A constitutional or valid infringement of human rights requires a more stringent criterion. was a matter that vitally affected their right to individual existence as well as that of their families. This is not present in the case. utilizing only the weapons afforded them by the Constitution — the untrammelled enjoyment of their basic human rights. 1969. the officers present who are the organizers of the demonstration. and take up the cudgels for.S. Held: Yes. Workers who without previous leave of absence approved by the Company. particularly . Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the respondent Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.1969. therefore. for a violation of Republic Act No.' Petitioners were held guilty by CIR for bargaining in bad faith. Company personnel manager. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local officialdom. would be amounting to an illegal strike. is a plea for the preservation merely of their property rights. As above intimated. the employees and laborers of herein private respondent firm were fighting for their very survival. because such failure is a violation of the existing CBA and. the condition in which the employees found themselves vis-a-vis the local police of Pasig. in protest against alleged abuses of the Pasig police. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon. namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. its employees. Issue: Whether or Not the petitioners right to freedom of speech and to peaceable assemble violated. 875(Industrial Peace Act). thru Atty. C. The Management. de Leon. harassment and persecuted as they believed they were by the peace officers of the municipality. to 2 P. informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized that any demonstration for that matter should not unduly prejudice the normal operation of the Company. The employees' pathetic situation was a stark reality — abused. Material loss can be repaired or 116 . It was to the interest of herein private respondent firm to rally to the defense of. PBMEO thru Pagcu confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. and of the CBA providing for 'No Strike and No Lockout. hence this appeal. who shall fail to report for work the following morning shall be dismissed. on March 4.M. filed a charge against petitioners and other employees who composed the first shift. vexation or peril and as consequence perform more efficiently their respective tasks enhance its productivity as well as profits. so that they can report to work free from harassment.
As heretofore stated. Moreover. It is not shown whether the Clerk complied with this requirement. the cause proceeded and judgment by default was rendered. is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression. it was necessary to give notice by publication. Banco Espanol-Filipino vs. then by that much the circulation of the Issue raised by the demonstration is diminished. The mortgagor then instituted foreclosure proceeding but since defendant is a non-resident. under special provisions of law. DUE PROCESS IN FORECLOSURE PROCEEDINGS: Property is always assumed to be in the possession of its owner. and he may be safely held. Nevertheless. HOW ACQUIRED: Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process. after publication in a newspaper of the City of Manila. the more persons can be apprised of the purpose of the rally. The action to foreclose a mortgage is said to be a proceeding quasi in rem. to be affected with knowledge that proceedings have been instituted for its condemnation and sale. To regard the demonstration against police officers. which is in Amoy. not against the employer. Circulation is one of the aspects of freedom of expression. this sale 117 . 1908. If demonstrators are reduced by onethird. as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees. Afterwards.adequately compensated. 1810 without returning again to the Philippines. On August 7. by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. in person or by agent. under certain conditions. The decision was likewise published and afterwards sale by public auction was held with the bank as the highest bidder. the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution. the power of the court over the property is recognized and made effective. Engracio returned to China and there he died on January 29. Palanca JURISDICTION. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. China. The Clerk of Court was also directed to send copy of the summons to the defendant’s last known address. or it may result from the institution of legal proceedings wherein. of peaceful assembly and of petition. FACTS: Engracio Palanca Tanquinyeng y Limquingco mortgaged various parcels of real property in Manila to El Banco Espanol-Filipino. whereby it is brought into the actual custody of the law. stretches unduly the compass of the collective bargaining agreement. the primacy of human rights — freedom of expression. The more the participants.
or it may result from the institution of legal proceedings wherein. An illustration of what we term potential jurisdiction over the res. or it may refer to the power of the court over the parties. though related. about seven years after the confirmation of this sale. or some subsequent stage of its progress. or (2) over the property which is the subject to the litigation. ISSUE: Whether or not the lower court acquired jurisdiction over the defendant and the subject matter of the action Whether or not due process of law was observed RULING: On Jurisdiction The word “jurisdiction” is used in several different. though at all times within the potential power of the court. without taking actual physical control over the property assumes. How Jurisdiction is Acquired Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority. a motion was made by Vicente Palanca. and to vacate all the proceedings subsequent thereto. or it is acquired by the coercive power of legal process exerted over the person. as administrator of the estate of the original defendant. In the latter case the property. may never be taken into actual custody at all. is found in the proceeding to register the title of land under our system for the registration of land. An illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings. Here the court. under special provisions of law. wherein the applicant requested the court to set aside the order of default and the judgment.was confirmed by the court. The basis of this application was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action. 118 . to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. at the instance of some person claiming to be owner. and held to abide the final event of the litigation. However. the power of the court over the property is recognized and made effective. whereby it is brought into the actual custody of the law. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief. Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process. where the property is seized at the beginning of the action.
It is merely a means provided by law whereby the owner may be admonished that his property is the subject of judicial proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. are in a general way thus designated. though much increased. The periodical containing the publication may never in fact come to his hands. Though commonly called constructive. and it should therefore be considered with reference to the principles governing actions in rem. The judgment entered in these proceedings is conclusive only between the parties. xxx It is true that in proceedings of this character. prescribing the time within which appearance must be made. the action becomes as to him a personal action and is conducted as such. does not affect the proposition that where the defendant fails to appear the action is quasi in rem. and (4) judgment must be rendered upon lawful hearing. (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding. or other form of remedy. and the chances that he should discover the notice may often be very slight. and usually in addition thereto. however. foreclosure. or substituted service of process in any true sense. The action quasi rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant. Even where notice is sent by mail the probability of his receiving it.In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem. (3) the defendant must be given an opportunity to be heard. namely. is dependent upon the correctness of the address to which it is forwarded as well as upon the 119 . if the defendant for whom publication is made appears. used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. This. The expression "action in rem" is. we observe that in a foreclosure case some notification of the proceedings to the nonresident owner. To answer this necessity the statutes generally provide for publication. whether by attachment. however. is everywhere recognized as essential. It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it. On Due Process xxx As applied to a judicial proceeding. for the mailing of notice to the defendant. it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present. in its narrow application. All proceedings having for their sole object the sale or other disposition of the property of the defendant. by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. Passing at once to the requisite that the defendant shall have an opportunity to be heard. if his residence is known.
In the light of all these facts. it is evident that actual notice to the defendant in cases of this kind is not. and as publication was duly made in the newspaper. it would seem highly unreasonable to hold that failure to mail the notice was fatal. there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. all that due process of law thereafter requires is an opportunity for the defendant to be heard. We think that in applying the requirement of due process of law. and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction. that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event. Judge in the light of these conceptions. This in our opinion is all that was absolutely necessary to sustain the proceedings. The court either has jurisdiction or it has not. In the application of the idea of due process of law. It will be noted. in person or by agent.regularity and security of the mail service. it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. to be considered absolutely necessary. on the other hand. Ang Tibay v. would not avoid the judgment in this case. we think that the provision of Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. It will be observed that in considering the effect of this irregularity. Did the failure of the clerk to send notice to defendant’s last known address constitute denial of due process? The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice. it is clearly unnecessary to be so rigorous. and he may be safely held. furthermore. as amounts to a denial of due process of law. to be affected with knowledge that proceedings have been instituted for its condemnation and sale. The jurisdiction being once established. CIR Facts: 120 . but only in the case where the defendant's residence is known. and hence in our opinion that irregularity. is not such an irregularity. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. if proved. if in fact he did so fail in his duty. In the matter of jurisdiction there can be no distinction between the much and the little. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner. under certain conditions. it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. under the law.
It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions are far more comprehensive and extensive. decision and settlement. subject to. ibid.) When directed by the President of the Philippines. and in accordance with. and otherwise proceed in accordance with the requirements set forth. endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. the function of the Court of Industrial Relations. before hearing the dispute and in the course of such hearing. to consider. has filed an opposition both to the motion for reconsideration of the CIR and to the motion for new trial of the National Labor Union.) In fine. or a maximum “canon” or rental to be paid by the “inquilinos” or tenants or lessees to landowners. It is not intended to be a mere receptive organ of the Government. and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of Labor as existing and proper to be dealt with by the Court for the sake of public interest. and/or affecting. it shall investigate and study all pertinent facts related to the industry concerned or to the industries established in a designated locality. may employ mediation or conciliation for that purpose. The Supreme Court found it not necessary to pass upon the motion for reconsideration of the Solicitor-General. between employers and employees or laborers and between landlords and tenants or farm-laborers. affirmative and dynamic. arising from differences as regards wage shares or compensation. acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant. as it found no substantial evidence to indicate that the exclusion of the 89 laborers here was due to their union affiliation or activity. matter controversy or dispute arising between. hours of labor or conditions of tenancy or employment. (Section 5. ibid. as will appear from perusal of its organic law. and settle any question. arbitration. and landlords and tenants or farm-laborers. It has jurisdiction over the entire Philippines. ibid. (Paragraph 2. with instruction that it reopen the case. and regulate the relations between them. 1. the provisions of CA 103 (section 1). section 4. of any industrial or agricultural dispute causing or likely to cause a strike or lockout. with a view to determining the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants. it may appeal to voluntary arbitration in the settlement of industrial disputes. investigate.) It shall. Unlike a court of justice which is essentially passive. The Court granted the motion for a new trial and the entire record of this case shall be remanded to the CIR. It shall take cognizance for purposes of prevention. decide. is more active. provided that the number of employees. employers and employees or laborers.Ang Tibay. or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific 121 . Departure from rigid concept of separation of powers The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (CA 103). The Court of Industrial Relations. receive all such evidence as may be relevant. laborers or tenants or farm-laborers involved exceeds thirty. (Section A. It is more an administrative board than a part of the integrated judicial system of the nation.
(Section 13) And in the light of this legislative policy. b. The right to adduce evidence.” (Section 20. The fact. is vain. without regard to technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable. c. however.” Substantial evidence is more than a mere scintilla. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration. without the corresponding duty on the part of the board to consider it. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. in justiciable cases coming before it. The CIR free from rigidity of certain procedure requirements.” 122 . There is in reality here a mingling of executive and judicial functions. A decision with absolutely nothing to support it is a nullity. and the Act requires it to “act according to justice and equity and substantial merits of the case. Law is both a grant and a limitation upon power. but may include in the award. order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. it does imply a necessity which cannot be disregarded. after t the party is given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts.controversies between labor and capital in industry and in agriculture. namely. This principle emanates from the more fundamental principle that the genius of constitutional government is contrary to the vesting of unlimited power anywhere. The tribunal must consider the evidence presented. Not only must there be some evidence to support a finding or conclusion but the evidence must be “substantial. entirely ignore or disregard the fundamental and essential requirements of due Process in trials and investigations of an administrative character. Right to a hearing which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Wile the duty to deliberate does not impose the obligation to decide right. 2. appeals to this Court have been especially regulated by the rules recently promulgated by this Court to carry into effect the avowed legislative purpose. The liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. Cardinal primary rights respected in administrative proceedings. Guidelines a. a place when directly attached. CA 103. which is a departure from the rigid doctrine of the separation of governmental powers. but not free to ignore or disregard fundamental and essential requirements of due process involving proceedings of administrative character The CIR is not narrowly constrained by technical rules of procedure.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute. that of having something to support its decision. that the CIR may be said to be free from the rigidity of certain procedural requirements does not mean that it can. 3. d.
The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result.The statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be controlling.) The CIR may refer any industrial or agricultural dispute of any matter under its consideration or advisement to a local board of inquiry. in all controversial questions. and the reasons for the decisions rendered.’ The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. e. report and recommendation. It should not. but their report and decision are only advisory. and may delegate to such board or public official such powers and functions as the CIR may deem necessary. New trial granted under circumstances The interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. detract from their duty actively to see that the law is enforced. The legislation which created the Court of Industrial Relations and under which it acts is new. Only by confining the administrative tribunal to the evidence disclosed to the parties. The decision must be rendered on the evidence presented at the hearing. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case. g. however. or at least contained in the record and disclosed to the parties affected. The CIR or any of its judges. but such delegation shall not affect the exercise of the Court itself of any of its powers (Section 10) f. CA 103. The performance of this duty is inseparable from the authority conferred upon it. render its decision in such a manner that the parties to the proceeding can know the various issues involved. with right to appeal to board or commission. a justice of the peace or any public official in any part of the Philippines for investigation. But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. therefore. There is no statutory authority to authorize examiners or other subordinates to render final decision. PEOPLE VS CAYAT 123 . can the latter be protected in their right to know and meet the case against them. 4. must act on its or his own independent consideration of the law and facts of the controversy. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. and for that purpose. to solve the difficulty. and not simply accept the views of a subordinate in arriving at a decision. to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. The CIR should. It may be that the volume of work is such that it is literally impossible for the titular heads of the CIR personally to decide all controversies coming before them. (Section 9. a provincial fiscal.
1639. The distinction is reasonable for the Act was intended to meet the peculiar conditions existing in the non. or drink. mostly Filipinos.” The law. cry discrimination. the local-hires of private respondent School. The classification between the members of the nonChristian and the members of the Christian tribes is not based upon accident of birth or parentage but upon the degree of civilization and culture. INTERNATIONAL SCHOOL VS QUISUMBING Receiving salaries less than their counterparts hired abroad. The term ‘nonChristian tribes’ refers to a geographical area and more directly to natives of the Philippines of a low grade civilization usually living in tribal relationship apart from settled communities. It satisfies the requirements of a valid classification. exempts only the so-called native wines or liquors which the members of such tribes have been accustomed to take. Act No. 124 . It is designed to insure peace and order in and among the non. Held: No. The Act applies equally to all members of the class. have in his possession. one of which is that the classification under the law must rest on real or substantial distinctions.Christian tribes” The prohibition is germane to the purposes of the law.Facts: “Law prohibits any member of a non-Christian tribe to buy. That it may be unfair in its operation against a certain number of non. any intoxicating liquors of any kind.Christian tribes has often resulted in lawlessness and crime thereby hampering the efforts of the government to raise their standards of life and civilization. This law is not limited in its application to conditions existing at the time of the enactment. Issue: Whether or Not the law denies equal protection to one prosecuted and sentenced for violation of said law.Christians by reason of their degree of culture is not an argument against the equality of its operation nor affect the reasonableness of the classification thus established. The distinction is reasonable. It is intended to apply for all times as long as those conditions exist. receive.
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity." These conditions are not restricted to the physical workplace . These include housing. The Court finds this argument a little 125 . effort and responsibility. and home leave travel allowance. and Cultural Rights.The School grants foreign-hires certain benefits not accorded local-hires. the International Convention on the Elimination of All Forms of Racial Discrimination. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure. The Universal Declaration of Human Rights.all embody the general principle against discrimination. the general principles of fairness and justice. namely: (a) the "dislocation factor" and (b) limited tenure. the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex. the Convention (No. i. closes its eyes to unequal and discriminatory terms and conditions of employment. reduce social. This rule applies to the School. Our Constitution and laws reflect the policy against these evils. the very antithesis of fairness and justice. transportation. race or creed. through its Constitution. in spite of its primordial obligation to promote and ensure equal employment opportunities.the factory. Social. its "international character" notwithstanding. economic. the office or the field . skill." Persons who work with substantially equal qualifications. the International Covenant on Economic. likewise proscribes discrimination.e." International law. General principles of law include principles of equity. should be paid similar salaries. taxes. and political inequalities. The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires. Held: That public policy abhors inequality and discrimination is beyond contention. based on the test of what is reasonable. has incorporated this principle as part of its national laws. under similar conditions. The Constitution also directs the State to promote "equality of employment opportunities for all. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. which springs from general principles of law. 111) Concerning Discrimination in Respect of Employment and Occupation .but include as well the manner by which employers treat their employees. The Constitution specifically provides that labor is entitled to "humane conditions of work." Similarly. the Convention against Discrimination in Education." It would be an affront to both the spirit and letter of these provisions if the State.. The Philippines. shipping costs.
it is for the employer to explain why the employee is treated unfairly. ( Section 1. 194. involves serious hazards to criminal investigation. Court of Appeals. Searches and Seizures A search warrant is an order in writing issued in the name of the People of the Philippines. If the employer pays one employee less than the rest. De Villa. That would be adding insult to injury. commanding him to search for personal property described therein and bring it before the court. III. Forbidding the warrant and insisting on the subpoena instead when the custodian of the object of the search is not then suspected of crime. signed by a judge and directed to a peace officer. Because of the fundamental public interest in implementing the criminal law. (People vs. S. the Supreme Court has ruled that the motion to quash should be filed in the court that issued the warrant unless a criminal case has already been instituted in another court. (Salazar vs. as for his repose.]) The overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic” meant that absent a warrant or exigent circumstances. 5 Co. it is not for that employee to explain why he receives less or why the others receive more. (Semayne’s Case. should not be suppressed on the basis of surmise and without solid evidence supporting the change. Rep. An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. This presumption is borne by logic and human experience. Stanford Daily [436 US 547. a heretofore effective and constitutionally acceptable enforcement tool. (Zurcher vs. Rule 126. Rep. 445 U. Achacoso. 31 May 1978]) What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question. In this connection. determinable from a consideration of the circumstances involved. 91b. REQUIREMENTS OF FAIR PROCEDURE Arrest. Inherent in the courts’ power to issue search warrants is the power to quash warrants already issued. (Valmonte v. Revised Rules of Court) It is undisputed that only judges have the power to issue search warrants. 291 SCRA 400 ). as well for his defence against injury and violence.cavalier. B. 573. New York . 77 Eng. in which case. police could not enter a home to make an arrest. If an employer accords employees the same position and rank. the motion should be filed with the latter. The employer has discriminated against that employee. 195 [K. the search warrant. 216 ) The house of every one is to him as his castle and fortress. (Payton v. 183 SCRA 145 ) This function is exclusively judicial. 178 SCRA 211. the presumption is that these employees perform equal work. 91a. 603-604 (1980]) To Whom Directed 126 .
(People vs. vs. In the issuance of search warrants. cannot refuse to produce the books and papers of such corporation. 23 November 2001]) 127 . Corporations Although. Sitchon [GR 144309. (Stonehill. Hence. the Rules of Court requires a finding of probable cause in connection with one specific offense to be determined personally by the judge after examination of the complainant and the witnesses he may produce. Thus.) Crime should exist first. ed. a corporation is entitled to immunity. 43. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. under the 14th Amendment. et al. 652. an officer of a corporation which is charged with a violation of a statute of the state of its creation. et al. and is protected. 18 January 1991]) Who May Invoke the Right? a. It can only be proceeded against by due process of law. but an association of individuals under an assumed name and with a distinct legal entity. against unlawful discrimination. and particularly describing the place to be searched and the things to be seized. against unreasonable searches and seizures. (People vs. since there is no crime to speak of. the search warrant does not even begin to fulfill these stringent requirements and is therefore defective on its face. and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. Its property cannot be taken without compensation. In general Alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. Henkel. 2. Andre Marti [GR 81561. in relation to the phraseology of the 1935 Constitution) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof. Andre Marti [GR 81561. Diokno.The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. III. Art. A corporation is. after all. it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. 19 June 1967]) b. 18 January 1991]) The legality of a seizure can be contested only by the party whose rights have been impaired thereby.S. [GR L-19550. vs. under the 4th Amendment. (Solid Triangle Sales Corp. or of an act of Congress passed in the exercise of its constitutional powers. (Hale v. The restraint stayed with the State and did not shift to anyone else. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. 50 L. 201 U. The modifications introduced in the 1987 Constitution (RE: Sec.
Chief of Staff. Sitchon [GR 144309. Rule 113 to apply. Sitchon [GR 144309. 23 November 2001]) 2. article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. the Court ruled. vs. is actually committing. riding a motorcycle. vs. The purpose of each proceeding differs from the other. 23 November 2001]) 3. In the 128 . the mere act of looking from side to side while holding one’s abdomen. The same rule applies to crossing the street per se. Aruta. or is attempting to commit a crime. The first is to determine whether a warrant should issue or be quashed. and the preliminary investigation before an authorized officer on the other. looking at every person who came near. 291 SCRA 400 ) The proceedings for the issuance/quashal of a search warrant before a court on the one hand.” (People vs. For the exception in Section 5 (a). Probable cause in issuance of warrants distinguished from probable cause in preliminary investigation While the power to issue search warrants upon showing probable cause is a function which is exclusively judicial.Conditions for a valid warrant a) Existence of Probable Cause 1. the court must necessarily resolve whether or not an offense exists to justify the issuance or quashal of the search warrant. and (2) such overt act is done in the presence or within the view of the arresting officer. Neither does putting something in one’s pocket. nor does holding a bag on board a trisikad sanction State intrusion. does not justify a warrantless arrest under said Section 5 (a). whether an information should be filed in court. 26 December 1984]) In the determination of probable cause. handing over one’s baggage. AFP [GR 64261. Binad Sy Chua. Court of Appeals. Burgos v. Reliable information alone is insufficient. the Court declared invalid the arrest of the accused. Recently. in People v. who was walking towards a hotel clutching a sealed Zest-O juice box. (Solid Triangle Sales Corp. Personal knowledge was also required in the case of People v. or of standing on a corner with one’s eyes moving very fast. Probable cause defined. 288 SCRA 262 . are proceedings entirely independent of each other. (People vs. construed Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s). Doria. “the determination of probable cause during a preliminary investigation has been described as an executive function. two elements must concur: (1) the person to be arrested must execute an overt act indicating he has just committed. and the second. One is not bound by the other’s finding as regards the existence of a crime. Reliable information as basis for probable cause Notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband. (Solid Triangle Sales Corp.
Maspil. Saycon. or is attempting to commit the same. who was carrying a suspicious-looking gray luggage bag. People v. more faithfully adheres to the letter of Section 5(a). Montilla. which. Tangliben (accused was “acting suspiciously”). (People v. except the last two. Rule 113. 26 September 2003]) In fine. Jr. Malmstedt (a bulge on the accused’s waist). however. (People vs. thus deviating from Burgos. the arresting authorities were acting on information regarding an offense but there were no overt acts or suspicious circumstances that would indicate that the accused has committed. There is. 188 SCRA 751 ) (d) where Narcom agents had received information that a Caucasian coming from Sagada. and People v. probable cause exists in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused. Maspil. in turn. Jr. and Lising and Montilla were consented searches. would be boarding MV Dona Virginia and probably carrying shabu with him. Significantly. 241 SCRA 277 ) and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset. Bagista. 184 SCRA 220 ) (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana. Jr. connoting personal knowledge on the part of the arresting officer. Gonzales. People v. (People v. Tudtud [GR 144037. (People v.. Valdez. Lo Ho Wing. People v. the search was held to be incidental to a lawful arrest because of “suspicious” circumstances: People v. Bagista was both. Claudio. and People v. these cases. (People v. 193 SCRA 122 ) (g) where the arresting officers had received a confidential information that the accused. Rule 113. Balingan. Lising. People v. Note the phrase “in his presence” therein. is actually committing.following cases. Balingan. Maspil. the great majority of cases conforms to the rule in Burgos. Balingan was a search of a moving vehicle. To this class of cases belong People v. 198 SCRA 401 ) (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy — one who participated in the drug smuggling activities of the syndicate to which the accused belong — that said accused were bringing prohibited drugs into the country. People v. another set of jurisprudence that deems “reliable information” sufficient to justify a search incident to a warrantless arrest under Section 5 (a). Thus. involved a checkpoint search. would transport marijuana in a bag to Manila. 236 SCRA 325 ) (h) where police officers received an information that the accused. (People v. (People v. he failed to present his passport and other identification papers when requested to do so. whose identity as a drug distributor was established in a previous test-buy operation. come under some other exception to the rule against warrantless searches. Nevertheless. Valdez. Tangliben. (People v.. Malmsteadt. People v. 304 SCRA 140 ) b) Personal determination by judge 129 . Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline. de Guzman (likewise a bulge on the waist of the accused. (People v. who was wearing tightfitting clothes). In these cases. 160 SCRA 646 ) (b) where an informer positively identified the accused who was observed to be acting suspiciously.
) Inc. was in the best position to conceive. Gonzales. because the purpose thereof is to convince the committing magistrate. Court of First Instance of Tayabas [GR 45358. not of the facts merely reported by a person whom one considers to be reliable. Ruiz [GR L-32409. Ruiz [GR L-32409. for by that manner the Judge did not have the opportunity to observe the demeanor of the complainant and his witness. Section 2. and/or his witnesses.In General Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause.” The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. 27 February 1971]) Sufficiency of deposition or affidavit The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. 27 February 1971]. (Alvarez vs. (Phil.) Inc. vs. and administering the oath to the complainant and his witness. both of which prohibit the issuance of warrants except “upon probable cause. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant. Section 5. cannot be consider a personal examination. before issuing a search warrant. 145 SCRA 694) Listening to the stenographer’s readings of her notes. pursuant to Article III. to “personally examine on oath or affirmation the complainant and any witnesses he may produce. for it requires the judge. to a few words of warning against the commission of perjury. The reading of the stenographic notes to the Judge did not constitute sufficient compliance with the constitutional mandate and the rule. (Phil. on account of its training. and to propound initial and follow-up questions which the judicial mind. (Roan v. not the individual making the affidavit and seeking the issuance of the warrant. Codal references modified to suit present Constitution and Rules of Court) c) Examination of witnesses The implementing rule in the Revised Rules of Court. is more emphatic and candid. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Rule 126. and Section 4. Article III of the 1987 constitution . (Bache & Co. 25 November 1986. GR 71410. of the existence of probable cause. (Bache & Co. vs. Rule 126 of the Revised Rules of Court. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause.” Mere affidavits of the complainant and his witnesses are thus not sufficient. 29 January 1937]) 130 .
as this would mean that no warrant could issue. Revised Rules of Court). — that abuses may not be committed. it is not required that a technical description be given. Villareal.. the reasonable purpose of the warrant issued would be defeated by mere technicalities. vs. Court of Appeals [GR 126859. [Phil. particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize. One of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. Description of items to be seized While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder. (Bache and Co. 886.. all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Ruiz. or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. As a corollary. (In People v. 37 SCRA 823.). Dayrit [GR 82870. 42 Phil. with reasonable effort. we could not logically conclude that where the description of those goods to be seized have been expressed technically. yet the description is required to be specific only in so far as the circumstances will ordinarily allow. v. however. 57 Phil. or when the description expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making the search and seizure (idem. et al.. etc. is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of: 131 . dissent of Abad Santos. (Prudente vs. however. Rubio.d) Particularity of description Purpose A search warrant should particularly describe the place to be searched and the things to be seized. 384. Description of Place The rule is that a description of the place to be searched is sufficient if the officer with the warrant can. et al. to the end that “unreasonable searches and seizures” may not be made. 835 ) This interdiction against warrantless searches and seizures. The evident purpose and intent of this requirement is to limit the things to be seized to those. Otherwise. 57 Phil. 896) 1. and only those.. ascertain and identify the place intended to be searched. Inc. Rubio. (Uy Kheytin. 384). (Yousef Al-Ghoul vs. J. their description must be rather general. 389 ) Where by the nature of the goods to be seized. 14 December 1989]) 2. 4 September 2001]) Tests A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs.]. Rule 126. 3.
Customs searches. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest. and (3) arrests of escaped prisoners. 17 June 1999]) Valid Waiver The constitutional immunity from unreasonable searches and seizures. that the right exists. The consent must be voluntary in order to validate an otherwise illegal detention and search. 144 SCRA 1. and lastly. (People vs. specific. 16 . and intelligently given.) Hence. consent to a search is not to be lightly inferred. (3) whether he 132 . 2. 412 U. to wit: (1) arrests in flagrante delicto. Waiver or consent searches. Bustamonte. 3. Locsin. But in these cases. 218) In case of consented searches or waiver of the constitutional guarantee against obtrusive searches. an arrest is considered legitimate if effected with a valid warrant of arrest. secondly. In some instance. Locsin.. §135. the consent is unequivocal. de Garcia v. that said person had an actual intention to relinquish the right.. for. 308 SCRA 432 ) The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. 5. Stop and frisk situations (Terry search). 6. citing Pasion Vda. Chua Ho San. the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. actual or constructive. 4. Chua Ho San [GR 128222. 67 C. i. ( People v. 299) Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant.) The Supreme Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. the Rules of Court recognize permissible warrantless arrests. the police officers’ request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. it must first appear. J. (People vs. Search of moving vehicles. Seizure in plain view. that the person involved had knowledge. (2) arrests effected in hot pursuit.e.1.S. (2) whether he was in a public or secluded location. (Schneckloth vs. being a personal one cannot he waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. while as a rule. and Search incidental to a lawful arrest. uncontaminated by any duress or coercion. §136. 689 695). 65 Phil 689 . (68 Am Jur 2d Searches and Seizures. it is fundamental that to constitute a waiver of a constitutional right. (68 Am Jur 2d Searches and Seizures. first. of the existence of such a right. but must be shown by clear and convincing evidence. 65 Phil. Burgos.
(Const. by clear and positive testimony.objected to the search or passively looked on. (6) the defendant’s belief that no incriminating evidence will be found. California. 2d 685. Royer. There is ample justification. 1181. for that matter. Encinada. and (9) the possibly vulnerable subjective state of the person consenting. but is merely a demonstration of regard for the supremacy of the law. Mendenhall. United States vs. Elements 133 . 963 F. or waiving his constitutional rights. 280 SCRA 72.. 2d 137. Ed. (4) the education and intelligence of the defendant. could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. (5) the presence of coercive police procedures. 1180.. however. It is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. 446 U.) A search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control. J. 237 SCRA 424. 8th ed. I. if there was any. (United States vs. 23 L. for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. therefore.S. It is the State which has the burden of proving. There is no comparable justification. but a submission to the authority of the law. (56 C. 436-437 ) In any event.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen. (Chimel v. It is. 460 U. of course. (People v. Commission on Elections. Vol. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.S. 23 June 1969) Plain view doctrine 1. (7) the nature of the police questioning. for routinely searching any room other than that in which an arrest occurs — or. as Judge Cooley observes. (8) the environment in which the questioning took place. 491. the failure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto. Lim. the courts do not place the citizen in the position of either contesting an officer’s authority by force.. The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence. Tillman. pp.) Implied acquiescence to the search. be governed by a like rule. or to reach for incriminatory evidence and destroy it. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must. 544. I. citing Aniog v. for searching through all the desk drawers or other closed or concealed areas in that room itself. 630. that the necessary consent was obtained and that it was freely and voluntarily given. 91 . Florida vs.
In other words. supra).Under the “plain view doctrine. there must be: a. Musa) The elements of plain-view are: a.” unlawful objects within the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. 27 January 1993]) 3. Inadvertent discovery of the evidence. Where the object seized was inside a closed package. (Robbins v. then the contents are in plain view and may be seized. The evidence was inadvertently discovered by the police who have the right to be where they are. 145 SCRA 687. 378 Phil. if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article. supra) In the course of such lawful intrusion. Plain-view objects as evidence The warrantless search and seizure. 453 U. Immediate apparent illegality of the evidence before the police. he came inadvertently across a piece of evidence incriminating the accused. A prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties. When the discovery of the evidence did not constitute a search. its transparency. “Plain view” justified mere seizure of evidence without further search. d. Prior justification. California. 697 ) It is clear that an object is in plain view if the object itself is plainly exposed to sight. then the article is deemed in plain view. (Harris v. Bolasa. United States. The evidence must be immediately apparent. the warrantless seizure of the object was legal on the basis of the “plain view” doctrine and upheld the admissibility of said evidence. Musa) For this doctrine to apply. 751 ) It must be immediately apparent to the police that the items that they observe may be evidence of a crime. Musa [GR 96177. (People v. (People v. and c. (Roan v. However. Musa [GR 134 . 1078-1079 ) 2. 69 L. or if its contents are obvious to an observer. if the package proclaims its contents. (People v. whether by its distinctive configuration. New Hampshire. (People v. the object itself is not in plain view and therefore cannot be seized without a warrant. as an incident to a suspect’s lawful arrest. When object is in plain view The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. 2d 744. (Coolidge v. contraband or otherwise subject to seizure. The difficulty arises when the object is inside a closed container. The object must be open to eye and hand and its discovery inadvertent. may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. Gonzales. (People v. c. 1073. 420. Ed.S. b. but where the officer merely saw what was placed before him in full view. b.
the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them. New Hampshire. Of course. The doctrine serves to supplement the prior justification — whether it be a warrant for another object. State. Having observed that which is open. 2d 564 ) “Stop and frisk” 135 . (People v.96177. Ker v. Salanguit [GR 133254-55. 4. Limitations to plain-view The “plain view” doctrine may not be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant’s guilt. search incident to lawful arrest. Lee 274 US 559. 429 SW2d 122 ). Of course. the “plain view doctrine” can no longer provide any basis for admitting the other items subsequently found. the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 27 January 1993]) Merely to observe and look at that which is in plain sight is not a search. 429 SW2d 135).S. where no trespass has been committed in aid thereof.” (People vs. As has been explained that “What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. State. 27 January 1993]) Once the valid portion of the search warrant has been executed. The “plain view” doctrine neither justify the seizure of the object where the incriminating nature of the object is not apparent from the “plain view” of the object. hot pursuit. hot pursuit. 19 April 2001] citing Coolidge v. The “plain view” doctrine is usually applied where a police officer is not searching for evidence against the accused. 433. or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure.29 L. the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them. Where the contraband articles are identified without a trespass on the part of the arresting officer. 10 L. 726 . the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Moore v. search incident to lawful arrest. 71 L. but nonetheless inadvertently comes across an incriminating object.Ed. Musa [GR 96177. State of California 374 US 23. 1202 . is not search (Chadwick v. Ed. there is not the search that is prohibited by the constitution (US v. 403 U. or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure.2d. What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification –whether it be a warrant for another object.Ed.
however. Court of Appeals [GR 123595. de Villa). that is. (People v. the vehicles are neither really searched nor their occupants subjected to physical or body searches. in light of the police officer’s experience and surrounding conditions. the examination of the vehicles being limited to visual inspection. (Terry vs. which underlies the recognition that a police officer may. such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe. 29 March 1994]) Manner of search In carrying out warrantless searches of moving vehicles. Valmonte v. Barros) When. he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. approach a person for purposes of investigating possible criminal behavior even without probable cause. 12 December 1997]) SEARCH OF MOVING VEHICLES Peace officers may lawfully conduct searches of moving vehicles — automobiles. that either the motorist is a law-offender or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. Barros [GR 90640. Bagista. since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. to warrant the belief that the person detained has weapons concealed about him. peace officers are limited to routine checks. etc. trucks. (People v. it not being practicable to secure a judicial warrant before searching a vehicle. 136 . (Malacat vs.” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. under appropriate circumstances and in an appropriate manner. and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety. and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Such a search is a reasonable search under the Fourth Amendment. and any weapons seized may properly be introduced in evidence against the person from whom they were taken.” A genuine reason must exist. — without need of a warrant. Finally. Ohio [392 US 1. however. a “stop-and-frisk” serves a two-fold interest: (1) the general interest of effective crime prevention and detection. (People v. before the search. where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries. 10 June 1968]) While probable cause is not required to conduct a “stop and frisk. a vehicle is stopped and subjected to an extensive search.
supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 3. Exala. Escaño). The search which is normally permissible in this instance is limited to the following instances: 1. for that matter. b. the building and houses therein were deserted … [and that] the military operatives … had reasonable ground to believe that a crime was being committed. 4. coupled with good faith on the part of the peace officers making the arrest. A reasonable suspicion therefore must be founded on probable cause. the term probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged. 2. Routine inspections are not regarded as violative of an individual’s right against unreasonable search. Thus. the suspicion that the person to be arrested is probably guilty of committing the offense. Emergency circumstances As there was general chaos and disorder at that time … [that] the courts in the surrounding areas were obviously closed and. Where the inspection of the vehicles is limited to a visual search or visual inspection.. Probable cause defined Probable cause means an actual belief or reasonable grounds of suspicion. Valmonte vs. Simply looks into a vehicle. Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds. A checkpoint may either be a mere routine inspection or it may involve an extensive search.One such form of search of moving vehicles is the “stop-and-search” without warrant at military or police checkpoints which has been declared to be not illegal per se (People vs. de Gracia) Arrests with warrant a. (People vs. de Villa). Probable cause distinguished from prima facie evidence The confusing concepts of “prima facie evidence” and “probable cause” were clarified and set aright by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary 137 . Flashes a light therein without opening the car’s doors. Where the routine check is conducted in a fixed area. Where the occupants are not subjected to a physical or body search. and 6. 5. is based on actual facts. the case falls under one of the exceptions to the prohibition against a warrantless search. i. The grounds of suspicion are reasonable when.e. in the absence of actual belief of the arresting officers. for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists (People vs.
c.” It should. Thus.investigation is such evidence as suffices to “engender as well founded belief” as to the fact of the commission of the crime and the respondent’s probable guilt thereof. or is attempting to commit an offense. i. the contents of the prosecutor’s report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. the judge must decide independently. other than the prosecutor’s bare report. it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. The judge. the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. be in that sense. Obviously and understandably. Hence. Since their objectives are different. The rule requires. even if both should base their findings on one and the same proceeding or evidence. Rule 113. therefore. upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. determines whether a warrant of arrest should be issued against the accused. wherein the right to effect a warrantless arrest should be considered as legally authorized. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. in addition. the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause. that is. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. is that “reliable information” alone is not sufficient to justify a warrantless arrest under Section 5 (a). Parenthetically.e. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering 138 . Personal determination by judge The determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. It has the same meaning as the related phraseology used in other parts of the same Rule.” or where “a probable cause exists. that the investigating fiscal “finds cause to hold the respondent for trial.. Reliable information as basis for probable cause The long-standing rule in this jurisdiction. Lastly. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. is actually committing. applied with a great degree of consistency. he must have supporting evidence. that the accused perform some overt act that would indicate that he “has committed. there should be no confusion as to their distinct objectives.” d. However. but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. on the other hand.
counter-affidavits. call such witnesses as he may deem necessary before issuing the warrant. however. but that there is probable cause for believing that the person whose arrest is sought committed the crime charged. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions. is actually committing. not that the particular person has committed the crime. if any) upon which to make his independent judgment or. No rule can be laid down which will govern the discretion of the court in this matter. 139 . His conclusion as to whether “probable cause” existed or not is final and conclusive.the arrest of an accused. or any other person whose statement or affidavit is entitled to credit in the opinion of the judge or magistrate. When. or has escaped while being transferred from one confinement to another. The issuance of the warrant of arrest is prima facie evidence that. in his presence. then his conclusion is sufficient upon which to issue the warrant for arrest. at the very least. If he is satisfied that “probable cause” exists from the facts stated in the complaint. we repeat. upon which to verify the findings of the prosecutor as to the existence of probable cause. sworn statements of witnesses or transcript of stenographic notes. the person to be arrested has committed. Arrest without warrant. as Respondent Court did in this case. 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.” (Ho vs. affidavits. People. There is no law which prohibits him from reaching the conclusion that “probable cause” exists from the statement of the prosecuting attorney alone. and 3. He may. 280 SCRA 365) The question whether “probable cause” exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant. 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. which in turn gives his report the presumption of accuracy. rather. 2. — A peace officer or a private person may. Section 5. commands the judge to personally determine probable cause in the issuance of warrants of arrest. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation. there existed “probable cause” for believing that the person against whom the warrant is issued is guilty of the crime charged. when lawful. in his judgment at least. It simply means that sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. If he decides. or is attempting to commit an offense. the Constitution. without a warrant. is that the judge must have sufficient supporting documents (such as the complaint. made upon the investigation by the prosecuting attorney. upon the proof presented. that probable cause exists. It does not mean that particular facts must exist in each particular case. arrest a person: 1. if he is not satisfied. no objection can be made upon constitutional grounds against the issuance of the warrant. What is required.
or hears the disturbances created thereby and proceeds at once to the scene thereof. within the meaning of the rule authorizing an arrest without a warrant. than for the purpose of immediately prosecuting them in court for a statutory offense. therefore. But they must have direct 140 . most assuredly so in case of invasion. a peace officer or a private person may without a warrant. when the officer sees the offense. 17 June 1999]) Time of Arrest 1. need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. arrest a person. Chua Ho San [GR 128222. or is attempting to commit an offense. Sucro [GR 93239. The arresting officer. 18 March 1991]) Personal Knowledge of the Offense In cases of in flagrante delicto arrests. although at a distance. when. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection. It is not necessary that the arresting officers have direct knowledge of the crime. the person to be arrested has committed. Ramos [GR 81567.Rebellion as Continuing Offense The arrest of persons involved in the rebellion whether as its fighting armed elements. merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. The arrest. (People vs. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. or for committing non-violent acts but in furtherance of the rebellion. (People vs. personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. must have personal knowledge of such fact or as recent case law adverts to. in his presence. (Umil vs. This doctrine is based on the rule that an arrest can be made without warrant when an offense has just been committed and the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that a crime has just been committed. or any other milder acts but really in pursuance of the rebellious movement. is actually committing. therefore. Hot Pursuit Paragraph (b) of Section 5 is otherwise known as the doctrine of “hot pursuit” arrests. is more an act of capturing them in the course of an armed conflict. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces. to quell the rebellion. 9 July 1990]) Committed in the Presence of Police Officers An offense is committed in the presence or within the view of an officer.
“Has just been committed” It is not sufficient that a crime was indeed committed but it is required that the said crime has just been committed. that the issuance is urgent” merely provides for a guideline. 161. 227 SCRA 614. 14 December 1989]) Effect of Entry of Plea By pleading “not guilty” at their arraignment. (People vs. (People vs. 100 ). The warrantless arrest. dated 14 August 1987. nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability. departure from which would not necessarily affect the validity of an otherwise valid search warrant. that fact alone would not retroactively validate the warrantless search and seizure. (Pineda.. Even if it were. The Revised Rules on Criminal Procedure. De Guzman. 27 November 2001]) Validity of Conviction The illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. to the satisfaction of the judge. cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused. Doria.) Marked Money The discovery of the marked money on [a person] did not mean he was caught [in fragrante delicto]. (People vs. the arrest is illegal. but in such cases the applicant shall certify and state the facts under oath. (Prudente vs. 231 SCRA 701. 26 May 1993]) Lack of Urgency Applications made during weekends and holidays. for the legality of an arrest affects only the jurisdiction of the court over their persons. which reads “3. 626 ) 141 .knowledge or view of the crime right after its commission. 710 . 2003 Edition. Ernesto L. Enrile [GR 74189. De Guia. 301 SCRA 668) 2. The Supreme Court’s Circular 19. Manlulu. during Saturdays. The marked money was not prohibited per se. Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched. Plana [GR 128285. (People vs. Applications filed after office hours. Dayrit [GR 82870. People vs. thereby curing any defect in their arrest. (People vs. Otherwise. the accused submitted to the jurisdiction of the trial court. 224 SCRA 93. The proximity of time of commission of the crime must be close to the time of the arrest. even if illegal.
economic and political dev''t of the NCR. maintaining peace and order. No proof has been presented before the Court to show that. As part of its duty to maintain peace and order. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. 2 The right of the people to be secure in their persons. and providing an atmosphere conducive to the social. w/o a Search Warrant and/ or court order. Petitioners aver that. the military. and particularly describing the place to be searched and the persons or things to be seized. III. the NCRDC installed checkpoints in various parts of Valenzuela and MM. 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. capricious and whimsical disposition of the military manning the checkpoints. for the purpose of establishing an effective territorial defense. committed specific violations of petitioners' rights against unlawful search and seizure. in the course of their routine checks. papers. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed. the NCRDC was activated w/ the mission of conducting security operations w/in its area or responsibility and peripheral areas. Not all searches and seizures are prohibited. Self-preservation of the State is paramount over individual rights 142 .Art. especially at night or at dawn. the Valenzuela residents are worried of being harassed and of their safety being placed at the arbitrary. illegal. was gunned down allegedly in cold blood by members of the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired in the air. Those w/c are reasonable are not forbidden. Sec. HELD: Constitutional Right against unreasonable searches and seizures is a personal right Petitioner’s concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints per se. considering that their cars and vehicles are being subjected to regular searches and check-ups. because of the institution of said checkpoints. VALMONTE VS DE VILLA Facts: On 1/20/87. in the interest of public security. Checkpoints may not also be regarded as measures to thwart plots to destabilize the government. The setting up of the questioned checkpoints may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. or threatened to be infringed. Their alleged fear for their safety increased when Benjamin Parpon. houses. indeed.
pertains to the President by virtue of the office and may be invoked only by the holder of the office. True. however. at the cost of occasional inconvenience. he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and.Between the inherent right of the state to protect its existence and promote public welfare and an individual’s right against a warrantless search w/c is. Thus. Following established doctrine and procedure. not by any other person in the President's behalf. But. are part of the price we pay for an orderly society and a peaceful community. the manning of checkpoints by the military is susceptible of abuse by the military in the same manner that all governmental power is susceptible of abuse. Sound policy dictates this procedure. also demands undivided attention. on the basis thereof. Personal Examination (by the judge) SOLIVEN VS MAKASIAR Warrant personally determined by the judge What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. considering that being the Chief Executive of the Government is a job that. But this privilege of immunity from suit. 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. Thus. President’s immunity from suit The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction. Moreover. The choice of 143 . aside from requiring all of the office holder's time. the checkpoints during these abnormal times. there is nothing in our laws that would prevent the President from waiving the privilege. otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. issue a warrant of arrest. or (2) if on the basis thereof he finds no probable cause. discomfort and even irritation to the citizen. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. when conducted w/in reasonable limits. the former should prevail. reasonably conducted. the judge is not required to personally examine the complainant and his witnesses.
since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others 144 . The dried leaves were sent to the National Bureau of Investigation for examination. proceeded to Paseo de Blas where the mauling incident took place. Section 5. The Forensic Chemist found them to be marijuana. Rule 113 of the Revised Rules of Court provide: SECTION 5. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. the person to be arrested has committed. Arrest without warrant. They told him to come out of the house and they introduced themselves as policemen. reported the happening to the policemen and pinpointed her neighbor. Gerente. Issue: WON the arrest and subsequent search and seizure was valid. They were informed by the prosecution witness.whether to exercise the privilege or to waive it is solely the President's prerogative. when lawful. When. The eye-witness. that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito. without a warrant. They saw Blace dead in the hospital and when they inspected the scene of the crime. together with Police Corporal Romeo Lima and Patrolman Alex Umali. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. It is a decision that cannot be assumed and imposed by any other person. Edna Edwina Reyes. they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. in his presence. as one of the killers. The policemen proceeded to the house of the appellant who was then sleeping. — A peace officer or a private person may. Edna Edwina Reyes. Patrolman Urrutia. the police received a report of such matter. There they found a piece of wood with blood stains. is actually committing. Under those circumstances. Allowable warrantless Searches PEOPLE VS GERENTE Accused conspired with two others to kill the victim. Right away. or is attempting to commit an offense b. Hours later. Held: ARREST WITHOUT WARRANT IS LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME Paragraphs (a) and (b). a hollow block and two roaches of marijuana. When an offense has in fact just been committed. arrest a person: a. and he has personal knowledge of facts indicating that the person to be arrested has committed it.
and the most depraved of criminals. thus: "To hold that no criminal can. violence. to a large extent. If the person cannot afford the services of counsel. In Adams vs. 221. The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves. These rights cannot be waived except in writing and in the presence of counsel.had killed him. in any case. Search incident to lawful arrest. facilitating their escape in many instances. without a search warrant. they could lawfully arrest Gerente without a warrant. 1991 Edition." Custodial Investigations (Section 12) Section 12. force. it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person. No torture." SEARCH AND SEIZURE IS VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. 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. Malasugui. or any other means which vitiate the free will shall be used 145 . 143. 150. 63 Phil. 47 U. Williams. In Umil vs. This is in accordance with Section 12. Ramos. would be to leave society. the most expert. 2. 228. Cruz's Constitutional Law. 187 SCRA 311. 1. the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. at the mercy of the shrewdest. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Rule 126 of the Revised Rules of Court which provides: SECTION 12. intimidation. If they had postponed his arrest until they could obtain a warrant. for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. he would have fled the law as his two companions did. — A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense. threat. be arrested and searched for the evidence and tokens of his crime without a warrant.S. p. cited in Justice Isagani A. he must be provided with one. or within his immediate control may be seized.
To put the accused on equal footing with the State "in custody" . circumstances of a crime without focus on any particular suspect. or indirectly using information obtained in the illegal search “But For” Test – or taint doctrine. incommunicado. like in a police lineup. but given in an ordinary manner (spur-of-the-moment statements) – res gestae 146 . 4. the evidence would not have come to light but for the illegal action of the police WHEN CUSTODIAL INVESTIGATION BEGINS: Restrictive View limited to in-custody interrogations as when the accused has been arrested and brought to the custody of the police for questioning Expanded View – contemplates two situations: (1) general inquiry as to identification.includes deprivation or mere restriction on physical liberty Custodial Investigation immediately after arrest – investigation conducted by law enforcer The Fruit of the Poisonous Tree Doctrine – all evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed. is not considered part of “custodial investigation” hence the accused may be identified by a witness in a police line-up even if made not in the presence of counsel NOT PART OF CUSTODIAL INVESTIGATION: Police line-up. or during process of identification Spontaneous statement not elicited through questioning. and their families. general inquiry as to identification. 3. 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. From Miranda to Bacamante . solitary. or other similar forms of detention are prohibited. whether it was obtained directly through the illegal search itself. Secret detention places. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. and (2) suspicion is focused on a particular person and questions are asked from him to elicit admissions or information **Under the expanded view.against him.
provided the waiver is made voluntarily. he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking. The defendant may waive effectuation of these rights. Are X’s statements admissible? A: Yes. Q: Miguel. An AFP member is not a law enforcer. the police may not question him. A COA auditor is not a law enforcer. Q: H. we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed. Ed 2d 694 Our holding will be spelled out with some specificity in the pages which follow. unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it. Admissible? 147 . The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. that any statement he does make may be used as evidence against him. whether exculpatory or inculpatory. He questioned X. however. either retained or appointed. By custodial investigation. without benefit of counsel. The paramour was able to escape while W was detained by H and then questioned. Likewise. H filed a case for adultery against W and used her statement as evidence. the following measures are required: Prior to any questioning. a public employee therein. there can be no questioning. it is this: the prosecution may not use statements. briefly stated. and husband of W. Arizona. but. and that he has a right to the presence of an attorney. If.Volunteered statements Extrajudicial admission to the prosecutor or a private person Investigation made by a citizen or private security officer Miranda Doctrine: Rights Under Custodial Investigation Miranda vs. knowingly and intelligently. a police officer. stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Admissible? A: Yes. arrested B and questioned him without benefit of counsel. 16 L. Later. an AFP major. if the individual is alone and indicates in any manner that he does not wish to be interrogated. the person must be warned that he has the right to remain silent. saw the latter cheating on him with her paramour. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx Q: COA auditor investigated certain anomalies in the accounts of a government agency.
Any statement 148 . it shall be the duty of the arresting officer to inform him of the reason for the arrrest and he must be shown the warrant of arrest.or by letter or messenger. was asked to provide the police investigating team with samples of his DNA.A: Yes. Admissible? A: No. The person arrested shall have the right to communicate with his lawyer. his wife. not covered by the right against self-incrimination. The act of providing samples for identification is a mere mechanical act. Even if H is a police officer. by any person on his behalf. Q: If in the above case. if any. Go) Reenactment PEOPLE VS GALIT At the time the person is arrested. he shall be informed of his constitutional rights to remain silent and to counsel. the accused in a case for rape. the time when he questioned W. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested. He did so without assistance of counsel. and that any statement he might make could be used against him. Admissible? A: Yes. It shall be the responsibility of the arresting officer to see to it that this is accomplished. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx RIGHT TO REMAIN SILENT • Refers not only to testimonial confessions but also to acts • But does not apply to acts that are merely mechanical (does not require use of intelligence) or to general questions MECHANICAL ACTS: Paraffin test DNA test Examination of physical body Fingerprinting Being asked to step on a footprint to compare foot size NOT MECHANICAL: Handwriting Initials on marked money Signing of inventory receipts in search warrant (see People vs. Handwriting is not a mere mechanical act. also without counsel. he was not acting in his official capacity as a police officer but in his personal capacity as her husband. The right to counsel may be waived but the wiaver shall not be valid unless made with the assistance of counsel. Q: X. X was also made to sign booking sheets and police reports. a relative. or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. or anyone he chooses by the most expedient means by telephone if possible .
in his TV interview. in whole or in part. PEOPLE VS MAHINAY Accused Larry Mahinay during the custodial investigation and after having been informed of his constitutional rights with the assistance of Atty. For in all probability. Said confession of accused Larry Mahinay given with the assistance of Atty. we find such admission proper. Besides. accused.obtained in violation of the procedure herein laid down. Restituto Viernes is believed to have been freely and voluntarily given. would have been sympathetic with him. Restituto Viernes of the Public Attorney’s Office voluntarily gave his statement admitting the commission of the crime. He did not even inform the Inquest Prosecutor when he swore to the truth of his statement on July 8. As the trial court stated in its Decision: Furthermore. the police. Atty. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. There is no showing that the interview of accused was coerced or against his will. 150 SCRA 311). Hence. and that Edward Endino had shot him (Aquino). However. Held: Apropos the court a quo’s admission of accused-appellant’s videotaped confession. it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. Viernes. 1984. 1995 that he was forced." PEOPLE VS ENDINO Accused murdered Dennis Aquino. The Court noted that a lawyer from the Public Attorney’s Office. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Accused then later confessed in TV Patrol. he informed and explained to the accused his constitutional 149 . shall be inadmissible in evidence. if he had indeed been forced into confessing. in all likelihood. and the recurrence of this phenomenon in several cases. freely admitted that he had stabbed Dennis Aquino. he could have easily sought succor from the newsmen who. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly. That his confession abound with details known only to him. whether exculpatory or inculpatory. delos Santos L-3398 May 29. there is basis to accept the truth of his statements therein. may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. That accused did not complain to the proper authorities of any maltreatment on his person (People vs. with the connivance of unscrupulous media practitioners. Restituto Viernes and as testified by said Atty. because of the inherent danger in the use of television as a medium for admitting one’s guilt. openly and publicly in the presence of newsmen. Was later apprehended. We agree. coerced or was promised of reward or leniency.
Traumatic Head injury Contributory substantiate.such as the common experience and observation of mankind can approve as probable under the circumstances. correct and freely or voluntarily given. invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest. except its conformity to our knowledge. jurisprudence and Republic Act No.” Procedure. 2. Appellant’s defense is highly improbable. Every other warnings. Consistent with the testimony of the accused that he pushed the victim and the latter’s head hit the table and the victim lost consciousness. the confession of the accused is held to be true. but must be credible in itself. The post mortem findings shows that the cause of death Asphyxia by manual strangulation. guidelines and duties which a law enforcement officer must observe at the time of making an arrest and again at and during the time of the custodial interrogation in accordance with the Constitution. threat or promise of reward or leniency nor that the investigating officer could have been motivated to concoct the facts narrated in said affidavit. That he signed the statement given by the accused. Whatever is repugnant to these belongs to the miraculous. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him. The person arrested. 1. We have no test of the truth of human testimony. observation and experience. 7438. intimidation. 150 . in the words of Vice-Chancellor Van Fleet of New Jersey: “Evidence to be believed must not only proceed from the mouth of a credible witness. Accused pleaded not guilty but was proven guilty on account of his extrajudicial confession. information or communication must be in a language known to and understood by said person. and is outside of judicial cognizance. if any. Issue: Was the confession valid and admissible in court? Held: Confession is held to be true absent any factors affecting the validity of its acquisition There being no evidence presented to show that said confession were obtained as a result of violence.rights and was present all throughout the giving of the testimony. maltreatment. detained. Lawyer from the Public Attorney’s Office is expected to be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical conditions of the accused. torture.
he has the right to communicate or confer by the most expedient means – telephone. or may be appointed by the court upon petition of the person arrested or one acting in his behalf. one will be provided for him.He must also be informed that any statement or evidence. regardless of whether he may have answered some questions or volunteered some statements. obtained in violation of any of the foregoing. if the person arrested waives his right to a lawyer. 10. otherwise. the right to counsel or any of his rights does not bar him from invoking it at any time during the process. It shall be the responsibility of the officer to ensure that this is accomplished. The person arrested must be informed that. or be visited by/confer with duly accredited national or international non-government organization. radio. as the case may be. he must be informed that it must be done in writing AND in the presence of counsel. the police may not interrogate him if the same had not yet commenced. He must be informed that if he has no lawyer or cannot afford the services of a lawyer. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication. knowingly and intelligently and ensure that he understood the same. 11. 4. he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made. or the interrogation must ceased if it has already begun. and that a lawyer may also be engaged by any person in his behalf. letter or messenger – with his lawyer (either retained or appointed).3. 6. In addition. he must be warned that the waiver is void even if he insist on his waiver and chooses to speak. any member of his immediate family. 5. 8. 7. in whole or in part. 9. at any time. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer. That whether or not the person arrested has a lawyer. priest or minister chosen by him or by any one from his immediate family or by his counsel. He must be informed that he has the right to waive any of said rights provided it is made voluntarily.The person arrested must be informed that his initial waiver of his right to remain silent. whether inculpatory or exculpatory. shall be inadmissible in evidence. preferably of his own choice. or any medical doctor. PEOPLE VS BASAY 151 .
then it is admissible even if done without assistance of counsel. Gilbert Zulueta was requested to act as counsel for accused during the custodial investigation. In case of waiver of rights.An accused's right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. Fradejas stated that Atty. Atty. even if accused himself is a lawyer • • “Independent” . the same must be done in writing and in the presence of counsel.Absolute.counsel is not hampered with any conflicts of interest “Competent” . As to who has burden of proving the voluntariness of the confession and that the constitutional safeguards have been complied with. Moreover.” PEOPLE VS BACAMANTE Patrolman Salvador Fradejas of the WPD Homicide Station. • A legal officer of a city cannot qualify as “independent” counsel. Gilbert Zulueta himself admitted that he could not remember having informed accused of the constitutional presumption of his innocence. the prosecution has the burden of proof. RIGHT TO INDEPENDENT AND COMPETENT COUNSEL . when the investigation officer starts to ask question to elicit information or confession or admission. that is. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent. Waiver: 152 . the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and consequence of his extrajudicial confession in relation to his constitutional rights. Atty. testified that he was the one who was present when accused executed his extrajudicial confession. • If admission is made before a private person.counsel who is vigilant in protecting the rights of accused Accused must be appraised of his rights under custodial investigation NOTA BENE: • The right to counsel attaches upon investigation. It is to be noted however that Fradejas admitted that while accused was undergoing investigation and answering the questions propounded to him. to counsel and to be presumed innocent. Zulueta was not at all times within hearing distance of accused but was merely "within the premises". Zulueta would "come and go" and that Atty. Held: The term "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession.
and which held: Finally. he reaffirmed it.PEOPLE VS PAMON Accused was charged with murder. threat. instead of repudiating his Confession. Quijano. The evidence presented by the prosecution has adequately established that Atty. such allegation is another naive attempt of appellants to backtrack from their prior voluntary admission of guilt. As has been pointed out. . . Rubencio Ligorio was not a counsel of his choice. . the latter's confession is considered as valid and binding upon him. intimidation. In People vs. But Fortunato Pamon claimed that Atty. In the case at bar. A confession is admissible until the accused successfully proves that it was given as a result of violence. second. Rubencio Ligorio conferred. 1987. the alleged use of force and intimidation has not been substantiated by evidence other than the statements of the appellants. when he and Atty. In the last instance. the trial court upheld the voluntariness of the extrajudicial confession. Fortunato Pamon had several chances to deny the voluntariness of his Confession. A confession constitutes an evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. and third. the confession taken in the presence of such counsel is inadmissible except where there is conformity with the counsel provided by the investigators and the confessant. 153 . . First. or promise of reward of leniency. Rubencio Ligorio was present when the confession was made and subscribed to. when he was before the investigating officer on March 23. This presumption of spontaneity and voluntariness stands unless the defense proves otherwise. the Court dismissed the plea that the trial court erred in admitting the accused's allegedly involuntary extrajudicial confession. Issue: Was the extrajudicial confession valid? Held: Extrajudicial admission is sustained absent any proof of irregularities in its procurement The Court upheld the admissibility of his extrajudicial Confession. he executed an extrajudicial confession which he later retracted during the trial on the ground that he was not given a counsel of his own choice. 1987. when he subscribed the Confession before Judge Vicente Aseniero on March 20. Where counsel is provided for by investigators.
We are well aware of the constitutional mandate that the counsel present must not be just any counsel, but one who has been chosen by the accused. In a recent case, we affirmed the rule that ". . . no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf". Thus, We already had occasion to rule that where counsel is provided for by investigators, the confession taken in the presence of such counsel is inadmissible as evidence because it fails to satisfy the constitutional guarantee. But this doctrine recognizes certain exceptions. Where the counsel has been appointed by the investigators with the conformity of the confessant, the latter's confession is considered as valid and binding upon him. The decision in People vs. Alvarez is also relevant to the case at bar. We said therein that "while it may be that a lawyer was provided by the police, Alvarez never signified to have a lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was assisted by a counsel of his choice is hereby sustained. Right to Bail Art. III, Section 13 All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Rights during trial Art. III, Section 14 1. No person shall be held to answer for a criminal offense without due process of law. 2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.
NUNEZ VS SANDIGANBAYAN (Co Chiong v. Cuadern, the general guarantees of the Bill of Rights, included among which are the due process of law and equal protection clauses must "give way to [a] specific provision) ISSUE: Presidential Decree No. 1486, as amended, creating the Sandiganbayan is violative of the due process, equal protection, and ex post facto clauses of the Constitution. HELD: • In categorical and explicit language, the Constitution provided for but did not create a special Court, the Sandiganbayan with "jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in governmentowned or controlled corporations, in relation to their office as may be determined by law." To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason.” Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." In People v. Vera, Classification to be valid, must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Petitioner, moreover, cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno, a 1949 decision, that the general guarantees of the Bill of Rights, included among which are the due process of law and equal protection clauses must "give way to [a] specific provision, " in that decision, one reserving to "Filipino citizens of the operation of public services or utilities." The scope of such a principle is not to be constricted. It is certainly broad enough to cover the instant situation. 155
The Kay Villegas Kami decision promulgated in 1970, cited by petitioner, supplies the most recent and binding pronouncement on the matter(on ex post facto). To quote from the ponencia of Justice Makasiar: "An ex post facto law is one which: 1. makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; 2. aggravates a crime, or makes it greater than it was, when committed; 3. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. alters the legal rules of evidences, and authorizes conviction upon less or different testimony . than the law required at the time of the commission to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful, and 5. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty."
MARQUEZ VS COMELEC Please check…too many Marquez cases, each doesn’t make any sense… Right to be heard PEOPLE VS AGBAYANI (PRE-ARRAIGNMENT GUIDELINES) Issue: Whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. Held: Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stands. In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 of Rule 116 of the Rules of Court, namely, 1. to inform the accused that he has the right to have his own counsel before being arraigned; 2. after giving such information, to ask accused whether he desires the aid of counsel; 3. if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and 4. if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him.
It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. In United States v. Labial, in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. “*** The cases of People v. Domenden and People v. Cachero cited by appellant are inapplicable. In both casis the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellant’s right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: Sec. 9. Time to prepare for trial. -- After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly.  In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. Right to Speedy Disposition Art. III, Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Privilege against Self-Incrimination Art. III, Section 17 himself. BILL OF ATTAINDER 157 No person shall be compelled to be a witness against
Art. III, Section 22
No ex post facto law or bill of attainder shall be enacted.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx RIGHT TO BE HEARD Right to be present at the trial • • Accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence, if he so desires Limited only to trial court proceedings and only to the actual trial therein, not to appellate proceedings or proceedings subsequent to the entry of final judgment, looking only to the execution of the sentence
GENERAL RULE: Accused may waive his right to be present during trial EXCEPTIONS: (Presence of Accused is Mandatory) Arraignment and plea – presence of lawyer is also indispensable • • during trial, for identification during the promulgation of sentence, unless for a light offense wherein the accused may appear by counsel or a representative
NOTA BENE: • • • • • If the judgment is one of acquittal, the accused need not be present. If the judgment is conviction but for a light offense, the accused need not be present. If the judgment is conviction and the offense is grave, the presence of the accused is mandatory. If trial in absentia and judgment is rendered, it will be promulgated even without presence of accused but he will be furnished with copies sent to his last known address. If appeal, presence of the accused is not necessary. It is the duty of the appellate court to appoint counsel, whose presence is indispensable.
Right to counsel • • • if the accused appears without an attorney, he must be informed by the court of such right before being arraigned, and must be asked if he desires to have the aid of counsel if he can’t afford one, a counsel de officio shall be appointed for him the indispensable aid of counsel continues even at the stage of appeal 158
not waivable the right to be represented by counsel is ABSOLUTE, but the option of the accused to hire one of his own choice is LIMITED
Right to an impartial judge • a judge who had conducted the preliminary investigation and made a finding of probable cause is not disqualified from trying the case, in the absence of evidence of partiality
Right of confrontation • Available only during trial, not during preliminary investigation • REASON: so defendant may make objection to the witness or so witness may identify him Right to cross-examine if the defense counsel deferred cross-examination of the prosecution witness and then this witness dies, accused cannot anymore ask the witness’ direct examination to be expunged from the records since the denial of the right to confrontation is through no fault of plaintiff EXCEPTIONS: • • • Dying Declaration Trial in absentia - REQUISITES: (1) accused has been arraigned; (2) accused has been duly notified of the date of trial; (3) failure of the accused to appear is unjustified Depositions - witness is dead, insane or otherwise cannot be found, with due diligence, in the Philippines
Right to compulsory processes 2 KINDS OF SUBPOENA: • • Ad testificandum - to compel a witness to attend and testify Duces Tecum to compel a person having under his control documents or papers relevant to the case to bring such items to court during trial
RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION 159
• • • • •
presence of accused is indispensable during arraignment and promulgation of judgment of conviction after arraignment, only formal amendments to the Information may be granted by court not waivable description, not designation of the offense, controls all the attending aggravating and qualifying circumstances must be alleged in the Information and proved during trial; EXCEPT: for purposes of proving moral damages only, then it is allowed to be proved even if not alleged
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL - available in every criminal prosecution “Speedy” there is no fixed criterion in our statues to determine with precision the time for speedy trial. As soon as after indictment as the prosecution can with reasonable diligence prepare for it. It means a trial free from vexatious, capricious, and oppressive delays. But justice and fairness, not speed, are the objectives
NOTA BENE: If the accused is acquitted on ground of denial of his right to speedy trial, it is a judgment on the merits and therefore, first jeopardy attaches. “Impartial” - cold neutrality of an impartial judge; absence of bias or prejudice “Public” - open to the free observation of all - EXCEPT: evidence to be adduced at the trial is of such character as to be offensive to decency and public morals SECTION 17 Right Against Self-Incrimination Sec. 17: No person shall be compelled to be a witness against himself. • • • Available both before or during criminal prosecution Accused is competent to testify in his behalf, but he is entitled to the right not to testify as a witness against himself. He cannot be compelled to incriminate himself; that is, to say or do anything that can be used against himself Accused can invoke this right from the beginning; however in case of witness, he can invoke this right only when the questions start to become incriminating
RATIONALE: • Public policy 160
Right against ex-post facto law and bill of attainder (Sec. 16) 8. SUBSTANTIVE RIGHTS UNDER DUE PROCESS Privilege of Writ of Habeas Corpus Section 15 The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion. 14(2)) 7. Right to be informed of the nature and cause of accusation against him (Sec. Right to due process (Sec. Right to bail (Sec. impartial and public trial (Sec.• Humanity GENERAL RULE: The accused cannot be compelled to testify against his coaccused under the theory that the “act of one is the act of all. Right to have compulsory process to secure attendance of witnesses and production of evidence on his behalf (Sec. 17) 8. Right to confrontation (Sec. 19) 161 . 12) 3. Right to be heard by himself and counsel (Sec. 14(2)) 2. 14(2)) 6. Custodial rights (Sec. 22) After Conviction: • Right against excessive fines and cruel. Right to counsel 6. 13) 7. Right to be informed of his rights 4. 14(2)) 3. Right to remain silent 5. 9.” EXCEPTIONS: If he is discharged as a state witness After he is convicted or acquitted By trying him separately instead of jointly with his other co-accused IV. Right of free access to the courts During Criminal Prosecution: (after arraignment up to promulgation of judgment) 1. Right to have speedy. 14(1)) 2. 14(2)) 5. 21) 9. RIGHTS OF AN ACCUSED Before Criminal Prosecution: (before arraignment) 1. 14(2)) 4. Right to speedy disposition of his case (Sec. Right against double jeopardy (Sec. Right to presumption of innocence (Sec. degrading or inhuman punishment (Sec. when the public safety requires it. Right against self-incrimination (Sec.
People v. however. Habeas corpus. in his eloquent language. Detention must be for a cause recognized by law. Such a remedy. the confinement must thereby cease. Such actuation he would now condemn as a grave abuse of discretion. not only in the case of the parties in such petition. Remedy of Habeas Corpus not available when there is Warrant of Arrest The above formulation of what is settled law finds no application to the present situation." Bail. this Court." is too basic. L-35612-14. In the landmark decision of Chief Justice Concepcion. Nelso Unal. however. every person is bailable except if charged with capital offense when the evidence of guilt 162 . had previously come to this court to challenge the filing of one information where there were three victims. under the circumstances. June 27. Rightfully it is latitudinarian in scope.. People. concept. Hernandez. G. too transcendental and vital in a republican state. . It can dig deep into the facts to assure that there be no toleration of illegal restraint. is he. would not therefore lie. There was no question.. No. The party who is keeping a person in custody has to produce him in court as soon as possible. rationale Even if it be granted that petitioner may not be released on a habeas corpus proceeding. Petitioner's deprivation of liberty is in accordance with a warrant of arrest properly issued after a determination by the judge in compliance with the constitutional provision requiring the examination under oath or affirmation of the complainant and the witnesses produced. It cannot be denied that petitioner's co-accused. entitled to bail? Precisely that is the remedy by which. as a matter of fact. What is more. the right to bail was rightfully stressed as an aspect of the protection accorded individual freedom which. It is wide-ranging and all-embracing in its reach." To be more matter of fact about it. There is aptness and accuracy in the characterization of the writ of habeas corpus as the writ of liberty. the bail was revoked by the Court of First Instance in the order now challenged. like ours.Mendoza vs. Thereafter. in Unal v.. provisional liberty may still be had. he must justify the action taken. Hermogenes Lumanglas and Leopoldo Trinidad. as to the legality of the warrants of arrest previously issued. Unless there be such a showing. This it has to discharge without loss of time. 1973 Habeas Corpus: When it is available Habeas corpus could be invoked by petitioner if he were able to show the illegality of his detention. required three separate amended informations. The writ imposes on the judiciary the grave responsibility of ascertaining whether a deprivation of physical freedom is warranted.R. was granted him in accordance with an order of the municipal court of Mulanay. but likewise of petitioner. No allegation to the contrary may be entertained. however. Only if it can be demonstrated that there has been no violation of one's right to liberty will he be absolved from responsibility. Enage "Before conviction. notwithstanding the absence of any flaw in one's confinement. Accordingly. CFI. there is this excerpt from de la Camara v.
unless his guilt be proved beyond reasonable doubt. the prosecution should be denied such an opportunity. In the answer filed on behalf of respondent Court. the prosecution must be given an opportunity to present.is strong. It is not beyond the realm of probability. We are not called upon to rule definitely on this aspect as independently thereof. all the evidence that it may desire to introduce before the Court should resolve the motion for bail. would just simply make himself scarce and thus frustrate the hearing of his case. One was that petitioner. 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. especially so where his defense is weak." Can bail be cancelled without violating the right to bail? The precise question however. and order of the Court granting bail should be considered void. Solicitor General Estelito Mendoza did stress the absence of authority on the part of special counselor Antonio R. San Diego is thus squarely in point: "Whether the motion for bail of a defendant who is in custody for a capital offense be resolved in summary proceeding or in the course of a regular trial. rather than await the outcome of the proceeding against him with a death sentence. when the bail was granted." PRESUMPTION OF INNOCENCE Burden of proof lies on his accusers to prove him guilty Equiponderance of Evidence (Equipoise Doctrine) – when preponderance of evidence is at equipoise. Such an allegation was denied by petitioner. there would be a violation of procedural due process. is whether once the provisional liberty has been thus obtained. an everpresent threat. his failure to object being the basis of the bail granted by the municipal court of Mulanay. Thereby a regime of liberty is honored in the observance and not in the breach. when the scale stand 163 . Robles who was not authorized to intervene in this case on behalf of the state but did so. It is. Thus: "'The constitutional mandate that all persons shall before conviction be bailable except those charged with capital offenses when evidence of guilt is strong. was still at large. and what is worse.'" Secondly. Nor is there anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong. Quezon. it could be terminated by the cancellation of the bail. within a reasonable time. is subject to the limitation that the person applying for bail should be in custody of the law. The authoritative doctrine in People v. or otherwise deprived of his liberty. there are two other basic objections. Pasicolan. The purpose of bail is to secure one's release and it would be incongruous as to grant bail to one who is free. therefore. as the likelihood is. The municipal court. that a person charged with a crime. a mode short of confinement which would. temptation to flee the jurisdiction would be too great to be resisted. in the language of Cooley. as in the criminal case involved in the instant special civil action. insure the attendance of the accused for the subsequent trial. with reasonable certainty. A bail is intended as a guarantee that such an intent would be thwarted. the prosecution was never given a chance to present its evidence. If. court will find for the defendant. could not have granted bail in accordance with our ruling in Feliciano v. however.
or that degree of proof which produces conviction in an unprejudiced mind Prosecution has Burden of Proof ACTS WHICH CANNOT BE CRIMINALIZED • Section 10 No law impairing the obligation of contracts shall be passed.at an equipoise and there is nothing in evidence to incline it either way. Ex post facto law – one that punishes an act which was not punishable when committed. 22: No ex post facto law or bill of attainder shall be enacted. • SECTION 22 No Ex Post Facto Law or Bill of Attainder Sec. at the time of the adoption of the constitution as vital for the protection of life and liberty and which he enjoyed at the time of the commission of the offense charged against him ELEMENTS OF BILL OF ATTAINDER: • There is a law • The law imposes a penal burden on a specified individual or an easily ascertainable members of a group • The penal burden is imposed directly by the law without judicial trial 164 . the court shall rule against the party who has the burden of proof Proof beyond reasonable doubt – not to be equated with absolute certainty. or changes the laws on evidence so that lesser evidence is needed for conviction than when the act was done Bill of Attainder – judicial trial a law which inflicts punishment without benefit of ELEMENTS OF EX POST FACTO LAW: • Penal • Retroactive • Disadvantageous to the accused • Must take from the accused any right that was regarded. moral certainty. • Section 20 No person shall be imprisoned for debt or non-payment of a poll tax. or aggravates a crime or makes it greater than when committed.
unless. degrading or inhuman punishment inflicted. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. nor cruel. Excessive fines shall not be imposed. 21) REQUISITES: • First jeopardy • A valid complaint and information • A court of competent jurisdiction • Arraignment and valid plea • First jeopardy has been terminated • Second jeopardy for the same offense – includes an attempt or frustration of the same offense or it necessarily includes or is necessarily included in the other 165 . Same Offense (First sentence of Sec. 21: No person shall be twice put in jeopardy of punishment for the same offense. Section 19 1. Double Jeopardy – two perils or dangers of being tried and punished 2 KINDS: 1. conviction or acquittal under either shall constitute a bar to another prosecution for the same act. DOUBLE JEOPARDY SECTION 21 Right Against Double Jeopardy Sec. 2. for compelling reasons involving heinous crimes. 2. The employment of physical. If an act is punished by a law and an ordinance. psychological. Any death penalty already imposed shall be reduced to reclusion perpetua. No person shall be detained solely by reason of his political beliefs and aspirations. Neither shall death penalty be imposed.WHICH PUNISHMENTS COULD NOT BE IMPOSED Section 18 1. 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. the Congress hereafter provides for it.
2. 3. acquiescence. etc. first jeopardy only attaches if dismissal without consent of accused NOTA BENE: • Consent means approval. incommunicado. agreement. he must be provided with one. Section 12 1. No torture. Mere silence of the accused should not be construed as consent. or other similar forms of detention are prohibited. (2) denial of the right to speedy trial • Supervening Facts – when the second offense was not in existence when the first offense was charged and tried.“Terminated” – either by conviction. the prosecution may refile AFFIRMATIVE RIGHTS Section 11 Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Act Punished by a Law and Ordinance (Second sentence of Sec. These rights cannot be waived except in writing and in the presence of counsel. If the person cannot afford the services of counsel. then another information may be filed or the present information may be amended (substantial) 2. • Even if the motion to dismiss was filed by the accused. 21) • this will only apply if the accused has been either convicted or acquitted • if the case was only dismissed not upon the merits. force. 166 . Secret detention places. conformity. the dismissal is equivalent to acquittal if it is grounded on (1) insufficiency of evidence (demurrer to evidence after prosecution has rested its case). intimidation. prosecution cannot appeal anymore DISMISSAL: a termination of the case other than upon the merits thereof. violence. acquittal or dismissal upon the merit without consent of the accused • • • CONVICTION: a judgment declaring the accused guilty of the offense charged and imposing upon him the penalty provided by law. accused may appeal and this is not double jeopardy ACQUITTAL: a termination of the case based upon the merits of the issue. threat. 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. solitary. or any other means which vitiate the free will shall be used against him. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
5. Sec. which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be. No. or the right of the people peaceably to assemble and petition the government for redress of grievances. Held: §5. 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. even if a law furthers an important or substantial governmental interest. even if the purpose is unrelated to the suppression of free speech.fore an election.4 of RA.9006 (Fair Election Act). Subsequent Punishment O’BRIEN TEST A Government regulation is sufficiently justified: 1. FREEDOM OF EXPRESSION (SEC. and their families. it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression. or of the press.A.4 of R. If it furthers an important or substantial Government interest 3. • Under this test. the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.4. expression. No. 4) Section 4 No law shall be passed abridging the freedom of speech. If the Governmental interest is unrelated to the suppression of free expression 4. If it is within the constitutional power of the Government 2. 9006 constitutes an unconstitutional abridgment of freedom of speech. and the press. of expression. If the incidental restriction in the freedom of expression is no greater than is essential to the furtherance of that interest.4 fails to meet criterion  of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes 167 . SWS VS COMELEC Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5." • Moreover. Prior Restraint.
absolute. §5. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. or its content." The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v.4 actually suppresses a whole class of expression. rather than speech because of apprehension that such speech creates the danger of such evils. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental. when such aim can be more narrowly pursued by punishing unlawful acts. they cannot be attained at the sacrifice of the fundamental right of expression. by referring personal opinion to statistical results." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election. ABS-CBN VS COMELEC 168 . New Hampshire. if not viewpoint. §5. As already stated. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message. and substantial. and resort to the form of election cheating called "dagdagbawas. armchair theorists. radio and TV commentators.those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. "junking" of weak or "losing" candidates.4 aims at the prevention of lastminute pressure on voters.such interest "not related to the suppression of free expression.4 shows a bias for a particular subject matter." Praiseworthy as these aims of the regulation might be. while allowing the expression of opinion concerning the same subject matter by newspaper columnists. contrary to the claim of the Solicitor General. the prohibition imposed by §5.4 nonetheless fails to meet criterion  of the O 'Brien test. but the curtailment of the right of expression is direct. namely. §5. that the restriction be not greater than is necessary to further the governmental interest. the profane. The prohibition may be for a limited time. the libelous. and other opinion takers. (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period. [S]uch utterances are no essential part of any exposition of ideas. and the insulting or 'fighting' words .4 cannot be justified on the ground that it is only for a limited period and is only incidental. To summarize then.4 is invalid because (1) it imposes a prior restraint on the freedom of expression.. In effect. §5. and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…xx Thus. the creation of bandwagon effect. its subject matter. xx…These include the lewd and obscene. we hold that §5. . its ideas. and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression.
its agents or representatives from conducting exit polls during the May 11 elections. 1998 election. Fernandez the Court laid down two theoretical tests in determining the validity of restrictions to such freedoms. • Main Issue: Validity of Conducting Exit Polls The freedom of expression is a fundamental principle of our democratic government. The holding of periodic elections is a basic feature of our democratic government. as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). By its very nature. It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey. • Dangerous tendency rule means “If the words uttered create a dangerous tendency which the state has a right to prevent. has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice. stands on a higher level than substantive economic or other liberties. This Court. when the decision or resolution sought to be set aside is a nullity. then such 169 . The danger to be guarded against is the 'substantive evil' sought to be prevented. Issue: Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group]. both political and legal. While the assailed Resolution referred specifically to the May 11. therefore. exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections. when the issue involves the principle of social justice or the protection of labor. This must be so because the lessons of history. Held: Procedural Issues: Mootness and Prematurity • The issue is not totally moot. however. It "is a 'preferred' right and. illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. its implications on the people's fundamental freedom of expression transcend the past election.Comelec issued a resolution to restrain ABS-CBN from conducting exit polls which according to them might conflict with the official Comelec count. as follows: • Clear and present danger rule means that the evil consequence of the comment or utterance must be “extremely serious and the degree of imminence extremely high” before the utterance can be punished. or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available." In Cabansag v.
by the very nature of a survey. Finally.” It is not necessary that some definite or immediate acts of force. the freedom of the citizen and the State's power to regulate should not be antagonistic. or unlawfulness. Second. • The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage. so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. It is here where the court has to weigh the individual rights as against the interest of the public and more often than not. violence. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. or unlawfulness be advocated. First. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force. in the efforts to maintain them. this Court shall lean in favor of freedom. which 170 . not at stake here are the credibility and the integrity of the elections. It is a question of proximity and degree. The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. the danger must not only be clear but also present. We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech. • The balancing of interest test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or types of situations. this Court adheres to the "clear and present danger" test. the court has to uphold the interest of the public. violence. based on the limited data gathered from polled individuals." • A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. It is sufficient that such acts be advocated in general terms. In setting the standard or test for the "clear and present danger" doctrine. the freedom to speak and the right to know are unduly curtailed. For in the ultimate analysis. the interviewees or participants are selected at random. the Court echoed the words of justice Holmes: "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.words are punishable." • Unquestionably. the danger must not only be probable but very likely to be inevitable. "Present" refers to the time element. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for. There can be no free and honest elections if. Unlike in the "dangerous tendency" doctrine. the survey result is not meant to replace or be at par with the official Comelec count. On exit polls producing a clear and present danger or has a dangerous tendency Such arguments are purely speculative and clearly untenable." When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX OBSCENITY MILLER VS CALIFORNIA 171 .are exercises that are separate and independent from the exit polls. from making copies thereof. so as to minimize or suppress incidental problems in the conduct of exit polls. Clearly. Thus. or from putting distinguishing marks thereon so as to be identified. AND ARE NOT CONCERNED WITH THE CONTENT OF THE SPEECH. however. the contents of the official ballot are not actually exposed. Furthermore. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Petitioner does not seek access to the ballots cast by the voters. for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. Indeed. the outcome of one can only be indicative of the other. CONTENT NEUTRAL RESTRICTIONS ARE THOSE WHICH PROHIBIT THE SALE OR DONATION OF PRINT SPACE AND AIR TIME TO POLITICAL CANDIDATES DURING THE CAMPAIGN PERIOD. In exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections. the revelation of whom an elector has voted for is not compulsory. narrowly tailored countermeasures may be prescribed by the Comelec. what is forbidden is the association of voters with their respective votes. voters are prohibited from exhibiting the contents of their official ballots to other persons. Voters may also choose not to reveal their identities. SUBJECT TO THE CLEAR AND PRESENT DANGER TEST. be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. but voluntary. The ballot system of voting is not at issue here. without transgressing the fundamental rights of our people. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. since the former is only part of the latter. NOTA BENE: CONTENT BASED RESTRICTIONS ARE IMPOSED BECAUSE OF THE CONTENT OF THE SPEECH AND ARE THEREFORE. If at all. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. This result cannot.
" Memoirs required that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value. obscenity is that which tends to "deprave and corrupt those whose minds are open to such immoral influences" and could be banned on that basis. The plurality held that under the Roth definition: "as elaborated in subsequent cases. If a state law that regulates obscene material is thus limited. the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. that concept has never commanded the adherence of more than three Justices at one time. sexual conduct specifically defined by the applicable state law. 172 • . whether the work depicts or describes. taken as a whole. pornographic material subject to regulation under the States' police power. no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene. • In Roth vs United States. or scientific value. the Court veered sharply away from the Roth concept and. as written or construed. The prosecution contends that he committed misdemeanor. articulated a new test of obscenity. whether "the average person. lacks serious literary. with only three Justices in the plurality opinion. in a patently offensive way. • The basic guidelines for the trier of fact must be: a." • Apart from the initial formulation in the Roth case. Thus the proceedings. Issue: What are the tests to determine obscenity? Held: • Under common law and in an 1868 case of Regina vs Hicklin. • In Memoirs v. and c. appeals to the prurient interest. taken as a whole. Massachusetts." • While Roth presumed "obscenity" to be "utterly without redeeming social importance. and (c) the material is utterlywithout redeeming social value.Miller operated a mail order porno. Massachusetts. (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. In a campaign for expansion. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. 1957. artistic. b. three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex. applying contemporary community standards" would find that the work. political. he mass-mailed brochure to which one was sent to a restaurant where the manager opened such mail together with his mother. the court held that obscenity is not one of those protected by the First Amendment. (1966). whether the work.
FREEDOM OF ASSEMBLY (CALIBRATED PRE-EMPTIVE RESPONSE) KMP VS ERMITA. to repeat. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. Petitioner contends that such classification was without basis since it is exercised as impermissible restraint of artistic expression. therefore. This Court concludes then that there was an abuse of discretion. GR NO. that to avoid an unconstitutional taint on its creation. There should be no doubt that what is feared may be traced to the expression complained of. to safeguard other constitutional objections. television reaches every home where there is a set. • • • Nota bene: The power of the board is limited only to classification and not to the issuance or denial of permit because that is a previous restraint tantamount to censorship. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. 169838 173 . Issue: Is the classification valid? Held: • It is the opinion of this Court. The film is an integral whole and all its portions. the exemption. That is to abide by the principle that freedom of expression is the rule and restrictions. Children then will likely be among the avid viewers of the programs therein shown. including those to which the Board now offers belated objection. Such danger must not only be clear but also present. determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. there are not enough votes to maintain that such an abuse can be considered grave. Nonetheless. are essential for the integrity of the film. It can. the power of respondent Board is limited to the classification of films. It is the consensus of this Court that where television is concerned: a less liberal approach calls for observance. to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. The test.GONZALES VS KALAW-KATIGBAK The film Kapit sa Patalim was classified as for adults only. This is so because unlike motion pictures where the patrons have to pay their way.
880 cannot put the prior requirement of securing a permit. allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive.P. This sovereign police 174 . Furthermore. They argue that B. the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. this Court said: The right to freedom of speech. to promote the health. nor injurious to the rights of the community or society. petitioners KMU. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is. Furthermore. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. Finally. otherwise interest on the issue would possibly wane. peace.Petitioners argue that Batas Pambansa No. Fugoso. No. et al.. are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. And even assuming that the legislature can set limits to this right. the limits provided are unreasonable: First. without which all the other rights would be meaningless and unprotected. Also. and to peacefully assemble and petition the government for redress of grievances. morals. Second.” which is the power to prescribe regulations.P. The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power. is not absolute In Primicias. it is not content-neutral as it does not apply to mass actions in support of the government. argue that the Constitution sets no limits on the right to assembly and therefore B. No. the five-day requirement to apply for a permit is too long as certain events require instant public assembly. education. of expression. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. a right that enjoys primacy in the realm of constitutional protection. together with freedom of speech. For these rights constitute the very basis of a functional democratic polity. in Primicias v. Right of peaceable assembly however. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights. and of the press. the law delegates powers to the Mayor without providing clear standards. good order or safety. Again. Held: The right of peaceful assembly enjoys primacy in the hierarchy of rights. and general welfare of the people. the phrase “maximum tolerance” shows that the law applies to assemblies against the government because they are being tolerated. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought.
since they can refer to any subject. municipalities and cities by authorizing their legislative bodies called municipal and city councils enact ordinances for purpose. This was adverted to in Osmeña v. since the content of the speech is not relevant to the regulation. Comelec. procession or any other form of mass or concerted action held in a public place. place and manner of the assemblies. and it may be delegated to political subdivisions.” So it does not cover any and all kinds of gatherings. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. therefore.power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights. however. parade. A fair and impartial reading of B. Freedom Parks allow avenues for free speech (however. 175 . Advance notices should. no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. the Court is constrained to rule that after thirty (30) days from the finality of this Decision. otherwise they would not be “peaceable” and entitled to protection. It is very clear. so its use cannot be avoided. The law refers to “rally. demonstration. There is. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes.P. that B. be given to the authorities to ensure proper coordination and orderly proceedings. where the Court referred to it as a “content-neutral” regulation of the time. march. to deny the permit would in effect be to deny the right. public convenience. likewise. place. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. No. and manner of holding public assemblies. maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.” “protesting” and “influencing” in the definition of public assembly content based. public safety. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time. public morals or public health. For without such alternative forum. only a few existing) Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of their right to peacefully assemble and petition. The words “petitioning the government for redress of grievances” come from the wording of the Constitution. Neither are the words “opinion. Neither is the law overbroad.P. Furthermore. the permit can only be denied on the ground of clear and present danger to public order. such as towns. Not every expression of opinion is a public assembly. No. no prior restraint. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. Finally.
it merely regulates the use of public places as to the time. the rally is immediately dispersed. police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. FREEDOM OF RELIGION Art. “maximum tolerance” is for the benefit of rallyists. no prior permit of whatever kind shall be required to hold an assembly therein. If. VI. without discrimination or preference. B. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionallysound “clear and present danger” standard. 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. not the government. it does not curtail or unduly restrict freedoms. 880 cannot be condemned as unconstitutional. the grant of the permit being then presumed under the law. No. On the other hand. or prohibiting the free exercise thereof. and it will be the burden of the authorities to show that there has been a denial of the application. The free exercise and enjoyment of religious profession and worship. rallyists who can show the police an application duly filed on a given date can. no such parks are so identified in accordance with Section 15 of the law. Section 5 No law shall be made respecting an establishment of religion.P.” Furthermore.P. definition “Maximum tolerance” means the highest degree of restraint that the military. In this Decision. place and manner of assemblies. in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In such a situation. as a necessary consequence and part of maximum tolerance. Far from being insidious. the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B. No religious test shall be required for the exercise of civil or political rights. shall forever be allowed. all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks. after two days from said date. The only requirement will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities.Maximum Tolerance. 176 . the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. after that period. For this reason. rally in accordance with their application without the need to show a permit. No. III. 880. It merely confuses our people and is used by some police agents to justify abuses.
Taburan and Asturias in Cebu. The respondents relied on the precedence of Gerona et al v. Public school authorities expelled these students for refusing to salute the flag. The nonobservance of the flag ceremony does not totally constitute ignorance of patriotism and civic consciousness. Jehovah’s Witnesses may be exempted from observing the flag ceremony but this right does not give them the right to disrupt such ceremonies. Secretary of Education. Pinamungajan. sing the national anthem and recite the “Panatang Makabayan” required by RA1265. 2. What the petitioner’s request is exemption from flag ceremonies and not exclusion from public schools.) Freedom to believe which is an absolute act within the realm of thought. The only limitation to religious freedom is the existence of grave and present danger to public safety. By observing the ceremonies quietly. civic 177 . morals. Love for country and admiration for national heroes. Held: Religious freedom is a fundamental right of highest priority. In the case at bar. Petitioners allege that the public respondents acted without or in excess of their jurisdiction and with grave abuse of discretion. The freedom of religious belief guaranteed by the Constitution does not mean exception from nondiscriminatory laws like the saluting of flag and singing national anthem. The expulsion of the petitioners from the school is not justified. the Students expelled were only standing quietly during ceremonies.EBRALINAG VS SUPERINTENDENT (freedom to believe and act on one’s belief) Facts: Two special civil actions for certiorari. The 2 fold aspect of right to religious worship is: 1. The 30 yr old previous GERONA decision of expelling and dismissing students and teachers who refuse to obey RA1265 is violates exercise of freedom of speech and religious profession and worship. it doesn’t present any danger so evil and imminent to justify their expulsion. Mandamus and Prohibition were filed and consolidated for raising same issue.) Freedom to act on one’s belief regulated and translated to external acts. This exemption disrupts school discipline and demoralizes the teachings of civic consciousness and duties of citizenship. health and interests where State has right to prevent. Caracar. Issue: Whether or Not religious freedom has been violated. They contend that to compel transcends constitutional limits and invades protection against official control and religious freedom. Gerona doctrine provides that we are a system of separation of the church and state and the flag is devoid of religious significance and it doesn’t involve any religious ceremony. Respondents ordered expulsion of 68 HS and GS students of Bantayan. They are Jehovah’s Witnesses believing that by doing these are religious worship/devotion akin to idolatry against their teachings. The expulsion of the students by reason of their religious beliefs is also a violation of a citizen’s right to free education.
contain the following seven (7) basic principles of international law: 1. thru Resolution No. Section 6 The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. III. No law impairing the obligation of contracts shall be VIII. Expulsion is ANNULLED. Therefore. or public health. Neither shall the right to travel be impaired except in the interest of national security. The principle that states shall refrain in their international relations from the threat or use of force against the territorial 178 . III. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx PUBLIC INTERNATIONAL LAW The Seven (7) Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations The United Nation's "Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations". 2625 (XXV) on October 24. 1970.consciousness and form of government are part of the school curricula. public safety. as may be provided by law. VII. NON-IMPAIRMENT CLAUSE Art. LIBERTY OF ABODE AND TRAVEL Art. adopted by the UN General Assembly. after ten (10) years of work and study. Section 10 passed. Petition for Certiorari and Prohibition is GRANTED. expulsion due to religious beliefs is unjustified.
integrity or political independence of any state. Most customary laws are derivations from natural laws. as voluntary adherence to common practices. Natural law theory Law is derived by reason from the nature of man. Treaties are an expression of consent. likewise. The law which defines the conduct of states and of international organizations and with their relations inter se. (cf. The principle of sovereign equality of states. Magallona. The duty of states to cooperate with one another in accordance with the Charter 5. or in any other manner inconsistent with the purposes of the United Nations. The principle that states shall fulfill in good faith the obligation assumed by them in accordance with the Charter. 4. 6. 96). Some theories about international law Command theory Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed Consensual theory International law derives its binding force from the consent of states. The principle of equal rights and self-determination of peoples. fifth (5th) Introductory Clauses of the "Declaration" in Merlin M. The duty not to intervene in matters within the domestic jurisdiction of any state. as well as with some of their relations with persons. are seen as expression of consent. whether natural or juridical. in accordance with the Charter. WHAT IS INTERNATIONAL LAW? It is a body of rules and principles of action which are binding upon civilized states in their relations to one another. The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. and 7. 3. 179 . 2. custom.
c. SOURCES OF INTERNATIONAL LAW a. Each state has the right freely to choose and develop its political. social. economic and cultural systems. sovereign equality includes the following elements: a. e. whether general or particular. where there are questions of the applicability of foreign law or the role of foreign courts. social. as evidence of a general practice accepted as the general principles of law recognized by civilized nations d. as subsidiary means for the determination of rules of law The principle of sovereign equality of states. In particular.Note: International law is law because it is seen as such by states and other subjects of international law. 180 . Each state has the duty to respect the personality of other states. notwithstanding differences of an economic. law c. b. international conventions. political or other nature. international custom. f. d.” Judicial decisions and the teachings of the most highly qualified publicists of the various nations. The territorial integrity and political independence of the state are inviolable. 59 “ the decision of the Court has no binding force except between the parties and in respect to that particular case. Each state enjoys the rights inherent in full sovereignty. States are juridically equal. Public international law – governs the relations between and among states as well as international organizations and individual persons. All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community. establishing rules expressly recognized by contesting states b. subject to the provisions of Art. Private international law – domestic law which deals with cases where foreign law intrudes in the domestic sphere. Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states." (cf.
Kinds of Subjects in International Law A. 185]. (id. A subject of Public International Law is an entity directly possessed of rights and obligations in the international legal order. on the basis of customary or general international law. particular or special international personality. (Magallona. 18-19). rights and obligations are conferred by general international law and such personality is binding erga omnes. 19). The STATE Magallona distinguishes between: a. 104). B. such as the Philippines. while he is entitled to certain rights which other states ought to respect. is merely indirectly vested with rights and obligations in the international sphere. a Filipino private citizen is generally regarded not as a subject but an object of Public International Law because. p. (Paras. 43).g. in which on the question as to the legal personality of the United Nations to claim reparation for injury to its agents committed by nationals of a non-Member State. STATES: Single/Simple and Composite 181 . on the other hand. representing the vast majority of the members of the international community. a sovereign state. he usually has no recourse except to course his grievances through the Republic of the Philippines and its diplomatic officers. The Subjects and Objects of International Law A subject of international law is an entity with capacity of possessing international rights and duties and of bringing international claims. to bring into being an entity possessing objective international personality and not merely personality recognized by them alone. general or objective international personality and b." (Magallona. the (International Court of Justice or ICJ) states: "xxx fifty States. together with capacity to bring international claims xxx [ICJ Reports. and as to the second (particular or special international personality).g. as follows: "x x x As to the first (general or objective international personality). 1949. An object of Public International Law. e.Principle No. had the power. personality binds only those which give consent (express or tacit). e. This entity is said to be an international person or one having an international personality.). in conformity with international law. "The distinction is implied in the Reparation for Injuries Case. 6 of the main body of the "Declaration" in Magallona.
which many highly qualified publicists consider as the decisive criterion of statehood.." (Magallona. The "capacity to enter into relations with other States" refers to independence. RECOGNITION is considered as "the act by which another State acknowledges that the political entity recognized possesses the attributes of statehood. 22-22): • The constitutive school maintains that it is the act of recognition which constitutes or creates the status of a State as a subject of law and thus gives it a legal personality. (Magallona. The 1933 Monteviedo Convention on the Rights and Duties of States provides for the legal characteristics of a State. d. • The declaratory theory asserts that recognition merely confirms the acceptance by States of the status of an entity as a State. a defined territory. Philippines). or qualified or quasi-international personality. and (b) composite state. rather than by the subjective act of other States. a permanent population. Modern Law of Nations: An Introduction. 1949. The declaratory school is the preferred approach. 20). the prevailing view being that recognition is not an element of statehood. 182 . Paras. 47)." (cf. A new State acquires legal personality by its own creative act in bringing about the objective criteria of statehood. 20-21).Paras categorizes "subjects in international law" into two (2) categories: (a) the complete or perfect international personality. as discussed by Magallona (at pp. The international status of any entity as a State is to be determined by the will and consent of already existing States. There are two theories on the nature and effect of recognition. citing Jessup. c. Coquia and Defensor-Santiago classify the different kinds of composite states as follows: 1. government. and capacity to enter into relations with other States. (Paras. He classifies states into the following species: (a) single or simple state (e. Magallona. The Federation or Federal State (such as the United States and the United States of Switzerland). 4).g. p. 21. b. and (b) the incomplete or imperfect. thus: "The State as a person of international law should possess the following qualifications: a.
The union then possessed a single international personality [the separate personalities of the states having been merged into a unified whole].2. The INCOMPLETE. there is no Personal Union in existence. each of the member-states being represented by its own delegate. (Paras. insurgent communities. The Incorporate Union (one where the internal and external organs of government of two states are merged into one. which eventually became the nucleus of the present United States). belligerent communities (and in a very. xxx. there is at present no confederation of confederated states). 183 . is an International Person. thus the United States is represented in the United Nations as one juridical or international entity. while the confederation has some sort of power over its individual states. While in a Real Union there is a merger only of foreign affairs or external relations. The Confederation (such as the original Confederation of the American States. imperfect. C. 5. resulting in a single international personality. Coquia & Defensor-Santiago. in the Incorporate Union the merger is actually complete and concerns internal as well as external affairs and relations). However. The federal union. as such. xxx. but not over the individual citizens of the member states. NOTE: The British Commonwealth of Nations xxx apparently does not fall under any of the preceding classifications xxx. However. It would seem that today. 3. QUALIFIED OR QUASI-INTERNATIONAL PERSONALITIES Paras lists the incomplete. the confederation as such is not an International Person. the union as such has no separate international personality since each of the member-states has its own government and its own separate international personality. 64100). IMPERFECT. very modified way. An example is the United Kingdom of Great Britain and Ireland xxx. 4. on the other hand. The Real Union (such as the former United Arab Republic which was formed by two sovereign states [Egypt and Syria] linked by a common government in external affairs and by a common chief of state. (NOTE: The principal difference between a federal union and a confederation is that a federal union of states exists when the central or federal government exercises authority over both the various states in the union and the citizens thereof. qualified or quasi-international personalities as follows: "xxx among them are the dependent states (protectorate and suzerainties). 49-50. The Personal Union (this is the merger of two separate sovereign states in the sense that both have the same individual as the accidental or temporary head of state.
United Nations Educational. being possessed of juridical personality. mandates and trust territories. and with good reason. 2.g. the Charter of the United Nations Organization. International Labor Organization. 3. as follows: 1. citing Art. adopted by the UN General Assembly on Feb.g. International Monetary Fund. including specialized agencies of the UN. in 1 UN Treaty Series 15). in view of the importance laid on them by the following: 1. to acquire and dispose of immovable and movable property. has the following capacities: to contract. 60-61). International Commission of Jurists. 2. Permanent Court of Arbitration. Christian Family Movement Moral Re-Armament. the Nuremberg and Tokyo War Tribunals for War Crimes. e. Private Individuals: Developing New Status in International Law Paras discusses that while traditional writers insist that private individuals are merely objects and not subjects of international law. e. International Chamber of Commerce. Non-Governmental International Bodies. 52. the norm of general international law which prohibits piracy. 60). Scientific and Cultural Organization.. and to institute legal proceedings.g. some recognized writers in recent years have accorded to the individual a new status in international law: they say. 13. Bank of International Settlements. that private individuals should now be regarded as subjects in the international order. 184 . (Paras." (Paras. 1946. Paras classifies the three (3) groups of International Organizations. e. and international administrative bodies. dependencies and possessions.." (Paras. 1. and the Universal Declaration of Human Rights. Convention on the Privileges and Immunities of the United Nations. underscoring supplied). certain public and political corporations or companies. (cf. The United Nations. 3. International Criminal Police Commission.subject to certain conditions). Food and Agricultural Organization. aside from the United Nations. Other Inter-Governmental Bodies. colonies. Inter-governmental bodies. 63. Rotary International. Paras. It is noteworthy to state that "international Organizations such as the former League of Nations and the present United Nations are of course in their own way International Persons.
85). 185 . 286). on the other hand. conventions punishing acts of illegitimate warfare.. 7. citing Sorensen. (id. 2. and. They conduct the hostilities in accordance with the rules of war thru organized groups acting under a responsible authority. Recognition of a status of belligerency on the part of other States is necessary for the legal creation of the status of "belligerent community. a distant inland state with no maritime interests. 8. 86). from Cuba. such as those fleeing from South Vietnam. thus: The reason for this final requirement is that if the parties to the struggle propose to exercise belligerent rights on the high seas in such a manner as to affect the recognizing State's maritime interests. espionage rules. punishment for the illegal use of the flag (Reporter's Note: this refers to vessels using the flag of s state with which such vessel is not registered). and to displaced persons. BELLIGERENT AND INSURGENT COMMUNITIES A status of belligerency recognized under international law may arise if 1. the Genocide Convention of 1948 which directly holds liable not only states. Coquia and DefensorSantiago explains the matter. the procedure in admiralty and maritime matters. the insurgents occupy a substantial portion of the national territory. 5. for the mass extermination of a racial group. 9. 6. 10. and in no way affected by the conflict were to recognize the rebels as belligerents. (id. (Coquia/DefensorSantiago. the need for it to define its attitude to the struggle has arisen. 86.. there exists within the State an armed conflict of a general character. from Cambodia. A fourth requirement that has been suggested for the recognition of belligerency is that there must exist a circumstance which makes it "necessary" for the recognizing State to define its attitude to the conflict.4. but also private individuals.). the existence of rules safeguarding the rights of aliens and minorities. If. and 3.the special status accorded to refugees. Paras. it could open itself to the charge of encouraging rebellion. more recently. rules of general international law punishing private individuals for breach of blockade and carriage of contraband. the practice of certain courts of permitting foreigners to appear and prosecute claims. Recognition of belligerency before the four conditions are fulfilled is considered as contrary to international law (id. 44-46). (cf.
according to Coquia and Defensor-Santiago: The first category consists of governments whose heads and cabinets move from the national territory temporarily during the moments of crisis. it must be more than a petty revolt and must assume the true characteristics of a war. The former is "a rebellion which has not yet achieved the standing of a belligerent community xxx. (id. thus: The granting of recognition of belligerency to rebels is only provisional. citing Kelsen. 86). citing Kelsen. It has two classes. 186 . the insurrection must be conducted in the technical forms of war. 87). that is. the insurgents recognized as a belligerent power possess for the most part.Recognition of belligerency by a State not a party to the contest is frequently announced in a formal proclamation of neutrality between the two contending parties. A related matter is the "government in exile". For the purposes and for the duration of the war. no formal act of recognition is necessary because it is deemed that there is no break in legal continuity. In such cases. While conferring an equal status to warring groups. and that de facto government is defeated in the war. the insurgents must have a government and a military organization of their own.. Coquia and Defensor-Santiago cite the legal implications of recognition of a belligerent community.. 412). 13). 413). 88). (id.. The recognized belligerent community lacks the right to send or receive diplomatic agents to join international organizations. the government of the insurgents must in fact control a certain part of the territory of the State in which the civil war takes place. Recognition may be express or implied. If the foreign government gives aid to the de facto (belligerent) government recognized by it. (id. citing Oppenheim-Lauterpacht. A state of insurgency is not equivalent to a state of belligerency. the duties and rights of States when engaged in war. then the lawful government may hold the foreign State responsible for an act of unjustifiable aggression and of premature recognition. (id.. and to benefit in a normal manner from multilateral conventions concerned with peacetime international relations and activities of States. and 3. a condition described as intermediate between internal tranquility and civil war. (id.. it does so only for the purposes and for the duration of the war." (Coquia. 2. The conditions for a state of insurgency are: 1.
" (Magallona.N. and all other territories over which the Philippines has sovereignty or jurisdiction. 47. between. the seabed. A recognition accorded during the effective continuance of the lawful (de jure) government over the greater part of the national territory may be considered as an act of interference in the national affairs of another State.. citing Art.a nd aerial domains.. the contiguous zone. regardless of their breadth and dimensions. 47. including its territorial sea. is between 1 to 1 and 9 to 1. including atolls. It is required that the main islands are included within the baselines as well as an area in which "the ratio of the area of the water to the area of the land. with all the islands and waters embraced therein.. the territorial sea. form part of the internal waters of the Philippines. the Philippines. may determine its archipelagic baselines as follows: It may draw straight archipelagic baselines surrounding itself. 97. This is done by locating "the outermost points of . 2. (its) outermost islands and drying reefs" and then by joining such points. 1994. CONVENTION ON THE LAW OF THE SEA Article I of the 1987 Philippine Constitution defines the Philippine territory. as an archipelagic state. (id. the fact is that they are merely hoping to form a legitimate government or State at some time in the future. thus: The national territory comprises the Philippine archipelago. The waters around. and 187 . ADDENDUM: PHILIPPINE TERRITORY IN RELATION TO THE U. the insular shelves and other submarine areas. consisting of its terrestial. in which case there can be no legal connection between the government in exile and the government operating on the national territory at the time.1 of UNCLOS). 80. the subsoil. citing the recognition of the Franco regime in Spain by Germany and Italy only five months after the Spanish civil war broke out at the time when the republican government was still in control of the greater part of Spain).1 of the UN Convention on the Law of the Sea (UNCLOS) which entered into force on November 16. While there may be groups assuming governmental powers for their national territory for political or other reasons. under the provisions of UNCLOS. A formal act of recognition is necessary. fluvial. and connecting the islands of the archipelago. The governments under the second category do not have any international status. The "maritime zones" of the Philippines. consist of the following: 1.A second category consist of governments formed abroad. Pursuant to Art.
it is a zone where the Philippines may exercise certain protective jurisdiction. including the resources therein. and 57 of UNCLOS).e. It is a zone of jurisdiction. 82-83. 17. If it declares a contiguous zone. which is a zone of Philippine sovereignty. the Philippine territorial sea is also restricted by the right of archipelagic sea lanes passage but "only such portions of the territorial sea adjacent to the Philippine archipelagic waters.. the Philippines has sovereign rights over the same "for purposes of exploring. citing Arts. citing Arts. 20. the exclusive economic zone. The waters enclosed by the archipelagic baselines of the Philippines." (id. citing Art. 52 and 53 of UNCLOS). immigration or sanitary laws and regulations and to punish violation of laws committed within its territory or in the territorial sea. those carrying nuclear or other inherently dangerous or noxious substances. including "foreign nuclear-powered ships. citing Art. The Philippines may be required to grant other states access to living resources in its EEZ: 188 . to prevent infringement of its customs. known as the right of archipelagic sealanes.. 30.(id..2. 2. 49 of UNCLOS)... conserving and managing the natural resources" therein and it as "jurisdictional rights with regard to artificial islands. environmental protection and maritime scientific research. i." Also. citing Arts. this shall not exceed 24 nautical miles from the archipelagic baselines." All ships and aircraft enjoy this right thru designated sea lanes and air routes. submarines and warships.(id." All of the above provisions of UNCLOS pose potential constitutional problems. 24. The breadth of its territorial sea is measured from archipelagic baselines up to a distance seaward not exceeding 12 nautical miles. which are called "archipelagic waters. 83. Pursuant to Articles 52 and 53 of UNCLOS. 33. It also extends to "airspace over archipelagic waters as well as their bed and subsoil. 2. fiscal. "ships of all states enjoy the right of innocent passage through archipelagic waters" (which includes "internal waters" or the "territorial sea") and such archipelagic waters may also be subject to "the continuous and expeditious passage of foreign ships and aircraft. 82. 33. The "territorial sea". Its exclusive economic zone shall not exceed beyond 200 nautical miles from the archipelagic baselines.." are within Philippine sovereignty.1 [a] and [b] of UNCLOS). 52. 23. Magallona discusses the legal status of the "contiguous zone" thus: Adjacent to the territorial sea. is subject to the right of innocent passage by ships of all states. exploiting. As to the "exclusive economic zone". not of sovereignty. (id.1 of UNCLOS).3. The Philippines does not have sovereignty over the contiguous zone." (id.
85. 86. 60.1. The Philippines has the exclusive right to construct. 84-85. whichever is farthest. effective or notional. UNCLOS). original underscoring by the author). 60. no one may undertake these activities without its consent Rights of the Philippines over the continental shelf "do not depend on occupation. 85). (id. citing Arts. XII of the 1987 Constitution provides that "the State shall protect the nation's marine wealth in its archipelagic waters. citing Arts.2. Its jurisdiction over these is exclusive.1 [a]. (Art. Magallona writes: The UNCLOS describes these rights (i." (id. It extends up (1) the outer edge of the continental margin or (2) up to the distance of 200 nautical miles from the archipelagic baselines. or on any express proclamation. and reserve it use and enjoyment exclusively to Filipino citizens. 60 and 80.2... UNCLOS). 76 of UNCLOS).e. and 81 of UNCLOS). territorial sea. 56. (id. The continental shelf does not form part of the "Philippine territory. Generally.2. operation and use of artificial islands and installations. What is the Philippine "continental shelf" under UNCLOS? Magallona discusses its extent. (Arts. all states continue to enjoy the freedom of the high seas.2. 77. UNCLOS. the rules of international law pertaining to the high seas apply to the EEZ." (id.. citing Art.. In the EEZ.. 58. 2.1. health. UNCLOS). 77.It must determine its capacity to harvest living resources. 58. 189 . (Art. fiscal. citing Art. (Art. safety and immigration regulations. underscoring supplied). and exclusive economic zone. in particular with respect to customs. Elucidating further on the "continental shelf". it shall give other states access to the surplus of the allowable catch by means of agreements consistent with the UNCLOS. The Philippines has exclusive right to authorize as well as to regulate drilling for all purposes. to authorize and regulate the construction. There thus appears an apparent incompatibility with the 1987 Constitution. 77 and 78 of UNCLOS). subject to the rights of the Philippines as thus mentioned. If it does not have the capacity to harvest the entire allowable catch.. It will be noted that Sec. But the Philippines has the sovereign right for the purpose of exploring it and exploiting its natural resources. thus: It is the sea-bed and sub-soil of the submarine areas extending beyond the Philippine territorial sea throughout the natural prolongation of the land territory.3 of UNCLOS). to explore and exploit natural resources in the continental shelf) as exclusive in the sense that if the Philippines does not explore the continental shelf or exploit its natural resources. 61. (id. and 62. Art.2.(id. 81. 84.
. et al.R. 2007). Ranada. of the Phil. Section 21 of the Constitution which provides that “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.” Thus. 139325. by mere constitutional declaration. The classical formulation in international law sees those customary rules accepted as binding result from the combination of two elements: the established.R. and consistent practice on the part of States.Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx Nota bene: Q— How may international law become a part of domestic law? Explain. No. Treaties become part of the law of the land through transformation pursuant to Article VII. 2005. ANS: Under the 1987 Constitution. 190 . treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. ANS: Yes. Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Mijares v. international law can become part of the sphere of domestic law either by transformation or incorporation. 173034. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. October 19. Q — May generally accepted principles of international law form part of the law of the land even if they do not derive from treaty obligations? Explain. The incorporation method applies when. 455 SCRA 397). form part of the laws of the land even if they do not derive from treaty obligations. v. by virtue of the incorporation clause of the Constitution. international law is deemed to have the force of domestic law. Q — State the concept of the term “generally accepted principles of international law” and give examples. and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Generally accepted principles of international law. No. Health Secretary Duque. April 12. G. (Pharmaceutical & Health Care Assn. widespread. G.
renunciation of war as an instrument of national policy.ANS: “Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all states. v. liberty and due process. (David Fidler. of the Phil. The initial factor for determining the existence of custom is the actual behavior of states. Without it. October 9. (Pharmaceutical & Health Care Assn. This statement contains the two basic elements of custom: the material factor. how states behave. Q— What is customary international law? Explain. et al. and the psychological or subjective factor. The concept of “generally accepted principles of law” has also been depicted in this wise: Some legal scholars and judges upon certain “general principles of law” as a primary source of international law because they have the “character of jus rationale” and are “valid through all kinds of human societies.. the principle of sovereign immunity. Sec. 1966. Once the existence of state practice has been established it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris or the belief that a certain form of behavior is obligatory. are established by a process of reasoning based on the common identity of all legal systems. 173034. No. practice is not law. R. and pacta sunt servanda. G.. why they behave the way they do. If there should be doubt or disagreement. of the Phil. consistency. ANS: Soft law is an expression of non-binding norms. of Health Duque. More important is the consistency and the generality of the practice. one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. This includes several elements: duration. 2007). 173034. principles and practices that influence state behavior. ANS: Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris)”. a person’s right to life. (Pharmaceutical & Health Care Assn. 296). The required duration can be either short or long. among others. et al. that is. i.e. No.J. is what makes practice an international rule. he believes. These principles. Q— What is a soft law? Is it an international law? Explain. Health Secretary Duque. G. v.C. O’Conell holds that certain principles are part of international law because they are “basic to legal systems generally” and hence part of the jus gentium.R. October 9. I. 2007). that is. Development Involving 191 . Duration therefore is not the most important element..” (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case. and generality of the practice of states.
International Law. 486 SCRA 405). ASIL. 159938. has the United Nations. THE COUNT BERNADOTTE CASE The question concerning reparation for injuries suffered in the service of the United Nations. 70 (1951). Chapter III of the 1946 Statute of the International Court of Justice. (b) to the victim or to persons entitled through him In the event of an affirmative reply on point I (b). as an Organization. Developers Group of Companies Inc. Director of Prisons. Shangri-la International Hotel Management Ltd. of the Phils. No.. et al.. although it is certainly not a super-state On the first point:. G. It does not fall under the international law set forth in Article 38. 2007). 173034. Mijares v. has at the same time a large measure of international personality and the capacity to operate upon an international plane. Cases and Materials.SARS. In the event of an agent of the IJnited Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State. Ranada. Olalia. It is resorted to in order to reflect and respond to the changing needs and demands of constituents of certain international organizations like the WHO. International Law & Infections Disease Control at the Fifty-Six Meeting of the World Health Assembly.R. Pharmaceutical & Health Care Assn. v. I (a). 1948) in the following terms: I. G.R.. This was applied in Government of Hongkong Special Administrative Region v. the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations. March 31. October 9. 90 Phil. (Louis Henkins. et al. how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? II. of the Request for Opinion the Court unanimously reached the conclusion that the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for 192 . Q— Give examples of soft law. The UN Declaration of Human Rights is an example. v. ANS: Certain declarations and resolutions of the UN General Assembly fall under this category. 2nd Ed. June 2003. 2006. Held: Accordingly the Court concludes that the Organization possessing as it does rights and obligations. Health Secretary Duque. was referred to the Court by the General Assembly of the United Nations (Resolution of the General Assembly dated December 3rd.). Mejoff v. No.
Whereas it is essential. as a last resort. it can only do so by basing its claim upon a breach of obligations due to itself. if man is not to be compelled to have recourse. the Court was of opinion by 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent.damage resulting from a breach by that State of its obligations towards the Organization. respect for this rule 'will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess. Whereas it is essential to promote the development of friendly relations between nations. THE UN CHARTER (refer to 7 principles above) Universal Declaration on Human Rights PREAMBLE Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. moreover. and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. the measure of the reparation should depend upon a number of factors which the Court gives as examples. justice and peace in the world. and upon agreements to be made between the Organization and individual States. Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights. that human rights should be protected by the rule of law. 193 . to rebellion against tyranny and oppression. this reconciliation must depend upon considerations applicable to each particular case. on point II. in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. Finally. The Court points out that it is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. On question I (b) the Court was of opinion by 11 votes against 4 that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations.
Everyone has the right to life. sex. such as race. national and international. No one shall be subjected to arbitrary arrest. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. non-self-governing or under any other limitation of sovereignty. Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations. colour. whether it be independent. 194 Article 2. without distinction of any kind. to secure their universal and effective recognition and observance. shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures. political or other opinion. No one shall be subjected to torture or to cruel. liberty and security of person. detention or exile. Everyone has the right to recognition everywhere as a person before All are equal before the law and are entitled without any discrimination to equal protection of the law. property. Article 7. Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge. Article 5. Article 9. slavery and the slave trade shall be prohibited in all their forms. both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. Furthermore. to the end that every individual and every organ of society. No one shall be held in slavery or servitude.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. trust.Whereas Member States have pledged themselves to achieve. Article 1. Article 8. inhuman or degrading treatment or punishment. the promotion of universal respect for and observance of human rights and fundamental freedoms. birth or other status. in co-operation with the United Nations. Article 4. Everyone is entitled to all the rights and freedoms set forth in this Declaration. national or social origin. Now. religion. keeping this Declaration constantly in mind. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. jurisdictional or international status of the country or territory to which a person belongs. no distinction shall be made on the basis of the political. language. the law. Article 3. All human beings are born free and equal in dignity and rights. . Article 6.
Article 13. (2) Everyone has the right to leave any country. (2) No one shall be arbitrarily deprived of his property. family. Everyone has the right to the protection of the law against such interference or attacks. Article 16. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence. They are entitled to equal rights as to marriage. under national or international law.Article 10. Article 11. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal. at the time when it was committed. nationality or religion. home or correspondence. 2. Article 12. 195 . have the right to marry and to found a family. during marriage and at its dissolution. Article 15. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. and to return to his country. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. (1) Everyone has the right to own property alone as well as in association with others. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (1) Everyone has the right to freedom of movement and residence within the borders of each state. nor to attacks upon his honour and reputation. in the determination of his rights and obligations and of any criminal charge against him. 1. Article 14. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. without any limitation due to race. Article 17. (1) Everyone has the right to a nationality. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. including his own. No one shall be subjected to arbitrary interference with his privacy. (1) Men and women of full age.
(3) The will of the people shall be the basis of the authority of government. (1) Everyone has the right to freedom of peaceful assembly and association. (1) Everyone has the right to work. receive and impart information and ideas through any media and regardless of frontiers. directly or through freely chosen representatives. (2) No one may be compelled to belong to an association. to just and favourable conditions of work and to protection against unemployment. (1) Everyone has the right to take part in the government of his country.Article 18. to manifest his religion or belief in teaching. Article 23. through national effort and international cooperation and in accordance with the organization and resources of each State. social and cultural rights indispensable for his dignity and the free development of his personality. 196 Article 24. Everyone. to free choice of employment. including reasonable limitation of working hours and periodic holidays with pay. (2) Everyone has the right of equal access to public service in his country. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity. Everyone has the right to rest and leisure. has the right to equal pay for equal work. (4) Everyone has the right to form and to join trade unions for the protection of his interests. this right includes freedom to hold opinions without interference and to seek. Article 25. practice. if necessary. Article 22. of the economic. has the right to social security and is entitled to realization. Article 20. and the right to security in the event of unemployment. Article 19. (2) Everyone. housing and medical care and necessary social services. conscience and religion. . disability. Article 21. worship and observance. Everyone has the right to freedom of opinion and expression. as a member of society. including food. and freedom. (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family. without any discrimination. Everyone has the right to freedom of thought. sickness. by other means of social protection. and supplemented. this right includes freedom to change his religion or belief. either alone or in community with others and in public or private. this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. clothing.
public order and the general welfare in a democratic society. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. old age or other lack of livelihood in circumstances beyond his control. Elementary education shall be compulsory. Article 28. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Preamble 197 . tolerance and friendship among all nations. whether born in or out of wedlock. Article 30. group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. literary or artistic production of which he is the author. It shall promote understanding. Article 27. (1) Everyone has the right to education. Article 29. (2) Motherhood and childhood are entitled to special care and assistance. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. (2) In the exercise of his rights and freedoms. (3) Parents have a prior right to choose the kind of education that shall be given to their children. to enjoy the arts and to share in scientific advancement and its benefits. Education shall be free. (1) Everyone has the right freely to participate in the cultural life of the community. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 26. at least in the elementary and fundamental stages. everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality.widowhood. Nothing in this Declaration may be interpreted as implying for any State. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific. racial or religious groups. All children. and shall further the activities of the United Nations for the maintenance of peace. shall enjoy the same social protection.
is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant. . without distinction of any kind. Realizing that the individual. Agree upon the following articles: PART I Article 1 1. as well as his economic. In no case may a people be deprived of its own means of subsistence. having duties to other individuals and to the community to which he belongs. Considering that. shall promote the realization of the right of self-determination. 198 2. and observance of. Recognizing that. PART II Article 2 Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant. justice and peace in the world. social and cultural development. All people may. based upon the principle of mutual benefit. for their own ends. including those having responsibility for the administration of Non-Self-Governing and Trust Territories. the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights. recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. By virtue of that right they freely determine their political status and freely pursue their economic. and international law. All people have the right of self-determination. human rights and freedoms. Recognizing that these rights derive from the inherent dignity of the human person.The States Parties to the present Covenant. The States Parties to the present Covenant. and shall respect that right. Considering the obligation of States under the Charter of the United Nations to promote universal respect for. social and cultural rights. in accordance with the Universal Declaration of Human Rights. 1. in conformity with the provisions of the Charter of the United Nations. in accordance with the principles proclaimed in the Charter of the United Nations. freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation. 3.
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. notwithstanding that the violation has been committed by persons acting in an official capacity. Each State Party to the present Covenant undertakes: a. or by any other competent authority provided for by the legal system of the State. is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant. each State Party to the present Covenant undertakes to take the necessary steps. having duties to other individuals and to the community to which he belongs. in accordance with the principles proclaimed in the Charter of the United Nations. and observance of. Recognizing that these rights derive from the inherent dignity of the human person. Realizing that the individual. sex. as well as his civil and political rights. the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic. property. political or other opinion. To ensure that the competent authorities shall enforce such remedies when granted. administrative or legislative authorities. c. recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. in accordance with the Universal Declaration of Human Rights. social and cultural rights. justice and peace in the world. 199 3. INTERNATIONAL COVENANT ON ECONOMIC. national or social origin. Considering that. religion. SOCIAL AND CULTURAL RIGHTS Preamble The States Parties to the present Covenant. language.such as race. b. . and to develop the possibilities of judicial remedy. 2. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial. Where not already provided for by existing legislative or other measures. human rights and freedoms. colour. in accordance with its constitutional processes and with the provisions of the present Covenant. Recognizing that. birth or other status. Considering the obligation of States under the Charter of the United Nations to promote universal respect for.
shall promote the realization of the right of self-determination. 3. for their own ends. 2. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic. In no case may a people be deprived of its own means of subsistence. based upon the principle of mutual benefit. PART II Article 2 1. 3.Agree upon the following articles: PART I Article 1 1. Article 4 2. religion. Each State Party to the present Covenant undertakes to take steps. 200 . and shall respect that right. colour. freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation. Developing countries. especially economic and technical. language. property. All people may. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race. By virtue of that right they freely determine their political status and freely pursue their economic. social and cultural development. and international law. birth or other status. political or other opinion. with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. sex. to the maximum of its available resources. national or social origin. with due regard to human rights and their national economy. in conformity with the provisions of the Charter of the United Nations. individually and through international assistance and co-operation. The States Parties to the present Covenant. may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. including those having responsibility for the administration of Non-Self-Governing and Trust Territories. including particularly the adoption of legislative measures. All people have the right of self-determination. social and cultural rights set forth in the present Covenant.
2. Nothing in the present Covenant may be interpreted as implying for any State. the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. 201 2. The States Parties to the present Covenant recognize the right to work. Article 5 1.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court.000. policies and techniques to achieve steady economic. the pretext that the present that it recognizes them to a 2. Accused must surrender his valid passport to this Court. . conventions. Respondent judge granted said bail under the following conditions: 1. Bail is set at Php750. will further appear for judgment. group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein. the cash bond will be forfeited in favor of the government. in the enjoyment of those rights provided by the State in conformity with the present Covenant. the fundamental human rights virtue of law. and will take appropriate steps to safeguard this right. No restriction upon or derogation from any of recognized or existing in any country in regulations or custom shall be admitted on Covenant does not recognize such rights or lesser extent. GOVERNMENT OF HONGKONG VS OLALIA Respondent was granted bail while in an extradition case with petitioner Hong Kong special administrative region. or at their limitation to a greater extent than is provided for in the present Covenant.The States Parties to the present Covenant recognize that. If accused fails in this undertaking. social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes. which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts. PART III Article 6 1.
. Enage. the right being limited solely to criminal proceedings. where the presumption of innocence is not at issue. that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail. real and personal. However.3. this Court cannot ignore the following trends in international law: (1) the 202 . manifest before this Court to require that all the assets of accused. and Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office. Panganiban. and if they further desire. per Fernando. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding. 41 SCRA 1. 18. the constitutional right to bail "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. the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. Hence. 6. unless his guilt be proved beyond reasonable doubt" (De la Camara v. It is "available only in criminal proceedings. later CJ). It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. Hon.". It follows that the constitutional provision on bail will not apply to a case like extradition. said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. be filed with this Court soonest. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. Moreover. 4. Guillermo G. speaking through then Associate Justice Artemio V. with the condition that if the accused flees from his undertaking. At first glance. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. Held: The constitutional provision on bail does not apply to extradition proceedings. VIII. 1971. the above ruling applies squarely to private respondent’s case. Purganan. J. Art. later Chief Justice. Constitution). September 17. held that the constitutional provision on bail does not apply to extradition proceedings. at any time and day of the week. Issue: • • Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail. In Government of United States of America v.
This Court has 203 . has gradually attained global recognition. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. The United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life. These significant events show that the individual person is now a valid subject of international law. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings. and the law on extradition. First. Fundamental among the rights enshrined therein are the rights of every person to life. liberty. such as deportation and quarantine. Respondents in administrative proceedings. Second. and (4) the duty of this Court to balance the rights of the individual under our fundamental law. have likewise been detained. While not a treaty. in granting bail to a prospective deportee. Recently. however. liberty and all the other fundamental rights of every person were proclaimed. on one hand. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war. Thus. we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. The Philippine authorities are under obligation to make available to every person under detention such remedies which safeguards their fundamental right to liberty. the recognition that the individual person may properly be a subject of international law is now taking root. and crimes against humanity. particularly the right to life and liberty.growing importance of the individual person in public international law who. In 1966. in Mejoff v. Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. Director of Prisons. the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. in light of the various international treaties giving recognition and protection to human rights. Slowly. this Court. (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. These remedies include the right to be admitted to bail. a reexamination of this Court’s ruling in Purganan is in order. crimes against peace. under the Nuremberg principle. For one. and due process. (2) the higher value now being given to human rights in the international sphere. the principles set forth in that Declaration are part of the law of the land. in the 20th century. to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. held that under the Constitution. on the other.
Commission of Immigration. Even if the potential extraditee is a criminal." Obviously. created by treaty. both are administrative proceedings where the innocence or guilt of the person detained is not in issue. but one that is merely administrative in character. bears all earmarks of a criminal process. After all. A potential extraditee may be 204 . it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law. tracing its existence wholly to treaty obligations between different nations. for the purpose of trial or punishment." This is shown by Section 6 of P. As previously stated. It is sui generis. to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction. It is not a criminal proceeding. Director of Prisons and Chirskoff v." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused. Nor is it a full-blown civil action. for it is not punishment for a crime. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice. It is not a trial to determine the guilt or innocence of the potential extraditee. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled. In fact. considering that the Universal Declaration of Human Rights applies to deportation cases. there is no reason why it cannot be invoked in extradition cases. bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings." Extradition has thus been characterized as the right of a foreign power. an extradition proceeding." and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently. and the correlative duty of the other state to surrender him to the demanding state. while ostensibly administrative. pending receipt of the request for extradition. The means employed to attain the purpose of extradition is also "the machinery of criminal law.admitted to bail persons who are not involved in criminal proceedings. even though such punishment may follow extradition. we see no justification why it should not also be allowed in extradition cases. In Mejoff v. If bail can be granted in deportation cases. No. Likewise. the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee’s right to bail. an extradition proceeding is not by its nature criminal. this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation.D. But while extradition is not a criminal proceeding. taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.
it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. and due process. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. the Philippines should diminish a potential extraditee’s rights to life. In this case. when the trial court ordered his admission to bail. Records show that private respondent was arrested on September 23. "Temporary detention" may be a necessary step in the process of extradition. In his Separate Opinion in Purganan. Puno. there is no showing that private respondent presented evidence to show that he is not a flight risk. he had been detained for over two (2) years without having been convicted of any crime. to a prolonged restraint of liberty. then Associate Justice. liberty. to which the Philippines is a party. but also by international conventions. not only by our Constitution. 1999. it does not necessarily mean that in keeping with its treaty obligations. However. a right to due process under the Constitution. 2001. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. In fact. there is no provision prohibiting him or her from filing a motion for bail. While administrative in character. By any standard. such an extended period of detention is a serious deprivation of his fundamental right to liberty. and forced to transfer to the demanding state following the proceedings. provided that a certain standard for the grant is satisfactorily met. Clear and convincing evidence" should be used in granting bail in extradition cases. now Chief Justice Reynato S. In other words. Consequently. deprive an extraditee of his right to apply for bail. More so. THE PRINCIPLE OF PACTA SUNT SERVANDA VS CONSTITUTIONAL LAW AND INTERNATIONAL LAW The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. While our extradition law does not provide for the grant of bail to an extraditee. We should not. but the length of time of the detention should be reasonable. An extradition proceeding being sui generis.subjected to arrest. and remained incarcerated until December 20. this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. According to him. therefore. however. proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. where these rights are guaranteed. this case should be remanded to the 205 . the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction.
For example. in retaliation for acts of the latter and as means of obtaining reparation or satisfaction for such acts. for violation of a treaty by a state. Bangladesh already existed as a state even without such recognition. The DECLARATORY THEORY OF RECOGNITION is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. the aggrieved state seizes on the high seas the ships of the offending state. Great Britain recognized a state of belligerency in the United States during the Civil War.trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence. In other words. directed by a state against another. An example of retorsion is banning exports to the offending state. if the Philippines appoints a consul general for New York. the recognized state already exists and can exist even without such recognition. c. e. RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state. For example. RETORSION is a legal but deliberately unfriendly act directed by a state against another in retaliation for an unfriendly though legal act to compel that state to alter its unfriendly conduct. CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. b. EXEQUATUR is an authorization from the receiving state admitting the head of a consular post to the exercise of his functions." Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx Nota bene: a. REPRISAL is a coercive measure short of war. For example. f. have a political organization. Belligerency exists when a sizeable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population. For example. d. or to a distance of 200 nautical miles from the "baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance. when other countries recognized Bangladesh. are able to maintain such control. and conduct themselves according to the laws of war. he cannot start 206 . Reprisal involves retaliatory acts which by themselves would be illegal.
William refused the services of the lawyer. informed William of his Miranda rights. The request was denied. embassy when he got into a heated argument with a private Filipino citizen. The principle of DOUBLE CRIMINALITY is the rule in extradition which states that for a request to be honored the crime for which extradition is requested must be a crime in both the requesting state and the state to which the fugitive has fled. For example. 207 . Upon reaching the station. and brought him to the nearest police station. a private American citizen. The police came. Then. William. INNOCENT PASSAGE means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a state for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside internal waters. and assigned him an independent local counsel. in halting English. PROTECTIVE PERSONALITY principle is the principle by which the state exercise jurisdiction over the acts of an alien even if committed outside its territory. the Philippines can request Canada to extradite a Filipino who has fled to Canada. good order or security of the coastal state. JUS COGENS is a peremptory norm of general international law accepted and recognized by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. if such acts are adverse to the interest of the national state. or proceeding to or from internal waters or a call at such roadstead or port facility. The passage is innocent so long as it is not prejudicial to the peace. was inside the U. a university graduate and frequent visitor to the Philippines. the police investigator. under the Treaty on Extradition between the Philippines and Canada. and insisted that he be assisted by a Filipino lawyer currently based in the U. i.performing his functions unless the President of the United States issues an exequatur to him. since murder is a crime both in the Philippines and in Canada. An example is the prohibition against the use of force. h. j.S. g. William protested his arrest. in front of many shocked witnesses. SUGGESTED ANSWERS TO THE 2009 BAR EXAM QUESTIONS ON PUBLIC INTERNATIONAL LAW XII. he killed the person he was arguing with.S. and the counsel assigned by the police stayed for the duration of the investigation.
it will do whatever is necessary to defend itself. Yes. Is William correct? Explain your answer. no crime under Philippine law was committed. it does not alter the fact. No. The concept of “exterritoriality. Article 51 of the U. technically. the Philippine action was justified. Through diplomatic channels. Philippine courts have no jurisdiction because the U. The government of Asyaland does not support the terrorist group. The Emerald Brigade launched an attack on the Philippines. except with the consent of the Ambassador or the head of the mission. A terrorist group called the Emerald Brigade is based in the State of Asyaland. is powerless to stop it. XIII. under international law. in the face of another imminent attack by the Emerald Brigade. Hence. the Philippines sent a crack commando team to Asyaland. on the other hand. to prevent the use of its territory for the staging of terrorist acts against the Philippines. and it appearing that Asyland was incapable of preventing the 208 . The team stayed only for a few hours in Asyaland. embassy grounds are not part of Philippine territory. succeeded in killing the leaders and most of the members of the Emerald Brigade. had failed to fulfill its obligations. but being a poor country. then immediately returned to the Philippines.[a] He argued that since the incident took place inside the U. that such premises are still part of Philippine territory.” under which diplomatic premises are deemed to be part of the sovereign territory of the sending State. It then warned that more attacks were forthcoming. William is not correct. (3%) Ans. a crime committed on or within such premises by a private person like Williams who enjoys no diplomatic immunity falls within the jurisdiction of Philippine courts.S. and it appearing that Asyaland was incapable of preventing the assault. Receiving reliable intelligence reports of another imminent attack by the Emerald Brigade. thus. however. the Philippines demanded that Asyaland stop the Emerald Brigade. While Article 22 of the Vienna Convention on Diplomatic Relations provides that the premises of a diplomatic mission shall be inviolable. Asyland. otherwise.N.S. The terrorist group Emerald Brigade had already launched actual armed attacks on the Philippines which killed thousands of Filipinos with a warning that more attacks were forthcoming. has not been adopted in the Vienna Convention. embassy. and may not be entered by the police or by any other agent of the receiving State. (3%) Ans. [a] Was the Philippine action justified under the international law principle of “self-defense”? Explain your answer. firing two missiles that killed thousands of Filipinos. Charter affirms the inherent right of States to individual or collective self-defence. As such.
should apply. The Philippine Government insists that a special international tribunal should try the terrorist. known as the UN global counter-terrorism strategy. that is. 209 . Article 4(2)(d) prohibits “acts of terrorism” against all persons who do not take a direct part or have ceased to take part in hostilities. Decide with reasons.” A similar provision is contained in the Second Additional Protocol of 1977. State practice and the U. Which contention is correct? Reasons. international terrorism may be prosecuted under the different international conventions on the prevention. the Philippines was therefore justified in resorting to military action to protect its own security as an act of self-defence.N. and therefore it may be tried by a special international tribunal.” The Philippines counters that its commando team neither took any territory nor interfered in the political processes of Asyaland. in particular by denying terrorists access to the means to carry out their attacks. Terrorism is an international crime both in peace time and in times of armed conflicts. Asyaland charges the Philippines with violation of Article 2. [c] Assume that the commando team captured a member of the Emerald Brigade and brought him back to the Philippines. [b] As a consequence of the foregoing incident. suppression and punishment of terrorism. Article 33(1) of the Fourth Geneva Convention of 1949 prohibits “all measures of terrorism against civilians. member States shall adopt a plan of action. therefore. Security Council's actions after 9/11 indicate a trend towards recognizing that a State that suffers large-scale violence perpetrated by non-State actors located in another State has a right to use force when (1) that other State proves unwilling or unable to reduce or eliminate the source of the violence. it may be prosecuted as a distinct category of war crimes. (3%) Ans. On the other hand. the municipal laws of the Philippines. and when committed during an armed conflict. The municipal laws of the Philippines cannot apply because the terrorist acts in question are transnational in nature. (3%) Ans. the terrorist argues that terrorism is not an international crime and. The contention of the Philippines is the correct one. which recognize access of the accused to constitutional rights. When committed during peacetime. and (3) the use of force is temporary and does not result in non-consensual occupation or annexation of territory. (2) the use of force is proportional to the threat posed by the non-State actor.assault. International law indisputably bans terrorism in time of armed conflict. to their targets and to the desired impact of their attacks. including a number of measures to prevent and combat terrorism.4 of the United Nations Charter that prohibits “the threat or use of force against the territorial integrity or political independence of any State. not limited to the territory of the Philippines and they do not fall under the extraterritorial criminal jurisdiction of the Philippines under Article 2 of the Revised Penal Code. Under UN/A/RES/60/288 (2006).
it is also well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute. the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Aquino (G. Section 28 of the Declaration of 210 .” [b] Will your answer be the same if the information sought by KMM pertains to contracts entered into by the Government in its proprietary or commercial capacity? Why or why not? (3%) Ans. Under Section 7. However. (3%) Ans. PCGG (360 Phil. In discussing valid limitations on the right to information. invoking the constitutional right of the people to information on matters of public concern.R. The suit filed by KMM should be dismissed. the Kabataan at Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding disclosure of the details of the negotiations. The DFA and the DND refused. 2008). 764 ) held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. citizens shall be afforded access to official records. the answer will be different. contending that premature disclosure of the offers and counter-offers between the parties could jeopardize on-going negotiations with another country. As held in the recent case of Akbayan vs. 170516. the privileged character of diplomatic negotiations has been recognized in this jurisdiction. there being matters which. 133. Moreover.R. No. 1988) wherein the Supreme Court stressed that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. The Philippine Government is negotiating a new security treaty with the United States which could involve engagement in joint military operations of the two countries’ armed forces. Information pertaining to contracts entered into by the Government in its proprietary or commercial capacity are not covered by the doctrine of executive privilege. including the offers and counter-offers between the Philippine Government and United States. as well as copies of the minutes of the meetings. and to documents. It is true that the details of the treaty negotiation. No. Manglapus (G. 84642.XIV. and papers pertaining to government transactions. [a] Decide with reasons. and be granted access to the records of the meetings. No. July 16. A loose organization of Filipinos. are recognized as privileged in nature.” Even earlier. These information are matters of public concern to which the people have the right to information under Section 7 of the Bill of Rights. are matters of public concern. KMM filed suit to compel disclosure of the negotiation details. the Supreme Court in Chavez v. albeit of public concern or public interest. September 13.
disposition or sale. and control by the State over its territorial lands.Principles directs the State to adopt and implement a policy of full public disclosure of all its transactions involving public interest. 3. and do any other act of governance over its people and territory. use. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx II. conservation. 1. What is extra-territoriality? - It is the exemption of foreign persons from laws and jurisdiction of a State in which they presently reside. 4. defend the State against foreign invasion. What is imperium? - The right of the State to pass or enact its own laws and employ force to secure obedience. What is dominium? - It refers to the independent proprietary right of possession. 2. FUNDAMENTAL RIGHTS OF STATES 211 . What is exterritoriality? - It is the fiction in international law by virtue of which foreign persons and their things are exempted from the jurisdiction of the State on the theory that they form an extension of the territory of their own State. maintain peace and order within its territorial limits. an exemption which can only exist by virtue of a treaty stipulation to this effect.
as has been interpreted. the territory must be res nullius or terra nullius. The principle of sovereign equality of states. The prime object of settlement by occupation is the incorporation of unappropriated territory into the national domain of the acquiring State. . In other words. an entity may in fact possess all elements of a state but if one or more states do not extend recognition to it. Concept of res nullius . Only such territory as is not within the dominion of any State may be the object of occupation. or in any other manner inconsistent with the purposes of the United Nations. occupation and prescription: • Occupation is an original mode of territorial acquisition.Two modes of territorial acquisition in International Law. the entity would not be able to establish relations with those states. but that it be not already occupied by a people or State whose political organization is such as to cause its prior rights of occupancy to be recognized. in accordance with the Charter. When Japan renounced its sovereignty over the islands in the San Francisco Treaty in 1951. this latter element of sovereignty. • We must concede that in the past European powers did not recognize the title of settled peoples whose civilization was allegedly below the 212 . namely. however. The duty not to intervene in matters within the domestic jurisdiction of any state. does not require that the territory be uninhabited. and Sovereignty Independence from outside control. the Montivedeo Convention expresses this in positive terms as including the capacity to enter into relations with other States. the islands became res nullius and available for annexation. is dependent on recognition. The principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.The Philippines bases its claims of sovereignty over the Spratlys on the issues of res nullius and geography. 3.Intervention Under the basic principles of international law: 1. 2. The term res nullius.The definition of res nullius is "A thing which has no owner or A thing which has been abandoned by its owner is as much res nullius as if it had never belonged to anyone. and is effected through possession and administration of the territory by or in behalf of the acquiring State." . The principle of equal rights and self-determination of peoples. 4.
At any rate. Jurisdiction to prescribe norms of conduct (legislative jurisdiction) 2.The authority to affect legal interests. Filed charges with the NLRC. . IRRI set defense of immunity. Article 3 provides: 213 . Outer space – outer space begins where sovereignty over air space ends . wherever that might be. Jurisdiction to adjudicate (judicial jurisdiction) Diplomatic immunity CALLADO VS IRRI Callado was terminated by IRRI. Corresponding to the powers of the government. of Lord Granville's correspondence. • Astronauts are envoys of mankind in outer space and shall render them assistance in every accident. or emergency landing on the territory of another state party or on the high seas. insofar as the British Government is concerned.Under the 1967 Treaty on the exploration and use of outer space • Exploration and use of the moon and other celestial bodies are for the benefit and interest of all countries • Outer space and the moon shall be free for exploration and use by all states • Outer space and the moon not subject to national appropriation • Parties to treaty agree not to place in orbit around earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction install such on celestial bodies or station such weapons in outer space in any other manner • Moon and other celestial bodies shall be used by all states for peaceful purposes. Labor arbiter said no immunity in labor case. Presidential Decree No. jurisdiction can be 1. The emergence of non-European powers. 1620. it is precluded from claiming that the Sultan of Sulu had a title or a political organization below the European standard. All we need to do is to refer back to the text.European standard. They shall be safely and promptly returned to the state of registry of their space vehicle. are not susceptible to appropriation by any state. Jurisdiction .Outer space. and the growing importance of new nations in the Afro-Asian bloc. Jurisdiction to enforce the norms prescribed (executive jurisdiction) 3. distress. and celestial bodies. Held: • IRRI's immunity from suit is undisputed. have eroded away this concept.
and to ensure the unhampered the performance of their functions. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity. Hence. Under the Vienna Convention on Consular relations. from political pressure or control by the host country to the prejudice of member States of the organization. Hon. • in WHO v.The grant of immunity from local jurisdiction to . in accordance with international practice. it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . pertinent provisions relating to their functions are the following: 214 . which is to shield the affairs of international organizations. Immunity from Legal Process. as to embarass the executive arm of the government in conducting foreign relations. except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. Benjamin Aquino: . . . and IRRI is clearly necessitated by their international character and respective purposes. or other officer acting under his direction. They attend rather to administrative and economic issues such as the issuance of visas. . The Institute shall enjoy immunity from any penal. it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. civil and administrative proceedings. and in such event would be recalled or his functions with the consular post terminated. we held that "(t)he raison d'etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned.Art. . . .Further. He may be declared persona non grata by the receiving state. • IRRI enjoy(s) immunities accorded to international organizations. which determination has been held to be a political question conclusive upon the Courts in order not to embarass a political department of Government. in adherence to the settled principle that courts may not so exercise their jurisdiction . and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar. 3. CONSULS AND CONSULAR IMMUNITIES Consuls are not concerned with political matters. The head of a consular post may be admitted through an authorization letter from the receiving state termed an exequatur. .It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government.
iI (4)). additional to those already committed at the time of the seizure of the Emtbassy (1961 Convention: Arts. any of the privileges and immunities provided for in Art. 45 FREEDOM OF MOVEMENT (subject to laws and regulations. LIABILITY TO GIVE EVIDENCE WAIVER OF PRIVILEGES AND IMMUNITIES Sending state may waive. gave rise to repeated and multiple breaches of Iran's treaty obligations. vessel. 35 Art. 44 Case concerning US Diplomatic and Consular Staff in Teheran • Iran did not break off diplomatic relations with the US government and in no time declared the members of the consular staff persona non grata.24. The Iranian authorities' decision to continue the subjection of the Embassy to occupation. 36 Art. 43 Art. DETENTION OR PROSECUTION Receiving state shall notify head of the consular post IMMUNITY FROM JURISDICTION Consular officers and consular employees shall not be amenable to the jurisdiction of judicial or administrative authorities of the receiving state with respect to acts performed in the exercise of consular functions First paragraph shall not apply with respect to a civil action either: • Arising out of a contract concluded by the consular officer or consular employee in which he did not contract expressly or impliedly as an agent of the sending state. 1955 Tkaty.27 and 29. They did not employ remedies in ending the crisis. 41. • xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx Diplomatic Immunity (2000) 215 . 43. It allowed the group of militants to attack and occupy the US Embassy by force and held the diplomatic and consular staff hostage. 42 Art. caused by a vehicle. 33.25.26. 22. with regard to the consular post. 34 Art. • By a third party for damages arising from an accident in the receiving state. 41 Art. or aircraft. Art. 1963 Convention: inter alia. movement and travel in the territory of the receiving State by the members of the consular post) FREEDOM OF COMMUNICAITON COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE PERSONAL INVIOLABILITY OF CONSULAR OFFICERS Not be liable to arrest or detention pending trial except of a grave crime NOTIFICATION OF ARREST. 44 Art.Art. Art. and of its staff to detention as hostages.
an official of the World Health Organization (WHO) assigned in the Philippines.R. If the acts giving rise to a suit are those of a foreign government done by its foreign agent. No. G. made to attach not just to the person of the head of state. in effect. his personal effects were allowed free entry from duties and taxes. Velen's 216 . 142396. the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Under Article 29 of the Vienna Convention. 2003) Diplomatic Immunity (2001) No XX . a diplomatic agent has no immunity in case of a real action relating to private immovable property situated in the territory of the receiving State unless he holds it on behalf of the sending State for purposes of the mission. arrived at the Ninoy Aquino International Airport with his personal effects contained in twelve crates as unaccompanied baggage. the foreign ambassador cannot invoke his diplomatic immunity to resist the action. since he is not using the house in Tagaytay City for the purposes of his mission but merely for vacation. Velen. Under Article 3(l)(a) of the Vienna Convention on Diplomatic Relations. or his representative. a) Can the foreign ambassador invoke his diplomatic immunity to resist the lessor's action? (3%) b) The lessor gets hold of evidence that the ambassador is about to return to his home country. b) No. For some reason. COURT OF APPEALS. a diplomatic agent shall not be liable to any form of arrest or detention. (KHOSROW MINUCHER vs. The lessor filed an action for the recovery of his property in court. he failed to pay rentals for more than one year. but acting in his official capacity. and were directly stored at Arshaine Corporation's warehouse at Makati. although not necessarily a diplomatic personage. Suing a representative of a state is believed to be.No XX -A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal use. As such. but also distinctly to the state itself in its sovereign capacity. the lessor cannot ask the court to stop the departure of the ambassador from the Philippines. pending Dr. with the emergence of democratic states.Dr. February 11. suing the state itself. Can the lessor ask the court to stop the ambassador's departure from the Philippines? (2%) SUGGESTED ANSWER: a) No. (per Dondee) The grounds cited by YZ is tenable on the basis that the precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit and.
Velen's personal effects in view of an alleged violation of the Tariff and Custom's Code. as an official of the World Health Organization. the Secretary of Foreign Affairs formally advised the RTC as to Dr. According to the police. LAW OF INTERNATIONAL OBLIGATIONS 217 . the Court has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused. the Regional Trial Court (RTC) of Makati issued a warrant for the search and seizure of Dr. Dr. where a plea of diplomatic immunity is recognized and affirmed by the Executive Department. Velen's immunity. the Treaty is neither a piece of criminal legislation nor a criminal procedural statute.relocation to his permanent quarters. ISSUE: Can an extradition treaty be applied retroactively? HELD: Applying the constitutional principle. Velen's plea of immunity and motion to quash the search warrant. entered into a Treaty of Extradition on the 7th of March 1988. Is the denial of the motion to quash proper? (5%) SUGGESTED ANSWER: The denial of the motion is improper. The Solicitor General likewise joined Dr. violates the Constitutional prohibition against ex post facto laws. This being so. At the instance of police authorities. Upon protest of WHO officials. Velen enjoyed diplomatic immunity and this included exemption from duties and taxes. there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect. It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified. Aquino. III. As held in World Health Organization vs. The said treaty was ratified in accordance with the provisions of Section 21. 1990 and became effective 30 days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. 48 SCRA 242 (1972). it is the duty of the court to accept the claim of immunity EXTRADITION WRIGHT VS CA Australia and the Government of the Philippines in the suppression of crime. Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10. Since diplomatic immunity involves a political question. As the Court of Appeals correctly concluded. The RTC denied the motion. the crates contained contraband items. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution.
The legal principle clausula rebus sic stantibus. although the doctrine is never mentioned by name. • The doctrine is part of customary international law. The general principle of correct behaviour in commercial praxis — and implies the bona fide — is a requirement for the efficacy of the whole system. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal (domestic) law as justification for a failure to perform. This entitles states to require that obligations be respected and to rely upon the obligations being respected.PACTA SUNT SERVANDA VS REBUS SIC STANTIBUS Pacta sunt servanda • (Latin for "agreements must be kept"). • In its most common sense. Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first. it requires strict regulations as to the conditions in which it may be invoked. Rebus sic stantibus • In public international law. so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by any of the parties. called jus cogens (compelling law). but is also provided for in the 1969 Vienna Convention on the Law of Treaties under Article 62 (Fundamental Change of Circumstance). the principle refers to private contracts. • With reference to international agreements. also allows for treaty obligations to be unfulfilled due to a compelling change in circumstances. clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. • The only limit to pacta sunt servanda is the peremptory norms of general international law. part of customary international law. a basic principle of civil law and of international law. • If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. "every treaty in force is binding upon the parties to it and must be performed by them in good faith. that the circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical effect on the obligations of the treaty (sub-paragraph B). Clausula rebus sic stantibus only relates to changed 218 . is a brocard. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). • Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined." Pacta sunt servanda is based on good faith. and implies that non-fulfilment of respective obligations is a breach of the pact. stressing that contained clauses are law between the parties.
or any situation which might lead to international friction or give rise to a dispute. Any Member of the United Nations may bring any dispute. 1973). first of all. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12. or other peaceful means of their own choice. to the attention of the Security Council or of the General Assembly. at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature. when it deems necessary. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v. enquiry. judicial settlement. for the purposes of the dispute. in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. • Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty. the obligations of pacific settlement provided in the present Charter. shall. resort to regional agencies or arrangements. unilateral denunciation of a treaty is prohibited.circumstances that were never contemplated by the parties. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a 219 Article 35 . IV. The Security Council shall. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. call upon the parties to settle their dispute by such means. Article 34 The Security Council may investigate any dispute. conciliation. PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES Article 33 The parties to any dispute. or any situation of the nature referred to in Article 34. a party does not have the right to denounce a treaty unilaterally. recommend appropriate procedures or methods of adjustment. Iceland. mediation. the continuance of which is likely to endanger the maintenance of international peace and security. Article 36 The Security Council may. seek a solution by negotiation. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance. arbitration.
Article 37 Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article. notably those to political sovereignty and territorial integrity. marines. for any resort to war to be justified. first and foremost. and punishment for a grievous wrongdoing which remains uncorrected. Just cause This is clearly the most important rule. if all the parties to any dispute so request.” Walzer. or state. a political community. it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. If they fail in that responsibility. air forces. and those of their individual citizens. Aggression is the use of armed force in violation of someone else's basic rights. they are to be held accountable to jus ad bellum principles. V. then they commit war crimes. setting their armed forces in motion. the protection of innocents from brutal. the defence of others from such. the Security Council may. A state may launch a war only for the right reason. missiles—in violation of these rights. it sets the tone for everything which follows. Article 38 Without prejudice to the provisions of Articles 33 to 37. aggressive regimes. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security. navies. Since political leaders are the ones who inaugurate wars. Classic cases would be Nazi Germany into 220 . In the language of the Nuremberg prosecutors. INTERNATIONAL HUMANITARIAN LAW Jus ad bellum The rules of jus ad bellum are addressed. they shall refer it to the Security Council. Vitoria suggested that all the just causes be subsumed under the one category of “a wrong received. Just war theory contends that.general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. It thus affirms that aggression involves the use of armed forces—armies. International law affirms that states have many rights. speak of the one just cause for resorting to war being the resistance of aggression. make recommendations to the parties with a view to a pacific settlement of the dispute. and most modern just war theorists. The just causes most frequently mentioned include: self-defence from external attack. The basic rights of two kinds of entity are involved here: those of states. aggressive leaders who launch unjust wars commit “crimes against peace. must fulfil each and every one of the following six requirements: 1.” What constitutes a just or unjust resort to armed force is disclosed to us by the rules of jus ad bellum. to heads of state.
legitimate governments don't commit aggression against other societies. and Iraq into Kuwait in 1990. if not. it has the duty to stop its rights-violating aggression. overthrow its government and establish a new regime in its place. provided the other jus ad bellum criteria are also met. a vicious fight over the one state between rival communities within a formerly united society. and Aquinas perhaps saw this more clearly than any classical member of the tradition. talk of legitimacy is essential for explaining justice in a civil war. rather. We can speak of states satisfying these criteria as legitimate. 221 . If governments do so. is a violent clash over how a territory and its people are to be governed. the state avoids violating the rights of other legitimate states. The key to discerning morality in such cases revolves around the idea of legitimacy: which. thereby permitting violent resistance. to support. This is vital: from the moral point of view. the state in question has rights to govern and to be left in peace. or “minimally just. cross-border aggression between competing countries but. to have enough resources to subsist at all.” political communities. and to choose for themselves their own lives and societies.S. notably those to life. We need a theory of legitimate governance to ground just war theory. Based on international law (see Roth). and the state is not shunned as a pariah by the rest of the world. Aggression thus attacks the very spine of human civilization itself. and the U. Crucially. If these conditions are met. But why do states have rights? The only respectable answer seems to be that they need these rights to protect their people and to help provide them with the objects of their human rights. liberty and subsistence. wherein the aggressor used its armed forces to invade the territory of the victim. including those to go to war. the state is recognized as legitimate by its own people and by the international community. declared: governments are instituted among people to realize the basic rights of those people. wherein there isn't classical. In particular. Third. This connection to legitimacy is consistent with the perspective on war offered so far: war. There is an uncoerced general peace and order within that society. if any. it seems like there are three basic criteria for a legitimate government. Finally. They are as follows. States failing any of these criteria have no right to govern or to go to war.Poland in 1939. to describe what is wrong about aggression and why it justifies war in response. only legitimate governments have rights. First. to be physically secure. Founding Fathers. This is what makes it permissible to resist with means as severe as war. to give state rights moral legitimacy and to avoid fetishizing state rights for their own sake. Second. at its heart. Second. the commission of aggression causes the aggressor to forfeit its own state rights. to live in peace. As John Locke. side has minimal justice? Which side is defending—or is seeking to establish—a legitimate political structure in our threefold sense? That's the side which it is permissible to: a) be part of. or b) if you're an outsider. indeed. they are legitimate. Why do we need to talk about these rights? First. legitimate states make every reasonable effort to satisfy the human rights of their own citizens. An aggressor has no right not to be warred against in defence. Aggression is so serious because it involves the infliction of physical force in violation of the most elemental entitlements people and their communities have: to survive. they have neither right nor reason to exist.
deploying armed force in a series of massacres against large numbers of its own citizens. The aggressor has no right not to be resisted with defensive force.” Others. it is entirely permissible for its victims to resort to force to protect themselves—and for anyone else to do likewise in aid of the victims. Vitoria said you must wait. they forfeit any right not to suffer the consequences of receiving defensive force in response. Serbia/Kosovo in 1998-9 and in Sudan/Darfur from 2004 to the present. Why? There's no logical requirement that aggression can only be committed across borders. since it would be absurd to “punish someone for an offense they have yet to commit. or c) many other people within one's own community (domestic or “internal” aggression). This use of armed force was in violation of America's state rights to political sovereignty and territorial integrity. and are massively vulnerable. in any of these forms. the aggressor has the duty to stop and submit itself to punishment. If the aggressor doesn't stop. one owes it to one's people to 222 . hoping this fear will advance a political objective. to be justified in going to war. Indeed. When they do so. both to gain control of the planes and then again when using the planes as missiles against the targets in The Pentagon and The World Trade Center. Aggression is the use of armed force in violation of someone else's basic rights. they justified the responding attack on the Taliban regime in Afghanistan. turns savagely against its own people. and the issue of fairness and the duty to protect one's people. with the intent of spreading fear throughout a population. If one knows a terrible attack is coming soon. Our definitions allow us to say it's permissible to intervene on behalf of the victims. Usually. Rwanda in 1994.How does this conception of just cause impact on the issue of armed humanitarian intervention? This is when a state does not commit cross-border aggression but. The commission of aggression. for whatever reason. strive to define the exceptional criteria. since domestic populations are at a huge disadvantage. An important issue in just cause is whether. As such. like Walzer. causes the aggressor to forfeit its rights. Terrorists can commit aggression too. to the violence of their own state. one must wait for the aggression actually to happen. The tradition is severely split on this issue. On 9/11. There's nothing to the concept which excludes this: they. the kind and quality of evidence required. since terrorism is precisely the use of random violence— especially killing force—against civilians. terrorists almost always commit aggression when they act. armed aid from the international community is essential for an effective resistance against the aggression. The terrorist strikes on 9/11 were aggression—defiantly so. stressing: the seriousness of the anticipated aggression. the al-Qaeda terrorist group clearly used armed force. the speed with which one must decide. by providing resources. in humanitarian intervention. The Taliban had sponsored and enabled al-Qaeda's attack. Such events happened in Cambodia and Uganda in the 1970s. or whether in some instances it is permissible to launch a pre-emptive strike against anticipated aggression. and to attack with defensive force the rogue regime meting out such death and destruction. too. deliberately modelled after Pearl Harbor. b) another state (international or “external” aggression). indeed. and to all those people's human rights to life and liberty. personnel and a safe haven to the terrorist group. can deploy armed force in violation of someone else's basic rights. That “someone else” might be: a) another person (violent crime).
were highlighted in the run-up to the 2003 U. Proper authority and public declaration. The U. 2. still maintains. peaceful alternatives to resolving the conflict in question. notably casualties. for its part. 6. since often in 223 . A state may resort to war only if it has exhausted all plausible. according to the proper process. A state must. Last Resort. in its National Security Strategy. Right intention. yourself become the aggressor? Can striking first still be considered an act of defence from aggression? International law. is a good offense. against the universal evils expected to result. are ruled out.shift from defense to offense. Why let the aggressor have the upper hand of the first strike? But that's the very issue: can you attack first and not. such as revenge or ethnic hatred. 4.-led pre-emptive strike on Iraq. as it is seen as biased against small. notably to its own citizens and to the enemy state(s). such as a power or land grab. 3. weaker states. the right to strike first as part of its war on terror. Proportionality. A state may not resort to war if it can foresee that doing so will have no measurable impact on the situation. in particular diplomatic negotiation. 5. as they say. One wants to make sure something as momentous and serious as war is declared only when it seems the last practical and reasonable shot at effectively resisting aggression. States failing the requirements of minimal justice lack the legitimacy to go to war. (The universal must be stressed. These issues. Many other countries find this extremely controversial. A state must intend to fight the war only for the sake of its just cause.S.S. weigh the universal goods expected to result from it. prior to initiating a war. thereby. Only if the benefits are proportional to. of course. The “appropriate authority” is usually specified in that country's constitution. the costs may the war action proceed. and made public. Probability of Success. International law does not include this rule. If another intention crowds in. probably because of the evidentiary difficulties involved in determining a state's intent. The aim here is to block mass violence which is going to be futile. The best defense. Ulterior motives. or irrational motives. sweepingly forbids pre-emptive strikes unless they are clearly authorized in advance by the UN Security Council. moral corruption sets in. or “worth”. The only right intention allowed is to see the just cause for resorting to war secured and consolidated. A state may go to war only if the decision has been made by the appropriate authorities. International law does not include this requirement. such as securing the just cause. Having the right reason for launching a war is not enough: the actual motivation behind the resort to war must also be morally appropriate.
Nuclear weapons aren't so clearly prohibited but it seems fair to say a huge taboo attaches to such weapons and any use of them would be greeted with incredible hostility by the international community. so to speak. Discrimination and Non-Combatant Immunity.) Just war theory insists all six criteria must each be fulfilled for a particular declaration of war to be justified: it's all or no justification. Obey all international laws on weapons prohibition. The next three requirements are consequentialist: given that these first principle requirements have been met. in particular. External. some core duty must be violated: in this case. Thus. which is morally immune from direct and intentional attack. radically discounting those accruing to the enemy and to any innocent third parties. officers and soldiers who formulate and execute the war policy of a particular state. whether by one's own national military justice system or perhaps by the newly-formed International Criminal Court (created by the 1998 Treaty of Rome). Soldiers are only entitled to use their (non-prohibited) weapons to target those who are. They are to be held responsible for any breach of the principles which follow below. otherwise known as duty-based requirements or first-principle requirements. “engaged in harm. For a war to be just.” Thus. political and industrial targets involved in rights-violating harm. and those legitimate military. Internal jus in bello concerns the rules a state must follow in connection with its own people as it fights war against an external enemy. or traditional. A war in punishment of this violated duty must itself respect further duties: it must be appropriately motivated. to right conduct in the midst of battle.war states only tally their own expected benefits and costs. Responsibility for state adherence to jus in bello norms falls primarily on the shoulders of those military commanders. Such accountability may involve being put on trial for war crimes. as of course it should be. There are several rules of external jus in bello: 1. It is important to note that the first three of these six rules are what we might call deontological requirements. just war theory attempts to provide a common sensical combination of both deontology and consequentialism as applied to the issue of war. We need to distinguish between external and internal jus in bello. the duty not to commit aggression. we must also consider the expected consequences of launching a war. in Walzer's words. Jus in bello Jus in bello refers to justice in war. 2. While some collateral civilian casualties are 224 . are forbidden by many treaties. soldiers must discriminate between the civilian population. jus in bello concerns the rules a state should observe regarding the enemy and its armed forces. when they take aim. and must be publicly declared by (only) the proper authority for doing so. Just war theory is thus quite demanding. Chemical and biological weapons. given the gravity of its subject matter.
Soldiers may only use force proportional to the end they seek. seeking to chasten A into obeying the rules. They are no longer “engaged in harm.S. as The Geneva Conventions spell out.g. Country B then retaliates with its own violation of jus in bello.” Thus it is wrong to target them with death. or press censorship? Can one curtail traditional civil liberties.excusable. 5. nevertheless to still respect the human rights of its own citizens as best it can during the crisis. for example. 4. No reprisals. forcing captured soldiers to fight against their own side. refuse to fight in wars they believe unjust? A comprehensive theory of wartime justice must include 225 . Proportionality.) 3. they cease being lethal threats to basic rights. starvation. it is wrong to take deliberate aim at civilian targets. They must restrain their force to that amount appropriate to achieving their aim or target. No Means Mala in Se. Weapons of mass destruction. An example would be saturation bombing of residential areas. when they should be exchanged for one's own POWs. A reprisal is when country A violates jus in bello in war with country B. They are to be provided. torture. too? Great controversy surrounds the detainment and aggressive questioning of terrorist suspects held by the U. casualties. for perceived gains in national security? Should elections be cancelled or post-poned? May soldiers disobey orders. Iraq and Pakistan in the name of the war on terror. using poison or treachery (like disguising soldiers to look like the Red Cross). and so on. at jails in Cuba. If enemy soldiers surrender and become captives. as international law seeks to protect unarmed civilians as best it can. and due process protections. e. even though it's involved in a war. medical experimentation. genocide or ethnic cleansing.” These include: mass rape campaigns. Soldiers may not use weapons or methods which are “evil in themselves. There are strong moral and evidentiary reasons to believe that reprisals don't work. and using weapons whose effects cannot be controlled. like biological agents. The following issues arise: is it just to impose conscription. Do terrorists deserve such protection. 6. rape. are usually seen as being out of proportion to legitimate military ends. Winning well is the best revenge. than military. (It is worth noting that almost all wars since 1900 have featured larger civilian. Perhaps this is one reason why this rule is the most frequently and stridently codified rule in all the laws of armed conflict. and they instead serve to escalate death and make the destruction of war increasingly indiscriminate. Internal jus in bello essentially boils down to the need for a state. with benevolent—not malevolent—quarantine away from battle zones and until the war ends. Benevolent quarantine for prisoners of war (POWs).
the soldiers. The relevant rights include human rights to life and liberty and community entitlements to territory and sovereignty. 226 . The settlement should secure those basic rights whose violation triggered the justified war. There is a newness.consideration of them. ensuring that the war will actually have an improving affect. national borders. proportionate punishment must be meted out. should face fair and public international trials for war crimes. Distinction needs to be made between the leaders. have used the cloak of war with foreign powers to engage in massive internal human rights violations. When the defeated country has been a blatant. The leaders of the regime. For some of the worst atrocities in wartime have occurred within. unsettledness and controversy attaching to this important topic. after all. This rules out sweeping socio-economic sanctions as part of post-war punishment. usually against some disfavoured group. It seeks to regulate the ending of wars. Discrimination. 3. This is the main substantive goal of any decent settlement. whether national or international. But even here the theory has not dealt with jus post bellum to the degree it should. which are otherwise decent. Jus post bellum Jus post bellum refers to justice during the third and final stage of war: that of war termination. Some states. 4. is a foundation of civilization. and to ease the transition from war back to peace. Respect for rights. Other states. To focus our thoughts. panic amidst the wartime situation and impose emergency legislation which turns out to have been complete overkill. rights-violating aggressor. The peace settlement should be measured and reasonable. this rules out insistence on unconditional surrender. and which they later regret and view as the product of fear rather than reason. Vindicating rights. To make a settlement serve as an instrument of revenge is to make a volatile bed one may be forced to sleep in later. Civilians are entitled to reasonable immunity from punitive post-war measures. Rights Vindication. and not between. There is little international law here—save occupation law and perhaps the human rights treaties—and so we must turn to the moral resources of just war theory. Punishment #1. In general. historically. consider the following proposed principles for jus post bellum: 1. in particular. is the order of the day. and the civilians in the defeated country one is negotiating with. and not merely focus on what one may do to the enemy. as well as publicly proclaimed. 2. Proportionality and Publicity. not vindictive revenge.
A post-war poll tax on civilians is generally impermissible. Rehabilitation. The permission is then granted because the transformation: 1) violates neither state nor human rights. To beggar thy neighbor is to pick future fights. Punishment #2. the most controversial aspect of jus post bellum. and it deserves at least as much thought and effort as the purely military exit strategy so much on the minds of policy planners and commanding officers. At the very most. etc. to be an ethical “exit strategy” from war. Such reforms are permissible but they must be proportional to the degree of depravity in the regime. violation of such principles mandates a new round of diplomatic negotiations—even binding international arbitration—between the relevant parties to the dispute. from these principles of just war settlement should be seen as a violation of the rules of just war termination. subject to both proportionality and discrimination. Can coercive regime change ever be justified. 2) the target regime was illegitimate. thus forfeiting its state rights.5. 6. human rights education. At the least. likewise be held accountable to investigation and possible trial. 3) the goal of the reconstruction is a minimally just regime. last resort. and so should be punished. Perhaps a few additional thoughts on coercive regime change should here be added. This is. such violation may give the aggrieved party a just cause—but no more than a just cause—for resuming hostilities. from all sides to the conflict. They may involve: demilitarization and disarmament. in light of controversial recent events. Soldiers also commit war crimes. and there needs to be enough resources left so that the defeated country can begin its own reconstruction. and 4) respect for jus in bello and human rights is integral to the transformation process itself. Any serious defection. Financial restitution may be mandated. There needs.—are satisfied in addition to just cause. or is it essentially an act of imperialism? In my view. namely. and 3) the post-war moment is especially promising regarding the possibilities for reform. in short. and even deep structural transformation towards a minimally just society governed by a legitimate regime. satisfied human rights for the local population and increased international peace and security for everyone. obviously. Compensation. Justice after war requires that such soldiers. police and judicial re-training. And the transformation will be successful when there's: 1) a stable new regime. Full recourse to the resumption of hostilities may be made only if all the other traditional criteria of jus ad bellum—proportionality. The post-war environment provides a promising opportunity to reform decrepit institutions in an aggressor regime. 2) run 227 . 7. by any participant. forcible post-war regime change can be permissible provided: 1) the war itself was just and conducted properly. 2) its expected consequences are very desirable. The terms of a just peace should satisfy all these requirements. especially in Afghanistan and Iraq.
distributed. INTERNATIONAL CONFLICT ARMED CONFLICT VS NON-INTERNATIONAL ARMED International humanitarian law distinguishes two types of armed conflicts. namely: · international armed conflicts. in a timely fashion. Note that successful. and 2) widely. and not narrowly. 228 . non-state associations. just war theory offers rules to guide decisionmakers on the appropriateness of their conduct during the resort to war. that the benefits of the new order will be: 1) concrete. Its over-all aim is to try and ensure that wars are begun only for a very narrow set of truly defensible reasons. Ensure. it's not a wise thing to do—but it's not literally impossible. Provide effective military and police security for the whole country. 1 of Additional Protocol II. The bulk of the population must feel their lives after the regime change are clearly better than their former lives for the change to be sustainable. or “civil society”. and so it is neither conceptually nor empirically impossible. Purge much of the old regime. or between such groups only. a decade). that when wars break out they are fought in a responsibly controlled and targeted manner. contrary to some pessimistic views. It's very difficult. Work with a cross-section of locals on a new. Again. to be sure—and. Allow other. rights-respecting coercive regime change can be done. • • • • • • • • • • A review of the literature suggests something of a 10-point recipe for transforming a defeated aggressive regime into one which is minimally just: Adhere diligently to the laws of war during the regime take-down and occupation. and prosecute its war criminals. Follow an orderly. this will probably take a decade of intensive effort. not-too-hasty exit strategy when the new regime can stand on its own two feet.entirely by locals. rights-respecting constitution which features checks and balances. opposing two or more States. and that the parties to the dispute bring their war to an end in a speedy and responsible fashion that respects the requirements of justice. it was actually done in Germany and Japan from 1945-55. Disarm and demilitarize the society. in some cases. which is 3) minimally just. re-vamp educational curricula to purge past poisonous propaganda and cement new and better values. There is extensive historical evidence that this kind of success probably takes from 8 to 12 years to achieve (essentially. • To summarize this whole section. and · non-international armed conflicts. between governmental forces and nongovernmentalarmed groups. conduct during war and the termination phase of the conflict. Forego compensation and sanctions in favour of investing in and re-building the economy. to flourish. If necessary. IHL treaty law also establishes a distinction between non-international armed conflicts in the meaning of common Article 3 of the Geneva Conventions of 1949 and noninternational armed conflicts falling within the definition provided in Art.
even if one of the Parties denies the existence of a state of war. IACs are those which oppose "High Contracting Parties". no other type of armed conflict exists. 2) Jurisprudence The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of international armed conflict. even if the state of war is not recognized by one of them. Moreover. For example. The existence of an IAC. even though one of the belligerents does not recognize the government of the adverse party2. In the Tadic case. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. no formal declaration of war or recognition of the situation is required. It is nevertheless important to underline that a situation can evolve from one type of armed conflict to another. regardless of the reasons or the intensity of this confrontation. meaning States. Additional Protocol I extends the definition of IAC to include armed conflicts in which peoples are fighting against colonial domination. Gasser explains that "any use of armed force by one State against the territory of 229 . Relevant rules of IHL may be applicable even in the absence of open hostilities.P. or how much slaughter takes place". Apart from regular. even if the said occupation meets with no armed resistance". the possibility to apply International Humanitarian Law to this situation. According to D. International Armed Conflict (IAC) 1) IHL Treaties Common Article 2 to the Geneva Conventions of 1949 states that: "In addition to the provisions which shall be implemented in peacetime. depending on the facts prevailing at a certain moment. the Tribunal stated that "an armed conflict exists whenever there is a resort to armed force between States". It makes no difference how long the conflict lasts. It is based on factual conditions. depends on what actually happens on the ground. Schindler.Legally speaking. According to this provision. "the existence of an armed conflict within the meaning of Article 2 common to the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with each other. […] Any kind of use of arms between two States brings the Conventions into effect". The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. H. there may be an IAC.5 This definition has been adopted by other international bodies since then. I. alien occupation or racist regimes in the exercise of their right to self-determination (wars of national liberation). An IAC occurs when one or more States have recourse to armed force against another State. The Commentary of the Geneva Conventions of 1949 confirms that "any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2. and as a consequence. inter-state armed conflicts. 3) Doctrine The doctrine gives useful comments concerning the definition of an international armed conflict.
in the meaning of common Article 3. The German Joint Services Regulations (ZDv) 15/2 says that "an international armed conflict exists if one party uses force of arms against another party. riots or acts of banditry. hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only. […] It is also of no concern whether or not the party attacked resists. meaning that they possess organized armed forces. Depending on the situation. In order to distinguish an armed conflict. • b) Non-International Armed Conflicts in the Meaning of Art. when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents. the hostilities must reach a minimum level of intensity. It has been generally accepted that the lower threshold found in Article 1(2) of APII. Two criteria are usually used in this regard: • First. such as internal disturbances and tensions. […] As soon as the armed forces of one State find themselves with wounded or surrendering members of the armed forces or civilians of another State on their hands. as soon as they detain prisoners or have actual control over a part of the territory of the enemy State. which excludes internal disturbances and tensions from the definition of NIAC. also applies to common Article 3. any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention. triggers the applicability of the Geneva Conventions between the two States. for example.another. Non-International Armed Conflict (NIAC) 1) IHL Treaties Two main legal sources must be examined in order to determine what a NIAC under international humanitarian law is: a) common Article 3 to the Geneva Conventions of 1949. II.11 Second. then they must comply with the relevant convention". b) Article 1 of Additional Protocol II: a) Non-International Armed Conflicts within the Meaning of Common Article 3 Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties". This may be the case. These include armed conflicts in which one or more non-governmental armed groups are involved. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations. […] The use of military force by individual persons or groups of persons will not suffice". non-governmental groups involved in the conflict must be considered as "parties to the conflict". instead of mere police forces. 1 of Additional Protocol II 230 . the requirement that the armed conflict must occur "in the territory of one of the High Contracting Parties" has lost its importance in practice. the situation must reach a certain threshold of confrontation. Indeed. As the four Geneva Conventions have universally been ratified now. from less serious forms of violence.
-P. in its article 8. Contrary to common Article 3. Additional Protocol II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organised armed groups. […] Another case is the crumbling of all government authority in the country. Since that first ruling. in particular regarding the non-international armed conflicts in the meaning of common Article 3 which are not expressly defined in the Conventions concerned. Gasser. it must be reminded that Additional Protocol II "develops and supplements" common Article 3 "without modifying its existing conditions of application". As mentioned above. In this context. 2) Jurisprudence Case law has brought important elements for a definition of an armed conflict. Their comments are relevant in first place to the conflicts which do not fulfil the strict criteria foreseen in Additional Protocol II and provide useful elements to ensure the application of the guarantees provided in common article 3 to the Geneva Conventions of 1949. 3) Doctrine Several recognized authors also commented very clearly on what should be considered as a non-international armed conflict. 231 . exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol". Secondly. Judgments and decisions of the ICTY throw also some light on the definition of NIAC. 2 (f). According to H. The ICTY thus confirmed that the definition of NIAC in the sense of common Article 3 encompasses situations where "several factions [confront] each other without involvement of the government's armed forces". under responsible command. it is generally admitted that "non-international armed conflicts are armed confrontations that take place within the territory of a State between the government on the one hand and armed insurgent groups on the other hand. confirms the existence of a definition of a noninternational armed conflict not fulfilling the criteria of Protocol II. the Protocol does not apply to armed conflicts occurring only between non-State armed groups. but does not extend to the law of NIAC in general. This instrument applies to armed conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which. each judgment of the ICTY has taken this definition as a starting point. Firstly. para. as a result of which various groups fight each other in the struggle for power"18. The Statute of the International Criminal Court. by providing that non-governmental parties must exercise such territorial control "as to enable them to carry out sustained and concerted military operations and to implement this Protocol". This definition is narrower than the notion of NIAC under common Article 3 in two aspects.14 This means that this restrictive definition is relevant for the application of Protocol II only. the ICTY went on to determine the existence of a NIAC "whenever there is […] protracted armed violence between governmental authorities and organised armed groups or between such groups within a State". it introduces a requirement of territorial control.A more restrictive definition of NIAC was adopted for the specific purpose of Additional Protocol II.
Conclusion On the basis of the analysis set out above. the ICRC proposes the following definitions. the government is compelled to employ its armed forces against the insurgents instead of mere police forces. as a rule.D.' whereas Article 1 of Protocol II refers to those 'which take place in the territory of a High Contracting Party. INTERNATIONAL TRADE LAW GATT/WTO GATT-WTO Ratification 232 . internal conflicts are distinguished from international armed conflicts by the parties involved rather than by the territorial scope of the conflict. Yet concerns about state sovereignty could not explain why victims of conflicts spilling over the territory of several states should benefit from less protection than those affected by conflicts limited to the territory of only one state. the law of non-international armed conflicts. M. which could not be explained by states’ concerns about their sovereignty. this must be understood as simply recalling that treaties apply only to their state parties. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. Schindler also proposes a detailed definition: "The hostilities have to be conducted by force of arms and exhibit such intensity that. which reflect the strong prevailing legal opinion: 1. to the neighbouring countries. In conclusion. there would be a gap in protection. Additionally. VI. [i. as to the insurgents. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements". Secondly.e] they have to be carried out not only by single groups. Sassoli." III. International armed conflicts exist whenever there is resort to armed force between two or more States. Those concerns made the law of non•international armed conflicts more rudimentary. inter alia. 2. If such wording meant that conflicts opposing states and organized armed groups and spreading over the territory of several states were not ‘non•international armed conflicts’. or between such groups arising on the territory of a State [party to the Geneva Conventions]. writes "common Article 3 refers to conflicts 'occurring in the territory of one of the High Contracting Parties.' According to the aim and purpose of IHL. In addition. This confirms that even a conflict spreading across borders remains a non•international armed conflict. the hostilities are meant to be of a collective character. the insurgents have to exhibit a minimum amount of organization. Articles 1 and 7 of the Statute of the International Criminal Tribunal for Rwanda extend the jurisdiction of that tribunal called to enforce.
increasing to 5% of 1986-1988 consumption by 2004. 5. Exemptions from the value-added tax (VAT) of food and non-food agricultural products and marine commodities. reduction of trade distorting domestic subsidies by 13% from 1995 to 2004. Reduction of Production Subsidies. Tariff Reduction on Inputs. Savings and Reserves. Prohibition of Additional Non-Tariff Measures. Minimum Access Volume (MAV). Plant Variety Registration and Protection. such as import licensing. However. the Philippine government committed safety net measures to neutralize temporary adjustments and dislocations in the sector and to enhance farmer’s competitiveness. 6. To cushion the impact of trade reforms under GATT-WTO. Under the Uruguay Action Plan of DA. 3. the budget support for agriculture from 1995 to1998 was estimated at P72. under the “de minimis” principle of the agreement. Budgetary Support in Agriculture. 4. Tariff Bindings. The allowing of annual imports at a lower tariff of volumes equivalent to 3% of 1986-1988 consumption for 1995. and other external agreements congruent to Philippines was committed to the following: Philippine and Trade under the WTO. no reductions are required if the domestic support is no more than 10%. Intervention and ownership of biological products such as plant and microorganisms should be protected under patent or the sui generis system or both.16 “The 233 . Developing countries to reduce average tariffs by 24% with a minimum 10% cut per tariff lines from 1995 to 2004. 2. the Philippine Congress ratified the accession to the Uruguay Round General Agreement on Tariff under the World Trade Organization (GATT-WTO). Specifically. GATT-WTO. declining import prices and/or dumping. Fiftyeight percent of this should have come from DA-GAA and the rest from DAR.In December 1994. the tariff rates were reduced to zero. and import bans may be imposed. No new non-tariff measures. Minimum Access Proceeds. DPWH-GAA. Reforms in the VAT for Agricultural Processors. 4. For developing countries. the UNCITRAL carries out the goals of harmonizing and unifying international trade laws. Trade Remedies. variable import levies. UNCITRAL Composed of a diverse composition of member States. 7. Removal of Quantitative Restrictions (QRs) and Conversion of QRs into their Tariff Equivalents. 2. the 1. import quotas.9B. These are measures that provide industries relief from import surges. Some of these internal commitments of the Philippine Government include: 1. Reduction of Tariffs on Agricultural Products. Countries will bind tariff rates at levels beyond which no further increases will be imposed. Asset Privatization Thrust (APT). 3. For those inputs directly used for agricultural modernization.
transport law. “In 1969. construction contracts. electronic commerce. Scope The scope of work originally carried out by the Commission was far narrower than the wide range of topics addressed today. public procurement and infrastructure development. international arbitration and conciliation. Salient points The Rules are divided into four sections: Section I – Introductory Rules (Articles 1-4). electronic commerce. and legal guides on topics ranging from international commercial arbitration22 to rules governing commercial conciliation23 to a model law governing electronic commerce. the Secretariat of UNCITRAL “carries out legal research on subject matters within the program of work of UNCITRAL and prepares reports.” Published in 1971. Over the past thirty-six years. Each working group is comprised of all member States of the Commission. rules. the first Yearbook discussed UNCITRAL’s activities in 1968.Commission has established six working groups to perform the substantive preparatory work on topics within the Commission’s program of work. the first three years of UNCITRAL’s operation.1970. import quotas.26 Also. international transport of goods.”25 Other techniques to promote the harmonization and unification of international trade laws include the creation of international conventions. legal guides that “identify legal issues arising in a particular area. the Secretariat also “organizes administrative services for meetings of the Commission and of its working groups and groups of experts.” and recommendations to governments and international organizations.” 17 Located in Vienna. the Commission has addressed and recommended laws. and security interests. Section III – Arbitral 234 . or is working.” and offers regional and national seminars to promote the Commission’s work. and cross-border insolvency. export restrictions. Section II – Composition of the Arbitral Tribunal (Articles 5-14). In addition to researching substantive legal issues. the Commission provides “updated information on case law and enactments of uniform commercial law. [UNCITRAL] authorized the Secretary General to establish a Yearbook which would make the work of the Commission more widely known and readily available. technical assistance in law reform projects.”18 This research forms the basis for topics that will be addressed by the working groups. international commercial arbitration and conciliation. the Commission has worked. international payments. Austria. on topics such as the international sale of goods and related transactions.” Additionally. insolvency law. the six working groups are assigned the topics of privately financed infrastructure projects. preliminary draft texts and commentaries on draft legal texts. and exchange controls.31 Currently. model treaty provisions. The Yearbook demonstrates a genuine effort toward educating the member States and provides “a rich store of information on the most ambitious attempt yet at unification of private law on an international scale. “It is noteworthy that UNCITRAL’s program of work avoids such critical problems as tariffs.
Another discrepancy between civil and common law was resolved by adhering to a civil law norm – experts are tribunal-appointed (Article 27(1)). if expressly authorized by the parties (Article 33(2)). when fixing its fees. we turn to the matters of evidence and hearings in Articles 24 and 25. though not unconditionally. The Rules cover the arbitral proceedings in great detail in Section III. center on the standard of “justifiable doubts as to . the conflict of laws approach is considered outdated and is rarely used. ergo. The question of interim measures shall be separately discussed later. or award by consent.51 According to Article 33. time periods. the Rules had to provide a solution for the composition of the tribunal in the absence of consensus by the parties since UNCITRAL is not an institution.Proceedings (Articles 15-30). The latter was necessary.47 The issues of challenging procedure. three (3) being the default rule (Article 5). while Article 32 sets out the requirements of writing. such as the requirement of writing. The Model Law approach of direct choice is widely followed.. 235 .12.” Article 10 clarifies that these standards apply to party-appointed arbitrators. claims. or absent such designation.48 and separability49 (Article 21(2)). or as amiables compositeurs. the Rules set out the basic prerequisites for arbitration. Article 31 calls for a majority of arbitrators to agree. the Rules introduced the notion of a party-agreed upon appointing authority (or. the arbitrators may decide on the merits either according to the applicable law designated by the parties. whether it be under the common law tradition of examination primarily by the lawyer and cross-examination by the other party’s lawyer.” a concept borrowed from the AAA practice. “the law determined by the conflict of laws rules which they consider applicable” (Article 33(1)). . if parties cannot agree.” Turning to the arbitral award. and Articles 38-41 cover the issue of costs – with the requirement that the tribunal. Kompetenz. . reasons.Kompetenz (Article 21(1)). to a dispute) with a model arbitration clause in a note to Article 1. conveniently supplying the prospective parties to a contract (and. has no schedule of fees. amendments.46 shall be used. shall take into account the schedule of fees of the appointing authority (Article 39(2)). With respect to the appointment of arbitrators. The Rules do not provide for discovery. Section II calls for the selection of an odd number of one (1) to three (3) arbitrators. Article 34 provides for an award on agreed terms. language. either party may request the Secretary General of the Permanent Court of Arbitration at the Hague to designate an appointing authority). Skipping the provisions regarding the place of arbitration. In appointing the sole or the third arbitrator. the so-called “list procedure. but the Rules do provide for arbitraltribunal ordered measures (Article 26). covered in Articles 9. and a rather narrowly defined requirement of “security for the costs of such measures. consequently. as UNCITRAL is not an arbitral institution and. Hence. or under the civil law tradition of examination from the bench. and Section IV – The Award (Articles 31-41) In Section I. whereas paragraph 2 allows for a challenge of a party’s own arbitrator. and Article 25(4) leaves the tribunal free to determine the manner in which witnesses are examined (viz. or perhaps a mixture). and signature. impartiality or independence. defenses. However. Consent of the parties is needed for publication of the award.
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