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LAW ON PUBLIC OFFICERS

POLITICAL LAW REVIEW (A.Y. 2014 -2015)
DBL Discussion, Slides, New Jurisprudence

We’ll talk about Law on Public Officers. The problem with this subject is that the sources in law are quite scattered, unlike in Administrative
Law where you can rely on the Admin Code as your core statute. So if you look at the outline, you don’t see a lot of statutory provisions but
you will see cases instead. The study on Law of Public Officers would be more a doctrinal study of law - the study will be based on doctrines
and principles. And in the bar exams, most questions also come from these topics which I have selected for your outline. So if there are
questions not in the outline, those are just rare questions (occasional tripping tripping sa examiner).

PUBLIC OFFICE AND PUBLIC OFFICERS; DE FACTO AND
DE JURE PUBLIC OFFICERS; SALARY

PUBLIC OFFICERS, OFFICE, OFFICIALS

In your outline, we begin with the case of Secretary of DOTC vs. Mabalot, a case which you have already studied in Admin law, and this
case simply tells us that a public office, if we are referring to public office as an office similar to an administrative agency, indeed can be
created by constitution, law or by authority of law. Because as you will see, a public office may pertain to a position held by a public officer
or it may refer to a functional unit or an office, an agency, so there are 2 conceptions therefore of a public office.

Now, in the first slide, I have presented four questions that will guide you in studying first the concept of public office or public officer.
These can be probable questions also in the bar exams, questions such as:

1. What is a “public office”?
2. Who is a “public officer”?
3. Who is a “public official”?
4. What is the importance of knowing the meaning of a “public officer”?

Sec. 2(9), Introductory Provisions of the Administrative Code:

Office refers, within the framework of governmental organization, to any major FUNCTIONAL UNIT of a department
or bureau including regional offices. IT MAY ALSO REFER TO ANY POSITION HELD OR OCCUPIED BY INDIVIDUAL
PERSONS, WHOSE FUNCTIONS ARE DEFINED BY LAW OR REGULATION.

Example: Agency is a public office. The position of the mayor is also a public office. So either it is a position held by an individual with
functions defined by law or regulation or a functional unit. That’s the meaning of a public office.

The problematic concept however is the concept of public officer. Why is that? Because the concept of public officer is not found in the
Constitution. The Administrative Code is also not specific as to public officer. There may be a distinction between an officer and a clerk or
an officer and an employee. But there is no complete or categorical description of a public officer.

So in case of public officer, your answer would depend on the case; second, the law being applied to the case. So for example, the case
involves criminal law, refer to the Revised Penal Code under the Title Crimes Committed by Public Officers. Sec. 203 of the RPC in fact
defines public officer for purposes of criminal law. If Anti-Graft Case, refer to RA 3019 for the definition of Public Officer. As to plunder, refer
to the law on Plunder for the definition of Public Officer. If this question is asked in the bar exam, your answer is quite long. If you can’t
remember, just apply the elements of a public officer as enunciated in the case of Laurel vs. Desierto . [Details of different definitions and
Laurel elements in the sections to follow]

Sec. 2(14), Introductory Provisions, Administrative Code:

Officer – as distinguished from “clerk” or “employee”, refers to a person whose duties not being of a
clerical or manual nature, involves the exercise of discretion in the performance of the functions of the
government. When used with reference to a person having authority to do a particular act or perform a particular
function in the exercise of governmental power, “officer” includes any government employee, agent or body
having authority to do the act or exercise that function.

So an “officer” may be distinguished from a “clerk” or an “employee” because an officer involves the exercise of discretion in the
performance of the functions of the government. Notice that it involves discretion, so higher threshold if we compare it with administrative
code.

Whereas in the case of a “clerk” or a mere “employee”, there is no discretion involved in the exercise of authority but the function is
merely clerical or manual (e.g. like the function of whether or not you’ll be allowed to enter the building. This is the function of the security
guard. NO ID, NO ENTRY. If you don’t have an ID, you’re asking for an exercise of discretion. That security guard that is stationed there
cannot decide on that. What will the security guard do? He should ask the head of the security office or whoever is in charge with that
issue. That person in charge has the discretion.)

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Q: How do you distinguish a “Public Officer” from a “Public Official”?

Actually, you can use them interchangeably. Look at RA 6713. This refers to the code of conduct of public officials.

Sec. 3(b) of Republic Act No. 6713

“Public Officials” include elective and appointive officials and employees, permanent or temporary,
whether in the career or non-career service including military and police personnel, whether or not they receive
compensation, regardless of amount.

Observe also the definition under Article 203 of the Revised Penal Code. Note that the definition is all encompassing. “Of any rank or
class”. So the distinction of “officer”, of “clerk” or “employee” in the administrative code is not applicable for purposes of the Revised Penal
Code.

Article 203 of the RPC

“Who are public officers” – For purposes of applying the provisions of this and the preceding titles of this book, any
person who, by direct provision of the law, popular election or appointment by competent authority, shall take
part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or
class, shall be deemed to be a public officer.

Look at the definition of a public officer in the Plunder Law and contrast it with the case of Laurel vs. Desierto.

R.A. 7080 (Plunder Law):

Sec. 1(a):
“any person holding any public office in the Government of the Republic of the Philippines by virtue of an
appointment, election or contract.”

Characteristics of PUBLIC OFFICE:

 Delegation of sovereign functions
 Creation by law and not by contract
 An oath
 Salary/Compensation (but, incl. “honorary”)
 Continuance of the position
 Scope of duties
 Designation of the position as an office.
[Laurel v. Desierto, April 12, 2002]

According to Mechem in his book Law on Public Officers, one of the essential characteristics of the public office as enumerated in the case
of Laurel vs. Desierto, “Creation by law and not by contract”, but if you look at the Plunder Law, “any person holding any public office
in the Government of the Republic of the Philippines by virtue of an appointment, election or contract.”

So if you are assigned/designated a specific function, but not by reason of an already existing office or position created by law but only for
the reason of a contract entered into by the government, you can also be held liable for plunder. But that’s for plunder.

So if we talk about the concept of public office in general, we rely on the decision of the Supreme Court in the case of Laurel vs.
Desierto. This case is also cited in the case of Khan vs. Ombudsman in 2006.

Former Vice President Laurel was appointed as chairman of the national centennial commission; this is an ad hoc commission because it is
only for the centennial celebration of 1998. When there was the Expo issue, a case was filed before the office of the ombudsman and
Laurel was impleaded. Laurel argues that the committee is merely an ad hoc, and besides, there was not even a clear remuneration from
the government, there is no continuation of position, that’s why it’s ad hoc. Therefore, it is not a public office. And if it’s not a public office,
the Ombudsman cannot initiate a case before the Sandiganbayan . such initiation of complaint is questioned by Laurel.

Now here, the Supreme Court explained the characteristics of a public office. Very notable discussion of the court was from the opinion of
Mechem, the singular most important (not saying that it is the ONLY but just MOST IMPORTANT) is the first one: DELEGATION OF
SOVEREIGN FUNCTION. Even by this characteristic alone, the SC ruled that the apposition of Laurel was considered a public office.

Because what was argument of Doy Laurel, invoking Torio v. Fontanilla. In Torio v. Fontanilla, fiesta celebration is proprietary. Now, by
analogy kuno, centennial celebration should also be proprietary. So no sovereign function involved.

SC disagreed. A town fiesta is different from a Centennial Celebration because it is a celebration of our birth as a nation. Also, definitely,
dili ni siya legislative dili sad judicial; SC concluded executive function ni siya because this involves implementation of a constitutional
mandate one of which is to be loyal to our cultural heritage. And one way of being loyal and therefore give importance to our cultural
heritage is by celebrating centennial. So, kay kuno tungod nag implement siya ug Constitutional mandate, involves na siya ug sovereign
function.

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So you have the following characteristics, but the number 1 characteristic is the most important. So it’s possible therefore nga basta naa
la’y delegation of sovereign function, pero wala’y compensation puwede pa siya public office. Even if ad-hoc, just like what happened here
– mu-end lang siya after Centennial celebration, public office lang gihapon. For as long as the first characteristic of delegation of sovereign
function can be established. TN of Laurel v. Desierto.

Now one importance of knowing the concept of public officer is of course the jurisdiction of the Ombudsman. The Ombudsman exercises
jurisdiction over public officials and employees of GOCC WITH ORIGINAL CHARTERS.

Importance of the term “public officer”

The Office of the Ombudsman exercises jurisdiction over public officials/employees of GOCCs with
original charters.

It can only investigate and prosecute acts of the officials/employees of government corporations. Although the
government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an
“original charter.” [Khan vs. Ombudsman, 2006 (see also Carandang vs. Ombudsman, 2011)]

This was the case when PAL was not yet reverted to Private Ownership. Na-sequester man gud at one point so na public for a while and
then nahimo na pud siyang private. So there was an argument because more than 51% of the shares were then held by GSIS, nahimo na
siyang public office. SC disagreed because, yes GOCC siya but PAL did not have an original charter because it was incorporated under the
corporation code rather than a law having been passed and gave it its own entity (personality).

PUBLIC OFFICE NOT A PROPERTY RIGHT

Another important principle is the idea of a public office as not a property right (BAR). Public office is personal to the incumbent and is not
a property which passes to his heirs.

Public Office, not a Property!

“Public office is personal to the incumbent and is not a property which passes to his heirs.” (De la
Victoria vs. Comelec, 199 SCRA 561 [1991]) The heirs may no longer prosecute the deceased protestee’s
counter-claim for damages against the protestant for that was extinguished when death terminated
his right to occupy the contested office. (Abeja vs. Judge Tanada [1994])

The issue in both De la Victoria v. Comelec and Abeja v. Judge Tañada was: election protest ang protestant ni-claim ug damages. Ang
protestee mifile ug answer also with a counterclaim for damages. Ang natabo in both cases, namatay ang protestee. In the case of the De
La Victoria v. Comelec the protestant was quick enough to waive its claim for damages para wala na’y personality ang heirs. But even then,
SC said, upon the death of the protestee, his right to occupy the contested office has been terminated and of course because that is not a
property, it cannot be transmitted to the heirs.

In the case of Abeja, the widow, supposedly substituted. But it’s not similar to your regular civil cases where there will be substitution of
heirs in case the litigant dies. That’s one important principle. This is the general rule: Public Office is not a property.

That is why, in the case of Libanan v. Sandiganbayan, there was a suspension of a public officer. And when there was an allegation of
lack of notice in the imposition of the suspension, the respondent there argued that there was denial of the right to due process. Unia ug
tan-awon na nimong right to due process sa Constitution, it says, “No person shall be deprived of life, liberty or property without due
process of law”. So when you invoke “due process”, and when you use the term “due process” then you are invoking section Article 3 of
the constitution. That’s the due process clause and that applies only if what is involved is life, liberty or property.

Definitely kung public office ang hisgutan, dili na life, liberty. Ang pinakaclose niana “property”. But SC said that’s wrong invocation of the
provision of the constitution because if you say, no notice was given and this involves public office, do not invoke section 1 of article 3
because property is not involved here. Kanang right to due process, applicable ra na kung property involved. So what is applicable here?
The basic tenet of “fair play”.

Mao nay ge ingon ni Justice Mendoza na he clarified na if emplopyer fails to comply with the two notice requirement, the show cause
memo on the notice of termination, the twin notice rule, you should not claim that there is violation of due process because the invocation
of due process is appropriate only if you invoke it against the state or its agents. The bill of rights primarily exist precisely to limit the
powers of the government so you can invoke specific provisions of Article III if you are using it against the state or its agents. So if it is not
the state or its agent that is involved in the case, you look for another principle of law that is similar. Like basic tenet of fair play or basic
principle of reasonableness, so you don’t use na the term “it is a violation of due process” if the requirement of twin notice rule is not
complied with.

However, in the case of the General Manager of Phil. Port Authority vs. Monserate the Supreme court said:

Public Office, not a Property; Exception

A public office is not property within the sense of the constitutional guaranties of due process of law,
but is a public trust or agency; (Libanan vs. Sandiganbayan [1994])

 However, an incumbent’s right to office may be considered “property” within the protection of due

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process in controversies relating to the question as to who of two (2) persons is entitled thereto .
(The General Manager, PPA vs. Monserate [2002])

Can you think of an instance where atleast in that instance public office may be treated as one involving property and if “yes” what is the
reasoning of the court? Yaw kalimte nga naa exception to the rule that public office is not a property.

It does not necessarily follow that if one invokes security of tenure, that publice office is treated as a property . So it is proper to invoke due
process of law under the constitution and an incumbent’s right to office will be considered “property” within the protection of due process
in controversies relating to the position as to who of two persons is entitled to the office. Do you know why?

Kung naa na magcontest duha you can invoke due process to the extent and pwede sya i-treat as property, it is because of emoluments to
the office. Okay ra man na ikaw lang isa then you get it pero if duha gani the question is kinsa nila duha ang entitled to the emolument like
salary. So to that extent, it should be treated as property and therefore, an invocation of Sec.1 of ARTICLE III would be proper in that
regard. We are just talking to the poper perspective of the invocation ba of the principle.

DE JURE VS. DE FACTO OFFICER; SALARY

De Jure Officer

A de jure officer is one who is in all respects legally
appointed or elected and qualified to exercise the office. The
election or appointment complied with all the
requirements of law.

Wai question sa de jure kai sayun ra na. Basta qualified siya, the requirements of the law are complied with - de jure. Both substantive and
procedural requirements complied with. Substantive: the qualifications; procedural: the process of appointment and taking of oath.
Because when you’re talking here of public office, wala public office na wala nag require of taking of oath.

In the Constitution, under the article on civil service, it is a constitutional requirement that before you hold an office, you must take an
oath. That is to highlight the idea of public office as public trust and so establishing the fiduciary relationship between the people and the
public offical. That fiduciary relationship mandates that the public officer becomes accountable to the people. It is a procedural
requirement. If you comply with the substantive and procedural, the officer is de jure. If one is not complied, de facto.

Problem

X and Y were candidates for Mayor in the Municipality of Z.
X won and was duly proclaimed. However, the Comelec
disqualified X later. On June 30, 2013, A, X’s wife, assumed
the office of the Mayor purportedly as X’s substitute. On June
30, 2014, A was ordered removed from office. She then
voluntarily stepped down. Is A entitled to salary for the period
June 30, 2013 – June 30, 2014?

The problem in the bar exam, it won’t categorically state that this is a problem on public officers, it will be mixed with other subjects such
as election law etc. It may require the application of election law, admin law, constitutional law yet the question is on the law on public
officers but requires resolving the other issues first.

Our idea is that a de facto officer is entitled to the salaries for the services rendered. Otherwise, it is unfair and unreasonable; it’s not a
sound rule, not to give the person who has at least served 1 year. Yes? The answer is No.

The answer is actually to determine first whether the officer is a de facto or a usurper.

De facto officer has a colorable compliance of the substantive and procedural requirements and has apparent authority. Examples of a de
facto officer:

- one who hasn’t taken oath; or
- one who is disqualified: held office but not Filipino citizen. Only after 2-3 years of holding office did the final decision come out
declaring his citizenship (not Filipino) as Thai. There is colorable compliance here. He even took oath.

But in the case of the wife, dili sad siguro na mahitabo. Ang wife o, unsaon pa man ug substitute…humana man ang proclamation, humana
ang election. Niadto lang gyud ang wife kaya bi niya ug iyaha; murag manager sa bangko iyahang bana. Siya’y ga-hawd-hawd didto. 
Obviously, in the problem, the wife is a usurper.

What I’m trying to say is you should figure out one from the other -

De Facto Officer vs. Usurper

A “de facto officer” has color of right or title to
the office or has apparent authority to hold the office
and has done so in good faith, while a “usurper” has
neither lawful title nor color of right or title to the
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office; the act of a de facto officer is valid as if it was
done by a de jure officer but that of a usurper is
absolutely null and void; the former may be removed
through a direct proceeding only.

Q: So is a de facto officer entitled to salaries?

A: Yes.

Salary of De Facto Officer

 A de facto public officer cannot be made to
reimburse funds disbursed during his term of office
because his acts are as valid as those of a de jure
officer.

 Moreover, as a de facto officer, he is entitled to
emoluments for actual services rendered.
[Sampayan vs. Daza, 1992]

*cannot be made to reimburse; because his acts are valid – just like the Operative Fact Doctrine, considered valid because he wasn’t then
declared as not qualified.

Problem

X and Y were candidates for Mayor in the Municipality of Z. X
won and was duly proclaimed. An election protest was
immediately filed by Y. On June 30, 2013, X assumed office.
On June 30, 2014, the election contest filed by Y was resolved
in Y’s favor. The decision already became final and executory.
X voluntarily stepped down as ordered.

Is X entitled to the salary he received? Should X reimburse Y
of the salary he received?

In Sampayan v. Daza, de facto officer is entitled to emoluments for actual services rendered.

Kung entitled siya di na siya mo-reimburse kay entitledd man siya. But what about the principle, the exception to the principle laid down in
Sampayan vs. Daza…

Q: A de facto officer is entitled to emoluments for actual services rendered. What is the exception?

A: Exception is when there is a de jure.

Is that rule applicable in this problem? Do you consider Y as the de jure officer?

Sakto man ka sa imong answer na: Sir kana na principle Sampayan mao na siyay exception but the incumbent can recover. Mao man na.
Kung naay incumbent, ang de facto ni hold siya sa office at his own risk and therefore whatever, emolument he may have received and
naay de jure officer, the de jure officer is entitled to the salary. So i-reimburse niya. Okay?

But, the “incumbent” can recover!

 An incumbent of a public office may recover from a de facto officer the salary received by the latter
during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good
faith and under color of title.

 A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure
officer for whatever salary he received during the period of his wrongful tenure.

 The Supreme Court has allowed a de facto officer to receive emoluments for actual services rendered but only
when there is no de jure officer.

So kung may de jure officer, ang de jure officer ang entitled.

Q: Now, we go back to the problem. Do you consider Y as a de jure officer? Is that the idea of a de jure officer?

A: You should distinguish a situation where there is an election contest because in that situation, wala pay de jure diha. Okay? There is only
a de facto officer!

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Ang idea ana na situation nga naay de jure and therefore mo-reimburse si de facto, in a situation where, for example, like what happened
in Monserate case, PPA vs. Monserate, if two persons contest a particular position. Different ang election contest class because di man
siya contest on who really is entitled but since it is an election protest, it’s just a determination of who really won in the election.

But in a situation where, for example, ang nahitabo si Monserate: a manager, may issue on whether a particular appointment of let’s say X
as branch or division manager, unya si Y, the one holding has not been lawfully removed, for example, so wala xa na lawfully removed and
someone is placed in his office, so there is now a contest as to who really is entitled to that office: the one that has been illegally removed
or the one who had been unlawfully appointed. In that situation, in reality, naa jud de jure, in the beginning wala man gud nawa ang, in the
example given, Y had never been removed from office because the removal was invalid. So naa nay nagkupot sa office ba unlike in election
nga wala pa my nagkupot ana, to be determined pa mana by election. But in a situation where someone is already holding an office and gi-
remove siya illegally and someone is put in his place, then may contest na. So mao na ang situation nga naay de facto and de jure, in
which case, a de jure officer is entitled to the salaries. You should distinguish one from the other.

In the example given, Y cannot be considered as a de jure officer because he has not held the office. His right to hold the office is
dependent on the outcome of the election contest. Careful ka dha class.

Q: Now, question, from whom can a de jure officer recover? From the government or from the de facto officer?

Who can recover and from whom?

As a rule, the de jure officer cannot recover from the government, but only from the de facto officer, the salary it
had paid to the latter. But, he can recover the salary from the government or the de facto officer, if the government
continues to pay the de facto officer even after notice of adjudication of the title to the de jure officer, the amount
so paid after the adjudication and notice. (Mechem)

A: This again comes from the authority in this matter, from his book he said as a rule a de jure officer cannot recover from the government
but he should get the salary from the de facto officer.

Ang exception lang daw, wala pa ni gi-ask sa bar, if the government continued to disburse the salary to the de facto officer after
knowledge of the defect of the title to the office the de facto officer, estopped ang government and therefore pwede ang de jure to
demand from the government the payment of the salary.

This is to be tested yet by a SC ruling but this is an opinion of an expert, if the government continues to pay the de facto officer even after
notice of adjudication of the title of the de jure officer of the amounts paid after the adjudication and notice.

APPOINTMENT LATER DISAPPROVED; SALARY

Q: Is there such a thing as a prohibition against midnight appointment made by local chief executive officials? [Same question/topic will
also be tackled in a later section]

We know there’s a midnight appointment prohibition against the president. We just call it midnight, but the constitution is specific under
Art VII sec. 15 that two (2) months before election and up to the expiration of the term of the incumbent president, he is not allowed to
make an appointment [note from DBL: this is the complete definition under the law, your answer shouldn’t stop in saying “…two months
before election” include “…up to the expiration of his term”]. That is the idea of midnight appointment.

The only exception is regular appointment if it is necessary to prevent any prejudice to health and public safety.

In the case of Nazareno v City of Dumaguete GR No. 177795, June 19, 2009 , there is no specific prohibition similar to the midnight
appointment rule of the president, therefore a local chief executive like a governor or mayor may therefore, actually make midnight
appointments; the only prohibition is that there is a civil service rule governing midnight appointments—the local chief executive can make
midnight appointments provided that it is not done by bulk.

What happened in Nazareno, 60 plus or 80 plus positions were filled up before the expiration of the term of the mayor, and because it was
a violation of the civil service rule, it was disapproved by the civil service commission (CSC).

By the way, there are two levels of appointing authorities: it can either be (1) Presidential or (2) Non-presidential appointment.

If presidential, there are also different groups of presidential appointees. The first group (1a) requires confirmation by the Commission on
Appointments while other groups (1b) do not require such confirmation.

For those appointees to be made by an appointing authority other than by the president, like heads of office, it would require approval
from CSC. Like the appointments made by the city mayor in this case, disapproved by the CSC.

The question now here, considering that these illegally appointed officers received salaries upon their appointment, and the CSC decision
became final only two years after, would these illegally appointed officers be entitled to the salaries they received for two years or should
they return it?

Q: What is the rule in regard to the salary of an officer whose appointment is later disapproved by the CSC?

Salary of officer whose appointment is later disapproved by the CSC:

USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers, Local Gov’t Law, & Public Int’l Law
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the CSC can disapprove the appointment on two grounds. & Public Int’l Law 7 . Local Gov’t Law. Mandatory drug test is not substantive. Naka remember mo atong Dangerous Drugs Act? Nga before ka maka hold ug office. On the other hand. the appointee is entitled to a salary. Still about de facto and de jure officers. The best thing to do is to make the guilty appointing authority liable to pay the salaries. as it is hereby declared as. ang qualifications in this case. WHEN TO POSSESS Q: WHEN should a public officer possess the qualifications to the office? (Kanang pangutanaha murag overkill nasad siguro kay) It would depend on the position. It is hard to imagine for Congress to tailor qualifications to chosen individuals. kinsa raman pud tawn ta mag opine-opine.with respect to Constitutional positions. sa qualifications sa Senators. as it cannot disregard. Of course. 36(g) of RA 9165 [Mandatory Drug Test] should be. *Congress/By Law . the specific provision in the law (RA. There are certain limitations though to the power of Congress in prescribing the qualifications. Cannot prescribe qualifications in addition to those prescribed exclusively by the Constitution (3) Delegate of Congress *Constitution . because sometimes. If I were to make a dissent on the findings of the court.expect the Congress to have stated or enumerated the qualifications. (Nazareno vs. PDEA. Qualifications must be germane to the position (“reasonable relation rule”) iii. taken from the book of Mechem .  Basta this is just my opinion. So I don’t think that the mandatory drug test requirement is an additional qualification. it will depend on the substance on your body. SJS vs. or weaken the force of a constitutional mandate. iv. Congress cannot provide for additional qualifications if these qualifications are Constitutional in origin. Ako rah ni opinion ha. but let’s say lacking in qualification. Nothing is new though. It was assailed as unconstitutional because it seems to be asking an additional qualification to hold the office. kinahanglan sa ka mo pass sa drug test. unconstitutional. or alter or enlarge the Constitution. Tanawon nimo ang qualification sa Senators. Since it is a violation of the civil service rules. If the basis for disapproval is not “violation of civil service law. it is procedural. the appointing authority shall be personally held liable for the salary of the appointee. if there’s a violation of the civil service law. before assumption into office. feel nako. obviously the Constitution provides for the qualifications. Our leading case here is the case of SJS vs. it is procedural.” say lack of qualification. Therefore. the appointing authority shall be personally held liable for the salary of the appointee. Ang mandatory drug test is not substantive.basic rules: Congress cannot impose conditions inconsistent with Constitutional provisions. QUALIFICATIONS WHO MAY PRESCRIBE QUALIFICATIONS: (1) Constitution (2) Congress o Limitations: i. National or Local. If they get it from the appointees. City of Dumaguete. Appointive. Mura man nig procedural rah. it depends on the substance on your body. it is too detailed in a way that it is tailored to just fit one person. PDEA (2008) The Congress cannot validly amend or otherwise modify the qualification standards for Senators. Whether ma tested ka negative or positive. That is obvious. first for lack of qualification. The test is The Test of Reasonableness. As you know. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. chances are the salary already paid out wouldn’t be returned (most probably they’ve spent it in two to three years’ time). QUALIFICATIONS TO OFFICE. evade. ii.  However. 9165). Accordingly. second for violation of civil service rules. those are substantive qualifications. is an additional qualification to that already provided for by the Constitution. Congress cannot impose conditions of eligibility inconsistent with constitutional provisions. Cannot prescribe qualifications so detailed as to amount to making an appointment in usurpation of executive power. It’s just a reiteration of existing rules. Qualifications must be germane to the position (Reasonable Relation rule). requiring for Mandatory Drug Test. he is entitled to salary because he’s a de facto officer. Sec. Elective. if the disapproval by the CSC is on the ground that the appointment was made in violation of civil service law. Go over case of “Re: Alleged Nullity of the IBP Election…”.  Mao siguro nah ang thinking sa Supreme Court. June 2009) A: You need to make the following qualifications: If the basis for disapproval is NOT a violation of the civil service law.

or until the next adjournment of the Congress. Of course APPOINTIVE. This is what brings the confusion – that if the appointment is temporary. (Frivaldo vs. it is not. but by the Government through the Solicitor General. is given to who has all the qualifications. As you know. You can actually give a definitive answer to that. There is no other basis of terminating the employment except for those two conditions.upon assumption into office. or acceptance of the office (because appointment by the way should be accepted). It is a permanent appointment as opposed to temporary appointment. & Public Int’l Law 8 . The Quo Warranto proceeding is not instituted by the Civil Service Commission. of Article VII. but later on. 1 Ad interim appointment. What are the three kinds of appointment to be made by the President? (BAR) A. This is the appointment which is an exception to the “midnight-appointment-rule” which states that no appointment should be made within a period of time and the exception is when it prejudices the public safety and general welfare and therefore valid. Property qualification is inconsistent with the essence and nature of a Republican System of government. except to the extent that appointment may be made temporarily . So that if you talk about specific citizenship and he is a local government official. meaning civil service eligible for it is a merit test. Di gyud siya actually uniform.certain period of time before the Election Day. 2 Appointment made by an Acting President. The second kind of appointment is an appointment made by an Acting President. whether special or regular adjournment. disapproves the appointment. it is still valid because (by the way as you would see later on. So this is the meaning of temporary appointment. he is allowed to be appointed to the office on a temporary basis not to exceed 12 months) KINDS OF APPOINTMENT (BY THE PRESIDENT) Q. Local Gov’t Law. Residency . including civil service eligibility. the qualification of “citizenship” for local elective officials under the Local Government Code of 1991 must only be possessed at the time the candidate becomes “elective official” by his valid proclamation and at the start of his term. temporary appointment is allowed provided one has all the qualifications and he only lacks civil service eligibility. because of supervening event. so disapproval by the Commission on Appointments or upon adjournment of Congress. it depends on the qualification– Frivaldo Doctrine Unlike residence and age qualifications. PROPERTY QUALIFICATION NOT VALID Q. provided it is temporary. which by way are independent and separate events. In a distant past in the Bar exam. This implies necessarily that the right to vote and to be voted for shall not be dependent upon wealth of the individual concerned. within 90 days from assumption into office. The appointment is valid only until the President. This is our understanding. he fails to comply with all the qualifications. A. But you know already that the case of Maquera is our understanding now – that it is against the idea of Republicanism and the principles of social justice. Bora. his holding of the office is subject to a Quo Warranto proceeding. This is well settled in the case of Maquera vs. Social justice presupposes equal opportunity for all. but if he has all the qualifications and what is only lacking is the civil service eligibility and we are talking here of career service. upon acceptance of the office. Age – election day. you apply the Frivaldo Doctrine. is this valid? (BAR) Is property qualification valid? Maquera vs. Citizenship for local elective officials is not new to you.If Local (ELECTIVE). It is an appointment that is temporary. Ad interim appointment is an appointment made by the President when Congress is in recess . and lastly 3 Temporary Appointment The first kind of appointment is Ad interim appointment under Section 16 of Article VII. ACCEPTANCE OF OFFICE USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. The qualification should be possessed by the public officer not only upon assumption into office. The third kind of appointment is in Section 14. Borra (1965): Property qualification is inconsistent with the essence and nature of a republican system ordained in the Constitution and the principles of social justice underlying the same. This is a permanent appointment! It is valid until the disapproval by the Commission on Appointments. Even if he had been appointed and possessed all the qualifications. Comelec [1996]) Citizenship (only) . but the qualification must be possessed during the entire incumbency of the public officer. There is no prohibition if we actually adopt a property qualification which by the way was the case in the past. the question was about property qualification.

no backpay shall be granted because this comes within the purview payments made as reparation for what has been suffered in the past. no. Aside from the principle that the effect of pardon does not automatically give the grantee the right to hold the position he (public officer) previously held. A: It is a crime if you refuse without valid motive! Remember. its effect. the other effect is as to the benefits. Conscientious objector does not apply since national defense is more paramount.  To regain her former post as assistant city treasurer. (Monsanto vs. not to a specific public office or your original position. CAREER USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. But take note of section 234 … Exception: Military service and civil service in times of war. The right to hold public office once granted is automatic but as to specific office. Factoran:  The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. It distinguishes the right to hold public office and the right to hold the specific public office (as an effect of pardon). Monsanto vs. Pardon. cannot be entitled to receive backpay for lost earnings and benefits. An elective official. you cannot go back to your previous office as a matter of right. PERMANENT VS. Q: If someone is granted pardon. unless such rights be expressly restored by the terms of the pardon. But an elected official who refuses without valid motive to be sworn in shall be held criminally liable under Sec. The doctrine is subordinated by a more compelling state interest. Local Gov’t Law. 4. Exception: Compulsory military and civil service under Sec. 36. This would explain why petitioner. she must re-apply and undergo the usual procedure required for a new appointment. Art. who refuses without valid motive to be sworn in. The right restored is the right to hold public office in general. General Rule: You cannot be compelled to act as that would be involuntary servitude. & Public Int’l Law 9 . EFFECTS OF PARDON Effects of PARDON: On right to hold public office RPC: Art. you held a public office. may a person be compelled to accept an office? May a person be compelled to accept an office? Generally. Example: A public officer was convicted and the penalty includes perpetual disqualification from holding public office. or the right of suffrage. shall be held criminally liable. TEMPORARY APPOINTMENTS. you can no longer hold the office. APPOINTMENT VS. For example. though pardoned. Factoran [1989]) A: No. You need to reapply. This is Section 234 of the RPC. (that is why you were asked to read 234 of the RPC). Hence. It is not retrospective. (BAR) This case was asked in the bar many times.Q: And the other concern here is this. or it looks to the future and not retrospectively. were sued criminally. DESIGNATION. What is only restored is the right to hold any public office but not the right to go back to your previous public office. Jurisprudence teaches that Pardon is prospective. is he entitled to the salaries and emoluments granted to the office? Effects of PARDON: On Benefits attached to the office A pardon looks to the future. must be an elective official. It does not impose upon the government any obligation to make reparation for what has been suffered. II of the 1987 Constitution and pursuant to the National Defense Act. APPOINTMENT. – A pardon shall not work the restoration of the right to hold public office. It affords no relief for what has been suffered by the offender. If you are granted pardon you cannot go back to that public office. were administratively removed and as a result of conviction and imprisonment. 234 of the RPC.

Some positions would not require the approval of CSC but the approval of someone else. VS. II. it can be nullified on that ground. IV. III. we need to review our rules on valid abolition of office. (2) the appointee possesses all the qualifications (including civil service eligibility) and none of the disqualifications. Local Gov’t Law. “residual power of the President. I’m not sure if you are familiar with the facts of the case. then the position is not rendered vacant. III. IV. is this designation or appointment. (5) The appointee accepts by taking the oath and discharges the functions. Different from “designation” (although some appointments would use the term “designate”. It is essentially executive If there is no law that identifies the appointing authority then the appointing power is vested in the President because of the Residual Power of the President. and jail guards because they belong to the local government unit’s operational control of their local chief executive. Requires: (1) that the appointing authority is vested with that power. (4) the appointment is approved by the CSC. (5) the appointee accepts by taking the oath and discharges the functions. COMMISSION ON APPOINTMENTS Let’s take a look at this problem. (1) That the appointing authority is vested with that authority to appoint either by the Constitution or by law. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. When you say appoint someone. what controls is the nature). whether it is appointment or designation. firemen. & Public Int’l Law 10 . Because if the abolition of office is invalid. Members of the Armed Forces. The title is appointment paper but the text says Mr. And putting someone to a position presupposes vacancy. So even if appointment was validly made in other respects. so the question now is. cf. Basic Characteristics of the Power of Appointment I. (2) The appointee possesses all the qualifications and none of the disqualifications. DISCRETION OF APPOINTING AUTHORITY Appointment I. it presupposes that you are to put that someone to a position. Appointment is different from designation. like those positions enumerated under Section 16 of Article VII of the Constitution where certain positions are to be appointed by the president with the confirmation of the Commission on Appointments. (3) the position is vacant. appointment to be valid must comply with five requisites. And later on you will see the difference between the authority of the CSC in this regard and that of Commission on Appointments. You cannot validly appoint a person to a position that is not validly vacated. The people would be interested in knowing the exact evidence of that fiduciary relationship and the best evidence that the people can look into is the written memorial or appointment. Essentially “Executive”. So exception to the CSC approval would be Presidential Appointees. Police Force. (4) The appointment is approved by the CSC as a general rule. (3) The position is vacant. and qualifications here include civil service eligibility. But there is a caveat because some appointments use the term “designate”. Therefore if we relate this to abolition of offices for example. Appointment generally requires that it be “in writing” This important because a public office is a public trust and there is therefore a fiduciary relationship established the moment a person occupies a said office. Instead. Appointment generally requires that it be “in writing”. It is not the term used which classifies whether such act is appointment or designation. Again. but there is no valid vacancy. however it does not necessarily follow that the process is designation rather than appointment. And finally. one must look at the circumstances to properly identify the nature of the act. ROLE OF CIVIL SERVICE COMMISSION (CSC). you are hereby designated as etc. II. ROLE OF CIVIL SERVICE COMMISSION. VS. NON-CAREER SERVICE. X. We will go to the designation later on. because not all positions would require the approval of the CSC. CAREER EXECUTIVE SERVICES (CES). The rule is to look into the circumstances of the case. as provided for by law or by the Constitution depending on the position involved.

mao ni imo answer. harsh. CSC [1991]). So the only reason why the role of the CSC is only limited to attestation. it is correct. for those positions that would require confirmation by the CA.Problem Mayor X appointed A as Administrative Officer II of Cebu City. (see Luego vs. CSC [1986]. So in that regard would the theory or rule that the appointing authority’s power is discretionary would not be anymore be correct. CSC [1991) And then you’ve learned that the role of the CSC in appointment is limited only to attestation - Role of CSC in Appointment: “Attestation only” • Civil Service Commission has no power of appointment except over its own personnel . Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. or out of malice or spite. Lapinid v. CSC. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. (Lopez v. is plenary . The appointment states that it was “permanent”. it would be subject to the confirmation of CA and he has to accept the rejection of CA? Therefore it’s not the reason nga discretionary ang correct answer… Well. so he has the discretion to decide not the CSC. So it is not only the idea that the appointing authority is discretionary that would justify the answer that the act of the civil service commission is improper. A. meaning just to determine whether the person. CSC justified its action on the ground that B was better qualified than A. What about the 2nd question? Ngano lagi ang president if mo appoint siya. How do you distinguish the function of CSC from the Commission on Appointment’s? DBL: Dili. Luego vs. So if it had been or that the appointee had appointed under permanent appointment status then that should be the nature of USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. DBL: di ba. Because if for example the president makes an appointment. Because appointment is discretionary power of the appointing authority DBL: If you say that the authority of the appointing authority is discretionary then I would ask you to answer the second question. because this is not found in the power of the CA. Was the act of CSC proper? B. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. CSC. CSC. Niya. CSC’s function is limited only to the determination of WON the appointive applicant possesses the qualifications and none of the disqualifications and you added a second layer. Q: The corollary question is what now is therefore is the nature of the appointment of A. to determine WON or to attest WON the person is qualified or has disqualifications . period. (See cases of Lopez vs. & Public Int’l Law 11 . but not the perfect answer. This is because if you look at the power of CSC … what the SC mentioned in these cases was a specific provision in the Civil Service Law that refers to the specific power of the CSC to attest.) These are the 2 layers of your answer: First - Appointing Authority’s Discretion • The appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions. That is different from the CA because ang authority nila in approving or disapproving. oppressive. And this is important. The CSC approved the appointment of A but with a notation that it was “Approved as Temporary”. (asks for volunteer) Student: CSC’s function is to determine if the appointee has the qualification. but it is not approved by the CA (Commission on Appointment). So the discretion of the Commission on Appointments is plenary while the Civil Service Commission is limited to attestation only. vindictive or wanton manner. B questioned the appointment on the ground that he is next in rank being the incumbent Administrative Officer I while A came from another department or office of the City Hall. CA [1995]) When you say attestation. is it not that the president has no other choice but to respect the decision of CA. Local Gov’t Law. the appointed person possesses the qualification and none of the disqualifications. because of the Civil Service Law which fixes the discretion of the CSC. confirming or not confirming the appointments of the President. But it does not have the authority to substitute its own choice for the appointee sir. Lapinid vs. by attesting. Province of Camarines Sur vs. provided that the exercise thereof is in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements and provided further that such prerogatives are not exercised in a malicious. that the appointing authority’s power is discretionary. is it temporary or still permanent? A: Again if you go back to the idea that the authority of the CSC is only to attest then the CSC cannot change the nature of the appointment.

The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. The next in rank rule is irrelevant in that situation. TN. So as long as the appointing authority allows. the exception is if there is a law which requires or grants additional emoluments. In other words. it is at the pleasure of the appointing authority. that he is entitled to the position. and TESDA vs. precisely appointment siya. The retirement should be based on the highest salary. (see also Luego vs. 14] “Appointment” vs. we talk about the security of tenure. the rule is different because the Exceutive Order provided that it should be based on the highest salary—actual salary received without qualification as to designation or appointment. what other legal significance? Student: Security of Tenure. Thus. there is security of tenure. There will always be a person who can claim the next in rank. DBL: What is the importance of telling the difference? Are there significant rules that are significant to one and not the other? Student: Salary. then he remains in the position. But in appointment. In fact there is no such thing as preferential consideration to a person who probably is the next in rank. DESIGNATION In appointment.his appointment and the civil service commission cannot override the nature of the appointment made by the appointing authority. those affected by the abolition of the office are preferred when it comes to filling up the position in the newly created office. COA. then we apply the civil service rule on giving preference not to the one who is next in rank but to those who had been effected by the abolition of the office. Career vs. Student: in temporary sir. However. BAR NEXT-IN-RANK RULE Q: What about the reasoning of B. in designation. COA in this regard. So aside from benefits. giving of additional function to one who is already in office. basically there is no security of tenure in the status of an employee or officer who was merely been designated. CSC) The next in rank rule should also be distinguished from a situation where an office had been validly abolished and a new one had been validly established. This rule does not provide that the person next in rank is absolutely and by legal right entitled to the appointment because when you say next in rank it refers only to preferential consideration for the promotion to the higher vacancy. even if there are additional functions. (TN) Questions: Distinguish: 1. It was contended by the Commission on Audit that it should be the highest salary that should be made as basis for the retirement and should only be the only for which the person has been appointed. “designated” to an office. CA and Santos. there was an issue on designation and appointment. So you have to read the cases of Santiago vs. In a case. Sevilla vs. Local Gov’t Law. the salary remains the same because the designation pertains to single office. That is the part of the appointing authority’s discretion. Dismissal from Expiration of Term 4. Appointment from Designation 2. Non-Career Service APPOINTMENT VS.in designation. someone has not yet occupied an office. DBL: Very good. Permanent from Temporary 3. “Designation” USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. DBL: In other words. DBL: Other than the benefits and emoluments. so there are affected personnel. there is no security of tenure. & Public Int’l Law 12 . Under the Civil Service Law the moment an office is abolished. [TESDA digest in p. an officer lower in rank but of superior qualification may be promoted instead. Example: if the newly created office assumes a higher position in the hierarchy. his appointment is dependent on the discretion of the appointing authority. and a new one is created under the civil service law. Emoluments during retirement – there are no additional emoluments for designation. That is correct. “Next-in-Rank Rule” • One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. So for designation. But if the situation is that an earlier office is abolished and a new one is established. Is B correct in saying that he is entitled to the position simply because he is the incumbent Administrative Officer 1? A: This brings me to the concept of next-in-rank rule.

COA [1991]. kung 3 years ang appointing authority kay mayor man. usually by law. DBL: We need to fine-tune the answer.” The term “mass appointments”‖ refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their issuance. = No Security of Tenure and No Additional Benefits. But mass apointments would refer to those issued in bulk or in large number after the elections by an outgoing local chief executive. Because permanent and temporary appointees possess all the qualifications. civil service eligibility is already included. is also possessing a temporary appointment or position. even if there is no one qualified to replace. The distinction is that in permanent. So this Civil Service resolution prohibits the outgong chief executive from making mass appointment after election. City of Dumaguete last time. “Co-terminus” (See Pangilinan vs. TESDA vs. It shall not exceed 12 months and employment ends ipso facto with or without qualified replacement. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. all qualifications must also be complied with. 3(d) and 4 of CSC Resolution No. upon a person already in the public service by virtue of an earlier appointment (or election). the temporary appointment has to be terminated. While temporary are extended to those who may not have yet possessed the necessary qualifications. prohibits the outgoing chief executive from making “mass appointments‖ after elections. ipso facto after 12 months. PERMANENT VS. then 3 years ang iyahang period sa employment. & Public Int’l Law 13 . additional benefits are provided for by law. except the civil service eligibility. and then wala kay civil service eligibility. as you have read in the cases cited. 010988 dated 4 June 2001. Is “MIDNIGHT APPOINTMENT” prohibited in LOCAL APPOINTMENTS? Items No. VS. So this is the Civil Service Resolution or rule that I have mentioned. Sevilla vs. TEMPORARY APPOINTMENT Permanent vs. COA [2014]) So the effect would be there is no security of tenure in designation and general rule. CA [1995]) Student: Permanent appointment sir is extended to those persons who already possess the necessary qualifications. The only exemption is the civil service eligibility. Province of Camarines vs. you can actually be appointed. Temporary gihapon in that sense. • Designation. it lasts until lawfully terminated. What I know is that if you did not graduate with honors. Temporary – the appointee meets all the requirements for the position except the appropriate civil service eligibility. But the appointment can only be temporary. City of Dumaguete. there is no additional benefits unless of course. (see Santiago vs. 010988 dated 4 June 2001. it is also important for you to note the period of a temporary appointment—it should not exceed 12 months and in fact. on the other hand. Designation. Different ang co-terminus because while temporary ang co-terminus in the sense that he serves at the pleasure of the appointing authority ang temporary lang is specific in the sense that 12 months ra sad siya. this is automatic. Whereas ang co-terminus. Wala nuon nagbutang ug threshold as to how many. (Nazareno vs. I think you need to pass the civil service exam in order to be a civil service eligible. Local Gov’t Law. CA Santos [1992]. Temporary Appointment in Civil Service Permanent – the appointee meets all the qualifications and requirements including the appropriate eligibility requirement (civil service eligibility requirement). One who is assuming an office in an acting capacity. Filipino Citizen and all. connotes merely the imposition of additional duties. In temporary. 3 (d) and 4 of CSC Resolution No. June 2009). So that is one area that you need to master—Appointment vs. MIDNIGHT APPOINTMENTS I mentioned the case of Nazareno vs. Let us say you are appointed to the position that would require you to be an LLB graduate. In fact. So you have to distinguish between permanent and temporary appointment. Items no. So if you possess all the qualifications like LLB.• Appointment is the selection by the proper authority of an individual who is to exercise the functions of a given office. Maglaya [1993]).

& Public Int’l Law 14 . Career Executive Service [CES] Third Level positions such as Undersecretary. unsa man nah nga necessity kaha? It is hard to imagine if that can really occur. Non-career – characterized by (1) not based on competitive exam nor highly technical qualification. (2) Tenure is limited by law or co-terminus with appointing authority. The only exception is when the President issues or gives a CESO rank to the officer. Usually for lawyers. so we can’t say that these are the only. primarily confidential (kanang mga legal staff) and highly technical positions. Bureau Director. HOLD-OVER PRINCIPLE HOLD-OVER PRINCIPLE  A PUBLIC OFFICER WHOSE TERM OF OFFICE HAS EXPIRED OR WHOSE SERVICES HAVE BEEN TERMINATED IS ALLOWED TO CONTINUE HOLDING OFFICE UNTIL HIS SUCCESSOR IS APPOINTED OR CHOSEN AND HAS QUALIFIED. They have NO SECURITY OF TENURE. Asst. they cannot also be removed without cause. It is hard to justify the appointment by bulk by an outgoing Local Chief Executive by reason of what. There are third level positions such Undersecretary.” And usually. Asst. • Although exempt from competitive exam. And there are exceptions however to competitive exam: policy-determining. So there is not such a thing as a prohibition against midnight appointment for Local chief Executive but what is prohibited only is mass appointment if done so after the election and mass appointment refers to appointment by bulk. you also have to take note of the characteristics. primarily confidential. Competitive Examination • The Constitutional provisions merely constitute the policy- determining. Never been asked in the Bar because you still have to look at the listing of the Board as to these positions. and highly technical positions as exceptions to the rule requiring appointments in the Civil Service to be made on the basis of merit a fitness as determined from competitive examinations.Pero naay qualification ha. Service and other officers of equivalent rank as identified by the Career Executive Service Board [CESB]. there is really no apparent need . they have no security of tenure and therefore can be removed anytime. all of whom are appointed by the President. Career from non-career service. which is “there is no apparent need for their issuance. Chief of Dept. How to tell whether it is Career or Non-career. The Civil Service examination is the competitive exam that is referred to here. The law will provide whether such a position is career or non-career. That’s why I simply said third level positions such as. Secretary. PREVENT HIATUS IN PUBLIC SERVICE  RULES: WHEN LAW PROVIDES FOR IT: INCUMBENT WILL HOLD OVER EVEN IF BEYOND THE TERM FIXED BY LAW UNTIL SUCCESSOR IS CHOSEN/ APPOINTED USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. “Non-career” Service Career – characterized by: (1) merit and fitness test [competitive exam] or highly technical qualification. Assistant Secretary. Local Gov’t Law. we belong the either policy-determining. (2) Security of Tenure. What is important is if these are the positions identified by the Board. Bureau Director. it depends on the law that creates the office or position. primarily confidential. and Highly technical positions. and (3) Opportunity for Advancement to higher career position. RATIONALE: PUBLIC INTEREST. may be removed anytime unless they have been issued CESO rank by the President. CAREER VS. etc as provided for here and may be identified by the Career Executive Service Board (CESB). NON-CAREER SERVICE “Career” vs.

 NOT LIABLE FOR “WRONG INTERPRETATION OF LAW”. Bad Faith CIVIL LIABILITY (DAMAGES)  WHEN PERFORMING OFFICIAL FUNCTIONS. 155840. Motivated by malice . public officers are liable only in case of malice. bad faith. February 18. March 13. criminal and administrative liability. the interpretation of the Secretary was different.R. GROSS NEGLIGENCE. 1991) This is related to the DAP Case: WON the Secretary of Budget and Management should be held liable for the wrong interpretation of the idea of spending a budget or certain appropriation for another purpose different from the appropriation made by Congress. CA. & Public Int’l Law 15 . The reasoning here is given by the Supreme Court in the case of Farolan. It is only allowed when the law allows holding office beyond a fixed term. “evenu under the law of public officers. Mistakes concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. Rayala.” (Farolan v. HEADS ARE LIABLE FOR ACTS OF SUBORDINATES ONLY WHEN HE HAS “AUTHORIZED BY WRITTEN ORDER THE ACT COMPLAINED OF”  BUT: Section 24 OF LCG OF 1991 provides: Liability for Damages. The justification supposedly was. No. if any at all. . Hold-over principle is allowed by law as in the case of BARANGAY OFFICIALS . Local Gov’t Law. 83589. the acts of petitioners are protected by the presumption of good faith. WHEN LAW IS SILENT: UNLESS EXPRESSLY OR IMPLIEDLY PROHIBITED. 158700.Local government units and their officials are not exempt from liability for death or injury to persons or damage to property. Even if they were sued in their personal capacity. No. DOCTRINE OF OFFICIAL IMMUNITY For holding or detaining certain products. they were SAVINGS. Solmac Marketing Corp.R. 2008) USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the officer has to step down . One can be grossly negligent depending on the facts of the case. Gross Negligence amounting to bad faith . After all. But the SC in the DAP case ruled that savings can only be determined at the end of the year or the lapse of December 31 of a particular year and that is when the government can tell whether there are savings or not. Should the latter be held liable for its wrong interpretation? No. In the case of Lansang vs. BAD FAITH. is in the nature of a damnum absque injuria. You have to analyze properly the problem if there is any indication of such malice or gross negligence . An action for each can proceed independently of the others. or gross negligence amounting to bad faith. EXCEPTIONS: . THREE-FOLD LIABILITY RULE Three-fold Liability Rule Basic in the law of public officersis the three-fold liability rule. these officers of the BOC were sued for damages for the performance of their functions. (Refer above) And of course as you know since this is a mental element. INCUMBENT MAY HOLD OVER Hold-over principle as a general rule is not allowed. what did the SC say? (Farolan case) DOCTRINE OF OFFICIAL IMMUNITY It is the duty of the court to see to it that public officers are not hampered in the performance of their duties or in making decisions for fear of personal liability for damages due to honest mistake. (Domingo v. G. Whatever damage they may have caused as a result of such an erroneous interpretation. you need to determine the presence or absence of this mental element by the observable overt acts of the official. So the executive cannot for example determine in the middle of the year such appropriation as savings until the end of the year.. These are the bases for holding public officials liable for damages. PUBLIC OFFICERS ARE LIABLE ONLY IN CASE OF MALICE. DOCTRINE OF OFFICIAL IMMUNITY. But supposedly it is allowed to prevent a vacuum in public office. SC said when performing official functions. 155831. And there is implied prohibition to hold-over if there is a fixed term because that is an indication that after the end of the term. However. G. which states that the wrongful acts or omissions of a public officer may give rise to civil.

You know how to address that problem already. For me it’s not only the burden of proof requirement. criminal law – revised penal code. DBL: for me that is the better answer. And because there are different causes of action. One may have been acquitted for failure to prove guilt beyond reasonable doubt. So ni-ingon na ang court in a civil case. Local Gov’t Law. As I have said kung balihon nimo dili man mo follow. different law ang nag govern. So sayon ra kaayo na ma-justify. he cannot be convicted? DBL: so dili lang di-ay na about the burden of proof requirement. Criminal Liability . however. Usually ang situation kay naay criminal liability. but the same person may be held civilly or administratively liable because of the lower requirements of evidence needed. So there is invasion of right and that is determined by law.if acts of officer constitute a ground for damages Any of these 3 can proceed independently of one another. Civil case – generally the Civil Code. Delos Santos case digest in p. And why is it that one action can proceed independently of the others? A: 1. Kung ma-o nay basis sa acquittal then wala say basis for civil liability. But this is quite complicated because there are also what we called independent civil actions and actions that are not independent. PRESUMPTION OF REGULARITY OF PERFORMANCE. this has been asked many times. the exception to civil liability can still prosper even if there is acquittal because one exception is when the acquittal is founded on the fact that the act as alleged had not in fact been committed by the accused . Sa bar exam. Quantum of evidence is different 2. Different Causes of Action Kung ato ning balihon. EXCEPTIONS [Not discussed. Q: Is it a sound argument to say. either administrative or civil liability ang gi-file thereafter.For a singular act. a public officer may be held liable. wala man gani siya na civilly liable sa preponderance of evidence then logically. pananglitan. Unya ang ground sa motion to dismiss would be the acquittal sa criminal case. and therefore cannot be held liable administratively or civilly. reprimand and other forms of administrative sanctions 2. Civil Liability . Q: Ngano naa may Threefold Liability Rule? Explain why this principle exists. Q: What is a cause of action? A: There is an act or omission that is in violation of a right. so this person. either: 1. different causes of action. unya acquitted or dismissed. Remember. Of course. not liable siya civilly.if the acts of the officer constitute a crime 3. Student: they also have different causes of action. & Public Int’l Law 16 . Different causes of action Quantum of Evidence required is different Criminal – proof beyond reasonable doubt Administrative – substantial evidence Civil – preponderance of evidence But so what if lahi ilang requirements? Tanawn nimu ang hierarchy of proof required. Administratively . 15] LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF SUBORDINATES Q: What is the reasoning of the Arias doctrine? USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers.whether he should be disciplined or removed from office *Disciplined: penalties like suspension. So dili na fixed rule ba class nga three-fold liability automatic sad. And then later on. the public officer under the facts is so established not liable unya ikiha siya criminally. administrative lain sad.

which by the way cited the earlier case Alfonso vs Office of the President. Allan Gaviola. ang earlier cash advances duly liquidated. unsa man to kani adto na liquidated ba ni.A: A superior should not be held liable for any irregularities. Irregularities cannot be seen but there are facts and circumstances that would suggest irregularity. Local Gov’t Law. the superior will be held liable. or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail. Issue on both cases is that whether or not the superior can be held criminally liable in conspiracy with the subordinates. Bacasmas vs. On the other hand. there were request for salary advances. there was gross negligence amounting to bad faith. the irregularity is apparent because in that case there is a project and a contractor. But if we take a look at the case of Cesa vs. and in relation to the much later case of Bacasmas vs. and investigate the motives of every person involved in a transaction before affixing. the Arias doctrine was not applied. ang city administrator would also sign if he finds there the signatures of the city treasurer and the head of the cash division. Whereas in Santillano case. approved by the cash division. overwork.awa kuno b. By failing to prevent the irregularity that a superior had reason to suspect all along or to take immediate steps to rectify.dishonest or negligent subordinates. so kung ikaw ang taga cash division kung naay mu request ug cash advance mg prepare ka. if public official’s foreknowledge of facts and circumstances that suggests irregularity (the irregularity is not apparent).  Reiterated in CESA (2008): A public official's foreknowledge of facts and circumstances that suggested an irregularity constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents. you know why? It did not happen one time lang and that’s an added fact mao wala gyud ni tu-o ang SC nga ARIAS doctrine ang i apply. omissions committed by subordinates and cannot be considered in conspiracy automatically with the subordinates. If the irregularity is apparent and the files are not bulky or voluminous. ok? So mao na siya class. ok? So it had been for several years cash advance! cash advance! Nya unliquidated ang earlier cash advances. So three signatures. is that in Cesa. So ang policy sa approval of cash advances would be mo prepare ang Head sa Cash Division sa mga forms and then there will be three boxes to be signed by the Head of the Cash Division. his signature as the final approving authority. multiple assignments or positions. This involves the difference between the budget released and the completion cost. Sandiganbayan (July 10.5m budget released for that particular project but the completion cost only amounts to 3m plus. Kaning si Cesa ni invoke sa Arias doctrine because city treasurer man siya and he said ang iyang signature would only depend on whether the cash division head has also approved the release of the cash advances. Sandiganbayan that heads of offices cannot be USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. but if the irregularity is not apparent. the superior is required to check and determine whether or not there is an irregularity. 2013) Petitioners cannot hide behind our declaration in Arias v. painstakingly trace every step from inception. In the case of Cesa…this is a Cebu City case. (Santillano case governs). And then the City Treasurer at that was Eustaquio Cesa and the City Administrator was Atty. d i class kanang cash advances aprobahan mana class kung na liquidated ang earlier cash advances common na siya nga practice. Sandiganbayan. The project which is supported by a 4. and that’s a very simple task to do. Under the Arias doctrine. ug wala ayaw ug sign. The difference of both cases. he is not supposed to examine extensively the record before he affixes his signature in approving a particular project. ang involved man gud to ug cash advances nya according to the law on cash advances. tan. in fact there was kuno conspiracy. then occupied by Bacasmas. very simple ok? Ayaw ug hide sa principle sa ARIAS because that is a very simple thing to do that’s why in ingun ang SC in Bacasmas. the second box to be signed by the City Treasurer and the third box to be signed by City Administrator. But in the case of Bacasmas vs. the Cesa and Santillano. & Public Int’l Law 17 . the Ombudsman. irregularity is not apparent. Cesa and Bacasmas case will govern. Public official’s foreknowledge of facts and circumstances that suggested irregularity constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents.  ALFONSO DOCTRINE (2007). irregularity cannot be expected to be discovered right away. Because the standing policy is that … [quoting below] LIABILITY FOR ACTS OF SUBORDINATES • ARIAS DOCTRINE (1989): We would be setting a bad precedent if a head of office plagued by all too common problems . the documents supporting the project are not voluminous unlike in arias case which the irregularity cannot be discovered easily. Sandiganbayan. ikaw nga city treasurer even if ni sign ang head sa cash division kahibaw man ka nga cash advance na you are familiar with the policy before nmu approbahan ang cash advance. In both cases of Cesa and the City administrator Gaviola. pag tan-aw nimu unsa mani cash advance. Secondly.

at any stage. so may labot ani sa akung pgka maestra ani sa akung pagka borrower.convicted of a conspiracy charge just because they did not personally examine every single detail before they as the final approving authorities. so maka ingun ka. the investigation of such cases . DISCIPLINE: Dishonesty committed outside of duty • Dishonesty. (ALFREDO ROMULO A. CSC [2001] AUTHORITY TO INVESTIGATE ACTS OF PUBLIC OFFICERS Finally. need not be committed in the course of the performance of duty by the person charged. the last paragraph of my demand letter i ingun nako “we reserve the right to initiate administrative action or actions before the office of the ombudsman for your failure to honor a just obligation”. as amended. • The private life of an employee cannot be segregated from his public life. had the responsibility to examine each voucher to ascertain whether it was proper to sign it in order to approve and disburse the cash advance. in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan. 196842. in order to warrant dismissal need not be committed in the course of duty by the person charged. petitioner. Local Gov’t Law. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service. the Ombudsman. & Public Int’l Law 18 . respondents. Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law. by the way. do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. LIABILITY FOR ACTS COMMITTED OUTSIDE OF DUTY Q: Is a public officer liable for acts not related to their office? I’m sure you won’t be surprise by the rule. vs. may take over. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial. contrary to the case at bar in which petitioners’ unity of purpose and unity in the execution of an unlawful objective were sufficiently established.every time sir sends a demand letter. 16] USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. For example. so it refers to the person. BUSUEGO.. that should be settled. city and state prosecutors. [digest available in p. unlike in Arias. Naa lang siya’y primary BUT NOT exclusive authority. 2013) [digest available in p. Pwedi ka ma disciplina for non-payment of debt. Kay may SC decision na man ana failure to pay a a valid or just debt or obligation is actionable for those who are in public employment. because it’s really difficult to distinguish the public and private life of a public officer or employee. It’s hard to distinguish noh the private and public life of a public officer. a school teacher borrowing money and failed to pay---. in order to warrant dismissal. It’s really hard to distinguish so “acts that have nothing to do with their functions will still be a basis for a disciplinary action”. petitioners herein. affixed their signatures to certain documents. BUSUEGO. from any investigating agency of the government. OFFICE OF THE OMBDUSMAN [MINDANAO] [and] ROSA S. However. October 09. where there were no reasons for the heads of offices to further examine each voucher in detail. There is no rule. any investigative office can investigate any public offcer . by virtue of the duty given to them by law as well as by rules and regulations. Ok then. Also. so in fact if we talk about dishonesty for example.R. The Court explained in that case that conspiracy was not adequately proven. we have the aspect on the authority to investigate acts of public officers. So this is how the SC stated this rule: Authority to Investigate Acts of Public Officers The Constitution. (Remolona vs. G. not to the act now. Actually. 15] I already mentioned there are rules on liquidation on previous cash advances before another set of request for cash advance be approved. No. that only the Ombudsman can investigate.

the Special Audit Team of COA held the following people solidarily liable for the disallowed funds supposedly as payment for the vaccines and medicines amounting to P3M: (a) for Delos Santos. (b) an indigent patient who has been a beneficiary will be subsequently disqualified from seeking further medical assistance. except those with major illnesses for whom a separate limit may be specified. & Public Int’l Law 19 . the officials named in the GAA. Arrieta on de facto officers need not be discussed. TESDA’s authorization of granting EME to project officers has no legal basis. in her capacity as Hospital Accountant. 08-002-101 (04-06) disallowing the payment of EME amounting to P5. However. contrary to the provisions of the 2004-2007 GAAs. and (c) the hospital shall purchase medicines intended for the indigent patients from outside sources if the same are not available in its pharmacy. in her capacity as Chief Administrative Officer. which designation did not entitle them to additional EME. the officers of equivalent rank as may be authorized by the DBM. the 2004-2007 GAAs and the COA circulars is equivalent to gross negligence amounting to bad faith. the TESDP Fund in this case. G. 198457. they acted in good faith since they had no hand in the approval of the unauthorized EME. in fact. for certifying in Box A that the expenses were lawful. the TESDA audit team leader discovered that for the calendar years 2004-2007.||| 2 The Director-General's blatant violation of the clear provisions of the Constitution. He is required to refund the EME he received from the TESDP Fund for himself. merely designated with additional duties. TESDA paid Extraordinary and Miscellaneous Expenses (EME) twice each year to its officials from two sources: (1) the General fund for locally-funded projects. It argues that the 2004-2007 GAAs did not prohibit its officials from receiving additional EME chargeable against an authorized funding. Bacaltos. The audit team issued Notice of Disallowance No. Thus. No. It could happen that the investigation was started by the prosecutors and then it is taken over. As pointed out by COA. the TESDA officials were. 2014 Facts: Upon post audit. VSMMC Administration headed by VSMMC Chief Delos Santos initiated a fact – finding committee to act on the matter which yielded the finding that VSMMC was blinded by the TNT office and the staff of Cuenco. inter alia. Being in good faith. for certifying in Box B of the disbursement voucher that the supporting documents for the payment to Dell Pharmacy were complete and proper. Local Gov’t Law. Pwede siya ka take-over but this does not mean that his jurisdiction is exclusive. InDimaandal v. 2013 Facts: This case is about the controversy of the Tony N’ Tpmmy Health Program (TNT) which seeks to aid indigent patients in Vicente Sotto Memorial Medical Center (VSMMC) in providing medicines for free. we held that designation is a mere imposition of additional duties. Delos Santos v. COA.||| TESDA’s argument: TESDA insists on its interpretation justifying its payment of EME out of the TESDP Fund. pursuant to a MOA with VSMMC.000 for each office of each of those officials. (c) for Antoni. and the offices under them.706. the Ombudsman may take over at any stage investigations by the government. In addition. Bien. among others. The underlying principle behind the EME is to enable those occupying key positions in the government to meet various financial demands. for approving the supporting documents when the imputed delivery of the medicines had already been consummated. subject to certain conditions. This program was funded by the former Congressman Tony Cuenco. subject to reimbursement when such expenses are supported by official receipts and other documents.498. As for the TESDA officials who had no participation in the approval of the excessive EME. The position of project officer is not among those listed or authorized to be entitled to EME. in her capacity as Medical Center Chief. 204869. When COA found out about the falsification and forgeries on the medicine prescriptions. the ruling in Cantillo v. who should be held liable to reimburse funds illegally released? Ruling: 1 No. (b) for petitioner Dr. G. No.00 per patient. [END of CLASS DISCUSSION] DIGESTS OF RECENT JURISPRUDENCE TESDA v. Josefa A. It was agreed. (d) for petitioner Maureen A. 2006 and 2007 (2004-2007 GAAs). and (2) the Technical Education and Skills Development Project (TESDP) Fund for the foreign-assisted projects. for signing and approving the disbursement vouchers and checks.60 for being in excess of the amount allowed in the 2004-2007 GAAs. COA. necessary and incurred in her direct supervision. payees and the accountants.R.So for those cases that are cognizable by the Sandiganbayan. the position of project officer is not even included in the Personnel Service Itemization or created with authority from the DBM. which does not entail payment of additional benefits.||| The payment of EME was authorized under the General Provisions of the General Appropriations Acts of 2004. namely. that: (a) Cuenco shall identify and recommend the indigent patients who may avail of the benefits of the TNT Program for an amount not exceeding P5. the EME were disbursed to TESDA officials whose positions were not of equivalent ranks as authorized by the Department of Budget and Management (DBM). Since the TESDA officials were merely designated with additional duties. only to the ranks specified and that miscellaneous expenses should not exceed P50. for another office to which they have been designated. 2005.||| USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the Ombudsman has the primary jurisdiction and to implement or to put teeth to this primary jurisdiction of the Ombudsman for cases that are triable by the Sandiganbayan (Salary Grade 27). March 11. Issue: 1 WON TESDA is justified in granting Project Officers additional EME despite the fact that they were not included in the ranks mentioned in the GAA 2 If the answer is in the affirmative. They also honestly believed that the additional EME were reimbursement for their designation as project officers by the Director-General. COA. they need not refund the excess EME they received. It indicated the persons liable for the excessive payment of EME: the approving officers.000.R. in her capacity as Chief of the Pharmacy Unit. August 13.

Afterwards. City Administrator Gaviola approves the voucher and countersigns the check. G. making the ["approving officers"] liable for the refund [of the disallowed incentive award]. the Court. there is a presumption of regularity in the performance of official duties.R. and that previous cash advances have been liquidated and accounted for. CoA (Reyna). and incurred under their direct supervision. This Advice is returned with the voucher to the Chief Cashier for the preparation of the check. However. Local Gov’t Law. lawful. No. & Public Int’l Law 20 . this presumption must fail in the presence of an explicit rule that was violated . who then submits it to Cash Division Chief Bacasmas for approval. She then prepares an Accountant's Advice (Advice). even if the grant of the incentive award was not for a dishonest purpose. thus cannot be held liable for the disallowed funds Ruling: NO. Once the latter approves the request. in Reyna v. the Court finds that the petitioners herein have equally failed to make a case justifying their non-observance of existing auditing rules and regulations. In this light. in Casal v. as well as Section 16 of the 2009 Rules and Regulations on Settlement of Accounts. the Court affirmed the liability of the public officers therein. that the expenditures are properly certified and supported by documents. the patent disregard of the issuances of the President and the directives of the CoA amounts to gross negligence. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the degree of their neglect in handling Cuenco's PDAF and the resulting detriment to the public cannot pass unsanctioned. thus. who were held liable for the P9M accumulated shortage in the City’s funds from 20 September 1995 to 5 March 1998 from the cash and accounts of the paymaster. 2013 Facts: The following Cebu City Government officials. 268 and 29 which prohibit the grant of productivity incentive benefits or other allowances of similar nature unless authorized by the Office of the President. Petitioners' acts and/or omissions as detailed in the assailed CoA issuances and as aforedescribed reasonably figure into the finding that they failed to faithfully discharge their respective duties and to exercise the required diligence which resulted to the irregular disbursements from Cuenco's PDAF. which she forwards to City Treasurer Cesa for his signature in the same box. In Casal.||| Bacasmas v. Thereafter. 189553. sustained the liability of certain officers of the National Museum who again. notwithstanding their proffered claims of good faith. Luz Gonzales | take part in the process of approving and releasing cash advances described as follows: A written request for a cash advance is made by paymaster Luz Gonzales (Gonzales). and of their duties under the MOA. else the standard of public accountability be loosely protected and even rendered illusory. She also signs the voucher to certify that there is adequate available funding/budgetary allotment. as prescribed in CoA Circular No. their liability pursuant to Sections 104 and 105 of the Auditing Code. notwithstanding their good faith participated in approving and authorizing the incentive award granted to its officials and employees in violation of Administrative Order Nos. since their actions violated an explicit rule in the Landbank of the Philippines' Manual on Lending Operations. In similar regard. which Cesa then signs. they raised this argument: VSMMC was merely a passive entity in the disbursement of funds under the TNT Program and. Jaca (Jaca) for processing and pre-audit. Just as the foregoing public officers in Reyna and Casal were not able to dispute their respective violations of the applicable rules in those cases. must perforce be upheld. 189369. Jurisprudence holds that. invoke good faith in the performance of their respective duties. the voucher is forwarded to City Accountant Edna C. 189343. 2009-006. she affixes her initials to the check. After it has been prepared. Sandiganbayan. capitalizing on the failure of the assailed Decisions of the CoA to show that their lapses in the implementation of the TNT Program were attended by malice or bad faith. For instance. July 10. she affixes her initials to the voucher.||| Issue: WON VSMMC can be presumed to be regular in the performance of its functions under the MOA of TNT. Bacasmas and Cesa certify that the expense or cash advance is necessary.In defense. CoA (Casal). absent any showing of bad faith and malice. By signing. it was held that. VSMMC may not invoke the presumption of regularity because it has violated an explicit rule. Truly.

when taken together. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334 of the Revised Penal Code. through their admissions before the Sandiganbayan. No. affixed their signatures to certain documents. and the check are then returned to the Cash Division.||| Not only were petitioners unified in defrauding the government. the names of the local government employees who were paid using the money from the cash advance. also show that there was conspiracy in their willful noncompliance with their duties in order to defraud the government. Petitioners' acts not only show gross negligence amounting to bad faith. had the responsibility to examine each voucher to ascertain whether it was proper to sign it in order to approve and disburse the cash advance. as well as the receipts. 9262 (Anti-Violence Against Women and Their Children). petitioners herein. because they themselves signed the vouchers despite the glaring irregularities therein. & Public Int’l Law 21 . Issue: WON the petitioners’ invocation of the Arias Doctrine is correct Ruling: NO. vs. October 09. Petitioners cannot hide behind our declaration in Arias v. as the final approving authorities. but they were also unified in not reporting the negligence of their cohorts because of their own negligence. as well as the Check Register to acknowledge receipt of the check for encashment.The voucher. but. the Advice. Sandiganbayan that heads of offices cannot be convicted of a conspiracy charge just because they did not personally examine every single detail before they. She then liquidates it within five days after payment. by virtue of the duty given to them by law as well as by rules and regulations. An RD must contain the audit voucher number. the amount for each employee. A report of those cash advances liquidated by Gonzales is called a Report of Disbursement (RD). They are incorrect. Gonzales encashes it at the bank. 2013 Facts: Private respondent Rosa S.R. Petitioners. still they failed to correct one another. where Gonzales signs the receipt portion of the voucher. These officials now invoke the Arias Doctrine as defense. petitioner. and records the cash advance in her Individual Paymaster Cashbook. The RDs are examined and verified by the City Auditor and are thereafter submitted to the Cash Division for recording in the official cash book. BUSUEGO. OFFICE OF THE OMBUDSMAN (MINDANAO) [and] ROSA S. Also. and (3) Grave Threats under Article 282 of the Revised Penal USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers.. Local Gov’t Law. respondents. signs the voucher. He also failed to inform the other officials that they should not sign the vouchers and tolerated their negligence when they affixed their signatures thereto. 196842. Cesa himself admitted knowing that Gonzales had unliquidated cash advances. ALFREDO ROMULO A. unlike in Arias. all knew that there were irregularities in the vouchers. BUSUEGO. contrary to the case at bar in which petitioners' unity of purpose and unity in the execution of an unlawful objective were sufficiently established. yet he signed the vouchers. (2) violation of Republic Act No. Upon receipt of the check. The Court explained in that case that conspiracy was not adequately proven. where there were no reasons for the heads of offices to further examine each voucher in detail. G.

Chan. Biton. Lesigues.||| [END OF LAW ON PUBLIC OFFICERS] BY: Bayalas. How did I come to know that these foreign authors are indeed authorities on the matter. By the way. Alfredo. This is fundamental. I surveyed Supreme Court decisions from 1901-present. Judilla. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case [citation omitted] as not being contrary to the Constitution. I made use of their opinions as well in trying to effectively deliver the course to my students. And these authors are consistently quoted: Machellin. Lao. Fookson. Local Gov’t Law. Lumapas.. Ubod Note: Arrangement is chronological according to class sessions. Otero. the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Thus. Paglinawan. since the crime of Concubinage is not committed in relation to his being a public officer. with designation Chief of Hospital. You will see later on that there are other nuances that we should need to know. In the same resolution. Cañada. a private corporation is - USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the Ombudsman has primary jurisdiction over offenses cognizable within the Sandigabayan. Judge Dillon. it held that the motion of Alfredo to refer this case to the Office of the City Prosecutor. 2014} First in my presentation would be the 2 kinds of corporation. Lulu. Borres. Dillon. Davao Regional Hospital. Tapia. Segregation was done only on the subject level: Local Government Law (Public Corporation) and Public International Law. Poley.Code. Duran-Ybañez. Tampus. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ circular is a mere superfluity. & Public Int’l Law 22 . You may see repetitions and/or scattered transcripts of the same topic throughout the material. Gan. the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants. So this definition I gathered from one of the eminent authors in law of municipal corporations. When the matter was brought to SC. there are about 3 or 4 well known authorities in local government law. Caminade. Tagum City. Ortezuela.and post.mock bar. Robles. Gallego. before the Office of the Ombudsman against her husband. Salas. there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. By definition. Primarily. To reiterate for emphasis. Alfredo claims that the Ombudsman should have referred Rosa's complaint to the Department of Justice (DOJ).||| Ombudsman issued a resolution finding probable cause to indict Alfredo and mistress for Concubinage. LOCAL GOVERNMENT LAW {PRE-MOCK BAR. Sanchez. ||| Issue: WON the complaint was properly filed before the Office of the Ombudsman Ruling: YES. August 29.. Apokon. grounded on the fact that the criminal charges imputed are not in relation to office||| was belatedly filed. So from time to time you will see that I will be quoting from foreign authors. either in their regular capacities or as deputized Ombudsman prosecutors. This is because discussions were conducted across two distinct periods: pre. However. a corporation can be classified as either private or public.

] But what did Justice Carpio say in his dissent? Carpio said that yes.) Of course a typical example is any private corporation organized under the corporation code of the Philippines. and kindred values. Is BSP still an “instrumentality” of the government and perforce under COA’s jurisdiction? Now notably the Supreme Court in BSP vs.A." However. it is true that it has public purpose but this fact alone does not make automatically the BSP a public corporation (GOCC)… Dissent of J. The majority declared that it is a public corporation and 2 reasons were given. benefit. COA.” BSP is not anymore a GOCC. Kana kunu is public purpose. aim or end. So it’s not much of the purpose but the corporation’s relationship to the state. civic consciousness and responsibility. But we studied this case. Carpio Indeed. BSP vs. supra. except the Secretary of Education. (Dillon.A. It is a public corporation but what test was used by the majority opinion? This means that you should take note the dissent of Justice Carpio. The National Executive Board of BSP no longer consists of several Cabinet Secretaries. In other words the majority opinion applied the purpose test. Sayon ra manang to determine private. So it is created for public purpose. So the moment it is classified as public corporation. It is created for public purpose. is a local government unit. according to Judge Dillon. virtues of citizenship and patriotism. In which case. attached to the DECS pursuant to its Charter and the Administrative Code of 1987. and that public purpose was to inculcate upon the youth. while to determine whether a corporation is public requires another level of analysis. the corporation is public. Commonwealth Act no. No. And there we learned that instrumentalities of the government include public corporation. 111. The other test is the relationship test. in the sense that it promotes “virtues of citizenship and patriotism and the general improvement of the moral spirit and fiber of our youth.Kinds of Corporation.…and to inculcate in them patriotism. & Public Int’l Law 23 . It is created for private objects. if you look at the title of the charter of BSP. But by definition a public corpo is …(pls refer to slide above). it is considered as instrumentality of the state. One is purpose test. It is a public corporation (this is declared in C. 1st. supra. using the method which are in common use by boy scouts. and moral values. [See. It is not a private corporation which is required to be owned or controlled by the government and be economically viable to justify its existence under a special law. 111 “ to promote …the ability of boys to do useful things for themselves and others. No. The other reasoning of the court was (2nd) it was created for a public purpose. it says “an act creating a public corporation to be known as Boy Scouts of the Philippines. for the purpose of highlighting the concept what is instrumentality of the state. 111 itself) created by law for a public purpose. in light of admin law. If the answer is yes then under that test. such as a local government unit. such as a business corporation formed and organized under a general law on corporation. this fact alone does not automatically make the BSP a GOCC …  Authorities are of the view that the purpose alone of the corporation cannot be taken as a safe USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. COA (2011) The BSP still remains an instrumentality of the national government. COA declared that BSP is a public corporation. So this problem is taken from the very facts of BSP vs. And an example of which. it is then within the jurisdiction of Commission on Audit. If you look at the definition you might be able to answer this question … What are the tests in determining whether a “corporation” is public or private? How many tests are there? There are 2 tests in determining whether a corporation would qualify as public corporation. No. If the answer is yes. the dissent of Justice Carpio. then it is public. self-reliance. What is problematic however is how to tell whether a corporation is public.)  A public corporation is one that is organized for government of a portion of a state. courage. Local Gov’t Law. under R. I am sure you have encountered these precepts when you had read the case of BSP vs. Under which the question would be what is the relation of the corporation to the state. (Dillon. the BSP performs functions which may be classified as public in character. 7278. discipline. Which means that we need to look into the purpose for which a corporation is organized if whether it is established for governmental purpose/public purpose. It was declared in the law that created BSP itself. it is intended to perform the function of the government and therefore it is meant to be an agent of the state. If the answer is that the corporation would be established for the purpose of making the corporation an agent of the state in the performance of its functions then it is public. COA when we were studying administrative law. however. in general:  A private corporation is one that is formed for some private purpose. Meaning. COA asserts jurisdiction over BSP contending that it is still a government agency.A. Problem The Boy Scouts of the Philippines (BSP) was created by C.

Though organized for private profit. Commentaries and Jurisprudence on Philippine Commercial Law (1986). Let’s go then to the Kinds of Public Corporation - Kinds of Public Corporation 1. then that corporation is considered public. This is important because this was asked in the bar. making the exercise of such powers by them lawful and rightful. supra. Doctrine of operative facts (1%) B. otherwise. yet as between private litigants they may.). and barangays can best exemplify public corporations. then private schools and private hospitals should likewise qualify as public corporation if we go by the purpose test only. to determine whether a corporation is public or private is found in the totality of the relation of the corporation to the State. place themselves where they would not be permitted to deny the fact of the existence of the corporation. Quasi-public corporation – a public corporation that renders public service or supplies public wants. De facto municipal corporation (1%) C.  The true criterion. chartered cities. public utility companies. Commission on Audit [2007]) The true public corporation nga wala gyud debati class .body politic and corporate constituted by the incorporation of the inhabitants for purposes of local government thereof. Corporation by estoppel Fletcher: “While as against the state a corporation cannot be created by the mere agreement or other act or omission of private persons. (Dillon. There are 3 kinds: Special Kinds of Corporations: 1. it should not be the only test. 3. E. Let’s look at Special Kinds of Corporations. such as utility companies. & Public Int’l Law 24 . Therefore. It combines the elements of both public and private. by their agreements. (citing Philippine Society for the Prevention of Cruelty to Animals v. and secondly. Corporation by prescription – under the principles of common law. If the corporation is created by the State as the latter’s own agency or instrumentality to help in carrying out its governmental functions. There is a good reason for this. Local Gov’t Law. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. it is private. or conduct. ingon Justice Carpio. guide. good. by the general consent to that kind of corporation. and only for resolving a particular issue. Teodorico C. Justice Carpio mentioned a case decided in 2007 applying the relation test - Applying the above test. therefore. 2. Corporation De facto – the consent of the state is implied rather than expressed. admissions. for the fact is that almost all corporations are nowadays created to promote the interest. But. what about schools? Dba to educate is a governmental function? Yes because it is one of the duties of the state. a presumption arises of an ancient charter granted to their predecessors. Municipal corporations . if we are to look at the corporation per se and classify it. Recently referred to as “local governments”. Municipal corporation by estoppel (1%) Just transpose the concepts of Corporation Law on the kinds of corporation into municipal corporations. Dba education or hospitalization public purpose mana? So if we go by the analysis of the majority opinion according to Justice Carpio.” I must have shown this in one of our exams in Local Government Law - Bar Exam (2011) Define/explain the following: A. a lost grant or charter from the crown being presumed. kung per se or objectively speaking atong hisgutan. even though the conditions of incorporation are not substantially complied with.g. They are created by the State as its own device and agency for the accomplishment of parts of its own public works. for one. Martin. they are compelled by law or contract to render public service. Because you know for a fact that sometimes we characterize things for a limited purpose.local government units . then we go by the relation test. not for any limited purpose but per se. 2. you should apply the relation test in that regard. kung public purpose lang. where a body of men have been for a long time in the exercise of corporate powers. provinces. you should be aware also. or convenience of the public.

so that’s a general law. it will be declared invalid if the desires to have it declared (as you know. What’s wrong with the argument? The Doctrine of Operative Fact applies only to the acts of the officers of the Municipality of Badong and not to its status. & Public Int’l Law 25 . Unsa may gi-ingon sa Supreme Court? At least de facto siya. Local Gov’t Law. But as to the effects. Benito (1969) E. Of course. In short. Here. You know why that is important? Look at this question in the Bar exam - 2004 Bar Exam Suppose that one year after Masigla was constituted as a municipality. It was based on the Civil Code (1949 which took effect in 1950?). Auditor General nullified E. But even if the municipal corporation may not qualify as a de facto municipal corporation. 123 on the ground that the creation of a municipal corporation is a legislative. Would that invalidate the acts of the municipality and/or its municipal officers? ANSWER: (Mun. and (2) Doctrine of Prescription – that municipal corporations. as inoperative as though it had never been passed. dili i-declare nga valid ang corporation. it is a legislative function. you need to be careful. Let me show to you a problem that I did not show to you when you were under me: Problem The Municipality of Badong was created in 1964 by Executive Order No. after the law creating it had been voided? That’s a different question.O. that’s almost the same . would Masigla qualify as a de facto municipal corporation.O. however. because had the question been. would it qualify as de facto? What I’m trying to say is this: pwede diay class nga ang municipal corporation may not be declared even as a de facto municipal corporation because di siya mu-qualify. 33 Executive Orders creating municipal corporations were declared by the Supreme Court as unconstitutional on the ground that the President cannot create a municipal corporation. it is an option on the part of the state).It is called Quasi-public Corporation because in reality it is a private corporation. Municipality of Malabang vs. 40 years usa pa na question. But it may be characterized as quasi-public if it performs some public purpose functions. The E. 123. Siva. function. Galing lang na de jure kay gi-recognize sa Ordinance or Appendix to the 1987 Constitution kay gilista as one of the local government units constituting a particular legislative district. The doctrine applies to the acts. But of course. “The Doctrine of Operative Fact” says the Supreme Court “recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased. It provides an exception to the general rule that a void or unconstitutional law produces no effect. Benito. For the existence of E. Rule on this contention.” This is not to say. 386 is “ an operative fact which cannot justly be ignored. In 1965. The orthodox code was used in the past. we treat the acts differently. It’s a wrong application. Bas. 386 creating the municipality in question is a nullity pursuant to the ruling in Pelaez v. What is interesting here is the argument of officials of Badong saying that the Municipality of Badong must be affirmed because of the Doctrine of Operative Fact. You don’t apply the Doctrine of Operative Fact to make an unconstitutional act constitutional. What is the answer? Doctrine of Operative Fact. We apply Doctrine of Operative Facts insofar as the acts are concerned because as observed di naman ta orthodox view insofar as the effects of unconstitutionality are concerned. it nullifies the void law or executive act but sustains its effects.1 year after. those will be recognized as if the same were acts of officials of de jure corporations. Those organized under Corporation Code of the Philippines. ignored or disregarded. is.” There is then no basis for the respondents’ apprehension that the USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers.O. of Malabang v. with more reason nga ang acts kay mao mana ang effects sa declaration of a de facto municipal corporation – that the acts of the de facto municipal corporation will be considered as acts of officials of a de jure municipal corporation. Auditor General. like the case of Andong. even if created irregularly from the start may be entitled to recognition as de facto municipal corporation after a long period of time. Remember Municipality of Jimenez vs.O. Auditor General and Municipality of San Joaquin v. You remember in the case of Pelaez v. that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the E. so considered valid. You remember that there are two reasons/justifications for the doctrine of de facto municipal corporation: (1) Operative Fact Doctrine. Unsa naman atong gi apply? Modern view na. the law creating it is voided because of defects. in legal contemplation. obviously if mu qualify sya as de facto municipal corporation. therefore “created no office. The officials of Badong argued that its creation must be affirmed because of the “Doctrine of Operative Fact”. To recap: A municipal corporation may not qualify as de facto municipal corporation but that doesn’t mean that its acts may not be honored as valid because we can apply also the Doctrine of Operative Fact. as established in Municipality of Malabang vs. not executive. So in the problem I gave. the case of Pelaez vs. Benito) So specific siya sa acts. so private sya.O.

4 sa provinces. & Public Int’l Law 26 . Code and at the same time by their charters in so far as the provision is not inconsistent with the LGC. ingon sila it is an operative fact which cannot just be ignored. Sec. 3 Ancestral domain and natural resources. So to be able to answer the real relationship between the president and the autonomous region. 11 (Consti. Auditor General nga it created no office. shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 16. family. restricted ang power. Sec. 4 Personal. Cities. city. In regard to the degree of the autonomy kai di ba naa distinction. mun. and autonomous region kai in reality naa man sila distinction.]settling many an act done in reliance upon the validity of the […] municipality.) Question: What is the extent of the power of the President over the above political subdivisions? State your legal basis. city. 8 Preservation and development of the cultural heritage. Municipalities. 5 Regional urban and rural planning development. and cities and municipalities with respect to component barangays. and brgy. 2 Creation of sources of revenues. X. Mao man guy giingon sa SC aning Malabang vs. Dili cya complete in the sense nga wala nag mention of autonomous region ani sec. and 9 Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. social. The President of the Philippines shall exercise general supervision over local governments. Sec. We go to ART. As for this regular political subdivision ang answer nato would be sec. while Y city is a component city because the Province where it is situated exercises supervision over it. mandated areas that must be in the organic act: Section 20: Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws. Is the following statement correct? X City is an independent component city because it is beyond the supervision of the Province where it is situated. 10: Section 4. we have to go further. X. Benito. Local Gov’t Law.: Section 16. 4. so kana sec. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. As I have said. municipality.. Provinces with respect to component cities and municipalities.4 Art. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. 7 Educational policies. 20. but in the case of autonomous regions specific ang Constitution nga there are areas where autonomous region can have original power unlike in LGU na any other power can only be by delegation. that is important or there is something we need to clarify in that regard.. 6 Economic.. but insofar as the effects. Where can we see this? Sec.invalidation of the executive order creating Balabagan would have the effect of [. 10 of the Constitution. and tourism development. Because puede man gud nga pa-dramahon ra ka sa exam nya tagaan ka ug basic distinction between province. nya unsa man difference? Kani mga prov. and Barangays Autonomous Regions: Muslim Mindanao and Cordilleras –Art. and property relations. city. 1 (Constitution) Special LGU’s: Special Metropolitan Political Subdivisions –Art. and bryg. Ang sa autonomous region it is goverened primarily by their Organic Act. mun. the organic act of autonomous regions shall provide for legislative powers over: 1 Administrative organization.mostly delegated.. Kay ang EO 386 itself was declared by the SC in the Pelaez vs. will be applicable but in the case of autonomous region naa specific provision. Territorial and Political Subdivisions: Regular LGU’s: Provincies. Ang LGU other than autonomous region is governed by the Local Gov.

income requirement lang to become a Compoent is 20M). and beyond the power of supervision of the province is its STATUS.. ang income requirement is still 50million gihapun. Just like in the past. What makes independent component city is not the fact that it is beyond the supervision of the province. Meaning ang internal revenue allotment should not be taken into account in computing the 100Million. is simply a consequence of its status as a component city. LGC So what will happen now? My humble submission would be: the moment we create a city under RA 9009. ang IRA is not to be taken into account. And its status is determined by income. The constitutionality of RA No. What is required is merely an application to the Office of the President . Mao gyud nay sakto. Consequently. Now if you look at the code kanang 451 it is the “city” requirement. Income ra gyud! So what makes it as a HUC. 8528 was assailed on the ground of lack of provision of the same law submitting the same for ratification by the people of Santiago City in a proper plebiscite. a municipality to be converted to a city. If ma comply na. thus ang katong 20M should not be added to the 90M] What is RA 9009? It is an act amending section 451 of LGC. Why is that important? It is important because ang idea man gud sa HUC is that is something to be converted pa ba out of an ordinary city. HUC in the LGC is still 50 million. So that is one area that the court should clarify. Mas lisud ni karun. Confusingly though in the code (referring to the LGC. Mao na ang process sa conversion. therefore complying with the 100M income requirement. BUT IF YOU CONVERT an ordinary city (which is either component or independent city) into a Highly Urbanized City (HUC). Okay. And Conversion would not require a law. ang income requirement kay di ba 100Million na man (previously before RA 9009. for highly urbanized city status. what is a highly urbanized city? Do we have to see in the charter if there is the same prohibition to vote or run just like in independent? NO! We just have to look into the income of the city to determine if whether it is HUC. So that is something Congress should look into. that city should be automatically considered HUC. So the 2 prohibitions are from voting and from running in the provincial elective posts. if a municipality is to be upgraded to a component city. COMELEC)  Highly Urbanized City – independent from province by reason of status = outside the supervisory power of the province First. Another important principle. upon submission of the proof of compliance. otherwise . That is the effect that it is beyond the supervision. either from a component or independent city. likewise katong RA 9009 ni Pimentel hastily done pud) …di ba sa RA 9009. When what is found in the charter is this prohibiton on the part of the voters of that city from voting provincial elective posts and as interpreted in Abello vs. Isabela was converted from an independent component city to a component city. by virtue of RA No. an act amending section 451. However pursuant to RA 9009. 8528. So it does not make sense to say that. What is then an independent component city? What makes an independent component city is a special provision found in the charter.you create a city out of a municipality. Specific man pud cya. the more reason that a law is required as well for its conversion. just take a look sa law nalang to be sure). 451. COMELEC. The same is true with a component city . Simple ang defintion sa CODE: a component city is a city that is neither independent component city or highly urbanized city. no discretion ang President since it is mandated by law. Naturally ang effect would be if mag-create ka under 9009. beyond the supervisory power of the province. supposedly ni-exceed na ang imong income sa 100M requirement so qualified naka. ana si sir libug kay ang LGC kay murag hastily done by its framers. So ang uban na provision dili na cya necessarily apil sa amendment sa RA 9009. the President is mandated to issue a conversion within a period of 30 days. I gathered this the way my students answer nga naa mga misnomer ba. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Amending sec.(I’m talking about the income of 50M and population of at least 250K). kay specific man ang RA 9009. so kung naa na nga provision. So for highly urbanized city. we need to know what is a component city. It is simply a consequence of its status as an independent component city. that it is within the supervision of the province. Di lang 100M ang income gi kinahanglan. What makes it independent component city or component city is not whether it is under the supervision of the province. inhabitants can vote for provincial candidates and can run for provincial elective posts = under the supervisory power of the province  Independent Component City – independent in the sense that the charter prohibits the voters from voting for provincial elective posts = outside the supervisory power of the province (Abella v. so city naka…so what is the status now of the municipality? Component city or HUC? Maka argue ba ka nga that municipality cannot be a HUC kay wa man cya ni follow sa IRR na dapat ka mag-apply ngadto sa office of the president… FOR ME THAT IS A USELESS PROCEDURE if mu require pa ka anang application to the office of the president. Local Gov’t Law. you do not have to go through the process of conversion.Incorrect.(so the amendment is specific and it does not apply to all provisions of the LGC but only a specific provision-sec 451. the City of Santiago. Next. because you need a law there (a law is required for conversion in that instance). nangailangan pud ang RA 9009 na the “100million” should be locally generated. Unya 100M income requirement complied with. You remember this case? I’m talking about a special situation in creating cities… Problem In 1998. Likewise. that also includes prohibition to run for provincial elective office. So una nimu tanawon if ICC or HUC. & Public Int’l Law 27 . that’s what makes a city an independent component city. [Transcribers’s explanation: if 90 million ang locally generated income nimo then na kay 20 million na IRA. WALAY LAW REQUIREMENT FOR CONVERSION. How do we establish an HUC? Di ba by way of conversion. Kinds of Cities:  Component City – not qualified to be highly urbanized. component city gyud na cya. It is different when you “convert” a component into an independent component.

The first question would be is plebiscite required? The answer would be yes because this involves creation. Sila kuno ang directly affected. COMELEC ang phrase “affected” would be as a result of reduction in territory. We will try to analyze this case no if correct pa ba gyud na diha dapita. the city of Santiago.. The phrase “boundaries” should not be limited to the mere physical one. Article X of the 1987 Constitution is the material change in the political and economic rights of the local government units directly affected as well as the people therein. North ug South. Not all upgrades will you apply Umali vs. Double TEN. So kani diay siya. APRIL 2014 Umali vs. It observed that the common denominator in Section 10. pwede gud na pina-agi “for the benefit of the constituents”. In this case. Second issue -who should participate in such plebiscite. MERGER. dira rapud sa Santiago City. aha! Based on a study.kato Negros del Sur pero wala gi apil ang Occidental Negros.. Isabela was converted from an ICC to a mere component so. If you upgrade a CC to HUC. So kung bu-akun nimo ang Cebu Province. it could be for a political reason. For example during the time of former Gov. 30 sa west. This is the opposite. Let’s try to imagine that you’re participating in a plebiscite and then you will drop 2 tens in the ballot.) So unsa diha ang issue? The issue is on the plebiscite. in what areas gani mu required ang plebiscite? Double Ten. And as interpreted by the SC in Tan vs. Article X of the Constitution. Decide. where 80 brgys. so kinanglan careful ka. and most importantly a reduction in economic aspect (INCOME). Di ba if mu carve out ka from mother province then the entire province should participate not merely the constituents of the new territory (political units directly affected). but also to its political boundaries. So nganu kaha sa probinsya taas ang rating ni Gwen pero diri sa city gamay man. This SC ruled that plebiscite is required in this kind of conversion. 1999) The Supreme Court ruled that plebiscite was required even in cases of “conversion”.The issue was whether the downgrading of Santiago City from an independent component city to a mere component requires the approval of the people of Santiago City. xxxx the conversion of a component city into an HUC is substantial alteration of boundaries. diba naa man toi isyu na “dili man gyud mapildi si Gwen sa province”. Article X 1987 constitution. asa man ang plebiscite i-hold? The SC said. plebiscite is required not because of creation. Dalia rana timan-an class kung plebiscite requirement. arong maka pang hambog ta. murag pildi man cya kung Cebu City lang ang basehan sa botar. So the South being a new province. the reason for upgrading is SUBSTANTIAL CHANGE OF BOUDARIES. Gwen Garcia. referring to the metes and bounds of the LGU. Dapat. the North province will also participate. Kanag pag-upgrade or pag-downgrade. NOW THIS IS THE UPDATE. Do you know where upgrading of CC to HUC falls under these circumstances? Not creation according to the SC. From being a CC into a HUC. Aguirre (Sept. nya nagcreate ug bag-o. (Although kanang mga politicians. and the last one would be SUBSTANTIAL ALTERATION OF BOUNDARIES. DIVISION. Mao na ng nahitabu sa Tan vs.” SC: Plebiscite is required. if the upgrade will be from ICC upgraded into HUC. Kato na cyang Negros Oriental ug Occidental. “substantial alteration of boundaries” involves and necessarily entails a change in the geographical configuration of a local government unit or units. Ang 30 left sa ilang economic development ni carve out and made themselves a new municipality. 50 sa east. 10. squarely applicable siya... So di ni therefore mu apply. There are 2 possibilities: whether you upgrade a city or downgrade a city. but because of substantial change of boundaries. according to the court. Miranda vs. UPGRADE. So first issue is. In this case of Umali. So gi-nullify sa SC ang plebiscite. In cases of CREATION. & Public Int’l Law 28 . so diba dili ba na for political purposes. kato rapud Santiago City. Comelec. Kbaw naman mo kanang mga easy problems in the bar na kato gani mu-carve out ug territory from the mother province. Mao tong ni float ang idea ba na what if Cebu City should be converted to a component city para lang gyud mu-botar. this is an actual case…so by virtue of a law. sa pag downgrade. DOWNGRADING siya.. UMALI VS COMELEC. Section 10. sila man ang affected. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. reduction in population. Not unlike a 2004 Bar question. So i-downgrade. COMELEC. Nya mu-tuo pud ta dayun. So was plebiscite required in this case? This is an old case. But the question is. So it was questioned because there was no provision in the law requiring plebiscite. COMELEC (April 2014) While conversion to an HUC is not explicitly provided in Sec.WON plebiscite is required. from a CC converted into HUC. It is precisely for this reason that the Constitution requires the approval of the people in the political units “directly affected. But sa tinuod naa gyud na political complexion. Local Gov’t Law. As the phrase implies. Do you know why? The SC said.

True enough. So instead of in the case of Miranda vs. (Sir comments: Nindot kaayo na siya pang-MCQ!) Another update is the case of Cagas vs. Dba CC siya before. that’s one. the exception was given under the IRR. The 2011 case ruled that there is no rhyme and reason why the province has no exception when there is an exception in the case of other LGUs. So mu-come out iya schedule around August of 2013. honest. there is an exception: the land area requirement need not be complied with if the municipality consists of one or more islands. Because the real properties found in the CC is also found in the province because component man siya. so part siya sa territory sa province. Why? Beyond supervision naman siya sa province. component city into HUC. In the case of a province. COMELEC. and credible elections. COMELEC. the law creating Davao Occidental fixed a date. In the case of municipalities and component cities. nay provision sa postponement of election. downgrading. COMELEC is a new case to remember. What happened was there was a law. So Umali vs. if you follow the statute creating Davao Occidental. to postpone the election if the grounds stated therein. Tinood ba na? Because if you convert CC to HUC.didto lng sa city involved. it fell on 2 nd week of August 2013. & Public Int’l Law 29 . The same is true with municipalities. orderly. are present. Article IX-C) that the COMELEC has all the necessary and incidental powers for it to achieve free honest orderly and credible election. tawgun na daw silag Davao Occidental. na-carve out siya from the territory of the province.000 square kilometres. so politically (ideally/theoretically) kuno. Of course. diba beyond na siya sa supervision sa province. Ngano gibutang nako ang election nga plebiscite man unta ni sa creation sa Davao Occidental? Because what was applied by the court was the provision in the Constitution (Sec. peaceful. 2 Congress has already allowed the COMELEC. 2 Par. income requirement of 20M. There is no exception in the case of province. Court of Appeals involves a particular provision in the IRR which provides for exemption as to compliance of the land area requirement for province. you can’t undo the mandate of law. Thus. In the case of Province of Dinagat. Unya kay barangay election man to pag-Oct 28. it only needs to comply with the income requirement. and therefore. Creation of an LGU will require generally three criteria but there are certain LGUs where only two criteria are required. its inhabitants did not reach 250. Local Gov’t Law. it’s a sound policy to synchronize such activity with the regular elections of the barangay. because if it is independent component city unya i-convert into HUC. It was questioned. so duha ka reason: 1 Plenary power when it comes to conduct of the election. therefor. orderly and honest elections. kay under the LGC within 120 days. ang iya reasoning sa court dili na mu-apply kay ang ICC beyond naman daan supervision of the province. 2013. the constant there is income requirement. when it was really difficult or impossible to hold the election. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. You have the provinces of Davao del Sur and a new proposed Davao was supposedly created called Davao Occidental. Aguirre . pwede sad POLITICAL boundaries. Pero the moment it becomes HUC. October 23. balik ta sa plebiscite. However. Same ra gyapon. The COMELEC can postpone the holding of a Plebiscite (and election) to another date The COMELEC has “exclusive charge of the enforcement and administration of all relatives to the conduct of elections for the purpose of ensuring free. Mao bitaw Collection sa component city sa real property taxes dunay share ang province. either a)population of 250.1. dili generic upgrading.” The text and intent of Section 2(1) of Article IX(C) is to give COMELEC “all the necessary and incidental powers for it to achieve the objective of holding free. under the omnibus election code.000 and its land area did not also reach 2. this involves conversion. The law said August.000 inhabitants (not registered voters) OR b) land area of 2. So part siya sa territory sa province. ang province diay affected. So niingun ang COMELEC dili mi mu-hold ug plebiscite anang August kay duol na ang October. as expected. Second. The law. the power to postpone has already been delegated to the COMELEC by Congress via Omnibus election code. 2013) But the SC affirmed the plenary power of the COMELEC. ato lang i-synchronize sa barangay elections para maka-save ug resources. under the Omnibus Election Code. (such as force majeure. ang upgrading entire province man affected kay ma separated na daw siya politically. And therefore.km. The case of Navarro vs. GR No.So kana diay “substantial change of boundaries” dili lang na physical. scheduled the plebiscite 120 days from the signing of P-Noy. So based on the law fixed ang sched. 209185. to that extent directly affected gihapun ang mother province. etc. About 5 or 6 municipalities. wa may na change sa iyang physical territory. including Digos mulahi cla sa Davao del Sur.” (Cagas vs. in case of a province. it may not comply with the land area requirement if it consists of islands.) So it was difficult probably because of the gap between August to October. AND 2. which includes the IRA.000 sq. Pero nay political change. it needs to comply with the - 1. upgrading but be careful. Dba? Because CC man siya.

Mother Sanggunian’s REVIEW POWER:  Grounds: If by Sangguniang Panlalawigan: 1. LGC) For the veto power. CONSISTENT WITH CITY/MUN. But there is also the ground that it is prejudicial to public welfare. As a rule. As you know. in relation to Section 26. ULTRA VIRES (Sec. Upon review. 55. is still suitable for the purpose. It is therefore not an ultra vires ground. and to pursue expropriation would be needless expenditure of the people’s money. In this case. LGU’s and National Agencies (with Project Implementation Functions)  “Prior Consultation Before Implementation”: No project or program shall be implemented by government authorities unless the consultations in Sections 2(c) and 26 of the LGC and prior approval of the Sanggunian concerned obtained. and to pursue expropriation would be needless expenditure of the people’s money. there is a question as to the power to expropriate. 57. not ultra vires. Pano (2001) Section 27. & Public Int’l Law 30 . Application to the problem: If you apply this to the problem. (2%) I’m referring to the case of Moday vs. Local Gov’t Law. the reviewing Sanggunian does not say that the Municipality of Bulalakaw does not have the power to expropriate because Sec.2009 Bar The Municipality of Bulalakaw. There is a rule that requires prior consultation and prior approval of the Sanggunian for projects that have to be implemented by the National Government in the locality. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. there is still the ground of being ultra vires. Leyte passed Ordinance No. the Sangguniang Panlalawigan’s reason is rather a political question: because the municipality has an existing freedom park which. So. Compare with VETO POWER OF Local Chief Executive  Grounds: 1. But it is important for you to know the extent of the reviewing power of another Sanggunian. However. It is about wisdom. ORDINANCES (Sec. the authority of the Sangguniang Panlalawigan is not without limitation. in other words. involving lotto. PREJUDICIAL TO PUBLIC WELFARE (Sec. LGC) [2009 Bar] If by Sangguniang Panlungsod/Bayan: 1. LGC). and appropriating the funds needed therefor. The idea here is coordination. There are three requirements here: 1 Consultation 2 Prior approval 3 Relocation site if there are settlers that will be affected. On the contrary. 19 of the LGC grants such power to all LGUs. 56(c). LGC) But. there is one kind of resolution which can be reviewed: one approving a local development program. component cities and municipalities are subject to the supervision of the province. the grounds under Sec. this is a very broad ground to veto an ordinance. Jr. like PCSO. 1234. If you come to think of it. In the problem. though smaller in size. One way of realizing this relationship of supervision is by asking component units to submit their ordinances and resolutions approving a local development program. CONSISTENT WITH LAW 2. I don’t know if the difference between these two provisions is deliberate. authorizing the expropriation of two parcels of land situated in the poblacion as the site of a freedom park. the Sanggunian Panlalawigan of Leyte disapproved the ordinance because the municipality has an existing freedom park which. Case in point is Lina vs Pano. Is the disapproval of the ordinance correct? Explain your answer. The power to expropriate is indeed a power that any LGU may exercise so therefore it is intra vires. The topic here is the extent of the review power of the Mother Sanggunian. provided that occupants affected shall be given relocation site (Sec. thus not a valid ground. LGC applies only to programs by the “national government” and not applicable to programs by “government owned or controlled corporations (GOCCs)”. though smaller in size. ULTRA VIRES 2. all ordinances are reviewable while resolutions are not. Lina. CA. 57 would still be considered ultra vires. It is limited is whether it is ultra vires or not. is still suitable for the purpose. considerations outside of that are beyond the power of the reviewing Sanggunian. 27. vs.

and relocation site if there are settlers who will be affected. or incidental for its efficient and effective governance. not applicable (Lina vs Pano) b The program belongs to any of these: (1) may cause pollution. (2) may bring about climatic change. Local Gov’t Law. So. (2) may bring about climatic change. General Welfare. (5) may eradicate certain animal or plant species from the face of the planet. Every local government unit shall exercise the powers expressly granted. 27 applies only to programs by the National Government. Sec. LOCAL POLICE POWER Local Police Power  THE “GENERAL WELFARE CLAUSE”: Sec. those necessarily implied therefrom. basically these are the steps in determining whether a national government’s project in the locality is valid. Well-settled na. (4) may result in loss of crop land. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. appropriate. The projects/programs mentioned in Sec. Requisites for Validity of Local Police Power Tatel vs. Paras where an ordinance prohibited the operation of night clubs) 5. LGU’s can only regulate but not grant operation of jai- alai. Asked many times in the bar. the lgu’s should also prohibit it because they are mandated to comply with mandatory statutes. 16. Why? First. Sec. the most that the govt can do is regulate it and not prohibit it. 1 Three requirements: Consultation. Prior approval by the Sanggunian. 26 and 27. or forest cover. and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. not unfair or oppressive (also a constitutional requirement) 3. Number one: national government project. This doctrine is already affirmed thrice. Number two: Lotto is not one of those mentioned in the slides in sec 26 and 27. (3) may cause the depletion of non-renewable resources. But the SC said that Sec. of Virac: 1. (5) may eradicate certain animal or plant species from the face of the planet. Mun. Lawful means. not for LGU’s. In this case. Thus if GOCC. not prohibit. not partial or discriminatory (also a constitutional requirement) 4. as well as powers necessary. 2 2 conditions are met: a National government program to be implemented in the locality . 27 is not applicable. to grant “franchises” for operation of jai-alai. how many levels will your answer be? At least 2.) (See: Balacuit case where an ordinance penalized movie houses that charged full payment for admission of children between 7-12) xxx also applies “lawful subject” and “lawful means” requirements! Most important requisite is number 4. (3) may cause the depletion of non-renewable resources. 27 would only apply to these areas or kinds of projects (see enumeration above). Pacquing) where it was found out that the “national policy”was for National Government. 27 should be interpreted to mean projects/programs whose effects are among those enumerated in Secs. If there is none. which is not the National government but rather a GOCC. If you are asked a problem like in Lina. must not contravene the Constitution AND statute 2. those that: (1) may cause pollution. range-land. 6. to wit. But if the trade had been declared illegal by law. (see also Province of Laguna case (2005) and Bangus Fry Fisherfolk vs. but only regulate lawful trade (see: De la Cruz vs. and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Lanzanas (2xxx)) The argument was that there was no prior consultation nor prior approval of the Sanggunian before lotto may be allowed in their locality. Ang PAGCOR not part of national government kay GOCC siya. lawful subject ra jud nah ang local police power. Second. not unreasonable (also a constitutional reqt. range-land. the lotto was a program of PAGCOR. consistent with public policy (because of the requirements of valid delegation of legislative power) see: (Lim vs. and those which are essential to the promotion of the general welfare. & Public Int’l Law 31 . (4) may result in loss of crop land. You have to identify first if there is a law declaring a trade or business illegal. or forest cover.

You apply only the strict scrutiny test or the doctrine of strict scrutiny when they relate to fundamental freedom. it becomes the duty of the state or government to prove that there is a compelling state interest to justify the regulation. suppress or prevent the concealment of prohibited or unlawful xxxx. Unsa may mga non-high valued freedom for example? Your right to ride a motorcycle with or without helmet. you apply the rational relationship test. Pero kung imong own right to life. St. Scholastica College.S. diba naa man nay design ang mga fences? Buang jud ning styla. So mao na. tanaw nato ngara busloton bya na atong short usahay sa balay. This is the case. aw mahibawan na nuon nga red! Hain naman nang privacy nato ana laliman kang 1 meter nga concrete naa 100% solid unya kung mulapas na sa 1 meter. [Fernando vs. religion. Unya ang presumption of constitutionality continues to apply. Ang twin requirement niya kay it should not unduly burden. the focus is on the presence of compelling. 161107. No. 80% see thru pa gyud! Magbutang kag lungag lungag. na hala. Rational Relationship Test and Strict Scrutiny. Meaning.. So privacy sya. Rational Relationship Test 2.” The objective of the ordinance is “to discourage. & Public Int’l Law 32 . Compelling state interest ang girequire. So the presumption of constitutionality will not apply. Number 1. rather than substantial. mejo sayop gamay ang Supreme Court kay di man na all the time nga mag apply kag strict scrutiny. Valid ang pag apply sa strict scrutiny test because privacy man pud gud na sa mga establishments especially mga residence and houses. Declared invalid by the Supreme Court. proving its unconstitutionality. presumption of constitutionality will not apply. Applying strict scrutiny. Pero not fundamental gani. Governmental interest is extensively examined and the availability of less restrictive measures is considered. In the U. Problem The City of Marikina passed an ordinance which regulates the construction of fence as follows: “The standard height of fences or walls allowed under this ordinance are as follows: (1) Fences in the front yard – shall be no more than one (1) meter in height. Second. Dapat giclarify na sa Supreme Court. Because the constitutional law precepts. But is that the least intrusive means? Overbreadth doctrine in the White Light Corporation case. to justify the regulation of the freedom. Hain naman atong privacy ani. but a valid or legitimate governmental purpose. privacy. governmental interest and on the absence of less restrictive means for achieving that interest. Ug gusto ka mamatay. St. niintroduce nasad ug concepts sa constitutional law. Mayra ug nothing. kay of course this is a constitutional law precept. law or ordinances are upheld if they rationally further a legitimate governmental interest. ila man nang gi dichotomize when to apply rational test and when to apply strict scrutiny test. In any case. doctrine of strict scrutiny. Lawful subject: the activity is a valid subject of regulation because it affects the public and not just a private group. because right to life. the government is mandated to establish a compelling state interest. in relation to. di na na sya high value. Two (2) Tests are usually applied: 1. Makitan nyang unsay color sa atong jockey. high value. Local Gov’t Law. G. But for non-fundamental non-high valued freedom. Ang requirement lang is not compelling state interest. press. unsaon kaha na pagkwinta sa building official ani no? Matik matikon siguro niya kun pila kabuok lungag. you apply the doctrine of strict scrutiny which means instead of the one alleging the unconstitutionality. Strict Scrutiny Test Using the rational basis examination. at least eighty percent (80%) see-thru. Kung fundamental freedom. Lawful means: the means employed is reasonably necessary for the accomplishment of the purpose of the law AND not unduly oppressive upon individuals. dili na sya high value. if that is the situation. the moment there is an allegation of a suppression of a high valued freedom. In this case. Fences in excess of one (1) meter shall be of an fence type.R. Which means two things. Scholastica’s College. Pero right to life sa tanan. yatig magduwa tag pingpong sa atong lawn nya mag short lang tag busloton? 1 meter gud. Unsa man nang lawful means? It will reasonably accomplish the purpose of the law. borrowed man na from the United States. makita ta anang 1 meter oi. Grabi naman sad. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. 2013] Pero ato ato lang.The other requisites are included in the lawful subject and lawful means requirements. and other related high valued freedom. Pero kung naa. kay obvious unsay color. speech. you don’t apply the strict scrutiny. or it should not be unduly oppressive upon individuals. March 12.” Is the ordinance valid? Problem above is the Fernando case. Fernando vs. okay. it depends on the freedom involved. high valued freedom sya. mao kuno na ato gamiton when we analyse cases. Will the means employed accomplish the objective of the law? Yes it will. Two tests applied. Lakaw lakaw ka didto nyag nay nagpingpong.

obnoxious odor is emitted causing dizziness among residents in Barangay La Paz. you have a specific provision in the PAB (Philippine adjudication board) resolution 1-C series of 1997. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. it becomes a nuisance so per accidens. Note: Rule III. preventing. a nuisance due to the manner of its operation. Occasionally. So if imong I dispose improperly. Kung strict scrutiny. local government units shall have the power to abate a nuisance within their respective area. less restrictive means. Q: Industrial waste. situation or use is not such. so per accidens siya. fluid substance. So kung nuisance per se siya. Kani siya kai foul odor. Because ni cater man sila sa public. Because here. mao na sya. It is a judicial function. which categorically states that “Except where such would constitute a pollution case. per accidens. the governmental purpose is lawful. It bears stressing. But it cannot declare a specific thing as nuisance per se. So you can argue along that line class. That’s the ruling of the court. Reasonably necessary to accomplish the purpose of the law? It may be necessary. nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which it its nature. pero kung activity that is not considered by its very nature as nuisance. whenever fluid substances are released through a nearby creek. or abating noise and other forms of nuisance. On complaint of the Punong Barangay. Both disco pub owners and the hospitality girls assailed the validity of the ordinance for being violative of their constitutional rights to privacy and to freely choose a calling or business. per se or per accidents). or abating noise and other forms of nuisance. working in disco pub. (2 kinds. The sanggunian cannot consider by mere resolution an act nuisance. Q: Unsa manang mga nuisance per se? A: dogs who have rabies. Kana if you apply Section 447 of the LGC. dili pwede ang sanggunian. 2006) Under Section 447(a)(3)(i) of RA No. Ilang services. Familiar or dili? A Sanggunian cannot declare an act nuisance. however. Ari kang lawful means. Kahinumdum pa mo class ako a ning gi ask sa inyo? Or maybe e discuss ko na ining abot nato sa powers of the Sanggunian. INC. Is the ordinance valid? Explain. that the Sangguinan cannot declare a particular thing as a nuisance per se and order its condemnation. Decide with reasons. An invitation to attend a hearing called by the Sangguniang Panlungsod was also declined by the President of ABC. prompting ABC to file a petition for injunction before the Regional Trial Court. & Public Int’l Law 33 . 7160. Unsa man ni sila? Hospitality girls. VS. the Sangguniang Panlungsod is empowered to enact ordinances declaring. And the local government unit can do that because that is per se. Series of 1997 as amended. Iya gi apply ang rational basis examination. Way problemang lawful subject. Pero kung pollution. the City Mayor wrote ABC demanding that it abate the nuisance. 2. So in 2010 bar. this is the case of AC Enterprises. PAB. This one is another police power question: 2010 Bar ABC operates an industrial waste processing plant within Laoag City.So correct na sya diri no. Section IV of PAB Resolution 1-C. arguing that the city government did not have any power to abate the alleged nuisance. So pwede na i-abate even without a specific court order. But is it reasonable? Is there a crime if you are tested positive of AIDS? AIDS doesn’t matter. It does not have the power to find. Kai dili mana siya nuisance per se. Sa nuisance per se. pwede na nimo answer answeran: 2010 Bar The Sangguniang Panglungsod of Pasay City passed an ordinance requiring all disco pub owners to have all their hospitality girls tested for the AIDS virus. Local Gov’t Law. So you can argue along that line. The city government thereupon issued a cease and desist order to stop the operations of the plant. local government units shall have the power to abate nuisance within their respective areas…” There is this power to enact ordinances declaring. that question cannot be determined by a mere resolution of the Sangguniang Bayan. (5%) So what do you think is the objective of the ordinance? Public health? General welfare? The objective is lawful. as a fact. FRABELLE PROPERTIES CORPORATION (NOV. This was ignored. only the court can abate. Those things must be determined and resolved in the ordinary courts of law. If a thing be in fact. It’s I think for me noh unduly oppressive upon individuals. that a particular thing is a nuisance when such thing is not a nuisance per se. That in except in pollution cases. Depende kun napa bay mga hidden facts diha. AC ENTERPRISES. Is that a lawful subject of regulation? Yes. per se or per accidens? A: Per accidens kai di mana siya nuisance kung imong ma dispose properly. preventing.

may technical description siya. it is primarily regulation. it has been held that the municipality may exercise police power in the protection of the territory …to insure cleanliness. A: local police power ordinances take effect only within its territory. v. discretionary! A mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence. why do we need to require territory under the code if we create a local government unit? It should be described with its metes and bounds. And because it (business permit) is regulatory in character. then it is discretionary as well.Kung pollution. Villafor (2006) where a determination was made on the nature of the power of a mayor to grant business permits under the Local Government Code. Because a business permit diay dili na taxation. But in many cases. But there are exceptions. Exercise of Police Power. a mayor cannot be compelled by mandamus to issue a business permit. will you issue a writ of mandamus? Q: opening. Hon. the municipality is granted police power beyond its boundaries. And the exercise of police power is discretionary. So a mayor in this case of Roble Arrastre v. If you are the judge. naa tay pollution adjudication board. Q: what makes opening and closing a road discretionary. So business permit. but it is regulation.S. So generally. and in the areas of preservation and public health. LOCAL EMINENT DOMAIN POWER There are 3 aspects which are justiciable - What may be reviewed by the Courts: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. In the example. & Public Int’l Law 34 . police power also. So important ato kai discretionary siya kai police power siya. This was the pronouncement of this Court in Roble Arrastre. mandatory or discretionary? A: Favis case. power of LGUs are generally territorial. One final point for local police power is this - Is local police power subject to territorial limitations? Discussion raba nato. I took this from 3 U. Inc. The idea that ordinances. Take note of that. closing of road. it is police power. So mandamus will not lie if the function is not ministerial. Problem Talisay City Vendors Association (TCVA) filed a case of mandamus compelling the City Government of Talisay to close a road near the Talisay City Public Market from vehicular traffic contending that the road is too small for vehicles. So if it is discretionary and therefore not ministerial. so there is an ordinance that can extend outside the territorial boundaries of the City – important rule. and prevent any business and conduct likely to corrupt the fountain of water supply for the city. Thus. such that vehicular traffic prevents small vendors from selling in the sidewalk. that is an exercise of police power. for the preservation of the public health especially. the municipality is granted police power beyond its boundaries. not ministerial and therefore not subject to mandamus? A: (dapat ang reason i-provide sa imong answer) if you close or open a road. discretionary in nature. (Citations omitted) In another case. especially four-wheeled vehicles. cases supporting the idea that corporation boundaries mark the limit for the exercise of police power of the municipality. Local Gov’t Law. Indeed the corporation boundaries. epidemic. closure so na combine ang opening and closing road. Territorial Limitations The corporation boundaries usually mark the limit for the exercise of the police power of the municipality. mandamus will not lie. Although naay fees. The same principle was applied in a case allowing a municipal corporation to establish a quarantine beyond municipal boundaries and thus protect the citizens from epidemic of any contagious or infections disease. diba? It is discretionary. Villaflor. But in many instances.

33 of xxx IRR) 3. Sec. Courts can inquire into the genuine necessity. An ordinance is enacted by the local legislative council authorizing the local chief executive. plaza. playgrounds. construction of public buildings. 4. The Court defines what constitutes a genuine necessity for public use… In dela Paz Masikip. Issue is a political question if the expropriation was done by the National Government where the law for example. Courts cannot override the wisdom if what is involved is necessity if Congress exercises expropriation through their original jurisdiction. 19. What constitutes public use purpose? Examples of Public use: socialized housing. City of Pasig case) 1. Because even if the maintenance of a public market. Why is that so? We distinguish between expropriation by the National Government and those by the LGUs.Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation. establishment of cemeteries. has judged the purpose as public and there is therefore need to initiate expropriation. citing Bernas] So the issue of genuine necessity is justiciable. [Dela Paz Masikip case. etc. The Court struck down the LGU’s power to do that since they said that there was no genuine necessity. these are still for public purpose when talking of expropriation. in behalf of the local government unit. The Court explained what was genuine necessity for public use for Local Government. Congress. Congress decides what is genuine necessity. There is payment of just compensation. LGC and Jesus is Lord Christian School vs. or for the benefit of the poor and the landless. and (c) the public use character of the purpose of the taking. The lot owners challenged the purpose of the expropriation. Does the expropriation have a valid purpose? “Genuine Necessity”. such taking cannot be considered to be for public use. 2014} USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. there is a sports facility near a private subdivision. It is NOT a political question. construction or extension of public roads or streets. (b) the necessity of the taking. 2. but for National Government. are proprietary functions. 2011 Bar The city government filed a complaint for expropriation of 10 lots to build a recreational complex for the members of the homeowners’ association of Sitio Sto. & Public Int’l Law 35 . What is common among these? Proprietary functions. Article III of the Constitution. establishment of parks. as required under Section 9. A valid and definite offer has been previously made to the owner of the property sought to be expropriated. (cf. the most populated residential compound in the city. If the expropriation is done by the LGU. exercising its power as such. Do not get confused with the public purpose requirement of expropriation and the Governmental and Proprietary functions of the LGUs. or welfare. Local Eminent Domain Specific Requirements: (Sec. notwithstanding that there is such a recreational facility only a short distance away. {August 30. the residents of the Subdivision wanted their LGU to expropriate the sports facility. For public use. Local Gov’t Law. but said offer was not accepted. purpose. required!  De la Paz Masikip vs. the Court will always have the power to inquire if the delegate has exercised its power within the delegated authority. City of Pasig (2006): Where the taking…is done for the benefit of a small community which seeks to have its own sports and recreational facility. construction of artisan wells. and other pertinent laws. delegate. to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. Tomas.

etc. a contract of sale shall be executed and payment forthwith made. 1998 (in re: expropriation for urban development and housing) 5. I would just like to make mention of #4. Kung naa pa. 10 of RA 7279. (3) And of course there is proof that the offer is rejected. It’s not a valid and definite offer if the price is not even mentioned in terms of payment. vs. It shall not only be in writing. A valid and definite offer has been previously made to the owner of the property sought to be expropriated. and then obviously you have just compensation. This is not found in the requirements for the exercise of Eminent Domain by the National Government. whoever is registered then the offer made to him. (2) The offer can be given to the registered owner. (c) If the owner or owners are willing to sell their property but at a price higher than that offered to them. But as you have already learned.(a) The offer to buy private property for public use or purpose shall be in writing. The rule that if a property expropriated is agricultural. Offer to Buy and Contract of Sale . The problem with this is the law on conversion might be relevant. the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. you have specific requirements: ordinance. the offer must be made to him/her. In fact. cont’d … Add: Filstream International. abandoned. It is clear in the implementing rules - Meaning of “Valid and Definite Offer” ARTICLE 35. or changed…and then the price offered. As you have already learned. G. RA 7279) Making private lands as the last option: The complaint should also specify that there are no other lands that can be acquired for the housing project. January 23. a contract of sale shall be drawn and executed. (b) If the owner accepts the offer in its entirety. the SC was very exacting that the requirements of valid and definite offer as found in our Obligations and Contracts should be complied with. because it is possible that the registered owner is really not the owner. …When an agreement is reached by the parties. CA: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Expropriation shall be resorted to only when other modes of acquisition have been exhausted (Sec. 10. Inc. If you look at Sec. but it shall also specify the property and the reason for its acquisition…the reason shall become relevant later on if the reason is either not accomplished. the reasons for its acquisition. But you cannot require the LGU to go beyond what appears in the title. then that will be fatal to the cause of action of the LGU. once it is expropriated. this is peculiar to Local Government Units expropriating. So. this (court decision) doesn’t matter. So it should be specific as to price. as well as the area. but said offer was not accepted. So. And so is it required that the LGU concerned should first get the approval of the DAR before expropriation will be considered a valid act on the part of the LGU? Province of Camarines Sur vs. 4. 125218. and the price offered. the general requirements for the exercise of Local Eminent Domain also have to be complied with. CA and City of Manila. Priorities in the acquisition of land shall be complied with as mandated by RA 7279 (Urban Development and Housing Act of 1992) (meaning: private lands should be last in the selection of land!) (Sec. the other requirement is that expropriation shall be resorted to only when other modes of acquisition have been exhausted. So that is how the Implementing Rules narrated the requirements for a valid and definite offer. it will be converted into other use. And then there are also these requirements on more specifically in cases of urban housing. low-cost housing. public use. even if later on a court decision will say another person actually owns it.There are specific requirements for the exercise of Local Eminent Domain (see previous slide). And then also. there are other ways of acquiring the property. Under Sec. as to area. 9 of RA 7279) 6. & Public Int’l Law 36 . Whoever is the registered owner as appearing in the title.R. 19. we have 2 additional requirements: Local Eminent Domain. It shall specify the property sought to be acquired. 3 components here: (1) There must be a prior valid and definite offer. It doesn’t have to be the actual owner. Local Gov’t Law.

(Once expropriated. As a necessary corollary. CA says that there is no law that requires a prior approval to be attained from DAR before this can be done. such rule cannot prevail over RA 7160. it would appear that the FMV of the property shall be based on the FMV of property at the time of the taking or at the time of the filing of complaint. it will be governed by the Rules of Court.) [BAR] JUST COMPENSATION Now on the matter of determining just compensation. acquires unrestricted ownership for a fee simple title to the covered land. The case of Province of Camarines Sur vs. subject of course to the return. or the filing of the complaint precedes the taking. 2011) If the genuine public necessity of expropriation of private land ceases or disappears. Republic (Feb. So if it is the Rules of Court. City of Cebu vs. determination of public use is “legislative”. Lim (2005) The landowner is entitled to recover possession of the property expropriated if the government fails to fully pay just compensation to the owner within a period of five (5) years from the finality of the judgment in an expropriation proceeding. Neither does the CARL provide that the power of the LGU to expropriate agricultural lands is subject to the control of the DAR. The notion that the government. whichever came first) vs. 9. What happens if there is no payment of just compensation. Local Gov’t Law.) But. Republic (Feb. when do you reckon the value of the property? In a situation where the taking precedes the filing of the complaint. then the expropriator becomes an absolute owner of the property. Republic. Anunciacion Vda. thru the DAR). the Code is specific: it is at the time of the taking. agricultural land becomes either residential. After 5 years from finality of judgment if there is no payment. of the just compensation received. or industrial. Anunciacion Vda. In fact this is a landmark case. One is the case of Anunciacion Vda. The same legal situation should hold if the government devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. a the expropriator abandons the original purpose b expropriator will not pursue that public purpose but it will be devoted to another public purpose Is there a remedy available to the landowner? This is important because before. at the very least. if the expropriator fails to pay? What is the remedy available to the landowner? Republic vs. once the purpose is terminated or peremptorily abandoned.The LGC does not require that LGU’s must first secure the approval of the Department of Agrarian Reform (DAR) for conversion of lands from agricultural to non-agricultural before they can institute expropriation proceedings. which is a substantive law. time of taking whichever came first). 9. meaning without condition. if it is an expropriation by a Local Government Unit. Dedamo (2002)  While Sec. if he so desires. 2011). De Ouano vs.g. 4 of Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation (or. LGC: at the time of “taking”. via expropriation proceedings. then there is no more cogent point for the government’s retention of the expropriated land. Municipality of Cabanatuan where the SC through an American judge ruled that the moment the expropriator obtains the expropriated property in fee simple. De Ouano vs. & Public Int’l Law 37 . the SC said that the landowner will be entitled to repossess the property. whichever came first. Besides. (Because the earlier value is cheaper.  Sec. De Ouano v. is no longer tenable. may seek reversion (return). not “executive” (e. This means that the expropriator can use the property either for the public purpose for which it was originally intended or not even use it all. then the former owner. cont’d The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. commercial. Rule 67 (time of filing of complaint or taking. 4. The other possible situation is that what if after expropriation. If we talk about expropriation by the National Government. there was a 1921 case of Fery v. meaning abandon the original purpose. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. SC however modified that ruling in at least 2 cases.

Municipality of Cabanatuan” (1921): “The expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed. Earlier in 2010 the SC mentioned of Fery v. hence fee simple. Lozada. Lozada. So. the just compensation will be returned.” In Vda. The Sanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? (2%) Answers: a Go back to the elements.Of course. Unlike in the case of Fery that there used to be a distinction as to what was the decision of the court in the expropriation proceeding: whether was it conditioned or not? If conditioned then it was not received in fee simple but if it was a silent decision on the expropriation then the property was absolutely acquired by the expropriator. The case was decided under the auspices of American jurisprudence. even if it is still public. this is the question in 2009 - 2009 Bar Filipinas Computer Corporation (FCC). failing which. but the City delays payment of the amount determined by the court as just compensation. the City filed a complaint for eminent domain against FCC. Municipality of Cabanatuan that there was a need to revisit that Fery case. But FCC refused to sell the lot. abandoned. two reasons were given: 1 Apparently. But now in 2010 and 2011. 1973 and 1987 Constitution were passed and have been consistent that any taking of private property must be for public use and there must be just compensation. (B) Zoning power. if the latter desires to reacquire the same. 2010 and 2011. De Anunsacion case or MCIAA v. If not. To remedy the city’s acute housing shortage. 2 important cases. (5%) (b) If the Court grants the City’s prayer for expropriation. (a) If FCC hires you as lawyer. MCIAA vs. owns a sprawling part in a 5. it exercises its: (A) Eminent domain power. but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot. SC said that at that time. In this one there is a need for a new petition for the new public purpose. CORPORATE POWERS USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. 5 years c Vda. Hard pressed to find a suitable property to house its homeless residents. if he so desires. & Public Int’l Law 38 . So that was an option in 2011. it should file another petition for the new purpose. Lim. De Anunsacion case. (2%) (c) Suppose the expropriation succeeds. Sr. (D) Taxing power. 2011 Bar When the State requires private cemeteries to reserve 10% of their lots for burial of the poor. If not then it is incumbent upon the expropriator to return the said property to the private owner. compounded by a burgeoning population. can FCC recover the property from Pasig City? Explain. (C) Police power. (2010) Reversing “Fery vs. 1935. Even before the 2010 and 2011 cases. 1921 2 Since then. what defense or defenses would you set up in order to resist the expropriation of the property? Explain. it is then incumbent upon the expropriator to return the said property to its private owner. Very good subject of bar exam question this year. a local manufacturer of computers and computer parts.000-square meter lot in Pasig City. Local Gov’t Law. Was there a prior valid and definite offer? Was it offered to the registered owner? Was it rejected? Was the requirement on public purpose complied with? b Republic v. the Sangguniang Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. So that public purpose requirement is a condition. that idea of acquisition in fee simple won’t apply today because any expropriation is always burdened with public purpose requirement and that is the condition. the SC justices who resolved it were Americans.

however. March 28.R. The Mayor also thought of establishing in the site a new City Hall and a “One-Stop Government Center” where all local government offices will be located. A: There are two norms which you can actually use. No. Local Gov’t Law. Two (2) norms that may be used: The capacity in which property is held is. Purpose for which the property is acquired or held.) The Civil Code classification is embodied in Arts. etc… The third test. patrimonial. one is through the Civil Code and the other is the general norm on the law of municipal corporations. 423 of NCC Q: But how to tell if it is governmental or proprietary. it is enough that the property be held and devoted for governmental purposes like public administration. however. Art. Aware that submerged and foreshore lands are public lands. on how to assist Filinvest in its business plan and how to realize the Mayor’s plan of a new City Hall and a one-stop government center. G. because even if in the name of LGU. a general law. is just a general norm under the law on Municipal Corporation. Unsa may kalahian sa foreshore ug submerged? Foreshore sa dagat. Art. It is up to the SC which of the norms to apply but most likely it would be the more specific provision under the civil code. How acquired? (If private fund was used. governmental) C. cont’d… How do you know whether the property is “public” or “patrimonial”? Some Tests: A. cont’d… “to acquire and convey real and personal property” LGU’s properties may be held in: (1) Governmental capacity (property for public use). Filinvest is interested in establishing a commercial and industrial zone in Mandaue City where it can build malls. bridges. L-24440.properties of local government units may be held in governmental or proprietary capacity. NCC (road.) B. first you have to distinguish between submerged and foreshore lands. (3%) A: When it comes to immunity from suit principle. Corporate Powers. the right to sue and be sued. The municipality files a motion to dismiss the complaint. 1968. One is the Local Government Code of 1991 itself. How will you advise the Mayor? A: The law on reclamation mentions that. or (2) Proprietary capacity (patrimonial property) [Rabuco vs. the Mayor is now asking you. ports. sports facilities. There are two norms that may be used in classifying properties as public or private: 1)that of the Civil Code. we go by the purpose test. etc. This is related to your property law . Note: “Title” does not matter. about 200 hectares.2009 Bar The Municipality of Pinatukdao is sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. the City Attorney. and 2) that obtaining under the Law of Municipal Corporations. 423 and 424. City of Zamboanga. if in reality it came from the national government for public purpose. the law allows local government units to reclaim only foreshore lands. Why? If we are talking about reclamation of public lands. 424. under section 21. Villegas]. those are properties declared as belonging to public dominion. dependent on the use to which it is intended and devoted. It is no longer an issue whether a municipality can be sued. of submerged and foreshore lands. a realty firm. (Province of Zamboanga del Norte vs. public education. & Public Int’l Law 39 . Problem Filinvest. public health. invoking state immunity from suit. hotels. visited the Office of the Mayor of Mandaue City. to be considered public. Resolve the motion with reasons. consists. The site. LGU’s properties. The National Government of course is allowed to reclaim even submerged lands. submerged could USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. and other commercial establishments. Article 424. Under the norms obtaining in the law on municipal corporations. It also found in every charter of the local government units. Roads. if public fund. one way of granting or giving consent to be sued is express consent and there are two statutes or laws that expressly grant that consent to be sued. then it is held “in trust” for the State.

if the contract involves the expenditure of public funds. pa approve ang plan first sa PRA and then the final approval would be NEDA. you secure it from the National Housing Authority. Requisites for Validity of Contracts entered into by LGU’s A. you need to get a permit. it was transferred to Philippine Reclamation Authority (PRA). Unya only Municipalities and chartered cities ang allowed. Before the physical reclamation. Now the process would be. sa NEDA na. 1987 Admin. This is also true with respect to foreshore lands. This is confirmed in the case of Land Bank vs. an original certificate of title. Chapter 8. The moment the title is transferred to the LGU it ceases to be a public land and now a private land. Subtitle B. ???) and now subject to the approval of NEDA. we now proceed to the physical reclamation of the foreshore land. In accordance with Secs. NEDA is composed of the President as the chairman. Book V. And then the PRA has 2 options. Public Estates Authority (2003)]  R. there will be a title to be issued. after the actual reclamation. C. The contract must conform with the formal requisites of written contracts prescribed by law. 1899 authorized municipalities and chartered cities to reclaim foreshore lands. of 2013 ang final approval. But all reclamation projects are administered and under the authority of the PRA (formerly. Code. siya ang mag. the same is ultra vires and is USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. even submerged sa water. or barangay hall. So pwedeng mg. Local Gov’t Law. In 2006. Cacayuran. Nov. or 2 He can enter into a joint venture with private person first like in the case of Filinvest. Procedure There are 2 options available on the part of the proponent of the project. But if it is B and D (prior authorization and the formal requisites) it is ratifiable. What happens if there is non-compliance? As a rule. The DENR with then issue a special patent to the PRA and then the PRA will then ask for reimbursement kay public land pa man siya. After all the requirements are complied with and the fees are paid.reclaim ang foreshore land at its own expense. 46 and 47. [Chavez vs.reimburse ang nag.be anywhere else. Reclaimed Properties  Submerged lands are properties of public dominion. there must be a prior authorization by the Sanggunian concerned. and a legible copy of the contract shall be posted at a conspicuous place in the provincial capitol or the city. And when it becomes a reclaimed property. & Public Int’l Law 40 . it is only when the submerged and foreshore lands are actually “reclaimed” that they become alienable lands of public domain which can now be disposed of in accordance with law. then it be disposed of. No. dili na sa PRA. (Sections 2 and 3. limited only to foreshore lands. absolutely inalienable and outside the commerce of man.develop. and actual appropriation and a certificate of availability of funds) the contract is null and void. Pursuant to Section 22(c) of the Local Government Code. Article XII of the 1987 Constitution)  Hence.reclaim ang National government even inland. Either bayran niya through a reclaimed land. when the contract is entered into without compliance with A and C (power. Mao nang gitawag na patrimonial upo reclamation. a 2013 case. there should be an actual appropriation and a certificate of availability of funds by the treasurer of the local government unit (Except in the case of a contract for supplies to be carried in stock) D. Pero ang function sa PRA mao ra gihapon. Effects of Non-compliance with Requisites When a contract is entered into without compliance with (A) and (C) requisites. Just last year. which is always the case.administer sa reclamation. i. If Local government. The local government unit must have the power to enter into the particular contract. 1 Pwede niya i. B. In the past. municipal. Therefore not subject to any ratification.A.

there must be an actual appropriation and certificate of availability of funds. it is not what is required in the code. NCC: subsidiary liability of LGU for liability of local police force in re: refusal or failure to render aid or protection to any person in case of danger to life or property  Art.g. Is the City of Cebu liable for the tort committed by its employee? San Fernando La Union vs Firme case. while to the latter belongs those which (a) are entered into by the improper department. no distinction if municipal or national. And a special agent is one who performs a function not pertaining to his office. imong argument would be not liable pero Article 24 no distinction. Their families filed a complaint for damages against Joseph who in turn filed a third party complaint against the City of Cebu and Lauro. Two (2) Kinds of Ultra Vires Acts: An act which is outside of the municipality’s jurisdiction is considered as a void ultra vires act. G. SRP. Nigawas nas 2011 bar about damages. Section 24 of the LGC did not provide a distinction. (Land Bank vs. 2189. As you know. so it is governmental therefore. To the former belongs municipal contracts which (a) are entered into beyond the express. 3 passengers of the jeepney died.null and void. board. Daghan national road.. while an act attended only by an irregularity but remains within the municipality’s power is considered as an ultra vires act subject to ratification and/or validation. We are assuming here that Lauro is a regular employee. LGC: LGU’s not exempt from liability for death or injury to persons or damage to property. however. if you look at the LGC. The stage. Ratification of defective municipal contracts is possible only when there is non-compliance with (B) and (D) requirements.g. implied or inherent powers of the LGU. 2011 Bar A collision occurred involving a passenger jeepney driven by Leonardo. Lauro was on his way to get a load of sand for the repair of road along Fuente Street. a cargo truck driven by Joseph. governmental siya because it was delivery of and repair of roads. Basta lang within territorial jurisdiction of the LGU. and (b) do not comply with the substantive requirements of law e. collapsed causing serious physical injuries to the participants of the play. The government already consents to be held liable if the damage is caused by a special agent. Usually sa bar counter argument kay national road. and (b) do not comply with the formal requirements of a written contract e. Liability for Damages  Art. No. Niingon pa gyud ang Art 24 nga ang officers ug LGU kay not exempt from liability arising out of negligence of employees. But the moment these national roads traverse a locality then it is subject to control and supervision in regards to the maintenance of the public work. Such contract cannot be ratified or validated. 34. May the suit prosper? If yes. As a result of the collision. NCC: liability of LGU’s for defective condition of roads and other public works under LGU’s control and supervision which results to (a) death and (b) injuries to persons. as elucidated in Meritt v Government of the Philippine Islands. officer of agent. Cacayuran. 191667. 24. Ratification may either be express or implied. N. when expenditure of public funds is to be made. Statute of Frauds. the city or municipal engineer has jurisdiction in regard to the maintenance of the public works. and a dump truck driven by Lauro but owned by the City of Cebu. North reclamation road is also a national road. So my distinction was to give the precepts under the San Fernando La Union Case. Ang pag improve kay duty sa DPWH but maintenance-repairs for example. & Public Int’l Law 41 .  Art. Cebu City. Local Gov’t Law. who should be held liable? USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. distinguish government from proprietary. 2013) LIABILITY FOR DAMAGES VII. April 17.R. This is to assume that Lauro is a regular employee kay kung special agent sad siya. Problem The Sangguniang Panlungsod (SP) of Carcar City ordered the construction of a wooden stage for a play during its fiesta celebration. The participants sued Carcar City and all its SP members for Damages. Bacalso is a national road.

The manner by which BP 22 is violated. Then the matter of residence. revertendi. (this time around. That is important. COMELEC (2006. whether moral turpitude or for a penalty of one year or more imprisonment. In the problem. Disqualifications (Sec. when the check is deposited within a period of 90 days.Fiesta celebration is proprietary is you apply San Fernando La Union. The animus animus also you know already. 2nd Question: Will your answer be the same if X had instead applied for and was granted probation? USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the nature of the offense is important). which is by the way presumed. LOCAL ELECTIVE OFFICIALS You know the ruling of the SC in Frivaldo already. So the members of the SP may not be held liable because the LG of Carcar possesses a distinct and separate personality. X was convicted of violation of B. Then. in other words. good examples of offenses involving moral turpitude include violation of BP 22 even if it is malum prohibitum. The question is who shall be held liable. “Within 2 years from service” The phrase “within two (2) years after serving sentence” should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. 22 (Bouncing Checks Law) and was sentenced to serve a maximum of six (6) months of imprisonment. A. This element. For what? Conjunctive word “or”. then the precept of separate and distinct personality of the corporation from the officials shall also be applied. X wants to run for Governor of the Province of Cebu in the 2016 elections. the basics. It is not definite that the decision is already final. Sentenced by final judgment for (1) offense involving moral turpitude or (2) offense punishable by one (1) year or more of imprisonment.P. naa na siya’y element of KNOWLEDGE of the INSUFFICIENCY OF FUNDS. [MORENO vs. you already know that domicile is synonymous with residence. according to the Supreme Court. he reacquires the right to hold public office and therefore be qualified again. that is tricky because he was only SENTENCED to serve a maximum of 6 months of imprisonment. So it’s either: 1 The offense involves moral turpitude only. disregard the nature of the offense) In the past. Separate and Distinct personality rule—since the LGU has a separate personality. But first. LGC) 1. Animus manendi. 40(a) of the Local Government Code. It is important to talk about this because there is an update. What is the implication here? This is important to highlight important qualifications. So you count two years after service of sentence because after that. Local Gov’t Law. do not include the one year because it is “or”. Blg. Mao nang layo kayo ang gap sa problem (2012 and 2016) because you still have to qualify pa man: 1 Whether the conviction is already final or not 2 Whether the sentence has already been served or not. the City or the members of the Sanggunian who ordered the construction of the wooden stage. the phrase within 2 years after service of sentence is applicable to BOTH disqualifications. or 2 The offense is punishable by one year or more than one year of imprisonment. The placing of comma (. Sentenced by final judgment. non revertendi. regardless of how long the penalty is (here. this is NOT a perpetual disqualification. Meaning. Will your answer be the same if X had instead applied for and was granted probation? 1st Question: Is X disqualified to run for local position by reason of his conviction? A: The relevant section is Section 14 on Disqualification. Is X disqualified to run for local position by reason of his conviction? B. 40. So in an OFFENSE INVOLVING MORAL TURPITUDE. & Public Int’l Law 42 . In 2012. within two years after service of sentence. The first disqualification of a local elective official is when he is SENTENCED BY FINAL JUDGMENT. En Banc)] SO you need to know when he served and finished serving his sentence because you count 2 years from the service of the sentence. Let’s take a look at the relevant provision.) in the provision means that the phrase modifies both parts of Sec. there is a presumption of knowledge of the insufficiency of funds makes the offense one of moral turpitude even if malum prohibitum.

A retained his American passport for his three trips to the Philippines before the elections. Because if you are removed from office as a result of an administrative case in 1990 or even 1991 kai ang code ni take effect Jan. 1. qualified again? Or should the Local government code yield to the revised penal code of perpetual disqualification to hold public office. you will be disqualified provided that the removal from office whether elective or appointive office as a result of an administrative case happened after the effectivity of the local government code of 1991. See also Cordora (2009) The other disqualifications are the removal office as result of an administrative case. Convicted by final judgment for violating the oath of allegiance to the Republic. should not likewise be disqualified from running for a local elective office because of the two-year period of ineligibility under Sec. Those with dual citizenship. questioned his candidacy because he was still using his American passport. If mu-appeal ka. 40(a) of the Local Government Code does not even begin to run. So if your probation is granted by the court? Are you still disqualified even if you availed of probation? The court said that disqualification disappears AFTER two years from service of sentence. GR No. 2013. took his oath of allegiance and renounced his foreign citizenship. Dual citizenship should be interpreted as dual allegiance. Effect of Probation: This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which. 205033. 1992. This is already qualified under Moreno vs COMELEC. Mercado: should be interpreted as “dual allegiance”). That is the effect. who wanted to run for Mayor in X Municipality. To answer this. 4. any “office” [see Osorio case 2004]). Does section 40 (a) still apply? That from 2 years of service of sentence of service. either as principal or accessory. According to the court in the Moreno case. A is a former natural born Filipino who became an American by naturalization. there is already conviction? Within the period to appeal. you can’t avail of probation. 2006) Under the code 2 years after the service of sentence. COMELEC. you file for probation instead of appealing. you USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Local Gov’t Law. & Public Int’l Law 43 . The new issue now is what if the kind of crime committed carries with it the accessory penalty of perpetual disqualification. Manzano ruling. So if you are a natural born Filipino who were naturalized and therefor lost Filipino citizenship by naturalization shall not be deemed to have lost their Philippine citizenship because under common wealth act no. cont’d… 2. Art. kung mu-apply ka for probation. should not be equated with service of sentence.A: Diba. 40 of the LGC and Perpetual Disqualification to Hold Public Office in RPC While Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence. Is A correct? In the above problem. 63 naturalization in a foreign country results in loss of Philippine citizenship. (Jalosjos vs. you are exempt from serving the sentence. (Moreno vs. Removed from office as a result of administrative case (prospective application only. the two years does not begin to run and Section 40 does not apply because if you are granted probation. It should not be considered as a disqualification on the fact of removal because the old code did not have this provision. we have the case of Jalosjos VS Comelec June 18. So only those who were removed from office administratively during the effectivity of the Local Government Code shall be disqualified by reason of that removal. A argued that his filing of certificate of candidacy effectively renounced his foreign citizenship pursuant to the Mercado vs. After 2003 and you are a natural born Filipino who will have yourself naturalized to another country. June 18. 2013) The other disqualifications: Disqualification. this therefore required that there is a service of sentence which means that if there is no service of sentence. Problem A is a former natural-born Filipino who became an American by naturalization. But when RA 9225 was enacted it declared that this will not be the case provided the person will comply with the requirement of taking the oath under RA 9225. A filed his certificate of candidacy for Mayor. 3. A. the reacquisition and retention act of 2003 which is only applicable for natural born Filipinos. his opponent. M. (Manzano vs. the said provision should not be deemed to cover cases wherein the law imposes a penalty. we reiterate. which has the effect of disqualifying the convict to run for elective office. qualified again after 2 years of service of sentence. It is a new provision in the Code of 1991. However. Any case basta you are removed from office. then availed of RA 9225. COMELEC. He availed of RA 9225.

COMELEC (April 16. 3-TERM LIMIT RULE The “Three Term Limit Rule” Elements: 1) That the official concerned has been elected for three consecutive terms in the same local government post and 2) That he has fully served three consecutive terms. So involuntary to sya. The mere fact of filing of COC carries with it the implied renunciation of foreign citizenship. ngano wla gi-apply ang Mercado vs. there is a requirement to take an oath of allegiance to the Republic of the Philippines and you are required to personally renounce foreign citizenship. COMELEC. 2013 - Maquiling vs. FUGITIVE FROM JUSTICE Rodriguez vs. 2013) Arnado. The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship. So A invoked Manzano case. Not only fleeing after conviction to avoid punishment but also fleeing after being charged to avoid prosecution.abandon na ba? SC Clarified. & Public Int’l Law 44 . Because they are not required to take the oath of renunciation. And obviously. it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. As to the question. COMELEC (1996) “Fugitive from justice” includes not only those who flee after conviction to avoid punishment but likewise who. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. The definition thus indicates that the intent to evade is the compelling factor that animates one’s flight from a particular jurisdiction. on the other hand. it is not therefore a sincere renunciation of American Citizenship. This is distinct from those considered dual citizens by virtue of birth. So you distinguish how he acquired dual citizenship. July 2. there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of already instituted indictment. by birth or by naturalization. by using his US passport after renouncing his American citizenship. But the SC ruled in Maquiling vs. Dual citizens by naturalization. he acquired dual citizenship by BIRTH. But it’s a question of intent at the end of the day. Manzano? Dili diay to effective renunciation of citizenship? G. Local Gov’t Law. So dili stricto an rule. showing that he had only one allegiance to the Republic of the Philippines. declared by the SC that his filing of COC effectively renounced his American Citizenship. And you remember your Mercado VS Manzano… Si Manzano. So dual allegiance siya. After availing of RA 9225. it must be coupled with overt acts compatible with renunciation. Reacquisition for those who got naturalized before the effectivity of RA 9225 and retention for those who will be naturalized after RA 9225 provided you will take that oath under the law. 2013. he filed his certificate of candidacy. are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to xxxxxx candidate for public office. But kung dual citizen ka by naturalization.will not be losing your Philippine citizenship but you will retain your Philippine citizenship that is why it is reacquisition and retention. He is disqualified not only from holding the public office but even from becoming a candidate. Arnado's category of dual citizenship is that by which foreign citizenship is acquired by applying for naturalization. In Arnado. Section 40(d) of the Local Government Code applies to his situation. after being charged. Unlike in Manzano. or of a promulgated judgment of conviction. And in Mercado. Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. July 2. What happened in this question is that A availed of RA 9225 then he took the oath of allegiance and renounced his American citizenship but still he was using his American passport. the SC warned that the moment you renounce your foreign citizenship. has recanted the same Oath of Renunciation he took. flee to avoid prosecution. who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship.

through the transfer to a different position for example. Was there an interruption? According to the Court. The reasoning of the Supreme Court in Aldovino was that preventive suspension merely barred the official from discharging his functions. Gwen (Garcia) who was penalized with suspension months before the expiration of her third term. This interrupts the running of the “consecutiveness”. the suspension being a penalty. it should create a permanent vacancy. there is no distinction between mere preventive suspension. Is this not the same idea when one is suspended? I don’t think there is removal from office. & Public Int’l Law 45 . Three terms. you can argue that you are removed from your office within the period of suspension therefore effectively interrupting the term. her opponent. The case of Aldovino involved PREVENTIVE SUSPENSION. Another important rule is the effect of SUSPENSION. Ruling with finality on the protest. When you step down as a result of an order of the penalty of suspension. the full service of the term is counted. for as long as the term was fully served. But going back. it does not interrupt the term. For me. a temporary vacancy is created. This is a “wait and see” situation. when one is suspended. insofar as preventive suspension is concerned it does not interrupt the term. filed an election protest before the Commission on Elections. The one who occupies the position of the suspended official will merely be Acting (in an acting capacity). This is an on-going question even amongst those who are already practicing law. The middle term was disputed. that is possible. COMELEC ousted her in an election protest that Gudi. whether the official was de facto or de jure. Daryl Bretch Largo’s) humble opinion is this—under the Code. there was no interruption. After being proclaimed Vice-Governor in 2004 elections. If one is preventively suspended. a) Abdul now consults you if he can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 elections on the premise that he could not be considered as having served a Vice-Governor from 2004- 2007 because he was not duly elected to the post. 2004. It can be either voluntary or involuntary. One person. but the officer still holds the office. either through resignation or abandonment. COMELEC (asked in the 2005 Bar)—Alfredo is DISQUALIFIED. that it would no longer constitute a penalty if the official is not removed. and 2007 elections for Vice-Governor of Tawi-Tawi. Otherwise. meaning you are taken out of your post. it would be considered considered as voluntary resignation and will not interrupt the consecutiveness of the service of the term. The term was fully served but it was served in a de facto capacity. the municipality became a city. the COMELEC declared Khalil as duly elected Vice-Governor though the decision was promulgated only in 2007. During his third term. Alegre. There is no interruption of the term. Khalil. filed against her.The problems revolve around whether there was interruption. Preventive Suspension does not interrupt the consecutiveness. then such interruption is considered INVOLUNTARY. Thus. If ordered for example by COMELEC or any other governmental entity. Local Gov’t Law. On her third term. if the interruption was voluntary. What will be your advice? 2011 Bar Adela served as mayor of Kasim for 2 consecutive terms. if the penalty of suspension really causes removal. he is merely prevented from exercising the functions. The final resolution of the COMELEC was that the person elected during the middle term was not the winner but such decision was released only after the third term. the mayor would USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Gudi faced recall proceedings and Adela ran in the recall election against him. What if suspension was imposed as a PENALTY? This happened to Gov. 2011 Bar Alfredo was elected municipal mayor for 3 consecutive terms. Alfredo ran for city mayor during the next immediately succeeding election. The following are the bar questions relating to this that came out: 2008 Bar Abdul ran and won in the May 2001. The reasoning of the Supreme Court was that even if it was a new city. I have yet to see a definitive ruling of the Court in that regard. Can Adela run again for Mayor in the next succeeding election without violating the 3 term limit? Let me go straight to another update—take note of Ong vs. Two years later. An interpretation allowing a fourth term in the new city would effectively allow him to serve for 18 years. Will she be allowed to run for a 4 th term? Is there an interruption to the consecutiveness if suspension was imposed as a penalty? My (Atty. You can also argue otherwise. his opponent. Adela won and served as Mayor for Gudi’s remaining term. Voltaire sought his disqualification citing the 3 term limit for elective officials. as he assumed office merely as a presumptive winner and that presumption was later overturned when the COMELEC decided with finality that he had lost in the May 2004 elections. otherwise. and suspension as a penalty. Will Voltaire’s action prosper? ANSWER: Lataza vs. when Abdul had wholly served 2004-2007 term and was in fact already on his 2007-2010 term as Vice-Governor.

You do not apply the rejection of the second placer rule because there is no first placer to speak of. It’s very important. Jalosjos v. and while the disqualification case was still pending. All others. 2013) Disciplinary proceeding. The spirit behind the three-consecutive-limit rule is really to prevent service of more than 9 consecutive years. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. This is in Election Law. and Z were the candidates for Mayor in Municipality of ABC. apply the Local Government Code. it will operate as a condonation of the misconduct. The ouster of a de facto officer cannot create a permanent vacancy as contemplated in the Local Government Code. Since there is no permanent vacancy. In this case. he not a candidate) cannot create a permanent vacancy to trigger succession. otherwise. Local Gov’t Law. So who is now entitled to this? The “second” placer. Practice of Profession  All LCE’s cannot practice profession nor engage in any occupation other than the exercise of their functions as LCE’s. so like fraud etc. Therefore. the Sangguniang Panlungsod or Sangguniang Bayan has disciplinary authority over any elective barangay official. Since the complaint against petitioner was initially filed with the Office of the Omdusman. Note that the ground for disqualification affects eligibility.) then file it before the appropriate office. 2013) The rule on succession in Section 44 of the Local Government Code cannot apply in instances when a de facto officer is ousted from office and the de jure officer takes over. Should W be allowed to assume the office of the Mayor? Solbad na ni sa Election Law. Option on the part of the private complainant. A contrary ruling would be a circumvention allowing the service of 18 years. COMELEC (June 25. there is no de jure or de facto. Svetlana Jalosjos vs. apply the Ombudsman Law. has the legal right to assume the position. Under RA 7160.. COMELEC. go to the Provincial Board.  MDs may practice profession even during officer hours in case of emergency w/o comp.  SP Member can practice profession or engage in any occupation except during session hours. Thereafter. the elected Vice-Mayor insisted that he should become the Mayor. and which opts to take cognizance of the case. The rightful winner in the election (“second” placer) will get the position. file it with the Office of the President. acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. Look at Sec. (Alejandro vs. the COMELEC disqualified X. with certain limitations to lawyers on grounds of conflict of interests. Y had earlier filed a petition for the cancellation of X’s certificate of candidacy on the ground that X failed to comply with the 6-month residency requirement. Aguinaldo Doctrine -mere fact that misconduct is committed in the prior term regardless if it was known to the voters or not. 60 for the grounds of disciplinary action (grave abuse of authority etc. upon re-election. & Public Int’l Law 46 . you can offer this explanation. the Ombudsman’s exercise of jurisdiction is to the exclusion of the Sangguniang Bayan whose exercise of jurisdiction is concurrent. You do not reject him. there is de jure and de facto so cannot apply to instances when a de facto officer is ousted from office and the de jure officer takes over. April 3. 60 and 61. 173121. There is no vacancy to speak of as the de jure officer. The disqualified candidate from the very beginning (his COC is void ab initio. X received the highest number of votes followed by Y. Problem X. Therefore. Go to Sec. If you want to sue a local government official under the Ombudsman. the body where the complaint is filed first. any decision that will affect the eligibility of the candidate would have the effect rendering the Certificate of Candidacy is null and void ab initio. the VM cannot insist to be installed as the Mayor. During the election. Y. If election contest lang and not based on eligibility.still be serving the same territory (same territorial jurisdiction) and the same inhabitants. W. Principle of Condonation. the supposed candidate will be considered as no candidate at all. Therefore. In Local Government Law. Disqualified even if it’s a new city because the official will be serving the same territorial jurisdiction and same inhabitants and besides it will circumvent the spirit of the 3 term limit rule. In the case of cities and provinces. The Vice Mayor cannot insist. Concurrent Jurisdiction with Ombudsman In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities. He is not a candidate. it cannot trigger succession. the rightful winner in the elections. Office of the Ombudsman. GR No.

Remember that also. 1 1993: X. JR.May a Mayor practice a profession? General Rule: No. Problem No. COMELEC (1999) USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Problem No. he cannot be construed as having served a full term as contemplated under the subject constitutional provision. he was elected. second. and the vice-mayor served as mayor until 1995. Second. The term served must be one for which the official concerned was elected. The term served must be one “for which [the official concerned] was elected. he occupied the latter’s post for the unexpired term. COMELEC.” Answer: First. He was. 2 1988-1995: X was elected and served as Mayor for 2 consecutive terms 1995: X was re-elected and started serving as Mayor 1997: COMELEC ruled that X was not validly proclaimed and X stepped down as ordered by the Comelec. VS. thereafter. So there was interruption. SP members including the Vice Mayor can practice profession with limitations involving usually conflict of interest cases. elected for two more terms. Example: They cannot defend accused in a criminal case where the private complainant is the LGU in which he is a Sanggunian member. An example of voluntary renunciation of office is resignation or abandonment. Unless: Mayor is a doctor of medicine even during office hours provided he receives no compensation. the case of ABUNDO VS. but upon the death of the incumbent mayor. there is full service for three consecutive terms. his candidacy was questioned on the ground that such was already his 4 th consecutive term. 1998 elections: Was X barred to run as Mayor? Answer: This is with the element of consecutiveness. If you look at the elements of the three term limit rule. It was involuntary when X step down because he was ordered to step down. there were several cases that illustrate the application of the 3 term limit rule as applied to different scenarios. it was involuntary relinquishment of office. COMELEC. Petitioner did not fully serve 1995 – 1998 because when he step down in 1997. X. the vice-mayor succeeded Y who died. but for the position of vice-mayor. In 2013. For two consecutive terms. It has been asked in the bar many times. v. he was not elected as mayor. So there was no consecutiveness in this case. Jr. Here there is involuntary relinquishment of office. X was not elected when he became mayor in 1993. Negros Oriental Case. the Vice Mayor succeeded Y. Borja. 1995-1998: X was elected and served as Mayor 1998-2001: X was re-elected and again served as Mayor 2001 Elections: Was X barred to run as Mayor? This is based on the case of BORJA. the Mayor who died. The idea of interruption connotes involuntariness on the part of the official. {September 5. COMELEC (1998) Private respondent was first elected as vice. That happened in 1993 and he served until 1995. Local Gov’t Law. X served as Mayor until 1995. The “Three Term Limit Rule” Elements: 1) That the official concerned has been elected for three consecutive terms in the same local government post and 2) That he has fully served three consecutive terms.mayor. & Public Int’l Law 47 . 2014} When you were under me in Local Government Law. So when he ran in the 2001 elections. had been elected for three consecutive term and in the same position. The Sanggunian has no subpoena and contempt power. then the vice-mayor and became the mayor got elected for mayor. COMELEC summarizes the basic scenarios on the rules on three term limit rule. Lonzanida vs. So when he assumed the position of vice-mayor. there is this element that the official must be elected. This is the case of LONZANIDA VS. The Court held that when private respondent occupied the post of the mayor upon the incumbent’s death and served for the remainder of the term.

Problem No. there was an interruption. which ruled that there was a failure of elections and declared the position of mayor vacant. But assuming that such happens. However. Y was elected Mayor 2002: Y faced recall election and X filed certificate of candidacy for the recall elections Can X participate in the recall elections? Answer: The same rule in the earlier case. COMELEC The principal issue was whether or not private respondent Hagedorn was qualified to run during the recall elections. Even for one day. For the May 2001 elections. On July 2. 2002. During the May 1998 elections. Socrates. 3 1992-1998: X was elected and served as Mayor for 2 consecutive terms 1998: X ran as Mayor but lost to Y 2000: Y faced a recall election and X was elected in the recall election and served as Mayor 2001: Was X barred to run as Mayor? Answer: According to the court there was interruption in the continuity of his service. however. The Court held that private respondent cannot be construed as having been elected and served for three consecutive terms. Socrates vs. Hagedorn filed his certificate of candidacy for mayor in the recall election. The Court ruled. The COMELEC affirmed this ruling and petitioner acceded to the order to vacate the post. holding that the principle behind the three-term limit rule is to prevent consecutiveness of the service of terms. The Court ruled in favor of Hagedorn. He then ran for his third term in the May 1998 elections. his opponent contested his proclamation before the RTC.Petitioner was elected and served two consecutive terms as mayor from 1988 to 1995.1998 mayoralty term by reason of involuntary relinquishment of office. COMELEC (2002) The issue was whether or not an assumption to office through a recall election should be considered as one term in applying the three-term limit rule. Private respondent was elected and served for two consecutive terms as mayor. won and discharged his duties as mayor. but lost to his opponent. Local Gov’t Law. and that petitioner did not fully serve the 1995. private respondent filed his certificate of candidacy for the office of mayor. the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent mayor. He then ran again for the same position in the May 1995 elections. The reason for the rule on interruption is that when he lost in 1998 and until he got elected in 2000 in the recall election. 4 1992-2001: X was elected and served as Mayor for 3 consecutive terms 2001 elections: X did not run. that petitioner cannot be considered as having been duly elected to the post in the May 1995 elections. private respondent therein lived as a private citizen. that such should serve as an interruption of the continuity of service. In June 1998. His loss in the May 1998 elections was considered by the Court as an interruption in the continuity of his service as mayor. Adormeo vs. although it was legally impossible to be a private citizen in just 1 day. then apply the thinking of the court. A petition for his disqualification was filed on the ground that he cannot run for the said post during the recall elections for he was disqualified from running for a fourth consecutive term. his opponent faced recall proceedings and in the recall elections of May 2000. A petition to disqualify him was filed on the ground that he had already served three consecutive terms. & Public Int’l Law 48 . Problem No. Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the immediately following regular elections. Problem No. X was a private citizen. 5 (2005 Bar) USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. and that there was in his case a break in such consecutiveness after the end of his third term and before the recall election. private respondent won and served for the unexpired term. 2002. petitioner therein again filed his certificate of candidacy for mayor. This was questioned. On August 23. For nearly two years.

The case of Franis Ong vs. the argument that it was a new local government having a new personality would be a circumvention of the mandate and spirit of the three-term limit rule as this rule is not only mandated by the Code but also the Constitution. 2001. 6 1995-1998: X was elected and served as Mayor 1998-2001: X was re-elected and served as mayor. Francis Ong case. 2004 terms in full.1992-2001: X was Mayor of a municipality for 3 consecutive terms Before May 2001 elections: The municipality became a new city 2001 elections: X filed COC for mayor of the new city Was X qualified to run for Mayor of the new city? Answer: The SC said NO. So X contended that his disqualification in the second term should be considered as an interruption. may be considered as one full term service. 1998 and the July 1. “service for the full term”. Latasa vs. cont’d … The Supreme Court held that such assumption of office constitutes. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term.June 30. petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. Number one.2001 term by virtue of a proclamation initially declaring him mayor-elect of San Vicente. an interpretation in favor of X would allow X to serve the same territory. Problem No. Third term: the COMELEC ruled with finality that he was not the winner in the second term. Ong ran for mayor of the same municipality in the May 1998 elections and actually served the 1998. Otherwise. and the 1998 election protest was decided against X 2004 elections: Was X qualified to run as mayor? First term: X was elected and served as mayor. & Public Int’l Law 49 . The controversy revolved around the 1998-2001 term. but an election protest was filed against X in 1998 2001-2004: X was re-elected and served as mayor.  Should petitioner be allowed another three consecutive terms as mayor of the City of Digos. Joseph Alegre (2006) Petitioner Ong was duly elected mayor (San Vicente) in the May 1995 elections and again in the May 2001 elections and serving the July 1. Local Gov’t Law. barring local elective officials from being elected and serving for more than three consecutive term for the same position. 1998 to June 30. This was the ruling in the case of Latasa vs Comelec. COMELEC (2003) It can be seen from Lonzanida and Adormeo that the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. The question was whether or not Ong’s assumption of office as Mayor of San Vicente from July 1. should legally be taken as service for a full term in USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Francis Ong vs. Second term: elected and served but a protest was filed but not yet decided. 1995. This is the very scenario sought to be avoided by the Constitution. if not abhorred by it. for Francis. and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions. constituents and jurisdiction for 18 years. supra. Alegre. it was declared that Ong was not the real winner in the elections. But after the term 1998-2001. The SC said that even if you serve as a de facto officer the term shall be counted against him. 2001-June 30.

2004 elections: X filed COC for mayor but it was cancelled. 1997 and 2002: X was elected Punong Barangay 2004: X ran and won as municipal councilor. but a protest was filed in 1998 2001-2004: X was re-elected and served again as Mayor. 7 1995-1998: X was elected and served as Mayor 1998-2001: X was re-elected and served again as Mayor. The SC said that there was in interruption but it was voluntary. and he intended to forego of it. 8 In 1994. Bolos. although he won and was proclaimed Mayor May 17. Problem No. Indeed. Bohol. Local Gov’t Law. 1 July 1998 to 30 June 2001. 2001-2004 and 2004-2007 In September 2005. COMELEC We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June 1998.’s relinquishment of the office of Punong Barangay of Biking. it should not be considered an interruption in the continuity of his service. Neither did Morales hold the position of mayor of Mabalacat for the full term. This case was about abandonment. because of his disqualification. Dauis. but in July of 2001. COMELEC. is voluntary. Problem No. and 1 July 2004 to 16 May 2007. after the full term. & Public Int’l Law 50 . 2004. Problem No. All the acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher elective office. 2007: X stepped down as mayor as ordered 2007: X was elected again as mayor Was X qualified to run as mayor for 2007? Dizon vs. on July 1. vs. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Jr. That abandonment is considered as voluntary renunciation He said the 2002-2007 should not be counted because he was serving as a municipal councilor. Therefore. X was ordered “preventively suspended” by the Sandiganbayan In 2007. declared that he was not the winner in the election). X filed a COC and ran for mayor. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule. Jr. as a consequence of his assumption to office as Sangguniang Bayan member of Dauis. Thus. like resignation. Abandonment. Morales’ occupancy of the position of mayor from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. He knew that his election as municipal councilor would entail abandonment of the position he held. the 1998 protest was decided against X. is a voluntary renunciation. so there was an interruption. 1 July 2001 to 30 June 2004. Bohol.contemplation of the three-term rule (even if he was later on. the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. COMELEC The Court agrees with the COMELEC that there was voluntary renunciation as Punong Barangay. 9 X was elected mayor 3 times during the terms: 1998-2001. leaving his post as punong barangay 2007: X filed COC for the position of punong barangay (the same barangay) Is he qualified? Bolos vs. The COMELEC correctly held: It is our finding that Nicasio Bolos. Morales was not the duly elected mayor for the 2004-2007 term . However.

continuous mayorship was effectively broken during the 2004-2007 term when he was initially deprived of title to. 205592/G. & Public Int’l Law 51 . Torres. (See GMA Network. you just read Abundo vs. 2006 until the end of the 2004-2007 term on June 30. was serving as mayor should be considered as an interruption. The 2013 case of Abundo. Vs. COMELEC/Kapisanan ng mga Brodkaster ng Pilipinas.Was X qualified to run for the 2007 elections? This is the case of Aldovino vs COMELEC. 205852/G. Corp. or for a period of a little over one year and xxxx month. the SC nullified the rule on computation or limitation/restriction on the airtime campaign. An officer who is preventively suspended is simply barred from exercising the functions of his office but title to office is not lost. Preventive suspension was not considered as an interruption because when we speak of an event that should cause an interruption it should refer to an involuntary loss of title. your fear is addressed by a different provision which is limitation on election expenditure. I have not read the case yet but I can only surmise it’s more of unreasonable restriction to the freedom of expression. Should it be counted against him? If we say that B was a de facto officer beginning 2004 until May 9 2006 and the capacity of a de facto officer serving an office is to be counted against him.. Vs. A protested B’s election and proclamation. it should not be counted against the de jure officer because he did not in fact serve the term. an office to which he. A was eventually declared the winner of the 2004 mayoralty electoral contest.. COMELEC (2009) Problem 10: Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule? A: “Interruption” of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. who. So if you have not read the other cases. No. Sr. Then. COMELEC/Radio Mindanao Network. 206360. Inc. 2007 and 2010 national and local elections. instead of the more stringent totality rule. September 26. however the municipal BOC initially proclaimed as winner B.R. gibalik to per station.R. 205357/G. which effectively removed Abundo’s case from the ambit of the three-term limit rule. COMELEC summarized the prevailing jurisprudence on issues affecting consecutiveness of terms and/or involuntary interruption.R. No. Was A qualified to run for the 2010 elections? Diba pag 2004 wa man siya ni daog. COMELEC. in due time. he emerged and was proclaimed as the winning mayoralty candidate and accordingly served the corresponding terms as mayor. No. So. Local Gov’t Law. paving the way for his assumption of office starting May 9. Anyway. et al. The 2- year period during B was serving as mayor is considered as an interruption which effectively removed A from the ambit of the three-term limit rule. The two-year period during which his opponent. pwede ran a per station. after due proceedings. Commission on Elections/ABC Devt. Abundo. 2014 )] {POST-MOCK BAR. Vs. 205374/G. Inc. In both the 2001 and 2007 runs.R. Overbreadth because if the concern of the COMELEC is to prevent rich candidates from abusing or taking advantage of airtime during their campaign. the 2001. Murag overbreadth to. there is still a limitation to that noh. COMELEC. and was veritably disallowed to serve and occupy. Vs. Ni assume lang siya ug office pag hapit na mu end ang term. No. COMELEC/Manila Broadcasting Co. namely. No. conversely. he was able to serve a portion of the term of 2007 for a couple of months. Was A qualified to run for the 2010 elections? Abundo vs. When one is preventively suspended you are simply barred from discharging functions. [UPDATE ON ELECTION LAW: Another update in Election law by the way was in the news 3 or 4 days ago. September 2. There is no corresponding loss of title so it should not be considered as loss of title. Unlike in the case of Ong vs Alegre. This is a new case. was eventually declared to have been the rightful choice of the electorate. Inc. et al. COMELEC G. Aldovino vs. COMELEC (2013) The consecutiveness of what otherwise would have been Abundo’s three successive.R. vs. performed the functions of the office of mayor. A vied for the position of municipal mayor. vs. 2014} LOCAL GOVERNMENT LAW (Municipal Corporation Law) Questions: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. So it was in this case that the SC narrated all possible scenarios involving the three term limit rule. Vs. 2004. meaning aggregate bah. In the 2004 electoral derby. 2007. Problem 11 For four (4) successive regular elections. Sr. So dili diay necessary nga i-aggregate.

why? Student: it is the president that exercises general supervision. But it was clarified later on in the case of Pimentel that in the Philippines the kind of decentralization that is being applied or implemented is decentralization of administrative powers. autonomy is either decentralization of administration or decentralization of power. the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. Remember I mentioned relevant provisions in the Constitution in Art. Local Gov’t Law. The SC was simply referring to the general idea of autonomy meaning autonomy in any particular jurisdiction. Mangelin Now. The President exercises general supervision only. Atty: Ah. The SC mentioned or makes this comment.” since in that event. involves an abdication of political power in favor of local government units declared to be autonomous . The National Government exercises general supervision over the ARMM. False. decentralization of power amounts to “self-immolation. One is the decentralization of administration and the other is the decentralization of powers.” and “ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. 10 on the extent of the President over autonomous region? So may basis ta for saying that the President exercises general supervision. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments “more responsive and accountable. & Public Int’l Law 52 . included ba na ang ARMM? Considering that there seems to be a difference in the level or degree of autonomy between the LGUs (provinces.” It was in here that the SC explained two concepts of autonomy. it wrong to say national gov’t? So. Of course the SC exercises judicial review over acts of LGU. 2. Decentralization of power is not being applied or implemented in our jurisdiction. Ok? You were right if it were the president then the statement becomes true. Local Autonomy Limbona vs. municipalities and barangays) and the autonomous regions. including ARMM or autonomous region for that matter. now the autonomy is either decentralization of administration or decentralization of power. cities. I am talking about the case of Limbona vs. 2. we have to specify the agency in the national gov’t or authority in the national gov’t that for who exercises the power of general supervision. it can be considered as one of control because in the first place the LGU is created by law and therefore its existence and powers are derived from Congress. the President exercises general supervision over LGU. Mangelin. the autonomous government becomes accountable not to the central authorities but to its constituency. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Because in so far as congress is concerned. Limbona case. 1. So this is again a reminder. on the other hand. Let us say. There is no total abdication of political powers on the issue. According to a constitutional author. cont’d … Decentralization of power. are under the general supervision of the President. False. In that case. The National Government exercises general supervision over a Province.What is “local autonomy”? True or False: 1. What would be the correct statement? I’m asking this question because there is a need to clarify WON all gov’t units.

but legally. 2000: Under the Philippine concept of local autonomy. the national government has not completely reqlinquished all its powers over local governments including autonomous regions. 10. 132988. The Supreme Court ruled that this is substantial alteration of boundaries. This means that if you create a city today. Who will participate? That specific city (its inhabitants). As the phrase implies. GR No. Applying Umali doctrine. In fact. July 19. if it is an island. you can qualify your answer. Article X of the 1987 Constitution is the material change in the political and economic rights of the local government units directly affected as well as the people therein. you need to take 100 million income in the past 2 preceding years. it’s beyond the supervision of province. Population & Land Area CC: Income & Population OR Land Area HUC: Income & Population Province: Income & Population OR Land Area Question In the LGC of 1991. there is no such exception when it comes to creation of a province which normally requires at USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. you cannot because when you create a city today. policy-setting for the entire country still lies in the President and Congress. 2011) Problem Confident that Municipality of Consolacion can qualify as a new city under existing laws. referring to the metes and bounds of the LGU. its officials ask you whether the whole Province of Cebu will participate in the plebiscite that will be conducted (assuming that they succeed in persuading Congress to pass a law converting Consolacion into a city). but also to its political boundaries. xxxx the conversion of a component city into an HUC is substantial alteration of boundaries. (Also cited in Kida vs. Miranda vs. Local Gov’t Law.” Umali vs. Only administrative powers over local affairs are delegated to political subdivisions. mother province of Cebu should participate in the plebiscite. legally. RA 9009 only amended the section about a newly created city but it did not any corresponding changes or amendments to that section about highly urbanized city (which is still 50 million). It observed that the common denominator in Section 10. Theoretically.Administrative Powers or Political Powers? What is the kind of decentralization adopted or practiced in the Philippines? Pimentel v. If it’s a case of upgrading. October 18. and since it is beyond the supervision of the province. (involving a highly urbanized city) the Supreme Court ruled in the case of Umali. it will become independent of the province. 1999) The Supreme Court ruled that plebiscite was required even in cases of “conversion”. a municipality may be created with less than 50 sq. What will be your advice? In downgrading (like from independent component city to component city) there is a need for plebiscite. “substantial alteration of boundaries” involves and necessarily entails a change in the geographical configuration of a local government unit or units. The phrase “boundaries” should not be limited to the mere physical one. it will not anymore contribute to the funds of the province. Aguirre (Sept. It is precisely for this reason that the Constitution requires the approval of the people in the political units “directly affected. Senate. As was mentioned before. If it’s a component and it becomes independent or a highly urbanized city. Under the LGC of 1991. Specific Criteria Barangays: Population Municipalities: Income. Article X of the Constitution. Thus. COMELEC (April 2014) While conversion to an HUC is not explicitly provided in Sec. however. & Public Int’l Law 53 . territorially speaking. that if you upgrade. it can exist as a highly urbanized city already because the requirement is just 50 million and it is then beyond the supervision of the province of Cebu. it is not part of the province anymore. kms. Aguirre.

reversed in 2011!  SC through J. What will happen to the corporate personality of the merged units? . & Public Int’l Law 54 . there’s no specific provision in the law whether contiguity is required. compact and adjacent. Adjacent only requires that the territories are near each other. 2 of Art. is not subject to any condition or restriction. being distributed or released automatically to all LGUs. Not yet tested sa SC ruling but I’m sure it’s an important issue. What will happen to the ordinances that were passed in the LGUs that have ceased to exist? USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Question: For the purpose of determining compliance with the income requirements for the creation and/or conversion of a local government unit (LGU). Meaning.  Nowhere in the LGC is the said provision stated or implied. the requirement is that the district should be contiguous. . Carpio’s Dissent that the majority opinion will allow the creation of a province with only one (1) unit (say a municipality) instead of various component LGU’s. the only instance when the territorial or land area requirement need not be complied with is when there is already compliance with the population requirement. which has a different rule when compared to a municipality in terms of land area requirement Par. 2010 Navarro vs. Under Sec. because it mentions of two kinds of creations of cities. we go back to the general rule that IRA. Contiguity would require a higher threshold while adjacent is more general. what constitutes the “annual income” of an LGU? Again. What if a province is to be converted into a city? Di na muapply ang RA 9009. but American law states that that should be a requirement insofar as the merger of LGUs is concerned. Local Gov’t Law. therefore excluding all other sources not internally generated. Ermita – this is a case involving a province. Just a question. sila sad ga mad rush sad sila sa paghimo ug RA 9009. Nachura. kms. So. they will lose their respective corporate personalities and there is now just one corporate personality. Ang ako lang thinking nga who knows.000 sq. RA 9009 increasing to 100M and restricting the component to locally generated income. if there is a creation of a province or a municipality. MERGER OF LGU’s Merger of LGU’s  Should territory to be annexed be “contiguous”?  What will happen to the “corporate personalities” of the merged units?  What will happen to the ordinances of the merged units. Of course. will these ordinances be considered ineffective? Let’s proceed to the basic distinction first. So. So. 9 in the IRR of the LGC of 1991. RA 9009 only applies to the creation of cities. dili mana nimo ma require na contiguous. 461 of the LGC. One. Ermita. Ma extinct na ang existence or personalities. and it can also be considered as forming part of the gross annual income.least 2. Caveat lang ni siya. is the only requirement contiguity? What’s the difference between adjacent and contiguous? . territories that are merely adjacent but are not contiguous may not be merged. As to merger. Based on American jurisprudence. when you convert a municipality into a city and the other is when you make the city out of clustered barangays. and I don’t know if gi-overstretch nasad nako but I’m thinking also that it restricts the manner of creating a city. ruled that Congress intended to apply the exemption on land area requirements enjoyed by municipalities and cities which have islands as territories to the Province (Province of Dinagat)  Note of J. there’s another way of creating a city. regular siya kai regularly released man. pwede near. If you create a legislative district. other than municipality converted into a city or cluster of barangays made into a city. like Internal Revenue Allotment (IRA) applies only in the creation of a city. In American law on municipal corporations. Ang contiguous mas restrictive siya in the sense that the two LGUs should touch each other in their boundaries. May the implementing rules of the LGC of 1991 provide for a similar exception? Navarro vs. Dili mag require ug touching. which states that “the land area requirement shall not apply where the proposed province is composed of 1 or more islands” violates the LGC of 1991 and therefore null and void. clarification. Pero a local government unit. gidistinguish ang adjacent and contiguous. Ingon si Pimental this is to prevent this mad rush into becoming a city para lang makakuha ug IRA. exception kung islands.

Problem In preparation for the 2016 local and national elections. then the respective ordinances of the merged units will continue to be effective. it could hardly pay even the honoraria of the barangay tanods. it does not necessarily follow that just because there are no inhabitants at the time of the investigation that it is a ghost precinct because people move. Siquijor. is that until and unless the new unit can come up with its own ordinance. the inhabitants transferred to another barangay. Next. and mountainous topography. Let me go to this next problem which is related to the issue on abolition. it is equivalent to abolition of that barangay and this is not the correct process of abolition. COMELEC discovered that there are no inhabitants in Barangay Diwata in Municipality of Lazi. Hence. If that barangay is not provided with a precinct. It could be possible that at the time of the creation of a barangay. what should be stated in the ordinance abolishing the barangay? Second. LGC) Note: Irreversible reduction to less than the minimum standard only offers a ground for abolition. RA 7160 x x x. in particular a barangay. The rule again. 9. This brings me to Section 9 and 10 of RA 7160 –  Section 9. there should be an ordinance of the Sanggunian Panlalawigan of which the Municipality of Carmen is a part. (Sec. This is a bit tricky but this is just a reminder. population. population or land area has been irreversibly reduced to less than the minimum standards as certified by the appropriate agency. based on American jurisprudence. Can it lawfully be abolished? 2. Consequently. the ordinance should specify the territory to which this barangay will become part. it may not be considered right away as a ground for the abolition. Supreme Court said. which could be many decades ago. Those are important considerations. the COMELEC conducted investigations in order to ascertain the veracity of reports of “ghost precincts”. Problem Barangay Pobre is the poorest of all barangays in the Municipality of Carmen mainly because of its rocky. Siquijor for purposes of the 2016 elections. But even if it is a ground for abolition. It thrives mainly on the IRA that it receives. What is the procedure? First. Without the IRA. Is the act of the COMELEC valid? The act of the Comelec in delisting a precinct would result to delisting a barangay because under the Omnibus Election Code. 17 Series of 2006] Remember the rule: the ground for abolition is irreversible reduction to less than the minimum standards but income is not a criterion for the creation of a barangay. hilly. As you know when you abolish a barangay. I mentioned earlier that abolition is not automatic because there is a process. There is a specific requirement in case of abolition of a local government unit. The Omnibus Election Code mandates that every barangay must have at least one precinct. every barangay must have at least one precinct. 1. what is the procedure for the abolition of Barangay Pobre? Abolition Ground: When its income. When its income. [DILG Opinion NO. No matter how poor the barangay may be. a further act (law or ordinance) is still required to effect abolition. The law or ordinance abolishing a local government unit shall specify USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. until new ordinances shall have been passed. or land area has been irreversibly reduced to less than the minimum standards as certified by the national agencies concerned. income in barangay is irrelevant. the COMELEC removed Barangay Diwata among the list of precincts in the Municipality of Lazi. If yes. there were inhabitant and when the Comelec conducted the investigation. Based on the investigations it conducted. . the ordinance must specify to which territory the barangay abolished will become part of. & Public Int’l Law 55 . Don’t you think it is possible? It is possible. there is still a procedure. Local Gov’t Law. Hence. it does not mean it will disappear. but only with respect to their own territories. If you remove a barangay from the list of precinct that would mean that you are not recognizing that particular barangay.

The moment there is valid abolition of an office. RA 7160. Local Gov’t Law. Amicable settlement is within the jurisdiction of the Sanggunian/s of the mother unit/s as a general rule. the Sanggunian concerned tries the case. as much as possible. It is mandated that boundary disputes between and among local government units shall. The rule therefore on obligations is that. 3. In regard to abolition I have three (3) important questions: Questions  What will happen to the properties owned by the abolished LGU?  What will happen to the obligations incurred by the abolished LGU?  Will the officers of the abolished LGU continue to exercise their functions? What will happen to the properties owned by the abolished LGU? They will not of course disappear. It was changed by the old Government Code where the Sanggunian of the mother province for example were not anymore given the power to decide. Settlement of boundary dispute – 2005 Bar There was a boundary dispute between Dueñas. abolition. city. State how the two local government units should settle their boundary dispute. or barangay with which the local government unit sought to be abolished will be incorporated or merged. Under the Local Government Code of 1991. Plebiscite Requirement. obligations are shouldered or assumed. and Passi. the Revised Administrative Code provided for two levels of boundary disputes. based on American Jurisprudence. any disputes as to boundary had to be filed in the Regional Trial Court. Certainly. 2. merger. then there is no more relationship between the public officer and the office itself. an independent component city. will there be payment of compensation? Automatic absorb? If there will be payment of compensation who will receive when the LGU is already annexed to another LGU? . the province. In a very long time during the time of Marcos. Ownership of the properties will be transferred to the territory to which the abolished LGU is annexed. any party may elevate the decision of the Sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area. both of the same province. Said plebiscite shall be conducted by COMELEC within 120 days from the date of effectivity of the law or ordinance affecting such action unless such law or ordinance fixes another date. The relevant question there is. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. This came out in the bar exam. Steps in Settlement: 1st level: Amicable Settlement 2nd level: Sanggunian 3rd level: Appeal to the RTC Settlement of Boundary Disputes 1. will have the right to dispose of the abolished LGU’s properties in order to pay off the abolished LGU’s obligations. Within the time and manner prescribed by the Rules of Court. or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Before the Old Local Government Code of 1983. a municipality. be settled amicably. the territory to which the abolished LGU is annexed. In case of failure to settle. municipality. 4. they will not. In fact. No creation.  Section 10. Will the officers of the abolished LGU continue to exercise their function? . divison. & Public Int’l Law 56 . the Sanggunian can now decide and the Regional Trial Court will only have jurisdiction if a decision by the Sanggunian has already been made. Although there may be a requirement on exerting efforts to settle a case. the Sanggunian panlalawigan did not have authority to decide sitting as a quasi judicial body or probably a judicial body since this would require a specific decision on matters of law. What will happen to the obligations incurred by the abolished LGU? . The Provincial Governments were then allowed to hear and decide settlement disputes.

as well as powers necessary. No. LGU’s can only regulate but not grant operation of jai- alai. there are only two things to remember. G. and b) It is the “Least Intrusive means” USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers.). of Virac: 7. See Sec. not prohibit. General Welfare. etc. [Fernando vs. In the past (bar) you will be given an ordinance. March 12.Bar question: State how two Local government units can settle their boundary dispute. to grant “franchises” for operation of jai-alai. shall be reasonable necessary and not unduly oppressive upon individuals. In many cases the ordinance involved a police power measure. must not contravene the Constitution AND statute 8. rather than substantial. the focus is on the presence of compelling. or incidental for its efficient and effective governance. xxx also applies “lawful subject” and “lawful means” requirements! Simplified by Supreme Court as:/All 6 are covered by: lawful subject” and “lawful means” Lawful subject – any act that affects the public. consistent with public policy (because of the requirements of valid delegation of legislative power) see: (Lim vs. not for LGU’s. general welfare health. Every local government unit shall exercise the powers expressly granted. 16. not unfair or oppressive (also a constitutional requirement) 9. 12. not just a private group or class. traffic. these are the following: a) That there must be a “Legitimate Governmental Purpose” (e.R. those necessarily implied therefrom. a lawful subject of regulation/ the act affects the public and therefore it is subject to regulation Lawful means – the means employed in order to achieve or accomplish the purpose of the law. Pacquing) where it was found out that the “national policy”was for National Government. Mun.) (See: Balacuit case where an ordinance penalized movie houses that charged full payment for admission of children between 7-12) 13. Scholastica’s College. Requisites for Validity of Local Police Power Tatel vs. Namely. laws or ordinances are upheld if they rationally further a legitimate governmental interest. Q: Do you know how to apply the second requisite of lawful means? A: There are two tests usually applied to determine compliance on the lawful means requirement… Two (2) Tests are usually applied: 3. and those which are essential to the promotion of the general welfare. Local Gov’t Law. Strict Scrutiny Test Using the rational basis examination. & Public Int’l Law 57 . but only regulate lawful trade (see: De la Cruz vs. and you will be asked to determine the validity of the ordinance. not partial or discriminatory (also a constitutional requirement) 10. 118 & 119 LGC LOCAL POLICE POWER Local Police Power  THE “GENERAL WELFARE CLAUSE”: Sec. Governmental interest is extensively examined and the availability of less restrictive measures is considered.g. 161107. Paras where an ordinance prohibited the operation of night clubs) 11. governmental interest and on the absence of less restrictive means for achieving that interest. Rational Relationship Test 4. 2013] On the first Test (Rational basis examination/Rational Relationship Test). St. Applying strict scrutiny. not unreasonable (also a constitutional reqt. appropriate.

The LGU countered by contending that it was an exercise of Local Police Power. the means employed by the City was not reasonably necessary. as compared to instances when it is directly exercised by the national legislature. Otherwise. A valid exercise of Local Police Power presupposes that it is of lawful subject and lawful means. when do apply one and not the other? A: The courts are guided by what the nature of the right. The existence of these terminals was believed to be the cause of the traffic congestion. liberty or freedom is. In the present case. Local Eminent Domain. etc. High value freedom includes right to privacy. the owners filed a case in court questioning the ordinance on the ground that it took away from them their property without just compensation. Furthermore. Hence. It must be determined whether or not it involves “high value freedom”. there must be no other means of accomplishment that are available. as distinguished from those of a particular class. On the other hand. March 14. It is because there are other more conservative means available to resolve the issue on traffic congestion. City of Mandaluyong (G. business. Examples of which are on accounts of national security. Otherwise stated. Lucena Grand Central Terminal.meaning. The solution was to have a terminal and make it a central terminal outside the city. what is applicable is the Rational Relationship Test. To wit. there is also a presumption of constitutionality of the regulation. CAVEAT: Most recent Jurisprudence now teaches that the Overbreadth Doctrine should be merely contained to Freedom of expression cases. Instead. the burden of proving the existence of compelling state interest belongs to the state. the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the public generally. Otherwise. In fact. Consequently. Indeed it was implemented by the LGU but at the same time it ordered through the ordinance that existing terminals inside the city cannot operate as terminals anymore. LOCAL EMINENT DOMAIN Heirs of Alberto Suguitan vs. expression. The presumption of constitutionality is not observed in this situation. religion and the like. In the case of non-high value freedoms like socio-economic rights. JAC Liner (2005) As with the State. If what is involved. & Public Int’l Law 58 . It rather requires “compelling state interest”. there must be a concurrence of a lawful subject and lawful method. maintenance of peace and order.. Strict Scrutiny Test requires a higher threshold. it could have implemented strictly the traffic rules. Local Gov’t Law.. or resorted to road-widening —the City did not. is a high value freedom then Strict Scrutiny Test must be applied. require the interference of the State. the burden of proving the unconstitutionality does not lie on the one assailing it. Lucena Grand Central Terminal. Moreover.R. it is considered to be an overbreadth (or not the least intrusive). territorial integrity. the courts have adopted a more censorious attitude in resolving questions involving the proper exercise of this delegated power by local bodies. vs. the test applicable is the Rational Relationship Test. the City’s act was an overbreadth. It does not only require a legitimate governmental interest. 2000) Despite the existence of this legislative grant in favor of local governments. it was an invalid exercise of Local Police Power. cont’d… USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Inc. These rules are also applicable to ordinances issued as police measures . 135087. JAC Liner (2005) Facts: There were certain terminals in the interior part of the city. Q: Since there are two tests. vs. Inc. Issue: Was it a valid exercise of Police Power? Ruling: No. etc. it is still the duty of the courts to determine whether the power of eminent domain is being exercised in accordance with the delegating law. Aggrieved. No. the lawful means requirement holds that the means used to accomplish the subject must be reasonably necessary. and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals.

it should file another petition for the new purpose. (2010) Reversing “Fery vs. Cabanatuan had been reversed. Lozada. or for the benefit of the poor and the landless. Local Gov’t Law. diba you’ve learned this already. The same legal situation should hold if the government devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. Unlike in the case of expropriation of the national government that the just compensation will have to be based on the fair market value of the property at the time of taking or filing of a complaint whichever comes first. City of Pasig case) 5. And then. Rule 67 (time of filing of complaint or taking. if the latter desires to reacquire the same. 9. LGC and Jesus is Lord Christian School vs. Dedamo (2002)  While Sec. Sec. But the case of VM Paranaque is open to the possibility that even if a resolution was passed in order to authorize the local chief executive to expropriate. If not. Municipality of Cabanatuan” (1921): “The expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed. Republic (Feb. So that’s the important thing that you need to remember. So you cannot be strictly positivist with your approach that and law kay ordinance so there’s no way that a resolution can take the place of an ordinance. so it must be specific over a particular private property. 4 of Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation (or. In the case of national expropriation. Just a reminder. purpose. in behalf of the local government unit. it may comply with the requirements. You should take note of that.Specific Requirements: (Sec. time of taking whichever came first). So USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. An ordinance is enacted by the local legislative council authorizing the local chief executive. but maybe only after realizing that the requirement now is an ordinance. This is just a reminder kay basin imo focus ang ordinance ra then ang other requirements makalimot ka. immediate possession would require a deposit. 15% of the fair market value based on the current tax declaration . You know na noh nga ang reckoning point of the just compensation is the TAKING. Meaning 100%. 33 of xxx IRR) The specific requirements. LGC: at the time of “taking”. De Ouano vs. how much is the deposit for immediate possession while pending pa ag expropriation? That’s another important difference. whichever came first) vs. For public use. So you should not have an ordinance that is too sweeping simply authorizing the local chief executive mura bag general power of attorney ba. Now Republic vs.” Anunciacion Vda. Gi change niya for lain na public purpose. 19. failing which. 6. if the resolution was passed following the procedure for passing an ordinance. Lim (2005) The landowner is entitled to recover possession of the property expropriated if the government fails to fully pay just compensation to the owner within a period of five (5) years from the finality of the judgment in an expropriation proceeding. (cf. it is then incumbent upon the expropriator to return the said property to its private owner. or welfare. What the Supreme Court said in MV Paranaque was that if a resolution was passed. So the case of Fery v. 100% gyud para nay immediate possession while the case is still pending. & Public Int’l Law 59 . City of Cebu vs. such rule cannot prevail over RA 7160. it’s now ordinance instead of resolution which was the requirement before in the old code. Sr. Specific. Sa local government expropriation.  Sec. MCIAA vs. which is a substantive law. but then again you would ask why would the Sanggunian would pass that. Lim. The Rules of Court would require a deposit of the value of the property . 2011) If the genuine public necessity of expropriation of private land ceases or disappears. time of taking gyud. And the ordinance must be specific in the sense that it should specify the particular private property. Now remember pamo sa ruling sa Fery v Cabanatuan? Nag expropriate for a particular public purpose pero iyang gi abandon ang public purpose of the expropriation. familiar? Republic vs. 4. to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. then there is no more cogent point for the government’s retention of the expropriated land.

irreplaceable. the expropriator becomes kuno class an absolute owner or an owner in fee simple. Maong niingon ang Supreme Court na. na while our constitutional law is basically patterned from that of the US. Mao na ang conception sa US. In case of Immediate Possession Before a local government unit may enter into the possession of the property sought to be expropriated. Nya niingon dayon ang Supreme Court: Since 1921. it must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit with the said court at least 15% of the property’s fair market value based on the current tax declaration. there should be an actual appropriation and a certificate of USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers..two purposes. Chapter 8. As a necessary corollary. First in MCIAA v Lozada. Meycauayan (2008)] {September 27. indeed correct si Lolo Bernas. promotion of the right general welfare. We come up with our own. so property right daw.5M per month. chevron and those other oil companies affected. subject of course to the return. second. something like that. karemember mo ana? Sakit sakit gyud to. di nato iapply. Pero kung tan-aw nato nay change in circumstances or a different scenario. which was already under a new administration. What was the ruling of the court in the case of Fery ? Para makasabot mo unsay gireverse. Kung applicable ang rule sa US. cannot be quantified. But now. kay business man. Supreme Court said it is subject to the condition . once the purpose is terminated or peremptorily abandoned. Municipality of Cabanatuan. Book V. On the other hand. Code. & Public Int’l Law 60 . niingon ang Supreme Court na dapat mu-file kuno ug laing information. No. at the very least. May the City of Cebu be held liable to DBL Corporation? Requisites for Validity of Contracts entered into by LGU’s A. 1987 Admin. In Fery v. stopped paying the monthly fees to DBL Corporation on the ground that the contract was not authorized by the SP and not covered by actual appropriation for the full amount of the contract. Supreme Court said the moment the expropriator completed the expropriation and a certificate of title is issued pursuant thereto. mo prevail ang right to life. the City of Cebu. Like love. there must be a prior authorization by the Sanggunian concerned. he has all the discretion on what to do with the property. 46 and 47. Pursuant to Section 22(c) of the Local Government Code. Subtitle B. then the former owner. the 1973 Consti and then of course the 1987 Constitution. or barangay hall. [Francia vs. 2014} (Discussion of Mock Bar Exam question earlier raised by Miguel Lumapas pertaining to the reclassification of land containing mineral oil deposits into commercial and ordering the oil establishments to transfer their properties and the Secretary of Energy assailing the same ordinance: The case of Social Justice Society vs Chevron or Atienza (2008). if the contract involves the expenditure of public funds. Kung wala ang condition sa decision. So pwede niya I abandon ang public purpose. Republic (Feb. The contract is for a term of 5 years at a rate of P1. After two years. So nachange na ang legal landscape. absolute siya. The local government unit must have the power to enter into the particular contract. B. acquires unrestricted ownership for a fee simple title to the covered land. pwede sad niya ireplace. Nya may reasoning ang court. Interestingly. Nya common kuno aning 3 Consti class the requirement of public purpose. Kay ug absolute owner ka. Let’s say ni expropriate siya for public plaza nya diay to giconvert niya to recreational facility. ) Problem The City of Cebu entered into a contract for services with DBL Corporation under which the latter will provide machineries. and a legible copy of the contract shall be posted at a conspicuous place in the provincial capitol or the city. Either i-abandon ang public purpose or ilisan ug lain na purpose. Apparently the Supreme Court made a finding on the hierarchy of rights. we had the 1935 Consti. invoked the right to property. Gireverse ni sa Supreme Court. cont’d The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. Unconditional. may seek reversion (return). Anunciacion Vda. is no longer tenable. involving the Pandacan Oil. This is one example. De Ouano vs. Anunciacion Vda. 1921 Spreme Court America nya gitrace sa Spreme Court ug unsa ba gyud diay ng sa US. of the just compensation received. Republic. Between right to property or life. The notion that the government. But you can replenish loss from property. involves the right of the locality to life. Sa Fery v Cabanatuan naai expection ang court na unless the expropriation proceeding provided for a condition. The law does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession. Sa ato pa. So Supreme Court now says the expropriator should commit its use pursuant to the purpose stated. Local Gov’t Law. pwede sad niya icontinue. 9. and facilities for the dumping of garbage in a dumpsite. 2011). And the zoning ordinance was upheld as a police power measure. De Ouano vs. 2010. for obedience ra gud na gud. we cut the umbilical cord. equipment. C. kining the disposition was unconditional. In accordance with Secs. (hahaha) So kini. 1 ang Fery case penned by an American jusrtice. Such that the original owner cannot necessarily recover the property if the expropriator will not use it for the public purpose for which the expropriation was initiated. via expropriation proceedings. if he so desires. I apply nato. Kay ang right to life daw is irreplaceable. municipal.

Resolution or General Appropriation Ordinance?  Quisumbing v. kanang mga USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Lexber. Unya for example. 2 there must be a prior authorization by the Sanggunian concerned. it involved services and therefore to be rendered not at one time and therefore payable on a monthly basis. Prior authorization by the Sanggunian. statutory and contractual obligations. Or. or payable one time lang. then the certificate of availability of funds does not have to cover the entire project amount. it was not declared void ab initio even if it did not cover the entire amount because the services were to be rendered over a period of time. yearly man. “only the annual appropriations for salaries and wages of existing positions. 2001) This was the ruling of the court in Quezon City vs. wala pa gyud nuon ni gi-ask since it was promulgated in 2008. question: at the time that it is covered by the contract.5 million per month. Dili specific ba as to the form. the certificate of availability of funds should cover the exact amount. Remember this Quisumbing vs. the contract is for five years at the rate of 1. Pwede siya as will accrue. Gov. Pero wala gi-specify kung unsa nga authorization. American origin man gud nah. Garcia (2008): The fact that the Province of Cebu operated under a reenacted budget in 2004 lent a complexion to this case which the trial court did not apprehend. is the LGU required to state in the certificate of availability of funds that there will be (1. In this case. availability of funds by the treasurer of the local government unit (Except in the case of a contract for supplies to be carried in stock) D. or General Appropriation Ordinance? Resolution ang requirement. & Public Int’l Law 61 . Kay kani man gud nga mga words like prior authorization. Local Gov’t Law. subject to ratification What I am asking you in the question is about actual appropriation and certification of availability of funds. So it depends on the contract class. the authorization is posted 3 there must be actual appropriation and certificate of availability of funds 4 the contract must conform with the formal requisites Q: What will happen if one of the requisites is lacking? What will be the effect of the contract? A: if absent ang 1 and 3 void. Alright. Required ba nga mag certificate of availability of 90 million? That is an important thing to consider. While in the latter case. it was argued that pwede baya ug General Appropriation Ordinance because. When to make actual appropriation for a contract. The question in the problem was. kay usa ra baya ang contract unya mo-comply baya ka sa requirements supposedly one time kay naa na man tong contract so- icomply nimo ang requisites karon kay karon man nako pirmahan ang contract. If the obligation in the contract is to be complied with at one time. correct? Ohh. and therefore the obligation. the first case.5million per month multiplied by 12 months every year kay ang meeting raba sa council. Kani. While in the former. So as will accrue ang ma-cover sa budget. That is the effect of combination of American and Civil law legal system. and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted. diba sa General Appropriation Ordinance? And what is required is authorization lang. In the latter case. Anah ba nah? The answer is per year. The contract must conform with the formal requisites of written contracts prescribed by law Requisites for validity of contracts entered into by local government units: 1 The local government unit must have the power to enter into a particular contract. In the Imus case. (Quezon City vs. the construction of the abattoir entailed the payment in full of a fixed amount. the case at bar involved a contract for services still to be rendered which was payable on a monthly basis. asa man nah kuhaa ang funding. the Supreme Court did not declare the contract null and void ab initio for the reason that appropriation for the project can be made subsequent to the execution of the contract. Resolution ba. Lexber. or ordinance.5m x 12 months x 5 years) 90million. Distinguishing old cases Osmena and Imus cases. So that is important rule to remember. But if the expense. it involved payment in full of its amount. Governor Garcia case? Resolution. Inc. 1. When to make actual appropriation for a contract: The facts in the Osmeña case are not parallel to the facts in the instant case. Sec. Contract. not subject to ratification (Doctrine of Estoppel will not apply) if absent ang 2 and 4  voidable. just as in the Imus case. 323 of RA 7160 provides that in case of a reenacted budget. will accrue over a long period of time.

On the other hand. flood control. it cannot specify each and every project. May the suit prosper? If yes. If it is governmental it is not liable but for proprietary. kana lang street daan. ang ila rang requirement is that it shall be posted in a conspicuous place…or in a manner…kanang mga ingon anah raba. So in this case you distinguish governmental from proprietary. In this case. every specific project covered by a contract. the appropriation ordinance already being sufficient. But under section 24 of the LGC there is no such distinction. Specific sanggunian approval may also be required for the purchase of goods and services which are neither specified in the appropriation ordinance nor encompassed within the regular personal services and maintenance operating expenses. Lauro was on his way to get a load of sand for the repair of road along Fuente Street. Diba? So you remember this rule. a cargo truck driven by Joseph. who should be held liable? Apply the Torio vs.posting requirements on ordinances or resolutions. Since a LGU may be held liable for damages in some instances. And you know.) 2011 Bar A collision occurred involving a passenger jeepney driven by Leonardo. Local Gov’t Law. Problem The Sangguniang Panlungsod (SP) of Carcar City ordered the construction of a wooden stage for a play during its fiesta celebration. “inter-municipal waterworks. Fontanilla case. Pwede man nga lain ang mu-trabaho sa cement. LIABILITY FOR DAMAGES For defective public works: ownership is not the rule. gikan sab sa sanggunian. So lain-lain man nah nga contract so separate sad nah nga authorization or resolution. another project na pud nah siya. Enforcement of Monetary Judgment USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. So specific siya. liable. or “roads and bridges”. and because it is covered by a contract. (Sir says to check reviewers. Lain-lain pa gyud gani nah. Tan-awa ning Garcia. kay general gani. Is the City of Cebu liable for the tort committed by its employee? This copied the case of San Fernando La Union vs. there is an obvious need for a covering contract for every specific project that in turn requires approval by the sanggunian. Cebu City. Kay ang imung resolution specific man. no further authorization is required. Firme. naa pay argument nga: Is it not nga ang ordinance. and irrigation system projects”. sa USA anah class. Example is a resolution authorizing the city mayor to sign a contract for the construction of an overpass. each and every project shall be covered with a specific contract. Daghan ang mga contractors nga involved. If the general appropriation ordinance is specific as to the project. only supervision. one contract nah nah. Over-pass in another area. already contain in sufficient detail the project and cost of a capital outlay such that all that the LCE needs to do after undergoing the requisite public bidding is to execute the contract. But that is more of a theoretical explanation by the court than actual because lisud man na pangitaon sa general appropriation ordinance nga specific. 3 passengers of the jeepney died. Unya ibutang pud kung kinsa ang contractor. As a rule. should the appropriation ordinance described the projects in generic terms such as “infrastructure projects”. but who will be held liable? The members of the SP will not be liable because of the principle of distinct and separate personality. it is not pa jud specific as to the type of the project. The participants sued Carcar City and all its SP members for Damages. The General Appropriation Ordinance usually. As a result of the collision. Pero bisan ug nag sulti pa ug street. gibutang nga prior authorization. we need to know how to enforce monetary judgment. This has never been asked in the bar. it should likewise carry a specific and definite resolution for that contract. then another contract nasad. & Public Int’l Law 62 . gikan sa Sanggunian? Ang resolution. Nganong dili man mu-take the form of a resolution ang ordinance and consider it as a prior authorization? Ang problema class is this. Kita class. which by the way does not happen kay imagina ninyo nga mu-ingon “15 million for road widening” pero walay gisulti nga street. and lain pud ang sa earthmoving. “reclamation projects”. and a dump truck driven by Lauro but owned by the City of Cebu. The stage. drainage and sewerage. collapsed causing serious physical injuries to the participants of the play. Their families filed a complaint for damages against Joseph who in turn filed a third party complaint against the City of Cebu and Lauro. sobra ka specific. Ibutang gyud nga posted in three consecutive weeks… specific gyud ba. Naa man nang mga ingon anah. for instance. Our case in course here is the municipality of Makati vs CA. So are they liable for damages for torts? It was for the purpose of loading sand for governmental purpose. Mao nga ni-ingon ang SC nga depende. fiesta celebration is proprietary. however. Wala gyud gibutang kung unsay form. Should the appropriation ordinance. So kung mu-ingon ka ug road widening of Pelaez Street.

[2005 Bar Exam] Eligibility of Ecclesiastics to a Local elective position  Section 2175 of the old Administrative Code stated: “In no case shall there be elected or appointed to a municipal office ecclesiastics. COMELEC ousted her in an election protest that Gudi.” (Mun. (b) A resident of the locality? Explain. Adela won and served as Mayor for Gudi’s remaining term. the applicable case is Frivaldo vs. 1995 his certificate of candidacy for the Office of Governor of Laguna. 1. Levy on the patrimonial properties of the judgment local government unit. He won.”  In Pamil vs. 2. or contractors for public works of the municipality. & Public Int’l Law 63 . To be qualified for the office to which a local official has been elected. When a municipality fails or refuses. Teleron (1978). taking oath and assumption of office. So at that moment siya required mo possess sa citizenship requirement. He presumed we know this already) 2011 Bar Adela served as mayor of Kasim for 2 consecutive terms. COMELEC As ruled in Frivaldo the rule of retroactivity on the effects of repatriation. So at that moment ang required nga mu possess sa citizenship requirement. Because some other requirement has a specific reckoning point like the second question. the vote of 7 was not enough to declare the above provision unconstitutional. and the corresponding disbursement of municipal funds therefore. Only citizen requirement because some other requirements. Can Adela run USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. persons receiving salaries or compensation from provincial or national funds. but his qualifications as an elected official was questioned. It should retroact from the day of filing of the application so by the time you filed for the certificate of candidacy you are considered as a Filipino and you were elected and voted upon he was already a Filipino. Will Voltaire’s action prosper? (No discussion by Sir. It is admitted that he is a repatriated Filipino citizen. these qualifications need to be possessed by the official not at the time he filed his certificate of candidacy but at the time he takes his oath of office and assumes his post. So an “elected” official is considered only an “elected” official upon proclamation. including “naturalized” citizen of the Philippines Frivaldo Case: The qualifications in the LGC refer to that of “Elective” Officials (and not of “candidates”). what at the latest should he be: (a) A Filipino citizen? Explain. So if you have been repatriated a year before the filing of the certificate of candidacy the court in this case that it should be given a retroactive effect. Gudi faced recall proceedings and Adela ran in the recall election against him. 1995. taking oath and assumption of office. Section 39 of the LGC qualifications of elective officials and not of candidates so an official is considered as an elective official upon proclamation. Ricky filed on March 20. hence. naay specific reckoning point. Local Gov’t Law. 1995 elections for local officials whose terms were to commence on June 30. the municipality became a city. the residency requirement: it is 1 year on the day of election not noon of June 30. of Makati vs. On her third term. to effect payment of a final money judgment rendered against it. CA) You cannot go straight to the funds of the LGU because as you know public funds will be taken from the public treasury only by law for congress and ordinance for local government officials 2005 Bar In the May 8. Two years later. Citizenship . Voltaire sought his disqualification citing the 3 term limit for elective officials. Alfredo ran for city mayor during the next immediately succeeding election. without justifiable reason. For local elective officials. her opponent. Natural-born or otherwise. Like the second question. During his third term. and resident of the Province of Laguna. soldiers in active service. the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance. 2011 Bar Alfredo was elected municipal mayor for 3 consecutive terms. filed against her.

the Sanggunian concerned “recommends” to either the President (Prov. Fills a higher vacant position 2. HUC. Third. as the case may be. Technical siya nga requirement. the Governor of Bohol died and Vice-Governor Cesar became the Governor by operation of law. you need to know who caused the last vacancy. you need to know what are the instances of permanent vacancy (as shown below). the Sanggunian concerned recommends to the Mayor. you need to know the formula. COMELEC) Note: A tie between and among the highest ranking sanggunian members shall be resolved by “drawing of lots. 2008. Victoria vs. Fails to qualify 4. Removed from office 6. If not a member of political party. If a member of political party. a vacancy in the Sangguniang Panglalawigan was created. ICC) or the Governor (CC & Mun).” Ang kuyaw lang diha ang “in each district” kay instead of votes cast which is the usual way of computing like in the case of party-list. Accordingly. it is votes obtained over votes cast for the party-list. (Also what is the meaning of last vacancy in the sanggunian) Permanent Vacancy Official: 1. Farinas vs. Kani siya dili votes cast but “total registered voters in each district”.again for Mayor in the next succeeding election without violating the 3 term limit? Vacancies and Successions Issues: 1. Local Gov’t Law. Barba) USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. By the elevation of Benito to the office of the Vice-Govenor. Permanently incapacitated to discharge the functions of his office Formula for ranking the Sanggunian members: “Ranking”  Formula: Votes Obtained ______________________________________ Total Registered Voters in each district (not votes cast) (see Sec. 44. Meaning of “permanent vacancy” 2. How do you break the tie between the highest ranking sanggunian members? DRAWING OF LOTS. First. 45. Meaning of “last vacancy in the Sanggunian” 2008 Bar On August 8. Refuses to assume office 3. Resigns 7. Dies 5. Second. Method of “ranking” 3. & Public Int’l Law 64 . as the case may be. the party of the official who “caused the last vacancy” shall nominate to the President or the Governor. How should the vacancy be filled? It depends whether Benito is a member of a political party. the highest ranking member of the Sangguniang Panlalawigan was elevated to the position of Vice-Governor. since there is no political party. Vacancy  How to fill up the vacancy? It depends on the kind of LGU and it depends on whether the one who “caused the last vacancy” is a member of a political party or not. Benito. (See Sec. If in the Barangay Sanggunian.

kay ni-succeed pud siya sa number 7 spot. Si Councilor A. Meaning. and then si H will be the 7 th councilor. As a result. Appointee must have a nomination and a certificate of membership that he is a bona fide member of the political party. HUC’s – President All others – Governor except for Barangay Barangay – Mayor By appointment man ang pag fill-up sa vacancy. So it will now be the highest ranking sanggunian member who will become Vice-Mayor. it is his party that will nominate. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. si H. The appointee must have a nomination and a Certificate of Membership (bona fide membership) from the highest official of the political party concerned. Mao na importante na makibaw ka who caused the last vacancy. The Vice-Mayor. The other prospect is A. then i. Now. we will have to fill up the vacancy. As a result nga si A ni succeed sa post sa Vice-Mayor. And finally. it is A who caused the last vacancy. what is the rule on succession? Illustration: Mayor: X (XXX) Vice-Mayor: Y (PPP) Councilors: A (KKK) B (XXX) C (PPP) D (PPP) E (KKK) F (Independent) G (YYY) H (PPP) The death of Mayor X results in permanent vacancy. Y will become the Mayor. because he succeeded the post of the Vice-Mayor. because had he not died. B will come out as the number one councilor. Local Gov’t Law. which can still be considered as a recent case on the matter.restore ang party representation in the Sanggunian. Dapat ang highest- ranking official of the political party concerned. CA (2001) The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election.It depends on the LGU because mag depende man gud kinsay mo appoint. So in the case. A will the Vice-Mayor and then B will now be the highest ranking councilor. & Public Int’l Law 65 . Our prospects would be: Mayor. So who caused the last vacancy? (Navarro vs. The recording has to be this kind of interpretation is because the purpose of the rule is to maintain party representation as willed by the people in the election. Tumamao. states the requirements as to nomination: 1. The case of Damasen vs. Once appointed by the appointing authority. . ang KKK party would lose a representative in the person of A. because had he not assumed the post of the Mayor. So for example (refer to the illustration below). So it is but a sound interpretation to say nga ang KKK ang maka appoint. Another vacancy will be created and that is the office of the Vice-Mayor. from the highest official of the political party concerned. 2.So kung provincial chairman lang siya of the party ang ni issue sa certificate. Now we need to fill up the vacancy. Navarro vs. 2. there shall be someone who will be appointed to become councilor. Nya ang rule class kay ingon ani man: that someone should come from the political party if the one who caused the last vacancy has a political party. Damasen vs. CA) In this case. dili na mao ang gi require sa code. Provinces. The appointee shall come from the same political party as that of the Sanggunian member who caused the vacancy. Tumamao (2010) Conditions for the rule of succession under Section 45 of the LGC to apply: 1. Appointee shall come from the same political party who caused the vacancy. walay sa’y succession. Since A is a member of KKK political party. wala’y vacancy. Mayor X died.

Aguirre (2009)] Problem: Mayor X of Cebu City went to Manila for three days to attend a two-day seminar. Will Y. (BAR) Temporary Vacancy. (2) Yes. suspend. [Gamboa vs. Who shall perform the powers and functions of the Mayor of Cebu City during X’s absence and what are the scope and limitations to such powers and functions? The Officer in Charge (OIC)  To be designated by the LCE when he is “travelling within the country but outside his territorial jurisdiction” for a period not exceeding three (3) days  The OIC [Vice or HRS of Brgy] shall perform the powers and functions as may be delegated to him by the LCE except the powers to appoint. Vice-Mayor Y acted as Mayor in the meantime. The only powers and functions that may not be exercised would be the power to appoint. SC said. dili man na usurpation because an acting mayor can exercise all the powers and functions of a mayor except only the three powers mentioned earlier. Bustamante. So it is not wrong for the Sanggunian to elect an acting presiding officer. may the SP select elect a new Presiding Officer? ANS: (A) (1) The powers and functions that the acting local chief executive can exercise would be all powers and functions. the Vice Mayor (who was the Acting Mayor) was held to have the power to solemnize marriage which is a power belonging to the Mayor under the LGC. suspend or dismiss employees. In which case.  Hence. except the power to appoint. suspend . for solemnizing marriage in his capacity as acting mayor. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the VM. A. suspend or dismiss employees. Sc said no. It was upheld. unless the temporary incapacity exceeds thirty (30) days. the Vice or the HRS has the right to assume the office of the LCE on the 4th day.  A Vice-Governor who acts as Governor effectively creates a temporary vacancy in the position of Presiding Officer of the SP. While Y is acting as Mayor of Cebu City. entitling therefore the SP to select an acting Presiding Officer during the period that the Vice- Governor acts as Governor. Otherwise. because it does not involve the power to appoint. act as Mayor during X’s absence? B. your acting as Governor creates a temporary vacancy in the position of the presiding officer. siya lang japun ang presiding officer. pwede na cya ka appoint. the Vice or the Highest Ranking Sanggunian member (HRS) shall automatically exercise the powers and functions of the Local Chief Executive (LCE)  All powers and functions of the LCE can by exercised by the Vice or the HRS. pwede na cya ka suspend. A. cont’d …  In case of temporary incapacity. kay gusto man sa Vice Governor nga while nag acting siya as Governor. It was correct for the Sanggunian to elect for an acting presiding officer.  If the LCE has not designated an OIC. Local Gov’t Law. it results also to temporary vacancy in the position of the presiding officer. What powers may and may not be exercised by Y? Can Y solemnize marriage? B. kay gikiha pa gud og usurpation of powers ang Vice Mayor in the case of People vs Bustamente. dismiss employees but subject to this exception where temporary incapacity exceeds thirty (30) days. In the case of Gamboa vs Aguirre. or dismiss employees. in People vs. pwede na cya ka dismiss .Problem Mayor X of Cebu City went to the United States for one month. (B) When that happens. the public service will be prejudiced. & Public Int’l Law 66 .

of course among others EVIDENCE OF GUILT IS STRONG. Unya concurrent na siya. so whatever pleading is filed in response to the sub-poena. Una sa list nga e-designate ang Vice-Mayor. ang first nimong tan- awon ang designation kay e-designate man cya. But the mayor will designate an OIC. Kung kontra partido nimo ang President unya ang iyang ka party mate kay ang respondent. Local Gov’t Law. So what does it tell you? Ang preventive suspension diay ani nga mga cases sa local government code. there are three conditions sine quo-non for the position of preventive suspension. What is an issue? An issue is that allegation of the plaintiff or the complainant have been specifically denied by the defendant or respondent. Governor. may technique man sad ron when to go to the Office of the Ombudsman or to the Office of the President.. 63 and as interpreted by SC in Jason III vs CA . regardless of days. 2006) What I would like you to remember is that. CA. any pleading that will tender an issue. quick ang resolution didto. Kung ka political party nimo ang President. 2. all. which means that? What do you mean by issues have already been joined? That presupposes that. all the powers and function of the local chief executive except for the 3 exceptions. duha’y options . First it is required that Issues have already been joined. kana understandable na man sila nga mga elements. respondent might influence witnesses or pose a threat to records/evidence (Sec. Given the gravity of the offense. in the case of Barangay. Q: Who can impose preventive suspension during the pendency of an administrative disciplinary proceeding? A: Kung administrative case. according to the SC dili kinahanglan nga answer ang gi file. assuming nga ang respondent kontra partido sad. President. Mayor. Wala pa gi ask sa bar. I think this is important dili na siya nga inig ka receive nimo sa sub poena to file answer dungan sad ang preventive suspension. wala pay issue. (c) Given the gravity of the offense. Pero kung within the Philippines lang unya not exceeding three days. 63 in the imposition of preventive suspension. But caveat in the case of Jason III dili answer ang gi-file it was like motion for bill of particular and several other motions. Kung gusto ka adto lang ka sa Ombudsman. bisag kinsa ang e-appoint? A: Dili pud. in the case of CC and Mun. 63. after pa diay pg file sa answer. what does it mean? Kanus. in the sense nga nag file ka sa Mayor of a highly urbanized city pero ang imong gi-file nga administrative complaint kay Office of the President which means dili na pwede ang mo act Ombudsman. unlike labor law that after giving show cost memo. you should not go to the Office of the President. og abroad. may requisite sad diay for preventive suspension. Preventive Suspension Authority: 1. unsa nga powers ang gihatag sa local chief executive niya. in the case of HUC and ICC. you know.Q: What is the distinction between an OIC mayor and an acting mayor? If the local chief executive is travelling within the Philippines. bisag one day lang – temporary vacancy na cya. He shall perform powers and functions as may be delegated to him. 3.a man d i deny ang allegation? Filing of an answer or any responsive pleading. (b) Evidence of guilt is strong. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. wala’y temporary vacancy. of course hearing is not a requirement because it is not a penalty as you know it is just a preventive suspension. mao na ang technical meaning ug ng make ka ug issue ug wla pa na gi deny. but nag tender ug issue then issues have been joined. issues have not been joined yet until and unless allegations are denied. katulgan na diha. preventive suspension dayun. Q: Kung OIC. & Public Int’l Law 67 . REQUISITES FOR PREVENTIVE SUSPENSION: (a) Issues have already been joined.. respondent might influence witnesses or pose a threat to records/evidence. Instead you go to the Ombudsman then. Jason III vs. Ang sa acting. pwede pa sud pa within 10 years. what will surprise you is the first issues have already been joined. A: Ang sa acting mayor. common mana sa preventive suspension. PREVENTIVE SUSPENSION Naay specific requirements ang Sec. Under sec. you go to the Office of the President. ang OIC. whether you go to the Office of the Ombudsman or you go to the proper agency or officer under the Local Government Code. this is administrative disciplinary action. ang sa OIC based on the designation letter.

ang Aguinaldo doctrine is not original as I’ve said. a petition for recall against Anton. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Local Gov’t Law. Maayo lang if province unya isa ra ka district diba ky dili na mo matter. In the US. The original doctrine is the principle of condonation. Three fold liability rule is important principle. so pwedi ra tawgun ug Aguinaldo doctrine. mao btaw na usahay mga materials na gamit nnyo and notes still talks about preparatory recall assembly. The COMELEC approved the petition and set a date for its signing by other qualified voters in order to garner at least 25% of the total registered voters or total number of those who actually voted during the local election in 2005. (sir is not sure if there had been election in 2005) if there is an election sa 2004 the only election possible is for the barangay ra jd…] ANS: It only involves procedure for the recall. since his re-election to the office operates as a condonation of the officer’s previous misconduct to the extent of cutting off his right to remove him therefor. Sauna preparatory assembly man. The famous (or infamous) “Aguinaldo Doctrine”  A public official cannot be removed from office for administrative misconduct committed during a prior term. Not the same as filing petition for people’s initiative. the principle of condonation would require the entire province. Discussed already… RECALL Removal of a local government official during his term on the ground only of loss of trust and confidence and the issue of loss of trust and confidence is resolved via recall of election. let’s say you are serving your term 2013–2016 as governor. Here in Phils. It has its own procedure provided in the RA 9244. That is why dili ni midala ug wido wido. it is applied in reelection. What is the procedure? (provided in the codal RA 9244) The rule now is to file a petition. So preparatory recall assembly in the past is no longer visible. Meaning. You cannot say for example (refers to gwen) ang nag reelect ra nya kana ra ang 3 rd district whereas if ni dagan pa siya ug governor. ang principle of condonation historically applies to RE-ELECTION.a nang uban diba mu ana gyud na Aguinaldo doctrine. the original principle is principle of condonation. Kung governor ka the same constituents pag dagan nimo ug congressman and ni daug ka the same constituents ky isa raka province isa ra sad ka district pero if ingon ana na nga dghan ug district imo gyd e. Curious ko na e.PRINCIPLE OF CONDONATION What is the principle of condonation? Actually Aguinaldo doctrine nah. who also ran for mayor. Victoria. Wala ng preparatory recall assembly.clarify na sa court if ever there will be an issue on that matter. and during your incumbency you committed misconduct kay end na mana sa imung 3 consecutive term. whichever is lower. Aguinaldo doctrine is not original. Possibly lain lain ni sila ug mga voters. we used the term Aguinaldo doctrine but I think the better term is principle of condonation. But actually principle of condonation. However.  It applies only to administrative case for misconduct. You are elected as local city executive and then you became a law maker .apply ang principle of condonation? Ang minority nga condonation mo apply sa majority? Hard to tell. and that was the first case after the effectivity of the LGC. only registered voters nlng. So hain mn na mo apply? It is very hard. I respectfully submit that there is no application of principle of condonation. wala na na siya rn. There is an amendment in the recall provision section 70 and 71 Chapter 5 Title 1 Book 1 of the code had been amended by RA9244. Do you agree with Anton? [Transcribers note: I think ang pasabot nya sa 2005 katong barangay election. filed with the Local Election Registrar. He got 51% of all the votes cast. What is the difference if there is any? . Fourteen months later. ni dagan ka pgka congressman can you be sued for the misconduct that you committed during the term that you are the governor at the time that you are a congressman? Matay pangutan. so the official may still be held criminally or civilly liable for the same act. (Cf: “Three-fold Liability Rule”) Ang issue lang karun class naay expanded understanding or application of Aguinaldo doctrine not by the SC but kana lng mga chika2 lang bah. If there is no reelection. Anton attacked the COMELEC resolution for being invalid. 2011 Bar Anton was the duly elected Mayor of Tunawi in the local elections of 2004. & Public Int’l Law 68 . Sauna 2 modes of inititiating recall registerd voters and preparatory recall assembly.

not “proceeding”)  No recall (election) shall take place within one (1) year from date of official’s assumption to office or one (1) year immediately preceding a regular election (day of election and that election affecting the office of the official concerned). Mayor X. Dili pwede nga ang basihan sa registration ang percentage which would be the percentage of voters at the time a petition for recall was filed but at the time the election was conducted. Basihan sa percentage would be the registered voters in which the local official sought to be recalled was elected and of course with the required percentage. & Public Int’l Law 69 . Under the new law. But what is prohibited is the conduct of the recall not the election. dili magkinahanglan nga pag initiate nimo middle gyud. 2. who is a lawyer ANS: A mayor is absolutely barred to practice his profession during his incumbency. municipal or barangay official shall now be commenced by a petition of a registered voter in the local government unit concerned and supported by the registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected subject to certain percentage requirements. 1. it shall be commenced by a petition by a registered voter in the LGU concerned and then supported by the registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. The process will be: first. Councilor Z. Ang kinahanglan ana ehold lang kay recall elections shall take place in the middle term. In the recall election. so middle term ra pwede.  Recall election should only be once during the term of the official. PUBLIC INTERNATIONAL LAW USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. This includes two: any profession or occupation. city. what if nay magconduct nga barangay. Local Gov’t Law. who is an Engineer C. with certain limitations to lawyers on grounds of conflict of interests. Sangguniang Panlungson/Panlalawigan: They can practice their profession or occupation except during session hour. (note of “election”. In fact. automatic candidate siya.Basic Procedure The Recall of any elective provincial. who is a doctor B. it will be conducted only once during the term of the official. The Local Government officials subject for recall is not allowed to resign. It’s possible that there will be different voters. That includes radio announcers. But pwede ka mag initiate earlier. PROHIBITIONS IN RECALL PROCEEDINGS (important) Prohibitions in Recall Proceedings:  No resignation during recall process.  MDs may practice profession even during officer hours in case of emergency w/o comp. 3. Practice of Profession  All LCE’s cannot practice profession nor engage in any occupation other than the exercise of their functions as LCE’s.  SP Member can practice profession or engage in any occupation except during session hours. Vice-Mayor Y. Doctors of medicine can practice his profession during emergency situations but without compensation. Mayor X. PRACTICE OF PROFESSION Question Who among the following local elective officials can practice his profession? A. Isa lang para lang pag trigger ug process sa petition for recall didto sa Comelec. No recall election in the first year and in the last year. who is a doctor cannot practice his profession with the exemption of course in emergency situations where the mayor doctor is not receiving compensation. Councilors can practice their profession/occupation but outside session hour. petition by a registered voter. Basin mag overlap ang registration.

They are also entitled to some protections. We will talk about this in details after mock bar. September 5. minorities). As you know in the past states were the only considered subjects of international law. WTO). juridical persons (multinational companies). or (b) executive agreements that are similar to treaties. 4833-PH is in the nature of an executive agreement. including the right to bring international claims. that’s the name of the bank. and NGO’s (e.” Section 101. The importance of this one is that while this is very elementary. The UN filed a claim for and in behalf of the Swedish negotiator. Even individuals are considered possessing international legal personality under certain conditions as we will later on discuss. Greenpeace. But as you have already learned. the modern definition of public international law would no longer focus on states.” But of the many definitions given by authors. please do not write state/states in your definition.” Because in the past that really was the name given to the rule or norm regulating the conduct of States. Local Gov’t Law. no other. UN. So ana ang SC ang international agreement is considered a treaty and kanang treaty class. individuals (protected persons of IHL. But instead you write “international persons”.g. Amnesty Int’l)  Case: -Reparation for Injuries Case (ICJ Advisory Opinion 1949) Subjects are those that possess international legal personality capable of possessing international rights and duties and will have the capacity to bring international claims. ICRC. Look at this 2014 case. whether natural or juridical. The nature of this executive agreement. an Executive Agreement Loan Agreement No. But for some we don’t put in the same level other international persons with states.  Primarily: STATES  Secondarily: International Organizations (e. But modern PIL welcomes other international persons. and all others if they have international personality as secondary subjects of international law. the one that is usually used in defining public international law is that found in the Restatement [Third] of the Law by the American Law Institute of Foreign Relations Law of the United States. “Subjects” of International Law  Subjects: those that enjoy international legal personality and being capable of possessing international rights and duties.” and further expounded that it may be in the form of either (a) treaties that require legislative concurrence after executive ratification. Even the Philippines adheres to this. We can refer to states as primary subjects of international law. Loan Agreement and International Bank for Reconstruction and Development (IBRD). The reason SC said that the Philippines should comply with the terms and conditions of this executive agreement is because of the principle of pacta sunt servada. 2014} So first. I’m talking about international organizations.g. still it has the character of an international agreement. (Sir is not sure of the title---landbank of the Philippines case) Loan Agreement and International Bank for Reconstruction and Development (IBRD). Definitions of “Public International Law” Brierly: “the body of rules and principles of action which are binding upon civilized states in their relations with one another. Even international financial organizations are considered international persons. SC here class said that even IBRD is an international person. Even individual are considered international persons or rather subjects of international law. And they are protected by the effects of war under IHL. “whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. But the better approach is that all of these are subjects of international law. even if without the concurrence of senate. That’s why in the book of Hans Kelsen.” Hackworth: “it is that branch of public law which regulates the relations of states and other entities which have been granted an international personality. the Court defined an international agreement as one concluded between states in written form and governed by international law. insurgents and national liberation movements. In Bayan Muna vs. & Public Int’l Law 70 . That therefore brings me to my next point. Restatement [Third] of the Law by the American Law Institute of Foreign Relations Law of the United States: “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se. when it was first used “inter- national law” ang pagka suwat ana niya indeed governing nations. by definition. The concept of SUBJECT. as well as with some of their relations with persons. Romulo. like the UN. In the Reparation for Damage case involving the death of the negotiator of UN when he was killed in Israel. I said already that the states are the primary subjects of international law but modern international law would include all other.{PRE-MOCK BAR. I don’t know if it will be asked in your [mock] bar but I think it’s good to begin with the definition of Public International Law kay lisod man sad ug “What is public international law?” unya muingon ra sad ka ug “…the law of nations. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.

So kung highly qualified publicist lang. Ingun ang SC. this includes agreement.sir said: I don’t think that this has something to do with international law kay not an organization of states but sports organization only. You cannot use treaty if it does not involve states. So ingun and SC sa case. accord. charter. So it should be governed by international law. act. Local Gov’t Law. In the absence of the primary sources.  “Law-making treaties” vs. understanding. Usually the convention. economic and other substantial terms and conditions but mostly or probably on business dli daw ni govern by the Vienna convention on the law of USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. regulation and provision. But under the definition of Vienna Convention of the Law of the Treaty. (question from student: if FIBA is international organization   --. are you referring to where the principle had its origin? So the answer would be. When we say formal source meaning how the international law came about or how did it exist. It is also possible that the UN will initiate but it will be signed somewhere else or it will be agreed upon or formalize somewhere else like in Hague or in Geneva but this is initiated by UN that is why nagcarry gihapon siya sa name nga convention. that the treaty perceive in the 1969 Vienna Convention on the law of treaties should only cover law-making treaties. protocol and charter. These names arise because the manner of creating the conventions vary. it is not an instructive opinion. arrangement. So that is an affirmation that dli ra jud states ang international persons. pwede akong tun. Either directly by the general assembly.can be entered into by states. International Conventions/Treaties  Whether general or particular and establishing rules expressly recognized by the contesting States. like the CAT or convention against torture. This is a convention of course but directly passed by the general assembly of the UN. So there is a process except to the extent probably according to authors that there can be an instant customary international law. the IBRD possess an international personality. If you will use the teachings you must make sure it must be complete. So kanang gitawag ug contract treaties. & Public Int’l Law 71 . with regard to the law on treaty. usually that is applicable in the case of customary international law because they are in fact to be form. pact. So the term international convention is generic and there are other terms covered by convention. I don’t know studihan sa nko. Statute of ICJ: Primary: (a) International conventions (b) International custom (c) General principles of law Subsidiary: (d) Judicial decisions and teachings of most highly qualified publicists We call this as sources of international law. But im not sure. procurement act set aside sa ka kay this is an international agreement.  The term “convention” includes (and actually means) “treaty”  Other terms: agreement. but sources can be viewed as formal or legal. statute. When we say legal source meaning where did you get it? So muingon ka ug this problem should be resolve on the basis of the general principle of good faith. tawagon na siya ug convention if it is initiated by the UN. covenant. ) SOURCES (Formal or Legal) of PIL Art. we have judicial decisions and teachings of most highly qualified publicists. pact. Although there is a contention that treaty can be entered into by states and other international persons. Some authors say. declaration. 38 (1). It should be most highly qualified publicists. general principles of law as practice by most civilize nations. engagement. So unsa source ana niya? Is it a source of public international law? So if you say source. protocol. Because you cannot apply the principle of pacta sunt servanda if this agreement by the Philippine through Landbank is with a non international person. So if you say formal or how it came about. So you know that. This was applied in 1 case decided by the Supreme Court. You cannot just make use of opinions of a supposed authority if he cannot be considered as most highly qualified publicists. technical nana ang treaty.an? its sports man gud. Ang gilalisan man gud ani class kung unsa man ang mo govern ang procurement act sa Philippines or the guidelines set by IBRD for the implementation of a project. understanding. governmental. “contract treaties” INTERNATIONAL CONVENTIONS This includes treaties. nothing political. a treaty can only be entered into by states. meaning not involving polictical.

and even the US acknowledged that this is a customary international law.S.S. The threshold now for Regional Customary International Law will be higher as compared to International CIL. we can also make use of the Restatement of Foreign Relations Law by the United States. cannot be considered legitimate prize of war. The leading case on this matter is the Paquete Habana case. Regional CIL will have to arise. 102. wala ta nagdeal anang rule making ba or contract treaties.  1521 Treaty between Emperor Charles V and Francis I of France. So there is such thing as regional customary international law. Only the vessels used during war may be considered prize of war. The US did not subscribe to this argument saying there is no Customary International Law that says that one of the limitations of a prize of war is when the object has nothing to do with war. It was established that the vessels were not aware of the existing war between Spain and the U. There was an argument that you cannot consider fishing vessels (merchant. Take note however that Customary International Law also can be regional or international. 38(1). But this is just more on a normative approach than explaining on what really is the rule on the matter.”  Two elements: (a) Objective Element [general practice] (b) Subjective Element [opinio juris] Let’s talk about Customary International Law or CIL. To simplify we don’t distinguish that. 677 (1900) Facts: Fishing vessels of Spain were captured by US Armed Forces as prize of war. Q: how did the xxx xxxx state practice of this norm? The Supreme Court of the US itself said this is customary international law. Custom  Art. Now in our case. & Public Int’l Law 72 .S. These were claimed to be prize of war and therefore. and the subjective element. In the US apart from distinguishing law making and contract treaties nag distinguish pud na sila ug executing and non-executing treaties but in the Philippines we don’t. The objective element. Held: It is customary international law that coast fishing vessels. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. commercial vessels) as prize of war. The fishing vessels. It should be govern by private international law on contracts. Because of the variations in cultures and practices. The SC said: Some evidence of “state practice” in Paquete Habana case:  In 1403 and 1406. (see slide below) By the way. Henry IV of England issued orders protecting fishermen of foreign states.  Sec. they could validly take custody of the fishing vessels. Local Gov’t Law. What were the pieces of evidence constituting state practice in this case? In other words. This the U. As base on the definition there are therefore elements. This is how it was worded in the statute: International custom “as evidence of a general practice accepted as law”. pursuing their vocation of catching and bringing in fresh fish. All that is needed is “general” practice. there is no requirement of unanimity. Some fishing vessels of Spain were captured by the US armed forces. with their cargoes and crews. the SC looked into whether this was practiced among members of the family of nations. opinio juris.treaties. The US and Spain had war at that time. So apart from the ICJ Statute on Customary International Law. general practice. are exempt. So we have law on private international law and we should just consider this as an ordinary contract. from capture as prize of war. has also recognized as law as shown in the various treaties it had entered into in the past. It is not required that all states practice. The Paquete Habana Case 175 U. (as above) Q: How do we know the presence or absence of general practice or the objective element? The same question applies to the subjective element. because these are commercial. ICJ Statute: “As evidence of a general practice accepted as law”. like in the case of fishing vessels for commercial purposes. Restatement (Third): “Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. A: The way to understand that is to go back to the cases.

If you apply Nicaragua vs. that should not have the effect of diminishing the status of the norm as customary international law if it is codified in a treaty. Local Gov’t Law. ang non-party to the treaty. But the states who are heavily involved in fishing and involved in war. ICJ Report (1986) Facts: Following the overthrow of the right wing government in Nicaragua in 1979. Nicaragua supported some rebels fighting against El Salvador and El Salvador was an ally of the US. If you read CIL. you will learn there are 2 kinds of treaty in relation to customary international law. Later on. US attacked Nicaragua. How is it done? By putting in a convention or a treaty that desired norm and that shall be considered as an evidence or a progressive development of a new customary international law. that make sense. I wrote here.  1536 Dutch edicts (orders) which permitted herring fishing in time of war. US. (Art. So we go back to Nicaragua vs. Possible man sd class nga dunay existing customary international law before. US. That is called “relevant state practice”. & Public Int’l Law 73 . dna cya ma govern sa customary international law.” Another case that illustrated the concept of state practice is Nicaragua vs. Therefore a treaty or a convention can actually override an existing customary international law. the only customary international law that the treaty cannot of course violatate is a customary international law that has already achieve a status of a jus cogens norms ( a peremptory norm where no derogation is allowed). the US in 1981 ceased economic aid on the ground that the left wing Sandinista government in Nicaragua had aided the guerillas fighting against the El Salvador government with which the US enjoyed good relations. The moment there is a claim to apply a multi-lateral treaty against the US. US involved 4 customary international law: Nicaragua vs. there is need to adapt to changing circumstances and therefore to develop a new norm. these were the customary international law norms involved. So this case of Nicaragua vs. 2(4) UN Charter) [The US attacked USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Under the perspective that a treaty can be a progressive development of international law. The US denied ICJ jurisdiction on the basis of a reservation it made to the jurisdiction of the ICJ in matters that involve multilateral treaty. to replace an old one. As we study treaty later on. Nicaragua complained of violations of customary international law when the US used armed force against it and when it provided assistance to Nicaraguan guerillas (the Contras) who had been fighting to overthrow the Sandinista government. A treaty may be considered as a clarification or simply a manifestation of what already existing international law. those states’ practice are the relevant state practice(s). armed. But if ordinary customary law lng. US said those are no longer CIL because they were already incorporated in the UN Charter. [The US trained. this was asked in 1994 BAR. The US had a reservation when it comes to application of multi-lateral treaties. So a treaty can be a progressive development of a customary international law either expression.  184x Treaty between the US and Mexico incorporating the xxx xxx 1785 US-Prussia Treaty The above are examples of a general practice of states.  1785 Treaty between the US and Prussia calling for the protection of fishermen in time of war. Customary International therefore can co-exist with a treaty or convention. USA. how it was asked exactly. Nicaragua argued that customary international law had xxxxxx xxxxx xxxxnded by the UN Charter. But ICJ said that whether or not codified in the UN Charter – the principle against the use of force and principle on non-intervention – they did not lose their character as Customary International Law. That is important because we said “general practice”. Nicaragua vs. and then the family of nations or states realized. I don’t remember if all of these principles were asked and how it was asked but this slide has something to do with that 1994 BAR.  During the American war. USA. Louis XVI of France addressed a letter to his admiral exempting fishermen from capture. this case has an extensive discussion of the topic. ICJ Report (1986) Customary International Law norms involved: [1994 Bar]  Principle of Non-intervention. Unanimity is not required. because a treaty or convention can be an evidence of a new customary international law. the US made a reservation as to its being subjected to the jurisdiction of the ICJ. manifestation. Nicaragua said there was violation on the part of the US of the CIL prohibiting the use of force. The practices of states not involved in fishing are not (as) relevant. as well as a violation of the CIL of non-intervention. any convention can replace that. USA. clarification or progressive development of customary international law. kng tang-tangon na nimu ang customary international law. [The US entered/laid mines in the territorial and internal waters of Nicaragua]  Prohibition against use of force against another State. What is required is “relevant state practice. If that is the case. I just couldn’t remember now. you will also learn that there is a corollary requirement to the practice of states: the general practice must be a practice performed by affected states. and financed the Contras]  Prohibition against violation of Sovereignty of another State. equipped. A treaty or convention may (1) just be a manifestation or a clarification of already existing customary international law or (2) it is an evidence of a progressive development of new customary international law.

evident. 2nd Phase. That is the reason why in our constitution. US is an important case to read when it comes to sources of international law. Although nag dugay sila ug debate ani class kung dapat hierarchical ba or dili. But ingon ang ICJ. If you say at the outset. 51 UN Charter) requires armed attack against the invoking State. ICJ Report. consistent ang objection sa state not to be bound by the norm. Problema lng ky wlay book nag enumerate jd categorize kng ang principle of international law belongs to customary international law or just a general principle of law. either customary. butangi nalang ug primary ug secondary because of so many theories against treating the first three in a hierarchical order.  See: -South-West Africa Case (2nd Phase. } Nicaragua vs. Exception of course is jus cogens. the US attacked ground and naval forces of Nicaragua] (nigawas 2009 Bar. no dispute about it. didtu sa lawum] Prohibition against use of force against another State. USA. there may be principles at the international level for those principles that are not definitely customary international law. And El Salvador and the US had a treaty of a cooperation and mutual defense and therefore an attack to an ally is an attack to the US. 51 UN Charter) requires armed attack against the invoking State. -Barcelona Traction Case (Belgium vs. [That Nicaragua armed the rebels in El Salvador did not necessarily constitute armed xxxxxx El Salvador] {2009 Bar} The Principle of Non-intervention. Because the US said. naay subsidiary. ICJ Report (1986) Key Principles: 1. First argument was. general principle or even convention. ‘No. visible. & Public Int’l Law 74 . tangible.  Naa pa diay question: is there a hierarchy among the sources of international law? Naay primary. armed. that some controversies or problems could not be covered by Customary International Law and Convention. general principle of law? The preparatory works. mai hierarchy ba ni sila…nga dapat. therefore. So these are principles of law practiced domestically but they can be transported at the international level to solve a particular problem. the Right to self-defense (in Art. I don’t remember if it was a problem or probably. 2(4) UN Charter) [It was observed. Local Gov’t Law. [it was violated by the US when. Unsa atu gigamit? Generally Accepted Principles of International Law to cover all possible norms of international law. the attack must be directed against you. meaning to say before it became a customary international law. Principle of “non-intervention” is customary international law and. [when the US entered/laid mines in the territorial and internal waters of Nicaragua. The prohibition on the use of force is jus cogens. They ended up nga ayaw nalang.  Aimed at providing solutions to controversies where treaty law or customary law provides no guidance. it was a problem) Kining Nicaragus vs. walai hierarchy. General customary international law must be determined by the general practice of the states and not just by the states party to the dispute before the ICJ. 4. and financed the Contras. not affected by treaty stipulation. customary international law. El Salvador. So the way to fill the gap is to come up with the third source of public international law that is general principle of Law.  “Law” refers to both “international law” and “municipal law” (common municipal law)  Examples: estoppel. the US trained. Spain. The third one is General Principles of Law. prescription. Another principle of law. good faith. there was an attack on an ally of the US. ground and naval forces of Nicaragua] (2009 Bar)  Right to self-defense (Art. equipped. Why? Because there is a theory that kana gud convention or treaty. Of course. convention. And general principles of law are actually principles of law already practiced domestically. etc. exhaustion of local remedies. observable ang intent sa parties. the rebels in Nicaragua. unya ug wala. ] Prohibition against violation of Sovereignty of another State. [requires armed attack against the invoking state. Unlike in customary international law that you will rely on inferences and is in fact open to persistent objector doctrine. express. 3. Actually ang gihimu nila ani class. 2. they expected. did not show evidence of treating this hierarchical. dapat mai priority or authoritative ang treaty or convention over customary international law. 1970) So these are usually practiced by States at the domestic level. we don’t use either customary international law or general principle of law or simply international law. A state cannot be bound by your customary international law if at the outset before the formation of the customary international law. So the intent to be bound by the terms and conditions. Opinio juris may be deduced from the attitude of the Parties concerned and that of states to certain General Assembly Resolutions. Customary international law can exist alongside treaties. if you’re invoking self – defense. the state concern had already categorically manifested an objection to the application of the norm to its territory. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. (Art. But among the first three ba nga primary. General Principles of Law  Recognized by civilized (peace-loving) nations. ICJ Report. 1966.

mag-una og pirma Afghanistan nya uwahi ang Zimbabwe? It looks like it suggests that since Afghanistan is first in the list. It became a practice in order to make sure that this is really what was agreed upon and that the authority to sign is within the scope of authority given. so the objective element of general state practice is present but the subjective element of opinion juris is absent. 38(1) “shall not prejudice the power of the Court to decide a case ex aequo et bono. So it may happen that it is signed by the representative but if not ratified. in opinio juris there is the understanding that the law is viewed as obligatory and usually this is found by acts of our governmental agencies. mangita nalang sila ug laing norm if all the parties agreed that should be the case. opinio juris. no exception. that is true only in so far as the parties are concerned. verbal or written.applicable to all.awon na sa ICJ. it has to be ratified first by the President. so the way to solve that problem is that all the parties will bring with them a copy of the convention back home because usually it is not the Head of State who signs or even if it is the head of state who signs. it’s possible therefore to disregard specific rules applicable to parties to a case in ICJ if they agree and the ICJ will be allowed to apply rules of equity other than the rules found in the treaty. objective element. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. All of them shall be considered as primary with no specific source of law as having more persuasive effect than the others except to the extent the customary international law may be jus cogens. So. On the other hand. So between state A and state B. naay Supreme Court decisions ba nga nag uphold ani. not on the basis of international law but simply on the rule of equity or that probably the parties agreed that instead of applying the treaty between them. so we believe the obligatory nature of that norm. that treaty is international law between state A and state B. Tan. what should be done next here in the Philippines? There should be ratification by the President. kung naay statute gi pass ana nga customary law. you have nothing to submit to the Senate for concurrence. statute. So all of this will be taken together just to established whether or not a particular state is bound by the norm. check nato. & Public Int’l Law 75 . ni execute sila ug treaty. This is just a manifestation of the co-equality idea of states. in the convention. so the President will look into that. what is the source of international law. Subjective element pa gyud. 38(2). Tungod sa debate class nga wa sila mgka uyon. it would seem that it is superior than other states. nganu mo resort man ta ug inference? State practice requirement. ICJ Statute: The list of sources in Art. alternat] Of course custom. Local Gov’t Law. they decided nga wa nalang ang hierarchy. that we are talking of a treaty or convention that is not a customary international law at the same time. if the parties agree thereto” The list of sources in 38 (1) kadtong gi discuss ka ganiha shall not prejudice however the ICJ to decide a case on the basis of other rules such as equity. usually we call it mere usage. about sa mga writings sa executive officials. for example there are 50 states to a multi-lateral treaty or convention. like the Philippines and the United States. Mai acts done by that state showing that it intended to be bound by the norm. customary international law. Custom vs. Art. Elements of state practice and opinio juris are present but where a practice has not yet attained the status of customary international law but it is a state practice just the same or even probably general state practice but usually what’s lacking is opinio juris. ICJ Statute (Ex aequo et bono) Ex aequo et bono: a decision in which equity overrides all other rules Art. there is still a constitutional process of concurrence. State immunity] Usage is a practice that states generally follow without believing themselves legally bound to do so. That is the problem of customary international law. What’s the difference between a custom and a usage? Bar exam question also. we cannot make treaty or convention as more persuasive or authoritative over customary international law because treaty and conventions are valid and binding in so far as the parties to the treaties or conventions are concerned whereas kuno ang customary international law naa na ang objective element of general state practice. A good example of usage is alternat. Usage Custom is a practice that states believe themselves to be under a legal obligation to follow (opinio juris) [ex. so that is evidence na of opinio juris. mot bag ka treaty or convention. How much more if it is not the Head of State who signs but only the authorized representative like the Secretary of the Department of Foreign Affairs. Tinuod man ky convention or treaty is international law only in so far as the parties are concerned. official pronouncements. Practiced generally in diplomatic relationship but there is no perception of it as binding or obligatory. [ex. So ang iyang scope therefore is not that all-encompassing compared to customary international law nga mo require ug general state practice. Typical example of customary international law is the Principle of State Immunity. Ug mo ingon ka. not customary international law. 38 (2). beh kung ang Philippines naa bai opinio juris on that particular practice. Evidence ba na ang intent to be bound when we resort to inferences. how do you put the names? Alphabetical? So. when they return to their home state. When you sign a treaty.

don’t use the term ratification by the Senate. Republic Act No. In fact. cooperation and amity with all nations.” {September 6. That is transformation. treaties that govern the Philippines and the other signatory to that treaty. 2014. So.” Sec. So at the level of the prosecutor. of course the distinction being that USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. assuming that they do not represent Customary Internationnal Law (CIL). this is one case that you have to read very quickly before mock bar in relation to a case decided by the Court 2 years earlier. what happens is that the copy brought by the representative which will be ratified by the President. 2 Art.” In the Philippines. We adopt transformation through the backdoor system through the execution of treaties because treaties are sources of international law. This article is applicable to non-international armed conflicts and embodied therein are the prohibitions agianst torture and the non-derogable right to life. it will be deposited with the Secretary-General of the UN. SC: The fiscal has no duty to follow the Political Offense Doctrine . That’s the idea of alternat. Abando Feb. there is co-equality among states. The proper course of action on the part of the fiscal is to charge them with murder and the defense of POD will only be raised during the trial. The correct term should be concurrence by the Senate. during the preliminary investigation. cooperation. the issue on WON POD will apply will not yet be settled because it will require evidentiary facts and would consequently require a hearing. the provisions of that become part of the law of the land the moment it is concurred by the Senate. Associate Justice Leonen: The Philippines is bound to punish the perpetrators if it will be proven that this is a violation of International Humanitarian Law (IHL).So. II we call this the Incorporation Clause but remember that does not mean that the Philippines is not adopting Transformation. not a custom. automatically incorporated through incorporation clause but treaties. The Philippines is bound to enforce International Humanitarian Law (IHL) IHL and the rules and principles contained in the Geneva Conventions are largely regarded in the international sphere as having the character of general or customary international law given the fundamental nature of the rules and “because they constitute intransgressible principles of international customary law. Now why is this important? Two years earlier in this case of China National Machinery and Equipment Corporation. the #1 who signs in that copy is also US. freedom. justice.that the crime to be charged must be rebellion. the first to sign is his state. Their defense was that they cannot be charged of murder because of the Political Offense Doctrine (POD) which absorbs any common crime (murder in this case) committed in the pursuit of a political crime like rebellion thus the proper charge would only be rebellion. We adopt incorporation clause for Generally Accepted Principles of International Law (GAPIL). the CPP-NPA made a statement that in the Philippines it will abide by the Common Article III of the 4 Geneva Conventions. Art. Alternat is just a usage. A mass grave was found and somebody testified that it was where the CPP-NPA would bury the bodies of those who were salvaged. 11. justice. adopts the generally accepted principle of international law as part of the law of the land and adheres to the policy of peace. China National Machinery and Equipment Corporation vs. It is not a sound policy to immediately. GAPIL. at the level of the prosecutor. freedom. which is ratified by the President. that’s wrong. But after making a distinction. 2014 Members of the CPP-NPA NDF were prosecuted for murder because they have this Purging System wherein members and non-members alike who are military informants were salvaged. the parties who did not deposit the treaty cannot invoke the provisions of the treaty to resolve the conflict. we both adopt transformation and incorporation. Ocampo vs. apply the POD because of the duty of the Philippines to enforce IHL. 2012. 11 (1987 Constitution): “The Philippines renounces war as an instrument of national policy. because if not. & Public Int’l Law 76 . equality. Sometime in 1995 or 1998. the ‘#1’ who signs in that copy is the Philippines. and amity with all nations. equality. [adopt] the generally accepted principles of international law as part of the law of the land and [adhere] to a policy of peace. The relatives testified that the persons who disappeared were abducted by members of the NPA prior to their disappearance. February 7. 2. After which. Santamaria. So in alternat. Satur Ocampo was charged along with 40 or 50 others. Local Gov’t Law. July 2. 2014} The case of Land Bank of the Philippines vs Atlanta Industries. the copy brought back to the Philippines by the representative. So. There is no superiority or inferiority in paper. 9851 was enacted in view of its policy to “[renounce] war …. Philippine Practice on Sources of International Law Sec. ratification by the President in a situation where it is signed by a representative. In the same manner that the copy brought to US by their representative. the Supreme Court distinguished between executive agreement and treaty.

& Public Int’l Law 77 . 2012] But after making that distinction. Atlanta Industries. G. Inc. we treat all these international agreements similarly. (Land Bank of the Phil. Supreme Court said its not subject of mandamus because it is not ministerial duty. Local Gov’t Law. In other words at the international level. 2014) Another update is the case of Biraogo v. because here the parties involved are not states.R. the nomenclature as you have learned already does not govern for as long as the elements are present entered into by states in written form and to be governed by international law the we say that that is a document that will be governed by the Vienna Convention of the Law of Treaties or VCLT. whether it is executive agreement. 206323. As you know Foreign Affairs is a prerogative of the Executive Department. (b) is usually less formal. as an international lending institution organized by world governments to provide loans conditioned upon the guarantee of repayment by the borrowing sovereign state. and (c) it is narrower in scope compared to a treaty. April 1x. although organized by World governments. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. 185572. 193796. it would seem that the Supreme Court likened the executive agreement to a treaty. except that the former (a) does not require legislative concurrence. (b) is usually less formal. and the courts may not inquire into the wisdom or lack of it in the exercise thereof. The submission to the ICJ of the Philippine claim over Sabah involves conduct of our foreigh relations. And our SC acknowledged that in this case of China National Machinery & Equipment Corp vs Santamaria. Depsite these differences. international agreement. No. is likewise regarded a subject of international law and possessed of the capacity to enter into executive agreement with sovereign states. lending institution rather. February 07. So that’s the only difference apart from probably nature. G. (2) it must be written. the following three requisites provided under the Vienna Convention must nevertheless concure: (a) the agreement must be between states. [Biraogo v. China National Machinery & Equipment Corp. Loan Agreement No. convention or whatever. v. and (c) it must be governed by international law [China National Machinery & Equipment Corp. (3) it must be governed by international law. which. July 02. This is primarily an executive prerogative. the Supreme Court enumerated 3 elements for an executive agreement to exist. (CNMEG) is not an international person Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty follows: [A]n international agreement concluded between States in written form and governed by international law. One of course is the Republic of the Philippines but the other one is an international multinational corporation. 2013] USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Here Biraogo etitioned the Court asking the Secretary of Department of Foreign Affairs be compelled to pursue our claim over Sabah. And of course a treaty is more or less permanent compared to an executive agreement. Del Rosario. An executive agreement is similar to treaty and the distinction basically is at the domestic level because we distinguish executive agreement and a treaty in our Constitution insofar as the requirement of concurrence by the Senate is concerned. 4833-PH between the IBRD and the Land Bank is an integral component of the Guarantee Agreement executed by the Government of the Philippines as a subject of international law possessed of a treaty-making capacity. So there you go the statement of the court.R. Examining its features. But what confused me is the pronouncement of the court in this Land Bank of the Phil. Santamaria. G. v.in the case of executive agreement as you already know. Ang distinction lang therefore is domestic..R. Inc. Executive Agreement vs. Treaty An executive agreement is similar to a treaty. And this was the thing that we discussed yesterday that it was again likened to a treaty only because IBRD was considered as possessing international personality and the effect of the characterization is that your basin principle of pacta sunt servanda was applied here in this case. (b) it must be written. to be considered an executive agreement. In doing so. No. The Executive Department cannot be compelled to make international claim The Secretary of Foreign Affairs cannot be compelled by mandamus to press the Philippine claim to North Borneo (Sabah) before the ICJ or such other fora authorized under international law. v. So what I’m saying is at the international level. it (a) does not require legislative concurrence. And this prerogative being discretionary cannot be compelled by mandamus. but we treat these documents differently at the local level. These elements are: (1) that the executive agreement must be between states. Whether or not we require legislative concurrence. treaty. Atlanta Industries. The submission to the ICJ of the Philippine claim over Sabah involves the conduct of our foreign relations. Del Rosario. This is primarily an executive prerogative and therefore mandamus will not apply. No. and the IBRD. and (c) deals with a narrower range of subject matters. Because if you look at the definition of a treaty under the Vienna Convention on the Law of Treaties (VCLT) - But.

No. & Public Int’l Law 78 . Under this doctrine. we have the International Criminal Court. But as you know. Pardico. supporting or with acquiescence the disappearance of a particular person.The case of Navia vs. Note that the principle of state immunity is customary international law. Now. Jaladoni where the Philippines created military commission to prosecute certain military officers for war crimes during the WWII. Even without such affirmation. we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. preparing. in the case of USA v. the Geneva Convention and significant precedents of international jurisprudence established by the United Nations. You distinguish Doctrine of Restrictive Immunity from your state immunity from suit. Such rules and principles. In the promulgation and enforcement of Execution Order No. now expressed in Article XVI. It was at that time the Hague Convention as the international document that recognized and defined war crimes. the United State and Japan. meaning duty towards international community. applying international law include Kuroda v. A contrary disposition would. in the language of a celebrated case. The Writ of Amparo has also its international law origin. "unduly vex USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. all those persons. In the case of the foreign state sought to be impleaded in the local jurisdiction. And of course our older cases. it invoked the definition. So even contracts in international law. Guinto (182 SCRA 645) The rule that a state may not be sued without its consent. It is an international law concept if the situation calls for the exercise of jurisdiction by a local court against a foreign state. in violation of the laws and customs of war. the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of the our Constitution. is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II. SC traced the history of our Writ of Amparo that it was basically taken from the International Convention for the Protection of All persons from enforced disappearance. and war crimes as a crime internationally is also jus cogens. SC discussed the concept of Writ of Amparo and the elements. Section 2. In this case the SC said it is not sufficient to allege mere disappearance. form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them. who have been guilty of planning. this is the case of your Doctrine of Restrictive Immunity. Know that the doctrine of state immunity is either an international concept or a domestic concept. who were signatories to the two Conventions. as accepted by the majority of states. or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto.S. Your Doctrine of State Immunity provides that states are not always liable to all the consequences of their acts and we only make them liable for acts that are proprietary. military or civilian. Jalandoni (83 Phil. June 19. support or acquiescence of the State. The authority of the military commission was questioned as without authority and basis because the Philippines. such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. In fact. Upon its admission to such society.R. of the 1987 Constitution. 68. 2012) And when the SC enumerated the elements of the Writ of Amparo. 171) In accordance with the generally accepted principles of international law of the present . Local Gov’t Law. these rules and principles were accepted by the two belligerent nations. But for acts that are governmental then a foreign state can invoke state immunity. So regardless of the fact that we were not a signatory of The Hague Convention. followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person. of humanity and civilization are held accountable therefor.A. G. The rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principals of international law. which place such a person outside the protection of the law (Navia vs. detention. you have to distinguish between jus imperii and jus gestionis. Kuroda vs. Pardico involving Writ of Amparo. including the Hague Convention. the added inhibition is expressed in the maxim par in parem. There should likewise be an allegation of the participation by the state either by the authorizing. All states are sovereign equals and cannot assert jurisdiction over one another. since The Hague Convention is a manifestation of a customary international law there was no objection to the creation of a military commission. 184467. abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization. And the definition of enforced disappearance as it appears in this convention: Philippine Writ of Amparo on Enforced Disappearance is based on international law International Convention for the Protection of All Persons from Enforced Disappearance’s definition of enforced disappearances: “the arrest. the ruling of the SC is since punishment of war crimes is erga omnes. Guinto. Section 3. So you know these terms erga omnes and jus cogens. for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principle of international law as contained in treaties to which our government may have been or shall be a signatory. non habet imperium. U. Was not a signatory to the Hague Convention. the state is automatically obligated to comply with these principles in its relations with other states. vs. therefore.

3083. like any other state. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. (Basically. Local Gov’t Law.” Now how to effect the claim. if denied. As this was a clearly governmental function. C. then it has descended to the level of individual when it said “as basis of civil action between private parties. IL or ML will prevail USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. we have to specify. there are two sets of legal systems in the world. Theories: Incorporation & Transformation (Strong and Weak)  What is the status of PIL in Philippine Legal System? . We distinguish between jus imperii and jus gestionis So even if contracts are involved in the case. that calls for the application of state immunity from suit in international law. 3083: Subject to the provisions of this of this Act. in the USA in this example. So. No. will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity.A. and submits to be sued upon any moneyed claim involving liability arising from contract. So this is Act No. Jus gestionis: There is no question that the United States of America. International law prevails for a monist. Theories: Monism & Dualism  How do rules of international law take effect in domestic legal system? . if there is a conflict you cannot say that IL prevails over ML or vice versa. PD 1445 is an amendment to the CA 327 such that where the claim is rejected. this is influenced by the teachings of natural law theorist Hans Kelsen himself. CA 327 provides for the period of 2 months on the part of the Commission on Audit (COA) to decide whether to accept or reject a claim on the basis of a contract against the Philippine government. just please take note of that. Let me show you the provision. 3083 and it says: Caveat: Act No.the peace of nations. One is IL and the other is ML and there is no necessary connection between the two. we held that the contract did not operate to divest the United States of its sovereign immunity from suit Invocation of state immunity from suit will have to prosper if it is governmental. Our relevant law is Act No.) Under the theory of Dualism. In which case we follow the Restrictive Theory of State Immunity from Suit. 3083. 327 and PD 1445: File claim with COA. if the contract is carried out in its governmental capacity. Jus imperii vs. sues the USA in the Cebu City Court. This was our ruling in United States of America v. That in the international law level. the basis of natural law. So if the Philippine government enters into a contract. the Government of the Philippine Islands hereby consents. TBPIL In case of conflict between an International Law and Municipal Law which law prevails? This could be answered by applying the theory of Monism or Dualism. at the domestic level. for contracts the Philippines government has already consented to be sued under Act No. there is only one legal system in this world and that is natural law which means that if there is a conflict between International Law (“IL”) and Municipal Law (“ML”) then International Law prevails since International law is perceived under this theory as reflective of Universal Law on the basis of natural law. Ruiz. INTERNATIONAL LAW & MUNICIPAL LAW International Law and Municipal Law  Which law prevails in case of conflict? . then international law prevails. expressed or implied. But state immunity from suit in the domestic level is different because in the Philippines we allow suit against the state on the basis of contracts. go to SC on Certiorari. GAPIL . & Public Int’l Law 79 . we apply the Doctrine of Restrictive Theory. which could serve as basis of civil action between private parties. in PD 1445 it is now the Commission of Audit. the claimant can go to the SC on certiorari after that claim before COA.” So if X. So what I am saying is state immunity from suit is both an international law concept and a domestic concept. So this is the basis for the precept that when the government enters into a contract. a citizen of the Philippines. where the transaction in question dealt with the improvement of the wharves in the naval installation at Subic Bay. Under the theory of Monism. in CA 327 it was called Auditor General. So. international law is perceived by Hans Kelsen as reflective of universal law. Cebu City court will not exercise jurisdiction.

states have the implied duty to recognize people’s “right to self-determination”’ . Is there such a right to secede? If yes. & Public Int’l Law 80 . it is a process through Congressional act. So if one group wants to separate from the rest of the territory.g. . The Philippines adopts this doctrine as can be gleaned from Section 2.g. International law does not specifically authorize nor prohibit unilateral secession. Egypt and Syria merged in 1958 to form the United Arab Republic [Syria the seceded from the UAR in 1961 and Egypt renamed itself Egypt])  Claims by constituent units or a union or federation to the attributes of statehood (e. we apply our rules on statutory construction in case of conflict between a treaty and a statute. executive or even Supreme Court decisions. Palestine’s “non-member observer state” of UN status in 2012) What happened in the conflict of Russia and Ukraine involving Crimea? It involves the situation of statehood.g. Thus. In the Philippines. Consequently. which right is recognized as customary international law. principles of IL become part of the law of the land automatically. under what condition? Can secession be done unilaterally? It’s a continuing issue in international law. Right to self-determination must be exercised within the framework of sovereign states and consistent with territorial integrity of those states (“right to internal self-determination”) and “right to external self- determination” (unilateral secession). There are two kinds of transformations. separatist claims in Quebec)  Territorial or non-territorial communities which have special international status (e. treaty has the same effect of a Statute. But. then we ask 2 questions: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. One is Strong transformation while the other is Weak transformation. It is just a matter of expectation. Local Gov’t Law.g. However. . This is done by a treaty being concurred in by the Senate. That’s the general rule. So that is weak transformation. A group of person may only separate if it is one via constitutional proceess. Kosovo’s declaration of independence from Serbia in 2008)  Foreign control is exercised over affairs of a state (e. How do rules of international law take effect in domestic legal system? By incorporation which is influenced by monism. US’s control over the island of Palau in the Pacific ocean before 1994)  Merger or union of states (e. But this is not an absolute rule because even a domestic court may uphold international law. Art. II of the Constitution. Determination of Statehood Scenarios  Break-up of a large state into several states (e. The former is restrictive while the latter is not. What happened in Crimea was that there was a referendum and the result was more than 90% which favored the separation of Crimea from Ukraine.g.depending on the forum deciding the case. Quebec exercised unilateral secession. But we have a Supreme Court decision.g. There is no duty on the part of any domestic court to be domestic also on its approach. USSR. not an international court decision. Secession is not authorized by the Constitution of Canada. we adopt the doctrine of incorporation. What is the status of PIL in Philippine Legal System? Insofar as GAPIL is concerned. and the right of the state to its territorial integrity. In our jurisdiction. In England it is strong transformation. As to treaty based public international law we apply the doctrine of transformation. we can say that we can transform IL on the basis of either congressional. On the other hand. the rule is territorial integrity. The problem with unilateral secession is this: It seems like there is a conflict between the right to secede. While the latter allows transformation of IL law into domestic law by a governmental act other than Congressional Act thus it is weak. that’s considered by many authorities as instructive on the issue of unilateral secession. If the forum is in the international field it is expected that international law will prevail. By Transformation which is a process by which IL becomes part of domestic law by an affirmative act of the government either at the level of the legislature (passage of a law). It could probably involve the issue of cessation. exercises right to self-determination. Now. and Czechoslovakia in 1990’s)  Secession by part of a territory (e. former Yugoslavia. Second rule: where that group. however. The former requires a process that IL becomes part of the law of the land only by Congressional Act. it has to be done constitutionally. And I’m talking about the decision of the Supreme Court of Canada on the issue of Quebec. So the better formula according to SC of Canada. executive (conscious application by the executive department of IL) or judiciary (SC applying IL principles in a particular controversy). if the controversy is presented before a municipal forum ML will prevail. the SC of Canada made an instructive outline as to when unilateral secession may be made. is there such a right to secede? The problem of “Secession” vis-à-vis the right of states to Territorial Integrity  Opinion of the SC of Canada in re: Secession of Quebec [1998]: . our domestic statutes will prevail over a treaty when our statutes are reflective of police power and other statutes manifesting public policy.

a Jurisdiction to prescribe law. In international law. & Public Int’l Law 81 . We call it the right to external self- determination. there is also a need to discuss jurisdiction because states exercise sovereignty by exercising jurisdiction. Recognition of State -Theories on Legal Effects of Recognition of State in International Law: (1) Constitutive (2) Declaratory -Article 3 of Montevideo Convention acknowledges “Declaratory Theory”. then this is where the group may unilaterally secede because such unilateral secession can be justified by the exercise of the right to self-determination.e. That’s how the case of Crimea should be resolved. the Geneva Convention focused on 3 areas where the right to self- determination maybe validly exercised. and cultural development’].”  Any group within a territory claiming to be fighting against colonial domination. social. Even before recognition. any armed group that would try to liberate itself may be treated as criminals and not as national liberation movement. 55 of the UN Charter. We separate our theory on criminalization on polygamy and many other practices. includes authority to arrest. actually we call it national liberation movement. alien occupation or a racist regime (national liberation movement) is now protected by the laws of war. that it had been addressed therefore the group has not been denied by its right to self-determination. Resolution entitled Declaration on the Granting of Independence (1960) [“All peoples have the right to self-determination. economic. Art. a jus cogens and erga omnes norm.  Set out in Art. like what we’ve been doing with our Muslim brothers in Mindanao and anywhere else where we allow them to have their own personal laws. 1(2) and Art. Basicallly murag diha ra na nga situations makaingon ka there is. and in 1970 Declaration of Friendly Relations of the G. So we recognize this right to self-determination. or where a definable group is denied meaningful access to government to pursue their political.Judicial c Jurisdiction to enforce. jurisdiction to adjudicate. in ICCPR and ICESCR. which is in Restatement 404)  Jurisdiction to adjudicate (authority of the state to subject particular persons or things to its courts)  Jurisdiction to enforce (concerned with the authority of a state to use the resources of government to induce or compel compliance with its law.A. at best. except for universal jurisdiction. jurisdiction may be classified as: jurisdiction to prescribe law. 2 of G.A. enactment of statute whether it becomes applicable within or without.Congressional. Where there is no colonial domination.” Let me proceed to jurisdiction. and that its members are entitled to prisoner-of-war status. the State has the right to defend its integrity and independence….Has that right been recognized and addressed by the national government? If the answer is yes. That’s why each time sovereignty is discussed. i. Because national liberation movements are considered movements exercising the right to self-determination. where the people have been denied the right to internal self-determination) Peoples’ “Right to Self-determination”  A customary international law. Local Gov’t Law. and jurisdiction to enforce. When right to “self-determination” may be exercised SC of Canada: The international law right to self-determination only generates. As you know. But where there is a valid exercise of self-determination but rejected or denied by the national government. to wit: “The political existence of the State is independent of recognition by the other States. by virtue of that right they freely determine their political status and freely pursue their economic. where a people is oppressed. JURISDICTION  Jurisdiction to prescribe law (the authority of the state to make its policy applicable to persons or activities) (See: Restatement 402.  Article 1(4) of Protocol I of the 1949 Geneva Conventions make the laws of international armed conflict applicable to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of the right of self-determination. Art 2 of the RPC on extraterritorial application of Penal Laws b Jurisdiction to adjudicate. and cultural development (meaning. jurisdiction is the clear manifestation of sovereignty.Executive USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. social. alien occupation and racist regime. and the way such national liberation movement is defined to trigger international armed conflict. as for example under foreign military occupation. a right to external self-determination in situations of former colonies.

The issues usually emerge when it comes to Criminal Jurisdiction. There are four theories that will justify the acquisition of
jurisdiction over the person of the accused.

Criminal Jurisdiction

Various Principles/Theories:

Territorial Principle (Subjective vs. Objective)

Nationality Principle (Active vs. Passive)

Protective Principle

Universality Principle

Of the four theories, more acceptable is are the Territorial Principle and Universality Principle, which means courts all over the
world are not unanimous they way Nationality Principle and Protective Principle are applied. That would therefore depend on the kind of
State involved. In the case of the United States of America, the US Courts usually have more leeway and more aggressive application of all
of these principles.

Territorial Jurisdiction

-State has jurisdiction over property, persons, acts or events occurring within its territory.

 Subjective Territorial Principle: jurisdiction to prosecute or punish crimes commenced within their
territory but completed or consummated in the territory of another state.
 Objective Territorial Principle: certain states apply their territorial jurisdiction to offenses or acts
commenced in another state, but (i) consummated or completed within their territory, or (ii) producing
gravely harmful consequences to the social or economic order inside their territory.

Under the Subjective Territorial Principle, an example is if X from State A, using a long ranged riffle killed Y in State B, which has
the proper jurisdiction of the crime?

From the given example, the crime commenced in State A and the Court therein has the option to exercise jurisdiction or not
depending on which principle it will apply. If it chooses to exercise jurisdiction over the said crime, it should then choose to apply the
Subjective Territorial Principle, wherein the jurisdiction to prosecute or punish crimes commenced in State A but completed or
consummated in another state or in State B. However, if it chooses not to exercise jurisdiction over the said crime, it should then choose to
apply the Objective Territorial Principle, wherein State B where the crime was consummated or completed acquires the jurisdiction
although the offense commenced in State A.

United States vs. Vasquez-Velasco (1972)

Facts:
Javier Vasquez-Velasco, a member of a drug cartel in Guadalajara, Mexico and several other members,
beat and killed (John) Walker [an American citizen writing a novel in Mexico] and (Alberto) Radelat [a photographer
and US legal resident]. At trial, the US argued that Velasquez-Velasco and his three co-defendants committed the
crimes to further their positions in a Guadalajara drug cartel. The murders Velasco was charged with were allegedly
retaliatory actions against a US Drug Enforcement Agency (DEA) crackdown. He was convicted under US law. On
appeal, Vasquez-Velasco argued that US penal laws do not apply extraterritorially.

Nationality Principle in Jurisdiction

 Active Nationality
- states may regulate the conduct of their nationals wherever they are in the world

 Passive Nationality
- a state may prescribe law for situations where its nationals are a victim of the conduct being regulated
- this has limited scope, usually applicable to terrorist attacks

Active Nationality- Offender/ Actor
Passive Nationality- Victim

But of course, Nationality Principle is not equivalent to assessing citizenship, so mere citizenship is not equivalent to nationality
when it comes to nationality principle. Remember the case of Nottebohm where the real and effective link with the State of Nationality is
necessary.

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Nottebohm Case
(Liechtenstein vs. Guatemala, ICJ, 1955)

Key Principle:

Nationality as a basis for exercising jurisdiction must be real and effective to give a right to a
state who has conferred it. Real and effective link with the state of nationality necessary. Right to
diplomatic protection and protection by means of international judicial proceedings only arises when
proper nationality link exists between the individual concerned and the state seeking to exercise such
rights. [“Effective Nationality Theory”]

THE FACT THAT A PERSON IS A CITIZEN OF A STATE DOES NOT AUTOMATICALLY TRIGER THE APPLICATION OF NATIONALITY
PRINCIPLE BECAUSE IN PUBLIC INTERNATIONAL LAW, THERE MUST BE A REAL AND EFFECTIVE LINK IN THE SUPPOSED NATIONAL AND
THE STATE.

In Passive Nationality, it has been perceived to have limited scope and usually applicable in terrorist attacks. For the 1998 bombings of the
US Embassy in Kenya. Kinsa ma’y victims? Passive man? Americans. So that was justified by the United States because US Court man. As I
told you earlier, option na sa court, kung gusto siya muexercise of jurisdiction, pili lang siya asa’y applicable. Apparently the Passive
Nationality Principle justified the exercise of jurisdiction over Usama Bin Laden and others.

United States vs. Usama Bin Laden (2000)

Facts: Defendants are charged with a variety of crimes stemming from the August 1998 bombings of the US
Embassies in Nairobi, Kenya.

Court: The passive personality principle is increasingly accepted as applied to terrorists and other
organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s
diplomatic representatives or other officials…” (citing Restatement 402). “…..Universal jurisdiction is
increasingly accepted for certain acts of terrorism…” (citing Restatement 404)…Both universal jurisdiction and the
protective principle xxxxxx xxxxx for jurisdiction by the United States over the death of xxxxx citizens.”

Then we go to Protective Principle in jurisdiction. Leading practitioner of Protective Principle is the United States.

Protective Principle in Jurisdiction

- a state can legislate crimes that it considers to be a threat to its security, integrity, or economic
interests
- common examples: espionage, counterfeiting (terrorism?)

Restatement 402: “…a state has jurisdiction to prescribe the law with respect to…(3) certain conduct outside its
territory by persons not its nationals that is directed against the security of the state or against a limited class of
other state interests.”
 This principle is limited to conduct that occurs outside a state’s territory, by noncitizens

So we have here perceptions that this Protective Principle, being narrow in scope, would usually apply only to situations where there is
threat to security, integrity or economic interest. Economic interest is very much practiced in the US but anywhere else, courts only focus
on security and integrity. So that makes it narrower in scope. Di na siya applicable in all cases – ang protective principle.

We have here examples of the application of Protective Principle. Panamanian ship outside of the territory of any court, in the high seas,
the Supreme Court of the US affirmed the validity of the acquisition(?) on the basis of Protective Principle. Because the ship was
instrumental in the introduction of prohibited drugs to the US. In the US, kanang introduction of prohibited drugs, would be a threat to the
security.

United States vs. Romero-Galue, 757 F.2d 1147 (11 th Cir. 1985)

US could still exercise jurisdiction over the Panamanian ship even if there is no treaty because the protective
principle would allow the US to prosecute foreign nationals on foreign vessels on the high seas for possession of
narcotics (and in some way inherently harmed the US)

 “The protective principle permits a nation to assert jurisdiction over a person whose conduct
outside the nation’s territory threatens the nation’s security or could potentially interfere
with the operation of governmental functions.”

Universality Principle (Universal Jurisdiction) –

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Our leading case is Attorney General of Government of Israel v. Eichmann. Involves one of the trusted generals of Hitler. So Eichmann was
in Argentina, captured by Israeli agents and prosecuted in Israel for crimes committed in Germany. Crime committed is Genocide.

Attorney General of Government of Israel vs. Eichmann (1961)

Israel tried and convicted Adolf Eichmann, who had been captured by Israeli agents in Argentina and brought to
Israel for trial. Eichmann was charged of committing crimes against Jewish people, crimes against humanity, war
crimes, and membership in hostile organization as defined in Israel’s Nazis and Nazi Collaborators Punishment Law.
Eichmann argued that the court had no jurisdiction because he was captured in a foreign country in violation of
international law.

What should justify the exercise of jurisdiction? Universal Jurisdiction because universal jurisdiction is usually applicable for crimes that are
violation of erga omnes norms, or jus cogens, one of which of course is genocide. Torture, slavery.

Court:

“From the point of view of international law, the power of the State of Israel to enact the law in question…
is based… on a dual foundation: the universal character of the crimes in question and their specific character
intended to exterminate Jewish people.”

The case of Pinochet is also a leading case in jurisdiction. Pinochet was then dictator in Chile and there were allegations of torture against
Spanish citizens in Chile. When ousted by a democratic group, he went to England for medical purpose. There he was arrested. Spain had
earlier issued an international warrant of arrest against Pinochet. When he was arrested in England, Spain wanted to exercise jurisdiction
over Pinochet.

How was it justified? Spain invoked Universal Jurisdiction because the crime committed is a universally punished crime – torture. And acts
of torture have already been considered customary international law and in fact we now have CAT as its clear manifestation of its being a
customary international law. Convention Against Torture.

Also, Spain relied on Passive Nationality Principle because the victims were Spanish. Blue Spanish Eyes. 

Pinochet Case

- Spain relied on Universal Jurisdiction to argue for Pinochet’s extradition from England to Spain
- It also relied on Passive Nationality/Personality (Spanish citizens were killed in Chile)
- Passive Nationality/Personality was found to be more persuasive than Universal Jurisdiction
- No Territorial Jurisdiction – happened in Chile, not Spain
- No Active Nationality – Pinochet was not Spanish
- No Protective Principle – there was no imminent threat to Spain’s national security from Chile

EXTRADITION

These are the six fundamental rules in extradition – all of them asked in the bar exam.

Basic Principles in Extradition

1. No treaty, no “obligation” to extradite
2. Pacta sunt servanda applies
3. Dual purposes: 1. Prosecution, 2. Execution
4. Could not cover “political offenses”
a. Cf: “Attentat Clause”
5. “Rule of Specialty” must be followed
6. Ex post Facto Law prohibition does not apply

1. Extradition is treaty-based. Where there is no extradition treaty, there is no obligation to extradite.

2. The only way by which a state can be compelled to extradite is pacta sunt servanda.

3. There are two purposes: prosecution and execution. Prosecution before conviction, and execution for those who have already been
convicted but were able to go to a foreign territory.

4. Because there is the Right to Asylum, we don’t apply extradition to political offenses.
- What is this attentat clause? Attentat clause is usually found in extradition treaties would provide that the mere killing of a head of
state should not constitute automatically as a political offense to avoid extradition.

5. Then we have the rule of specialty in extradition. What does it mean? What are the kinds of crimes that can be subject of
extradition? There are two kinds, one considered listed and one through the application of double criminality principle. So pwede
mag enumerate ang 2 ka parties sa treaty kung unsa na crimes ang pwede ma subject sa extradition then it will provide a clause,
double-criminality clause which provides that if in the event a crime is committed which is not among those listed. The reasons

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Illinois and Friesbie vs Collins in 1952. So pwede na crimes committed in the past. and presents no question in which this Court can review its decision. then it can be a subject of extradition. validly detained. then whether or not extraditable offense siya or dili. And the rules on criminal procedure and the rights of an accused will be afforded to the accused. or similar outrageous conduct. being the characters of people change or new crime laws will be passed. So those principles will still be applied. Eichmann argued before the Israeli Court that the illegal act of abduction took away the jurisdiction of Israeli courts to try him and he should be returned to Argentina to be tried there. If abduction is made in a foreign territory. Eichmann 1961 but as early as 1886. Illinois (1886) The treaties of extradition to which the United States are parties do not guarantee a fugitive from the justice of one of countries an asylum in the other. They do not give such person any greater or more sacred right of asylum than he had before. Illinois. Of course the issue of legality of the abduction of criminals in foreign territory is also a relevant issue in jurisdiction. Collins (1952) Court: This court has never departed from the rule announced in Ker v. Abduction in and on itself does not invalidate a prosecution against a foreign national. Local Gov’t Law. There are 3 modes of rendition as observed by experts in international law. if you abduct a criminal or any person for that matter from foreign soil. He will be presumed innocent until proven otherwise. Ex post facto law does not apply because it is not a penal law. bene detentus) unless the defendant was secured through torture. The two are institutionalized extradition. Deportation. & Public Int’l Law 85 . It is an accepted mode of rendition. The issue was however mooted by an agreement entered into by Argentina and Israel. Legality of “Abduction” of criminals in foreign territory:  Three modes of “Rendition”: Extradition. Illinois: for as long as the person arrested when already in court will be afforded due process. Attorney General of Israel vs. Theoretically of course. it does not matter. Deportation is also institutionalized. any conduct or misconduct or whatever manner is employed in the arrest of the criminal should not affect the jurisdiction of the court for as long as according to the court in the case of Ker vs. They only make provision that for certain crimes. demanding not only compensation for unlawful intervention on its territory. If the extradition is for murder then the extraditee must be prosecutecd for murder. Argentina complained to the UN about this abduction. you have the cases of Ker vs. Bar exam question: What is the justification for the rule? The justification is this: apprehension or arrest of a criminal is not a function of the court therefore. … that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. including his rights to due process. Eichmann (1961) Israeli agents had abducted Eichmann from Argentina without consent of Argentinian government. it's a violation of international law. So kung gi extadite ka on the basis of the request for murder then pag balik na sa receiving state. and they prescribe the mode in which this shall be done…How far such forcible transfer of the defendant so as to bring him within the jurisdiction of the state where the offense was committed may be set up against the right to try him is the province of the state court to decide. meaning the illegal apprehension of a criminal will not necessarily affect the jurisdiction of the apprehending state. The rule of specialty means that if a request for extradition is done on a specific offense or crime let's say murder. That's a given.  Abduction of criminals in the territory of another is understood as “intervention” and therefore violates customary law and the UN Charter (Art.  It can only be justified if done invoking self-defense. there is violation of international law but will that violation affect the validity of the abduction to the point that the court will be divested of its jurisdiction? We are guided by the general principle of male captus bene detentus or wrongfully captured. brutality. Frisbie vs. evidence obtained in violation of due process and evidentiary rules will not be admitted in evidence. it is a violation of due process and international law will not allow a prosecution of the extraditee or extradited person for another offense. 2(4)). 6. if the crime is punishable in both states. but also for the return of Eichmann. he will have all the rights of the accused. he shall be deprived of that asylum and surrendered to justice. So the court said: di mo matter ang manner of abduction basta the moment he is prosecuted.  But. and Abduction. pwede mu apply. iprosecute ka for rape. The principle of male captus bene detentus was affirmed in the case of Attorney General of the Government of Israel v. let's say committed on 2010 and then extradition treaty took effect on 2012. That's why most states would stipulate on double- criminality clause which means that even if a crime is not listed in the treaty. the illegal apprehension will not necessarily affect the jurisdiction of the apprehending state (male captus. the principle of non-intervention. Ker vs. abduction is not.

unnecessary and unreasonable invasion of the accused’s constitutional rights. Two categories of diplomatic immunity: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers.. torture or similar outrageous conduct. unnecessary. does not invalidate a prosecution against a foreign national. But a few months after Toscanino. United States vs. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him. the case of Lujan v. The only question. Toscanino (1974) Toscanino was abducted in Uruguay by an agent of the United States. If the abduction is accompanied by brutality. mere kidnapping or abduction will not divest the court of its jurisdiction. the court held that abduction per se will not divest the court of jurisdiction.by reason of a “forcible abduction. Toscanino (1974). The SC of the US in the Toscanino case traced back the perception of the world of an individual at the international level. Local Gov’t Law. Rather. bene detentus because according to the court. kidnapped and detained in a secret place but there was no allegation of brutality. the court went back to the basic principle of male captus. let's go to the exception: unless the defendant was secured through torture. The idea in the past is the end justifies the means. Here and unlike in Toscanino. On the other hand. and unreasonable invasions of the constitutional rights of an accused. it's easy to disregard certain rights of individual in favor of state interest. and part of due process. and it reverted back to Ker-Frisbie applying male captus. and after a fair trial in accordance with constitutional procedural safeguards. Court of Appeals for the Second Circuit agreed. the court is also duty bound to consider such situation. is whether the abduction violates any extradition treaty that may be in effect between the United States and the nation in which the abductee was to be found. HEAD OF STATE AND DIPLOMATIC IMMUNITY There are two kinds of immunity: ratione personae and ratione materiae. he was blindfolded. did not constitute conduct sufficiently “shocking” to violate due process and therefore did not trigger the Toscanino exception to Ker-Frisbie. if the allegations were true.S. He contended that the district court lacked jurisdiction over him because of the circumstances of his arrest. the US-Mexican authorities presumably were aware of the United States’ long-standing law regarding abductions and did not insist on including a prohibition against abductions. torture or similar outrageous conduct accompanied the abduction. in and of itself. In immunity ratione personae. Our authority on the matter is the case of US vs Toscanino 1974. bene detentus.” No persuasive reasons are now presented to justify overruling this line of cases. the Toscanino exception required more . and brutally tortured and interrogated for 17 days.S. taken to Brazil. they were so shocking to the conscience that due process required that the district court divest itself of jurisdiction. we look at the person and the law as it is applicable to the person. therefore. Abduction is a violation of principle of non-intervention. It has long been the rule that abduction.S. Gengler (1974) Government-sponsored abduction. & Public Int’l Law 86 . brutality or similar outrageous conduct. Illinois and Friesbie vs Collins in 1952? You look at the date when it was decided. Gengler (1974) wherein the Toscanino was not applied. Mansfield): “We view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate. and such brutalities were done in front of his wife). In the past. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to xxxxx xxxx (against) his will. the U. vs. In Lujan. Lujan v. thus. unlike in Toscanino where the kidnapping was accompanied by torture (the brutality in Toscanino was to the extent that he was hit with the butt of a gun. Alvarez-Machain (1992) The presence of an extradition treaty between the United States and another nation does not necessarily preclude obtaining a citizen of that nation through abduction. perception of giving an individual more rights at the international level.e. i. Court (through J. Utilitarianism.” And so the court said. ruling that. immunity ratione materiae becomes relevant when we look at a FORMER head of state or a diplomat. But because of development of international humanitarian law. due process would now require the court to divest itself of its jurisdiction over the person of the defendant where it has been acquired as a result of government’s deliberate. we look at the head of state while he is the head of state or a diplomat. Why was this case applied and not Ker vs. Notwithstanding Ker-Frisbie. in and of itself. He was then placed on a civilian aircraft bound for the U. However. to divest itself of its jurisdiction. Here. domestic courts also adopted to that.such as kidnapping combined with torture at the hands of agents of the US Government.. and arrested on arrival. Now. torture and other similar outrageous conduct. U. there is no showing that police brutality. That is the case of US vs.

according to the Court. & Public Int’l Law 87 . In terms of civil jurisdiction. However. and even diplomatic officials are immune from arrest. even for international crimes (although that is still a debatable issue). Immunity that attaches to the person of the diplomat while he is a diplomat . . detention. Persona non grata is a remedy because the diplomat is supposedly totally immune from criminal jurisdiction. however. he’s exempt even for international crimes as long as he’s incumbent.  Immunity ratione personae . In terms of civil jurisdiction.e. This is normally irrelevant while a person is a diplomat. when we’re talking about immunity ratione personae. (See: DR of Congo vs. Head of State What is the rule on head of state? Is the head of state immune from suit? If he’s incumbent. regardless of whether done in their official capacity. totally exempt during incumbency. although they enjoy more or less the same immunities and privileges as diplomats. or his government waives his immunity. detention. it cannot be official because it is a violation of Jus Cogens norm prohibiting torture. the focus is on the act. The commission of a crime against humanity and jus cogens cannot be done in an official capacity on behalf of a state. The immunity of diplomats extends to “arrests” and “detentions”. meaning. EXEMPT. special proceeding. overrides immunity afforded to a former Head of State in criminal proceedings. may already be prosecuted except for acts done in his official capacity. criminal. and processes while they are incumbent. Unlike in consuls we limit their immunity to official conduct only. we need to distinguish between acts done in official capacity and acts done not in official capacity. diplomats are immune generally. When a person ceases to be a diplomat. even foreign ministers (in the case of Congo). Local Gov’t Law. Diplomatic Immunity Personal and Functional Immunity of Diplomatic Officials In terms of immunity from jurisdiction. Post-incumbency. This is irrelevant for former diplomats  Immunity ratione materiae . diplomatic agents have total immunity from the law of the receiving state and the only remedy available to the receiving state is to declare the diplomat persona non grata. there is absolute immunity in criminal suit only. In terms of criminal jurisdiction. the person retains substantive immunity for actions he performs in his civil function while still diplomat. processes whether done in his official capacity or not. in the case of PINOCHET since it was an act of torture. The immunity from criminal jurisdiction applies to any offense committed by the diplomat whether official or not. immunity ratione personae—during incumbency a head of state is immune from suit. 2002) In the case of diplomats. So. That is why. but he is not immune in civil suit in certain cases. Immunity of Former Head of State in Criminal Proceedings The Pinochet Case (2001): The House of Lords of UK ruled that “the absolute prohibition of torture. Total immunity in criminal jurisdiction for diplomats. Ambassadors are for political concerns of the state. except in three cases (please just look at our convention on diplomatic and consular officials). In the case of Belgium v Congo. Belgium. So for acts done in official capacity even if it is post-incumbency. arrest. prosecution comes only after their incumbency applying immunity ratione personae.. a jus cogens norm. the remedy of the receiving State is to declare diplomat as persona non grata (an ungrateful person). After incumbency. their immunity from criminal and civil jurisdiction extends to their official acts only. diplomats are immune from the civil jurisdiction of the receiving state except in three (3) cases. For former officials. a distinction must be drawn between civil and criminal process. it is a misapplication of such remedy). a head of State.” (Sir skipped TREATY LAW) LAW OF THE SEA USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. i. Consuls are for commercial aspects of the state. Distinguished from a head of state who enjoys absolute immunity in all cases whether criminal or civil. in the case of head of state. it is absolute in all cases whether civil. Functional Immunity of Consular Officials As for Consuls. The concept of persona non grata is specifically applicable to diplomats (not applicable to fellow Filipinos.

The baseline is mandated to be done domestically. Territorial Sea.  Baseline (Low-water mark Method vs. Straight Baseline Method) UNCLOS. 2. such as: 1 The straight baseline shall not depart appreciably from the natural configuration or form of the archipelago. including dry reefs of a particular archipelago. & Public Int’l Law 88 . existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. 1982 and it governs basic zones: internal waters. Let us explore the rights of the coastal states of these maritime zones. so our zone would look like this: (Refer to ILLUSTRATION) internal waters. Contiguous Zone. EEZ and the high seas. siguro as a manifestation of our character. connecting the outermost points of the outermost islands. 8. Exclusive Economic Zone. 4. 4. 1-land mass) These are the common limitations of the straight baseline method. 2 The water to land ratio shall not exceed 9:1 (9-water. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. including atolls. [This is not complete. meaning waters inland before the territorial sea and would include bays. 9. For archipelagic states.47 of the UNCLOS where these limitations were lifted: “1. including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. specifying the geodetic datum. unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. For the purpose of computing the ratio of water to land under paragraph l. UNCLOS II – 1960)  Basic Zones: 1. land areas may include waters lying within the fringing reefs of islands and atolls. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. rivers. It simply defined our baseline. And the Straight Baseline Method would require the drawing of an imaginary line. and 5. 2. Then. Such baselines shall not be drawn to and from low-tide elevations. The length of such baselines shall not exceed 100 nautical miles. and it was upheld as valid. you comply with certain limitations. may be substituted. Ermita. High Seas.”] So. is between 1 to 1 and 9 to 1. The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. Here’s Art. Internal Waters. up to a maximum length of 125 nautical miles. canals. 3. 5. we have to know the baselines because these zones are computed from the baselines. except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length. territorial sea. we use the Straight Baseline Method. non-archipelagic state. contiguous zone. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position.The Law of the Sea  Governed by the 1982 UNCLOS III (UNCLOS I – 1958. First. 3. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land. if as an example. Measurements of Zones of Sea USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. lists of geographical coordinates of points. Local Gov’t Law. 7. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State. It did not restrict or expand our territory. And the Philippines. So all member states of the UNCLOS were given a deadline to define their baselines on the basis of the mandate of the UNCLOS. the latest is UNCLOS III. Alternatively. We already defined our baseline law and it was questioned in the case of Magallona v. ‘Just In Time’. 6. We use Low-Water Mark for non-archipelagic states. nag – JIT ta class.

lakes and canals. There’s a more complicated Isopath Rule. These zones can be divided into two kinds: INTERNATIONAL and NON-INTERNATIONAL WATERS. rivers. then it can reach up to 350 nm. the Internal Waters. except for ships in distress.Then you have the Territorial Sea. Within the territorial sea are non-international waters. First. . Ship in distress is the ONLY EXCEPTION when foreign vessels can enter Internal Waters. We still have to know the rights of the coastal states over continental shelves especially in relation with the EEZ. 12 nm from the baseline (the yellow color) Then 24 nm from the baseline. (referring to below illustration) Baselines – 12NM – 24NM …There can be 350nm from the territorial sea for the Continental Shelf where the natural prolongation of the shelf extends 200 nm because if this [kanang nag slope. Competences in Zones of the Sea Let’s go to the different maritime zones. Territorial Waters. That’s how it should look. warships. Remember. ventral (referring to above illustration). Internal Waters include ports. harbors.The coastal state can prohibit entry into its internal waters by foreign ships. harbors. EXCEPTION: Right to innocent passage. . We have to know this because we have to know the rule regarding the Continental Shelf. is the contiguous zone.the coastal state can prohibit entry into its internal waters by foreign ships.include ports. the rights of the coastal states over minerals and living organisms that would qualify as sedentary species. that is the continental shelf (Sir referring to the Illustration)] Kung shorter na siya sa 200nm. the high seas is not similar to international waters. lakes and canals (man-made canals in international law). Take a look at examples of acts which do not fall under the right of innocent passage later. & Public Int’l Law 89 . except for ships in distress. 200 nm from the baseline is the EEZ. Beyond is the high seas. When is passage considered innocent. Local Gov’t Law. different legal questions arise depending on the kind of vessel that is within the internal waters: merchant ships. would be within the sovereign rights of the coastal state even if found to be beyond the natural prolongation kung less than 200 nm siya. ABSOLUTE. rivers. In a situation where the natural prolongation would extend beyond the 200 nm. other foreign non-commercial ships. Territorial Sea USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. International Waters are waters after the territorial sea. Internal Waters . So that’s one perspective. that’s also found in the UNCLOS.When already within internal waters.

Up to 12 nautical miles from baseline …  Measurement . So that’s part of the territory ha. 17-18) Art. exception: Ships in Distress. Territorial Sea. Territorial Sea  Breadth (Art. However. SO these are the examples of exercise of the right to innocent passage. straight baselines. from the “baseline” . ships of all States … enjoy the right of innocent passage through the territorial sea. When is passage considered innocent? It is found in the UNCLOS. Passage means navigation through the territorial sea for the purpose of: (a) Traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters. Territorial Sea USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Territorial Sea  Rights of Ships – innocent passage (Arts. For non. beyond its land territory and internal waters and. Normal Baseline (Low-Water Mark method). 17: Subject to this Convention. That’s the point where the water and the dry land mass meet during low tide. 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. in the case of an archipelagic State. & Public Int’l Law 90 . its archipelagic waters. 18: 1. ships or aircraft in danger or distress. good order or security of the coastal state. The sovereignty of a coastal State extends. or (b) Proceeding to or from internal waters or a call at such roadstead port facility. subject to the Law of the Sea Convention (Art. Take a look at examples of acts which do not fall under the right of innocent passage later. Local Gov’t Law.baseline (Art. 2) 1. But ayaw na nah ninyo iapply because these were rules followed before the UNCLOS. Territorial Sea Sovereignty. ang territorial sea of course. to an adjacent belt of sea. described as the territorial sea. 2. This is where the French Rule and English Rule comes in. Fishing vessels must comply with local laws and submarines must navigate on the surface and show their flag.Not Exceeding 12 n.Limitation: “Right of Innocent Passage” by foreign ships. 5): . and 2. 2.. Recap: Internal Waters. Territorial Sea. It is innocent if not prejudicial to the peace.archipelagic states. So our laws extend up to 12 NM in all respects. 12nm from the Baseline. This sovereignty extends to the airspace over the territorial sea as well as to its bed and subsoil. passage includes stopping and anchoring. but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons. For Archipelagic States. Examples of acts that will negate right of innocent passage.m. Straight Baseline Method . Except where otherwise provided in this Convention. Passage shall be continuous and expeditious. the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.Baselines: 1. Low water mark. exception: Right to Innocent Passage. Art. 3) .

Kung territorial sea. Passage of a foreign ship shall be considered to be prejudicial to the peace. immigration. that is. 28) 1. Paragraph 2 is without prejudice to the right of the coastal State. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings. or security of the coastal State if in the territorial sea it engages in any of the following activities: . 2. or sanitary regulations EEZ Exclusive Economic Zone USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. interfering with communications or other facilities. to prevent infringement of its customs. (c) If the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State. fiscal. or (d) If such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. & Public Int’l Law 91 . a foreign ship lying in the territorial sea.Meaning of Innocent Passage (Art. Contiguous Zone. for the purpose of any civil proceedings. espionage. weapon exercise. immigration or sanitary laws. or passing through the territorial sea after leaving internal waters. save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. or security of the coastal State. Territorial Sea Criminal Jurisdiction on Board a Foreign Ship (Art. fishing. 27) 1. [Paraphrased: threat or use of force. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. or “any other activity not having a direct bearing on passage”] Territorial Sea Civil Jurisdiction in Relation to Foreign Ships (Art. in accordance with its laws. Passage is innocent so long as it is not prejudicial to the peace. research or surveying activities. violation of customs. this is where the state can exercise protective jurisdiction. good order. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. Local Gov’t Law. willful and serious pollution. to levy execution against or to arrest. fiscal. good order. absolute. launching or landing of aircraft or other military device. Contiguous Zone -24 n. 3. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 19): 1. (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea. save only in the following cases: (a) If the consequences of the crime extend to the coastal State.m. from the baseline -Coastal State is limited to Protective Jurisdiction only.

The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI [Continental Shelf] Continental Shelf Art. 57 – The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. the coastal State shall have due regard to the rights and duties of other States…. It is not mandated to enter into a joint venture without the consent of the coastal state. currents and winds. (c) Other rights and duties provided for in this Convention 2. you are mandated by the UNCLOS to enter into a joint venture with other states. conserving and managing the natural resources. and with regard to other activities for the economic exploitation and exploration of the zone. (b) Jurisdiction as provided for in the relevant provisions of this Convention with regard to:…. In the exclusive economic zone. of the waters superjacent to the seabed and of the seabed and its subsoil. naa pa diha ang living and non – living resources. 2. Ang continental shelf exclusive gyud na siya sa coastal state. (ii)marine scientific research. In exercising its rights and performing its duties under this Convention in the exclusive economic zone.. (iii)the protection and preservation of the marine environment. The rights of the coastal State over the continental USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. subject to the specific legal regime established in this Part. maw na nah ang subject sa CONTINENTAL Shelf sovereign rights. jurisdiction and duties of the coastal State in the EEZ 1. 56 – Rights. part na siya sa EEZ sovereign rights. 3. 77 – Rights of the coastal State over the continental shelf 1.. under seabed and subsoil. Exclusive gyud na siya (referring to the continental shelf). Breadth  Art. Pero kung ilawm na gani sa seabed ug subsoil. & Public Int’l Law 92 . 3. SO pag. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. whether living or non-living. such as the production of energy from the water. MINERALS. 55 – the exclusive economic zone is an area beyond and adjacent to the territorial sea. kaning fish nga superjacent sa subsoil (sa ibabaw). Difference between the EEZ and Continental Shelf 1 Ang EEZ will have to be claimed by the coastal state. under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. Ang EEZ (exclusive sovereign rights of exploitation) if you cannot exploit the resources. nga tubig ni. Local Gov’t Law. not in the case of Continental shelf. the coastal State has: (a) Sovereign rights for the purpose of exploring and exploiting. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources. Exclusive Economic Zone Art. no one may undertake these activities without the express consent of the coastal State. So kinanglan i-claim na nimo.Specific Legal Regime created by UNCLOS  Art.imagine lang gud class. Inig touch na sa seabed ug subsoil. 2 Sovereign rights of the EEZ would have to cover resources in the waters superjacent to the seabed and the seabed and the subsoil.

mediation. Agreement to have cease fire – the UN can be called upon to make sure that such arrangement will be complied with. And it’s very common when parties voluntarily submit their controversies to the international court of justice. Also. Apart from knowing that. all others. or by a collective effort in pursuit of Self Defense. The sedentary resources referred to in No. Apart from continental seas. mediation. conciliation. conciliation.)  Art. Under Article 39 of the UN Charter. we begin with measures that are short of armed force. arrangements. Non-recognition of illegal situations. etc. Instead of immediately sending troops to an area where there is an ongoing armed conflict. inquiry. by an individual state. whether they can be considered state or not. organisms which. One of the issues that we’ll be talking about will be the issue on the use of force either by the UN. meaning minerals. UN SANCTIONS AND COLLECTIVE SECURITY What is the rule of thumb when it comes to resolving conflicts? The first rule of thumb (?) when it comes to Conflict Resolution in International Law is through Peaceful Means. Local Gov’t Law. complete/partial interruption of means of telecommunications. Complete or partial interruption of economic relations. Do not disregard Intl Humanitarian Law) {POST-MOCK BAR. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. Establishment of ad hoc criminal tribunals. that is to say. October 3. effective or notional. 41 suggests that the SC should take measures “not involving the use of force” “to give effect to its decision” Examples: 1. and severance of diplomatic ties. or on any express proclamation. and severance of diplomatic ties. 39 allows UN to call upon the partners concerned to implement “provisional measures”  Art. Article 33 allows the Security Council (SC) to call upon the parties to settle their disputes peacefully. at the harvestable stage. we should also know whether these norms are norms of Customary Intl Law. Both parties can request the UN through their relevant Committees to help implement some provisional measures. 33 allows the Security Council (SC) to call upon the parties to settle their disputes peacefully (through negotiation. 4 is the only living resources in the continental shelf subject to the sovereign rights of the coastal state. it may be possible to send peacekeeping operations for the purpose of implementing some provisional measures that the parties have probably agreed upon. 2. 2014} CONTEMPORARY ISSUES IN PUBLIC INTERNATIONAL LAW If an agreement is not entitled “Treaty”. you will see there the idea/suggestion that before use of force will be employed – even by the UN – peaceful resolution should be availed of. judicial settlement. And in fact. We’re talking about the recurring issues involving Middle-East countries. When we talk about UN Sanctions and Collective Security. special status of some territories. in Syria. 3. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. such as peaceful transport or evacuation of citizens. UN through SC may call upon the parties to implement some provisional measures during armed conflict. either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. arbitration. 4. Public Exposure by the GA of gross violations. Examples of which would be complete. (Referring to Mock Bar preparation: Please read Environmental Law – The Trail Smelter Case. 4. shelf do not depend on occupation. enquiry. in Israel. or partial interruption of economic relations. 1. will it be governed by the Vienna Convention on the Law of Treaties? UN Sanctions and Collective Security – this is a recurring issue. judicial settlement. means of telecommunications. Then the transboundary norm. Condemnation of illegal acts. of course your high seas. Article 41 is the core Article suggesting the resort to measures that are short of armed force. MEASURES SHORT OF ARMED FORCE  Art. arbitration. There are examples mentioned in Article 41. and 5. If you look at Article 33 of the UN Charter. & Public Int’l Law 93 . non – living gyud na siya. And you will have negotiation. The SC may decide what measures to take that do not involve the use of force to give effect to its decision. we call upon UN members to implement such measures. These are peaceful means.

That’s one nuh.Other options available to the SC would be the non-recognition of illegal acts or situation. That is one. [2ND INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN] 4. May authorize a particular state to use force. Antonio Cassese made an analysis of the functions of peacekeeping operations. part of commitments is to send troops under certain arrangements. deployment of peacekeeping forces. State A attacks State B and if it can be established that indeed there is armed attack or unlawful aggression therefore entitling the victim state to exercise self defense. issue is. It is still an issue whether a state can unilaterally suppress atrocities in foreign counrties that are violating human rights. Security Council sa resolution would even specify when sending peace keeping operations that they may be allowed to use all means necessary to implement the decision of the Security Council and ”that all means necessary” may include the use of force.  Evolved functions: To take necessary measures. the SC passed a series of resolutions declaring that none of these acts done by Iraq would be recognized by the members of the Family of Nations. [#5 IN SLIDES] [TN] All these. forestall armed hostilities between them. including use of force. The issuance of resolutions.N. [#3 IN SLIDES] 2. during the Kosovo crisis. I called it contemporary issues because it is indeed an issue because sometimes the Security Council will allow the use of force even in safe keeping operations. to reply to bombardments against safe areas of any of the parties The idea of Peacekeeping operations is now very well-known to us. Aside from these measures. to use force to repel the aggression. Establishment of ad hoc criminal tribunals. Local Gov’t Law. Those were upon the initiative of the UN. 3 ways by which use of force may be authorized by the UN: 1. So that’s a measure peaceful in character but will have significant effects in International Law. or 2. And this 1st instance of UN authorization by the state is recognized in Article 43 of the UN charter. 43 authorizes Security Council to call upon member States “to contribute to the maintenance of international peace and security”. another state. When there is “threat to the peace or ongoing international or internal armed conflicts” to implement IHL rights (humanitarian crises) 1st situation. You have the International Criminal Tribunal of the former Yugoslavia. Public exposure by the General Assembly of gross violations. council will allow the use of force calling upon a member state to use force. Another UN Security measure would be the use of force by states upon UN authorization. 43 allows Security Council to utilize regional arrangements or agencies for “enforcement actions” “under its authority”  In 1999. AUTHORIZATION  Art. USE OF FORCE BY ORGANIZATIONS UPON AUTHORIZATION OF THE SECURITY COUNCIL  Art. The UN may authorize regional organizations (like the NATO) to use force. PEACEKEEPING OPERATIONS  Deployment of peacekeeping forces (UN Blue Berets)  Main functions: To separate contending parties. Tokyo. Nuremberg. Re: Filipino soldiers who got involved in hostage-taking or armed confrontation at Syria (?). So. or [#4 IN SLIDES] 3. USE OF FORCE BY STATES UPON U. After a State had been engaged in acts of aggression against another State which had reacted in self- defense. upon the authorization of the Security Council. others. for Rwanda. If unilateral by that state. the UN can authorize State C. 2. These are examples of peaceful measures. separate contending parties and maintain order in a given area. What else? Condemnation of illegal acts through resolutions. So we sent about 75 Filipino soldiers.  This covers: 1. For example. TN that this is UN authorized action different from unilateral intervention by some states even if it is apparently or allegedly for humanitarian reasons. [1ST INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN] 3. and he made an observation that the original purpose of peacekeeping operation would simply be to one. that is already a legitimate effort to suppress atrocities abroad that are already considered violations of human rights. and maintain order in a given area. when Iraq invaded Kuwait. Ex. & Public Int’l Law 94 . But if it is authorized by the Security Council. that is still an issue. Different to cya. This is the first instance when the Sec. Mao ang getawag nga evolving function of peace keeping operation. Probably because sophisticated na ang methods of warfare at present murag ang traditional function of the peace keeping operation would not be sufficient. UN actively conducts peacekeeping operations. is there a moral obligation or legal obligation to send troops? The moment we became a member of the UN. You’ve learned that there were ad hoc criminal tribunals that were established upon the initiative of the UN. NATO decided to attack the Federal Republic of Yugoslavia (Serbia and USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. The General Assembly will authorize the Security Council to use force.

Montenegro) without any specific authorization. Russia apparently has financial economic interest over oil in Syria so it was expected nga ang Russia mo veto gyud sa pag grant og authority sa US to use force. analyze the scope and intensity (“massive armed attack” against the “territorial integrity and political independence of a state that imperils its life and government). International Law) This is very common and there is a legal basis for this. there are 11 members of Security Council. pero the plan supposedly for the US is to take the attack to Syria because of the alleged use of neurological weapons by the government of Syria and so you remember that Russia did not and was not expected to cooperate with the Security Council. An example of an issue. According to Cassese. So dili pwede na ang Gen. 51 of the Charter and has informed the SC about the use of force in self-defense. customary international law (see Nicaragua vs. US.  Self-Defense must comply with the requirements of (1) presence of “armed attack”. or acts of aggression [Chapters V-VII . not because the norm itself is problematic but because developing man gud unta ang International Law yet we somehow limited some of the possible practices of states by putting threshold and standards in the UN charter. the State exercising right of self-defense must report the measures taken to the Security Council. this is the category of law evaluating situations or instances when a state can lawfully USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. Assembly on its own mu issue og resolution for the use of force. and (2) observance of the principles of “proportionality”. na issue man to. One is Pre-War and the other is During-War. Gen. council. although adverted ang effort to attack Syria because of some developments. Why an issue? Because you have the norm. There are 2 kinds of rules or legal system involving war. Pero mga ingani na problem. For procedural issues. threats posed by weapons of mass destruction. 52-53)] until the Security Council has taken measures.so indeed.naa sad amerikano didto. & Public Int’l Law 95 . USE OF FORCE AS AUTHORIZED BY THE GENERAL ASSEMBLY  The General Assembly may recommend actions to the Security Council. The 5 permanent members are China. Assembly authorizing the UN itself to use force. 11 and Art. just like in Gulf war. Supposedly. It has to be upon the request of Security Council. as you know the 5 permanent members also have informal allies. This is found in Art. “precaution” and “military necessity” So this brings me to that field of law called Jus Ad Bellum.  States can only justify use of force in case of self-defense as recognized in Art. Just like what happened to US. Local Gov’t Law. 11 in relation 12 par. assembly issuing such recommendation but there seems to be a requirement that a resolution by the General Assembly authorizing the use of force will have to be upon the request of Security Council. Russia and Great Britain. upon the latter’s request. UNILATERAL RESORT TO FORCE Jus Ad Bellum (the law of going to war)  Art. 1 of the charter. 51 of the UN Charter [Individual or Collective self-defense (see Arts. These are all provided for by member nations. That is why it is possible. It has to be by the Gen. the Security Council will have to arrive at a vote of 7 but ang problem sa Security Council kai kung other decision than procedures it would have to require the vote of the 5 permanent members. note: Retorsion & Reprisal are coercive measures short of war. UN Charter] [including against international terrorism. Under Article 53. cf: Art. 12 (1) of the UN Charter. That is a contemporary issue.  Usually done in situations where a member State has exercised individual or collective self-defense under Art. If one nila disagrees mo veto cya that no major action may be taken by the Security Council. under Art. 2(7)as limitation]. the rule and state practice. So when we say Jus ad Bellum. If the US is a member of a mutual or collective defense sa treaty then authorized by the Security Council . breaches of peace. Naa 5 permanent and 6 non-permanent members. may clause cya nga if a member is involved in the armed conflict dapat mu abstain cya. and on humanitarian grounds.  Any use of force/threat to use force may only be lawful if done with the collective decision of the UN in cases of threats to peace. 2(4) of the UN Charter prohibits “use of force” and “threat to use force”. unanimous sila. another important article to study.  There is no customary law yet legitimizing forcible intervention for humanitarian purposes without the need of formal Security Council authorization (see: Antonio Cassese. By the way. Going back to the basic. apparently is not in confimity with the norm mao na issue. Next issue: unilateral resort to use of force. France. kanang veto power will not allow the Security Council to authorize a particular major decision. let’s say US authorized to use force so dunay US forces authorized by Security Council then there will also be security council forces nga naa pud mga americans. US). there is no customary law yet recognizing the legitimacy of forceful intervention either for humanitarian purposes if it is without Security Council authorization. as i have said it has to be with the authorization of the Security Council . this is an issue at one point in 1999 in the Kosovo crisis NATO attacked Serbia and Montenegro without waiting for specific authorization from the sec. If they will go there eithr as UN Security Council forces or they will go there. This is the second. [3RD INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN] 5. Wala military personnel ang UN.

engage in war. Second. you need to understand what constitutes “force”. US.” So small scale staging of an attack. not clearly settled 6. precaution. one of the issues that you will have to deal with is the “use of force”. inconsistent . and leaving no choice of means. Preventive/Anticipatory Self-defense. In other words. so that it may be prohibited. That is if you look into the literal interpretation of Article 51. If you look at Article 51. and therefore be considered illegal. supra. or tolerating subversive or terrorist activities carried out against another State]. If the “use of force” or even the “threat to use force” is prohibited. terrorists). the moment the Security Council is informed of the acts done pursuant to the exercise of the right to self- defense. It is prohibited and it is in fact a customary international law as recognized in the case of Nicaragua vs. The UN Charter always uses the word “State” when it comes to “use of force” or “armed attack”. now accepted 8. because it should be the state invoking self-defense should right away cease to use force the moment the Security Council already exerts effort to control the aggressor. More often than not. Self-defense against Armed infiltration and indirect Aggression [organizing. Cuban Missile Crisis. not yet settled In the Caroline case. Jus Ad Bellum “SELF-DEFENSE” 1. we need to know the intensity of the attack if it could qualify as the kind of armed attack that will necessitate self-defense and the use of force in furtherance of such defense. US. even if it is armed will not necessarily entitle the victim state to invoke the right to self-defense and consequently use force. and military necessity. Inherent! Case: Caroline case (standard: “necessity of that self-defense is instant. even insurgents. inciting. So the right to self-defense is limited in scope and also in time. The second instance where force may be lawfully used is in case of self-defense. See 1970 General Assembly Friendly Relations Declaration 5. In other words. US. fomenting. Article 2(4) of the UN Charter prohibits the use of force. and leaving no choice of means. But first. It may be individual or collective. Caroline Standard [Daniel Webster Formulation: “leaving no moment for deliberation” standard] 4. commentators say that it would not be correct to limit the concept of “force” when the UN Security Council is allowed to use force if it is limited to “states” because it is possible that the acts of aggression or armed attack may be perpetrated by non-state actors such as organized terrorist groups. and probably with the intensity that endangers not only the territorial integrity but even political independence. US. and you’ve learned that it can be allowed only in two instances: (1) collective decision of the UN (2) used as a result of the exercise of self-defense (whether individual or collective). Self-defense and Rescue of Hostages or Protection of Nationals Abroad. In fact. Always remember that not all armed attacks will warrant the use of force for right of self-defense. still contentious 7. overwhelming. In relation to this. Local Gov’t Law. let’s take a look at the scope or limitations to the use of force. The idea of “force” as prohibited by the UN Charter and in relation to the exercise of the power of the UN through the Security Council to repel such force does not have to be “force” done or exerted by states. One. It could also be widespread. It should be. there is a suggestion that one should analyze the scope and the intensity. If it is to qualify as force. maintain peace and order. there must be the presence of armed attack. Self-defense against Non-State Actors (e. the exercise of the right of self-defense is good only until the Security Council has taken measures. But Cassese does not necessarily agree. However. in which case it may be considered as “use of force”. there are certain rules to be observed. when to lawfully use force. there shall likewise be observance of proportionality. reading the pronouncement of the ICJ in Nicaragua case “such an attack that is characterized as massive armed attack and endangering territorial integrity and political independence of the state. the moment the Security Council steps in. still in Nicaragua vs. and no moment for deliberation”) 2. and no moment for deliberation”. the concept of self-defense will revolve around the parameters set forth by the ICJ in Nicaragua vs. Self-defense and Nuclear Weapons. US. Small-scale armed attack will not warrant the use of force. These are inherent limitations to the use of force when invoking right to self-defense. Article 51 limits that declaration in Article 2(4) about the prohibition to use force because it allows the use of force when done in self-defense. financing. we ask the question of when is “use of force” allowed. And in Nicaragua vs. Retorsions and reprisals are considered coercive measures but not considered “force” unless reprisal is armed reprisal. It should be a massive armed attack as explained in Nicaragua vs. then the state invoking self-defense should stop and cease using force. Recognized by Art. the threshold or standard enunciated there to be able to invoke self-defense is of such generic phrase such as “necessity of that self-defense is instant. still contentious Case: Nicaragua vs. Self-defense and Claims to Territory. and may effectively control any use of force by the aggressor. US. That is saying that any use of force while the Security Council is already in control of the situation may be a questionable act under the international law. overwhelming. “armed attack” should not just any armed attack to warrant the use of force by way of self-defense. in short. & Public Int’l Law 96 .g. still broad. In the case of Nicaragua vs. Of course. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. assisting. US. The most relevant article of course is Article 2(4) in relation to Article 51. before we go the right of self-defense. 51 of the UN Charter (already limited and fixed?) 3.

It could be regional. Infact. Self-defense and Nuclear Weapons. Si Cassese made an opinion of converting this into customary international law but under the strict requirement or threshold: USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. it can co-exist with that convention. So ilang gibuhat niuna nalang sila ug attack like sa military installations and stations. kanang idea of actual aggression as a requirement will probably be a proper element of self-defense. But now. He is best known for his espionage work in 1961 . Made of wood. conventions and treaties are also evidence of the progressive development of customary international law. the limitation to the exercise of the right to self-defense seem to be unwarranted. Liman kag ang ilang spy nahimo ug high ranking official sa ilang opponent. Kahoy ba. And this evolution of customary international law may be manifested in treaties and conventions outside of the UN. naghimo sila ug toy aircraft. But leading states are advocating for preventive or anticipatory self-defense would have to be US and Israel. Now that we have somewhat codified or fixed the right to self-defense. leaving no moment of choice or moment of deliberation? For example. assuming wala nay attack. practiced by some states. the treatment is that it (right to self-defense?) should be there. By mere push of a button you can attack against any state wherever located.] So. Because if it is customary international law. but there is evidence of the attack. Syrian counter-intelligence authorities eventually uncovered a spy conspiracy. and leaving no choice of means. Egypt. So when Israel conducted the military operations. he was an Israelite and he became a defense secretary of Egypt. Sa pagcalculate sa Israel. And as you know. wa hilabti.1965 in Syria (not Egypt as what DBL discussed). 51 and an expanded right of self-defense in customary international law. So what they did was. So we have a situation wherein we have a limited right of self-defense under Art. Or can you argue that since the right to self-defense is an inherent right. tried and convicted Cohen under pre-war 'martial law' to death penalty in 1965. Why? Because the right to self- defense is supposedly inherent. The traditional concept of armed attack is that there is already an armed attack. as an issue. So mao toy tirahan. Dili pa lage sophisticated kay 1960s baya. Pero until when man sila mg use ana nga technology if continuous ang aggression on the part of Hamas? So. if they would wait for the attack of the 3 countries. Jordan and Syria. there were attacks using these missiles although na control sa Israel kay naa silay bag-ong US supported/financed technology. You just go to the advisory opinion of the ICJ on the validity on the use of nuclear weapons. The states counter attacks kabaw gyd sila asa tirahon ang military installations.ingon gd siya necessity of that self-defense that is instant. Now that this right of self-defense found its way to the UN Charter and the Charter provided thresholds. & Public Int’l Law 97 . That’s when they discovered nga naa gyud spy diri somewhere. the idea now is. Unlike sauna. it should be continued to exist because that is customary international law. even ang opposite part of the globe can be an object of a missile attack by a mere push of the button. halos tanang residents mu undergo ug military training. Kadtong mga fake military installations. Nganong issue man na? Can it be a valid argument that the right of self-defense will now be limited to the requirements set forth in section 51 and also the readings of the ICJ in the Caroline case. tungod sa kagamay nila. So. overwhelming. where he developed close relationships with the political and military hierarchy and became the Chief Adviser to the Minister of Defense. Pero karon. were methods of warfare were not that sophisticated. aw igo tanan. So. you will review the basic rules on the use of force. preventive or anticipatory self-defense NOT YET SETTLED. it has to be evolving. ang nearby states lang. ang PREVENTIVE AND ANTICIPATORY SELF-DEFENSE has not yet evolved into a customary international law. I’m bringing this up class. Local Gov’t Law. will that give limitations to the exercise of the right to self-defense? Such as the requirement that it should really be instant. Self-defense and rescue of hostages or protection of nationals abroad. So when Egypt learn about the plot of Israel nga manira sila ug military installations. Ka remember moa tong 1960s man guro toh nga ang Israel gdungan ug attack ang Egypt ug mga neighboring countries like Jordan because when they calculated the impending attacks of these neighboring countries. But. will international law require that there should be an actual attack or an actual aggression before self-defense may be invoked? In the past. kay pirte man gamaya aning Israel. and as you know part of customary international law. do we have to put limitations to the right of self-defense (which is supposedly inherent)? Because if this is customary international law. in relation to the issue of anticipatory self-defense.The question now is. So very strategic. and no moment for deliberation. And if you remember. the famous spy of Israel. Kay ni. Diba kabaw namo sa idea sa anticipatory self-defense? Diba mao mani ang g-invoke sa Israel in relation to operations of Hamas in Gaza? Unsa man ilang claim? Ang Hamas in Gaza may mga missile sila that they will use against Israel. [Additional notes by the Transcriber Assigned to this topic: I think sir was referring to ELI COHEN who was an Israeli spy. it will not lose its character as customary international law even if it is codified in a convention? So are you familiar with this principle? That even a customary international law is codified in a convention. The intelligence he gathered is claimed to have been an important factor in Israel's success. means and methods of warfare are becoming more sophisticated. So that you when you go home. aw sigurado gyud maluto ang Israel. multilateral.

So that is also accepted. logistical training will not amount to armed attack. because there were minorities in State B. organized groups like terrorists are capable of staging massive armed attacks. would that warrant the use of force in the exercise of self-defense? [DBL note: this problem might come out in the BAR] State A. and El Salvador allegedly sought the help of US. Local Gov’t Law. the force amounting to armed attack that would justify the use of force pursuant to self-defense. There is an armed attack contemplated by article 51. military or logistical assistance to the rebels in El Salvador. So the remedy here is UN through the SC will ask or authorize another State to help the victim State. What should the victim State do? Like in this case. Instead of troops crossing the border. ang decision man gud sa ICJ when it comes to aggression. Nicaragua (Merits) on Indirect Aggression: “training or providing economic or military or logistical or other assistance to rebels fighting against the central authority in another country may be regarded as a threat or use of force or as an intervention in the internal or external affairs of another State. if ang armed forces sa State A mu cross ug border ug mu conduct ug armed attack. ICJ held that there should be an existence of an armed attack by Nicaragua against El Salvador that would justify the use of force purportedly pursuant to self-defense. and the principle of prohibition against the use of force. State B usually belong to one territory. To repeat. 3. but since they belong to different ethnicities. Unya. ang ilang buhaton kay kadtong mga rebelde sa target state mao to ilang idevelop in order to stage an attack against the central authority of state B. Will self-defense be available to the victim state in such a way it is authorized to use force against state a? No question. Another issue you will take note is about Self-defense against Armed infiltration and indirect Aggression. However. logistically—support rebel groups in another country? If yes. “Hence. statistically. provided that it is upon the authority of the Security Council (SC). There is a different armed attack threshold requirement for armed attack in self-defense from armed attack that would warrant use of force upon the instance of the SC. Eventually. it is wrong to limit lang ang armed attack sa state. & Public Int’l Law 98 . USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. the attacking state would either finance. There are various ways in which force can be used. You are not to say that this is valid or invalid depending on the possible justifications for this. ni-mention man gd siya ug state. Mas sophisticated pa na ilang weapons compared to regular members of the armed forces. State A. Unsa manang armed infiltration and indirect aggression? Definitely. 51 would warrant an action on the part of the SC. 195. therefore an exception to art. After the successful rescue dapat mu stop na daw ang use of force.195). way issue. 228. kadtong mga insurgents or rebels within the state. State A began supporting. if they will use self- defense against the ACTUAL aggressors. it does not entitle the target State to respond by self-defense against the assisting State” (p. Remember that the scope of authority of the SC does not even require actual aggression. All other types of “forces” lower than that contemplated in art. it does not entitle the target State to respond by self-defense against the assisting State” (p. and 230). So that is indirect aggression. 1. Pwede nato i-allow ang rescue of nationals abroad for limited and very narrow purposes. even small scale armed attack will not warrant self-defense. military. these two States became hostile to each other. mere provision of economic. In that case therefore. financing. US claimed that there was an armed attack by Nicaragua against El Salvador. What are the IL aspects in that problem? Indeed it is a violation of IL: the principle of non-intervention. invoking self-defense. What I’m trying to say is that you should remember that it is still contentious. 2. as long as there is threat to peace. The facts of the case were as follows: US attacked Nicaragua on the ground that Nicaragua provided economic. now acceptable. Eventually. but NOT because of the exercise of the right to self- defense. especially at this time. But I don’t think this is a valid subject of Bar exam question. they were divided into two groups. When US attacked Nicaragua. So pwede diay. it does not amount to armed attack (unless the provision of significant military support to an insurgency is major and demonstrable” (p. what are the remedies available to the victim State? Is there a violation of International Law (IL) if another State assists—financially. there were cross-border encounters. and 230) What’s the legal basis for you answer? If you cannot use force against State A. “Hence. 195. it does not amount to armed attack (unless the provision of significant military support to an insurgency is major and demonstrable” (p. Dapat wala nay laing means to rescue or all means have already been exhausted either peacefully or through diplomatic channels. And according to some commentators. US. terrorists). So in the case of Nicaragua vs. it would have been better if US secured the authorization of SC in order to quell the intervention of Nicaragua when it supported the rebels in El Salvador. has a high threshold for armed attack. what should they do if they cannot use force under self-defense (against this indirect aggression)? They are not entirely helpless. what could El Salvador do if US is its ally. However will it justify an armed attack against the supporting state? NOT YET SETTLED. However. Pero naa manay. trains. training the minorities in State B. You have to go back to the landmark pronouncement of the ICJ in the case of Nicaragua: “training or providing economic or military or logistical or other assistance to rebels fighting against the central authority in another country may be regarded as a threat or use of force or as an intervention in the internal or external affairs of another State.195). 228.g. Self-defense against Non-State Actors (e. supply or assist in the logistics of organizing an armed attack against the central authority of state B. thus this remedy should have been availed of rather than invoking self-defense. for economic reasons. sometimes naa na daan sa state B. 2(4).

Commentators say. small scale or massive. e-categorize nimo ang reprisal: Number one.g. cannot be justified if it is without the consent of the victim State because that would qualify as an “intervention”. go to SC then go to UN. 2 par. It is not allowed under Art 51 in relation to Art. again. nya huwaton nya after one month. Pero kung ang iyang armed reprisal delayed use of force. not allowed by Art. Pero kung delayed siya. right there and then mo use sila og force against attacking forces of the enemy state. gina-declare nani sila class armed reprisals as a contrary to the purposes of principles of the UN charter. the retaliation or reprisal have been may after a considerable length of time from the time small scale armed attack have been made that is why it is retaliatory. attackon dayon na sya sa neighboring and enemy state. Ang idea is. Ky kung naay immediacy then maapply nimo ang state of necessity doctrine. right away. and law of neutrality. meaning. armed reprisal in response to small scale use of force. in order to justify and therefore that you know that it may be justified. & Public Int’l Law 99 . naa pa ky remedies during that time na wa pa ni take og action against the small scale armed attack against your state. That is why. Naghisgot naman jud tag war. If the use of force is in the category of retaliatory armed reprisal then it is unlawful because of Art. What I am saying now is wa ky koy nagdiscuss obvious basic concept because I assume nga naa na nato. of course you follow proportionality. that will not warrant use of force pursuant for self-defense but it will warrant use of force provided it is categorize as on-the-spot because there was immediacy requirement. 4 of the UN charter prohibiting the use of force. States not involved in armed conflict should observe certain rules on neutrality. prohibited na xa under art. we already know this. as the requirements every time armed forces used.e. human right. Commentators say that the other kind of armed reprisal should be justifiable for terrorism for. akong balikon. If the helping State intervenes even without the consent of the victim State. kanang small scale use of force. 2 par. the one using force should not be itself the object of the attack (the victim). ARMED REPRISALS AGAINST UNLAWFUL SMALL-SCALE USE OF FORCE  Literally. Second one it is not a sound policy to delay responses because for all we know that is the beginning of a massive armed attack. as opposed to what we call (2) on-the-spot-reaction. 51 in relation to Art. And it will be justified under the State of Necessity doctrine provided that. justifiable. Remember. May immediacy ba.. In other words. a prior “bond” (e. there are three categories of law is PIL: law of peace. If the State is not the object of the attack. CSD would be justified if there is (1) an agreement. and it just came to the rescue of this victim State. kanang dili mga artilleries. 51 of the Charter  In support of another State which has suffered an armed attack  The intervening State must not be itself a victim of the armed attack  Requires (1) prior “bond” (e. (1) there is reprisal that is considered retaliatory. use of force in armed reprisals. treaty) or (2) request or previous consent of the victim State  It is for the victim State to establish that it has been militarily attacked (see Nicaragua [merits]) The idea of collective self-defense (CSD) usually presupposes a situation wherein another State comes to the aid of a victim State. kanang mga handguns lang. Generally. law of war. and considered as an intervention. and (2) “On-the-spot-reaction” (applying ‘state of necessity’ doctrine. that’s an instance of CSD. 2(4) prohibiting the use of force. 2(4) of UN Charter  Has been declared by various Security Council and General Assembly Resolutions as “incompatible with the purpose and principles of the United Nations”  Commentators and experts suggest that the armed reprisal should be categorized into: (1) Retaliatory armed force.On Collective Self-Defense  Recognized in Art. INTERNATIONAL HUMANITARIAN LAW USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. but requiring ‘proportionality’ and ‘immediacy’) Art 51 presupposes that the armed attack should be massive. In many SC (Security Council) and General Assembly resolutions. it could be considered as violation of the laws of neutrality. Di pud na gi-attack of troops sa border by use of. Pero after a long period of time. So you don’t expect victim state to wait and see kung unsa ni siya. You can go through peaceful processes attack even if gi-attact naka by use of force. Some commentators will give us some example kana daw magpatrol ang military near sa border. In relation to all of this.wa pa ni react dn usa pa ka ni use of force dn it becomes retaliatory. Use of force there may be justified by the state of necessity doctrine. Local Gov’t Law. i. So small scale armed attack would not justify the use of self-defense. ok na kung naay immediacy. use of force of another State in favor of a victim State. number one state of necessity doctrine. So. Medyo delayed ang response ba. there may not be justified anymore. there should be proportionality and immediacy. In other words. may be valid only in a situation where it is called on-the-spot-reaction.g. otherwise it would be individual self-defense and not a CSD. ai massive so I can use of force pursuant to self- defense ky massive naman siya. Retaliatory armed force. treaty between the victim State and the helping State) OR (2) the victim State makes a request or gives previous consent to a helping State. It is a state of necessity doctrine ra rather than some sort of anticipatory self-defense. di pud pwede na tirahan nimog missile as a retaliation because you have to comply every time basta use of force with the requirement of proportionality. it is also for the victim State to establish that it has been militarily attacked not by the one aiding (Nicaragua case). e-relate nalang nato ning IHL kay related rman. I think it’s important to know international huminatarian law kay I was supposedly planning to show other issues like environmental law. 4.

Purposes/objectives of International Humanitarian Law (IHL) 2. that’s the other term of IHL. detention. Means and Methods of Warfare 6. let’s talk about armed conflict which the IHL would apply because IHL does not apply to all kinds of armed conflict. rules on the sick and the wounded. Let’s talk about the three basic principles in IHL: principle of distinction. and aggression. E. as I have said. but for purposes of PIL bar exam. Excluded are internal disturbances. It covers 2 kinds of armed conflict: international and non-international armed conflicts. because it is another category of law that is more or less interrelated with IHL. (a) Principle of Distinction. A good example of which is the use of weapons that will cause unnecessary sufferings. It primarily seeks to protect civilian population and objects (to “humanize” the effects of war) (calls for balancing of “military necessity” and “humanity”). International Human Rights Law (IHRL) vs. you know and it is to be understood. the three important principles are the usual questions ask in bar exams although naay mga stray questions sometimes. In the course of armed conflict. displacements and other concerns and then we finally end with criminal responsibility. and individual criminal responsibility. proportionality and precaution. war crimes. Now. the 1949 Geneva Conventions and Additional Protocols prohibit the “attack on civilian population or objects as such” during armed conflict. What if there is no “armed conflict”? 4. The rule is very simple but if you take a look into specific provisions medyo complicated xa actually. Criminal Responsibility So. now we have one document on ICL and that is the Rome Statute created by the Int’s Criminal Court (ICC). Meaning of “armed conflict” to which IHL applies 3. if there is no armed conflict as understood in IHL what would be the remedies and what would be the situations. Related xa sa IHL in the sense nga ang IHL nagregulate xa sa means and methods of warfare and at the same time there is another category of law that is created or established for the purpose of prosecuting those who have committed atrocities during armed conflict. So means and methods of warfare were really want to be regulated for that purpose if you want to humanize the effects of war and therefore so you have to balance the military necessity and humanity because some means and methods of warfare may disregard human dignity. Let’s talk on the law on armed conflict. It governs the law on armed conflict in times of war. For example. It defines crimes.g. Fundamental principles that govern conduct of war. such as riots or demonstrations and other similar internal disturbances. It covers international or non-international armed conflict. . As defined. (b) Principle of Proportionality. There are so many rules on IHL. it is a body of international law that prohibits certain categories of conduct viewed as serious atrocities and to make the perpetrators may be held liable. Detention. So it’s another category in ICL. What is International Criminal Law(ICL). Rome Statute creating the International Criminal Court (ICC) in the Hague which defines and punishes genocide. its elements. So that. It governs the laws of armed conflict or law of war.on the other hand. So lain ang IHL og lain sa ang ICL. we also have another category of rules governing the conduct of hostilities and this where we talk about IHL. Purpose is to seek or protect civilian population or objects from the effects of war that’s why it is called the IHL to humanize the effects of war and therefore the study of IHL calls for a balancing of the concept of military necessity because the moment there is armed conflict or war. but not mere internal disturbances. E. In the past ICL scattered na xa in various documents. IHL USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. not jus ad bellum. International Humanitarian Law (IHL) or Law on Armed Conflict . Let’s talk about rules in warfare and then we relate also these principles to other rules. only to certain categories of armed conflict. crimes against humanity. etc) 7. certain acts of atrocities have been categorized as crimes committed during war. There are really methods of warfare but IHL governs these methods in order to humanize the effects of war. That’s jus in bello not jus ad bellum. International Criminal Law (ICL) is a body of international law that prohibits certain categories of conduct viewed as serious atrocities and to make the perpetrators of such conduct criminally accountable. Maka-use man kag weapon because what is the object of war? dba the object of war is to achieve peace and the only way to achieve peace is to defeat the opponent. Other IHL Rules (Sick and Wounded. and (c) Principle of Precaution 5. when there is armed conflict or war. Local Gov’t Law. are in the category of jus ad bellum rules engaging in war. Means of Waging War and Criminal Responsibility: Jus In Bello 1. here let’s talk about in order to understand the purposes of IHL. that the object or the main objective of war is really to defeat the opponent. & Public Int’l Law 100 .So those issues. IHL or jus in bello.g. lacking in intensity and lacking in organization.

a distinction must be made between these two: civilian population distinguished from combatants. there’s a difference between IHRL and IHL. Fundamental Principles in IHL Principle of Distinction Principle of Proportionality Principle of Precaution One is the Principle of DISTINCTION. If you are to distinguish the two. *Sir gives advice: One skill you have to learn is to have the eye and the brain of a surgeon.solve ang issues sa problem. but mas mayo unta sobra pas pasar. Ayaw ra nang “we distinguish civilians from combatants. purpose or use make effective contribution to military action and advantage. Mura bitaw ang problem para ra mag trigger unsa ang topic all about and tagaan rakas topic. the prohibition against inhumane treatment of prisoners. ayaw lang pud ng “applicable both in times of peace and war ang IHRL. general ra kaayo pag answer. 48. So International human rights law will apply to all persons. Because if you look at my notes here. (Sir: But na discuss naman ni nato. and in times of war. Tagaan ug general problem. freedom of expression) and some are absolute or non-derogable (e. The above answer is too simplistic. ay sus. or to peaceably assemble. Civilians and Civilian Objects.g. That might probably ensure a passing score in the bar. & Public Int’l Law 101 .” Ayaw. Ang kaning derogable rights ma limited ni in times of war. observed in IHRL also observed in IHL. dili bitaw i. an example of which is freedom of expression. for example. But there are however rights that in fact some commentators would say that broader ang international human rights law. it will only apply to those persons affected by armed conflict. only in times of war. iyang categories kay derogable and non-derogable. or probably curfew policies. To this extent. mas specific ang IHL. the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Lawful Targets  Combatants (except hors de combat) USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. and IHL in times of war. “Military Objects” are those which by their nature. So when for example in times of war. Necessarily. location. then that means lawm2 imong understanding sa two. in times of peace. Let’s go straight to the principles. the examiner will try to see if you have an idea nga mag OVERLAP na sila. IHL applies to armed conflicts  Some rights in IHRL may be limited or suspended (e. Why? Because IHL (International Humanitarian Law) is limited in scope. But mag converge sila in regard to NON-Derogable right such as the right against torture. like bawal na mag group in times of war.” Butangi sad ug “IN THE CONDUCT OF MILITARY OPERATIONS. This we will appreciate the moment we talk about the different principles in IHL. 2nd distinction. AP I: “In order to ensure respect for and protection of the civilian population and civilian objects. Probably.  IHRL refers to inalienable fundamental rights to which a person is inherently entitled. International human rights law applies AT ALL TIMES. So pwede ma limit ang some of the rights. Civilian Objects – objects which are not military objectives. Civilians – persons who do not belong to armed forces and who are not combatants 2.) So who and what are the protected persons and objects in IHL. BUT. So in IHRL. But may area sila class na mag overlap. and civilian objects and military objects.this is where mag converge ang IHRL ug IHL – there are NON-DEROGABLE RIGHTS that are observed even in times of war. civilian objects distinguished from military objects. Whereas if you say nga naay areas na mag converge ang IHRL ug IHL. Local Gov’t Law. Let’s take a look at the types of armed conflict. Protected Persons and Objects in IHL: 1. Principle of Distinction Art. IHL is specific. the state or any authority will limit your right to travel.g. while IHL refers to the rights of persons affected by armed conflicts  IHRL applies at all times.” Additional Protocol 1 Article 48 governs the principle of distinction. some rights in international human rights law may be limited or suspended. right against torture) 1st distinction.

Santos. Arriesgado. Duran-Ybañez. Cinco. Bayalas... Lao. EXCEPT when these are used for military objectives in which case these civilian objects will lose their protection. Canada. Bristol. But you that these civilian objects. The civilian population as such. Ong. Civilian Objects not a lawful subject. Uy. Georfo.) Civilians may be a lawful subject or target IF in direct hostilities. Lim. Blanco. Semillano. Ubod. Ortezuela. which are additional to other applicable rules of international law. Paglinawan. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. J. they will cease to be when they become Hors de Combat. although generally enjoying protection may lose such protection if they have been used militarily. Lesigues. Civilians shall enjoy the protection afforded by this section.” [NOTHING FOLLOWS] CREDITS: Arnado. Dente. Caminade. Rejuso. as well as individual civilians. Churches. the school has been used as storage for armaments and weapons. Pasatiempo. Pena.  Civilians Taking Direct Part in Hostilities  Military Objects (including civilian objects that lost protection such as those used for military objective) In other words. Tan-Yu. Salas. Baya. Borres. Sanchez.) Military Objects. 3. hospitals have been attacked. Israel daw has proof that Hamas is storing weapons in schools and hospitals. Lulu. Israel will come out as violating IHL. AP I: “1. USC WARRIOR NOTES||POLITICAL LAW REVIEW 2014-2015 ||Law on Public Officers. P. & Public Int’l Law 102 . unless they become Hors de combat (combatants that surrendered. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. the lawful targets during armed conflict would be: 1.. Diao. This is important in view of what is happening in GAZA. Cokaliong. Uy. Lim. Tapia. L. Susvilla. and in fact use them as sites for launching missiles against Israel.. Atuel. Gregorio. shall not be the object of attack. Gan. Tampus. To give effect to this protection. you will say that Israel is violating IHL. schools.) So even if originally lawful combatants sila. If you have not studied IHL. Barcenas. A. Basic lang gud. in relation to the way Israel makes their attack on Gaza. Balt. Rosales. Fiel. Ediza. 2. Lumapas. Biton. Sotto.. have been attacked. Chan. For example. Narca. Medequiso. and no longer participate in combat functions. Civilian Population Art.) COMBATANTS. A. Plaza. unless and for such time as they take part in hostilities. Gallego. Gonzalodo. Civilians not lawful subject except when they take direct part in hostilities. they will lose that protection. Menchavez. Nardo. Mao nay gi tawag ug COLLATERAL DAMAGE RULE. Robles. 51. J. Local Gov’t Law. laid their arms. Plaza. the following rules. shall be observed in all circumstances. Certainly. Otero. If you are up to date. Olvis.