Professional Documents
Culture Documents
PAGE 124
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
PAGE 118
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
PAGE 119
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
Kind of Due process does not always entail notice and hearing
Administrative Judicial
Proceedings prior to the deprivation of a right. Hearing may occur after
parties deprivation, as in emergency cases, in which case, there
must be a chance to seek reconsideration. [UP Board of
The agency itself The parties are Regents v. CA (1999)]
may be a party to only the private
Parties
the proceedings litigants Presence of a party at a trial is not always the essence of
before it due process. All that the law requires is the element of
fairness; that the parties be given notice of trial and
Requisites for a Valid Exercise (1) an opportunity to be heard
(1) Jurisdiction (2) in administrative proceedings, an opportunity to seek
(2) Due process reconsideration
(3) an opportunity to explain one’s side
General Rule
A tribunal, board or officer exercising judicial functions acts The law, in prescribing a process of appeal to a higher
without jurisdiction if no authority has been conferred to it level, contemplates that the reviewing officer is a person
by law to hear and decide cases different from the one who issued the appealed decision.
(1) Jurisdiction to hear is explicitly or by necessary Otherwise, the review becomes a farce; it is rendered
implication, conferred through the terms of the meaningless. [Rivera v. CSC (1995)]
enabling statute.
(2) Effect of administrative acts outside jurisdiction—Void. Is a trial necessary? —NO. WON to hold an adversarial trial
is discretionary. Parties cannot demand it as a matter of
Powers included in Quasi-Judicial Function right. [Vinta Maritime v. NLRC (1978)].
(1) Subpoena Power – In any contested case, the agency
shall have the power to require the attendance of The right of a party to confront and cross-examine
witnesses or the production of books, papers, opposing witness is a fundamental right which is part of
documents and other pertinent data. [Sec. 13, 1987 due process. If without his fault, this right is violated, he is
Admin Code] entitled to have the direct examination stricken off the
(2) Contempt Power record. [Bachrach Motors v. CIR (1978)]
General Rule: Get the aid of RTC.
Exception: Law gives agency contempt power. [Sec. 13, Evidence on record must be fully disclosed to the parties.
1987 Admin Code] [American Inter-Fashion v. Office of the President (1991)] but
(3) Power to issue Search Warrant or Warrant of Arrest respondents in administrative cases are not entitled to be
General Rule: Only Judges may issue informed of findings of investigative committees but only
Exception: Deportation Proceedings [Harvey v. of the decision of the administrative body. [Pefianco v.
Defensor-Santiago (1988)] Moral (2000)]
Administrative Due Process Due process is violated when:
Due Process (1) There is failure to sufficiently explain the reason for the
Findings of facts by administrative bodies which observed decision rendered; or
procedural safeguards (e.g. notice and hearing parties, and (2) If not supported by substantial evidence;
a full consideration of evidence) are accorded the greatest (3) And imputation of a violation and imposition of a fine
respect by courts despite absence of due notice and hearing. [Globe
Telecom v. NTC (2004)].
Cardinal Primary Rights
Ang Tibay v CIR (1950) lays down the cardinal primary Self-incrimination
rights: The right against self-incrimination may be invoked by the
(1) Right to a hearing (Includes the right of a party to respondent at the time he is called by the complainant as
present his own case and submit evidence in support a witness. However, if he voluntarily takes the witness
thereof) stand, he can be cross examined; but he may still invoke
(2) The tribunal must consider the evidence presented the right when the question calls for an answer which
(3) Decision must be supported by evidence. incriminates him for an offense other than that charged.
(4) Evidence must be substantial. [People v. Ayson (1989)]
Quantum of Proof (Substantial Evidence) Notice and Hearing
The amount of relevant evidence which a reasonable When required:
mind might accept as adequate to justify a conclusion (1) When the law specifically requires it.
[Sec. 5 Rule 134 Rules of Court] (2) When it affects a person’s status and liberty.
(5) Decision must be rendered on the evidence presented When not required:
at the hearing or at least contained in the record and (1) Urgent reasons.
disclosed to the parties affected (2) Discretion is exercised by an officer vested with it upon
(6) Independent consideration of judge (Must not simply an undisputed fact.
accept the views of a subordinate) (3) If it involves the exercise of discretion and there is no
(7) Decision rendered in such a manner as to let the parties grave abuse.
know the various issues involved and the reasons for (4) When rules to govern future conduct of persons or
the decision rendered. enterprises, unless law provides otherwise.
(5) In the valid exercise of police power.
PAGE 120
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
PAGE 121
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
When are notice and hearing required in licensing? Only if DOCTRINE OF PRIMARY ADMINISTRATIVE
it is a contested case. Otherwise, it can be dispensed JURISDICTION
with.(e.g. driver’s licenses). General Rule: Courts will not intervene if the question to be
resolved is one which requires the expertise of
No expiry date does not mean the license is perpetual. A administrative agencies and the legislative intent on the
license permit is a special privilege, a permission or matter is to have uniformity in the rulings.
authority to do what is within its terms. It is always
revocable. [Gonzalo Sy Trading v. Central bank (1976)] It can only occur where there is a concurrence of
jurisdiction between the court and the administrative
FIXING OF RATES, WAGES, PRICES agency.
“Rate” means any charge to the public for a service open
to all and upon the same terms, including individual or It is a question of the court yielding to the agency because
joint rates, tolls, classification or schedules thereof, as well of the latter’s expertise, and does not amount to ouster of
as communication, mileage, kilometrage and other special the court. [Texas & Pacific Railway v. Abilene (1907)]
rates which shall be imposed by law of regulation to be
observed and followed by any person. [Sec. 2(3), 1987 It is the recent jurisprudential trend to apply the doctrine of
Administrative Code] primary jurisdiction in many cases that demand the special
competence of administrative agencies. It may occur that
the Court has jurisdiction to take cognizance of a particular
Public Participation. – (2) In the fixing of rates, no rule or case, which means that the matter involved is also judicial
final order shall be valid unless the proposed rates shall in character. However, if the determination of the case
have been published in a newspaper of general circulation requires the expertise, specialized skills and knowledge of
at least 2 weeks before the first hearing thereon. [Sec. 9, the proper administrative bodies because technical
1987 Administrative Code] matters or intricate questions of facts are involved, then
relief must first be obtained in an administrative proceeding
Generally, the power to fix rates is a quasi-legislative before a remedy will be supplied by the courts even though
function. However, it becomes judicial when the rate is the matter is within the proper jurisdiction of a court.
applicable only to an individual. [Industrial Enterprises v. CA (1990)]
Can the power to fix rates be delegated to a common Well-entrenched is the rule that courts will not interfere in
carrier or other public service? NO. The latter may propose matters which are addressed to the sound discretion of the
new rates, but these will not be effective without the government agency entrusted with the regulation of
approval of the administrative agency. [KMU v. Garcia activities coming under the special and technical training
(1994)] and knowledge of such agency. Administrative agencies are
given a wide latitude in the evaluation of evidence and in the
What are considered in the fixing of rates? exercise of their adjudicative functions, latitude which
(1) The present valuation of all the property of a public includes the authority to take judicial notice of facts within
utility, and their special competence [Quiambao v. CA (2005)]
(2) The fixed assets.
The doctrine of primary jurisdiction applies where a claim is
The property is deemed taken and condemned by the originally cognizable in the courts, and comes into play
public at the time of filing the petition, and the rate should whenever enforcement of the claim requires the resolution
go up and down with the physical valuation of the of issues which, under a regulatory scheme, have been
property. [Ynchausti v. Public Utility Commissioner (1922)] placed within the special competence of an administrative
body; in such case, the judicial process is suspended
pending referral of such issues to the administrative body
for its view. And, in such cases, the court cannot arrogate
Judicial Recourse and Review into itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an
administrative body of special competence. [Sherwill v.
General Rule: Judicial review may be granted or withheld as Sitio Sto Nino (2005)]
Congress chooses. Thus, a law may provide that the
decision of an administrative agency shall be final and RATIONALE: In this era of clogged docket courts, the need
irreviewable and still not offend due process. for specialized administrative boards with the special
knowledge and capability to hear and determine promptly
Exception: Judicial Power vests in the Supreme Court the disputes on technical matters has become well nigh
power to determine whether or not there is grave abuse of indispensable. Between the power lodged in an
dicretion. [Nachura] administrative body and a court, the unmistakable trend
has been to refer it to the former. [GMA v. ABS CBN (2005)]
Rule 43 of the Rules of Court provides that the Court of
Appeals shall have appellate jurisdiction over judgments REQUISITES:
or final orders of the Court of Tax Appeals and from (1) Administrative body and the regular court have
awards, judgments, final orders or resolutions of or concurrent and original jurisdiction
authorized by any quasi-judicial agency in the exercise of (2) Question to be resolved requires expertise of
its quasi-judicial functions. administrative agency
(3) Legislative intent on the matter is to have uniformity in
rulings
PAGE 122
UP COLLEGE OF LAW ADMINISTRATIVE LAW BAR OPERATIONS COMMISSION
(4) Administrative agency is performing a quasi-judicial or (9) When it involves the rule-making or quasi-legislative
adjudicatory function (not rule-making or quasi- functions of an administrative agency. [Smart v. NTC
legislative function [Smart v. NTC (2003)] (2003)]
(10) Administrative agency is in estoppel. [Republic v.
Rationale: It is presumed that an administrative agency, if Sandiganbayan (1996)]
afforded an opportunity to pass upon a matter, would (11) Doctrine of qualified political agency
decide the same correctly, or correct any previous error (12) Subject of controversy is private land in land case
committed in its forum [Caballes v Sison (2004)] proceedings. [Paat v. CA (1997)]
(13) Blatant violation of due process. [Paat v. CA (1997);
WHEN THE DOCTRINE IS INAPPLICABLE: Pagara v. CA]
(1) If the agency has exclusive jurisdiction (14) Where there is unreasonable delay or official inaction.
(2) When the issue is not within the competence of the [Republic v. Sandiganbayan (1996)]
administrative body to act on. (15) Administrative action is patently illegal amounting to
(3) When the issue involved is clearly a factual question lack or excess of jurisdiction. [Paat v. CA (1997)]
that does not require specialized skills and knowledge (16) Resort to administrative remedy will amount to a
for resolution to justify the exercise of primary nullification of a claim. [DAR v. Apex Investment (2003);
jurisdiction. Paat v. CA (1997)]
(17) No administrative review provided for by law. [Estrada
EFFECT v. CA (2004)]
The case is not dismissed, but merely suspended until after (18) Issue of non-exhaustion of administrative remedies
the matters within the competence of the administrative rendered moot. [Estrada v. CA (2004)]
agency are threshed out and determined. [Vidad v. RTC (19) In quo warranto proceedings. [Corpus v. Cuaderno
(1993)] (1962)]
(20) Law expressly provides for a different review
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE procedure. [Samahang Magbubukid v. CA (1999)]
REMEDIES
General Rule: Where the law has delineated the procedure EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES:
by which administrative appeal or remedy could be It does not affect jurisdiction of the court.
effected, the same should be followed before recourse to
judicial action can be initiated. [Pascual v. Provincial Board The only effect of non-compliance is it that will deprive
(1959)] complainant of a cause of action, which is a ground for a
motion to dismiss.
REQUISITES:
(1) The administrative agency is performing a quasi-judicial But if not invoked at the proper time, this ground is
function. deemed waived. [Republic v. Sandiganbayan (1996)]
(2) Judicial review is available.
(3) The court acts in its appellate jurisdiction. Doctrine of Primary
Doctrine of Exhaustion of
Administrative
Administrative Remedies
RATIONALE: Jurisdiction
(1) Legal reason: The law prescribes a procedure.
Jurisdiction of Court
(2) Practical reason: To give the agency a chance to correct
its own errors [and prevent unnecessary and premature Concurrent Original
resort to the courts Appellate Jurisdiction with Admin
(3) Reasons of comity: Expedience, courtesy, convenience. Body
Ground for non-exercise of Jurisdiction
EXCEPTIONS TO THE DOCTRINE OF EXHAUSTION OF REMEDIES:
(1) Purely legal questions. [Castro v. Secretary (2001)] The court yields to the
(2) Steps to be taken are merely matters of form. [Pascual jurisdiction of the
Exhaustion of
v. Provincial Board (1959)] Administrative agency
Administrative Remedy a
(3) Administrative remedy not exclusive but merely because of its
condition precedent.
cumulative or concurrent to a judicial remedy. [Pascual specialized knowledge
v. Provincial Board (1959)] or expertise
(4) Validity and urgency of judicial action or intervention. Court Action
[Paat v. CA (1997)]
(5) No other plain, speedy, adequate remedy in the Dismiss Suspend Judicial Action
ordinary course of the law. [Paat v. CA (1997);
Information Technology Found’n v. COMELEC (2004)] DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION
(6) Resort to exhaustion will only be oppressive and No resort to the courts will be allowed unless the
patently unreasonable. [Paat v. CA (1997); Cipriano v. administrative action has been completed and there is
Marcelino (1972)] nothing left to be done in the administrative structure.
(7) Where the administrative remedy is only permissive or
voluntary and not a prerequisite to the institution of The Doctrine of Finality of Administrative Action is a
judicial proceedings. [Corpuz v. Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
(8) Application of the doctrine will only cause great and Exhaustion of Administrative Remedies. It is a prerequisite
irreparable damage which cannot be prevented except for judicial review.
by taking the appropriate court action. [Paat v. CA
(1997); Cipriano v. Marcelino (1972)]
PAGE 123
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
PAGE 167
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
SCOPE
Election – the means by which the people choose their
officials for a definite and fixed period and to whom they
entrust for the time being the exercise of the powers of Qualification and
government.
Disqualification of Voters
KINDS OF ELECTION
Regular – one provided by law for the election of officers QUALIFICATIONS
either nation-wide or in certain subdivisions thereof, after [Art. V, Sec. 1, 1987 Const.]
the expiration of the full term of the former officers. (1) Citizenship: Filipino citizen by birth or naturalization
Incumbent upon one who claims Philippine
Note: The SK election is not a regular election because citizenship to prove to the satisfaction of the courth
the latter is participated in by youth with ages ranging that he is really Filipino. Any doubt regarding
from 15-21 (now 15-18 as per RA 9164), some of whom are
citizenship must be resolved in favor of the state. [Go
not qualified voters to elect local or national elective
officials [Paras v. COMELEC (1996)] v. Ramos (2009)]
Special – one held to fill a vacancy in office before the (2) Age: at least 18 at the time of the election
expiration of the full term for which the incumbent was
elected. (3) Residency:
(a) Resident of the Philippines for at least 1 year and
Plebiscite – election at which any proposed amendment (b) Resident of the place wherein they propose to
to, or revision of, the Constitution is submitted to the vote for at least 6 months immediately preceding
people for their ratification. It is also the means by which the election
the voter in affected areas consent or object to the
change in the form of local government Note: Any person who temporarily resides in another
city, municipality or country solely by reason of his:
Referendum – submission of a law passed by the national (1) employment in private or public service
or local legislative body to the registered voters at an (2) educational activities
election called for the purpose for their ratification or (3) work in the military or naval reservations within
rejection. the Philippines
(4) service in the AFP, PNP or
Initiative – the power of the people to propose (5) confinement or detention in government
amendments to the Constitution or to propose and enact institutions in accordance with law shall not be
legislation through an election called for the purpose. deemed to have lost his original residence [Sec. 9,
[Sec. 3(a), R.A. 6735, The Initiative and Referendum Act] R.A. 8189, Voter’s Registration Act of 1996]
PAGE 125
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
constituted government (e.g. rebellion, sedition, of the city or municipality wherein he resides and
violation of the firearms law) or any crime against including the same in the book of registered voters upon
national security (unless restored to full civil and approval by the Election Registration Board. [Sec. 3(a),
political rights in accordance with law) shall R.A. 8189]
automatically reacquire the right to vote upon the
expiration of 5 years after the service of sentence Registration does not confer the right to vote but it is a
(c) Insane or incompetent persons as declared by condition precedent to the exercise of the right [Yra v.
competent authority Abano (1928)]
Registered voter: In order that a qualified elector may vote SYSTEM OF CONTINUING REGISTRATION OF
in any election, plebiscite or referendum, he must be VOTERS
registered in the Permanent List of Voters for the city or The personal filing of application of registration of voters
municipality in which he resides. [Sec. 115, B.P. 881, shall be conducted daily in the office of the Election
Omnibus Election Code] Officer during regular office hours.
PAGE 126
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
(2) Members: the right to vote upon the expiration of 5 years after
(a) Public school official most senior in rank the service of sentence
(b) Local civil registrar, or in his absence, the city or
municipal treasurer. If neither are available, any (3) Insane or incompetent persons as declared by
other appointive civil service official from the competent authority
same locality as designated by the COMELEC.
(4) Did not vote in the 2 successive preceding regular
Disqualification: relation to each other or to any elections (excluding SK elections)
th
incumbent city or municipal elective official within the 4
civil degree of consanguinity or affinity. [Sec. 15, RA 8189] (5) Registration has been ordered excluded by the Court
and
CHANGE OF RESIDENCE OR ADDRESS
CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY (6) Lost his Filipino citizenship. [Sec. 27, RA 8189]
The registered voter may apply with the Election Officer
of his new residence for the transfer of his registration REACTIVATION OF REGISTRATION
records. [Sec. 12, RA 8189] Any voter whose registration has been deactivated may
file with the Election Officer a sworn application for
CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY reactivation of his registration in the form of an affidavit
Voter shall immediately notify the Election Officer in stating that the grounds for the deactivation no longer
writing. [Sec. 13, RA 8189] exist.
CHALLENGES TO RIGHT TO REGISTER When: Any time not later than 120 days before a regular
WHO MAY CHALLENGE APPLICATION FOR REGISTRATION election and 90 days before a special election. [Sec. 28,
Any voter, candidate or representative of a registered RA 8189]
political party.
Election Officer shall submit said application to the ERB
FORM and if approved, the Election Officer shall retrieve the
(1) In writing registration record from the inactive file and include the
(2) State the grounds therefor same in the corresponding precinct book of voters
(3) Under oath and
(4) Attached to the application, together with the proof Local heads or representatives of political parties shall be
of notice of hearing to the challenger and the properly notified on approved applications
applicant
CERTIFIED LIST OF VOTERS
WHEN FILED List of Voters – refers to an enumeration of names of
nd
Must be filed not later than the 2 Monday of the month registered voters in a precinct duly certified by the
in which the same is scheduled to be heard or processed Election Registration Board for use in the Election
by the ERB [Sec. 18, RA 8189]
Preparation - The ERB shall prepare and post a certified
HEARING list of voters 90 before a regular election and 60 days
rd
3 Monday of the month before a special election. [Sec. 30, RA 8189]
PAGE 127
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
POLITICAL PARTY
An organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct
PAGE 128
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
of government and which, as the most immediate means GROUPS WHICH CANNOT BE REGISTERED AS POLITICAL PARTIES
of securing their adoption, regularly nominates certain of (1) Religious denominations and sects
its leaders and members as candidates for public office. (2) Those which seek to achieve their goals through
[Sec. 60, BP 881 and Sec. 3(c) of RA 7941] violence or unlawful means
(3) Those which refuse to uphold and adhere to the
3 KINDS OF PARTIES: Constitution
(1) National party - constituency is spread over the (4) Those supported by foreign governments [Art. IX-C,
geographical territory of at least a majority of the Sec. 2 (5), Constitution]
regions.
(2) Regional party - constituency is spread over the PURPOSE OF REGISTRATION
geographical territory of at least a majority of the (1) To acquire juridical personality
cities and provinces comprising the region. (2) To entitle it to rights and privileges granted to
(3) Sectoral party – organized group of citizens belonging political parties
to any of the following sectors: labor, peasant, (3) To participate in the party-list system
fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION
veterans, overseas workers and professionals whose The COMELEC may, motu propio or upon verified
principal advocacy pertains to the special interests complaint of any interested party, refuse or cancel, after
and concerns of their sector. due notice and hearing, the registration of any national,
regional or sectoral party, organization or coalition on any
Sectoral organization: group of citizens or a coalition of of the following grounds:
groups of citizens who share similar physical attributes or (1) Religious sect or denomination, organization or
characteristics, employment, interests or concerns. association, organized for religious purposes
(2) Advocates violence or unlawful means to seek its goal
Coalition: an aggrupation of duly registered national, (3) Foreign party or organization
regional, sectoral parties or organizations for political (4) Receives support from any foreign government,
and/or election purposes. [Sec. 3, R.A. 7941, Party-List foreign political party, foundation, organization,
System Act] whether directly or through any of its officers or
members or indirectly through third parties for
PURPOSE partisan election purposes
To enable Filipino citizens belonging to marginalized and (5) Violates or fails to comply with laws, rules or
underrepresented sectors, organizations and parties, and regulations relating to elections
who lack well-defined political constituencies but who (6) Declares untruthful statements in its petition
could contribute to the formulation and enactment of (7) Ceased to exist for at least 1 year
appropriate legislation that will benefit the nation as a (8) Fails to participate in the last 2 preceding elections or
whole, to become members of the House of (9) Fails to obtain at least 2% of the votes cast under the
Representatives. [Sec. 2, R.A. 7941] party-list system in the 2 preceding elections for the
constituency in which it has registered [Sec. 6, RA
REGISTRATION 7941]
Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list CERTIFIED LIST OF REGISTERED PARTIES
sytem. COMELEC shall prepare a certified list of national,
regional, or sectoral parties, organizations or coalitions
PROCEDURE FOR REGISTRATION which have applied or who have manifested their desire
to participate under the party-list system
File with the COMELEC not later than 90 days before
the election a petition verified by its president or
Must prepare the list not later than 60 days before
secretary stating its desire to participate in the party-
election.
list system as a national, regional or sectoral party or
organization or a coalition of such parties or
Names of party-list nominees shall not be shown on the
organizations attaching thereto its constitution, by-
certified list [Sec. 7, RA 7941]
laws, platform or program of government, list of
officers, coalition agreement and other relevant
NOMINATION OF PARTY -LIST REPRESENTATIVES
information as the COMELEC may require
Each registered party, organization or coalition shall
submit to the COMELEC not later than 45 days before the
election a list of names, not less than 5, from which party-
COMELEC shall publish the petition in at least 2 list representatives shall be chose in case it obtains the
national newspapers of general circulation required number of votes.
PAGE 129
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
No change of names or alteration shall be allowed after There are 2 steps in the second round of seat allocation:
the same shall have been submitted to the COMELEC (1) The percentage of votes garnered by each party-list
except when: candidate is multiplied by the remaining available
(1) the nominee dies seats. The whole integer of the product corresponds
(2) withdraws his nomination to a party’s share in the remaining available seats
(3) becomes incapacitated
Formula for remaining available seats =
Incumbent sectoral representatives in the House of No. of seats available to party- x Guaranteed seats
Representatives who are nominated shall not be list representatives of the two-
considered resigned [Sec. 8, RA 7941] percenters
QUALIFICATIONS OF PARTY LIST REPRESENTATIVES Formula for percentage of votes garnered by each party-list
(1) Natural-born citizen of the Philippines candidate =
(2) Registered voter
(3) Resident of the Philippines for a period of not less
No. of votes garnered by each
party ÷ Total no. of votes
cast for party-list
than 1 year immediately preceding the day of the candidates
election
(4) Able to read and write (2) Assign one party-list seat to each of the parties next
(5) Bona fide member of the party or organization which in rank until all available seats are completely
he seeks to represent for at least 90 days preceding distributed.
the day of the election
(6) at least 25 years old on the day of the election BOC’s Note: Atong Paglaum v. COMELEC, G.R. No.
203766, April 3, 2013 is beyond the 2013 Bar Coverage
PARAMETERS IN ALLOCATION OF SEATS FOR cut-off date, but the decision reversed and significantly
PARTY-LIST REPRESENTATIVES modified previous Court rulings on the party-list system.
20% ALLOCATION
The combined number of all party-list congressmen shall EFFECT OF CHANGE OF AFFILIATION
not exceed 20% of the total membership of the House of Any elected party-list representative who changes his
Representatives, including those elected under the party- political party or sectoral affiliation:
list. (1) during his term of office shall forfeit his seat
(2) within 6 months before an election shall not be
Number available to x 20 = Number of seats eligible for nomination as party-list representative
party-list available to under his new party or organization [Sec. 15, R.A.
representatives actually party-list 7941]
obtained, is entitled to a representatives
maximum of 3 seats;
one qualifying and of
seats available to
legislative districts Candidacy
.80
QUALIFICATIONS OF CANDIDATES
2% THRESHOLD CANDIDATE, DEFINITION
Only those parties garnering a minimum of 2% of the Any person who files his certificate of candidacy within
total votes cast for the party-list system shall be entitled prescribed period shall only be considered as a candidate
to one guaranteed seat each. at the start of the campaign period for which he filed his
certificate of candidacy. [Sec. 15, R.A. 9369, Poll
PROPORTIONAL REPRESENTATION Automation Law]
The additional seats shall be computed in “proportion to
their total number of votes”. Unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid
3-SEAT LIMIT campaign period. [Sec. 15, R.A. 9369]
Each party, regardless of the number of votes it actually
obtained, is entitled to a maximum of 3 seats; one Any registered national, regional, or sectoral party,
qualifying and 2 additional seats. organization or coalition thereof that has filed a
manifestation to participate under the party-list system
Banat vs. Comelec GR No. 179271, July 8. 2009 which has not withdrawn or which has not been
Held: In computing the allocation of additional seats, the disqualified before the start of the campaign period.
continued operation of the 2% threshold for the [Comelec Res. 8758, Feb. 4, 2010]
distribution of the additional seats as found in the second
clause of Sec. 11(b) of R.A. 7941 which provides that QUALIFICATIONS
“those garnering more than 2% of the votes shall be Qualifications prescribed by law are continuing
entitled to additional seats in proportion to their total requirements and must be possessed for the duration of
number of votes” is unconstitutional. The 2% threshold the officer's active tenure [Frivaldo v. COMELEC (1989);
frustrates the attainment of the permissive ceiling that Labo v. COMELEC (1989)].
20% of the members of the HR shall consist of party-list
representatives.
PAGE 130
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
Requirements Pres/VP Senator District Rep Gov/ Vice Gov/ Mayor/ Vice
Mayor/ P.Brgy/Sanggunian
Member
Citizenship Natural -born Natural -born Natural -born Citizen of the Philippines
Registered Voter ✔ ✔ ✔ ✔
Read and Write ✔ ✔ ✔ ✔
Age At least 40 on At least 35 on election At least 25 on election On election day:
election day day day 23 – gov., vice gov., member of
sangguniang panlalawigan,
mayor, vice mayor, member of
the sangguniang panlungsod of
HUC
18 – member of the
sangguniang panlungsod, or
bayan or punong baranggay or
member of the sangguniang
baranggay
PAGE 131
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
When: any day from the commencement of the election If the death, withdrawal or disqualification should happen
period but not later than the day before the beginning of between the day before the election and mid-day of the
the campaign period. election day, certificate may be filed with:
(1) any Board of Election Inspectors in the political
In cases of postponement or failure of election, no subdivision where he is a candidate or
additional certificate of candidacy shall be accepted except (2) with the COMELEC if it is a national position [Sec. 77,
in cases of substitution of candidates. [Sec. 75, B.P. 881] B.P. 881]
PAGE 132
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
Proceeding: summary in nature Any candidate who has been declared by final judgment to
be disqualified –
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY (1) shall not be voted for and
Who may file: Any person (2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
When: Any time not later than 25 days from the time of the an election to be disqualified and he is voted for and
filing of the certificate of candidacy receives the winning number of votes in such election
Exclusive ground: any material representation contained in The Court or COMELEC shall continue with the trial and
the certificate of candidacy is false. Provided that hearing of the action, inquiry, or protest and
(1) the false representation pertains to material matter
affecting substantive rights of a candidate and Upon motion of the complainant or any intervenor, may
(2) the false representation must consist of deliberate during the pendency thereof, order the suspension of the
attempt to mislead, misinform, or hide a fact which proclamation of such candidate whenever the evidence of
would otherwise render a candidate ineligible [Salcedo his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
II v. COMELEC (1999)] Law of 1987]
Decision: Shall be decided, after due notice and hearing, Where a similar complaint/petition is filed:
not later than 15 days before the election. [Sec. 78, BP 881] (1) before the election and proclamation of the
respondent and the case is not resolved before the
The false representation must pertain to a material fact election - the trial and hearing of the case shall
that affects the right of the candidate to run for the continue and referred to the Law Department for
election for which he filed his COC. Such material fact preliminary investigation
refers to a candidate’s eligibility or qualification for elective (2) after the election and before the proclamation of the
office like citizenship, residence or status as a registered respondent - the trial and hearing of the case shall be
voter. Aside from the requirement of materiality, the false suspended and referred to the Law Department for
representation must consist of a deliberate attempt to preliminary investigation
mislead, misinform, or hide a fact that would otherwise
render a candidate ineligible. In other words, it must be Note: In either case, if the evidence of guilt is strong, the
made with the intention to deceive the electorate as to the COMELEC may order the suspension of the proclamation
would-be candidate’s qualifications for public office. [Salic of respondent, and if proclaimed, to suspend the effects of
Maruhom v. COMELEC (2009)] proclamation. [Sec. 4, Resolution No. 8678]
PAGE 133
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
Campaign (3) Members of the military [Art. XVI, Sec. 5 (3), Const.]
(4) Foreigners, whether juridical or natural persons.
PAGE 134
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
(2) is portrayed by an actor or media personality who is (2) includes the use of facilities personally owned by the
himself a candidate. [Sec. 6, RA 9006] candidate, the money value of the use of which can be
assessed based on the rates prevailing in the area.
ELECTION SURVEYS [Sec. 94, BP 881]
The measurement of opinions and perceptions of the
voters as regards a candidate's popularity, qualifications, PROHIBITED CONTRIBUTIONS
platforms or a matter of public discussion in relation to the (1) From Public or private financial institutions. Unless:
election, including voters' preference for candidates or (a) the financial institutions are legally in the business
publicly discussed issues during the campaign period. of lending money
(b) the loan is made in accordance with laws and
Surveys affecting national candidates shall not be regulations AND
published 15 days before an election and surveys affecting (c) the loan is made in the ordinary course of business
local candidates shall not be published 7 days before an (2) Natural and juridical persons operating a public utility
election. or in possession of or exploiting any natural resources
of the nation
Exit polls may only be taken subject to the following (3) Natural and juridical persons who hold contracts or
requirements: sub-contracts to supply the government or any of its
(1) Pollsters shall not conduct their surveys within 50m divisions, subdivisions or instrumentalities, with goods
from the polling place, whether said survey is taken in or services or to perform construction or other works
a home, dwelling place and other places (4) Grantees of franchises, incentives, exemptions,
(2) Pollsters shall wear distinctive clothing allocations or similar privileges or concessions by the
(3) Pollsters shall inform the voters that they may refuse government or any of its divisions, subdivisions or
to answer and instrumentalities, including GOCCs
(4) The result of the exit polls may be announced after the (5) Grantees, within 1 year prior to the date of the election,
closing of the polls on election day and must clearly of loans or other accommodations in excess of
identify the total number of respondents, and the P100,000 by the government or any of its divisions,
places where they were taken. Said announcement subdivisions or instrumentalities including GOCCs
shall state that the same is unofficial and does not (6) Educational institutions which have received grants of
represent a trend. [Sec. 5, RA 9006] public funds amounting to no less than P100,000
(7) Officials or employees in the Civil Service, or members
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL of the Armed Forces of the Philippines
ACTIVITY (8) Foreigners and foreign corporations, including foreign
(1) All applications for permits must immediately be governments. [Secs. 95 and 96, BP 881]
posted in a conspicuous place in the city or municipal
building, and the receipt thereof acknowledged in PROHIBITED FUND-RAISING ACTIVITIES
writing. The following are prohibited if held for raising campaign
(2) Applications must be acted upon in writing by local funds or for the support of any candidate from the start of
authorities concerned within 3 days after their filing. If the election period up to and including election day:
not acted upon within said period, deemed approved. (1) Dances
(3) The only justifiable ground for denial of the application (2) Lotteries
is when a prior written application by any candidate or (3) Cockfights
political party for the same purpose has been (4) Games
approved. (5) Boxing bouts
(4) Denial of any application for said permit is appealable (6) Bingo
to the provincial election supervisor or to the (7) Beauty contests
COMELEC whose decision shall be made within 48 (8) Entertainments, or cinematographic, theatrical or
hours and which shall be final and executory. [Sec. 87, other performances
BP 881]
For any person or organization, civic or religious, directly or
PROHIBITED CONTRIBUTIONS indirectly, to solicit and/or accept from any candidate or
DEFINITIONS from his campaign manager, agent or representative, or
Contribution: gift, donation, subscription, loan, advance or any person acting in their behalf, any gift, food,
deposit of money or anything of value, or a contract, transportation, contribution or donation in cash or in kind
promise or agreement to contribute from the start of the election period up to and including
(1) WON legally enforceable election day
(2) made for influencing the results of the elections
(3) excludes services rendered without compensation by Except: normal and customary religious stipends, tithes, or
individuals volunteering their time in behalf of a collections on Sundays and/or other designated collection
candidate or political party days [Sec. 97, BP 881]
(4) includes the use of facilities voluntarily donated by
other persons, the money value of which can be REQUISITES OF A PROHIBITED DONATION
assessed based on the rates prevailing in the area. Who: By candidate, spouse, relative within 2nd civil degree
[Sec. 94, BP 881] of consanguinity or affinity, campaign manager, agent or
representative; treasurers, agents or representatives of
Expenditures: payment of money or anything of value or a political party
contract, promise or agreement to make an expenditure
(1) for the purpose of influencing the results of the When: During campaign period, day before and day of the
election election
PAGE 135
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
PAGE 136
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
Board of Election Inspectors its proceedings, the BEI may issue an order in writing
directing any peace officer to take said person into
(BEI) and Board of custody until the adjournment of the meeting, but such
order shall not be executed as to prevent said person
COMPOSITION OF BOARD OF ELECTION INSPECTORS (5) Furnish watchers Certificate of Votes (CEF No. A13)
COMPOSITION upon request
[Sec. 13, RA 6646 and Sec. 164, BP 881]
(1) Chairman – public school teacher (6) Perform such other functions as prescribed by the
(2) Poll Clerk – public school teacher Code or by the rules and regulations promulgated by
(3) Two members, each representing the two accredited the Commission
political parties
COMPOSITION OF BOARD OF CANVASSERS
QUALIFICATIONS [Sec. 20, RA 6646]
[Sec. 166, BP 881]
(1) Good moral character and irreproachable reputation
Province City Municipality
(2) Registered voter of the city or municipality
(3) Never been convicted of any election offense or any Chairman
other crime punishable by more than 6 months of
imprisonment, or if he has pending against him an Provincial election City election Election registrar
information for any election offense supervisor or registrar or a or COMELEC
(4) Speak , read and write English or the local dialect lawyer in the lawyer of representative
(5) At least 1 member of the BEI shall be an information COMELEC COMELEC;
technology-capable person who is trained and certified regional office
by the DOST to use the AES (where AES shall be In cities with more
adopted) [Sec. 3, RA 9369 Amended Automated than 1 election
Elections System Law] registrar,
COMELEC shall
DISQUALIFICATIONS designate
[Sec. 167, BP 881]
Vice Chairman
(1) Related within 4th degree of consanguinity or affinity
to any member of the BEI Provincial fiscal City fiscal Municipal
(2) Related within 4th degree of consanguinity or affinity treasurer
to any candidate to be voted for in the polling place or
his spouse Member
(3) Not engaged in any partisan political activity or take Provincial City Most senior district
part in the election except to discharge his duties as superintendent of superintendent of school supervisor
such and to vote [Sec. 173, BP 881] schools schools or in his absence, a
principal of the
POWERS OF BOARD OF ELECTION INSPECTORS school district or
[Sec. 10, COMELEC Resolution 9640, General Instructions elementary school
for BEI on Testing and Sealing, Voting, Counting and
Transmission of Election Results]
(1) Conduct the voting in the polling place and administer In case of non-availability, absence, disqualification due to
the electronic counting of votes, including the testing relationship, or incapacity for any cause of any of the
and sealing of the PCOS machine members, COMELEC may appoint the following as
substitutes, in the order named:
(2) Print the election returns and transmit electronically
the election results through the use of the PCOS Province City Municipality
machine to the
(a) City/Municipal Board of Canvassers Chairman
(b) Central Server
(c) Transparency Server (Dominant Majority Ranking lawyer of Ranking lawyer of Ranking lawyer of
Party/Dominant Minority Party/Accredited the COMELEC the COMELEC the COMELEC
Citizens’ Arm/ KBP Server Vice Chairman
(3) Act as deputies of the Commission in the conduct of -Provincial auditor -City auditor or -Municipal
the elections -Registrar of equivalent; Administrator;
Deeds -Registrar of -Municipal
(4) Maintain order within within the polling place and its -Clerk of Court Deeds; Assessor;
premises; keep access thereto open and unobstructed; nominated by the -Clerk of Court -Clerk of Court
enforce obedience to its lawful orders and prohibit the Executive Judge of nominated by the nominated by the
use of cellular phones and camera by the voters. If any the RTC; Executive Judge of Executive Judge of
person refuses to obey the lawful orders of the BEI, or -Any other the RTC; the MTC;
PAGE 137
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
(2) No member or substitute member shall be transferred, NATIONAL BOC FOR SENATORS AND PARTY -LIST
assigned or detailed outside of his official station, nor REPRESENTATIVES
shall he leave said station without prior authority of the Composition
COMELEC during the period beginning election day The chairman and members of the COMELEC sitting en
until the proclamation of the winning candidates. [Sec. banc
223, BP 881]
Function
(3) No member shall feign illness to be substituted on It shall canvass the results by consolidating the certificates
election day until the proclamation of the winning of canvass electronically transmitted. Thereafter, the
candidates. Feigning of illness constitutes an election national board shall proclaim the winning candidates for
offense. [Sec. 224, BP 881] senators and party-list representatives. [Sec. 23, RA 9369]
CANVASS BY THE BOC PROCLAMATION
Canvass - the process by which the results in the election Proclamation shall be after the canvass of election returns,
returns are tallied and totalled. in the absence of a perfected appeal to the COMELEC,
proclaim the candidates who obtained the highest number
Certificates of canvass - official tabulations of votes of votes cast in the province, city, municipality or barangay,
accomplished by district, municipal, city and provincial on the basis of the certificates of canvass.
canvassers based on the election returns, which are the
results of the ballot count at the precinct level. Failure to comply with this duty constitutes an election
- The BOC shall canvass the votes by consolidating the offense. [Sec. 231, BP 881]
electronically transmitted results or the results
contained in the data storage devices used in the WHEN PROCLAMATION VOID
printing of the election returns. [Sec. 20, RA 9369] (1) When it is based on incomplete returns [Castromayor v.
Comelec (1995)] or
CERTIFICATE OF CANVASS AND STATEMENT OF (2) When there is yet no complete canvass. [Jamil v.
VOTES Comelec (1997)]
(1) Within one hour after the canvassing, the Chairman of (3) A void proclamation is no proclamation at all, and the
the district or provincial BOC or the city BOC of those proclaimed candidate’s assumption into office cannot
cities which comprise one or more legislative districts deprive the COMELEC of its power to annul the
shall electronically transmit the certificates of canvass proclamation.
to:
(a) COMELEC sitting as the National BOC for senators PARTIAL PROCLAMATION
and party-list representatives and Notwithstanding pendency of any pre-proclamation
(b) Congress as the National BOC for the president controversy, COMELEC may summarily order proclamation
and vice president, directed to the President of the of other winning candidates whose election will not be
Senate. [Sec. 20, RA 9369] affected by the outcome of the controversy. [Sec. 21, RA
7166]
(2) The certificates of canvass transmitted electronically
and digitally signed shall be considered as official ELECTION RESULTING IN A TIE
election results and shall be used as the basis for the BOC, by resolution, upon 5 days notice to all tied
proclamation of a winning candidate. [Sec. 20, RA candidates, shall hold a special public meeting at which
9369] the board shall proceed to the drawing of lots of tied
candidates and shall proclaim as elected the candidates
(3) 30 copies shall be distributed in accordance to Sec. 21, who may be favored by luck. [Sec. 240, BP 881]
RA 9369.
There is a tie when:
(1) 2 or more candidates receive an equal and highest
number of votes; or
PAGE 138
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
(2) 2 or more candidates are to be elected for the same him shall not be counted. The fact that the candidate who
position and 2 or more candidates received the same obtained the highest number of votes is later declared to
number of votes for the LAST PLACE in the number to be disqualified or not eligible for the office to which he was
be elected. elected, does not necessarily entitle the candidate who
obtained the second highest number of votes to be
PROCLAMATION OF A LONE CANDIDATE declared the winner of the elective office.
Upon the expiration of the deadline for the filing of
certificates of candidacy in a special election called to fill a A possible exception is predicated on the concurrence of
vacancy in an elective position other than for President and two assumptions, namely: (1) the one who obtained the
VP, when there is only 1 qualified candidate, he shall be highest number of votes is disqualified; and (2) the
proclaimed elected without holding the special election electorate is fully aware in fact and in law of a candidate’s
upon certification by the COMELEC that he is the only disqualification so as to bring such awareness within the
candidate for the office and is therefore deemed elected. realm of notoriety but would nonetheless cast their votes
[Sec. 2, RA 8295, Law on Proclamation of Solo Candidates] in favor of the ineligible candidate [Grego v. COMELEC
(1997)]
Election Law (2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and
PETITION NOT TO GIVE DUE COURSE TO OR CANCEL receives the winning number of votes in such election
A CERTIFICATE OF CANDIDACY
CANCELLATION OF CERTIFICATE OF CANDIDACY The Court or COMELEC shall continue with the trial and
(1) Grounds hearing of the action, inquiry, or protest and
(a) False material representation in the certificate of
candidacy; Upon motion of the complainant or any intervenor, may
(b) If the certificate filed is a substitute Certificate of during the pendency thereof, order the suspension of the
Candidacy, when it is not a proper case of proclamation of such candidate whenever the evidence of
substitution under Sec. 77 of BP 881. his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms
Law of 1987]
(2) Nature of Proceedings - Summary
Where a similar complaint/petition is filed:
(3) Procedure (1) before the election and proclamation of the
Who may file: any citizen of voting age, or a duly respondent and the case is not resolved before the
registered political party, organization, or coalition of election - the trial and hearing of the case shall
political parties continue and referred to the Law Department for
preliminary investigation
When filed: Within 5 days from the last day for the filing
of certificates of candidacy (2) after the election and before the proclamation of the
respondent - the trial and hearing of the case shall be
Where filed: With the Law Department of the COMELEC suspended and referred to the Law Department for
preliminary investigation
PETITION FOR DISQUALIFICATION
PROCEDURE Note: In either case, if the evidence of guilt is strong, the
Who may file: Any citizen of voting age, or any duly COMELEC may order the suspension of the proclamation
registered political party, organization or coalition of of respondent, and if proclaimed, to suspend the effects of
political parties proclamation. [Sec. 4, Resolution No. 8678]
PAGE 139
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
The postponement, declaration of failure of election and Note: COMELEC Resolution No. 8804 applies to election
the calling of special elections shall be decided by the disputes under the Automated Election System (AES)
COMELEC sitting en banc by a majority vote of its using the Precinct Count Optical Scan (PCOS) and shall
members. [Sec. 4, R.A. 7166] cover pre-proclamation controversies and election protests
[Rule 1, Sec. 2, COMELEC Resolution No. 8804]
The COMELEC shall call for the holding or continuation of
the election not held, suspended or which resulted in a Any question or matter pertaining to or affecting:
failure to elect: (1) the proceedings of the board of canvassers, or
(1) upon a verified petition by any interested party and (2) any matter raised under Sec. 233-236 of BP 881 (see
(2) after due notice and hearing [Sec. 6, B.P. 881] below) in relation to the preparation, transmission,
receipt, custody and appreciation of the election
When: on a date reasonably close to the date of the returns. [Sec. 241, BP 881]
election not held, suspended or which resulted in a failure
to elect BUT not later than 30 days after the cessation of JURISDICTION
the cause of such postponement or suspension of the COMELEC has exclusive jurisdiction over pre-proclamation
election or failure to elect. [Sec. 6, BP 881] cases. It may order, motu proprio or upon written petition,
the partial or total suspension of the proclamation of any
DECLARATION OF FAILURE OF ELECTION candidate-elect or annul partially or totally any
It is neither an election protest nor a pre-proclamation proclamation, if one has been made. [Sec. 242, BP 881]
controversy. [Borja v. Comelec, (1998)]
COMELEC has exclusive jurisdiction in pre-proclamation
Jurisdiction controversies arising from national, regional or local
COMELEC, sitting en banc, may declare a failure of election elections. [Rule 3, Sec. 2, COMELEC Resolution No. 8804]
by a majority vote of its members.
WHEN NOT ALLOWED
Requisites For the positions of President, VP, Senator, and Member of
The following conditions must concur: the House of Representatives [Sec. 15, RA 7166]
(1) No voting has taken place in the precincts concerned
on the date fixed by law, or even if there was voting, NATURE OF PROCEEDINGS
the election nonetheless resulted in a failure to elect; Heard summarily by the COMELEC after due notice and
and hearing. This is because canvass and proclamation should
(2) The votes cast would affect the results of the election. be delayed as little as possible.
PAGE 140
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
Note: In Rule 3, Sec. 1 of COMELEC Resolution No. 8804 (2) If the petition is for correction, it must be filed not later
(promulgated March 22, 2010) there are only 2 issues than 5 days following the date of proclamation, and
covered in a pre-proclamation controversy: must implead all candidates who may be adversely
(1) Illegal composition of the BOC [Sec. 1, Rule 4, affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of
COMELEC Resolution No. 8804] Procedure]
Exists when, among other circumstances, any of the Matters relating to the preparation, transmission, receipt,
members do not possess legal qualifications and custody and appreciation of the election returns and
appointments. The information technology capable certificates of canvass
person required to assist the BOC by RA 9369 shall be
included as among those whose lack of qualifications Where: Only with the Board of Canvassers
may be questioned
When: At the time the questioned return is presented for
(2) Illegal proceedings of the BOC [Sec. 2, Rule 4, inclusion in the canvass.
COMELEC Resolution No. 8804]
Who: Any candidate, political party or coalition of political
Exists when the canvassing is a sham or mere parties
ceremony, the results of which are predetermined and
manipulated as when any of the following Note: Non-compliance with any of the steps above is fatal
circumstances are present: to the pre-proclamation petition.
(1) Precipitate canvassing
(2) Terrorism Pre-proclamation controversies under COMELEC
(3) Lack of sufficient notice to the members of the Resolution No. 8804
BOC’s If filed before the BOC
(4) Improper venue (1) Upon receipt of the verified petition, the BOC shall
immediately announce the fact of the filing of said
ISSUES THAT CANNOT BE RAISED petition and the ground/s raised
(1) Appreciation of ballots, as this is performed by the BEI
at the precinct level and is not part of the proceedings (2) BOC shall immediately deliberate on the petition and
of the BOC [Sanchez v. Comelec, (1987)] make a prompt resolution within 24 hrs – reduced into
writing
(2) Technical examination of the signatures and thumb
marks of voters [Matalam v. Comelec (1997)] (3) If the decision is in favor of the petition, it shall
immediately inform the Commission of its resolution –
(3) Prayer for re-opening of ballot boxes [Alfonso v. the Commission shall make appropriate action
Comelec, (1997)]
In no case shall the receipt by the BOC of the
(4) Padding of the Registry List of Voters of a municipality, electronically transmitted precinct, municipal, city or
massive fraud and terrorism [Ututalum v. Comelec provincial results, be suspended by the filing of the
(1990)] said petition
(5) Challenges directed against the Board of Election Appeal an adverse resolution
Inspectors [Ututalum v. Comele (supra)] (1) The petitioner may appeal an adverse resolution by the
BOC to the COMELEC, by notifying the BOC of his or
(6) Fraud, terrorism and other illegal electoral practices. her intent to appeal, through a verbal and a written
These are properly within the office of election contests and verified notice of appeal
over which electoral tribunals have sole, exclusive
jurisdiction. [Loong v. Comelec, (1992)] (2) Notice on the BOC shall not suspend the formal
proclamation of the official results of the election until
PROCEDURE the final resolution of the appeal
Questions involving the composition or proceedings of the
board of canvassers, or correction of manifest errors (3) 48 hrs from such notice to the BOC, the petitioner shall
submit before the Board a Memorandum on appeal
Where: Either in the Board of Canvassers or directly with stating the reasons why the resolution being
the COMELEC. [Sec. 17, R.A. 7166] questioned is erroneous and should be reversed
PAGE 141
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
If filed directly with the Commission In an election protest, the protestee may be ousted and the
(1) Upon receipt of the petition by the COMELEC, the protestant seated in the office vacated.
Clerk of the Commission shall docket the same and
send summons to the VOC concerned with an order General Rule:
directing it to submit, through the fastest verifiable As a general rule, the filing of an election protest or a
means available, its answer within 48 hrs petition for quo warranto precludes the subsequent filing
of a pre-proclamation controversy, or amounts to the
(2) COMELEC en banc shall resolve the petition within 5 abandonment of one earlier filed, thus depriving the
days from the filing of the answer or upon the COMELEC of the authority to inquire into and pass upon
expiration of the period to file the same the title of the protestee or the validity of his proclamation.
The reason is that once the competent tribunal has
EFFECT OF FILING OF PRE-PROCLAMATION CONTROVERSY acquired jurisdiction of an election protest or a petition for
(1) The period to file an election contest shall be quo warranto, all questions relative thereto will have to be
suspended during the pendency of the pre- decided in the case itself and not in another proceeding.
proclamation contest in the COMELEC or the Supreme This procedure will prevent confusion and conflict of
Court. authority. Conformably, we have ruled in a number of
cases that after a proclamation has been made, a pre-
(2) The right of the prevailing party in the pre-proclamation proclamation case before the COMELEC is no longer
contest to the execution of COMELEC’s decision does viable. [Samad v. Comelec, (1993)]
not bar the losing party from filing an election contest.
Exceptions: The rule admits of exceptions, however, as
(3) Despite the pendency of a pre-proclamation contest, where:
the COMELEC may order the proclamation of other (1) the board of canvassers was improperly constituted;
winning candidates whose election will not be affected (2) quo warranto was not the proper remedy;
by the outcome of the controversy. (3) what was filed was not really a petition for quo
warranto or an election protest but a petition to annul
EFFECT OF PROCLAMATION OF WINNING CANDIDATE a proclamation;
General Rule: A pre-proclamation controversy shall no (4) the filing of a quo warranto petition or an election
longer be viable after the proclamation and assumption protest was expressly made without prejudice to the
into office by the candidate whose election is contested. pre-proclamation controversy or was made ad
The remedy is an election protest before the proper forum. cautelam; and
(5) the proclamation was null and void. [Samad v.
Exceptions: The prevailing candidate may still be unseated Comelec, (1993)]
even though he has been proclaimed and installed in office
if: NATURE
(1) The opponent is adjudged the true winner of the Summary proceeding of a political character
election by final judgment of court in an election
contest; PURPOSE
(2) The prevailing party is declared ineligible or To ascertain the candidate lawfully elected to office
disqualified by final judgment of a court in a quo
warranto case; or WHO MAY FILE
(3) The incumbent is removed from office for cause. A candidate who has duly filed a certificate of candidacy
and has been voted for.
PETITION TO ANNUL OR SUSPEND PROCLAMATION
The filing of the petition suspends the running of the WHEN
period to file an election protest. [Alangdeo v. Comelec, Within 10 after the proclamation of the results of the
(1989)] election.
(1) It is suspendeded during the pendency of a pre-
No law provides for a reglementary period within which to proclamation controversy
file a petition for the annulment of an election if there is as (2) It should be decided within 15 days from filing in case
yet no proclamation. [Loong v. Comelec (supra)] of barangay officials
PAGE 142
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
WHO MAY FILE The rule is strictly construed against the movant and only
Any voter when the reason is of such urgency will such execution
pending appeal be allowed, as it is an exception to the
WHEN general rule
Within 10 days after the proclamation of the results of the
election.
Strictly a contest between Refers to questions of In the event that the COMELEC fails to act on any
the defeated and winning disloyalty or ineligibility of complaint within 4 months from its filing, the complainant
candidates based on the winning candidate. It is a may file the complaint with the fiscal or the Department of
grounds of election frauds or proceeding to unseat the Justice, if warranted. [Sec. 265, BP 881]
irregularities as to who ineligible person from office,
actually obtained the but not to install the It is not the duty of the COMELEC, as investigator and
majority of the legal votes protestant in place prosecutor, to gather proof in support of a complaint filed
and therefore is entitled to before it [Kilosbayan v. COMELEC (1997)]
hold the office
TRIAL AND DECISION
Can only be filed by a Can be filed by any voter. It is
RTCs have exclusive original jurisdiction to try and decide
candidate who has duly filed not considered a contest
a certificate of candidacy and where the parties strive for any criminal actions or proceedings for violation of election
has been voted for supremacy laws. [Sec. 268, BP 881]
PAGE 143
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
MTCs, by way of exception, exercise jurisdiction only over of promoting the election of such candidate. [Sec. 28,
offenses relating to failure to register or to vote RA 6646]
PREFERENTIAL DISPOSITION OF ELECTION (3) Coercion of subordinates to vote for or against any
OFFENSES candidate [Sec. 261(d), BP 881]
(1) The investigating officer shall resolve the case within 5
days from submission. (4) Dismissal of employees, laborers, or tenants for refusing
(2) The courts shall give preference to election cases over or failing to vote for any candidate [Sec. 261(d(2)), BP
all other cases except petitions for writ of habeas 881]
corpus.
(5) Being a flying voter [Sec. 261z (2), B.P. 881]
ELECTION OFFENSES
REGISTRATION COUNTING OF VOTES
(1) Failure of the Board of Election Inspectors to post the (1) Tampering, increasing, decreasing votes, or refusal to
list of voters in each precinct. [Sec. 9, RA 7166]; correct tampered votes after proper verification and
hearing by any member of the board of election
(2) Change or alteration or transfer of a voter's precinct inspectors [Sec. 27(b), RA 6646]
assignment in the permanent list of voters without the
express written consent of the voter [Sec. 4, RA 8189] A special election offense to be known as electoral
sabotage and the penalty to be imposed shall be life
CERTIFICATE OF CANDIDACY imprisonment. [Sec. 42, RA 9369]
(1) Continued misrepresentation or holding out as a
candidate of a disqualified candidate or one declared by (2) Refusal to issue to duly accredited watchers the
final and executory judgment to be a nuisance certificate of votes cast and the announcement of the
candidate [Sec. 27(f), RA 6646] election, by any member of the board of election
inspectors [Sec. 27(c), RA 6646]
(2) Knowingly inducing or abetting such misrepresentation
of a disqualified or nuisance candidate [Sec. 27(f), RA CANVASSING
6646]; Any chairperson of the board of canvassers who fails to
give notice of meeting to other members of the board,
(3) Coercing, bribing, threatening, harassing, intimidating, candidate or political party as required [Sec. 27(e), RA
terrorizing, or actually causing, inflicting or producing 6646]
violence, injury, punishment, torture, damage, loss or
disadvantage to discourage any other person or ACTS OF GOVERNMENT OR PUBLIC OFFICERS
persons from filing a certificate of candidacy in order to (1) Appointment of new employees, creation of new
eliminate all other potential candidates from running positions, promotion, or giving salary increases within
in a special election [Sec. 5, RA 8295] the election period [Sec. 261(g), BP 881]
ELECTION CAMPAIGN (2) Transfer of officers and employees in the civil service
(1) Appointment or use of special policemen, special agents within the election period without the prior approval of
or the like during the campaign period [Sec. 261(m), BP the COMELEC [Sec. 261(h), BP 881]
881]
(3) Intervening of public officers and employees in the civil
(2) Use of armored land, water or aircraft during the service in any partisan political activity [Sec. 261(i), BP
campaign period [Sec. 261(r), BP 881] 881]
(3) Unlawful electioneering [Sec. 261(k), BP 881] (4) Use of public funds for an election campaign [Sec.
261(o), BP 881]
(4) Acting as bodyguards or security in the case of
policemen and provincial guards during the campaign (5) Illegal release of prisoners before and after election
period [Sec. 261(t), BP 881] [Sec. 261(n), BP 881]
(5) Removal, destruction, obliteration, or tampering of (6) Release, disbursement or expenditure of public funds
lawful election propaganda, or preventing the during the prohibited period [Sec. 261(v), BP 881]
distribution thereof [Sec. 83, BP 881 vis-à-vis Sec. 262,
BP 881] (7) Construction of public works, etc. during the prohibited
period [Sec. 261(w), BP 881]
VOTING
(1) Vote-buying and vote-selling [Sec. 261(a), BP 881] (8) Suspension of elective local officials during the
election period without prior approval of the COMELEC
(2) Conspiracy to bribe voters [Sec. 261(b), BP 881]: A [Sec. 261(x), BP 881]
disputable presumption of a conspiracy to bribe voters
is created when there is proof that at least 1 voter in COERCION, INTIMIDATION, VIOLENCE
different precincts representing at least 20% of the (1) Coercion of election officials and employees
total precincts in any municipality, city or province has
been offered, promised or given money, valuable (2) Threats, intimidation, terrorism, use of fraudulent
consideration or other expenditure by a candidate's devices or other forms of coercion [Sec. 261(e), BP 881]
relatives, leaders and/or sympathizers for the purpose
PAGE 144
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
(3) Use of undue influence [Sec. 261(j), BP 881] ARRESTS IN CONNECTION WITH ELECTION
CAMPAIGN
(4) Carrying deadly weapons within the prohibited area Only upon a warrant of arrest issued by a competent judge
[Sec. 261(p), BP 881] after all the requirements of the Constitution have been
strictly complied with
(5) Carrying firearms outside residence or place of
business [Sec. 261(q), BP 881] PRESCRIPTION
5 years from the date of their commission. If the discovery
(6) Organization or maintenance of reaction forces, strike of the offense be made in an election contest proceeding,
forces, or similar forces during the election period [Sec. the period of prescription shall commence on the date on
261(u), BP 881] which the judgment in such proceedings becomes final
and executory. [Sec. 267, BP 881]
OTHER PROHIBITIONS
(1) Unauthorized printing of official ballots and election PROHIBITED ACTS UNDER RA 9369
returns with printing establishments that are not under (1) Utilizing without authorization, tampering with,
contract with the COMELEC [Sec. 27(a), RA 6646] damaging, destroying or stealing:
(a) Official ballots, election returns, and certificates of
(2) Wagering upon the results of elections [Sec. 261(c), BP canvass of votes used in the system; and
881] (b) Electronic devices or their components, peripherals
or supplies used in the AES such as counting
(3) Sale, etc. of intoxicating liquor on the day fixed by law machine, memory pack/diskette, memory pack
for the registration of voters in the polling place, or the receiver and computer set
day before the election or on election day [Sec. 261(dd)
(1), BP 881] (2) Interfering with, impeding, absconding for purpose of
gain, preventing the installation or use of computer
(4) Opening booths or stalls within 30 meters of any counting devices and the processing, storage,
polling place [Sec, 261(dd) (2), BP 881] generation and transmission of election results, data or
information
(5) Holding fairs, cockfights, etc. on election day [Sec.
261(dd) (3), BP 881] (3) Gaining or causing access to using, altering, destroying
or disclosing any computer data, program, system
(6) Refusal to carry election mail during the election software, network, or any computer-related devices,
period [Sec. 261(dd) (4), BP 881]. In addition to the facilities, hardware or equipment, whether classified or
prescribed penalty, such refusal constitutes a ground declassified
for cancellation or revocation of certificate of public
convenience or franchise. (4) Refusal of the citizens' arm to present for perusal its
copy of election return to the board of canvassers
(7) Discrimination in the sale of air time [Sec. 261(dd) (5),
BP 881] In addition to the prescribed penalty, such (5) Presentation by the citizens' arm of tampered or
refusal constitutes a ground for cancellation or spurious election returns
revocation of the franchise.
(6) Refusal or failure to provide the dominant majority and
Note: Good faith is not a defense, as election offenses are dominant minority parties or the citizens'' arm their
generally mala prohibita. copy of election returns and
PENALTIES (7) The failure to post the voters' list within the specified
For individuals time, duration and in the designated location shall
(1) Imprisonment of not less than 1 year but not more than constitute an election offense on the part the election
6 years, without probation [Sec. 264, BP 881] officer concerned."
(2) Disqualification to hold public office
(3) Deprivation of the right of suffrage PENALTY
(1) imprisonment of 8 years and one day to 12 years
For a Foreigner without possibility of parole
(1) Imprisonment of not less than 1 year but not more than
6 years (without probation); (2) perpetual disqualification to hold public and any non-
(2) Deportation after service of sentence elective public office and
PAGE 145
UP COLLEGE OF LAW ELECTION LAW BAR OPERATIONS COMMISSION
and the tampering, increase and/ or decrease votes refusal BEIs or BOCs involved, shall be meted the same penalty of
to credit the correct votes or to deduct tampered votes, life imprisonment.
shall adversely affect the results of the election to the said
national office to the extent that losing candidate/s is /are
made to appear the winner/s;
PENALTY
Any and all other persons or individuals determined to be
in conspiracy or in connivance with the members of the
PAGE 146
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
PAGE 147
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
(3) Said plebiscite shall be conducted by the COMELEC Province City Municipality Barangay
within 120 days from the date of effectivity of the law or
ordinance, unless said law or ordinance fixes another Population
date.
250,000 150,000 25,000 2,000
inhabitants inhabitants inhabitants inhabitants,
Only amendments to, or revisions of, the Organic Act
and 5,000
constitutionally-essential to the creation of autonomous
for
regions – those aspects specifically mentioned in the
barangays in
Constitution which Congress must provide for in the
cities and
Organic Act– require ratification through a plebiscite. If all
municipalitie
amendments to the Organic Act have to undergo the
s within
plebiscite requirement before becoming effective, this
Metro Manila
would hamper the ARMM’s progress by impeding
and highly-
Congress from enacting laws that timely address problems
urbanized
as they arise in the region, as well as weighing down the
cities
ARMM government with the costs that unavoidably follow
the holding of a plebiscite. [Abas Kida v. Senate of the Phil Territory
(2012)]
Contiguous Contiguous Contiguous No minimum
The phrase “in the political unit directly affected” refers to territory of at territory of at territory of at requirement
the residents of the political entity who would be least 2,000 least 100 least 50
economically dislocated by the separation of a portion square kms square kms square km
thereof who have the right to vote in said plebiscite.
[Padilla v. COMELEC (1992)] Creation of an LGU or its conversion from one level to
another level shall be based on verifiable indicators of
CREATION viability and projected capacity to provide services:
Nature of Power
The authority to create municipal corporations is (1) Income – must be sufficient to provide for all essential
essentially legislative in nature. [Pelaez v. Auditor General government facilities and services commensurate with
(1965)] the size of its population;
(2) Population – total number of inhabitants within the
The enactment of a LGC is not a sine qua non for the territorial jurisdiction of the local government unit
creation of a municipality, and before the enactment of concerned;
such, the power remains plenary except that creation (3) Land Area – must be:
should be approved in a plebiscite. [Torralba v. Sibagat (a) Contiguous, unless it comprises of two or more
(1987)] islands or is separated by an LGU independent of
the others;
Creations under Sec. 68, Admin. Code (b) Properly identified by metes and bounds with
The alleged power of the President to create municipalities technical descriptions;
under the Administrative Code amounts to an undue (c) Sufficient to provide for such basic services and
delegation of legislative power. The power of control of the facilities to meet the requirements of its populace;
President over executive departments does not include the
authority to abolish or create such. [Pelaez v. Auditor The income requirement covers the income accruing to the
General (1965)] general fund, exclusive of special funds, transfers, and
non-recurring income.
Beginning of Corporate Existence
Commences upon the election and qualification of its chief Provinces and Cities must satisfy the income requirement,
executive and a majority of the members of its sanggunian, and EITHER population or territory. Barangays have no
unless some other time is fixed therefor by the law or minimum requirement for area and income.
ordinance creating it. [Sec. 14, LGC]
Compliance with such requirements are attested to by:
Specific Requirements (1) Department of Finance
General Rule: (2) National Statistics Office (NSO)
Province City Municipality Barangay (3) Lands Management Bureau (LMB) of the Department
of Environment and Natural Resources (DENR)
Income
INTERNAL REVENUE ALLOTMENTS
Average Average Average No minimum
The IRA forms part of the income of the LGU. The funds
annual annual annual requirement
generated from local taxes, IRA, and national wealth
income of not income of not income of not
utilization proceeds accrue to the general fund of the LGU.
less than less than less than
[Alvares v. Guingona (1996)]
P20M, based P100M, P2.5M pesos,
on 1991 based on based on
Other LGUs
constant 2000 1991 constant
Special Metropolitan Political Subdivisions
prices constant prices
(a) created by Congress, subject to a plebiscite;
prices
(b) component cities/municipalities retain their basic
autonomy and entitled to create their own local
PAGE 149
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
executive and legislative assemblies; The Effects of Downgrading (from independent component
(c) metropolitan authority that will be created shall be city to component city) are: — (1) The city mayor will be
limited to basic services requiring coordination; [Sec. 11, placed under the administrative supervision of the
LGC] Governor; (2) Resolutions and ordinances will have to be
reviewed by the Provincial Board; (3) Taxes will have to be
Highly Urbanized Cities and Independent Component Cities shared with the province;
(a) independent of the province;
(b) for HUCs, as determined by law DIVISION AND MERGER
(c) for ICCs, as determined by their charter if prohibited Division and merger shall comply with the same
from voting for provincial officers; [Sec. 12, LGC] requirements prescribed for their creation:
government units shall be given more powers, (g) Maintenance of peace and order
authority, responsibilities, and resources. [Sec. 2, LGC] (h) Preservation of the comfort and convenience of its
inhabitants [Sec. 16, LGC]
The princple of local autonomy under the 1987 NATURE
Constitution simply means decentralization. [Basco v. The police power of a municipal corporation extends to all
PAGCOR (1991)] great public needs, and includes all legislation and
functions of the municipal government. The drift is towards
DECENTRALIZATION social welfare legislation geared towards state policies to
Refers to either (1) decentralization of administration or to provide adequate social services, the promotion of general
(2) decentralization of power. welfare, and social justice. [Binay v. Domingo (1991)]
guise of charges for wharfage, tolls for bridges or utilization of resources and to avoid duplication in the
otherwise, or other taxes, fees, or charges in any form use of fiscal and physical resources;
whatsoever upon such goods or merchandise (i) Local budgets shall operationalize approved local
(f) Taxes, fees or charges on agricultural and aquatic development plans;
products when sold by marginal farmers or fishermen (j) Local government units shall ensure that their
(g) Taxes on business enterprises certified to by the Board respective budgets incorporate the requirements of
of Investments as pioneer or non-pioneer for a period their component units and provide for equitable
of six (6) and four (4) years, respectively from the date allocation of resources among these component units;
of registration; (k) National planning shall be based on local planning to
(h) Excise taxes ensure that the needs and aspirations of the people as
(i) Percentage or value-added tax articulated by the local government units in their
(j) Taxes on the gross receipts of transportation contractors respective local development plans are considered in
and persons engaged in the transportation of the formulation of budgets of national line agencies or
passengers or freight by hire and common carriers by offices;
air, land or water, except as provided in this Code (l) Fiscal responsibility shall be shared by all those
(k) Taxes on premiums paid by way or reinsurance or exercising authority over the financial affairs,
retrocession; transactions, and operations of the local government
(l) Taxes, fees or charges for the registration of motor units; and
vehicles and for the issuance of all kinds of licenses or (m) The local government unit shall endeavor to have a
permits for the driving thereof, except tricycles balanced budget in each fiscal year of operation. [Sec.
(m) Taxes, fees, or other charges on Philippine products 305, LGC]
actually exported, except as otherwise provided herein
(n) Taxes, fees, or charges, on Countryside and Barangay CLOSURE AND OPENING OF ROADS [SEC. 21, LGC]
Business Enterprises and cooperatives duly registered SCOPE – WITHIN JURISDICTION OF THE LGU
under R.A. No. 6810 and the Cooperative Code, (1) Local roads
respectively (2) Alleys
(o) Taxes, fees or charges of any kind on the National (3) Parks
Government, its agencies and instrumentalities, and (4) Squares
local government units [Sec. 133, LGC]
FOR TEMPORARY CLOSURE
EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION (1) Via ordinance
Sec. 133 of the LGC provides a limitation on the power of (2) May be done due to:
an LGU to levy taxes, fees, or charges on the national (a) Actual emergency
government, its agencies and instrumentalities, unless (b) Fiesta celebrations
otherwise provided. Sec. 234 of the LGC on the other hand, (c) Public rallies
grants to LGUs the power to impose real property tax on (d) Agricultural or industrial fairs
properties of the Republic of the Philippines and its (e) Undertaking of public works and highways,
political subdivisions when its beneficial use is granted to a telecommunications, and waterworks projects
taxable person. (3) Duration of closure must be specifically stated in the
order of closure
FUNDAMENTAL PRINCIPLES ON THE FINANCIAL AFFAIRS OF AN LGU (4) If for the purpose for athletic, cultural, or civil activities;
(a) No money shall be paid out of the local treasury except these must be officially sponsored, recognized, or
in pursuance of an appropriations ordinance or law; approved by the local government
(b) Local government funds and monies shall be spent
solely for public purposes; FOR PERMANENT CLOSURE
(c) Local revenue is generated only from sources expressly (1) Via ordinance approved by at least 2/3 of all members
authorized by law or ordinance, and collection thereof of the Sanggunian
shall at all times be acknowledged properly; (2) Such ordinance must have provisions for the
(d) All monies officially received by a local government maintenance of public safety therein
officer in any capacity or on any occasion shall be (3) Such property withdrawn may be used or conveyed for
accounted for as local funds, unless otherwise provided any purpose for which other real property belonging to
by law; the local government may be lawfully used or conveyed
(e) Trust funds in the local treasury shall not be paid out (4) When necessary, an adequate substitute for the public
except in fulfillment of the purpose for which the trust facility that is subject to closure should be provided
was created or the funds received; (5) If a freedom park is permanently closed, there must be
(f) Every officer of the local government unit whose duties a provision for its transfer or relocation to a new site
permit or require the possession or custody of local
funds shall be properly bonded, and such officer shall FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS
be accountable and responsible for said funds and for (1) Via ordinance
the safekeeping thereof in conformity with the (2) May temporarily close and regulate the use of any local
provisions of law; street, road, or any other public place
(g) Local governments shall formulate sound financial (3) For shopping malls, Sunday, flea, or night markets, or
plans, and local budgets shall be based on functions, shopping areas for the sale of goods, merchandise,
activities, and projects, in terms of expected results; foodstuffs, and commodities
(h) Local budget plans and goals shall, as far as
practicable, be harmonized with national development Note: All LGUs may temporarily and permanently close
plans, goals, and strategies in order to optimize the their local roads, but the regulation and closure of local
PAGE 153
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
roads for the above purposes are limited to cities, Publication Effectivity
municipalities, and barangays.
Ordinance or Resolution on Local Development Plan and
A public road may not be the subject of lease or contract, Public Investment Programs
as public roads are properties for public use outside the
Follow general rule; Follow that stated in the
commerce of man. [Dacanay v. Asistio (1992)]
ordinance or resolution;
if none, follow general
The closure of public roads under police power is not
rule;
eminent domain. No grant of damages is awarded.
[Cabrera v. CA (1991)] All Ordinances with Penal Sanctions
PAGE 154
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
Review of Ordinances/ Resolutions (2) Open to the public, unless a closed-door session
Component Cities and Sangguniang Barangay ordered by majority of the members present;
Municipalities
Minimum Sessions
By Whom Once a week for the Sang. Panlalawigan, Panlungsod, and
Bayan; Twice a month for the Sangguniang Barangay;
Sangguniang Panlalawigan Sangguniang
Panlungsod/Bayan
Special Sessions:
When (1) May be called the local chief executive or by majority of
the Sanggunian;
Within 3 days from approval, Within 10 days from (2) Written notice to all the members personally at least 24
forwarded by Secretary of approval, forwarded by hours before the special session is held;
Sang; Sanggunian; (3) If matters not in the notice are to be discussed during
What the special session, a 2/3 vote of those present is
required;
Ordinances/Res. on local All barangay ordinances;
development plans and Full Disclosure of Financial and Business Interests of
public investment programs Sanggunian Members
How Reviewed When: Upon assumption of office, before participation in
the deiberations on an ordinance or resolution, and when
Sang. Panlalawigan shall The sanggunian concerned taking a position or priviledge speech that may affect his
examine and transmit to the shall review such; interests;
Prov. Atty. for comments
and recommendations How: In writing and submitted to the Secretary of the
sanggunian or the secretary of the committee of which he
Reasons for Rejection is a member;
If beyond the power Whether consistent with law
conferred upon the and the city and municipal What: Any business, financial, or professional relationship
th
Sanggunian concerned ordinances; or relation by affinity/consanguinity up to the 4 degree
affected by any ordinance or sanggunian which may result
Period to Review in a conflict of interest.
30 days; if no action after 30 30 days; if no action after 30
days, deemed consistent days, deemed approved “Conflict of Interest” refers in general to one where it ma y
with law and valid be reasonably deduced that a member of the sanggunian
may not act in the public interest due to some private,
pecuniary, or other personal considerations that may tend
Internal Rules to affect his judgment.
Internal Rules of Procedure
st
(1) Adopted/updated on the 1 regular session following LOCAL INITIATIVE AND REFERENDUM
the election of the members of the Sanggunian and Local Initiative
shall be within 90 days from such
(2) Provides for: Legal process whereby the registered voters
(a) Organization of the Sanggunian and the election of Defined of a LGU may directly propose, enact, or
its officers amend an ordinance.
(b) Creation of Standing Committees All registered voters of the provinces, cities,
(c) Order and calendar of business for each session Exercised by
municipalities, and barangays.
(d) Disciplinary rules for members
Petition proposing the adoption, enactment,
Quorum repeal, or amendment of an ordinance filed
The presence of a quorum is required to transact official with the sanggunian concerned by not less
business; a majority of all members of the Sanggunian Procedure than
who have been elected and qualified. [Sec. 53, LGC] 1,000 – in case of provinces and cities
100- in case of municipalities
Only qualification is material in the counting of a quorum. 50- in case of barangays
The filing of a leave of absence does not affect the 15 days after the Certification by the
member's material qualification or election, hence quorum Effectivity COMELEC that the proposition is approved
shall be based on the total number of members without by a majority of the votes cast
regard to the filing of a leave of absence. [Zamora v.
Caballero (2004)] (1) The power of local initiative shall not be
exercised more than once a year.
It is legally permissible, as exceptions to the general (2) Initiative shall extend only to subjects or
provisions covered by the city charters and the LGC, that matters which are within the legal powers of
the vote requirement be specifically provided for instead of Limitations the sanggunians to enact.
the usual majority vote. [Casiño v. CA (1991)] (3) If at any time before the initiative is held,
the sanggunian concerned adopts in toto
Sanggunian Sessions the proposition presented and the local chief
(1) First session following the election, the Sanggunian executive approves the same, the initiative
shall fix the day, time, and place of its regular sessions;
PAGE 155
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
shall be cancelled. However, those against Proponents shall have 90 days in case of provinces and
such action may, if they so desire, apply for cities, 60 days in case of municipalities, and 30 days in
initiative. case of barangays, from notice to collect the required
number of signatures
Any proposition or ordinance approved
through the system of initiative and
referendum shall not be repealed, modified,
or amended by the sanggunian concerned
Limitations within six (6) months from the date of the The petition shall be signed before the Election
upon approval thereof and may be amended, Registrar, or his designated representative, in the
Sanggunians modified, or repealed by the sanggunian presence of a representative of the proponent, and a
within three (3) years thereafter by a vote of representative of the regional assemblies and local
three-fourths (3/4) of all its members. legislative bodies concerned in a public place in the LGU
Provided that in case of barangays, the
period shall be eighteen months.
Local Referendum
Legal process whereby the registered voters of the local If the required number of signatures is obtained, the
government unit may approve, amend, or reject any COMELEC shall then set a date for the initiative for
ordinance enacted by the Sanggunian. approval of the proposition within 60 days from the date
of certification by the COMELEC in case of provinces and
Initiative is resorted to (or initiated) by the people directly cities, 45 days in case of municipalities, and 30 days in
either because the law-making body fails or refuses to case of barangays [Sec. 122, LGC]
enact the law ordinance, resolution, or act that they desire
or because they want to amend or modify one already
existing. CORPORATE POWERS
TO SUE AND BE SUED
In a local referendum, the law-making body submits to the As a general rule, local government unit, as a corporation,
registered voters of its territorial jurisdiction, for approval shall have the power to sue and be sued. This applies to all
or rejection, any ordinance or resolution which is duly acts of the LGU in its corporate and proprietary capacity.
enacted or approved by such lawmaking authority. Said [Sec. 22, LGC]
referendum shall be conducted under the control and
direction of the COMELEC.
Corporate (Proprietary)
Governmental Powers
While initiative is entirely the work of the electorate, Powers
referendum is begun and consented to by the law-making Exercised in administering Exercised for the special
body. Initiative is a process of law-making by the people the powers of the state and benefit and advantage of
themselves without the participation and against the
promoting public welfare the community
wishes of their elected representatives, while referendum
consists merely of the electorate approving or rejecting
what has been drawn up or enacted by a legislative body. Cannot be sued without Impliedly consents to
consent for injuries it being sued by entering into
Procedure
caused private contracts
Not less than 1,000 registered voters in case of
provinces and cities, 100 in case of municipalities, and
50 in case of barangays, may file a petition with the local Officers or agents acting Officers and agents are
legislative body, respectively, proposing the adoption, within official duties are not liable for negligence/ torts
enactment, repeal, or amendment, of any law, ordinance liable unless they acted while within scope of
or resolution willfully and maliciously employment.
PAGE 156
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
PAGE 157
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
which it has the general power to contract [Cebu v. IAC ON VIOLATION OF LAW
(1987)] When the Mayor refused to abide by a TRO issued by the
court, he may be held in contempt. [Moday v. CA (1997)]
Exception: the LGU may not be estopped in order to
validate a contract which the LGU is not authorized to When the LGU does not pay the statutory minimum wage
make EVEN IF it has accepted the benefits thereunder [San (mandated by law) even if there is lack of funds. [Racho v.
Diego v. Mun. Of Naujan (1960)] Ilagan, Isabela (1968)]
A private individual who deals with a LGU is imputed with PERSONAL LIABILITY OF PUBLIC OFFICIAL
constructive knowledge of the extent of the power or General Rule: The public official is personally liable if he
authority of the LGU to enter into contracts. Thus, acts beyond the scope of his powers OR if he acts with bad
ordinarily, the doctrine of estoppel does not lie against the faith.
LGU.
Illustrations:
ON TORT Mayor exceeding authority in vetoing a resolution passed
If in the performance of a governmental function, the LGU by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol
is NOT liable (1984)]
The prosecution of crimes, even if injury occurs [Mendoza v.
- Note that under NCC27, a public servant is personally liable
de Leon (1916)]
for damages for his refusal or neglect to perform his official
If in the performance of a proprietary function, the LGU is duty.
liable
When the officials incorrectly ordered the construction of a
The improper grant of a ferry service franchise [Mendoza v. drug rehabilitation center [Angeles v. CA (1996)]
de Leon (1916)]
When officials illegally dismiss an employee [Rama v. CA
Note: Municipal corporations’ liability to private persons (1987)]
for the wrongful exercise of the corporate powers is the
same as that of a private corporation or individual When the official defies an order of reinstatement of an
[Mendoza v. de Leon (1916)] illegally dismissed employee [Correa v. CFI (1979)]
Deaths caused by a collapsed stage in a town fiesta [Torio The Mayor pays for the back salaries of an illegally
v. Fontanilla (1978)] dismissed employee [Nemenzo v. Sabillano (1968)]
Back pay or wages of employees illegally dismissed, The Governor pays for moral damages for refusing the
including those involving primary governmental functions reinstatement of an employee [San Luis v. CA (1989)]
(e.g. policemen) [Guillergan v. Ganzon (1966)]
A public officer, whether judicial, quasi-judicial or
BY EXPRESS PROVISIONS OF LAW executive, is not personally liable to one injured in
ARTICLE 2189, CC consequence of an act performed within the scope of his
official authority, and in line of his official duty. [Tuzon v.
When a person falls in an open manhole in the city streets. CA (1992)]
[Manila v. Teotico (1968)]
The holding of a town fiesta is a proprietary function,
When a person steps on a rusted nail in a flooded public though not for profit, for which a municipality is liable for
market. [Jimenez v. Manila (1987)] damages to 3rd persons ex contractu or ex delicto;
(a) that under the principle of respondeat superior the
When accidents are caused by defective roads even if the principal is liable for the negligence of its agents acting
road does not belong to the LGU as long as it exercises within the scope of their assigned tasks; and
control or supervision over said road. [Guilatco v. Dagupan (b) that the municipal councilors have a personality distinct
(1989)] and separate from the municipality [Torio v. Fontanilla
(1978)]
Damages suffered through accidents in national roads
under the control and supervision of an LGU (cause is Hence, as a rule they are not co-responsible in an action
unsafe road conditions, especially when there is gross for damages for tort or negligence unless they acted in bad
negligence). [Municipality of San Juan v. CA (2005)] faith or have directly participated in the commission of the
wrongful act.
Also exemplary damages may be granted when public
officials acted with gross negligence. [Quezon City v.
Dacara (2005)]
ARTICLE 2180, CC
When the State acts through a special agent [Merritt v.
Government (1916)]
PAGE 158
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
When the dispute between two LGUs do no fall under POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT
those enumerated in Sec. 118 of the LGC, BP 129 Sec. 19 is Vacant Position Successor
applicable: “Regional Trial Courts shall exercise exclusive
original jurisdiction in all cases not within the exclusive Permanent Vacancy
jurisdiction of any court, tribunal, person, or body Governor or Mayor Vice Governor ; Vice Mayor
exercising judicial or quasi-judicial functions.” The RTC
exercises original jurisdiction over the settlement of a Governor, Vice-Gov, Mayor, Highest-ranking
boundary dispute between a municipality and an Vice-Mayor Sangguinang member
independent component city. [Municipality of Kananga v. Permanent Inability
Madrona (2003)]
Highest-ranking Second highest-ranking
Sangguniang Member (as Sangguniang Member
APPEAL [SEC. 119, LGC]
the successor of the Gov, (subsequent vacancies
When: Within the time and manner prescribed by the Rules Vice-Gov, Mayor, Vice-M) filled according to their
of Court rank)
Where: Proper Regional Trial Court having jurisdiction over Permanent Vacancy
the area in dispute.
Punong Barangay Highest-ranking
Who: Any party
Sangguniang Barangay
Member
The Regional Trial Court shall decide the appeal within Tie between highest
one (1) year from the filing thereof. Pending final resolution ranking Sangguninan
of the disputed area prior to the dispute shall be Member then draw lots
maintained and continued for all legal purposes.
PAGE 159
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
Nomination and
Certification of the
Recommendation of political party of the
Sangguniang Panlungsod (of
Sangguniang Panglungsod member who caused the
component cities)
vacancy issued by the
Governor highest official of the
Recommendation of political party
Sangguniang Bayan
Sangguniang Bayan
SECTION 45 (b)
Recommendation of
Sangguniang Barangay City or Municipal
Sangguniang Barangay
Mayor
General Rule: The appointee under Sec. 45 must be a Exception: The power to appoint/suspend/dismiss
nominee of the political party under which the sanggunian employees can be exercised only if the period of incapacity
member (whose elevation to the position next higher in exceeds 30 working days; or if the successor is appointed
rank created the vacancy) had been elected. in writing, if the authorization specifies such powers to the
successor.
Conditions sine qua non: There must be a nomination and
certificate of membership from the highest official of the If the local chief executive is traveling within the country
political party or else the appointment is: but outside his territorial jurisdiction for a period not
(1) null and void ab initio; and exceeding 3 consecutive days, he may designate in writing
(2) a ground for administrative action against the the officer-in-charge.
responsible official.
General Rule: The local chief executive cannot authorize
If sanggunian member who caused vacancy does not any local official to assume the powers/duties/functions of
belong to any political party, the local chief executive shall his office, other than the vice-governor, city/municipal
appoint a qualified person, upon recommendation of the vice-mayor, or highest ranking sangguniang barangay
sanggunian. member.
The appointee under Sec. 45 serves the unexpired term of The authorization shall specify the powers and functions
the vacant office. that the officer-in-charge shall exercise.
Exception: Sangguniang barangay.
Exception: The power to appoint, suspend and dismiss
If the vacancy pertains to barangay or youth representation employees.
in the sanggunian, the vacancy is automatically filled by
the official next in rank of the organization concerned. General Rule: If the local chief executive fails/refuses to
issue the authorization, the vice-governor, city/municipal
TEMPORARY VACANCIES vice-mayor, or highest ranking sangguniang barangay
Temporary Vacancy Occurs when the local chief executive is member has right to assume the powers, duties, and
due to: functions of the office on the 4th day of absence.
(1) leave of absence
(2) traveling abroad Exception: The power to appoint/ suspend/dismiss
(3) suspension from office employees.
Extent of Duty exercised by Temporary Successor Office where Temporary Who Temporarily Succeeds
General Rule: The successor shall automatically exercise Vacancy Occurs into Office
the powers and perform the duties and functions of the
local chief executive. Governor Vice-Governor,
automatically
PAGE 160
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
If the application for LoA is not acted upon within 5 OMBUDSMAN JURISDICTION
working days after receipt, the application is deemed Primary Jurisdiction [Sec. 15, Acts or omissions of a public
approved. [Sec. 46, LGC] RA 6770] officer or employee in cases
cognizable by
the Sandiganbayan (Salary
PAGE 161
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
grade of 27 or higher) paid full salary that accrued during such suspension;
(2) Accorded full opportunity to appear and defend
himself, to confront witnesses, and require attendance
Concurrent Jurisdiction [Sec. Cases cognizable by regular
of witnesses and production of evidence; [Sec. 64-65,
61, LGC] courts and other
LGC]
investigative agencies of the
government;
UNDER THE OMBUDSMAN [SEC. 24, RA 6770]
Grounds for Preventive Suspension
The Ombudsman exercises concurrent jurisdiction over The Ombudsman or his Deputy may preventively suspend
administrative cases against elective officials occupying any officer or employee under his authority pending an
positions below salary grade 27. Even if filed in the investigation,
Ombudsman and the sanggunian concerned, identical (1) if in his judgment the evidence of guilt is strong, and
complaints will not violate the rule against forum shopping (2) any of the following are present:
because the complaints are in the nature of an (a) the charge against such officer or employee involves
administrative case. dishonesty, oppression or grave misconduct or
neglect in the performance of duty;
In administrative cases involving the concurrent jurisdiction (b) the charges would warrant removal from the
of two or more disciplining authorities, the body in which service; or
the complaint is filed first, and which opts to take (c) the respondent's continued stay in office may
cognizance of the case, acquires jurisdiction to the prejudice the case filed against him.
exclusion of other tribunals exercising concurrent
jurisdiction. [Office of the Ombudsman v. Rodriguez (2010)] Length of Preventive Suspension
Until the case is terminated by the Office of the Ombudsman
Who is salary grade 27 and above? [Sec. 443-486, LGC] but not more than six (6) months,
(1) without pay,
Municipalities Munipical Mayor (2) when the delay in the disposition of the case by the
Ombudsman is due to the fault, negligence or petition
City Mayor, Vice-Mayor, and Sanggunian of the respondent, the period of such delay shall not be
Cities Panglungsod members of highly- counted in computing the period of suspension herein
urbanized cities provided.
Governor, Vice-Governor, and Sanggunian The suspension issued by the Ombudsman is not limited
Provinces
Panlalawigan members. by the LGC. Unlike the Sandiganbayan and the Office of
the President/Sanggunians, the Ombudsman is endowed
PREVENTIVE SUSPENSION with unique safeguards to ensure immunity from political
UNDER THE LGC pressure. [Miranda v. Sandiganbayan (2005)]
By whom imposed: Upon an elective local official of: Preventive Suspension under Preventive Suspension
RA 6770 under the LGC
province, highly urbanized city, or
The President
independent component city;
(1) the evidence of guilt is (1) there is reasonable
The governor Component city, or municipality strong; AND ground to believe
(2) that any of the ff. are that the respondent
The Mayor Barangay; present: has committed the
(a) the charge against act or acts
the officer or complained of
When Imposed: Any time the issues are joined, when the employee should (2) the evidence of
evidence of the guilt is strong and that there is great involve dishonesty, culpability is strong
probability that the continuance in office of the respondent oppression or grave (3) the gravity of the
could influence the witnesses or threaten the misconduct or offense so warrants;
safety/integrity of the records or evidence; neglect in the or
performance of duty; (4) the continuance in
Rules on Length of Preventive Suspension (b) the charges should office of the
(1) Not longer than 60 days; warrant removal respondent could
(2) Cannot be imposed 90 before an election; if imposed from office; or influence the
before said period but extends to such, automatically (c) the respondent’s witnesses or pose a
lifted upon start of the 90 day period; continued stay in threat to the safety
(3) Cannot be suspended for more than 90 days within a office would and integrity of the
single year on the same grounds existing and known at prejudice the case records and other
the time of the first suspension; filed against him evidence
(4) Once lifted, official deemed reinstated without Maximum period: 6 mos. Maximum period: 60
prejudice to the continuance of the proceedings days
against him; [Sec. 62-63, LGC]
UNDER THE SANDIGANBAYAN
Effect/ Right of Pending Preventive Suspension The suspension pendente lite imposed by the
(1) No salary paid during period of suspension, but if Sandiganbayan is mandatory under RA 3019 upon the
subsequently exonerated and reinstated, he shall be filing of a valid information against the erring official. The
PAGE 162
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
[cf. effect of penalty of suspension] Office of the President Final and executory;
EFFECT OF APPEAL
Proper court order Shall not prevent a decision from being final and
Local legislative bodies and/or the Office of the President executory. Respondent is considered to have been placed
cannot validly impose the penalty of dismissal or removal under preventive suspension during the pendency of the
from service on erring local elective officials. It is clear from appeal in the event he wins, and shall be paid his salary
Sec. 60 of LGC that an elective local official may be that accrued during the pendency of the appeal.
removed from office on the grounds enumerated above
only by order of the proper court. The phrase “decision is final and executory” means that
the Sanggunian decision is immediately executory, but still
Art. 124 (b), Rule XIX of the Rules and Regulations subject to appeal to the Office of the President or the
Implementing the LGC, which states that “an elective local Sangguniang Panlalawigan respectively. [Don v. Lacsa
official may be removed from office by order of the proper (2007)]
court or the Disciplining Authority whichever first acquires
jurisdiction to the exclusion of the other” is void for being DOCTRINE OF CONDONATION
repugnant to Sec. 60, LGC. A public official cannot be removed for administrative
misconduct committed during a prior term, since his re-
But if it’s appointive, the OP may remove. [Pablico v. election to office operates as a condonation of the officer's
Villapando (2002)] previous misconduct to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
Petitioners contest the administrative action as being application to criminal cases, as these are violations
violative of Sec. 60, which mandates that an elective against the state itself. [Aguinaldo v. Santos (1992)]
local official may be removed from office only by order of
the court, since the duration of the suspension being 12- Subsequent re-election cannot be deemed a condonation
20 months exceeded their remaining terms. The if there was already a final determination of his guilt before
suspension was allegedly tantamount to a removal. the re-election. [Reyes v. COMELEC (1996)]
An administrative offense means every act or conduct or DISCIPLINE OF APPOINTIVE OFFICIALS
omission which amounts to, or constitutes, any of the The power to discipline is specifically granted by the
grounds for disciplinary action. The offenses for which Revised Administrative Code to heads of departments,
suspension may be imposed are enumerated in Section agencies, and instrumentalities, provinces, and cities. The
60. appointing authority is generally the disciplinary authority.
Assuming for the moment that the Office of the DISCIPLINARY JURISDICTION
President is correct in its decisions in each of the subject Except as otherwise provided, the local chief executive may
four administrative cases: impose:
(1) Removal from service
It committed no grave abuse of discretion in imposing (2) Demotion in rank
the penalty of suspension, although the aggregate (3) Suspension for not more than 1 year without pay
thereof exceeded six months and the unexpired portion (a) If less than 30 days, unappealable
of the petitioners’ term of office. (b) If 30 days or more, appealable to the CSC
PAGE 163
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
(4) Fine not exceeding 6 months pay Election on recall (1) Barangay, city, or municipal
(5) Reprimand officials: not later than 30 days
(6) Otherwise discipline subordinate official and employees from completion
under his jurisdiction. [Sec. 87, LGC] (2) Provincial officials: not later
than 45 days from completion
RESIGNATION OF APPOINTIVE OFFICIALS Effects to official Not allowed to resign while recall
Although a resignation is not complete without an sought to be process is in progress
acceptance thereof by the proper authority, an office may recalled Automatically considered as
still be deemed relinquished through voluntary
candidate and is entitled to be
abandonment which needs no acceptance.
voted upon.
On Resignation: Under established jurisprudence, Effectivity of recall Upon election and proclamation of
resignations, in the absence of statutory provisions as to a successor. If the official sought to
whom they should be submitted, should be tendered to be recalled receive the highest
the appointing person or body. (In the CAB, BP 337 did not number of votes, confidence in him
provide to whom Sangguniang Bayan members should
is affirmed and he shall continue in
submit their resignation letters). Private respondent,
therefor, should have submitted his letter of resignation to office.
the President or to his alter ego, the DILG Secretary. Limitations on Local elective official may be
Recall subject of a recall election only
On Abandonment: Abandonment is “voluntary once during his term of office for
relinquishment of an office by the holder, with the loss of confidence.
intention of terminating his possession and control No recall shall take place within
thereof.” It is a species of resignation. Two elements must
one year from the date of the
concur:
(1) Intention to abandon official’s assumption to office or
(2) Overt or external act by which the intention is carried one year immediately preceding a
into effect [Sangguniang Bayan of San Andres v. CA (1998)] regular local election.
(Asked in 2000)
The law states “upon petition of at least 25% of registered
Requisites to constitute Essential elements of voters” and not “signed by 25% of the registered voters.”
resignation: abandonment: The petition must be filed not by one person but at least by
25% of the total number of registered voters.
(1) Intention to relinquish a (1) Intent to abandon
part of the term (2) Overt act by which the While the initiatory recall petition may not yet contain the
(2) Act of relinquishment intention is to be carried signatures of at least 25% of the total number of registered
(3) Acceptance by the proper into effect voters, the petition must contain the names of at least 25%
authority of the total number of registered voters in whose behalf
only one person may sign the petition in the meantime.
RECALL [Angobung v. COMELEC (1997)]
REQUISITES [SECTION 69-75, LGC AND REPUBLIC ACT NO.
9244] PROCEDURE [SEC. 70, LGC]
Ground for recall: Loss of confidence Petition by a registered voted in the LGU concerned to
Right given to: Registered voters of a LGU to which the COMELEC, supported by the necessary amount of
the local elective official subject to registered voters.
recall belongs
Commencement of By a Petition of a registered voter
recall process: supported by
(1) 25% of registered voters if LGU Within 15 days from filing of the petition, the COMELEC
must certify the sufficiency of the required number of
has population not more than signatures. Failure to obtain the required number shall
20,000 result in the automatic nullification of the petition.
(2) 20% of registered voters if LGU
has voting population of
20,000 to 75,000. In no case
shall petitioners be less than
Within 3 days from certification of sufficiency, COMELEC
5,000.
shall
(3) 15% of registered voters if LGU
(1) provide the official subject of recall with a copy of the
has voting population of
petition
75,000 to 300,000. In no case
(2) cause its publication for 3 weeks in a national
shall petitioners be less than
newspaper and a local newspaper of general circulation
15,000.
(3) cause its posting for 10 to 20 days at conspicuous
(4) 10% of registered voters if LGU
places
has voting population of more
than 300,000. In no case shall
petitioners be less than
45,000.
PAGE 164
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
COMELEC verifies and authenticates the signatures. (1) Reckoned from the 1994 barangay elections
(2) Voluntary renunciation of office for any length of time
shall not be considered as an interruption [Sec. 2]
COMELEC announces the acceptance of candidates for RA 9006: FAIR ELECTION ACT (2001)
the recall election, the official subject of the recall being An elective official running for any office other than the one
automatically included in the list. which he is holding in a permanent capacity, is no longer
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy. [Sec. 14]
COMELEC shall set the election within 30 days upon Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP
completion of the above procedure, LGC in barangays, 881 or the Omnibus Election Code which states that “any
cities, and municipalities; or within 45 days in provinces. elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
LIMITATIONS ON RECALL
President, shall be considered ipso facto resigned from his
(1) Any elective official may be the subject of recall election office upon the filing of his certificate of candidacy.”
only once during his term of office for loss of Section 14 of RA 9006 did not repeal Section 66 of the
confidence. Omnibus election Code, leaving intact Section 66 thereof
(2) No recall election shall take place within 1 year from the which imposes a limitation to appointive officials and
assumption of office of the official concerned, nor considers them ipso facto resigned from office upon filing
within 1 year immediately preceding the date of a of their certificate of candidacy
regular election.
By the repeal of Section 67, an elective official who runs for
The phrase “regular local election” refers to an election office other than the one which he is holding is no longer
where the office held by the local elective official sought to considered ipso facto resigned therefrom upon filing his
be recalled will be contested and be filled by the certificate of candidacy. Elective officials continue in public
electorate. [Paras v. COMELEC (1996)] office even as they campaign for reelection or election for
another elective position. On the other hand, Section 66
Sec. 74 speaks of limitations on “recall” which, according has been retained; thus, the limitation on appointive
to Sec. 69 is a power which shall be exercised by the officials remains - they are still considered ipso
registered voters of a local government unit. Since the facto resigned from their offices upon the filing of their
voters do not exercise such right except in an election, it is certificates of candidacy.
clear that the initiation of recall proceedings is not
prohibited within the one-year period provided in Substantial distinctions clearly exist between elective
paragraph (b). officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are
The phrase “immediately preceding a regular local election” elected to an office for a definite term and may be removed
in Sec. 74(b) refers to the day of regular election not the therefrom only upon stringent conditions. On the other
election period which is normally at least 45 days hand, appointive officials hold their office by virtue of their
immediately preceding the day of the election. [Claudio v. designation thereto by an appointing authority. Some
COMELEC (2000)] appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
PAGE 165
UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
the persons belonging under the same classification are for a term more than what is allowed by law [Latasa v.
similarly treated, the equal protection clause of the COMELEC (2003)]
Constitution is, thus, not infringed. [Fariñas v. Executive
Secretary (2003)] EFFECT OF PREVENTIVE SUSPENSION
Strict adherence to the intent of the three-term limit rule
LIMITATION OF CONSECUTIVE TERMS demands that preventive suspension should not be
No local elective official shall serve for more than three (3) considered an interruption that allows an elective official’s
consecutive terms in the same position. stay in office beyond three terms. A preventive suspension
cannot simply be a term interruption because the
WHAT CONSTITUTES A TERM OF OFFICE suspended official continues to stay in office although he is
To recapitulate, the term limit for elective officials must be barred from exercising the functions and prerogatives of
taken to refer to the right to be elected as well as the right the office within the suspension period. The best indicator
to serve in the same elective position. Consequently, it is of the suspended official’s continuity in office is the
not enough that an individual has served three consecutive absence of a permanent replacement and the lack of the
terms in an elective local office, he must also have been authority to appoint one since no vacancy exists.
elected to the same position for the same number of times
before the disqualification can apply. To allow a preventively suspended elective official to run
for a fourth and prohibited term is to close our eyes to this
2 Conditions for the application of the disqualification [Borja reality and to allow a constitutional violation through
v. COMELEC (1998)]: sophistry by equating the temporary inability to discharge
(1) Elected for three consecutive times the functions of office with the interruption of term that the
(2) Fully served three consecutive terms constitutional provision contemplates. [Aldovino v.
COMELEC (2008)]
RULES FOR “FULLY SERVED” TERM
(1) Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service.
(2) The conversion of a municipality to a city without
interruption of the term of an elective official is not
considered an interruption in the continuity of service.
[Latasa v. COMELEC (2003)]
(3) Election via a recall election does not satisfy a “fully-
served” term. [Lonzanida v. COMELEC (1999)]
(4) The imposition of preventive suspension should not be
considered an interruption that allows an elective
official to stay in office for more than 3 terms. [Aldovino
v. COMELEC (2008)]
PAGE 166
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 167
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 168
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Towards the end of its Judgment of April 28, 2010, the parties to the dispute so agree. This means simply that the
Supreme Court expressed its great sympathy for court may reach a fair compromise in balancing the
Petitioners, saying its members “cannot begin to interests of the parties.
comprehend the unimaginable horror they underwent at Judgment will not be on the basis of the sources of
the hands of the Japanese soldiers.” And then it goes on to international law, as listed in Art. 38(1) of the ICJ Statute,
say that it is “deeply concerned” that – in “apparent but on the grounds of fairness and justice. The court may
contravention of fundamental principles of law” – the have to rely on its own understanding of the broader
Malaya Lolas “appear to be without a remedy to challenge context of equity and outside the accepted norms of law
those that have offended them before appropriate fora.” under Art. 38(1).
The High Court had rejected the Petitioner’s claim that
rape and other sexual crimes committed against them But in the North Sea Continental Shelf cases, the ICJ found
were already prohibited as violations of jus cogens norms a situation where the Parties were under an obligation to
during World War II. act in such a way that in the particular case, and taking all
the circumstances into account, equitable principles were
In their pending Motion for Reconsideration, the applied, which meant that its decision on the applicability
Petitioners argue that early on, there has developed as a of the equitadistance principle in the delimitations
binding customary norm in international law an absolute proceeding was not founded on ex aequo et bono. It said
prohibition on rape. Before San Francisco Peace Treaty in thus: “[i]t was precisely a rule of law that called for the
1951, it was already penalized as a war crime and as a application of equitable principles, and in such cases as
crime against humanity in the 1949 Geneva Conventions, the present ones the equidistance method could
as a crime against humanity in German Courts that tried unquestionably lead to inequity.”
war criminals of World War II and as a war crime in the
International Military Tribunal in the Far East that tried
Japanese war criminals of World War II. In fact, they assert
that right after World War I, a Preliminary Conference at
Versailles created a Commission on Responsibility of the International and National
Authors of War and on Enforcement of Penalties.
Law
Too, the 15-member Commission – of which Japan was
part – submitted a report to the Conference on the Municipal or National Law deals with the conduct or status
responsibility of belligerent states in which it included a list of individuals, corporations, and other ‘private’ entities
of punishable war crimes as violations of the laws and within states. Public International Law may be
customs of war. These included, among other crimes, (1) distinguished from it in that it prescribes rules and
rape, (2) abduction of girls and women for the purpose of processes that govern the relations of states with each
enforced prostitution, (3) deportation of civilians, (4) other, and the rights of other entities insofar as they
internment of civilians under inhuman conditions and and implicate the community of states.
(5) forced labor of civilians in connection with the military
operations. RELATIONSHIP OF PUBLIC INTERNATIONAL LAW
WITH MUNICIPAL LAW
The Philippine Supreme Court’s decision sparked a Although distinct, PIL and Municipal are interrelated:
massive controversy when significant portions of it were
discovered to have been lifted from various sources THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL
without proper attribution. In addition to the plagiarism – ORDER
which is a word for word lifting of pages from the three Norms or principles of international law may be
articles without the proper attribution – it appears that incorporated or transformed into national law and applied
these stolen passages were also twisted to support the or enforced within the territorial jurisdiction of a State as
court’s erroneous conclusion that the Filipina comfort part of “the law of the land.”
women of World War Two have no further legal remedies. (1) Incorporation – norms of international law are deemed
part of national law
All three plagiarized articles by foreign authors –an article (2) Transformation – defines the requisite act which must
published in 2009 in the Yale Law Journal of International be fulfilled before they become part of national law
Law, a book published by the Cambridge University Press
in 2005, and, an article published in 2006 in the Western THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL
Reserve Journal of International Law – argue otherwise. REGULATION
A State cannot invoke its own national law to resist an
A Motion for Reconsideration and a Supplemental Motion international claim or excuse itself from breach of duty
for Reconsideration subsequently filed by lawyers on under international law [Polish Nationals in Danzig Case;
behalf of the Malaya Lolas highlighting the alleged VICLOT; Draft Article on State Responsibility, Art. 6]
plagiarism and twisting of sources are pending with the
Court. The Malaya Lolas, in their Supplemental Motion for THEORETICAL VIEWS ON THE RELATIONSHIP
Reconsideration said the High Court’s ruling, penned by BETWEEN PIL AND MUNICIPAL LAW – [CARTER AND
Justice Mariano Del Castillo, "made it appear that these TRIMBLE]:
sources support the assailed judgment's arguments for MONIST VIEW: International and municipal legal systems are
dismissing instant petition when, in truth, the plagiarized fundamentally part of one legal order. This view considers
sources even make a strong case for the petition's claims." international law to be superior, with municipal law being
a mere subset of international law.
CONCEPT OF EX AEQUO ET BONO
Literally meaning “what is equitable and good”, it is a Thus, international norms are applicable within municipal
standard that a court may apply to decide a case when the system seven without some positive act of the State.
PAGE 169
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
ELEMENTS:
PRIMARY SOURCES [ARTICLE 38, ICJ STATUTE] (1) State Practice
(1) International Conventions, whether general or For custom to exist, the customary practice must be both
particular, establishing rules expressly recognized by consistent and general
the contracting states (Treaties); (a) Consistency requires substantial uniformity, and not
(2) International Custom, as evidence of a general custom necessarily complete uniformity in practice.
accepted as law; (b) Generality likewise does not require universality.
(3) General Principles of Law recognized by civilized nations;
The absence of protest could be considered evidence of the
SUBSIDIARY SOURCES binding nature of customary practice. [Akehurst]
(1) Judicial Decisions; and
(2) Teachings of the most highly qualified publicists of the Acts Evidencing State Practice:
various nations. [Art. 38, ICJ Statute] (1) Diplomatic correspondence
(a) Treaties, Customs and General Principles (Primary (2) Policy statements
Sources) create law; while court decisions publicists’ (3) Press releases
teachings constitute evidence of what is the law. (4) Opinions of official legal advisers
(b) With respect to the three primary sources, the order (5) Official manuals on legal decisions (executive decisions
the enumeration does not provide a hierarchy in all and practices; government comments on drafts by the
cases. ILC)
(6) International and national judicial decisions
NOTE: Although treaties are mentioned first, they are not (7) Recitals in treaties and international instruments
ipso facto superior to customs and general principles. (8) Practice of international organs [Harris]
Note: Philippine law makes a distinction between treaties Opinio juris means that general practice embodied in a
and executive agreements. Although they are equally rule must have been done out of a recognition that it is a
binding, only treaties require the concurrence of the legal norm and therefore obligatory. [North Sea
Senate to be effective. [Sec. 21, Art. VII, 1987 Constitution] Continental Shelf Case, ICJ Reports, 1969]
PAGE 170
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Note: It is not a “maxim,” it is an element required in order formation, by such persistent objection the norm will not
for custom to crystallize into a binding norm in be applicable as against that State. [Magallona]
international law.
The ten-mile rule [in the delimitation of territorial waters
Scope: cross bays] would appear to be inapplicable as against
Custom may be: Norway, inasmuch as she has always opposed any attempt
(1) General binding upon all or most states or to apply it to the Norwegian coast. [Anglo-Norwegian
(2) Particular binding between only two or among a few Fisheries Case (1951)]
states.
DUALITY OF NORMS
In cases it has decided, the ICJ has indeed recognized the It is possible for a norm of international law to exist both as
possibility of regional custom (Asylum Case) and of bilateral a customary norm and a conventional norm (ex. The
custom. [Right of Passage over Indian Territory Case] Prohibition against the Use of Force). Such norms are said
to be of dual character.
No particular length of time is required for the formation of
customary norms. What becomes necessary is such length Norms of dual character come into being through any of
of time as to make manifest the existence of the two the following ways:
elements of custom. [North Sea Continental Cases (1969), (1) A treaty provision may simply restate a customary norm
Magallona] (as is true of many of the provisions in the VCLOT;
(2) A treaty provision may constitute evidence of custom;
NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS (3) A treaty provision may crystallize into a customary
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING norm.
PART OF PHILIPPINE LAW
(1) Rules and principles of land warfare and of For a treaty provision to crystallize into custom, the
humanitarian law under the Hague Convention and the provision must be norm-creating. The treaty must be law-
Geneva Convention [Kuroda v. Jalandoni (1949)] making, creating legal obligations which are not dissolved
(2) Pacta sunt servanda [La Chemise Lacoste v. Fernandez by their fulfillment.
(1984)]
(3) Human Rights as defined under the Universal The number of parties, the explicit acceptance of rules of
Declaration of Human Rights [Reyes v. Bagatsing law, and, in some cases, the declaratory nature of the
(1983)] provisions produces a strong law-creating effect at least as
(4) The principle of restrictive sovereign immunity [Sanders great as the general practice considered sufficient to
v. Veridiano (1988)] support a customary rule. [Brownlie]
(5) The principle in diplomatic law that the receiving State
has the special duty to protect the premises of the The customary norm retains a separate identity even if its
diplomatic mission of the sending State [Reyes v. content is identical with that of a treaty norm. Thus, a state
Bagatsing (1983)] that cannot hold a state responsibility for a breach of a
(6) The right of a citizen to return to his own country treaty obligation can still hold the erring state responsible
[Marcos v. Manglapus (1989)] for the breach of the identical customary norm. [Nicaragua
(7) The principle that “a foreign army allowed to march v. US Case (1984)]
through friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt GENERAL PRINCIPLES OF LAW
from criminal jurisdiction of the place”. [Raquiza v. Refer to those general principles in municipal law
Bradford (1945)] (particularly those of private law) that may be appropriated
(8) The principle that judicial acts not of a political to apply to the relations of states. [Oppenheim]
complexion of a de facto government established by
the military occupant in an enemy territory, is valid Unlike custom, it does not require to be supported by state
under international law. [Montebon v. Director of practice that is consistent and virtually uniform; it being
Prisons (1947)] sufficient that such principle is found in a number of legal
(9) The principle that private property seized and used by jurisdictions. [Roque]
the enemy in times of war under circumstances not
constituting valid requisition does not become enemy Illustrations:
property and its private ownership is retained, the Principles in Roman Law – estoppel, res judicata, res inter
enemy having acquired only its temporary use. [Noceda alios acta, prescription.
v. Escobar (1950)]
(10) The principle that a State has the right to protect itself When Thailand did not object to, and has in fact benefited
and its revenues, a right not limited to its own territory from, the Treaty of 1904 for 50 years, it is deemed to have
but extending to the high seas [Asaali v. Commissioner accepted said treaty. It is thereby precluded from
(1968)] questioning Annex I thereof, which showed that the
(11) Albeit an erroneous understanding of the elements Temple of Preah Vihear was within Cambodian territory
that make a customary norm of international law, the [Temple of Preah Vihear Case (1962)]
Supreme Court has held in Mijares v. Rañada (2005)– a
case involving claims against the Marcos estate – that Procedural Rules – the use of circumstantial evidence,
the enforcement of a foreign judgment is customary in hearsay evidence (press reports).
nature
Press reports can be used to corroborate the existence of a
PRINCIPLE OF PERSISTENT OBJECTOR fact; and, when they demonstrate matters of public
When a State has continuously objected to a new knowledge which have received extensive press coverage,
customary norm at the time when it is yet in the process of
PAGE 171
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
they can be used to prove a fact to the satisfaction of the Eastern Greenland case (1931-33): The ICJ held that
court. [Nicaragua v. US Case (62—63)] Denmark not only had a superior claim over the contested
territory, but that Norway was further bound by the Ihlen
Circumstantial evidence is admitted as indirect evidence in Declaration not to oppose Denmark’s claim. The Ihlen
all systems of law and its use is recognized by international Declaration is a statement made by the Norwegian Foreign
decisions. Such circumstantial evidence, however, must Minister, Nils Claus Ihlen, on the topic of Denmark's
consist of a series of facts or events that lead to a single sovereignty over Greenland, which Mr. Ihlen declared
conclusion. [Corfu Channel Case (1949)] verbally to the Danish Minister that “the plans of the Royal
[Danish] Government respecting Danish sovereignty over
Substantive – duty to make reparations, principle of the whole of Greenland would be met with no difficulties
reciprocity, pacta sunt servanda, separate corporate on the part of Norway.”
personality [Barcelona Traction Case (1970)]
Also in the Nuclear Test cases (1974), France declared that
The Standard of “Full” Reparations: Every breach of an it would cease atmospheric nuclear tests. This signaled
engagement (international obligation) entails the that there had ceased to be a dispute, since it had bound
obligation to make reparation. The amount of reparation itself to do what Australia and New Zealand wanted.
required is that amount which is necessary to bring the
injured party back to the situation had the wrong not
occurred. [Chorzow Factory Case (1927)]
There is no accepted definition of what the state is in The requisites for acquiring territorial soreveignty by
international law. The Montevideo Convention merely prescription are. — (1) Possession that must be exercised
enumerates what are the elements by which one may say titre de souverain; (2) Peaceful and uninterrupted; (3)
that a state exists. Public; and (4) Endure for a certain length of time
[Johnson]
States remain the most important actors in international
law. It possesses objective or erga omnes personality, not (4) Accession or accretion – the natural process of land
merely by virtue of recognition on the part of particular formation resulting in the increase of territory (original)
states.
Government
Objective (general) international personality – exists Government is the physical manifestation of a state.
wherever the rights and obligations of an entity are Government must be organized, exercising control over
conferred by general international law, e.g. states and capable of maintaining law and order within its
territory.
Special (particular) international personality – exists where
an entity is established by particular States for special Note: Under the Rules on Succession of States, even
purposes changes of entire governments do not affect the identity
and personality of the state. Once statehood is
REQUISITE ELEMENTS: established, neither invasion nor disorder alone can
People remove its character as a state. [Brownlie]
The term “people” refers to an aggregate of individuals of
both sexes who live together as a community despite racial “Effective” Government
or cultural differences. Although no minimum number is Although an effective government is the best evidence of
provided, they should be permanent, and sufficient to the existence of a State, an effective government is not
maintain and perpetuate themselves. always strictly necessary [Brownlie].
A state must exercise control over a certain area. It need Thus, with the collapse of their governments, Afghanistan
not be exactly defined by metes and bounds, so long as and Somalia were deemed failed states, but they remained
there exists a reasonable certainty of identifying it. No states.
minimum land area is required.
Further, some states were deemed states even before their
Modes of acquiring territorial sovereignty governments were "very well organized" (ex. Poland,
(1) Occupation of a territory not subject to the sovereignty Burundi, and Rwanda).
of any other state (original); this refers not to mere
discovery but effective exercise of sovereignty over a Governments de facto & de jure
territory which is terra nullius A government de jure is a government from law, that is, one
with a color of legitimacy.
Effective occupation means continued display of authority
which involves 2 elements each of which must be shown to A government de facto is one that governs without a
exist: (a) the intention and will to act as sovereign [animus mandate of law. So long as it is in place, it may command
occupandi], and (b) some actual exercise or display of such obedience from the inhabitants of the occupied area. The de
authority. [Eastern Greenland Case (1931-33)] facto ruler may suspend laws and enact new ones.
Animus occupandi must be demonstrated and evidenced Note: The establishment of a de facto government does not
by some administrative or political acts in relation to the by itself abolish all laws and structures established by the
territory in question and such acts must be under titre de deposed government. Only “laws of political nature
souverain (title of sovereignty). affecting political relations” are suspended ipso facto; laws
that enforce public order and regulate social and
To constitute effective occupation, exercise of sovereignty commercial life remain in effect unless they are changed
must be peaceful, actual, continuous and sufficient to by the de facto sovereign. Conversely, the re-
confer valid title to sovereignty. establishment of the de jure government does not void the
acts of the preceding de facto government.
(2) Cession – the transfer of territory from one state to
another by treaty (derivative); only bilateral mode of Three kinds of de facto government:
acquisition (1) Government de facto in the strict legal sense is that
which usurps – either by force or the will of the majority
The validity of cession depends on the valid title of the – the legal government and maintains and control
ceding state; the cessionary state cannot have more rights against it;
than what the ceding state possessed. [Magallona] (2) Government by paramount force is that which results
from the occupation of a state or a part thereof by
(3) Prescription – title is acquired by through continuous invading forces in time of war; and
and undisturbed exercise of sovereignty over a period
of time (derivative)
PAGE 173
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(3) Government established as an independent government claims and feudal pre-colonial titles are mere relics of
by inhabitants of a country who rise in insurrection another international legal era, one that ended with the
against the parent state. setting of the sun on the age of colonial imperium.”
In other words, an entity endowed with statehood has The Manila Accord of 31 July 1963, signed by President
sovereignty, but sovereignty itself is not a precondition but Macapagal, President Sukarno and Prime Minister Tunku
only an attribute, or “an incident or consequence of Abdul Rahman, adopted in toto the report of the Foreign
statehood, namely the plenary competence that States Ministers earlier referred to.
prima facie possess.”
The Joint Statement of 5 August 1963 by the Three Heads
In its advisory opinion in Accordance with International of Government, especially its para. 8, which referred to the
Law of the Unilateral Declaration of Independence In Manila Accord, and reiterated their joint view that they
Respect of Kosovo, the ICJ dealt for the first time with the agreed to seek a just and expeditious solution to the
question of the legality of a unilateral declaration of dispute between the British government and the
independence brought to it by the General Assembly. This Philippines over Sabah through negotiations, conciliation,
case arose from the 2008 Kosovo declaration of arbiration or judicial settlement, or other peaceful means
independence amidst conflicting claims of resolving the issue. In addition, they affirmed that they
between Serbia and the Republic of Kosovo established by take cognizance of the Philippine claim to Sabah "after the
the said declaration. The ICJ, in an advisory opinion that establishment of the Federation of Malaysia as provided
received mixed reactions, declared that "the declaration of under para. 12 of the Manila Accord, that is, the inclusion
independence of the 17 February 2008 did not violate of Sabah in the Federation of Malaysia does not prejudice
general international law because international law either the claim or any right thereunder."
contains no 'prohibition on declarations of independence.'"
Yet it stopped short of saying what the legal implications In 1966, when relations between them normalized,
were of the same declaration. Malaysia and the Philippines, in a joint Communique of 3
June 1966, "agreed to abide by the Manila Accord of 31 July
Notes on Sabah and the question of self-determination: 1963 and with the Joint Statement accompanying it, for the
In his separate opinion to the Sovereignty over Pulau Ligitan peaceful settlement of the Philippine claim to Sabah." they
and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ further agreed that to the need to sit together to clarify the
in 2002, ad hoc judge Thomas Franck had this to say, in claim and reach a satisfactory resolution to the issue.
his rejection of the Philippine intervention:
And then, following the proclamation of the creation of the
Accordingly, in light of the clear exercise by the people of Federation of Malaysia on 16 September 1963, Manila and
North Borneo of their right to self-determination, it cannot Kuala Lumpur engaged in a series of exchages of Joint
matter whether this Court, in any interpretation it might Communiques, aides memoirs, Notes Verbale or
give to any historic instrument or efficacy, sustains or not diplomatic notes, all expressing the sense that both parties
the Philippines claim to historic title. Modern international have remained committed to the terms of the Manila
law does not recognize the survival of a right of sovereignty Accord of 1962. These exchanges ran from 1964 to 1968.
based solely on historic title; not, in any event, after an
exercise of self- determination conducted in accordance It is important to note that these are not mere unilateral
with the requisites of international law, the bona fides of declarations but are tripartite and bilateral documents
which has received international recognition by the that are binding upon the signatories under international
political organs of the United Nations. Against this, historic law. In the case of the Joint Statement, they all agreed that
PAGE 174
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
the Philippines will continue to pursue it claim even after Indeed, the Philippines is not claiming all of Sabah or
the inclusion of Sabah in the Malaysian Federation. In the contesting its political legitimacy. We are simply claiming a
case of the 1966 joint Communique, Malaysia without a piece of territory in North Borneo on the basis of a clear
doubt, by its consent to it, forfeited any advantage it might chain of title. At its heart is the claim that the1878 contract
have acquired through the UN ascertainment of 1963. entered into between the Sultan of Sulu and the
prospectors Dent and Overbeck is one of lease and not of
From the very beginning, the Philippines has demanded transfer of sovereignty.
that any referendum in Sabah on the question of its
inclusion in the Malaysian Federation be authentic and This lease contract was later passed on by the prospectors
bonafide, and under circumstances that ensured the free to the British North Borneo Company (BNBC), which in
and enlightened expression of the Sabahan's will. turn, sold its rights under the contract to the British
Crown. As in international law, sovereignty can only be
But the so-called Sabah referendum was anything but a ceded to sovereign entities or to inviduals acting for any
representative referendum. Only the election of local sovereign entity Overbeck and Dent did not have the power
officials was concerned in the proceedings. The question of to pass on to BNBC sovereignty over the properties of the
whether the people of Sabah wished to remain with Sultanate of Sulu over portions of North Borneo, they
Malaysia or to join the Philippines was not at all asked in being neither sovereign entities nor individuals acting for
the ballots issued to voters. any sovereign entity.
Moreover, much to the embarassment of UN officials, In fact, in 1903, the BNBC would sign with the Sultanate of
Malaysia announced the date of the creation of the Sulu a confirmatory Deed to the origina terms of the 1878
federation even before the results of the so-called lease. From 1878 to just before the1946 Cession, the British
referendum could be released, as if it had already been Crown has always recognized the 1878 contract as no more
predetermined. than a lease. The British Foreign Minister, Lord Granville,
assuring the Spaniards that the BNBC is not acquiring
In the wake of the Lahad Datu incident, the Malaysian dominion and sovereignty in North Borneo, stated thus:
government made the claim that two-thirds of the people
of Sabah agreed to be part of Malaysia in 1962. The Crown assumes no dominion or sovereignty over the
territories occupied by the company nor does it purport
Sabah opposition leaders like Jeffrey Kitingan however to grant to the Company any powers of government
dispute this, arguing that what actually took place was a thereover; it merely confers upon the persons associated
referendum of less than four percent of the people. If at all, the status and incidents of a body corporate and
Kitingan's statement confirms the Philippines' position recognize the grants of territory and the powers of
from the very beginning. government made and delegated by the Sultan in whom
the sovereignty remains vested.
Moreover, he also argues that all the relevant parties,
including the Sabahans, should find a peaceful solution to The British Foreign Minister would go on to say the BNBC
the dispute under the ambit of Great Britain and the was merely an administrator. To the same effect, the
United Nations. In any case, today's adamant refusal by Prime Minister, Mr. William Gladstone, in the debates in
Malaysian authorities to consider a joint submission with the House of Commons, gave an important speech. Thus
the Philippines on the Sabah question to an international Malaysia acquired no more than a derivative title from the
tribunal is a complete turnaround from its previous British crown, which could not be any better than what the
position on the matter. They cannot however, deny BNBC acquired from Overbeck and Dent.
documents to which Malaysia was a willing party and that
are binding under international law. And Malaysia's continuing payment of pajak to the heirs of
the Sultan of Sulu, on the basis of the 1939 probate of the
In the Sipadan and Ligitan case (2002), the ICJ denied the will of Sultan Jamalul Kiram by North Boreo Chief Justice
Philippine bid to be allowed to intervene, saying it did not Macaskie, in the amount of 5, 300 dollars annualy, further
show any specific legal interest in the dispute. However, affirm the Philippine position.
what proved important to the Philippines is the declaration
by the ICJ that it recognizes the existence of the Philippine The Chief Justice, in his decision dated 18 December 1939,
position on Sabah, as well as the positions taken by thus said:
Indonesia and Malaysia on it.
It is abundantly plain that the succesors in Sovereignty
This was the very first time the Philippines was able to of the Sulta of Sulu are the Goverment of the Philippine
articulate its claim to Sabah before an international islands, but Mr. De Leon contends that the decsion of
tribunal, although the Court ruled that its claim was not at the Philippine courts in the administration suit relating
issue in the proceedings. What exactly is this claim by the to the late Sulta's estate precludes that govenrment
Philippines? from assertingg any claim to the cession monies. In my
view, this is correct. The Philippine government allowed
As we argued in the Case Concerning Sovereignty Over Sultan Jamalul Kiram to enjoy cession monies as a
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ours private person sine 1915; they have made no claim on his
“is a territorial claim on a portion of Sabah which properly death and by a judgment of a Philippine court
belongs to the Philippines on the basis of a sound title jure recognized the right of the private heirs ofthe Sultan to
gentium and which Malaysia is improperly occupying on receive the cession monies. ( based on the Maxwell-
the basis of a faulty title which had been transferred to it Gibson translation of 1878)
by a prior faulty title holder."
PAGE 175
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Justice Macaskie here has two aspects of the question in (1) The determination of statehood as a question of law
mind. First, he recognizes that there are rights to which may have evidential effect before a tribunal, and
sovereignty which now pertain to the Government of the (2) A condition of the establishment of formal, optional,
Philippines and there are proprietary rights that accrue to and bilateral relations, including diplomatic relations
the heirs of the Sultan of Sulu. This distinction may and the conclusion of treaties; also described by some
provide an alternative that could be most beneficial to all jurists as constitutive.
concerned, that is, given the difficulties of raising a full
sovereignty claim, it is perhaps more practical for the Declaratory View v. Constitutive View
Philippines to pursue the proprietary aspect to it. The Declaratory View (Prevailing View) posits that
In the MOA-AD case, the Philippine Supreme Court held recognition is a mere declaration or acknowledgement of
that the right to self-determination does not automatically an existing state of law and fact, legal personality having
mean the right of secession. been previously conferred by operation of law.
Referencing the Canadian Supreme Court’s holding in the The Constitutive View (Minority View) posits that the
Quebec case, the High Court discussed the distinction political act of recognition is a precondition to the
between Internal self-determination and External Self- existence of legal rights of a state. In its logical extreme,
Determination: this is to say that the very personality of a state depends on
(1) Through internal self-determination – the state the political decision of other states. [Brownlie]
recognizes a people's pursuit of its political, economic,
social and cultural development within the framework Important Doctrines:
of an existing state. Wilson/Tobar Doctrine (Asked 1 time in the Bar) – precludes
(2) A right to external self-determination (which in this case recognition of government established by revolution, civil
potentially takes the form of the assertion of a right to war, coup d’etat or other forms of internal violence until
unilateral secession) arises in only the most extreme of freely elected representatives of the people have organized a
cases and, even then, under carefully defined constitutional government [US President Woodrow Wilson,
circumstances. 1913 and Ecuadorian FM, 1907]
What are the exceptions that give rise to a right to external Stimson Doctrine – precludes recognition of any
self-determination? government established as a result of external aggression
(1) Vienna Declaration and UN Declaration of Friendly [US Sec. of State Henry Stimson (1932)]
Relation of states: massive violation of human rights
and deprivation of political representation can be a Estrada Doctrine (Asked 1 time in the Bar) – dealing or not
basis for right to secession. dealing with the government established through a political
(2) if a decision to secede is "freely determined by a upheaval is not a judgment on the legitimacy of the said
people;" that is to say, by a cross-section of the entire government [Mexican Minister Genaro Estrada (1930)]
population of the state to be divided and not only the
inhabitants of the region wishing to secede [Quebec Effects of recognition:
case (1998)]. (1) Diplomatic relations
(3) and if, following armed conflict, national boundaries are (2) Right to sue in courts of recognizing state
redrawn as part of the peace treaty. (3) Right to possession of properties of predecessor in the
recognizing state
Prof. Johan Van Der Vyver: (4) All acts of the recognized state or government are
“Self-determination of peoples is thus a matter of national validated retroactively, preventing the recognizing
independence in the case of peoples subject to colonial rule state from passing upon their legality in its own court.
or foreign domination, participation in the political
processes of a country in cases where the people concerned INTERNATIONAL ORGANIZATIONS
have been denied such participation on a discriminatory The status and powers of an IO is determined by
basis, and sphere sovereignty of peoples that uphold a agreement and not by general or customary international
strong (sectional) group identity within a political law.
community. Not one of these manifestations of self-
determination amounts to the disruption of national IO’s are considered subjects of international law “if their
borders of a territorially defined political community.” legal personality is established by their constituent
instrument (charter).”
In Quebec, the Canadian Supreme Court thus held that:
the decision rests with a cross-section of the entire Further, its constituent rights and duties, or capacities and
population of the state to be divided and not only the immunities, are limited to those set forth in the treaty
inhabitants of the region wishing to secede. creating the international organization. Thus, legal
personality in this context is a relative concept. [Magallona]
RECOGNITION
An act by which a state acknowledges the existence of PRECONDITIONS FOR INTERNATIONAL PERSONALITY
another state, government or belligerent community and (1) It must constitute a permanent association of states,
indicates willingness to deal with the entity as such under with lawful objects, equipped with organs;
international law. (2) There must be a distinction, in terms of legal powers
and purposes, between the organization [and] its
As a public act of state, recognition is an optional and member states; and
political act and there is no legal duty in this regard. (3) It must have legal powers that it may exercise on the
international plane and not solely within the national
Legal functions of recognition systems of one or more states.
The typical act of recognition has 2 legal functions:
PAGE 176
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
CAPACITY TO BRING A CLAIM FOR REPARATION He is immune from criminal and civil jurisdiction, except
An IO such as the United Nations (UN) must be deemed to when he himself is the plaintiff, and is not subject to tax or
have such powers which, though not expressly granted in exchange or currency restrictions.
its Charter, are conferred upon it by necessary implication as
being essential to the performance of its duties. THE FOREIGN OFFICE
The body entrusted with the conduct of actual day-to-day
Thus, though the UN Charter did not expressly clothe the foreign affairs.
UN with the capacity to bring an international claim for
reparations, the UN nevertheless possessed functional It is headed by a Secretary or a Minister who, in proper
personality. [Reparations for Injuries Advisory Opinion, ¶147] cases, may make binding declarations on behalf of his
government. [Legal Status of Eastern Greenland Case
IO’s are deemed to have powers not expressly granted in (1933)]
their charters where these unstated powers are either:
(1) implicitly bestowed in their charters or THE DIPLOMATIC CORPS
(2) necessary to effect powers expressly granted. Refers to the collectivity of all diplomatic envoys accredited
to a State.
INDIVIDUALS
While States have traditionally been deemed to be subject It is composed of:
of international law, individuals have likewise become in (1) Head of Mission – classified into:
some degree subjects of that law. However, individuals (a) Ambassadors or nuncios – accredited to Heads of
may assume the status of subjects of international law only State, and other heads of mission of equivalent
on the basis of agreement by states and in specific context, rank;
not in accordance with general or customary IL. (b) Envoys, Ministers and Internuncios – accredited to
Heads of State;
Illustrations: (c) Charges d’affaires – accredited to Ministers of
(1) Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the Foreign Affairs.
Sea-Bed Disputes Chamber of the ITLOS extends to (2) Diplomatic Staff – those engaged in diplomatic
disputes between parties to contracts relating to the activities and are accorded diplomatic rank.
exploitation of the Area. Parties to such contracts may (3) Administrative and Technical Staff – those employed in
be natural or juridical persons. the administrative and technical service of the mission.
(2) Claims Settlement Declaration of 1981 between US and (4) Service Staff – those engaged in the domestic service of
Iran: Direct access to the Iran-US Claims Tribunal is the mission [Nachura]
given to individuals for the settlement of their claims
involving more than $250,000 either against Iran or NOTE: In the Philippines, the President appoints (Sec. 16,
the US. Art.VII, Constitution), sends and instructs the diplomatic
(3) Mixed Claims Tribunals established in the Treaties of and consular representatives.
Peace concluded at the end of WWI: Individuals
enjoyed locus standi in actions against States relating Functions and Duties:
to contracts, debts, and property adversely affected by (1) Represent the sending State in the receiving State;
the war. (2) Protect in the receiving State the interests of the
(4) London Agreement of the International Military sending State and its nationals, within the limits
Tribunal at Nuremberg: In crimes against peace, war allowed by international law;
crimes and crimes against humanity, international law (3) Negotiate with the government of the receiving State;
imposes duties and liabilities upon individuals as well (4) Ascertain, by all lawful means, the conditions and
as upon States. developments in the receiving State and reporting the
(5) Art. VI of the Convention on the Prevention and same to the sending State;
Punishment of the Crime of Genocide: “Parties charged (5) Promote friendly relations between the sending State
with genocide” refers to individuals whose and receiving State, and developing their economic,
responsibility is thus under international law. cultural and scientific relations [Art. 3(1), VCDR]
(6) If diplomatic relation is severed, entrust the protection
of its nationals to the diplomatic mission of a third
State acceptable to the receiving State [Art. 45, VCDR]
Diplomatic and Consular Law (7) May protect the interest of a third State by agreement
with the receiving State, if there is no diplomatic
relations between the third State and the receiving
Diplomatic Intercourse, also referred to as the Right of State [Art. 46, VCDR]
Legation, is the right of the State to send and receive
diplomatic missions, which enables States to carry on DIPLOMATIC IMMUNITIES AND PRIVILEGES (ASKED 9
friendly intercourse. TIMES IN THE BAR)
THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES AND IMMUNITIES
AGENTS OF DIPLOMATIC INTERCOURSE (1) Extraterritoriality theory – the premises of the
HEAD OF STATE diplomatic mission represent a sort of extension of the
The head of State represents the sovereignty of the State, territory of the sending State
and enjoys the right to special protection for his physical (2) Representational theory – the diplomatic mission
safety and the preservation of his honor and reputation. personifies the sending State
(3) Functional necessity theory – privileges and immunities
Upon the principle of exterritoriality, his quarters, archives, are necessary to enable the diplomatic mission to
property and means of transportation are inviolate. perform its functions
PAGE 177
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 178
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(3) As to criminal jurisdiction, members of the (3) Members of the service staff of the diplomatic mission,
administrative and technical staff of the diplomatic who are not nationals of or permanent residents in the
mission, as well as members of their families forming receiving state, with respect to ‘emoluments they
part of their respective households, who are not receive by reason of their employment’
nationals of or permanent residents in the receiving (4) Private servants of members of the mission if they are
state. But as to civil and administrative jurisdiction, not nationals or permanent residents of the receiving
immunity shall not extend to “acts performed outside state, with respect to ‘emoluments they receive by
the course of their duties’; and reason of their employment’. [Art. 37, VCDR]
(4) Members of the service staff of the diplomatic mission,
who are not nationals of or permanent residents in the Duration of Immunities and Privileges
receiving state, with respect to ‘acts performed in the These privileges are enjoyed by the envoy from the
course of their duties’. [Art. 37, VCDR] moment he enters the territory of the receiving State, and
shall cease when he leaves the country. With respect to
EXEMPTION FROM TAXES AND CUSTOMS DUTIES official acts, immunity shall continue indefinitely.
Exemption from taxation has 2 aspects, one, pertaining to
the sending state and another, pertaining to the Waiver of Immunities
diplomatic agent. Diplomatic privileges may be waived. Such waiver may be
made only by the government of the sending State if it
As to the sending state concerns the immunities of the head of the mission. In
Exemption applies to “premises of the mission” whether other cases, the waiver may be made either by the
owned or leased, with respect to “all national, regional or government or by the chief of the mission.
municipal dues and taxes”. [Art 23, VCDR]
CONSULAR RELATIONS
As to Diplomatic agents Consuls are State agents residing abroad for various
Are exempt from all dues and taxes, whether personal or purposes but mainly:
real, national, regional or municipal. [Art. 34, VCDR] (1) in the interest of commerce and navigation,
(2) issuance of visa (permit to visit his country), and
NOTE: He is also exempt from all customs duties of articles (3) such other functions as are designed to protect
for the official use of the mission and those for the nationals of the appointing State.
personal use of the envoy or members of the family
forming part of his household, including articles intended RANKS
for his establishment. Consul General: heads several consular districts, or one
exceptionally large consular district
Baggage and effects are entitled to free entry and are Consul: in charge of a small district or town or port
usually exempt from inspection. Vice Consul: assists the consul
Consular agent: one entrusted with the performance of
Exception to Tax Exemption: certain functions by the consul
As to sending state
Exemption does NOT include dues or taxes which FUNCTIONS
represent payment for specific services rendered. [Art. Consular functions include the following:
23(1), VCDR] (1) Protecting the interests of the sending state in the
territory of the receiving state;
As to diplomatic agents: (2) Protecting and assisting the nationals of the sending
(1) Indirect taxes incorporated in the price of goods state;
purchased or services availed (3) Furthering the development of commercial, economic,
(2) Dues and taxes on private immovable property situated cultural and scientific relations between the sending
in the receiving State state and the receiving state and promoting friendly
(3) Estate, succession or inheritance taxes levied by the relations between them;
receiving State (4) Ascertaining by all lawful means the conditions and
(4) Dues and taxes on private income sourced within the developments in the commercial, economic, and
receiving State cultural and scientific life of the receiving state,
(5) Capital taxes on investments in commercial ventures in reporting thereon to the government of the sending
the receiving State state, and giving information to persons interested;
(6) Charges levied for specific services rendered (5) Issuing passports and travel documents to nationals of
(7) Registration, court or record fees, mortgage dues and the sending state and visas and travel documents to
stamp duty, with respect to immovable property. [Art. persons wishing to travel to the sending state;
34, VCDR] (6) Acting as notary, civil registrar and similar
administrative capacities; and
Who are entitled to exemption from taxation in addition to (7) Exercising rights of supervision and inspection
the diplomatic agent? pertaining to the sending state as flag state and state
(1) Members of the family of the diplomatic agent forming of registry of aircraft.
part of his household, who are not nationals of the
receiving State According to the Swiss arbitrator Max Huber in the Las
(2) Members of the administrative and technical staff of Palmas case, one state's sovereignty over its territory
the diplomatic mission, as well as members of their comes with the concomitant obligations towards the rights
families forming part of their respective households, of other States:
who are not nationals of or permanent residents in the
receiving state.
PAGE 179
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Territorial sovereignty, as has already been said, involves and (c) of the Convention, which give consular officers the
the exclusive right to display the activities of a State. This right to communicate with nationals of the sending state
right has as corollary a duty: the obligation to protect and to have access to them, and give consular officers the
within the territory the rights of other States, in particular right to visit a national of the sending state who is in
their right to integrity and inviolability in peace and in war, prison, custody or detention. The World Court also held
together with the rights which each State may claim for its that under the same article, the brothers had individual
nationals in foreign territory. Without manifesting its rights that may be invoked before it by Germany.
territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty. Territorial In the Avena case, Mexico sued the United States before
sovereignty cannot limit itself to its negative side, i.e. to the ICJ over the latter’s alleged failure to comply with the
excluding the activities of other States; for it serves to Vienna Convention in 54 different cases involving Mexican
divide between nations the space upon which human nationals who had been convicted and sentenced to death
activities are employed, in order to assure them at all by American courts. On March 31, 2004, the ICJ issued its
points the minimum of protection of which international ruling in the case, holding that the United States.
law is the guardian.
The ICJ held that the United States had breached its
In other words, the fact that one has sovereign claims over obligations under the Vienna Convention thus:
a piece of territory does not entitle it to wanton ill-
treatment of foreigners found within that territory, even
assuming for the sake of argument that these foreigners (1) by failing to inform, without delay, 51 Mexican nationals
are alleged to have committed acts inimical to the of their rights under the Vienna Convention;
interests of the state. (2) by failing to inform, without delay, the appropriate
Mexican consular post of the detention of 49 Mexican
nationals, thereby depriving Mexico of the right to
In both the La Grand (2001) and Avena (2004) Cases, the render assistance to its nationals;
International Court of Justice (ICJ) has laid down the (3) by depriving Mexico of the right to communicate with,
positive duty of states to accord consular privileges to and have access to, 49 Mexican nationals in a timely
sending states whose nationals have run into trouble in the manner;
jurisdiction of the receiving states, pursuant to Art. 36 of (4) by depriving Mexico of the right to arrange for legal
the Vienna Convention,. representation of 34 Mexican nationals in a timely
manner; and
The right of a state to claim rights for its nationals abroad (5) by not permitting the review and reconsideration, in
is referred to as “diplomatic protection”. Here, the duty of light of the rights set forth in the Vienna Convention, of
the state is to ensure that states treat their nationals the convictions and sentences of three Mexican
abroad in a manner that complies with human standards nationals currently awaiting execution.
recognized under the International Covenant on Civil and
Political rights, among others documents. Court held by way of providing a remedy to Mexico that the
United States must provide "by means of its own choosing,
Art. 36 (1)(b) states thus: review and reconsideration of the convictions and
If he so requests, the competent authorities of the sentences of the Mexican nationals." It added that to
receiving State shall, without delay, inform the consular satisfy the Court's judgment, the US must take into
post of the sending State if, within its consular district, a account the rights set forth in Article 36 as well as the
national of that State is arrested or committed to prison or relevant portions of the Court's opinion on this issue. The
to custody pending trial or is detained in any other manner. Court indicated that review and reconsideration must be
Any communication addressed to the consular post by the effective and must provide "a procedure which guarantees
person arrested, in prison, custody or detention shall also that full weight is given to the violation of the rights set
be forwarded by the said authorities without delay. The forth in the Vienna Convention, whatever may be the
said authorities shall inform the person concerned without actual outcome of such review and reconsideration." In the
delay of his rights under this subparagraph. end, the ICJ denied Mexico's request to hold that a Vienna
Convention violation must automatically result in the
In the La Grand case, the facts were: Walter La Grand and partial or total annulment of conviction or sentence.
his brother, who were German nationals residing in the
United States, were arrested and sentenced to death in NECESSARY DOCUMENTS
Arizona in 1982 in connection with armed robbery and The following documents are necessary for the assumption
murder. However, they were not informed of their rights of Consular functions:
under the Vienna Convention on Consular Relations, a (1) Letters Patent (letter de provision) – the letter of
multilateral treaty to which both Germany and the United appointment or commission which is transmitted by
States are states parties. the sending state to the Secretary of Foreign Affairs of
the country where the consul is to serve.
(2) Exequatur – the authorization given to the consul by the
Their court-appointed counsel did not raise the issue of sovereign of the receiving State, allowing him to
non-compliance with the Vienna Convention of the United exercise his function within the territory.
States in the brothers’ case, either at the court of origin or
on appeal. The matter was only raised in a federal habeas IMMUNITIES AND PRIVILEGES
corpus petition, by which time it was already too late. Freedom of communication;
(1) The receiving state shall permit and protect freedom of
On the merits, the ICJ ruled that the US had breached its information on the part of the consular post for all
obligations to Germany under article 36, paragraphs (1)(a) official purposes;
PAGE 180
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(2) In communicating with the government, the diplomatic Scope of personal inviolability of consular officials
missions and other consular posts of the sending state, (a) They are not liable to arrest or detention pending trial,
the consular post may employ all appropriate means, except in case of a grave crime and pursuant to a
including diplomatic or consular bags and messages in decision of a competent judicial authority.
code or cipher; (b) They shall not be committed to prison nor be subject to
(3) The official correspondence of the consular post shall any other form of restriction to personal freedom,
be inviolable; except in the case of grave crime pursuant to a decision
(4) The consular bag shall neither be opened nor detained. of competent judicial authority, or in the execution of a
final judicial decision. [Sec. 41, VCCR]
But, may the receiving state request that the consular bag be Are consular officers and employees entitled to immunity
opened? from the jurisdiction of administrative and judicial
YES, if the authorities have serious reasons to believe that authorities in the receiving state?
the bag contains something other than correspondence, YES, but this immunity shall not apply to a civil action
documents or articles “intend exclusively for official use”. either:
(a) arising out of a contract by a consular officer or
If the request is accepted – the bag may be opened in the employee, which he did not conclude expressly or
presence of the authorized representative of the sending impliedly as an agent of the sending state; or
state. (b) by a third party for damage arising from an accident
caused by vehicle, vessel or aircraft in the receiving
If the request is refused – the bag shall be returned to its state. [Art. 43, VCCR]
place of origin. [Art. 35, VCCR]
Inviolability of archives;
Inviolability is unconditional. They shall be inviolable at all
times and wherever they may be. [Art. 33, VCCR] Treaties
Inviolability of premises; A 'treaty' is:
What is the scope of the inviolability of consular premises? (1) an international agreement
(1) Authorities of the receiving state shall not enter that (2) concluded between States
part of the consular premises exclusively used for (3) in written form and
consular work, except with the consent of the head of (4) governed by international law,
the consular post, his designee, or the head of the (5) whether embodied in a single instrument or in two or
diplomatic mission; but consent of the consular head more related instruments and
“may be assumed in case of fire or other disaster (6) whatever its particular designation [Art.2(1), Vienna
requiring prompt protective action; Convention on the Law of Treaties or VCLOT]
(2) The receiving state has the special duty to take all
appropriate steps to protect the consular premises Under the VCLOT, the term “treaty” includes all
against intrusion or damage and to prevent any agreements between states, regardless of how they are
disturbance of peace of the consular post or called. Thus, for purposes of international law, treaties,
impairment of its dignity executive agreements, exchanges of notes, etc. are all
(3) Consular premises, their furnishings, the property of the treaties. Note, however, that Philippine law makes a
consular post and its means of transport shall be distinction between treaties and executive agreements.
immune from any form of requisition “for purposes of Both are equally binding, but only treaties require the
national defense or public utility”. concurrence of the Senate to be effective.
(4) In case of consular premises, their furnishings, the
property of the consular post and its means of Treaty Executive Agreements
transport are expropriated for national defense or
public utility, “all possible steps shall be taken to avoid Subject Matter
impending the performance of consular functions, and (1) Political Issues (1) Transitory effectivity
prompt, adequate and effective compensation shall be (2) Changes in national (2) Adjusts details to carry
paid to the sending state. [Art. 31, VCCR] policy out well-established
(3) Involves international national policies and
Consular premises agreements of a traditions
“The buildings or parts of buildings and the land ancillary permanent character (3) Temporary
thereto, irrespective of ownership, used exclusively for the (4) Implements treaties,
purposes of consular post”. statutes, policies
Ratification
Consular Premises have: Requires ratification by Does not require
(1) Exemption from local jurisdiction for offenses the 2/3 of the Senate to concurrence by Senate to be
committed in the discharge of official functions, but not be valid and effective (Art. binding
for other offense except for minor infractions; VII, Sec. 21)
(2) Exemption from testifying on official communications
or on matters pertaining to consular functions; In the Northrail case, [China National Machinery &
(3) Exemption from taxes, customs duties, military or jury Equipment Corp. (Group) v. Sta. Maria, et al. (2012)] the
service. Supreme Court held that the Contract Agreement in
(4) Personal inviolability of consular officials question does not partake the nature of an executive
agreement on the following discussion:
PAGE 181
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Article 2(1) of the Vienna Convention on the Law of Treaties departmental heads. The technique of exchange of notes
(Vienna Convention) defines a treaty as follows: is frequently resorted to, either because of its speedy
[A]n international agreement concluded between States procedure, or, sometimes, to avoid the process of
in written form and governed by international law, legislative approval.
whether embodied in a single instrument or in two or
more related instruments and whatever its particular The Supreme Court held that "treaties, agreements,
designation. conventions, charters, protocols, declarations, memoranda
In Bayan Muna v. Romulo (2011), this Court held that an of understanding, modus vivendi and exchange of notes"
executive agreement is similar to a treaty, except that all refer to "international instruments binding at
the former (a) does not require legislative concurrence; international law." Both the 1969 Vienna Convention and
(b) is usually less formal; and (c) deals with a narrower the 1986 Vienna Convention do not distinguish between
range of subject matters. the different designations of these instruments. Instead,
Despite these differences, to be considered an executive their rules apply to all of those instruments as long as they
agreement, the following three requisites provided meet the common requirements.
under the Vienna Convention must nevertheless concur: Agreements concluded by the President which fall short of
(a) the agreement must be between states; (b) it must treaties are commonly referred to as executive agreements
be written; and (c) it must governed by international law. and are no less common in our scheme of government
The first and the third requisites do not obtain in the than are the more formal instruments: treaties and
case at bar. conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents
First, the Supreme Court said that CNMEG, the Chinese denominated "agreements" or "protocols".
contractor, is neither a government nor a government
agency, noting that Contract Agreement was not REQUISITES FOR VALIDITY
concluded between the Philippines and China, but (1) Treaty Making Capacity
between Northrail and CNMEG. Indeed, By the terms of Possessed by all states as an attribute of sovereignty.
the Contract Agreement, Northrail is a government-owned International organizations also possess treaty-making
or -controlled corporation, while CNMEG is a corporation capacity, although limited by the organization’s
duly organized and created under the laws of the People’s purpose.
Republic of China. Thus, both Northrail and CNMEG (2) Competence of the Representative/Organ Making the
entered into the Contract Agreement as entities with Treaty
personalities distinct and separate from the Philippine and Generally exercised by the head of state.
Chinese governments, respectively. Full Powers
Refers to the authority of a person to sign a treaty or
Second, neither can it be said that CNMEG acted as agent convention on behalf of a state.
of the Chinese government. The fact that the Chinese Plenipotentiary
Ambassador to Manila, in his letter dated 1 October Persons other than the head of state, head of
2003, described CNMEG as a "state corporation" and government or foreign minister must produce such
declared its designation as the Primary Contractor in the instrument in order to sign a treaty binding their
Northrail Project, did not mean it was to perform government. Such a person is called a plenipotentiary.
sovereign functions on behalf of China. That label was only (3) Parties Must Freely Give Consent: If consent was given
descriptive of its nature as a state-owned corporation, and erroneously, or it was induced by fraud, the treaty shall
did not preclude it from engaging in purely commercial or be voidable.
proprietary ventures. (4) Object and Subject Matter Must be Lawful
(5) Ratification in Accordance with the Constitutional
Finally, the Contract Agreement itself expressly stated that Process of the Parties Concerned
is to be governed by Philippine law, while as defined in the
VCLOT, a treaty or an executive agreement is governed by THE TREATY-MAKING PROCESS
international law. NEGOTIATION
State representatives discuss the terms and provisions of
But contrast the holding of the Court in Northrail with its the treaty.
ruling in the earlier case of Abaya v. Ebdane (2007), where
the High Court ruled that a loan agreement, coupled with
an exchange of notes between two governments,
constitutes an Executive Agreement. The Exchange of ADOPTION [ART. 9, VCLOT]
Notes indicated that the two governments have reached It means that the form and content have been settled by
an understanding concerning Japanese loans to be the negotiating States. It is preparatory to the
extended to the Philippines and that these loans were authentication of the text of the treaty and to its
aimed at promoting our country’s economic stabilization signature.
and development efforts.
PAGE 182
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
EXPRESSION OF CONSENT TO THE BOUND BY THE TREATY [ART. 11, Pimentel v. Executive Secretary (2005) : The power to ratify
VCLOT] is vested in the President, subject to the concurrence of the
Senate. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification.
Although the refusal of a state to ratify a treaty which has
REGISTRATION WITH UN been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of
Consent to be bound by the terms of a treaty may be the President alone, which cannot be encroached by SC via
expressed through: a writ of mandamus. SC has no jurisdiction over actions
(1) Signature, when the negotiator is authorized to sign the seeking to enjoin the President in the performance of his
treaty; official duties.
Signature alone would be sufficient to bind the state to the AMENDMENT OR MODIFICATION OF TREATY
obligations under the treaty if: General Rule: Consent of all parties is required.
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States Exception: If the treaty itself so allows, two States may
agreed that signature should have that effect; or modify a provision only insofar as their relationship inter se.
(c) if the State can be shown to have had the intention to
be bound by the signature (look at full powers of its RESERVATIONS
representative). [Art. 12(1), VCLOT] A unilateral statement made by a state upon entering a
treaty whereby it purports to exclude or modify the legal
(2) Ratification, the formal consent to the treaty given by effect of certain provision/s of the treaty in their application
the Head of State, sometimes in conjunction with the to the reserving state [Art. 19, VCLOT].
legislature; or
Exceptions: A reservation shall not operate to modify or
Under international law, ratification is necessary when: exclude the provisions of a treaty:
(a) the treaty provides for such consent to be expressed by (1) Where the treaty expressly prohibits reservations in
means of ratification; general;
(b) it is otherwise established that the negotiating States (2) Where the treaty expressly prohibits that specific
agreed that ratification should be required; reservation being made; or
(c) The representative of the State has signed the treaty (3) Where the reservation is incompatible with treaty’s
subject to ratification [Art.14 (1), VCLOT], that is, when object and purpose [Reservation to the Genocide
the intent was to make it subject to ratification. Conventions Advisory Opinion]
(3) Exchange of instruments Constituting the Treaty INVALID TREATIES
(4) Acceptance (1) If the treaty violates a jus cogens norm of international
(5) Approval law (void);
(6) Accession - The method by which a State, under certain (2) If the conclusion of a treaty is procured by threat or use
conditions, becomes a party to a treaty of which it is not of force (void);
a signatory and in the negotiation of which it did not (3) Error of fact, provided that such fact formed an essential
take part basis of a state’s consent to be bound;
(7) By any other means agreed by the parties (4) If the representative of a state was corrupted to consent
by another negotiating state;
DOCTRINE OF TRANSFORMATION (5) If consent was obtained through fraudulent conduct of
In Philippine Law, treaties have to be transformed in order another negotiating state;
to be part of Philippine law. (6) If the representative consented in violation of specific
restrictions on authority, provided:
A treaty is “transformed” when a treaty is ratified after it (a) the restriction was notified to the other negotiating
has been concurred in by the Senate [Sec. 21, Art.VII, States
Constitution]. After ratification, a treaty shall be deemed as (b) prior to the representative expressing such consent;
if legislated by our Legislature. (7) If consent was given in violation of provisions of internal
law regarding competence to conclude treaties that is
La Chemise Lacoste v. Fernandez (1984): Lacoste, a French manifest and of fundamental importance.
corporation, sued local counterfeiters before Philippine
courts. When the counterfeiters challenged its legal GROUNDS FOR TERMINATION
personality to sue before Philippine courts, the Court held (1) Expiration of the term, or withdrawal of a party in
that the Philippines has ratified international conventions accordance with the treaty;
for the protection of intellectual property, and it would (2) Extinction of a party to the treaty, when the treaty rights
frustrate the object of these conventions if Lacoste is and obligations would not devolve upon the successor-
barred from filing its claims directly in Philippine courts. state;
(3) Mutual agreement of parties;
PHILIPPINE LAW (4) Denunciation or desistance by a party;
In the Philippines, the negotiation of treaties and their (5) Supervening impossibility of performance;
ratification are executive functions, subject to concurrence (6) Conclusion of a subsequent inconsistent treaty;
of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the (7) Loss of subject matter;
Constitution, treaties must receive the concurrence of the (8) Material breach or violation of treaty
Senate before they may be effective. (9) Fundamental Change of Circumstance (Rebus sic
stantibus)
PAGE 183
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 184
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(2) No one shall be arbitrarily deprived of his nationality Note: Under Art. 32, the responsible State may not rely on
nor denied the right to change his nationality. the provisions of its internal law as justification for failure
to comply with its obligations to make reparations.
COVENANT RELATING TO THE STATUS OF STATELESS PERSONS
A stateless person is entitled to, among others, the right to Reparation for the taking of property requires
religion and religious instruction, access to courts, compensation. Reparation is due when there is a breach of
elementary education, public relief and assistance and an obligation.
rationing of products in short supply, as well as treatment
of no less favorable than that accorded to aliens. When an expropriation is legal, the amount of the
reparation is the logistical value of the property taken at
the time of the expropriation. However, when there is an
DOCTRINE OF STATE RESPONSIBILITY But a state may not be compelled to enforce a concession
It is a set of principles for when and how shall become agreement with a private entity through an action for
responsible for breaches of international obligation and specific performance:
who shall be held responsible for such.
“The impossibility of restitution and specific performance.
Every internationally wrongful act of a State entails the The claim would not even be realistic; such an action,
international responsibility of that State [Article 1, Draft which has the effect of turning back the clock would upset
Articles on the Responsibility of States for Internationally the current situation too profoundly and would have
Wrongful Acts or “Draft Articles”] unforeseeable practical consequences. Furthermore, if
awarded now and the contract would still be allowed to
ELEMENTS [ARTICLE 2, DRAFT ARTICLES]: exist indefinitely, the amount would be so great it would be
There is an internationally wrongful act of a State when absurd.
conduct consisting of an action or omission:
(1) Is attributable to the State under international law; and A rule of reason therefore dictates a result which conforms
(2) Constitutes a breach of an international obligation of a to international law, evidenced by state practice and the
State law of treaties, and to governing principles of English and
American contract law. The conclusion is thus: when by
Note: The characterization of an act of a State as exercise of sovereign power a State committed a
internationally wrongful is governed by international law. fundamental breach of a concession agreement by
Such characterization is not affected by the repudiating it through a nationalization of the enterprise
characterization of the same act as lawful by internal law. and its assets in a manner which implies finality, the
[Article 3, Draft Articles] concessionaire is not entitled to call for specific
performance by the Government of the agreement and
ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT reinstatement of his contractual rights, but his sole remedy
ARTICLES is an action for damages” [BP v. Libya (1973-74].
(1) Conducts of organs of a State [Art. 4]
(2) Conducts of persons or entities exercising elements of FORMS OF REPARATION
governmental authority [Art. 5] Restitution [Art. 35]
(3) Conducts of organs places at the disposal of a State by A State responsible for an internationally wrongful act is
another State [Art. 6] under an obligation to make restitution, that is, to re-
(4) Acts done in excess of authority or in contravention of establish the situation which existed before the wrongful
instructions [ultra vires acts] [Art. 7] act was committed, provided and to the extent that
(5) Conduct directed or controlled by a State [Art. 8] restitution:
(6) Conduct carried out in the absence or default of the (1) is not materially impossible;
official authorities [Art. 9] (2) does not involve a burden out of all proportion to the
(7) Conduct of an insurrectional or other movements [Art. benefit deriving from restitution instead of
10] compensation.
(8) Conduct acknowledged and adopted by a State as its
own [Art. 11] Compensation [Art. 36]
The State responsible for an internationally wrongful act is
CONSEQUENCES OF STATE RESPONSIBILITY under an obligation to compensate for the damage caused
The State responsible for the wrongful act is under the thereby, insofar as such damage is not made good by
obligation to: restitution.
(1) Cease the act if it is still continuing; and
(2) Offer appropriate assurances and guarantees of non- The compensation shall cover any financially assessable
repetition [Art. 30, Draft Articles] damage including loss of profits insofar as it is established.
DUTY TO MAKE REPARATIONS [ART. 31, DRAFT ARTICLES] Satisfaction [Art. 37]
(1) The responsible State is under an obligation to make The State responsible for an internationally wrongful act is
full reparation for the injury caused by the under an obligation to give satisfaction for the injury
internationally wrongful act. caused by that act insofar as it cannot be made good by
(2) Injury includes any damage, whether material or moral, restitution or compensation.
caused by the internationally wrongful act of a State.
PAGE 185
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Satisfaction may consist in an acknowledgement of the law. It also ruled that state assets are also immune from
breach, an expression of regret, a formal apology or execution in connection with such claim.
another appropriate modality.
The case arose from a series of Italian domestic court
Satisfaction shall not be out of proportion to the injury and decisions awarding civil damages against Germany for
may not take a form humiliating to the responsible State. forced labor committed during World War II. While
Germany has acknowledged that it committed grave
breaches of international humanitarian law during the war,
it nonetheless insisted that claims against it should be
DOCTRINE OF STATE IMMUNITY This means that in the application of rules, the Court
It refers to a principle by which a State, its agents, and should have considered what is more beneficial to
property are immune from the jurisdiction of another State humanity: the cold application of the principle of sovereign
[Magallona]. This principle is premised on the juridical immunity or the primacy of protecting civilian and POWS in
equality of States, according to which a State may not times of armed conflict. While it is true that sovereign
impose its authority or extend its jurisdiction to another equality of states is a foundational principle of the law, the
State without the consent of the latter through a waiver of same is true also of the principle that that human rights
immunity. For example, domestic courts must thus decline have also ceased to be purely domestic issue.
to hear cases against foreign sovereigns out of deference
to their role as sovereigns. The fact that the ICJ gave primacy to the principle of
sovereign immunity from suits ignores why these rules
Absolute Sovereign Immunity- A Sate cannot be sued in a exist in the first place; that is, to protect the interests of
foreign court no matter what the act it is sued for individuals and not the interest of an artificial being that is
a state. As some have noted, international law protects for
Restrictive Sovereign Immunity- A State is immune from instance, the environment—not because the ocean or the
suits involving governmental actions (jure imperii), but not air should be protected as such. We do so ultimately
from those arising from commercial or non-governmental because human beings require clean water and air.
activity (jure gestionis).
True, the Court expressly said that its ruling does not affect
In its February 3, 2012 decision in the case of Germany v. the liability of state agents when they themselves commit
Italy, the International Court of Justice held that the egregious acts. But why should there be a distinction?
principle of sovereign immunity from suits is a customary Precisely because a state can only act only though its
norm of international law that holds, unless waived by the agent, there should be no distinction hence between suits
state concerned. The ICJ stressed that such immunity against the state itself and against its agents.”
applies even if the claim against the state is for violation of
a peremptory norm – a jus cogens norm – in international
PAGE 186
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
In the Northrail case [China National Machinery & Comment of the OSG is it manifested that the DFA has
Equipment Corp. (Group) v. Sta. Maria, et al. (2012)]: The endorsed GTZ’s claim, or that the OSG had solicited the
Supreme Court, on the question of which agency DFA’s views on the issue. The arguments raised by the
determines whether an entity is immune from suit in OSG are virtually the same as the arguments raised by
Philippine jurisdiction, held that: GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on
“The question now is whether any agency of the Executive the issue. The Comment filed by the OSG does not inspire
Branch can make a determination of immunity from suit, the same degree of confidence as a certification from the
which may be considered as conclusive upon the courts. DFA would have elicited.(Emphasis supplied.)
This Court, in Department of Foreign Affairs (DFA) v.
National Labor Relations Commission (NLRC), emphasized In the case at bar, CNMEG offers the Certification executed
the DFA’s competence and authority to provide such by the Economic and Commercial Office of the Embassy of
necessary determination, to wit: the People’s Republic of China, stating that the Northrail
Project is in pursuit of a sovereign activity. Surely, this is not
The DFA’s function includes, among its other mandates, the kind of certification that can establish CNMEG’s
the determination of persons and institutions covered by entitlement to immunity from suit, as Holy
diplomatic immunities, a determination which, when See unequivocally refers to the determination of the
challenge, (sic) entitles it to seek relief from the court so “Foreign Office of the state where it is sued.”
as not to seriously impair the conduct of the country's
foreign relations. The DFA must be allowed to plead its Further, CNMEG also claims that its immunity from suit
case whenever necessary or advisable to enable it to has the executive endorsement of both the OSG and the
help keep the credibility of the Philippine government Office of the Government Corporate Counsel (OGCC),
before the international community. When international which must be respected by the courts. However, as
agreements are concluded, the parties thereto are expressly enunciated in Deutsche Gesellschaft, this
deemed to have likewise accepted the responsibility of determination by the OSG, or by the OGCC for that matter,
seeing to it that their agreements are duly regarded. In does not inspire the same degree of confidence as a DFA
our country, this task falls principally of (sic) the DFA as certification. Even with a DFA certification, however, it
being the highest executive department with the must be remembered that this Court is not precluded from
competence and authority to so act in this aspect of the making an inquiry into the intrinsic correctness of such
international arena. (Emphasis supplied.) certification. “
Further, the fact that this authority is exclusive to the DFA In the same case, the High Court said that an agreement to
was also emphasized in this Court’s ruling in Deutsche arbitrate is an implied waiver of immunity:
Gesellschaft:
“In the United States, the Foreign Sovereign Immunities
It is to be recalled that the Labor Arbiter, in both of his Act of 1976 provides for a waiver by implication of state
immunity. In the said law, the agreement to submit
rulings, noted that it was imperative for petitioners to
disputes to arbitration in a foreign country is construed
secure from the Department of Foreign Affairs “a as an implicit waiver of immunity from suit. Although
certification of respondents’ diplomatic status and there is no similar law in the Philippines, there is reason
entitlement to diplomatic privileges including immunity to apply the legal reasoning behind the waiver in this
from suits.” The requirement might not necessarily be case….
imperative. However, had GTZ obtained such certification
from the DFA, it would have provided factual basis for its All disputes or controversies arising from this Contract
claim of immunity that would, at the very least, establish which cannot be settled between the Employer and the
a disputable evidentiary presumption that the foreign Contractor shall be submitted to arbitration in accordance
party is indeed immune which the opposing party will with the UNCITRAL Arbitration Rules at present in force
have to overcome with its own factual evidence. We do and as may be amended by the rest of this Clause. The
not see why GTZ could not have secured such certification appointing authority shall be Hong
Kong International Arbitration Center. The place of
or endorsement from the DFA for purposes of this
arbitration shall be in Hong Kong at Hong Kong
case. Certainly, it would have been highly prudential for International Arbitration Center (HKIAC).
GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this Under the above provisions, if any dispute arises between
juncture, we do not see any evidence that the DFA, the Northrail and CNMEG, both parties are bound to submit
office of the executive branch in charge of our diplomatic the matter to the HKIAC for arbitration. In case the HKIAC
relations, has indeed endorsed GTZ’s claim of immunity. It makes an arbitral award in favor of Northrail, its
may be possible that GTZ tried, but failed to secure such enforcement in the Philippines would be subject to the
certification, due to the same concerns that we have Special Rules on Alternative Dispute Resolution (Special
discussed herein. Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2
and 13.3 of the Special Rules, the party to arbitration
Would the fact that the Solicitor General has endorsed GTZ’s wishing to have an arbitral award recognized and enforced
claim of State’s immunity from suit before this Court in the Philippines must petition the proper regional trial
sufficiently substitute for the DFA certification? Note that court (a) where the assets to be attached or levied upon is
the rule in public international law quoted in Holy See located; (b) where the acts to be enjoined are being
referred to endorsement by the Foreign Office of the State performed; (c) in the principal place of business in the
where the suit is filed, such foreign office in the Philippines Philippines of any of the parties; (d) if any of the parties is
being the Department of Foreign Affairs. Nowhere in the
PAGE 187
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
The propriety of governmental acts should be put to the If there is a prima facie case, a warrant of surrender will be
test of international standards. The treatment of an alien, drawn and the fugitive will be delivered to the state of
in order to constitute an international delinquency, should origin.
amount to an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and
impartial man would readily recognize its insufficiency. The evaluation process partakes of the nature of a criminal
[Neer Claim (1926)] investigation, having consequences which will result in
deprivation of liberty of the prospective extradite. A favorable
EXTRADITION action in an extradition request exposes a person to
The surrender of a person by one state to another state eventual extradition to a foreign country, thus exhibiting the
where he is wanted for prosecution or, if already convicted, penal aspect of the process.
for punishment. [Cruz]
The evaluation process itself is like a preliminary
PD 1086: The removal of an accused from the Philippines investigation since both procedures may have the same
with the object of placing him at the disposal of foreign result – the arrest and imprisonment of the respondent.
authorities to enable the requesting state or government The basic rights of notice and hearing are applicable in
to hold him in connection with any criminal investigation criminal, civil and administrative proceedings. Non-
directed against him in connection with any criminal observance of these rights will invalidate the proceedings.
investigation directed against him or the execution of a Individuals are entitled to be notified of any pending case
penalty imposed on him under the penal or criminal law of affecting their interests, and upon notice, may claim the
the requesting state or government. right to appear therein and present their side. [Secretary of
Justice v. Lantion (2000)]
Basis: Treaty between the state of refuge and the state of
origin. AS DISTINGUISHED FROM DEPORTATION
Deportation – is the expulsion of an alien who is considered
FUNDAMENTAL PRINCIPLES undesirable by the local state, usually but not necessarily
Extradition is based on the consent of the state of the state to his own state. It is usually a unilateral act of the local
of asylum as expressed in a treaty or manifested as an act state and is made in its own interests.
of goodwill.
Principle of speciality – a fugitive who is extradited may be
tried only for the crime specified in the request for
extradition and included in the list of offenses in the
extradition. International Human Rights
Any person extradited, whether he be a national of the Law
requesting state, of the state of refuge or of another state.
Definition (asked 3 times in the bar): Human rights are
Political and religious offenders are generally not subject those fundamental and inalienable rights which are
to extradition. essential for life as a human being. They pertain to rights
of an individual as a human being which are recognized by
In the absence of special agreement, the offense must the international community as a whole through their
have been committed within the territory or against the protection and promotion under contemporary
interests of the demanding state. international law.
Rule of double criminality: The act for which the extradition CLASSIFICATION OF HUMAN RIGHTS
is sought must be punishable in both the requesting and (1) First generation – consists of civil and political rights;
requested states. (2) Second generation – consists of economic, social and
cultural rights;
Procedure (3) Third generation – refers to right to development, right
Surrender of refugee is sought: to peace, and right to environment.
Request for his extradition is presented through
diplomatic channels to the state of refuge, with the First generation Second generation
necessary papers for identification.
Obligatory Force under International Law
strictly (or objectively) relatively obligatory: States
obligatory, whatever the are required to
Receipt of the request economic or other progressively achieve the
conditions of the states full realization of these
obligated rights “to the maximum of
their available resources”
A judicial investigation will be conducted by the state of Derogation/ Restriction, when allowed
refuge to ascertain if the crime is covered by the
extradition treaty and if there is a prima facie case may only be derogated may be restricted for the
against the fugitive according to its own laws. in a public emergency general welfare, with or
without an “emergency
that threatens the
independence or security
of a State Party.”
PAGE 189
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 190
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
IHL has Two Branches: Article 3 is indifferent to the legal character of such group.
(1) Law of The Hague, which establishes the rights and
obligations of belligerents in the conduct of military It must be noted that Article 3 is to be applied as a
operations, and limits the means of harming the minimum.
enemy; and
(2) Law of Geneva, which is designed to safeguard military Common Article 3 and Protocol II
personnel who are no longer taking par in the fighting Protocol II develops and supplements common Article 3
and people not actively engaged in hostilities (i.e. [Art. 1, Protocol II]. It applies to:
civilians) (INTERNATIONAL COMMITTEE OF THE RED (1) all armed conflicts which take place in the territory of a
CROSS [“ICRC”]). State Party,
(2) between its armed forces and dissident armed forces or
Note: The two branches draw their names from the cities other organized groups
where each was initially codified. With the adoption of the (3) which, under responsible command, exercise such
Additional Protocols of 1977, which combine both control over a part of its territory
branches, that distinction is now of merely historical and (4) as to enable to carry out sustained and concerted
instructive value (ICRC). military operations and to implement the Protocol.
support in accordance with the purposes and principles of (6) Combatants and civilian who are captured by authority
the Charter (1970 Resolution 2625 [XXV]) of the party to a dispute are entitled to respect for their
right to life, dignity, conviction, and other personal
PRINCIPLES OF INTERNATIONAL HUMANITARIAN rights. They shall be protected against acts of violence
LAW or reprisals. [Legality of the Threat or Use of Nuclear
Combatants: Members of the armed forces of a Party to a Weapons, Advisory Opinion by the ICJ]
conflict [Art. 3(2), Protocol 1]. They have the right to
participate directly and indirectly in hostilities. [Art 43(2) PRISONERS OF WAR
Protocol 1] Article 4, Geneva Convention: Prisoners of war are persons
belonging to one of the following categories:
Note: Only combatants are allowed to engage in hostilities. (1) Members of the armed forces of a Party to the conflict,
including militias or volunteer corps
A combatant is allowed to use force, even to kill, and will (2) Militias or volunteer corps operating in or outside their
not be held personally responsible for his acts, as he would own territory, even if such territory is occupied
be where he to the same as a normal citizen [Gasser] provided:
(a) They are being commanded by a person responsible for
Hors de combat: Under Art. 41(2) of Protocol I, a person is his subordinates
hors de combat if he: (b) Have a fixed distinctive sign recognizable at a distance
(1) Is in the power of an adverse party to the conflict; (c) Carries arms openly
(2) He clearly expresses an intention to surrender; or (d) Conducts their operations in accordance with the laws
(3) He has been rendered unconscious or is otherwise and customs of war
incapacitated by wounds or sickness, and is therefore (3) Members of regular armed forces who profess
incapable of defending himself, provided that in any of allegiance to a government or authority not recognized
these cases, he abstains from any hostile act and does by the Detaining Power
not attempt to escape. (4) Civilians who accompany the armed forces, provided
that they have received authorization from the armed
Persons hors de combat shall be protected and treated forces which they accompany
humanely without any adverse distinction. Their right to (5) Members of crews of merchant marine and the crews of
life and physical and moral integrity shall be respected civil aircraft of the Parties to the conflict
(6) Inhabitants of a non-occupied territory who on the
Protected Persons: They are those who enjoy or are entitled approach of the enemy spontaneously take up arms to
to protection under the Geneva Conventions. Categories of resist the invading forces, without having had time to
protected persons include: form themselves into regular armed units, provided
(1) The wounded, the sick, and shipwrecked; they carry arms openly and respect the laws and
(2) Prisoners of War customs of war
(3) Civilians (7) Persons belonging to the armed forces of the occupied
territory
For purposes of protection, civilians are further classified
as: LAW ON NEUTRALITY
(1) Civilians who are victims of conflict in countries involved Neutrality is the legal status of a State in times of war, by
(2) Civilians in territories of the enemy; which it adopts impartiality in relation to the belligerents
(3) Civilians in occupied territories; with their recognition.
(4) Civilians internees
The Hague Convention Respecting the Rights and Duties of
TREATMENT OF CIVILIANS Neutral Powers (Oct. 18, 1907) governs the status of
Fundamental Principles of IHL neutrality by the following rules:
(1) Parties to an armed conflict, together with their armed (1) The territory of the neutral Power is inviolable;
forces, do not have unlimited choice of methods or (2) Belligerents are forbidden to move troops or munitions
means of warfare. They are prohibited from employing of war and supplies across the territory of a neutral
weapons or means of warfare that cause unnecessary Power;
damage or excessive suffering. (3) A neutral power is forbidden to allow belligerents to
(2) Parties to an armed conflict shall, at all times, use its territory for moving troops, establishing
distinguish between civilian population and the communication facilities, or forming corps of
combatants (Principle of Distinction). Civilians shall be combatants.
spared from military attacks which shall be directed (4) Troops of belligerent armies received by a neutral
only against military objectives. Power in its territory shall be interned by away from the
(3) Persons hors de combat are those who have been theatre of war;
injured in the course of hostile battle action and are no (5) The neutral Power may supply them with food, clothing
longer able to directly take part in hostilities. They shall or relief required by humanity;
be protected and treated humanely without any (6) If the neutral Power receives escaped prisoners of war,
adverse distinction. Their right to life and physical and it shall leave them at liberty. It may assign them a
moral integrity shall be respected. place of residence if it allows them to remain in its
(4) It is prohibited to kill or injure an enemy who is hors de territory;
combat or who surrenders. (7) The neutral power may authorize the passage into its
(5) The wounded and the sick shall be protected and cared territory of the sick and wounded if the means of
for by the party to the conflict which has them in its transport bringing them does not carry personnel or
power. Protection shall also apply to medical materials of war
personnel, establishments, transports and material.
PAGE 192
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
The Third Geneva Convention (Prisoners of War) allows Q: In an armed conflict, isn’t the use of nuclear weapons
neutral Powers to cooperate with the parties to the armed illegal, pursuant to Article 6, ICCPR, which safeguards the
conflict in making arrangements for the accommodation in right to life?
the former’s territory of the sick and wounded prisoners of A: While it is true that ICCPR protection does not cease in
war. times of war, except certain derogations allowed under Art.
4 in times of emergency, what applies in an armed conflict
Interned persons among the civilian population, in is the lex specialis, which is the law on armed conflict (IHL).
particular the children, the pregnant women, the mothers It determines whether the taking of life in times of war has
with infants and young children, wounded and sick, may be been arbitrary.
accommodated in a neutral state in the course of
hostilities, by agreement between the parties to the RA 9851 - PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL
conflict. HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST
HUMANITY (DEC. 11, 2009)
PROTECTING POWER (1) The Philippines renounces war as an instrument of
A protecting power is a State or an organization: national policy, adopts the generally accepted
(1) not taking part in the hostilities, principles of international law as a part of the law of
(2) which may be a neutral state, the land.
(3) designated by one party to an armed conflict with the (2) The state adopts the generally accepted principles of
consent of the other international law, including the Hague Conventions of
(4) to safeguard or protect its humanitarian interests in the 1907, the Geneva Conventions on the protection of
conflict, the performance of which IHL defines specific victims of war and international humanitarian law, as
rights and duties. part of the law our nation
.
Crimes and Penalties
Crime Definition/Category Specific Acts Punishable Penalty*
War Crimes or In case of an (1) Willful killing; Reclusion Temporal in
Crimes against international armed (2) Torture or inhuman treatment, including its medium to maximum
International conflict , grave breaches biological experiments; period and a fine
Humanitarian Law of the Geneva (3) Willfully causing great suffering , serious ranging from One
[Section 4] Conventions of 12 injury to body or health; hundred thousand pesos
August 1949, committed (4) Extensive destruction and appropriation of (Php 100,000.00) to
against persons or property not justified by military necessity Five hundred thousand
property protected by and carried out unlawfully and wantonly; pesos (Php
relevant Geneva (5) Willfully depriving a prisoner of war or other 500,000.00).
Convention protected person of the rights of fair and Reclusion Perpetua and
regular trial; a fine ranging from Five
(6) Arbitrary deportation or forcible transfer of hundred thousand pesos
population or unlawful confinement; (Php 500,000.00) to
(7) Taking of hostages; One million pesos (Php
(8) Compelling a prisoner a prisoner of war or 1,000,000.00) shall be
other protected person to serve in the forces imposed - When justified
of a hostile power; and by the extreme gravity of
(9) Unjustifiable delay in the repatriation of the crime (e.g., results in
prisoners of war or other protected persons, death or serious physical
against persons taking no active part in the injury, or constitutes
hostilities, including member of the armed rape)
forces who have laid down their arms and [Section 7]
those placed hors de combat by sickness,
wounds, detention or any other cause
In case of a non- (1) Violence to life and person, in particular, Reclusion Temporal in
international armed willful killings, mutilation, cruel treatment its medium to maximum
conflict, serious and torture; period and a fine
violations of common (2) Committing outrages upon personal dignity, ranging from One
Article 3 to the four (4) in particular, humiliating and degrading hundred thousand pesos
Geneva Conventions of treatment; (Php 100,000.00) to
12 August 1949 (3) Taking of hostages; and Five hundred thousand
(4) The passing of sentences and the carrying pesos (Php
out of executions without previous judgment 500,000.00).
pronounced by a regularly constituted court… Reclusion Perpetua and
a fine ranging from Five
hundred thousand pesos
(Php 500,000.00) to
One million pesos (Php
1,000,000.00) shall be
imposed - When justified
by the extreme gravity of
the crime (e.g., results in
PAGE 193
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 195
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
*Accessory Penalty: Forfeiture of proceeds, property and For the purposes of this section, orders to commit
assets derived, directly or indirectly, from that crime, genocide or other crimes against humanity are manifestly
without prejudice to the rights of bona fide third (3rd) unlawful. [Sec. 12]
parties. Plus, corresponding accessory penalties under the
RPC, especially where the offender is a public officer. Protection of Witnesses and Victims [Sec. 13 and 14]
The Philippine court shall take appropriate measures to
Criminal Responsibility protect the safety, physical and physiological well-being,
Principal – if he/she acts: dignity and privacy of victims and witnesses.
(1) Commits such a crime, whether as an individual, jointly
with another or through another person, regardless of As an exception to the general principle of public hearings,
whether that other person is criminally responsible; the court may, to protect the victims and witnesses or an
(2) Orders, solicits or induces the commission of such a accused, conduct any part of the proceedings in camera or
crime which in fact occurs or is attempted; allow the presentation of evidence by electronic or other
(3) In any other way contributes to the commission or special means.
attempted commission of such a crime by a group of
person acting with a common purpose. Such Where the disclosure of evidence or information pursuant
contribution shall be intentional and shall either: to this Act may lead to the grave endangerment of the
(a) be made with the aim of furthering the criminal activity security of a witness for his/her family, the prosecution
or criminal purpose of the group, where such activity or may, for the purposes of any proceedings conducted prior
purpose involves the commission of a crime defined in to the commencement of the trial, withhold such evidence
this Act; or or information and instead submit a summary thereof.
(b) be made in the knowledge of the intention of the group
to commit the crime. [Sec. 8(a)] The court shall follow the principles relating to the
reparations to, or in respect of, victims, including
Accomplice - facilitates the commission of a crime defined restitution, compensation and rehabilitation. The court
and penalized in this Act by aiding, abetting or otherwise may make an order directly against a convicted person
assisting in its commission or attempted commission, specifying appropriate reparations to, or in respect of,
including providing the means for its commission. [Sec. victims, including restitution, compensation and
8(b)] rehabilitation.
Attempt to commit the crimes specified (in attempted States Jurisdiction Over the Person of the Accused
stage) is also punishable. [Sec. 8(c)] Requirement (any of the following):
(1) The accused is a Filipino citizen;
This Act shall apply equally to all persons without any (2) The accused, regardless of citizenship or residence, is
distinction based on official capacity. [Sec. 9] present in the Philippines; or
(3) The accused has committed the said crime against a
A superior shall be criminally responsible as a principal for Filipino citizen.
such crimes committed by subordinates under his/her
effective authority and control as the case may be, as a Philippine authorities may dispense with the investigation
result of his/her failure to properly exercise control over or prosecution if another court or international tribunal is
such subordinates, where: already conducting the investigation or undertaking the
(1) That superior either knew… or should have known that prosecution of such crime. Instead, the authorities may
the subordinates were committing or about to commit surrender or extradite suspected or accused persons in the
such crimes; Philippines to the appropriate international court.
(2) That superior failed to take all necessary and
reasonable measures within his/her power to prevent No criminal proceedings shall be initiated against foreign
or repress their commission or to submit the matter to nationals if they have been tried by a competent court
the competent authorities for investigation and outside the Philippines in respect of the same offense and
prosecution. acquitted, or having been convicted, already served their
sentence. [Sec. 17]
Crimes defined and penalized under RA 9851 do not
prescribe. [Sec. 11] Where to file cases? RTC. The Supreme Court shall
designate special courts to try cases involving crimes
Orders from Superior - The fact that a crime defined and punishable under this Act. [Sec. 18]
penalized under this Act has been committed by a person
pursuant to an order of a government or a superior,
whether military or civilian, shall not relieve that person of
criminal responsibility unless the person was under a legal
obligation to obey orders of the government or the
Law of The Sea
superior in question, did not know that the order was
unlawful, and the order was not manifestly unlawful. The Convention on Law of the Sea (UNCLOS) is the body of
treaty rules and customary norms governing the use of the
PAGE 197
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
sea, the exploitation of its resources, and the exercise of (2) Within its archipelagic waters, the archipelagic state
jurisdiction over maritime regimes. [Magallona] shall recognize traditional fishing rights and other
legitimate activities of immediately adjacent
It is the branch of PIL which regulates the relations of neighboring states.
states with respect to the use of the oceans. (3) The archipelagic state shall respect existing submarine
cables laid by other states and “passing through its
BASELINES waters without making a landfall”.
The line from which a breadth of the territorial sea and (4) Right of archipelagic sea lanes passage: It is the right of
other maritime zones, such as the “contiguous zone” and foreign ships and aircraft to have continuous,
the “exclusive economic zone” is measured. Its purpose is expeditious, and unobstructed passage in sea lanes and
to determine the starting point to begin measuring air routes through or over archipelagic waters and the
maritime zones boundary of the coastal state. adjacent territorial sea of the archipelagic state.
NORMAL BASELINE – the territorial sea is the low-water line Note: the archipelagic state designates the sea lanes as
along the coast as marked on large-scale charts officially proposals to the “competent international organization”. It
recognized by the coastal state. [Art. 5, UN Convention on is the International Marine Organization (IMO) which
the Law of the Sea, or UNCLOS] adopts them through Art. 53(9) of the UNCLOS which
states that “the Organization may adopt only sea lanes
STRAIGHT BASELINE– where the coastline is deeply indented and traffic separation schemes as may be agreed with the
or cut into, or if there is a fringe of islands along the coast archipelagic state, after which such state may designate,
in its immediate vicinity, the method of straight lines prescribe or substitute them.”
joining the appropriate points may be employed in drawing
the baseline from which the breadth of the territorial sea is Special Issue: Under Art. 1 of the 1987 Constitution, the
measured [Art. 7, UNCLOS] archipelagic waters of the Philippines are characterized as
forming part of “the internal waters of the Philippines.”
ARCHIPELAGIC STATES However, under the UNCLOS, archipelagic waters consist
It is a state made up of wholly one or more archipelagos. It mainly of the “waters around, between, and connecting the
may include other islands. islands of the archipelago, regardless of breadth or
dimension.”
An archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural features Thus, conversion from internal waters under the
which are so closely related that such islands, waters and Constitution into archipelagic waters under the UNCLOS
natural features form an intrinsic geographical, economic gravely derogates the sovereignty of the Philippine state.
and political entity, or which historically have been Remember that sovereignty over internal waters precludes
regarded as such. the right of innocent passage and other rights pertaining
to archipelagic waters under the UNCLOS.
TWO KINDS OF ARCHIPELAGOS:
(1) Coastal — situated close to a mainland and may be Also, under Art. 47 of the UNCLOS, it is not mandatory
considered part thereof, i.e. Norway upon concerned states to declare themselves as
(2) Mid-Ocean — situated in the ocean at such distance archipelagic states; the Philippines did, under its new
from the coasts of firm land, i.e. Indonesia (note: The baselines law, RA 9522 – a legislative act upheld as
Archipelagic State provisions apply only to mid-ocean constitutional by the Supreme Court in Magallona v.
archipelagos composed of islands, and NOT to a partly Executive Secretary. The result could be disastrous, at
continental state.) least, in Dean Magallona’s view.
ARCHIPELAGIC SEA LANES PASSAGE Innocent passage: Navigation through the territorial sea
Other Rights with Respect to Archipelagic Waters w/o entering internal waters, going to internal waters, or
(1) Rights under existing agreement on the part of third coming from internal waters and making for the high seas.
states should be respected by the archipelagic state. It must:
PAGE 198
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(1) involve only acts that are required by navigation or by Geographically disadvantaged states (those who have no
distress, and EEZ of their own or those coastal states whose
(2) not prejudice the peace, security, or good order of the geographical situations make them dependent on the
coastal state. exploitation of the living resources of the EEZ of other
states) and land-locked states have the right to participate,
Transit passage —The right to exercise freedom of on equitable basis, in the exploitation of the surplus of the
navigation and over flight solely for the purpose of living resources in the EEZ of coastal states of the same sub
continuous and expeditious transit through the straights region or region.
used for international navigation. The right cannot be
unilaterally suspended by the coastal state. Note: a coastal state whose economy is overwhelmingly
dependent on the exploitation of its EEZ is not required to
Innocent Passage Transit Passage share its resources.
Pertains to navigation of Includes the right of over JURISDICTION OF COASTAL STATE OVER EEZ:
ships only flight (1) establishment and use of artificial islands, installations
Requires submarines and Submarines are allowed to and structures,
other underwater vehicles navigate in “normal mode” (2) scientific research,
to navigate on the surface – i.e. submerged (3) the preservation and protection of marine environment.
and show their flag.
Can be suspended, but Cannot be suspended Under Art. 58 of the UNCLOS, all states enjoy the freedom
under the condition that it of navigation, over flight, and laying of submarine cables
does not discriminate and pipelines in the EEZ of coastal states.
among foreign ships, and
such suspension is The coastal state has the right to enforce all laws and
essential for the protection regulations enacted to conserve and manage the living
of its security, and resources in its EEZ. It may board and inspect a ship, arrest
suspension is effective only a ship and its crew and institute judicial proceedings
after having been duly against them.
published (Art. 25,
UNCLOS) Note: In detention of foreign vessels, the coastal state has
In the designation of sea Designation of sea lanes the duty to promptly notify the flag state of the action
lanes and traffic separation and traffic separation taken.
schemes, the coastal state schemes is subject to
shall only take into account adoption by competent Conflicts regarding the attribution of rights and jurisdiction
the recommendations of international organization in the EEZ must be resolved on the basis of equity and in
the competent upon the proposal and the light of all relevant circumstances, taking into account
international organization. agreement of states the respective importance of the interests involved to the
bordering the straits. parties as well as to the international community as a
whole. [Art. 59, UNCLOS]
EXCLUSIVE ECONOMIC ZONE (ASKED 1 TIME IN THE
BAR) CONTINENTAL SHELF
A stretch of area up to 200 miles from its baselines. EXTENDED CONTINENTAL SHELF
Within this zone, a State may regulate nonliving and living It is the seabed and subsoil of the submarine areas
resources, other economic resources, artificial installations, extending beyond the territorial sea of the coastal state
scientific research, and pollution control. throughout the natural prolongation of its lands territory up
to
NOTE: Under the UNCLOS, states have the sovereign right (1) the outer edge of the continental margin, or
to exploit the resources of this zone, but shall share that (2) a distance of 200 nautical miles from the baselines of
part of the catch that is beyond its capacity to harvest. the territorial sea where the outer edge of the
continental margin does not extend up to that
Resources covered by sovereign rights of coastal states in distance.
the EEZ include living and non-living resources in the
waters of the seabed and its subsoil. Continental margin the submerged prolongation of the
land mass of the continental state, consisting of the
Note: Coastal states have the primary responsibility to continental shelf proper, the continental slope, and the
utilize, manage and conserve the living resources within continental rise
their EEZ, i.e. ensuring that living resources are not
endangered by overexploitation, and the duty to promote LIMITS OF THE CONTINENTAL SHELF
optimum utilization of living resources by determining Juridical or Legal Continental Shelf: 0-200 nautical miles
allowable catch. from baselines.
If after determining the maximum allowable catch, the Extended Continental Shelf: 200-350 nautical miles from
coastal state does not have the capacity to harvest the baselines depending on geomorphologic or geological
entire catch, it shall give other states access to the surplus data and information
by means of arrangements allowable under the UNCLOS.
The UNLCOS, however, does not specify the method for When the continental shelf extends beyond 200 nautical
determining “allowable catch.” Hence, states may miles, the coastal state shall establish its outer limits.
establish illusory levels.
PAGE 199
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
At any rate, the continental shelf shall not extend beyond Compulsory Procedures that States Parties Can Choose
350 nautical miles from the baseline of the territorial sea, From:
*
or 100 nautical miles from the 2500-meter isobath (or the (1) International Tribunal for the Law of the Sea ;
point where the waters are 2500 meters deep). (2) International Court of Justice;
*
(3) Arbitral Tribunal ;
*
RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF (4) Special Arbitral Tribunal ;
The continental shelf does not form part of the territory of
the coastal state. The choice of the State Parties must be expressed in a
written declaration, which is revocable and replaceable.
It only has sovereign rights with respect to the exploration
and exploitation of its natural resources, including the Jurisdiction of Court or Tribunal
mineral and other non-living resources of the seabed and The court or Tribunal has jurisdiction over:
subsoil together with living organisms belonging to the (1) any dispute submitted to it concerning the application
sedentary species. or interpretation of UNCLOS
(2) any dispute concerning the interpretation or application
For example, the coastal state has the exclusive right to of an international agreement:
authorize and regulate oil-drilling on its continental shelf. (a) related to the purposes of the UNCLOS
(b) when such dispute is submitted to it in accordance with
These rights are exclusive in the sense that when the that agreement.
coastal state does not explore its continental shelf or
exploit its resources, no one may undertake these activities Composition of the International Tribunal for the Law of the
without the coastal state’s consent. Sea (ITLOS)
It is composed of 21 “independent members elected from
NOTE: In instances where the continental margin is more among persons enjoying the highest reputation for fairness
than 200 nautical miles from the baselines, and hence and integrity and of recognized competence in the field of
extends beyond the EEZ, the coastal state has the the law of the sea”.
exclusive right to exploit mineral and non-living resources
in the “excess area.” The composition shall also be representative of the world’s
principal legal systems and of equitable geographical
RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS. EEZ distribution.
Continental Shelf EEZ
Jurisdiction of ITLOS
Duty to No duty Coastal state is Its jurisdiction covers all disputes submitted to it in
manage obliged to manage accordance with the UNCLOS. It also includes matters
and and conserve living submitted to it under any other agreement.
conserve resources in the
living EEZ Applicable Laws in Settlement of Disputes by the ITLOS
resources The Tribunal shall apply the UNLCOS and other rules of
Rights of Relate to mineral Have to do with international law not incompatible with the UNCLOS. It
the coastal and other non- natural resources of may also decide a case ex aequo et bono (what is equitable
state as to living resources of both waters super and just) if the parties so agree.
natural the seabed and the adjacent to the
resources subsoil seabed and those Notes on the Philippine Arbitral Case Over the Chinese
of the seabed and Nine-Dash Claim
subsoil
Rights of Apply only to Do not pertain to CHINESE NINE-DASH LINE CLAIM
the coastal sedentary species sedentary species This declaration, first made known internationally in 1947,
state as to of such living features a map with a series of nine dashes or dotted lines
living resources forming a U-shaped enclosure and covering about 90
resources percent of the South China Sea. Included in the Chinese
claim are areas that, under the UNCLOS, would normally
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE pertain to the maritime entitlements of the other states in
SEA (ITLOS) the region, with the Philippines and Vietnam being its
most vocal critics.
SETTLEMENT OF DISPUTES
Peaceful Settlement of Disputes Practically all the coastal states – with the possible
Under par. 3, Art. 2 of the UN Charter, States have the duty exception of Indonesia – reject the Chinese Nine-Dash Line
to settle disputes by peaceful means. This obligation claim as a legally-definitive maritime boundary for China in
extends to State Parties of the UNCLOS, underscoring the the South China Sea. In 1995, Ali Alatas, then the
right of the parties to resort to peaceful means of their own Indonesian Foreign Minister obtained assurances from
choice on which they can agree any time. Beijing that it has no quarrel with Indonesia. This served as
basis for Indonesia’s exploitation of the Natuna gas fields
Compulsory Settlement of Disputes with nary a protest from the Chinese.
Where no successful settlement can be achieved, or if the
parties are unable to agree on the means of settlement of
a dispute concerning the application of UNCLOS, such
dispute may be governed by the principle of compulsory
settlement, where procedures entail binding decisions.
*
As established under the UNCLOS.
PAGE 200
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
In 2009, China formally submitted a map to the UN Philippines educational globes indicating
showing the areas in the area it claims under the China’s expansive territorial claims.
declaration.
PHILIPPINES TAKES CHINA TO ARBITRATION
One observer says the situation is compounded by the lack In late January this year, the Philippines brought matters
of clarity in the territorial and maritime assertions being to a head by bringing China to arbitration over the latter’s
made by China through its Nine-Dash Line Nine Dash Line claim.
claim, stressing that “China has chosen to leave the nine-
dash line ambiguous (with no map coordinates), because As expected, China while insisting on bilateral negotiations
the ambiguity gives greater room for manoeuvre.” immediately rejected the arbitration proceedings. This
raises questions over the viability of arbitration under the
Growing Chinese naval presence in SCS UNCLOS on the Law of the Sea as a binding procedure.
Since 2012 China has been stepping up its presence in the
area with new warships – including its very first aircraft Truth to tell, UNCLOS procedures for binding arbitrations
carrier – and expanded naval patrols and swarms are complicated and tricky. Membership means a state’s
of quasi-governmental fishing vessels. While, just a few acceptance of compulsory and binding dispute mechanism
months ago, amid much fanfare, China put up a new procedures provided in the treaty.
administrative structure to govern areas it has occupied
and those it claims, much to the protestations of the other However, the treaty also allows member-states to opt out
claimants. of these binding dispute mechanisms under Article
number 298 exceptions, which, among other things,
It has also engaged the Philippines in a standoff over the pertain to disputes concerning military activities, including
Scarborough Shoal (also known to Filipinos as Panatag military activities by government vessels and aircraft
Shoal and Bajo De Masinloc), a rock and coral reef engaged in non-commercial service, and disputes
formation about 220 kilometers off Masinloc town in the concerning law enforcement activities in regard to the
Philippine coastal province of Zambales and about 840 exercise of sovereign rights or jurisdiction as well as sea
kilometers from the nearest point of the Chinese coast. boundary delimitations, or those involving historic bays or
The shoal has been tacked to Philippine territory by a titles.
Treaty between London and Washington in the year 1900
and declared by the Philippines in a 2009 new baselines China has made such an exception in a formal declaration
law to be an island regime as defined under article on 25 August 2006.
number 121 of the UNCLOS.
For this reason, the Philippines was emphatic in
As early as 1913, Manila courts have heard cases of its Notification and Statement of Claims against China,
shipwrecks in the vicinity. With Philippine permission, the that its arbitral challenge does not cover any of the items
shoal was also used for live-fire exercises by the US Navy in the Chinese reservations.
while it ran its largest naval facility outside the US
mainland at Subic Bay until the early 1990s. The US and Among others things, the Philippines wants the arbitral
the Philippines still maintain a Mutual Defense tribunal to rule on the compatibility of the Nine-Dash Line
Treaty signed in 1951 and regularly hold joint training Claim with China’s internal waters, territorial sea, or
exercises under a Visiting Forces Agreement. exclusive economic zone under the UNCLOS.
Yet China designates the shoal Huangyan Island In other words, the Philippine submission asks whether
and asserts historic entitlements over it because it falls properly interpreted, the Chinese declaration complies
inside the Nine-Dash Line claim. with the maritime regimes set under the UNCLOS. In
addition, it also questions Chinese occupation of reefs
One expert observer argues that Scarborough shoal which are underwater – namely Mischief, McKeenan,
occupies a central place in the Chinese plans to enforce its Gaven and Subi – asking the tribunal to rule that since
sovereignty claims over what it calls the “Zhongsha these are neither “rocks” nor “islands”under the UNCLOS,
Qundao”‘, which consists of Macclesfield Bank, Truro these should be interpreted as part of the Philippine
Shoal, Saint Esprit Shoal, Dreyer Shoal and Scarborough continental shelf. As for Scarborough Shoal, which consists
Shoal. of six small rocks now conceded as uninhabitable islands,
the Philippines claims it as part of its EEZ.
Except for Scarborough, all banks and shoals of Zhongsha
Qunda are underwater for the most part. Without
Scarborough, it is said that the Chinese cannot assert
ownership over the entirety of Zhongsha Qundao, thus
making the Nine-Dash Line claim useless.
Purpose: It provides a cost-effective and efficient way for US v. Canada (Trail Smelter Case): No state has the right to
trademark holders -- individuals and businesses -- to use or permit the use of its territory in such a manner as to
ensure protection for their marks in multiple countries cause injury by fumes in or to the territory of another or the
through the filing of one application with a single office, in properties or persons therein, when the case is of serious
one language, with one set of fees, in one currency. consequence and the injury is established by clear and
convincing evidence
While an International Registration may be issued, it
remains the right of each country or contracting party PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
designated for protection to determine whether or not United Nations and the principles of international law, the
protection for a mark may be granted. Once the sovereign right to exploit their own resources pursuant to
trademark office in a designated country grants protection, their own environmental policies, and the responsibility to
the mark is protected in that country just as if that office ensure that activities within their jurisdiction or control do
had registered it. not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
The Madrid Protocol also simplifies the subsequent
management of the mark, since a simple, single BASIC PRINCIPLES:
procedural step serves to record subsequent changes in Principle of Common but Differentiated Responsibility
ownership or in the name or address of the holder with (Principle 7, Rio Declaration): States shall cooperate in a
World Intellectual Property Organization's International spirit of global partnership to conserve, protect and restore
Bureau. The International Bureau administers the the health and integrity of the Earth's ecosystem. In view of
Madrid System and coordinates the transmittal of the different contributions to global environmental
requests for protection, renewals and other relevant degradation, States have common but differentiated
documentation to all members. responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to
THE PARIS CONVENTION FOR THE PROTECTION OF sustainable development in view of the pressures their
INDUSTRIAL PROPERTY societies place on the global environment and of the
The treaty was signed in 1883 and it is one of the first technologies and financial resources they command.
treaties dealing with intellectual property and its
protection. Precautionary Principle (Principle 15, Rio Declaration): In
order to protect the environment, the precautionary
2
SUBSTANTIVE PROVISIONS : approach shall be widely applied by States according to
National Treatment: requires that each member state grant their capabilities. Where there are threats of serious or
the same quality and quantity of protection to eligible irreversible damage, lack of full scientific certainty shall
foreigners as it grants to its own nationals in respect to the not be used as a reason for postponing cost-effective
intellectual property enumerated in the Convention. measures to prevent environmental degradation.
PAGE 202
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
PAGE 203