So in case of public officer, your answer would depend on the case;
second, the law being applied to the case. So for example, the case
LAW ON PUBLIC OFFICERS
POLITICAL LAW REVIEW (A.Y. 2014 -2015)
DBL Discussion, Slides, New Jurisprudence
We’ll talk about Law on Public Officers. The problem with this subject
is that the sources in law are quite scattered, unlike in Administrative
Law where you can rely on the Admin Code as your core statute. So if
you look at the outline, you don’t see a lot of statutory provisions but
you will see cases instead. The study on Law of Public Officers would
be more a doctrinal study of law - the study will be based on doctrines
and principles. And in the bar exams, most questions also come from
these topics which I have selected for your outline. So if there are
questions not in the outline, those are just rare questions (occasional
tripping tripping sa examiner).
PUBLIC OFFICE AND PUBLIC OFFICERS; DE FACTO AND DE
JURE PUBLIC OFFICERS; SALARY
PUBLIC OFFICERS, OFFICE, OFFICIALS
In your outline, we begin with the case of Secretary of DOTC vs.
Mabalot, a case which you have already studied in Admin law, and
this case simply tells us that a public office, if we are referring to
public office as an office similar to an administrative agency, indeed
can be created by constitution, law or by authority of law. Because as
you will see, a public office may pertain to a position held by a public
officer or it may refer to a functional unit or an office, an agency, so
there are 2 conceptions therefore of a public office.
Now, in the first slide, I have presented four questions that will guide
you in studying first the concept of public office or public officer. These
can be probable questions also in the bar exams, questions such as:
1. What is a “public office”?
2. Who is a “public officer”?
3. Who is a “public official”?
4. What is the importance of knowing the meaning of a “public
officer”?
Sec. 2(9), Introductory Provisions of the Administrative Code:
Office refers, within the framework of governmental organization, to
any major FUNCTIONAL UNIT of a department or bureau including
regional offices. IT MAY ALSO REFER TO ANY POSITION HELD OR
OCCUPIED BY INDIVIDUAL PERSONS, WHOSE FUNCTIONS ARE
DEFINED BY LAW OR REGULATION.
Example: Agency is a public office. The position of the mayor is also a
public office. So either it is a position held by an individual with
functions defined by law or regulation or a functional unit. That’s the
meaning of a public office.
The problematic concept however is the concept of public officer.
Why is that? Because the concept of public officer is not found in the
Constitution. The Administrative Code is also not specific as to public
officer. There may be a distinction between an officer and a clerk or an
officer and an employee. But there is no complete or categorical
description of a public officer.
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involves criminal law, refer to the Revised Penal Code under the Title
Crimes Committed by Public Officers. Sec. 203 of the RPC in fact
defines public officer for purposes of criminal law. If Anti-Graft Case,
refer to RA 3019 for the definition of Public Officer. As to plunder, refer
to the law on Plunder for the definition of Public Officer. If this
question is asked in the bar exam, your answer is quite long. If you
can’t remember, just apply the elements of a public officer as
enunciated in the case of Laurel vs. Desierto. [Details of different
definitions and Laurel elements in the sections to follow]
Sec. 2(14), Introductory Provisions, Administrative Code:
Officer – as distinguished from “clerk” or “employee”, refers
to a person whose duties not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the
functions of the government. When used with reference to a
person having authority to do a particular act or perform a particular
function in the exercise of governmental power, “officer” includes any
government employee, agent or body having authority to do the act
or exercise that function.
So an “officer” may be distinguished from a “clerk” or an “employee”
because an officer involves the exercise of discretion in the
performance of the functions of the government. Notice that it involves
discretion, so higher threshold if we compare it with administrative
code.
Whereas in the case of a “clerk” or a mere “employee”, there is no
discretion involved in the exercise of authority but the function is
merely clerical or manual (e.g. like the function of whether or not you’ll
be allowed to enter the building. This is the function of the security
guard. NO ID, NO ENTRY. If you don’t have an ID, you’re asking for an
exercise of discretion. That security guard that is stationed there
cannot decide on that. What will the security guard do? He should ask
the head of the security office or whoever is in charge with that issue.
That person in charge has the discretion.)
Q: How do you distinguish a “Public Officer” from a “Public Official”?
Actually, you can use them interchangeably. Look at RA 6713. This
refers to the code of conduct of public officials.
Sec. 3(b) of Republic Act No. 6713
“Public Officials” include elective and appointive officials
and employees, permanent or temporary, whether in the career or
non-career service including military and police personnel, whether or
not they receive compensation, regardless of amount.
Observe also the definition under Article 203 of the Revised Penal
Code. Note that the definition is all encompassing. “Of any rank or
class”. So the distinction of “officer”, of “clerk” or “employee” in the
administrative code is not applicable for purposes of the Revised Penal
Code.
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Article 203 of the RPC
“Who are public officers” – For purposes of applying the provisions of
this and the preceding titles of this book, any person who, by direct
provision of the law, popular election or appointment by
competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform
in said Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class, shall
be deemed to be a public officer.
Look at the definition of a public officer in the Plunder Law and
contrast it with the case of Laurel vs. Desierto.
R.A. 7080 (Plunder Law):
Sec. 1(a):
“any person holding any public office in the Government of the
Republic of the Philippines by virtue of an appointment, election or
contract.”
Characteristics of PUBLIC OFFICE:
 Delegation of sovereign functions
 Creation by law and not by contract
 An oath
 Salary/Compensation (but, incl. “honorary”)
 Continuance of the position
 Scope of duties
 Designation of the position as an office.
[Laurel v. Desierto, April 12, 2002]
According to Mechem in his book Law on Public Officers, one of the
essential characteristics of the public office as enumerated in the case
of Laurel vs. Desierto, “Creation by law and not by contract”, but
if you look at the Plunder Law, “any person holding any public office in
the Government of the Republic of the Philippines by virtue of an
appointment, election or contract.”
So if you are assigned/designated a specific function, but not by
reason of an already existing office or position created by law but only
for the reason of a contract entered into by the government, you can
also be held liable for plunder. But that’s for plunder.
So if we talk about the concept of public office in general, we rely on
the decision of the Supreme Court in the case of Laurel vs. Desierto.
This case is also cited in the case of Khan vs. Ombudsman in 2006.
Former Vice President Laurel was appointed as chairman of the
national centennial commission; this is an ad hoc commission because
it is only for the centennial celebration of 1998. When there was the
Expo issue, a case was filed before the office of the ombudsman and
Laurel was impleaded. Laurel argues that the committee is merely an
ad hoc, and besides, there was not even a clear remuneration from the
government, there is no continuation of position, that’s why it’s ad
hoc. Therefore, it is not a public office. And if it’s not a public office,
the Ombudsman cannot initiate a case before the Sandiganbayan .
such initiation of complaint is questioned by Laurel.
Now here, the Supreme Court explained the characteristics of a public
office. Very notable discussion of the court was from the opinion of
Mechem, the singular most important (not saying that it is the ONLY
but just MOST IMPORTANT) is the first one: DELEGATION OF
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SOVEREIGN FUNCTION. Even by this characteristic alone, the SC ruled
that the apposition of Laurel was considered a public office.
Because what was argument of Doy Laurel, invoking Torio v.
Fontanilla. In Torio v. Fontanilla, fiesta celebration is proprietary. Now,
by analogy kuno, centennial celebration should also be proprietary. So
no sovereign function involved.
SC disagreed. A town fiesta is different from a Centennial Celebration
because it is a celebration of our birth as a nation. Also, definitely, dili
ni siya legislative dili sad judicial; SC concluded executive function ni
siya because this involves implementation of a constitutional mandate
one of which is to be loyal to our cultural heritage. And one way of
being loyal and therefore give importance to our cultural heritage is by
celebrating centennial. So, kay kuno tungod nag implement siya ug
Constitutional mandate, involves na siya ug sovereign function.
So you have the following characteristics, but the number 1
characteristic is the most important. So it’s possible therefore nga
basta naa la’y delegation of sovereign function, pero wala’y
compensation puwede pa siya public office. Even if ad-hoc, just like
what happened here – mu-end lang siya after Centennial celebration,
public office lang gihapon. For as long as the first characteristic of
delegation of sovereign function can be established. TN of Laurel v.
Desierto.
Now one importance of knowing the concept of public officer is of
course the jurisdiction of the Ombudsman. The Ombudsman exercises
jurisdiction over public officials and employees of GOCC WITH
ORIGINAL CHARTERS.
Importance of the term “public officer”
The Office of the Ombudsman exercises jurisdiction over
public officials/employees of GOCCs with original charters.
It can only investigate and prosecute acts of the
officials/employees of government corporations. Although the
government later on acquired the controlling interest in PAL, the fact
remains that the latter did not have an “original charter.” [Khan vs.
Ombudsman, 2006 (see also Carandang vs. Ombudsman, 2011)]
This was the case when PAL was not yet reverted to Private
Ownership. Na-sequester man gud at one point so na public for a
while and then nahimo na pud siyang private. So there was an
argument because more than 51% of the shares were then held by
GSIS, nahimo na siyang public office. SC disagreed because, yes GOCC
siya but PAL did not have an original charter because it was
incorporated under the corporation code rather than a law having been
passed and gave it its own entity (personality).
PUBLIC OFFICE NOT A PROPERTY RIGHT
Another important principle is the idea of a public office as not a
property right (BAR). Public office is personal to the incumbent and is
not a property which passes to his heirs.
2
Public Office, not a Property!
“Public office is personal to the incumbent and is not a
property which passes to his heirs.” (De la Victoria vs. Comelec,
199 SCRA 561 [1991]) The heirs may no longer prosecute the
deceased protestee’s counter-claim for damages against the
protestant for that was extinguished when death terminated
his right to occupy the contested office. (Abeja vs. Judge Tanada
[1994])
The issue in both De la Victoria v. Comelec and Abeja v. Judge
Tañada was: election protest ang protestant ni-claim ug damages.
Ang protestee mifile ug answer also with a counterclaim for damages.
Ang natabo in both cases, namatay ang protestee. In the case of the
De La Victoria v. Comelec the protestant was quick enough to waive its
claim for damages para wala na’y personality ang heirs. But even then,
SC said, upon the death of the protestee, his right to occupy the
contested office has been terminated and of course because that is not
a property, it cannot be transmitted to the heirs.
In the case of Abeja, the widow, supposedly substituted. But it’s not
similar to your regular civil cases where there will be substitution of
heirs in case the litigant dies. That’s one important principle. This is
the general rule: Public Office is not a property.
That is why, in the case of Libanan v. Sandiganbayan, there was a
suspension of a public officer. And when there was an allegation of
lack of notice in the imposition of the suspension, the respondent there
argued that there was denial of the right to due process. Unia ug tan-
awon na nimong right to due process sa Constitution, it says, “No
person shall be deprived of life, liberty or property without due process
of law”. So when you invoke “due process”, and when you use the
term “due process” then you are invoking section Article 3 of the
constitution. That’s the due process clause and that applies only if
what is involved is life, liberty or property.
Definitely kung public office ang hisgutan, dili na life, liberty. Ang
pinakaclose niana “property”. But SC said that’s wrong invocation of
the provision of the constitution because if you say, no notice was
given and this involves public office, do not invoke section 1 of article
3 because property is not involved here. Kanang right to due process,
applicable ra na kung property involved. So what is applicable here?
The basic tenet of “fair play”.
Mao nay ge ingon ni Justice Mendoza na he clarified na if emplopyer
fails to comply with the two notice requirement, the show cause memo
on the notice of termination, the twin notice rule, you should not claim
that there is violation of due process because the invocation of due
process is appropriate only if you invoke it against the state or its
agents. The bill of rights primarily exist precisely to limit the powers of
the government so you can invoke specific provisions of Article III if
you are using it against the state or its agents. So if it is not the state
or its agent that is involved in the case, you look for another principle
of law that is similar. Like basic tenet of fair play or basic principle of
reasonableness, so you don’t use na the term “it is a violation of due
process” if the requirement of twin notice rule is not complied with.
However, in the case of the General Manager of Phil. Port
Authority vs. Monserate the Supreme court said:
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Public Office, not a Property; Exception
 A public office is not property within the sense of the
constitutional guaranties of due process of law, but is a
public trust or agency; (Libanan vs. Sandiganbayan [1994])
 However, an incumbent’s right to office may be considered
“property” within the protection of due process in
controversies relating to the question as to who of two (2)
persons is entitled thereto. (The General Manager, PPA vs.
Monserate [2002])
Can you think of an instance where atleast in that instance public
office may be treated as one involving property and if “yes” what is the
reasoning of the court? Yaw kalimte nga naa exception to the rule that
public office is not a property.
It does not necessarily follow that if one invokes security of tenure,
that publice office is treated as a property. So it is proper to invoke
due process of law under the constitution and an incumbent’s right to
office will be considered “property” within the protection of due
process in controversies relating to the position as to who of two
persons is entitled to the office. Do you know why?
Kung naa na magcontest duha you can invoke due process to the
extent and pwede sya i-treat as property, it is because of emoluments
to the office. Okay ra man na ikaw lang isa then you get it pero if duha
gani the question is kinsa nila duha ang entitled to the emolument like
salary. So to that extent, it should be treated as property and
therefore, an invocation of Sec.1 of ARTICLE III would be proper in
that regard. We are just talking to the poper perspective of the
invocation ba of the principle.
DE JURE VS. DE FACTO OFFICER; SALARY
De Jure Officer
A de jure officer is one who is in all respects legally appointed or
elected and qualified to exercise the office. The election or
appointment complied with all the requirements of law.
Wai question sa de jure kai sayun ra na. Basta qualified siya, the
requirements of the law are complied with - de jure. Both substantive
and procedural requirements complied with. Substantive: the
qualifications; procedural: the process of appointment and taking of
oath. Because when you’re talking here of public office, wala public
office na wala nag require of taking of oath.
In the Constitution, under the article on civil service, it is a
constitutional requirement that before you hold an office, you must
take an oath. That is to highlight the idea of public office as public
trust and so establishing the fiduciary relationship between the people
and the public offical. That fiduciary relationship mandates that the
public officer becomes accountable to the people. It is a procedural
requirement. If you comply with the substantive and procedural, the
officer is de jure. If one is not complied, de facto.
3
Problem
X and Y were candidates for Mayor in the Municipality of Z. X won
and was duly proclaimed. However, the Comelec disqualified X later.
On June 30, 2013, A, X’s wife, assumed the office of the Mayor
purportedly as X’s substitute. On June 30, 2014, A was ordered
removed from office. She then voluntarily stepped down. Is A entitled
to salary for the period June 30, 2013 – June 30, 2014?
The problem in the bar exam, it won’t categorically state that this is a
problem on public officers, it will be mixed with other subjects such as
election law etc. It may require the application of election law, admin
law, constitutional law yet the question is on the law on public officers
but requires resolving the other issues first.
Our idea is that a de facto officer is entitled to the salaries for the
services rendered. Otherwise, it is unfair and unreasonable; it’s not a
sound rule, not to give the person who has at least served 1 year.
Yes? The answer is No.
The answer is actually to determine first whether the officer is a de
facto or a usurper.
De facto officer has a colorable compliance of the substantive and
procedural requirements and has apparent authority. Examples of a de
facto officer:
- one who hasn’t taken oath; or
- one who is disqualified: held office but not Filipino citizen. Only
after 2-3 years of holding office did the final decision come out
declaring his citizenship (not Filipino) as Thai. There is colorable
compliance here. He even took oath.
But in the case of the wife, dili sad siguro na mahitabo. Ang wife o,
unsaon pa man ug substitute…humana man ang proclamation,
humana ang election. Niadto lang gyud ang wife kaya bi niya ug iyaha;
murag manager sa bangko iyahang bana. Siya’y ga-hawd-hawd didto.
 Obviously, in the problem, the wife is a usurper.
What I’m trying to say is you should figure out one from the other -
De Facto Officer vs. Usurper
A “de facto officer” has color of right or title to the
office or has apparent authority to hold the office and has
done so in good faith, while a “usurper” has neither lawful
title nor color of right or title to the office; the act of a de
facto officer is valid as if it was done by a de jure officer but
that of a usurper is absolutely null and void; the former may
be removed through a direct proceeding only.
Q: So is a de facto officer entitled to salaries?
A: Yes.
Salary of De Facto Officer
 A de facto public officer cannot be made to reimburse
funds disbursed during his term of office because his acts
are as valid as those of a de jure officer.
 Moreover, as a de facto officer, he is entitled to
emoluments for actual services rendered.
[Sampayan vs. Daza, 1992]
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*cannot be made to reimburse; because his acts are valid – just like
the Operative Fact Doctrine, considered valid because he wasn’t then
declared as not qualified.
Problem
X and Y were candidates for Mayor in the Municipality of Z. X won and
was duly proclaimed. An election protest was immediately filed by Y.
On June 30, 2013, X assumed office. On June 30, 2014, the election
contest filed by Y was resolved in Y’s favor. The decision already
became final and executory. X voluntarily stepped down as ordered.
Is X entitled to the salary he received? Should X reimburse Y of the
salary he received?
In Sampayan v. Daza, de facto officer is entitled to emoluments for
actual services rendered.
Kung entitled siya di na siya mo-reimburse kay entitledd man siya. But
what about the principle, the exception to the principle laid down in
Sampayan vs. Daza…
Q: A de facto officer is entitled to emoluments for actual services
rendered. What is the exception?
A: Exception is when there is a de jure.
Is that rule applicable in this problem? Do you consider Y as the de
jure officer?
Sakto man ka sa imong answer na: Sir kana na principle Sampayan
mao na siyay exception but the incumbent can recover. Mao man na.
Kung naay incumbent, ang de facto ni hold siya sa office at his own
risk and therefore whatever, emolument he may have received and
naay de jure officer, the de jure officer is entitled to the salary. So i-
reimburse niya. Okay?
But, the “incumbent” can recover!
 An incumbent of a public office may recover from a de
facto officer the salary received by the latter during the
time of his wrongful tenure, even though he (the de facto
officer) occupied the office in good faith and under color of title.
 A de facto officer, not having a good title, takes the salaries at his
risk and must, therefore, account to the de jure officer for
whatever salary he received during the period of his wrongful
tenure.
 The Supreme Court has allowed a de facto officer to receive
emoluments for actual services rendered but only when there is
no de jure officer.
So kung may de jure officer, ang de jure officer ang entitled.
Q: Now, we go back to the problem. Do you consider Y as a de jure
officer? Is that the idea of a de jure officer?
A: You should distinguish a situation where there is an election contest
because in that situation, wala pay de jure diha. Okay? There is only a
de facto officer!
Ang idea ana na situation nga naay de jure and therefore mo-
reimburse si de facto, in a situation where, for example, like what
4
happened in Monserate case, PPA vs. Monserate, if two persons
contest a particular position. Different ang election contest class
because di man siya contest on who really is entitled but since it is an
election protest, it’s just a determination of who really won in the
election.
But in a situation where, for example, ang nahitabo si Monserate: a
manager, may issue on whether a particular appointment of let’s say X
as branch or division manager, unya si Y, the one holding has not
been lawfully removed, for example, so wala xa na lawfully removed
and someone is placed in his office, so there is now a contest as to
who really is entitled to that office: the one that has been illegally
removed or the one who had been unlawfully appointed. In that
situation, in reality, naa jud de jure, in the beginning wala man gud
nawa ang, in the example given, Y had never been removed from
office because the removal was invalid. So naa nay nagkupot sa office
ba unlike in election nga wala pa my nagkupot ana, to be determined
pa mana by election. But in a situation where someone is already
holding an office and gi-remove siya illegally and someone is put in his
place, then may contest na. So mao na ang situation nga naay de
facto and de jure, in which case, a de jure officer is entitled to the
salaries. You should distinguish one from the other.
In the example given, Y cannot be considered as a de jure officer
because he has not held the office. His right to hold the office is
dependent on the outcome of the election contest. Careful ka dha
class.
Q: Now, question, from whom can a de jure officer recover? From the
government or from the de facto officer?
Who can recover and from whom?
As a rule, the de jure officer cannot recover from the government, but
only from the de facto officer, the salary it had paid to the latter. But,
he can recover the salary from the government or the de facto officer,
if the government continues to pay the de facto officer even after
notice of adjudication of the title to the de jure officer, the amount so
paid after the adjudication and notice. (Mechem)
A: This again comes from the authority in this matter, from his book
he said as a rule a de jure officer cannot recover from the government
but he should get the salary from the de facto officer.
Ang exception lang daw, wala pa ni gi-ask sa bar, if the government
continued to disburse the salary to the de facto officer after knowledge
of the defect of the title to the office the de facto officer, estopped ang
government and therefore pwede ang de jure to demand from the
government the payment of the salary.
This is to be tested yet by a SC ruling but this is an opinion of an
expert, if the government continues to pay the de facto officer even
after notice of adjudication of the title of the de jure officer of the
amounts paid after the adjudication and notice.
APPOINTMENT LATER DISAPPROVED; SALARY
Q: Is there such a thing as a prohibition against midnight appointment
made by local chief executive officials? [Same question/topic will also
be tackled in a later section]
We know there’s a midnight appointment prohibition against the
president. We just call it midnight, but the constitution is specific under
Art VII sec. 15 that two (2) months before election and up to the
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expiration of the term of the incumbent president, he is not allowed to
make an appointment [note from DBL: this is the complete definition
under the law, your answer shouldn’t stop in saying “…two months
before election” include “…up to the expiration of his term”]. That is
the idea of midnight appointment.
The only exception is regular appointment if it is necessary to prevent
any prejudice to health and public safety.
In the case of Nazareno v City of Dumaguete GR No. 177795,
June 19, 2009, there is no specific prohibition similar to the midnight
appointment rule of the president, therefore a local chief executive like
a governor or mayor may therefore, actually make midnight
appointments; the only prohibition is that there is a civil service rule
governing midnight appointments—the local chief executive can make
midnight appointments provided that it is not done by bulk.
What happened in Nazareno, 60 plus or 80 plus positions were filled
up before the expiration of the term of the mayor, and because it was
a violation of the civil service rule, it was disapproved by the civil
service commission (CSC).
By the way, there are two levels of appointing authorities: it can either
be (1) Presidential or (2) Non-presidential appointment.
If presidential, there are also different groups of presidential
appointees. The first group (1a) requires confirmation by the
Commission on Appointments while other groups (1b) do not require
such confirmation.
For those appointees to be made by an appointing authority other
than by the president, like heads of office, it would require approval
from CSC. Like the appointments made by the city mayor in this case,
disapproved by the CSC.
The question now here, considering that these illegally appointed
officers received salaries upon their appointment, and the CSC decision
became final only two years after, would these illegally appointed
officers be entitled to the salaries they received for two years or should
they return it?
Q: What is the rule in regard to the salary of an officer whose
appointment is later disapproved by the CSC?
Salary of officer whose appointment is later disapproved by
the CSC:
 If the basis for disapproval is not “violation of civil service law,” say
lack of qualification, the appointee is entitled to a salary.
 However, if the disapproval by the CSC is on the ground that the
appointment was made in violation of civil service law, the
appointing authority shall be personally held liable for the
salary of the appointee. (Nazareno vs. City of Dumaguete, June
2009)
A: You need to make the following qualifications: If the basis for
disapproval is NOT a violation of the civil service law, but let’s say
lacking in qualification, he is entitled to salary because he’s a de facto
officer.
On the other hand, if there’s a violation of the civil service law, the
appointing authority shall be personally held liable for the salary of the
appointee. If they get it from the appointees, chances are the salary
already paid out wouldn’t be returned (most probably they’ve spent it
5
in two to three years’ time). The best thing to do is to make the guilty
appointing authority liable to pay the salaries. Since it is a violation of
the civil service rules, the CSC can disapprove the appointment on two
grounds, first for lack of qualification, second for violation of civil
service rules.
Go over case of “Re: Alleged Nullity of the IBP Election…”. Still about
de facto and de jure officers. Nothing is new though. It’s just a
reiteration of existing rules.
QUALIFICATIONS
qualifications in this case, sa qualifications sa Senators. Tanawon nimo
ang qualification sa Senators, those are substantive qualifications. Ang
mandatory drug test is not substantive, it is procedural. So I don’t
think that the mandatory drug test requirement is an additional
qualification. Ako rah ni opinion ha, kinsa raman pud tawn ta mag
opine-opine.  Basta this is just my opinion. Mandatory drug test is
not substantive, it is procedural. Of course, it will depend on the
substance on your body. Whether ma tested ka negative or positive, it
depends on the substance on your body.  Mao siguro nah ang
thinking sa Supreme Court. Mura man nig procedural rah, feel nako.

QUALIFICATIONS TO OFFICE; WHEN TO POSSESS

WHO MAY PRESCRIBE QUALIFICATIONS:
(1) Constitution
Q: WHEN should a public officer possess the qualifications to the
(2) Congress
office? (Kanang pangutanaha murag overkill nasad siguro kay) It
o Limitations:
would depend on the position, Elective, Appointive, National or Local.
i. Congress cannot impose conditions of eligibility
inconsistent with constitutional provisions;
If Local (ELECTIVE), it depends on the qualification–
ii. Qualifications must be germane to the position
(“reasonable relation rule”)
Frivaldo Doctrine
iii. Cannot prescribe qualifications so detailed as to amount
to making an appointment in usurpation of executive
Unlike residence and age qualifications, the
power;
qualification of “citizenship” for local elective officials under
iv. Cannot prescribe qualifications in addition to those
the Local Government Code of 1991 must only be possessed at
prescribed exclusively by the Constitution
the time the candidate becomes “elective official” by his valid
(3) Delegate of Congress
proclamation and at the start of his term. (Frivaldo vs. Comelec
[1996])
*Constitution - with respect to Constitutional positions, obviously the
Constitution provides for the qualifications.
Citizenship (only) - upon assumption into office;
*Congress/By Law - expect the Congress to have stated or
Age – election day;
enumerated the qualifications.
Residency - certain period of time before the Election Day.

There are certain limitations though to the power of Congress in

Di gyud siya actually uniform. You can actually give a definitive answer
prescribing the qualifications; taken from the book of Mechem - basic
to that.
rules: Congress cannot impose conditions inconsistent with
Constitutional provisions. That is obvious. Qualifications must be
Of course APPOINTIVE, upon acceptance of the office, except to the
germane to the position (Reasonable Relation rule). The test is The
extent that appointment may be made temporarily, This is what brings
Test of Reasonableness, because sometimes, it is too detailed in a way
the confusion – that if the appointment is temporary, it is still valid
that it is tailored to just fit one person. It is hard to imagine for
because (by the way as you would see later on, is given to who has all
Congress to tailor qualifications to chosen individuals.
the qualifications, including civil service eligibility; but if he has all the
qualifications and what is only lacking is the civil service eligibility and
Our leading case here is the case of SJS vs. PDEA.
we are talking here of career service, meaning civil service eligible for
it is a merit test, temporary appointment is allowed provided one
SJS vs. PDEA (2008)
has all the qualifications and he only lacks civil service eligibility, he is
allowed to be appointed to the office on a temporary basis not to
The Congress cannot validly amend or otherwise modify the
exceed 12 months)
qualification standards for Senators, as it cannot disregard,
evade, or weaken the force of a constitutional mandate, or
KINDS OF APPOINTMENT (BY THE PRESIDENT)
alter or enlarge the Constitution.

Q. What are the three kinds of appointment to be made by the

Accordingly, Sec. 36(g) of RA 9165 [Mandatory Drug Test]
President? (BAR)
should be, as it is hereby declared as, unconstitutional.
A.
Naka remember mo atong Dangerous Drugs Act? Nga before ka maka 1. Ad interim appointment;
hold ug office, kinahanglan sa ka mo pass sa drug test. It was assailed 2. Appointment made by an Acting President; and lastly
as unconstitutional because it seems to be asking an additional 3. Temporary Appointment
qualification to hold the office. Therefore, the specific provision in the
law (RA. 9165), requiring for Mandatory Drug Test, before assumption The first kind of appointment is Ad interim appointment under Section
into office, is an additional qualification to that already provided for by 16 of Article VII. It is a permanent appointment as opposed to
the Constitution. As you know, Congress cannot provide for additional temporary appointment. Ad interim appointment is an appointment
qualifications if these qualifications are Constitutional in origin. made by the President when Congress is in recess. This is a permanent
appointment! It is valid until the disapproval by the Commission on
If I were to make a dissent on the findings of the court, ang Appointments, or until the next adjournment of the Congress. There is

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no other basis of terminating the employment except for those two
conditions, which by way are independent and separate events; so
disapproval by the Commission on Appointments or upon
adjournment of Congress, whether special or regular
adjournment.
May a person be compelled to accept an office?
Generally, no. But an elected official who refuses without valid
motive to be sworn in shall be held criminally liable under Sec. 234 of
the RPC.

The second kind of appointment is an appointment made by an Acting Exception:

President. The appointment is valid only until the President, within
90 days from assumption into office, disapproves the
appointment.
The third kind of appointment is in Section 14, of Article VII. It is an
appointment that is temporary. This is the appointment which is an
exception to the “midnight-appointment-rule” which states that no
appointment should be made within a period of time and the exception
is when it prejudices the public safety and general welfare and
therefore valid, provided it is temporary. So this is the meaning of
temporary appointment.
Compulsory military and civil service under Sec. 4, Art. II of
the 1987 Constitution and pursuant to the National Defense Act.
A: It is a crime if you refuse without valid motive! Remember, must be
an elective official. An elective official, who refuses without
valid motive to be sworn in, shall be held criminally liable. This
is Section 234 of the RPC.
General Rule: You cannot be compelled to act as that would be
involuntary servitude.
But take note of section 234 …

The qualification should be possessed by the public officer not only

Exception: Military service and civil service in times of war.
upon assumption into office, or acceptance of the office (because
Conscientious objector does not apply since national defense is more
appointment by the way should be accepted), but the qualification
paramount. The doctrine is subordinated by a more compelling state
must be possessed during the entire incumbency of the public officer.
interest.
Even if he had been appointed and possessed all the qualifications, but
later on, because of supervening event, he fails to comply with all the
qualifications, his holding of the office is subject to a Quo Warranto
EFFECTS OF PARDON
proceeding. The Quo Warranto proceeding is not instituted by the Civil
Service Commission, but by the Government through the Solicitor
General. So that if you talk about specific citizenship and he is a local Effects of PARDON: On right to hold public office
government official, you apply the Frivaldo Doctrine. Citizenship for
local elective officials is not new to you. RPC:
Art. 36. Pardon; its effect. – A pardon shall not work the
PROPERTY QUALIFICATION NOT VALID
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
Q. In a distant past in the Bar exam, the question was about property
terms of the pardon.
qualification; is this valid? (BAR)

Is property qualification valid?

Monsanto vs. Factoran:

Maquera vs. Borra (1965): Property qualification is

 The pardon granted to petitioner has resulted in removing
inconsistent with the essence and nature of a republican
her disqualification from holding public employment but
system ordained in the Constitution and the principles of
it cannot go beyond that.
social justice underlying the same. This implies necessarily
 To regain her former post as assistant city treasurer, she
that the right to vote and to be voted for shall not be
must re-apply and undergo the usual procedure required
dependent upon wealth of the individual concerned. Social
for a new appointment.
justice presupposes equal opportunity for all.

A. As you know, it is not. This is well settled in the case of Maquera

vs. Bora. Property qualification is inconsistent with the essence and
nature of a Republican System of government. This is our
understanding. There is no prohibition if we actually adopt a property
qualification which by the way was the case in the past. But you know
already that the case of Maquera is our understanding now – that it is
against the idea of Republicanism and the principles of social justice.
ACCEPTANCE OF OFFICE
Q: And the other concern here is this, (that is why you were asked to
read 234 of the RPC), may a person be compelled to accept an office?
(BAR) This case was asked in the bar many times. It distinguishes the
right to hold public office and the right to hold the specific public office
(as an effect of pardon). The right to hold public office once granted is
automatic but as to specific office, you cannot go back to your
previous office as a matter of right. You need to reapply.
What is only restored is the right to hold any public office but not the
right to go back to your previous public office.
For example, you held a public office, were sued criminally, were
administratively removed and as a result of conviction and
imprisonment, you can no longer hold the office. If you are granted
pardon you cannot go back to that public office. The right restored is
the right to hold public office in general, not to a specific public office
or your original position.

Aside from the principle that the effect of pardon does not

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automatically give the grantee the right to hold the position he (public
officer) previously held, the other effect is as to the benefits.
Example: A public officer was convicted and the penalty includes
perpetual disqualification from holding public office.
Q: If someone is granted pardon, is he entitled to the salaries and
emoluments granted to the office?
Effects of PARDON: On Benefits attached to the office
A pardon looks to the future. It is not retrospective. It affords
no relief for what has been suffered by the offender. It does not
impose upon the government any obligation to make reparation for
what has been suffered. This would explain why petitioner, though
pardoned, cannot be entitled to receive backpay for lost
earnings and benefits. (Monsanto vs. Factoran [1989])
A: No. Jurisprudence teaches that Pardon is prospective, or it looks to
the future and not retrospectively. Hence, no backpay shall be granted
because this comes within the purview payments made as reparation
for what has been suffered in the past.
APPOINTMENT; APPOINTMENT VS. DESIGNATION;
PERMANENT VS. TEMPORARY APPOINTMENTS; CAREER VS.
NON-CAREER SERVICE; ROLE OF CIVIL SERVICE
COMMISSION (CSC); CAREER EXECUTIVE SERVICES (CES);
DISCRETION OF APPOINTING AUTHORITY
Appointment
I. Essentially “Executive”; cf. “residual power of the President;
II. Appointment generally requires that it be “in writing”;
III. Different from “designation” (although some appointments
would use the term “designate”; what controls is the nature);
IV. Requires: (1) that the appointing authority is vested with that
power; (2) the appointee possesses all the qualifications
(including civil service eligibility) and none of the
disqualifications; (3) the position is vacant; (4) the
appointment is approved by the CSC; (5) the appointee accepts
by taking the oath and discharges the functions.
Basic Characteristics of the Power of Appointment
I. It is essentially executive
If there is no law that identifies the appointing authority then the
appointing power is vested in the President because of the Residual
Power of the President.
II. Appointment generally requires that it be “in writing”
This important because a public office is a public trust and there is
therefore a fiduciary relationship established the moment a person
occupies a said office. The people would be interested in knowing the
exact evidence of that fiduciary relationship and the best evidence that
the people can look into is the written memorial or appointment.
III. Appointment is different from designation.
But there is a caveat because some appointments use the term
“designate”, however it does not necessarily follow that the process is
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designation rather than appointment. It is not the term used which
classifies whether such act is appointment or designation. Instead, one
must look at the circumstances to properly identify the nature of the
act.
The title is appointment paper but the text says Mr. X, you are hereby
designated as etc. so the question now is, is this designation or
appointment. The rule is to look into the circumstances of the case,
whether it is appointment or designation. We will go to the designation
later on.
IV. And finally, appointment to be valid must comply
with five requisites.
(1) That the appointing authority is vested with that authority to
appoint either by the Constitution or by law;
(2) The appointee possesses all the qualifications and none of the
disqualifications, and qualifications here include civil service eligibility.
Again, as provided for by law or by the Constitution depending on the
position involved.
(3) The position is vacant. When you say appoint someone, it
presupposes that you are to put that someone to a position. And
putting someone to a position presupposes vacancy. You cannot
validly appoint a person to a position that is not validly vacated.
Therefore if we relate this to abolition of offices for example, we need
to review our rules on valid abolition of office. Because if the abolition
of office is invalid, then the position is not rendered vacant. So even if
appointment was validly made in other respects, but there is no valid
vacancy, it can be nullified on that ground.
(4) The appointment is approved by the CSC as a general rule,
because not all positions would require the approval of the CSC. Some
positions would not require the approval of CSC but the approval of
someone else, like those positions enumerated under Section 16 of
Article VII of the Constitution where certain positions are to be
appointed by the president with the confirmation of the Commission on
Appointments. And later on you will see the difference between the
authority of the CSC in this regard and that of Commission on
Appointments.
So exception to the CSC approval would be Presidential Appointees,
Members of the Armed Forces, Police Force, firemen, and jail guards
because they belong to the local government unit’s operational control
of their local chief executive.
(5) The appointee accepts by taking the oath and discharges the
functions.
ROLE OF CIVIL SERVICE COMMISSION; VS. COMMISSION ON
APPOINTMENTS
Let’s take a look at this problem. I’m not sure if you are familiar with
the facts of the case.
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Problem
Mayor X appointed A as Administrative Officer II of Cebu City.
The appointment states that it was “permanent”. B questioned the
appointment on the ground that he is next in rank being the
incumbent Administrative Officer I while A came from another
department or office of the City Hall. The CSC approved the
appointment of A but with a notation that it was “Approved as
Temporary”. CSC justified its action on the ground that B was better
qualified than A.
A. Was the act of CSC proper?
B. How do you distinguish the function of CSC from the Commission
on Appointment’s?
DBL: Dili. (asks for volunteer)
Student: CSC’s function is to determine if the appointee has the
qualification. But it does not have the authority to substitute its own
choice for the appointee sir. Because appointment is discretionary
power of the appointing authority
DBL: If you say that the authority of the appointing authority is
discretionary then I would ask you to answer the second question.
Because if for example the president makes an appointment, but it is
not approved by the CA (Commission on Appointment), for those
positions that would require confirmation by the CA, is it not that the
president has no other choice but to respect the decision of CA. So in
that regard would the theory or rule that the appointing authority’s
power is discretionary would not be anymore be correct.
DBL: di ba, mao ni imo answer, CSC’s function is limited only to the
determination of WON the appointive applicant possesses the
qualifications and none of the disqualifications and you added a second
layer, that the appointing authority’s power is discretionary, so he has
the discretion to decide not the CSC. Niya, period.
What about the 2nd question? Ngano lagi ang president if mo appoint
siya, it would be subject to the confirmation of CA and he has to
accept the rejection of CA? Therefore it’s not the reason nga
discretionary ang correct answer… Well, it is correct, but not the
perfect answer. (See cases of Lopez vs. CSC, Lapinid vs. CSC,
Luego vs. CSC.)
These are the 2 layers of your answer:
First -
Appointing Authority’s Discretion
• The appointing authority is given ample discretion in the
selection and appointment of qualified persons to vacant
positions, provided that the exercise thereof is in good faith
for the advancement of the employer's interest and not for the
purpose of defeating or circumventing the rights of the employees
under special laws or under valid agreements and provided further that
such prerogatives are not exercised in a malicious, harsh, oppressive,
vindictive or wanton manner, or out of malice or spite. (Lopez v. CSC
[1991]); Lapinid v. CSC [1991)
And then you’ve learned that the role of the CSC in appointment is
limited only to attestation -
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Role of CSC in Appointment: “Attestation only”
• Civil Service Commission has no power of appointment
except over its own personnel. Neither does it have the authority
to review the appointments made by other offices except only to
ascertain if the appointee possesses the required qualifications. The
determination of who among aspirants with the minimum statutory
qualifications should be preferred belongs to the appointing authority
and not the Civil Service Commission. It cannot disallow an
appointment because it believes another person is better qualified and
much less can it direct the appointment of its own choice. (see Luego
vs. CSC [1986]; Province of Camarines Sur vs. CA [1995])
When you say attestation, to determine WON or to attest WON the
person is qualified or has disqualifications. This is because if you look
at the power of CSC … what the SC mentioned in these cases was a
specific provision in the Civil Service Law that refers to the specific
power of the CSC to attest, by attesting, meaning just to determine
whether the person, the appointed person possesses the qualification
and none of the disqualifications.
And this is important, because this is not found in the power of the CA.
So the only reason why the role of the CSC is only limited to
attestation, because of the Civil Service Law which fixes the discretion
of the CSC. That is different from the CA because ang authority nila in
approving or disapproving, confirming or not confirming the
appointments of the President, is plenary. So the discretion of the
Commission on Appointments is plenary while the Civil Service
Commission is limited to attestation only.
So it is not only the idea that the appointing authority is discretionary
that would justify the answer that the act of the civil service
commission is improper.
Q: The corollary question is what now is therefore is the nature of the
appointment of A, is it temporary or still permanent?
A: Again if you go back to the idea that the authority of the CSC is
only to attest then the CSC cannot change the nature of the
appointment. So if it had been or that the appointee had appointed
under permanent appointment status then that should be the nature of
his appointment and the civil service commission cannot override the
nature of the appointment made by the appointing authority. That is
the part of the appointing authority’s discretion. TN; BAR
NEXT-IN-RANK RULE
Q: What about the reasoning of B, that he is entitled to the position. Is
B correct in saying that he is entitled to the position simply because he
is the incumbent Administrative Officer 1?
A: This brings me to the concept of next-in-rank rule. This rule does
not provide that the person next in rank is absolutely and by legal right
entitled to the appointment because when you say next in rank it
refers only to preferential consideration for the promotion to the higher
vacancy.
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“Next-in-Rank Rule”
• One who is next-in-rank is entitled to preferential consideration
for promotion to the higher vacancy but it does not necessarily
follow that he and no one else can be appointed. The rule
neither grants a vested right to the holder nor imposes a ministerial
duty on the appointing authority to promote such person to the next
higher position. Thus, an officer lower in rank but of superior
qualification may be promoted instead. (see also Luego vs. CSC)
The next in rank rule should also be distinguished from a situation
where an office had been validly abolished and a new one had been
validly established. Under the Civil Service Law the moment an office is
abolished, so there are affected personnel, and a new one is created
under the civil service law, those affected by the abolition of the office
are preferred when it comes to filling up the position in the newly
created office. The next in rank rule is irrelevant in that situation. In
fact there is no such thing as preferential consideration to a person
who probably is the next in rank.
Example: if the newly created office assumes a higher position in the
hierarchy. There will always be a person who can claim the next in
rank. But if the situation is that an earlier office is abolished and a new
one is established, then we apply the civil service rule on giving
preference not to the one who is next in rank but to those who had
been effected by the abolition of the office. (TN)
Questions:
Distinguish:
1. Appointment from Designation
2. Permanent from Temporary
3. Dismissal from Expiration of Term
4. Career vs. Non-Career Service
APPOINTMENT VS. DESIGNATION
In appointment, someone has not yet occupied an office; precisely
appointment siya, “designated” to an office; in designation, giving of
additional function to one who is already in office.
DBL: What is the importance of telling the difference? Are there
significant rules that are significant to one and not the other?
Student: Salary- in designation, even if there are additional functions,
the salary remains the same because the designation pertains to single
office. Emoluments during retirement – there are no additional
emoluments for designation, the exception is if there is a law which
requires or grants additional emoluments. The retirement should be
based on the highest salary. In a case, there was an issue on
designation and appointment. It was contended by the Commission on
Audit that it should be the highest salary that should be made as basis
for the retirement and should only be the only for which the person
has been appointed. However, the rule is different because the
Exceutive Order provided that it should be based on the highest
salary—actual salary received without qualification as to designation or
appointment.
DBL: Other than the benefits and emoluments, what other legal
significance?
Student: Security of Tenure.
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DBL: Very good. So aside from benefits, we talk about the security of
tenure.
Student: in temporary sir, his appointment is dependent on the
discretion of the appointing authority. So as long as the appointing
authority allows, then he remains in the position. In other words, it is
pleasure of the appointing authority.
DBL: In other words, basically there is no security of tenure in the
status of an employee or officer who was merely been designated. So
for designation, there is no security of tenure. But in appointment,
there is security of tenure. That is correct. So you have to read the
cases of Santiago vs. COA, Sevilla vs. CA and Santos, and TESDA
vs. COA in this regard. [TESDA digest in p. 14]
“Appointment” vs. “Designation”
• Appointment is the selection by the proper authority of an
individual who is to exercise the functions of a given office;
• Designation, on the other hand, connotes merely the imposition of
additional duties, usually by law, upon a person already in the public
service by virtue of an earlier appointment (or election).
= No Security of Tenure and No Additional Benefits.
(see Santiago vs. COA [1991]; Sevilla vs. CA Santos [1992]; TESDA
vs. COA [2014])
So the effect would be there is no security of tenure in designation and
general rule, there is no additional benefits unless of course, additional
benefits are provided for by law. So that is one area that you need to
master—Appointment vs. Designation.
PERMANENT VS. TEMPORARY APPOINTMENT
Permanent vs. Temporary Appointment in Civil Service
Permanent – the appointee meets all the qualifications and
requirements including the appropriate eligibility requirement (civil
service eligibility requirement); it lasts until lawfully terminated.
Temporary – the appointee meets all the requirements for the
position except the appropriate civil service eligibility. It shall not
exceed 12 months and employment ends ipso facto with or without
qualified replacement. VS. “Co-terminus”
(See Pangilinan vs. Maglaya [1993]); Province of Camarines vs. CA
[1995])
Student: Permanent appointment sir is extended to those persons who
already possess the necessary qualifications. While temporary are
extended to those who may not have yet possessed the necessary
qualifications.
DBL: We need to fine-tune the answer. Because permanent and
temporary appointees possess all the qualifications. The distinction is
that in permanent, civil service eligibility is already included. In
temporary, all qualifications must also be complied with. The only
exemption is the civil service eligibility.
Let us say you are appointed to the position that would require you to
be an LLB graduate, and then wala kay civil service eligibility. What I
know is that if you did not graduate with honors, I think you need to
10
pass the civil service exam in order to be a civil service eligible. So if
you possess all the qualifications like LLB, Filipino Citizen and all,
except the civil service eligibility, you can actually be appointed. But
the appointment can only be temporary.
In fact, it is also important for you to note the period of a temporary
appointment—it should not exceed 12 months and in fact, this is
automatic, ipso facto after 12 months, even if there is no one qualified
to replace, the temporary appointment has to be terminated.
Different ang co-terminus because while temporary ang co-terminus in
the sense that he serves at the pleasure of the appointing authority
ang temporary lang is specific in the sense that 12 months ra sad siya.
Whereas ang co-terminus, kung 3 years ang appointing authority kay
mayor man, then 3 years ang iyahang period sa employment.
Temporary gihapon in that sense. One who is assuming an office in an
acting capacity, as you have read in the cases cited, is also possessing
a temporary appointment or position. So you have to distinguish
between permanent and temporary appointment.
MIDNIGHT APPOINTMENTS
I mentioned the case of Nazareno vs. City of Dumaguete last time. So
this is the Civil Service Resolution or rule that I have mentioned. Items
no. 3 (d) and 4 of CSC Resolution No. 010988 dated 4 June 2001.
Is “MIDNIGHT APPOINTMENT” prohibited in LOCAL
APPOINTMENTS?
Items No. 3(d) and 4 of CSC Resolution No. 010988 dated 4
June 2001, prohibits the outgoing chief executive from making “mass
appointments‖ after elections.” The term “mass appointments”‖
refers to those issued in bulk or in large number after the elections by
an outgoing local chief executive and there is no apparent need for
their issuance. (Nazareno vs. City of Dumaguete, June 2009).
So this Civil Service resolution prohibits the outgong chief executive
from making mass appointment after election. Wala nuon nagbutang
ug threshold as to how many. But mass apointments would refer to
those issued in bulk or in large number after the elections by an
outgoing local chief executive.
Pero naay qualification ha, which is “there is no apparent need for
their issuance.” And usually, there is really no apparent need. It is hard
to justify the appointment by bulk by an outgoing Local Chief
Executive by reason of what, unsa man nah nga necessity kaha? It is
hard to imagine if that can really occur.
So there is not such a thing as a prohibition against midnight
appointment for Local chief Executive but what is prohibited only is
mass appointment if done so after the election and mass appointment
refers to appointment by bulk.
CAREER VS. NON-CAREER SERVICE
“Career” vs. “Non-career” Service
Career – characterized by: (1) merit and fitness test [competitive
exam] or highly technical qualification; (2) Security of Tenure; and (3)
Opportunity for Advancement to higher career position.
Non-career – characterized by (1) not based on competitive exam
nor highly technical qualification; (2) Tenure is limited by law or co-
terminus with appointing authority.
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Career from non-career service, you also have to take note of the
characteristics. The law will provide whether such a position is career
or non-career.
The Civil Service examination is the competitive exam that is referred
to here. How to tell whether it is Career or Non-career, it depends on
the law that creates the office or position. And there are exceptions
however to competitive exam: policy-determining, primarily
confidential, and Highly technical positions.
Competitive Examination
• The Constitutional provisions merely constitute the policy-
determining, primarily confidential, and highly technical
positions as exceptions to the rule requiring appointments in the Civil
Service to be made on the basis of merit a fitness as determined from
competitive examinations.
• Although exempt from competitive exam, they cannot also be
removed without cause.
Usually for lawyers, we belong the either policy-determining, primarily
confidential (kanang mga legal staff) and highly technical positions.
There are third level positions such Undersecretary, Assistant
Secretary, etc as provided for here and may be identified by the
Career Executive Service Board (CESB).
Career Executive Service [CES]
Third Level positions such as Undersecretary, Asst. Secretary,
Bureau Director, Asst. Bureau Director, Chief of Dept. Service and
other officers of equivalent rank as identified by the Career Executive
Service Board [CESB], all of whom are appointed by the President.
They have NO SECURITY OF TENURE, may be removed anytime
unless they have been issued CESO rank by the President.
Never been asked in the Bar because you still have to look at the
listing of the Board as to these positions. That’s why I simply said third
level positions such as, so we can’t say that these are the only. What is
important is if these are the positions identified by the Board, they
have no security of tenure and therefore can be removed anytime. The
only exception is when the President issues or gives a CESO rank to
the officer.
HOLD-OVER PRINCIPLE
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HOLD-OVER PRINCIPLE
 A PUBLIC OFFICER WHOSE TERM OF OFFICE HAS EXPIRED OR
WHOSE SERVICES HAVE BEEN TERMINATED IS ALLOWED TO
CONTINUE HOLDING OFFICE UNTIL HIS SUCCESSOR IS
APPOINTED OR CHOSEN AND HAS QUALIFIED.
RATIONALE: PUBLIC INTEREST; PREVENT HIATUS IN
PUBLIC SERVICE
 RULES:
WHEN LAW PROVIDES FOR IT: INCUMBENT WILL
HOLD OVER EVEN IF BEYOND THE TERM FIXED BY LAW UNTIL
SUCCESSOR IS CHOSEN/ APPOINTED
WHEN LAW IS SILENT: UNLESS EXPRESSLY OR
IMPLIEDLY PROHIBITED, INCUMBENT MAY HOLD OVER
Hold-over principle as a general rule is not allowed. It is only allowed
when the law allows holding office beyond a fixed term. Hold-over
principle is allowed by law as in the case of BARANGAY OFFICIALS.
And there is implied prohibition to hold-over if there is a fixed term
because that is an indication that after the end of the term, the officer
has to step down. But supposedly it is allowed to prevent a vacuum in
public office.
DOCTRINE OF OFFICIAL IMMUNITY
For holding or detaining certain products, these officers of the BOC
were sued for damages for the performance of their functions. Even if
they were sued in their personal capacity, what did the SC say?
(Farolan case)
DOCTRINE OF OFFICIAL IMMUNITY
It is the duty of the court to see to it that public officers are not
hampered in the performance of their duties or in making decisions for
fear of personal liability for damages due to honest mistake. Whatever
damage they may have caused as a result of such an erroneous
interpretation, if any at all, is in the nature of a damnum absque
injuria. Mistakes concededly committed by public officers are not
actionable absent any clear showing that they were motivated by
malice or gross negligence amounting to bad faith. After all, “evenu
under the law of public officers, the acts of petitioners are protected
by the presumption of good faith.” (Farolan v. Solmac Marketing Corp.,
G.R. No. 83589, March 13, 1991)
This is related to the DAP Case: WON the Secretary of Budget and
Management should be held liable for the wrong interpretation of the
idea of spending a budget or certain appropriation for another purpose
different from the appropriation made by Congress.
The justification supposedly was, they were SAVINGS. But the SC in
the DAP case ruled that savings can only be determined at the end of
the year or the lapse of December 31 of a particular year and that is
when the government can tell whether there are savings or not. So the
executive cannot for example determine in the middle of the year such
appropriation as savings until the end of the year. However, the
interpretation of the Secretary was different. Should the latter be held
liable for its wrong interpretation? No. The reasoning here is given by
the Supreme Court in the case of Farolan. (Refer above)
And of course as you know since this is a mental element, you need to
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determine the presence or absence of this mental element by the
observable overt acts of the official. You have to analyze properly the
problem if there is any indication of such malice or gross negligence.
One can be grossly negligent depending on the facts of the case.
DOCTRINE OF OFFICIAL IMMUNITY; EXCEPTIONS:
- Motivated by malice
- Gross Negligence amounting to bad faith
- Bad Faith
CIVIL LIABILITY (DAMAGES)
 WHEN PERFORMING OFFICIAL FUNCTIONS, PUBLIC OFFICERS
ARE LIABLE ONLY IN CASE OF MALICE, BAD FAITH, GROSS
NEGLIGENCE;
 NOT LIABLE FOR “WRONG INTERPRETATION OF LAW”;
 HEADS ARE LIABLE FOR ACTS OF SUBORDINATES ONLY WHEN
HE HAS “AUTHORIZED BY WRITTEN ORDER THE ACT
COMPLAINED OF”
 BUT: Section 24 OF LCG OF 1991 provides: Liability for
Damages. - Local government units and their officials are not
exempt from liability for death or injury to persons or damage to
property.
In the case of Lansang vs. CA, SC said when performing official
functions, public officers are liable only in case of malice, bad faith, or
gross negligence amounting to bad faith. These are the bases for
holding public officials liable for damages.
THREE-FOLD LIABILITY RULE
Three-fold Liability Rule
Basic in the law of public officersis the three-fold liability
rule, which states that the wrongful acts or omissions of a public
officer may give rise to civil, criminal and administrative liability. An
action for each can proceed independently of the others. (Domingo v.
Rayala, G.R. No. 155831, 155840, 158700, February 18, 2008)
For a singular act, a public officer may be held liable, either:
1. Administratively - whether he should be disciplined or
removed from office
*Disciplined: penalties like suspension, reprimand
and other forms of administrative sanctions
2. Criminal Liability - if the acts of the officer constitute a crime
3. Civil Liability - if acts of officer constitute a ground for
damages
Any of these 3 can proceed independently of one another. Sa bar
exam, this has been asked many times. Usually ang situation kay naay
criminal liability, unya acquitted or dismissed. And then later on, either
administrative or civil liability ang gi-file thereafter. Unya ang ground
sa motion to dismiss would be the acquittal sa criminal case, and
therefore cannot be held liable administratively or civilly. You know
how to address that problem already.
12
Q: Ngano naa may Threefold Liability Rule? Explain why this principle
exists. And why is it that one action can proceed independently of the
others?
A:
1. Quantum of evidence is different
2. Different causes of action
Quantum of Evidence required is different
Criminal – proof beyond reasonable doubt
Administrative – substantial evidence
Civil – preponderance of evidence
But so what if lahi ilang requirements? Tanawn nimu ang hierarchy of
proof required. So sayon ra kaayo na ma-justify. One may have been
acquitted for failure to prove guilt beyond reasonable doubt, but the
same person may be held civilly or administratively liable because of
the lower requirements of evidence needed.
Different Causes of Action
Kung ato ning balihon, pananglitan, not liable siya civilly. So ni-ingon
na ang court in a civil case, so this person, the public officer under the
facts is so established not liable unya ikiha siya criminally.
Q: Is it a sound argument to say, wala man gani siya na civilly liable sa
preponderance of evidence then logically, he cannot be convicted?
DBL: so dili lang di-ay na about the burden of proof requirement.
Student: they also have different causes of action.
DBL: for me that is the better answer, different causes of action.
Q: What is a cause of action?
A: There is an act or omission that is in violation of a right. So there is
invasion of right and that is determined by law. And because there are
different causes of action, different law ang nag govern. Of course,
criminal law – revised penal code; Civil case – generally the Civil Code;
administrative lain sad.
For me it’s not only the burden of proof requirement. As I have said
kung balihon nimo dili man mo follow.
Remember, however, the exception to civil liability can still prosper
even if there is acquittal because one exception is when the acquittal is
founded on the fact that the act as alleged had not in fact been
committed by the accused. Kung ma-o nay basis sa acquittal then wala
say basis for civil liability. But this is quite complicated because there
are also what we called independent civil actions and actions that are
not independent. So dili na fixed rule ba class nga three-fold liability
automatic sad.
PRESUMPTION OF REGULARITY OF PERFORMANCE;
EXCEPTIONS
[Not discussed. Delos Santos case digest in p. 15]
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LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF
SUBORDINATES
Q: What is the reasoning of the Arias doctrine?
A: A superior should not be held liable for any irregularities, omissions
committed by subordinates and cannot be considered in conspiracy
automatically with the subordinates. Because the standing policy is
that … [quoting below]
LIABILITY FOR ACTS OF SUBORDINATES
• ARIAS DOCTRINE (1989):
We would be setting a bad precedent if a head of office plagued
by all too common problems - dishonest or negligent subordinates,
overwork, multiple assignments or positions, or plain incompetence is
suddenly swept into a conspiracy conviction simply because he did not
personally examine every single detail, painstakingly trace every step
from inception, and investigate the motives of every person involved in
a transaction before affixing, his signature as the final approving
authority.
Under the Arias doctrine, he is not supposed to examine extensively
the record before he affixes his signature in approving a particular
project.
But if we take a look at the case of Cesa vs. the Ombudsman,
which by the way cited the earlier case Alfonso vs Office of the
President, and in relation to the much later case of Bacasmas vs.
Sandiganbayan.
In the case of Cesa…this is a Cebu City case, there were request for
salary advances, approved by the cash division, then occupied by
Bacasmas. And then the City Treasurer at that was Eustaquio Cesa and
the City Administrator was Atty. Allan Gaviola. So ang policy sa
approval of cash advances would be mo prepare ang Head sa Cash
Division sa mga forms and then there will be three boxes to be signed
by the Head of the Cash Division, the second box to be signed by the
City Treasurer and the third box to be signed by City Administrator. So
three signatures.
Kaning si Cesa ni invoke sa Arias doctrine because city treasurer man
siya and he said ang iyang signature would only depend on whether
the cash division head has also approved the release of the cash
advances. On the other hand, ang city administrator would also sign if
he finds there the signatures of the city treasurer and the head of the
cash division. In both cases of Cesa and the City administrator Gaviola,
the Arias doctrine was not applied.
Issue on both cases is that whether or not the superior can be held
criminally liable in conspiracy with the subordinates.
The difference of both cases, the Cesa and Santillano, is that in Cesa,
if public official’s foreknowledge of facts and circumstances that
suggests irregularity (the irregularity is not apparent).
 ALFONSO DOCTRINE (2007);
 Reiterated in CESA (2008):
A public official's foreknowledge of facts and circumstances
that suggested an irregularity constitutes an added reason to exercise
a greater degree of circumspection before signing and issuing public
documents. By failing to prevent the irregularity that a superior
had reason to suspect all along or to take immediate steps to
rectify, the superior will be held liable.
13

Whereas in Santillano case, the irregularity is apparent because in
that case there is a project and a contractor. The project which is
supported by a 4.5m budget released for that particular project but the
completion cost only amounts to 3m plus. This involves the difference
between the budget released and the completion cost. Secondly, the
documents supporting the project are not voluminous unlike in arias
case which the irregularity cannot be discovered easily; irregularity is
not apparent; irregularity cannot be expected to be discovered right
away.
If the irregularity is apparent and the files are not bulky or voluminous,
the superior is required to check and determine whether or not there is
an irregularity. (Santillano case governs); but if the irregularity is not
apparent, Cesa and Bacasmas case will govern. Irregularities cannot
be seen but there are facts and circumstances that would suggest
irregularity. Public official’s foreknowledge of facts and circumstances
that suggested irregularity constitutes an added reason to exercise a
greater degree of circumspection before signing and issuing public
documents.
But in the case of Bacasmas vs. Sandiganbayan, ang involved man
gud to ug cash advances nya according to the law on cash advances, d
i class kanang cash advances aprobahan mana class kung na
liquidated ang earlier cash advances common na siya nga practice, so
kung ikaw ang taga cash division kung naay mu request ug cash
advance mg prepare ka, ikaw nga city treasurer even if ni sign ang
head sa cash division kahibaw man ka nga cash advance na you are
familiar with the policy before nmu approbahan ang cash advance, ang
earlier cash advances duly liquidated, and that’s a very simple task to
do, pag tan-aw nimu unsa mani cash advance, unsa man to kani adto
na liquidated ba ni, tan.awa kuno b, ug wala ayaw ug sign, very simple
ok?
Ayaw ug hide sa principle sa ARIAS because that is a very simple thing
to do that’s why in ingun ang SC in Bacasmas, there was gross
negligence amounting to bad faith, in fact there was kuno conspiracy,
you know why? It did not happen one time lang and that’s an added
fact mao wala gyud ni tu-o ang SC nga ARIAS doctrine ang i apply, ok?
So it had been for several years cash advance! cash advance! Nya
unliquidated ang earlier cash advances, ok? So mao na siya class.
Bacasmas vs. Sandiganbayan
(July 10, 2013)
Petitioners cannot hide behind our declaration in Arias v.
Sandiganbayan that heads of offices cannot be convicted of a
conspiracy charge just because they did not personally examine every
single detail before they as the final approving authorities, affixed their
signatures to certain documents. The Court explained in that case that
conspiracy was not adequately proven, contrary to the case at bar in
which petitioners’ unity of purpose and unity in the execution of an
unlawful objective were sufficiently established.
Also, unlike in Arias, where there were no reasons for the
heads of offices to further examine each voucher in detail, petitioners
herein, by virtue of the duty given to them by law as well as by rules
and regulations, had the responsibility to examine each voucher to
ascertain whether it was proper to sign it in order to approve and
disburse the cash advance.
[digest available in p. 15]
I already mentioned there are rules on liquidation on previous cash
advances before another set of request for cash advance be approved.
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Ok then, that should be settled.
LIABILITY FOR ACTS COMMITTED OUTSIDE OF DUTY
Q: Is a public officer liable for acts not related to their office?
I’m sure you won’t be surprise by the rule. It’s hard to distinguish noh
the private and public life of a public officer. It’s really hard to
distinguish so “acts that have nothing to do with their functions will
still be a basis for a disciplinary action”.
For example, a school teacher borrowing money and failed to pay----
every time sir sends a demand letter, the last paragraph of my
demand letter i ingun nako “we reserve the right to initiate
administrative action or actions before the office of the ombudsman
for your failure to honor a just obligation”. Kay may SC decision na
man ana failure to pay a a valid or just debt or obligation is actionable
for those who are in public employment. Pwedi ka ma disciplina for
non-payment of debt, so maka ingun ka, so may labot ani sa akung
pgka maestra ani sa akung pagka borrower, because it’s really difficult
to distinguish the public and private life of a public officer or employee,
so in fact if we talk about dishonesty for example, in order to warrant
dismissal need not be committed in the course of duty by the person
charged, so it refers to the person, not to the act now.
DISCIPLINE: Dishonesty committed outside of duty
• Dishonesty, in order to warrant dismissal, need not be committed in
the course of the performance of duty by the person charged.
• The private life of an employee cannot be segregated from
his public life. Dishonesty inevitably reflects on the fitness of the
officer or employee to continue in office and the discipline and morale
of the service. (Remolona vs. CSC [2001]
AUTHORITY TO INVESTIGATE ACTS OF PUBLIC OFFICERS
Finally, we have the aspect on the authority to investigate acts of
public officers.
There is no rule, by the way, that only the Ombudsman can
investigate. Actually, any investigative office can investigate any public
offcer. Naa lang siya’y primary BUT NOT exclusive authority.
So this is how the SC stated this rule:
Authority to Investigate Acts of Public Officers
The Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses committed
by public officers or employees. The authority of the Ombudsman to
investigate offenses involving public officers or employees is
concurrent with other government investigating agencies such as
provincial, city and state prosecutors. However, the Ombudsman, in
the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating
agency of the government, the investigation of such cases. (ALFREDO
ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE OMBDUSMAN
[MINDANAO] [and] ROSA S. BUSUEGO, respondents., G.R. No.
196842, October 09, 2013)
[digest available in p. 16]
14
So for those cases that are cognizable by the Sandiganbayan, the were, in fact, merely designated with additional duties, which
Ombudsman has the primary jurisdiction and to implement or to put designation did not entitle them to additional EME. InDimaandal
teeth to this primary jurisdiction of the Ombudsman for cases that are v. COA, we held that designation is a mere imposition of
triable by the Sandiganbayan (Salary Grade 27), the Ombudsman may additional duties, which does not entail payment of additional
take over at any stage investigations by the government. Pwede siya benefits. Since the TESDA officials were merely designated with
ka take-over but this does not mean that his jurisdiction is exclusive. It additional duties, the ruling in Cantillo v. Arrieta on de
could happen that the investigation was started by the prosecutors facto officers need not be discussed.|||
and then it is taken over.
2) The Director-General's blatant violation of the clear provisions of
[END of CLASS DISCUSSION] the Constitution, the 2004-2007 GAAs and the COA circulars is
equivalent to gross negligence amounting to bad faith. He is
required to refund the EME he received from the TESDP Fund for
himself. As for the TESDA officials who had no participation in the
DIGESTS OF RECENT JURISPRUDENCE approval of the excessive EME, they acted in good faith since they
had no hand in the approval of the unauthorized EME. They also
honestly believed that the additional EME were reimbursement for
TESDA v. COA, G.R. No. 204869, March 11, 2014
their designation as project officers by the Director-General.
Being in good faith, they need not refund the excess EME they
Facts:
received.
Upon post audit, the TESDA audit team leader discovered that for the
calendar years 2004-2007, TESDA paid Extraordinary and
Delos Santos v. COA, G.R. No. 198457, August 13, 2013
Miscellaneous Expenses (EME) twice each year to its officials from two
sources: (1) the General fund for locally-funded projects, and (2) the
Facts:
Technical Education and Skills Development Project (TESDP) Fund for
This case is about the controversy of the Tony N’ Tpmmy Health
the foreign-assisted projects.||| The payment of EME was authorized
Program (TNT) which seeks to aid indigent patients in Vicente Sotto
under the General Provisions of the General Appropriations Acts of
Memorial Medical Center (VSMMC) in providing medicines for free. This
2004, 2005, 2006 and 2007 (2004-2007 GAAs), subject to certain
program was funded by the former Congressman Tony Cuenco,
conditions, among others, only to the ranks specified and that
pursuant to a MOA with VSMMC. It was agreed, inter alia,
miscellaneous expenses should not exceed P50,000 for each office of
that: (a) Cuenco shall identify and recommend the indigent patients
each of those officials.
who may avail of the benefits of the TNT Program for an amount not
exceeding P5,000.00 per patient, except those with major illnesses for
The audit team issued Notice of Disallowance No. 08-002-101 (04-
whom a separate limit may be specified; (b) an indigent patient who
06) disallowing the payment of EME amounting to P5,498,706.60 for
has been a beneficiary will be subsequently disqualified from seeking
being in excess of the amount allowed in the 2004-2007 GAAs. In
further medical assistance; and (c) the hospital shall purchase
addition, the EME were disbursed to TESDA officials whose positions
medicines intended for the indigent patients from outside sources if
were not of equivalent ranks as authorized by the Department of
the same are not available in its pharmacy, subject to reimbursement
Budget and Management (DBM), contrary to the provisions of the
when such expenses are supported by official receipts and other
2004-2007 GAAs. It indicated the persons liable for the excessive
documents. When COA found out about the falsification and forgeries
payment of EME: the approving officers, payees and the
on the medicine prescriptions, VSMMC Administration headed by
accountants.|||
VSMMC Chief Delos Santos initiated a fact – finding committee to act
TESDA’s argument: TESDA insists on its interpretation justifying its
on the matter which yielded the finding that VSMMC was blinded by
payment of EME out of the TESDP Fund. It argues that the 2004-2007
the TNT office and the staff of Cuenco. However, the Special Audit
GAAs did not prohibit its officials from receiving additional EME
Team of COA held the following people solidarily liable for the
chargeable against an authorized funding, the TESDP Fund in this
disallowed funds supposedly as payment for the vaccines and
case, for another office to which they have been designated.
medicines amounting to P3M: (a) for Delos Santos, in her capacity as
Medical Center Chief, for signing and approving the disbursement
Issue:
vouchers and checks; (b) for petitioner Dr. Josefa A. Bacaltos, in her
1) WON TESDA is justified in granting Project Officers
capacity as Chief Administrative Officer, for certifying in Box A that the
additional EME despite the fact that they were not included
expenses were lawful, necessary and incurred in her direct
in the ranks mentioned in the GAA
supervision; (c) for Antoni, in her capacity as Chief of the Pharmacy
2) If the answer is in the affirmative, who should be held liable
Unit, for approving the supporting documents when the imputed
to reimburse funds illegally released?
delivery of the medicines had already been consummated; (d) for
petitioner Maureen A. Bien, in her capacity as Hospital Accountant, for
Ruling:
certifying in Box B of the disbursement voucher that the supporting
1) No. TESDA’s authorization of granting EME to project officers has
documents for the payment to Dell Pharmacy were complete and
no legal basis. The position of project officer is not among those
proper.|||
listed or authorized to be entitled to EME, namely, the officials
In defense, they raised this argument: VSMMC was merely a passive
named in the GAA, the officers of equivalent rank as may be
entity in the disbursement of funds under the TNT Program and, thus,
authorized by the DBM, and the offices under them. The
invoke good faith in the performance of their respective duties,
underlying principle behind the EME is to enable those occupying
capitalizing on the failure of the assailed Decisions of the CoA to show
key positions in the government to meet various financial
that their lapses in the implementation of the TNT Program were
demands. As pointed out by COA, the position of project officer
attended by malice or bad faith.|||
is not even included in the Personnel Service Itemization or
created with authority from the DBM. Thus, the TESDA officials
Issue:

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WON VSMMC can be presumed to be regular in the performance of its
functions under the MOA of TNT, thus cannot be held liable for the
disallowed funds
Ruling:
NO. VSMMC may not invoke the presumption of regularity because it
has violated an explicit rule.
Jurisprudence holds that, absent any showing of bad faith and malice,
there is a presumption of regularity in the performance of official
duties. However, this presumption must fail in the presence of an
explicit rule that was violated. For instance, in Reyna v. CoA (Reyna),
the Court affirmed the liability of the public officers therein,
notwithstanding their proffered claims of good faith, since their actions
violated an explicit rule in the Landbank of the Philippines' Manual on
Lending Operations. In similar regard, the Court, in Casal v.
CoA (Casal), sustained the liability of certain officers of the National
Museum who again, notwithstanding their good faith participated in
approving and authorizing the incentive award granted to its officials
and employees in violation of Administrative Order Nos. 268 and 29
which prohibit the grant of productivity incentive benefits or other
allowances of similar nature unless authorized by the Office of the
President. In Casal, it was held that, even if the grant of the incentive
award was not for a dishonest purpose, the patent disregard of the
issuances of the President and the directives of the CoA amounts to
gross negligence, making the ["approving officers"] liable for the
refund [of the disallowed incentive award].
Just as the foregoing public officers in Reyna and Casal were not able
to dispute their respective violations of the applicable rules in those
cases, the Court finds that the petitioners herein have equally failed to
make a case justifying their non-observance of existing auditing rules
and regulations, and of their duties under the MOA.
Petitioners' acts and/or omissions as detailed in the assailed CoA
issuances and as aforedescribed reasonably figure into the finding that
they failed to faithfully discharge their respective duties and to
exercise the required diligence which resulted to the irregular
disbursements from Cuenco's PDAF. In this light, their liability pursuant
to Sections 104 and 105 of the Auditing Code, as well as Section 16 of
the 2009 Rules and Regulations on Settlement of Accounts, as
prescribed in CoA Circular No. 2009-006, must perforce be upheld.
Truly, the degree of their neglect in handling Cuenco's PDAF and the
resulting detriment to the public cannot pass unsanctioned, else the
standard of public accountability be loosely protected and even
rendered illusory.|||
Bacasmas v. Sandiganbayan, G.R. No. 189343, 189369,
189553, July 10, 2013
Facts:
The following Cebu City Government officials, who were held liable for
the P9M accumulated shortage in the City’s funds from 20 September
1995 to 5 March 1998 from the cash and accounts of the paymaster,
Luz Gonzales| take part in the process of approving and releasing cash
advances described as follows:
A written request for a cash advance is made by paymaster Luz
Gonzales (Gonzales), who then submits it to Cash Division Chief
Bacasmas for approval. Once the latter approves the request, she
affixes her initials to the voucher, which she forwards to City Treasurer
Cesa for his signature in the same box. By signing, Bacasmas and Cesa
certify that the expense or cash advance is necessary, lawful, and
incurred under their direct supervision.
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Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca
(Jaca) for processing and pre-audit. She also signs the voucher to
certify that there is adequate available funding/budgetary allotment;
that the expenditures are properly certified and supported by
documents; and that previous cash advances have been liquidated and
accounted for. She then prepares an Accountant's Advice (Advice).
This Advice is returned with the voucher to the Chief Cashier for the
preparation of the check. After it has been prepared, she affixes her
initials to the check, which Cesa then signs. Afterwards, City
Administrator Gaviola approves the voucher and countersigns the
check.
The voucher, the Advice, and the check are then returned to the Cash
Division, where Gonzales signs the receipt portion of the voucher, as
well as the Check Register to acknowledge receipt of the check for
encashment.
Upon receipt of the check, Gonzales encashes it at the bank, signs the
voucher, and records the cash advance in her Individual Paymaster
Cashbook. She then liquidates it within five days after payment.
A report of those cash advances liquidated by Gonzales is called a
Report of Disbursement (RD). An RD must contain the audit voucher
number, the names of the local government employees who were paid
using the money from the cash advance, the amount for each
employee, as well as the receipts. The RDs are examined and verified
by the City Auditor and are thereafter submitted to the Cash Division
for recording in the official cash book.
These officials now invoke the Arias Doctrine as defense.
Issue: WON the petitioners’ invocation of the Arias Doctrine is correct
Ruling:
NO. They are incorrect. Petitioners' acts not only show gross
negligence amounting to bad faith, but, when taken together, also
show that there was conspiracy in their willful noncompliance with
their duties in order to defraud the government.|||
Not only were petitioners unified in defrauding the government, but
they were also unified in not reporting the negligence of their cohorts
because of their own negligence. Cesa himself admitted knowing that
Gonzales had unliquidated cash advances, yet he signed the vouchers.
He also failed to inform the other officials that they should not sign the
vouchers and tolerated their negligence when they affixed their
signatures thereto. Petitioners, through their admissions before the
Sandiganbayan, all knew that there were irregularities in the vouchers;
still they failed to correct one another, because they themselves signed
the vouchers despite the glaring irregularities therein.
Petitionerscannot hide behind our declaration in Arias v.
Sandiganbayan that heads of offices cannot be convicted of a
conspiracy charge just because they did not personally examine every
single detail before they, as the final approving authorities, affixed
their signatures to certain documents. The Court explained in that case
that conspiracy was not adequately proven, contrary to the case at bar
in which petitioners' unity of purpose and unity in the execution of an
unlawful objective were sufficiently established. Also, unlike in Arias,
where there were no reasons for the heads of offices to further
examine each voucher in detail, petitioners herein, by virtue of the
duty given to them by law as well as by rules and regulations, had the
16
responsibility to examine each voucher to ascertain whether it was
proper to sign it in order to approve and disburse the cash advance.
ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE
OMBUDSMAN (MINDANAO) [and] ROSA S. BUSUEGO,
respondents., G.R. No. 196842, October 09, 2013
Facts:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their
Children); and (3) Grave Threats under Article 282 of the Revised
Penal Code, before the Office of the Ombudsman against her husband,
Alfredo, with designation Chief of Hospital, Davao Regional Hospital,
Apokon, Tagum City.|||
Ombudsman issued a resolution finding probable cause to indict
Alfredo and mistress for Concubinage. In the same resolution, it held
that the motion of Alfredo to refer this case to the Office of the City
Prosecutor, grounded on the fact that the criminal charges imputed
are not in relation to office||| was belatedly filed.
When the matter was brought to SC, Alfredo claims that the
Ombudsman should have referred Rosa's complaint to the Department
of Justice (DOJ), since the crime of Concubinage is not committed in
relation to his being a public officer. |||
Issue: WON the complaint was properly filed before the Office of the
Ombudsman
Ruling:
YES, the Ombudsman has primary jurisdiction over offenses
cognizable within the Sandigabayan.
To reiterate for emphasis, the power to investigate or conduct
preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial or
city prosecutor or their assistants, either in their regular capacities or
as deputized Ombudsman prosecutors. The fact that all prosecutors
are in effect deputized Ombudsman prosecutors under the OMB-DOJ
circular is a mere superfluity. The DOJ Panel need not be authorized
nor deputized by the Ombudsman to conduct the preliminary
investigation for complaints filed with it because the DOJ's authority to
act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from
the Revised Administrative Code which had been held in
the Natividad case [citation omitted] as not being contrary to the
Constitution. Thus, there is not even a need to delegate the conduct of
the preliminary investigation to an agency which has the jurisdiction to
do so in the first place. However, the Ombudsman may assert its
primary jurisdiction at any stage of the investigation.|||
[END OF LAW ON PUBLIC OFFICERS]
BY:
Bayalas, Biton, Borres, Caminade, Cañada, Chan, Duran-Ybañez, Fookson,
Gallego, Gan, Judilla, Lao, Lesigues, Lulu, Lumapas, Ortezuela, Otero,
Paglinawan, Robles, Salas, Sanchez, Tampus, Tapia, Ubod
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Note: Arrangement is chronological according to class sessions. You may see
repetitions and/or scattered transcripts of the same topic throughout the
material. This is because discussions were conducted across two distinct periods:
pre- and post- mock bar. Segregation was done only on the subject level: Local
Government Law (Public Corporation) and Public International Law.
LOCAL GOVERNMENT LAW
{PRE-MOCK BAR, August 29, 2014}
First in my presentation would be the 2 kinds of corporation. Primarily,
a corporation can be classified as either private or public. This is
fundamental. You will see later on that there are other nuances that
we should need to know. So this definition I gathered from one of the
eminent authors in law of municipal corporations, Judge Dillon. By the
way, there are about 3 or 4 well known authorities in local government
law. I made use of their opinions as well in trying to effectively deliver
the course to my students. So from time to time you will see that I will
be quoting from foreign authors. How did I come to know that these
foreign authors are indeed authorities on the matter. I surveyed
Supreme Court decisions from 1901-present. And these authors are
consistently quoted: Machellin, Dillon, Poley...
By definition, a private corporation is -
Kinds of Corporation, in general:
 A private corporation is one that is formed for some
private purpose, benefit, aim or end, such as a business
corporation formed and organized under a general law on
corporation. It is created for private objects. (Dillon, supra.)
 A public corporation is one that is organized for
government of a portion of a state, such as a local
government unit. It is created for public purpose. (Dillon,
supra.)
Of course a typical example is any private corporation organized under
the corporation code of the Philippines. What is problematic however is
how to tell whether a corporation is public. Sayon ra manang to
determine private; while to determine whether a corporation is public
requires another level of analysis. But by definition a public corpo is
…(pls refer to slide above). And an example of which, according to
Judge Dillon, is a local government unit. So it is created for public
purpose. If you look at the definition you might be able to answer this
question …
What are the tests in determining whether a “corporation” is public or
private?
How many tests are there? There are 2 tests in determining whether a
corporation would qualify as public corporation.
One is purpose test. Which means that we need to look into the
purpose for which a corporation is organized if whether it is
established for governmental purpose/public purpose. If the answer is
yes then under that test, the corporation is public.
The other test is the relationship test. Under which the question
would be what is the relation of the corporation to the state. If the
answer is that the corporation would be established for the purpose of
making the corporation an agent of the state in the performance of its
17
functions then it is public. So it’s not much of the purpose but the
corporation’s relationship to the state. Meaning, it is intended to
perform the function of the government and therefore it is meant to be
an agent of the state. If the answer is yes, then it is public.
I am sure you have encountered these precepts when you had read
the case of BSP vs. COA when we were studying administrative law.
But we studied this case, in light of admin law, for the purpose of
highlighting the concept what is instrumentality of the state. And there
we learned that instrumentalities of the government include public
corporation. So the moment it is classified as public corporation, it is
considered as instrumentality of the state. In which case, it is then
within the jurisdiction of Commission on Audit. So this problem is taken
from the very facts of BSP vs. COA.
Problem
The Boy Scouts of the Philippines (BSP) was created by C.A. No.
111 “to promote …the ability of boys to do useful things for
themselves and others,…and to inculcate in them patriotism, civic
consciousness and responsibility, courage, self-reliance, discipline, and
kindred values, and moral values, using the method which are in
common use by boy scouts.” BSP is not anymore a GOCC. The
National Executive Board of BSP no longer consists of several Cabinet
Secretaries, except the Secretary of Education, under R.A. No. 7278.
COA asserts jurisdiction over BSP contending that it is still a
government agency.
Is BSP still an “instrumentality” of the government and perforce
under COA’s jurisdiction?
Now notably the Supreme Court in BSP vs. COA declared that BSP is a
public corporation. It is a public corporation but what test was used by
the majority opinion? This means that you should take note the dissent
of Justice Carpio. The majority declared that it is a public corporation
and 2 reasons were given. 1st, It was declared in the law that created
BSP itself, Commonwealth Act no. 111, if you look at the title of the
charter of BSP, it says “an act creating a public corporation to be
known as Boy Scouts of the Philippines. The other reasoning of the
court was (2nd) it was created for a public purpose, and that public
purpose was to inculcate upon the youth, virtues of citizenship and
patriotism. Kana kunu is public purpose. In other words the majority
opinion applied the purpose test.
BSP vs. COA (2011)
The BSP still remains an instrumentality of the national
government. It is a public corporation (this is declared in C.A. No.
111 itself) created by law for a public purpose, attached to the DECS
pursuant to its Charter and the Administrative Code of 1987. It is not
a private corporation which is required to be owned or
controlled by the government and be economically viable to justify
its existence under a special law.
[See, however, the dissent of Justice Carpio.]
But what did Justice Carpio say in his dissent? Carpio said that yes, it
is true that it has public purpose but this fact alone does not make
automatically the BSP a public corporation (GOCC)…
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Dissent of J. Carpio
Indeed, the BSP performs functions which may be classified as
public in character, in the sense that it promotes “virtues of citizenship
and patriotism and the general improvement of the moral spirit and
fiber of our youth." However, this fact alone does not automatically
make the BSP a GOCC …
 Authorities are of the view that the purpose alone of the
corporation cannot be taken as a safe guide, for the
fact is that almost all corporations are nowadays created to
promote the interest, good, or convenience of the public.
 The true criterion, therefore, to determine whether a
corporation is public or private is found in the totality of
the relation of the corporation to the State. If the
corporation is created by the State as the latter’s own
agency or instrumentality to help in carrying out its
governmental functions, then that corporation is considered
public; otherwise, it is private.
There is a good reason for this, kung public purpose lang, ingon
Justice Carpio, what about schools? Dba to educate is a governmental
function? Yes because it is one of the duties of the state. Dba
education or hospitalization public purpose mana? So if we go by the
analysis of the majority opinion according to Justice Carpio, then
private schools and private hospitals should likewise qualify as public
corporation if we go by the purpose test only. Therefore, it should not
be the only test, you should apply the relation test in that regard.
Justice Carpio mentioned a case decided in 2007 applying the relation
test -
Applying the above test, provinces, chartered cities, and
barangays can best exemplify public corporations. They are
created by the State as its own device and agency for the
accomplishment of parts of its own public works. (citing
Philippine Society for the Prevention of Cruelty to Animals v.
Commission on Audit [2007])
The true public corporation nga wala gyud debati class - local
government units; kung per se or objectively speaking atong hisgutan.
Because you know for a fact that sometimes we characterize things for
a limited purpose, and only for resolving a particular issue. But, if we
are to look at the corporation per se and classify it, not for any limited
purpose but per se, then we go by the relation test.
Let’s look at Special Kinds of Corporations. This is important because
this was asked in the bar, for one; and secondly, you should be aware
also. There are 3 kinds:
18
Special Kinds of Corporations:
1. Corporation De facto – the consent of the state is implied
rather than expressed, by the general consent to that kind of
corporation, even though the conditions of incorporation are
not substantially complied with.
2. Corporation by prescription – under the principles of
common law, where a body of men have been for a long
time in the exercise of corporate powers, a presumption
arises of an ancient charter granted to their predecessors,
making the exercise of such powers by them lawful and
rightful, a lost grant or charter from the crown being
presumed. Teodorico C. Martin, Commentaries and
Jurisprudence on Philippine Commercial Law (1986).
3. Corporation by estoppel
Fletcher: “While as against the state a corporation cannot be
created by the mere agreement or other act or omission of
private persons, yet as between private litigants they may,
by their agreements, admissions, or conduct, place
themselves where they would not be permitted to deny the
fact of the existence of the corporation.”
I must have shown this in one of our exams in Local Government Law
- declared invalid if the desires to have it declared (as you know, it is an
Bar Exam (2011)
Define/explain the following:
A. Doctrine of operative facts (1%)
B. De facto municipal corporation (1%)
C. Municipal corporation by estoppel (1%)
Just transpose the concepts of Corporation Law on the kinds of
corporation into municipal corporations.
Let’s go then to the Kinds of Public Corporation -
Kinds of Public Corporation
1. Quasi-public corporation – a public corporation that
renders public service or supplies public wants, such as
utility companies. It combines the elements of both public
and private. Though organized for private profit, they are
compelled by law or contract to render public service.
(Dillon, supra.). E.g. public utility companies.
2. Municipal corporations - body politic and corporate
constituted by the incorporation of the inhabitants for
purposes of local government thereof. Recently referred to
as “local governments”.
It is called Quasi-public Corporation because in reality it is a private
corporation. Those organized under Corporation Code of the
Philippines, so that’s a general law, so private sya. But it may be
characterized as quasi-public if it performs some public purpose
functions.
Let me show to you a problem that I did not show to you when you
were under me:
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Problem
The Municipality of Badong was created in 1964 by Executive Order
No. 123. In 1965, the case of Pelaez vs. Auditor General nullified E.O.
123 on the ground that the creation of a municipal corporation is a
legislative, not executive, function. The officials of Badong argued that
its creation must be affirmed because of the “Doctrine of Operative
Fact”. Rule on this contention.
You remember in the case of Pelaez v. Auditor General, 33 Executive
Orders creating municipal corporations were declared by the Supreme
Court as unconstitutional on the ground that the President cannot
create a municipal corporation; it is a legislative function.
What is interesting here is the argument of officials of Badong saying
that the Municipality of Badong must be affirmed because of the
Doctrine of Operative Fact. What’s wrong with the argument?
The Doctrine of Operative Fact applies only to the acts of the officers
of the Municipality of Badong and not to its status. You don’t apply the
Doctrine of Operative Fact to make an unconstitutional act
constitutional. It’s a wrong application. The doctrine applies to the
acts; dili i-declare nga valid ang corporation. Of course, it will be
option on the part of the state). But as to the effects, those will be
recognized as if the same were acts of officials of de jure corporations;
so considered valid.
You know why that is important? Look at this question in the Bar exam
-
2004 Bar Exam
Suppose that one year after Masigla was constituted as a municipality,
the law creating it is voided because of defects. Would that invalidate
the acts of the municipality and/or its municipal officers?
ANSWER: (Mun. of Malabang v. Benito)
So specific siya sa acts. What is the answer? Doctrine of Operative
Fact, as established in Municipality of Malabang vs. Benito.
“The Doctrine of Operative Fact” says the Supreme Court “recognizes
the existence of the law or executive act prior to the determination of
its unconstitutionality as an operative fact that produced consequences
that cannot always be erased, ignored or disregarded. In short, it
nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or
unconstitutional law produces no effect.
Here, you need to be careful; because had the question been, would
Masigla qualify as a de facto municipal corporation, after the law
creating it had been voided? That’s a different question.
You remember that there are two reasons/justifications for the
doctrine of de facto municipal corporation: (1) Operative Fact Doctrine,
and (2) Doctrine of Prescription – that municipal corporations, even if
created irregularly from the start may be entitled to recognition as de
facto municipal corporation after a long period of time. Remember
Municipality of Jimenez vs. Bas, 40 years usa pa na question. Unsa
may gi-ingon sa Supreme Court? At least de facto siya. Galing lang na
de jure kay gi-recognize sa Ordinance or Appendix to the 1987
Constitution kay gilista as one of the local government units
19
constituting a particular legislative district.
So in the problem I gave, that’s almost the same - 1 year after, would
it qualify as de facto? What I’m trying to say is this: pwede diay class
nga ang municipal corporation may not be declared even as a de facto
municipal corporation because di siya mu-qualify, like the case of
Andong. But even if the municipal corporation may not qualify as a de
facto municipal corporation, we treat the acts differently. We apply
Doctrine of Operative Facts insofar as the acts are concerned because
as observed di naman ta orthodox view insofar as the effects of
unconstitutionality are concerned. Unsa naman atong gi apply? Modern
view na. The orthodox code was used in the past. It was based on the
Civil Code (1949 which took effect in 1950?).
To recap: A municipal corporation may not qualify as de facto
municipal corporation but that doesn’t mean that its acts may not be
honored as valid because we can apply also the Doctrine of Operative
Fact.
But of course, obviously if mu qualify sya as de facto municipal
corporation, with more reason nga ang acts kay mao mana ang effects
sa declaration of a de facto municipal corporation – that the acts of the
de facto municipal corporation will be considered as acts of officials of
a de jure municipal corporation.
Municipality of Malabang vs. Benito (1969)
E.O. 386 creating the municipality in question is a nullity pursuant to
the ruling in Pelaez v. Auditor General and Municipality of San Joaquin
v. Siva. The E.O. therefore “created no office.” This is not to say,
however, that the acts done by the municipality of Balabagan in the
exercise of its corporate powers are a nullity because the E.O. is, in
legal contemplation, as inoperative as though it had never been
passed. For the existence of E.O. 386 is “an operative fact which
cannot justly be ignored.” There is then no basis for the respondents’
apprehension that the invalidation of the executive order creating
Balabagan would have the effect of [..]settling many an act done in
reliance upon the validity of the […] municipality.
As I have said, that is important or there is something we need to
clarify in that regard. Mao man guy giingon sa SC aning Malabang vs.
Benito. Kay ang EO 386 itself was declared by the SC in the Pelaez vs.
Auditor General nga it created no office; but insofar as the effects,
ingon sila it is an operative fact which cannot just be ignored.
Territorial and Political Subdivisions:
Regular LGU’s: Provincies, Cities, Municipalities, and
Barangays
Autonomous Regions: Muslim Mindanao and Cordilleras –Art. X,
Sec. 1 (Constitution)
Special LGU’s: Special Metropolitan Political
Subdivisions –Art. X, Sec. 11 (Consti.)
Question: What is the extent of the power of the President
over the above political subdivisions? State your legal basis.
We go to ART. 10 of the Constitution. As for this regular political
subdivision ang answer nato would be sec.4 Art. 10:
Section 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
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respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.
Dili cya complete in the sense nga wala nag mention of autonomous
region ani sec. 4. So to be able to answer the real relationship
between the president and the autonomous region, we have to go
further. so kana sec. 4 sa provinces, city, mun., and brgy. will be
applicable but in the case of autonomous region naa specific provision,
Sec. 16.:
Section 16. The President shall exercise general supervision over
autonomous regions to ensure that laws are faithfully executed.
Because puede man gud nga pa-dramahon ra ka sa exam nya tagaan
ka ug basic distinction between province, city, municipality, and
autonomous region kai in reality naa man sila distinction.
In regard to the degree of the autonomy kai di ba naa distinction. Ang
LGU other than autonomous region is governed by the Local Gov.
Code and at the same time by their charters in so far as the provision
is not inconsistent with the LGC. Ang sa autonomous region it is
goverened primarily by their Organic Act, nya unsa man difference?
Kani mga prov., city, mun., and bryg. restricted ang power,mostly
delegated, but in the case of autonomous regions specific ang
Constitution nga there are areas where autonomous region can have
original power unlike in LGU na any other power can only be by
delegation. Where can we see this? Sec. 20, mandated areas that
must be in the organic act:
Section 20: Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural heritage; and
9. Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Is the following statement correct?
X City is an independent component city because it is beyond
the supervision of the Province where it is situated, while Y city is a
component city because the Province where it is situated exercises
supervision over it.
Incorrect. I gathered this the way my students answer nga naa mga
misnomer ba. What makes independent component city is not the fact
that it is beyond the supervision of the province. That is the effect that
it is beyond the supervision. It is simply a consequence of its status as
an independent component city. The same is true with a component
city , that it is within the supervision of the province, is simply a
consequence of its status as a component city. What makes it
independent component city or component city is not whether it is
under the supervision of the province.
20

Kinds of Cities:
 Component City – not qualified to be highly urbanized;
inhabitants can vote for provincial candidates and can run
for provincial elective posts = under the supervisory power
of the province
 Independent Component City – independent in the
sense that the charter prohibits the voters from voting for
provincial elective posts = outside the supervisory power of
the province (Abella v. COMELEC)
 Highly Urbanized City – independent from province by
reason of status = outside the supervisory power of the
province
First, we need to know what is a component city. Simple ang defintion
sa CODE: a component city is a city that is neither independent
component city or highly urbanized city. Mao gyud nay sakto. So una
nimu tanawon if ICC or HUC, otherwise , component city gyud na cya.
What is then an independent component city? What makes an
independent component city is a special provision found in the charter.
When what is found in the charter is this prohibiton on the part of the
voters of that city from voting provincial elective posts and as
interpreted in Abello vs. COMELEC, that also includes prohibition to
run for provincial elective office. So the 2 prohibitions are from voting
and from running in the provincial elective posts. Okay, so kung naa
na nga provision, that’s what makes a city an independent component
city. Consequently, beyond the supervisory power of the province.
Next, what is a highly urbanized city? Do we have to see in the charter
if there is the same prohibition to vote or run just like in independent?
NO! We just have to look into the income of the city to determine if
whether it is HUC. Income ra gyud! So what makes it as a HUC, and
beyond the power of supervision of the province is its STATUS. And its
status is determined by income.
Confusingly though in the code (referring to the LGC, ana si sir libug
kay ang LGC kay murag hastily done by its framers, likewise katong RA
9009 ni Pimentel hastily done pud) …di ba sa RA 9009, if a
municipality is to be upgraded to a component city, ang income
requirement kay di ba 100Million na man (previously before RA 9009,
income requirement lang to become a Compoent is 20M). Mas lisud ni
karun. Di lang 100M ang income gi kinahanglan, nangailangan pud ang
RA 9009 na the “100million” should be locally generated. Meaning ang
internal revenue allotment should not be taken into account in
computing the 100Million. [Transcribers’s explanation: if 90 million
ang locally generated income nimo then na kay 20 million na IRA,
supposedly ni-exceed na ang imong income sa 100M requirement so
qualified naka. However pursuant to RA 9009, ang IRA is not to be
taken into account, thus ang katong 20M should not be added to the
90M]
What is RA 9009? It is an act amending section 451 of LGC. Specific
man pud cya. Amending sec. 451. Now if you look at the code
kanang 451 it is the “city” requirement. So ang uban na provision dili
na cya necessarily apil sa amendment sa RA 9009.(so the amendment
is specific and it does not apply to all provisions of the LGC but only a
specific provision-sec 451, just take a look sa law nalang to be sure).
So for highly urbanized city, ang income requirement is still 50million
gihapun. HUC in the LGC is still 50 million, kay specific man ang RA
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9009, an act amending section 451, LGC
So what will happen now? My humble submission would be: the
moment we create a city under RA 9009, therefore complying with the
100M income requirement, that city should be automatically
considered HUC. Why is that important? It is important because ang
idea man gud sa HUC is that is something to be converted pa ba out of
an ordinary city, either from a component or independent city. Just like
in the past. How do we establish an HUC? Di ba by way of conversion.
And Conversion would not require a law. It is different when you
“convert” a component into an independent component, because you
need a law there (a law is required for conversion in that instance).
Likewise, a municipality to be converted to a city, the more reason that
a law is required as well for its conversion.
BUT IF YOU CONVERT an ordinary city (which is either component or
independent city) into a Highly Urbanized City (HUC), WALAY LAW
REQUIREMENT FOR CONVERSION. What is required is merely an
application to the Office of the President , upon submission of the
proof of compliance, for highly urbanized city status.(I’m talking about
the income of 50M and population of at least 250K). If ma comply na,
the President is mandated to issue a conversion within a period of 30
days, no discretion ang President since it is mandated by law. Mao na
ang process sa conversion.
Naturally ang effect would be if mag-create ka under 9009, you do not
have to go through the process of conversion. So that is something
Congress should look into. So it does not make sense to say that..you
create a city out of a municipality. Unya 100M income requirement
complied with, so city naka…so what is the status now of the
municipality? Component city or HUC? Maka argue ba ka nga that
municipality cannot be a HUC kay wa man cya ni follow sa IRR na
dapat ka mag-apply ngadto sa office of the president… FOR ME THAT
IS A USELESS PROCEDURE if mu require pa ka anang application to
the office of the president. So that is one area that the court should
clarify.
Another important principle. You remember this case? I’m talking
about a special situation in creating cities…
Problem
In 1998, by virtue of RA No. 8528, the City of Santiago, Isabela
was converted from an independent component city to a component
city. The constitutionality of RA No. 8528 was assailed on the ground
of lack of provision of the same law submitting the same for
ratification by the people of Santiago City in a proper plebiscite. The
issue was whether the downgrading of Santiago City from an
independent component city to a mere component requires the
approval of the people of Santiago City. Decide.
There are 2 possibilities: whether you upgrade a city or downgrade a
city. Kanag pag-upgrade or pag-downgrade, it could be for a political
reason.
(Although kanang mga politicians, pwede gud na pina-agi “for the
benefit of the constituents”. Nya mu-tuo pud ta dayun. But sa tinuod
naa gyud na political complexion. For example during the time of
former Gov. Gwen Garcia, diba naa man toi isyu na “dili man gyud
mapildi si Gwen sa province”.. aha! Based on a study, murag pildi man
cya kung Cebu City lang ang basehan sa botar. So nganu kaha sa
probinsya taas ang rating ni Gwen pero diri sa city gamay man.. Mao
tong ni float ang idea ba na what if Cebu City should be converted to a
21
component city para lang gyud mu-botar. So i-downgrade.. so diba dili
ba na for political purposes.)
So unsa diha ang issue? The issue is on the plebiscite. So first issue is-
WON plebiscite is required. Second issue -who should participate in
such plebiscite.
Kbaw naman mo kanang mga easy problems in the bar na kato gani
mu-carve out ug territory from the mother province. Di ba if mu carve
out ka from mother province then the entire province should
participate not merely the constituents of the new territory (political
units directly affected). And as interpreted by the SC in Tan vs.
COMELEC ang phrase “affected” would be as a result of reduction in
territory, reduction in population, and most importantly a reduction in
economic aspect (INCOME).
So kung bu-akun nimo ang Cebu Province, North ug South. So the
South being a new province, the North province will also participate.
Mao na ng nahitabu sa Tan vs. COMELEC. Kato na cyang Negros
Oriental ug Occidental.. nya nagcreate ug bag-o..kato Negros del Sur
pero wala gi apil ang Occidental Negros. So gi-nullify sa SC ang
plebiscite.
In this case, this is an actual case…so by virtue of a law, the city of
Santiago, Isabela was converted from an ICC to a mere component so,
DOWNGRADING siya. So it was questioned because there was no
provision in the law requiring plebiscite.
So was plebiscite required in this case? This is an old case.
Miranda vs. Aguirre (Sept. 1999)
The Supreme Court ruled that plebiscite was required even in
cases of “conversion”.
It observed that the common denominator in Section 10, Article X of
the 1987 Constitution is the material change in the political and
economic rights of the local government units directly affected as well
as the people therein. It is precisely for this reason that the
Constitution requires the approval of the people in the political units
“directly affected.”
SC: Plebiscite is required. But the question is, according to the court,
asa man ang plebiscite i-hold? The SC said, dira rapud sa Santiago
City, sila man ang affected. Sila kuno ang directly affected. We will try
to analyze this case no if correct pa ba gyud na diha dapita. This SC
ruled that plebiscite is required in this kind of conversion.
Dalia rana timan-an class kung plebiscite requirement. Double TEN.
Section 10, Article X 1987 constitution, arong maka pang hambog ta.
Let’s try to imagine that you’re participating in a plebiscite and then
you will drop 2 tens in the ballot.
So kani diay siya, sa pag downgrade, kato rapud Santiago City.
NOW THIS IS THE UPDATE. UMALI VS COMELEC, APRIL 2014
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Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in Sec. 10,
Article X of the Constitution, xxxx the conversion of a component
city into an HUC is substantial alteration of boundaries. As the
phrase implies, “substantial alteration of boundaries” involves and
necessarily entails a change in the geographical configuration of a local
government unit or units. The phrase “boundaries” should not be
limited to the mere physical one, referring to the metes and bounds of
the LGU, but also to its political boundaries.
This is the opposite. UPGRADE. From being a CC into a HUC, so
kinanglan careful ka. Not all upgrades will you apply Umali vs.
Comelec. Dapat, squarely applicable siya; from a CC converted into
HUC. So di ni therefore mu apply, if the upgrade will be from ICC
upgraded into HUC. Do you know why? The SC said, in what areas
gani mu required ang plebiscite? Double Ten. In cases of CREATION,
DIVISION, MERGER, and the last one would be SUBSTANTIAL
ALTERATION OF BOUNDARIES. Do you know where upgrading of CC
to HUC falls under these circumstances? Not creation according to the
SC.
Not unlike a 2004 Bar question, where 80 brgys, 30 sa west, 50 sa
east. Ang 30 left sa ilang economic development ni carve out and
made themselves a new municipality. The first question would be is
plebiscite required? The answer would be yes because this involves
creation.
In this case of Umali, the reason for upgrading is SUBSTANTIAL
CHANGE OF BOUDARIES. If you upgrade a CC to HUC, plebiscite is
required not because of creation, but because of substantial change of
boundaries.
So kana diay “substantial change of boundaries” dili lang na physical,
pwede sad POLITICAL boundaries. Tinood ba na? Because if you
convert CC to HUC, wa may na change sa iyang physical territory.
Same ra gyapon. Pero nay political change. Why? Beyond supervision
naman siya sa province. Dba CC siya before, so part siya sa territory sa
province. Dba? Because CC man siya. So part siya sa territory sa
province. Mao bitaw Collection sa component city sa real property
taxes dunay share ang province. Because the real properties found in
the CC is also found in the province because component man siya. The
same is true with municipalities. Pero the moment it becomes HUC,
diba beyond na siya sa supervision sa province, so politically
(ideally/theoretically) kuno, na-carve out siya from the territory of the
province.
And therefore, balik ta sa plebiscite, and therefore, ang province diay
affected. So instead of in the case of Miranda vs, Aguirre - didto lng sa
city involved, downgrading; ang upgrading entire province man
affected kay ma separated na daw siya politically, to that extent
directly affected gihapun ang mother province.
So Umali vs. COMELEC is a new case to remember, this involves
conversion, upgrading but be careful, dili generic upgrading,
component city into HUC, because if it is independent component city
unya i-convert into HUC, ang iya reasoning sa court dili na mu-apply
kay ang ICC beyond naman daan supervision of the province. (Sir
comments: Nindot kaayo na siya pang-MCQ!)
Another update is the case of Cagas vs. COMELEC. You have the
provinces of Davao del Sur and a new proposed Davao was supposedly
created called Davao Occidental. About 5 or 6 municipalities, including
22
Digos mulahi cla sa Davao del Sur, tawgun na daw silag Davao
Occidental.
What happened was there was a law. The law, as expected, scheduled
the plebiscite 120 days from the signing of P-Noy. So mu-come out iya
schedule around August of 2013, if you follow the statute creating
Davao Occidental. So based on the law fixed ang sched, kay under
the LGC within 120 days. True enough, the law creating Davao
Occidental fixed a date, it fell on 2nd week of August 2013. Unya kay
barangay election man to pag-Oct 28, 2013. So niingun ang COMELEC
dili mi mu-hold ug plebiscite anang August kay duol na ang October,
ato lang i-synchronize sa barangay elections para maka-save ug
resources. It was questioned; you can’t undo the mandate of law. The
law said August.
The COMELEC can postpone the holding of a Plebiscite (and
election) to another date
The COMELEC has “exclusive charge of the enforcement and
administration of all relatives to the conduct of elections for the
purpose of ensuring free, orderly and honest elections.” The text and
intent of Section 2(1) of Article IX(C) is to give COMELEC “all the
necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible elections.” (Cagas
vs. COMELEC, GR No. 209185, October 23, 2013)
But the SC affirmed the plenary power of the COMELEC. Ngano
gibutang nako ang election nga plebiscite man unta ni sa creation sa
Davao Occidental? Because what was applied by the court was the
provision in the Constitution (Sec. 2 Par.1, Article IX-C) that the
COMELEC has all the necessary and incidental powers for it to achieve
free honest orderly and credible election, that’s one. Second, under the
omnibus election code, nay provision sa postponement of election,
therefor, the power to postpone has already been delegated to the
COMELEC by Congress via Omnibus election code, so duha ka reason:
1. Plenary power when it comes to conduct of the election.
2. Congress has already allowed the COMELEC, under the
Omnibus Election Code, to postpone the election if the
grounds stated therein, are present. (such as force majeure,
when it was really difficult or impossible to hold the election,
etc.)
So it was difficult probably because of the gap between August to
October. Of course, it’s a sound policy to synchronize such activity
with the regular elections of the barangay.
The case of Navarro vs. Court of Appeals involves a particular
provision in the IRR which provides for exemption as to compliance of
the land area requirement for province.
Creation of an LGU will require generally three criteria but there are
certain LGUs where only two criteria are required; the constant there is
income requirement. In the case of a province, it needs to comply with
the -
1. income requirement of 20M, which includes the IRA, AND
2. either a)population of 250,000 inhabitants (not registered voters)
OR b) land area of 2,000 square kilometres.
In the case of municipalities and component cities, there is an
exception: the land area requirement need not be complied with if the
municipality consists of one or more islands. There is no exception in
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the case of province. However, the exception was given under the IRR.
The 2011 case ruled that there is no rhyme and reason why the
province has no exception when there is an exception in the case of
other LGUs. Thus, in case of a province, it may not comply with the
land area requirement if it consists of islands; it only needs to comply
with the income requirement. In the case of Province of Dinagat, its
inhabitants did not reach 250,000 and its land area did not also reach
2,000 sq.km.
2009 Bar
The Municipality of Bulalakaw, Leyte passed Ordinance No.
1234, authorizing the expropriation of two parcels of land situated in
the poblacion as the site of a freedom park, and appropriating the
funds needed therefor. Upon review, the Sanggunian Panlalawigan of
Leyte disapproved the ordinance because the municipality has an
existing freedom park which, though smaller in size, is still suitable for
the purpose, and to pursue expropriation would be needless
expenditure of the people’s money. Is the disapproval of the ordinance
correct? Explain your answer. (2%)
I’m referring to the case of Moday vs. CA. The topic here is the
extent of the review power of the Mother Sanggunian. As you know,
component cities and municipalities are subject to the supervision of
the province. One way of realizing this relationship of supervision is by
asking component units to submit their ordinances and resolutions
approving a local development program. As a rule, all ordinances are
reviewable while resolutions are not. However, there is one kind of
resolution which can be reviewed: one approving a local development
program. The idea here is coordination. But it is important for you to
know the extent of the reviewing power of another Sanggunian.
Mother Sanggunian’s REVIEW POWER:
 Grounds:
If by Sangguniang Panlalawigan:
1. ULTRA VIRES (Sec. 56(c), LGC) [2009 Bar]
If by Sangguniang Panlungsod/Bayan:
1. CONSISTENT WITH LAW
2. CONSISTENT WITH CITY/MUN. ORDINANCES (Sec. 57,
LGC)
But, I don’t know if the difference between these two provisions is
deliberate. If you come to think of it, the grounds under Sec. 57 would
still be considered ultra vires.
Application to the problem: If you apply this to the problem, the
authority of the Sangguniang Panlalawigan is not without limitation. It
is limited is whether it is ultra vires or not. In the problem, there is a
question as to the power to expropriate. The power to expropriate is
indeed a power that any LGU may exercise so therefore it is intra vires,
not ultra vires. So, considerations outside of that are beyond the
power of the reviewing Sanggunian. In this case, the reviewing
Sanggunian does not say that the Municipality of Bulalakaw does not
have the power to expropriate because Sec. 19 of the LGC grants such
power to all LGUs. On the contrary, the Sangguniang Panlalawigan’s
reason is rather a political question: because the municipality has an
existing freedom park which, though smaller in size, is still suitable for
the purpose, and to pursue expropriation would be needless
expenditure of the people’s money. It is therefore not an ultra vires
23
ground. It is about wisdom, in other words, thus not a valid ground.
Compare with VETO POWER OF Local Chief Executive
 Grounds:
1. ULTRA VIRES
2. PREJUDICIAL TO PUBLIC WELFARE
(Sec. 55, LGC)
For the veto power, there is still the ground of being ultra vires. But
there is also the ground that it is prejudicial to public welfare, this is a
very broad ground to veto an ordinance.
LGU’s and National Agencies (with Project Implementation
Functions)
 “Prior Consultation Before Implementation”:
No project or program shall be implemented by
government authorities unless the consultations in Sections 2(c) and
26 of the LGC and prior approval of the Sanggunian concerned
obtained, provided that occupants affected shall be given relocation
site (Sec. 27, LGC).
There is a rule that requires prior consultation and prior approval of
the Sanggunian for projects that have to be implemented by the
National Government in the locality. There are three requirements
here:
1. Consultation
2. Prior approval
3. Relocation site if there are settlers that will be affected.
Case in point is Lina vs Pano, involving lotto.
Lina, Jr. vs. Pano (2001)
Section 27, in relation to Section 26, LGC applies only to
programs by the “national government” and not applicable to
programs by “government owned or controlled corporations (GOCCs)”,
like PCSO.
The projects/programs mentioned in Sec. 27 should be
interpreted to mean projects/programs whose effects are among those
enumerated in Secs. 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in
loss of crop land, range-land, or forest cover; (5) may
eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for
the eviction of a particular group of people residing in the
locality where these will be implemented. (see also Province of
Laguna case (2005) and Bangus Fry Fisherfolk vs. Lanzanas (2xxx))
The argument was that there was no prior consultation nor prior
approval of the Sanggunian before lotto may be allowed in their
locality. But the SC said that Sec. 27 is not applicable. Why? First, Sec.
27 applies only to programs by the National Government. In this case,
the lotto was a program of PAGCOR, which is not the National
government but rather a GOCC. Second, Sec. 27 would only apply to
these areas or kinds of projects (see enumeration above).
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So, basically these are the steps in determining whether a national
government’s project in the locality is valid.
1. Three requirements: Consultation, Prior approval by the
Sanggunian, and relocation site if there are settlers who will
be affected.
2. 2 conditions are met:
a. National government program to be implemented in the
locality
- Thus if GOCC, not applicable (Lina vs Pano)
b. The program belongs to any of these:
(1) may cause pollution;
(2) may bring about climatic change;
(3) may cause the depletion of non-renewable resources;
(4) may result in loss of crop land, range-land, or forest
cover;
(5) may eradicate certain animal or plant species from the
face of the planet; and
(6) other projects or programs that may call for the eviction
of a particular group of people residing in the locality
where these will be implemented.
If you are asked a problem like in Lina, how many levels will your
answer be? At least 2. Number one: national government project. Ang
PAGCOR not part of national government kay GOCC siya. Number two:
Lotto is not one of those mentioned in the slides in sec 26 and 27. This
doctrine is already affirmed thrice. Well-settled na.
LOCAL POLICE POWER
Local Police Power
 THE “GENERAL WELFARE CLAUSE”:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare.
Lawful means, lawful subject ra jud nah ang local police power.
24
Requisites for Validity of Local Police Power
Tatel vs. Mun. of Virac:
1. must not contravene the Constitution AND statute
2. not unfair or oppressive (also a constitutional
requirement)
3. not partial or discriminatory (also a constitutional
requirement)
4. not prohibit, but only regulate lawful trade (see: De la
Cruz vs. Paras where an ordinance prohibited the operation
of night clubs)
5. consistent with public policy (because of the
requirements of valid delegation of legislative power) see:
(Lim vs. Pacquing) where it was found out that the “national
policy”was for National Government, not for LGU’s, to grant
“franchises” for operation of jai-alai. LGU’s can only regulate
but not grant operation of jai-alai.
6. not unreasonable (also a constitutional reqt.) (See:
Balacuit case where an ordinance penalized movie houses
that charged full payment for admission of children between
7-12)
xxx also applies “lawful subject” and “lawful means”
requirements!
Most important requisite is number 4. Asked many times in the bar.
You have to identify first if there is a law declaring a trade or business
illegal. If there is none, the most that the govt can do is regulate it and
not prohibit it. But if the trade had been declared illegal by law, the
lgu’s should also prohibit it because they are mandated to comply with
mandatory statutes.
The other requisites are included in the lawful subject and lawful
means requirements. Lawful subject: the activity is a valid subject of
regulation because it affects the public and not just a private group.
Lawful means: the means employed is reasonably necessary for the
accomplishment of the purpose of the law AND not unduly oppressive
upon individuals.
Problem
The City of Marikina passed an ordinance which regulates the
construction of fence as follows:
“The standard height of fences or walls allowed under this ordinance
are as follows:
(1) Fences in the front yard – shall be no more than one (1)
meter in height. Fences in excess of one (1) meter shall be
of an fence type, at least eighty percent (80%) see-thru.”
The objective of the ordinance is “to discourage, suppress or
prevent the concealment of prohibited or unlawful xxxx.” Is the
ordinance valid?
Problem above is the Fernando case. Will the means employed
accomplish the objective of the law? Yes it will. But is that the least
intrusive means? Overbreadth doctrine in the White Light Corporation
case.
So mao na. Unsa man nang lawful means? It will reasonably
accomplish the purpose of the law. Ang twin requirement niya kay it
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should not unduly burden, or it should not be unduly oppressive upon
individuals.
Grabi naman sad. Hain naman atong privacy ani, yatig magduwa tag
pingpong sa atong lawn nya mag short lang tag busloton? 1 meter
gud, makita ta anang 1 meter oi. Lakaw lakaw ka didto nyag nay
nagpingpong, tanaw nato ngara busloton bya na atong short usahay
sa balay. Makitan nyang unsay color sa atong jockey. Mayra ug
nothing, kay obvious unsay color. Pero kung naa, aw mahibawan na
nuon nga red! Hain naman nang privacy nato ana laliman kang 1
meter nga concrete naa 100% solid unya kung mulapas na sa 1 meter,
80% see thru pa gyud! Magbutang kag lungag lungag, unsaon kaha
na pagkwinta sa building official ani no? Matik matikon siguro niya kun
pila kabuok lungag, in relation to, diba naa man nay design ang mga
fences? Buang jud ning styla.
Declared invalid by the Supreme Court. This is the case, Fernando vs.
St. Scholastica College. In this case, niintroduce nasad ug concepts sa
constitutional law, kay of course this is a constitutional law precept.
Two tests applied, Rational Relationship Test and Strict Scrutiny.
Two (2) Tests are usually applied:
1. Rational Relationship Test
2. Strict Scrutiny Test
Using the rational basis examination, law or ordinances are upheld if
they rationally further a legitimate governmental interest.
Governmental interest is extensively examined and the availability of
less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling,
rather than substantial, governmental interest and on the absence of
less restrictive means for achieving that interest. [Fernando vs. St.
Scholastica’s College, G.R. No. 161107, March 12, 2013]
Pero ato ato lang, mejo sayop gamay ang Supreme Court kay di man
na all the time nga mag apply kag strict scrutiny. You apply only the
strict scrutiny test or the doctrine of strict scrutiny when they relate to
fundamental freedom. Pero not fundamental gani, you don’t apply the
strict scrutiny. Because the constitutional law precepts, borrowed man
na from the United States. In the U.S., ila man nang gi dichotomize
when to apply rational test and when to apply strict scrutiny test, it
depends on the freedom involved. Kung fundamental freedom, speech,
religion, press, privacy, and other related high valued freedom,
doctrine of strict scrutiny.
Which means two things. Number 1, the government is mandated to
establish a compelling state interest, okay, to justify the regulation of
the freedom. Compelling state interest ang girequire.
Second, presumption of constitutionality will not apply. Meaning, the
moment there is an allegation of a suppression of a high valued
freedom, you apply the doctrine of strict scrutiny which means instead
of the one alleging the unconstitutionality, proving its
unconstitutionality, it becomes the duty of the state or government to
prove that there is a compelling state interest to justify the regulation.
So the presumption of constitutionality will not apply, if that is the
situation.
But for non-fundamental non-high valued freedom, you apply the
rational relationship test. Ang requirement lang is not compelling state
interest, but a valid or legitimate governmental purpose. Unya ang
25
presumption of constitutionality continues to apply. Dapat giclarify na
sa Supreme Court. In any case, mao kuno na ato gamiton when we
analyse cases.
Valid ang pag apply sa strict scrutiny test because privacy man pud
gud na sa mga establishments especially mga residence and houses.
So privacy sya, high valued freedom sya.
Unsa may mga non-high valued freedom for example? Your right to
ride a motorcycle with or without helmet, because right to life, dili na
sya high value. Ug gusto ka mamatay, na hala. Pero right to life sa
tanan, high value. Pero kung imong own right to life, di na na sya high
value.
So correct na sya diri no. Iya gi apply ang rational basis examination,
mao na sya. Kung strict scrutiny, less restrictive means.
So in 2010 bar, pwede na nimo answer answeran:
2010 Bar
The Sangguniang Panglungsod of Pasay City passed an
ordinance requiring all disco pub owners to have all their hospitality
girls tested for the AIDS virus. Both disco pub owners and the
hospitality girls assailed the validity of the ordinance for being violative
of their constitutional rights to privacy and to freely choose a calling or
business. Is the ordinance valid? Explain. (5%)
So what do you think is the objective of the ordinance? Public health?
General welfare? The objective is lawful, the governmental purpose is
lawful. Unsa man ni sila? Hospitality girls, working in disco pub. Is that
a lawful subject of regulation? Yes. Because ni cater man sila sa public.
Ilang services. Way problemang lawful subject.
Ari kang lawful means. Reasonably necessary to accomplish the
purpose of the law? It may be necessary. But is it reasonable? Is there
a crime if you are tested positive of AIDS? AIDS doesn’t matter. So you
can argue along that line. It’s I think for me noh unduly oppressive
upon individuals. Depende kun napa bay mga hidden facts diha. So
you can argue along that line class.
This one is another police power question:
2010 Bar
ABC operates an industrial waste processing plant within Laoag
City. Occasionally, whenever fluid substances are released through a
nearby creek, obnoxious odor is emitted causing dizziness among
residents in Barangay La Paz. On complaint of the Punong Barangay,
the City Mayor wrote ABC demanding that it abate the nuisance. This
was ignored. An invitation to attend a hearing called by the
Sangguniang Panlungsod was also declined by the President of ABC.
The city government thereupon issued a cease and desist order to stop
the operations of the plant, prompting ABC to file a petition for
injunction before the Regional Trial Court, arguing that the city
government did not have any power to abate the alleged nuisance.
Decide with reasons.
Kahinumdum pa mo class ako a ning gi ask sa inyo? Or maybe e
discuss ko na ining abot nato sa powers of the Sanggunian. Because
here, this is the case of AC Enterprises. Familiar or dili? A Sanggunian
cannot declare an act nuisance. It is a judicial function. The
sanggunian cannot consider by mere resolution an act nuisance. Kana
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if you apply Section 447 of the LGC.
AC ENTERPRISES, INC. VS. FRABELLE PROPERTIES
CORPORATION (NOV. 2, 2006)
Under Section 447(a)(3)(i) of RA No. 7160, the Sangguniang
Panlungsod is empowered to enact ordinances declaring, preventing,
or abating noise and other forms of nuisance. It bears stressing,
however, that the Sangguinan cannot declare a particular thing
as a nuisance per se and order its condemnation. It does not
have the power to find, as a fact, that a particular thing is a nuisance
when such thing is not a nuisance per se; nor can it authorize the
extrajudicial condemnation and destruction of that as a nuisance which
it its nature, situation or use is not such.
Those things must be determined and resolved in the ordinary
courts of law. If a thing be in fact, a nuisance due to the manner of
its operation, that question cannot be determined by a mere resolution
of the Sangguniang Bayan.
Note: Rule III, Section IV of PAB Resolution 1-C, Series of 1997 as
amended, which categorically states that “Except where such
would constitute a pollution case, local government units shall
have the power to abate nuisance within their respective
areas…”
There is this power to enact ordinances declaring, preventing, or
abating noise and other forms of nuisance. But it cannot declare a
specific thing as nuisance per se. (2 kinds, per se or per accidents).
Kani siya kai foul odor, fluid substance.
Q: Industrial waste, per se or per accidens?
A: Per accidens kai di mana siya nuisance kung imong ma dispose
properly. So if imong I dispose improperly, it becomes a nuisance so
per accidens.
Sa nuisance per se, dili pwede ang sanggunian. That’s the ruling of the
court.
So kung nuisance per se siya, you have a specific provision in the PAB
(Philippine adjudication board) resolution 1-C series of 1997. That in
except in pollution cases, local government units shall have the power
to abate a nuisance within their respective area. Pero kung pollution,
PAB. Kai dili mana siya nuisance per se, per accidens.
Q: Unsa manang mga nuisance per se?
A: dogs who have rabies. So pwede na i-abate even without a specific
court order. And the local government unit can do that because that is
per se. pero kung activity that is not considered by its very nature as
nuisance, so per accidens siya, only the court can abate.
Kung pollution, naa tay pollution adjudication board.
Problem
Talisay City Vendors Association (TCVA) filed a case of
mandamus compelling the City Government of Talisay to close a road
near the Talisay City Public Market from vehicular traffic contending
that the road is too small for vehicles, especially four-wheeled vehicles,
such that vehicular traffic prevents small vendors from selling in the
sidewalk. If you are the judge, will you issue a writ of mandamus?
26
Q: opening, closing of road, mandatory or discretionary?
A: Favis case, diba? It is discretionary. So mandamus will not lie if the
function is not ministerial. So if it is discretionary and therefore not
ministerial, mandamus will not lie.
Exercise of Police Power, discretionary!
A mayor cannot be compelled by mandamus to issue a business
permit since the exercise of the same is a delegated police power
hence, discretionary in nature. This was the pronouncement of this
Court in Roble Arrastre, Inc. v. Hon. Villafor (2006) where a
determination was made on the nature of the power of a mayor to
grant business permits under the Local Government Code.
Q: what makes opening and closing a road discretionary, not
ministerial and therefore not subject to mandamus?
A: (dapat ang reason i-provide sa imong answer) if you close or open
a road, that is an exercise of police power. And the exercise of police
power is discretionary. So a mayor in this case of Roble Arrastre v.
Villaflor, a mayor cannot be compelled by mandamus to issue a
business permit. Because a business permit diay dili na taxation, but it
is regulation. Although naay fees, it is primarily regulation. And
because it (business permit) is regulatory in character, it is police
power. Take note of that.
In the example, closure so na combine ang opening and closing road.
So important ato kai discretionary siya kai police power siya. So
business permit, police power also, then it is discretionary as well.
One final point for local police power is this -
Is local police power subject to territorial limitations?
Discussion raba nato, why do we need to require territory under the
code if we create a local government unit? It should be described with
its metes and bounds. So generally, may technical description siya.
The idea that ordinances, power of LGUs are generally territorial.
A: local police power ordinances take effect only within its territory.
But there are exceptions.
Indeed the corporation boundaries, I took this from 3 U.S. cases
supporting the idea that corporation boundaries mark the limit for the
exercise of police power of the municipality. But in many cases, and in
the areas of preservation and public health, the municipality is granted
police power beyond its boundaries.
Territorial Limitations
The corporation boundaries usually mark the limit for the
exercise of the police power of the municipality. But in many
instances, for the preservation of the public health especially,
the municipality is granted police power beyond its
boundaries. Thus, it has been held that the municipality may exercise
police power in the protection of the territory …to insure cleanliness,
and prevent any business and conduct likely to corrupt the fountain of
water supply for the city. The same principle was applied in a case
allowing a municipal corporation to establish a quarantine beyond
municipal boundaries and thus protect the citizens from epidemic of
any contagious or infections disease. (Citations omitted)
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In another case, epidemic, so there is an ordinance that can extend
outside the territorial boundaries of the City – important rule.
LOCAL EMINENT DOMAIN POWER
There are 3 aspects which are justiciable -
What may be reviewed by the Courts:
Judicial review of the exercise of eminent domain is limited to the
following areas of concern:
(a) the adequacy of the compensation,
(b) the necessity of the taking, and
(c) the public use character of the purpose of the taking.
[Dela Paz Masikip case, citing Bernas]
So the issue of genuine necessity is justiciable. Why is that so?
We distinguish between expropriation by the National Government and
those by the LGUs.
Issue is a political question if the expropriation was done by the
National Government where the law for example, Congress, has
judged the purpose as public and there is therefore need to initiate
expropriation. Courts cannot override the wisdom if what is involved is
necessity if Congress exercises expropriation through their original
jurisdiction.
If the expropriation is done by the LGU, delegate, exercising its power
as such, the Court will always have the power to inquire if the delegate
has exercised its power within the delegated authority. Courts can
inquire into the genuine necessity. It is NOT a political question.
2011 Bar
The city government filed a complaint for expropriation of 10 lots
to build a recreational complex for the members of the homeowners’
association of Sitio Sto. Tomas, the most populated residential
compound in the city. The lot owners challenged the purpose of the
expropriation. Does the expropriation have a valid purpose?
“Genuine Necessity”, required!
 De la Paz Masikip vs. City of Pasig (2006):
Where the taking…is done for the benefit of a small
community which seeks to have its own sports and recreational facility,
notwithstanding that there is such a recreational facility only a short
distance away, such taking cannot be considered to be for public use.
The Court defines what constitutes a genuine necessity for public use…
In dela Paz Masikip, there is a sports facility near a private subdivision,
the residents of the Subdivision wanted their LGU to expropriate the
sports facility. The Court struck down the LGU’s power to do that since
they said that there was no genuine necessity. The Court explained
what was genuine necessity for public use for Local Government; but
for National Government, Congress decides what is genuine necessity.
27
Local Eminent Domain
Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian
School vs. City of Pasig case)
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular private
property.
2. For public use, purpose, or welfare, or for the benefit
of the poor and the landless. (cf. Sec. 33 of xxx IRR)
3. There is payment of just compensation, as required under
Section 9, Article III of the Constitution, and other pertinent
laws.
4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
said offer was not accepted.
What constitutes public use purpose?
Examples of Public use: socialized housing, construction or extension
of public roads or streets, construction of public buildings,
establishment of parks, playgrounds, plaza, construction of artisan
wells, establishment of cemeteries.
What is common among these? Proprietary functions.
Do not get confused with the public purpose requirement of
expropriation and the Governmental and Proprietary functions
of the LGUs. Because even if the maintenance of a public market, etc.
are proprietary functions, these are still for public purpose when
talking of expropriation.
{August 30, 2014}
There are specific requirements for the exercise of Local Eminent
Domain (see previous slide). But as you have already learned, the
general requirements for the exercise of Local Eminent Domain also
have to be complied with.
Under Sec. 19, you have specific requirements: ordinance, public use,
and then obviously you have just compensation. I would just like to
make mention of #4. As you have already learned, this is peculiar to
Local Government Units expropriating. This is not found in the
requirements for the exercise of Eminent Domain by the National
Government.
4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
said offer was not accepted.
So, 3 components here: (1) There must be a prior valid and
definite offer.
In fact, the SC was very exacting that the requirements of valid and
definite offer as found in our Obligations and Contracts should be
complied with. So it should be specific as to price, as to area, etc. It’s
not a valid and definite offer if the price is not even mentioned in
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terms of payment, as well as the area.
It is clear in the implementing rules -
Meaning of “Valid and Definite Offer”
ARTICLE 35. Offer to Buy and Contract of Sale - (a) The offer to
buy private property for public use or purpose shall be in writing. It
shall specify the property sought to be acquired, the reasons for its
acquisition, and the price offered.
(b) If the owner accepts the offer in its entirety, a contract of sale
shall be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive
shall call them to a conference for the purpose of reaching an
agreement on the selling price. …When an agreement is reached by
the parties, a contract of sale shall be drawn and executed.
It shall not only be in writing, but it shall also specify the property and
the reason for its acquisition…the reason shall become relevant later
on if the reason is either not accomplished, abandoned, or
changed…and then the price offered. So that is how the Implementing
Rules narrated the requirements for a valid and definite offer.
(2) The offer can be given to the registered owner. It doesn’t
have to be the actual owner, because it is possible that the registered
owner is really not the owner. But you cannot require the LGU to go
beyond what appears in the title. So, whoever is registered then the
offer made to him, even if later on a court decision will say another
person actually owns it, this (court decision) doesn’t matter. Whoever
is the registered owner as appearing in the title, the offer must be
made to him/her.
(3) And of course there is proof that the offer is rejected.
And then there are also these requirements on more specifically in
cases of urban housing, low-cost housing, we have 2 additional
requirements:
Local Eminent Domain, cont’d …
Add: Filstream International, Inc. vs. CA and City of Manila,
G.R. 125218, January 23, 1998 (in re: expropriation for urban
development and housing)
5. Priorities in the acquisition of land shall be complied with as
mandated by RA 7279 (Urban Development and Housing Act
of 1992) (meaning: private lands should be last in the
selection of land!) (Sec. 9 of RA 7279)
6. Expropriation shall be resorted to only when other
modes of acquisition have been exhausted (Sec. 10,
RA 7279)
Making private lands as the last option: The complaint should also
specify that there are no other lands that can be acquired for the
housing project. Kung naa pa, then that will be fatal to the cause of
action of the LGU.
And then also, the other requirement is that expropriation shall be
resorted to only when other modes of acquisition have been
28
exhausted. If you look at Sec. 10 of RA 7279, there are other ways of
acquiring the property.
The rule that if a property expropriated is agricultural, once it is
expropriated, it will be converted into other use. The problem with this
is the law on conversion might be relevant. And so is it required that
the LGU concerned should first get the approval of the DAR before
expropriation will be considered a valid act on the part of the LGU?
Province of Camarines Sur vs. CA:
The LGC does not require that LGU’s must first secure the approval of
the Department of Agrarian Reform (DAR) for conversion of lands from
agricultural to non-agricultural before they can institute expropriation
proceedings. Neither does the CARL provide that the power of the LGU
to expropriate agricultural lands is subject to the control of the DAR.
Besides, determination of public use is “legislative”, not “executive”
(e.g. thru the DAR).
The case of Province of Camarines Sur vs. CA says that there is no law
that requires a prior approval to be attained from DAR before this can
be done. (Once expropriated, agricultural land becomes either
residential, or industrial, commercial.) [BAR]
JUST COMPENSATION
Now on the matter of determining just compensation, when do you
reckon the value of the property? In a situation where the taking
precedes the filing of the complaint, or the filing of the complaint
precedes the taking.
If we talk about expropriation by the National Government, it will be
governed by the Rules of Court. So if it is the Rules of Court, it would
appear that the FMV of the property shall be based on the FMV of
property at the time of the taking or at the time of the filing of
complaint, whichever came first. (Because the earlier value is
cheaper.)
But, if it is an expropriation by a Local Government Unit, the Code is
specific: it is at the time of the taking.
City of Cebu vs. Dedamo (2002)
 While Sec. 4 of Rule 67 of the Rules of Court provides that
just compensation shall be determined at the time of the
filing of the complaint for expropriation (or, time of taking
whichever came first), such rule cannot prevail over RA
7160, which is a substantive law.
 Sec. 4, Rule 67 (time of filing of complaint or taking,
whichever came first) vs. LGC: at the time of “taking”.
What happens if there is no payment of just compensation, if the
expropriator fails to pay? What is the remedy available to the
landowner?
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Republic vs. Lim (2005)
The landowner is entitled to recover possession of the
property expropriated if the government fails to fully pay just
compensation to the owner within a period of five (5) years
from the finality of the judgment in an expropriation
proceeding.
After 5 years from finality of judgment if there is no payment, the SC
said that the landowner will be entitled to repossess the property. In
fact this is a landmark case.
The other possible situation is that what if after expropriation,
a) the expropriator abandons the original purpose
b) expropriator will not pursue that public purpose but it will be
devoted to another public purpose
Is there a remedy available to the landowner? This is important
because before, there was a 1921 case of Fery v. Municipality of
Cabanatuan where the SC through an American judge ruled that the
moment the expropriator obtains the expropriated property in fee
simple, meaning without condition, then the expropriator becomes an
absolute owner of the property. This means that the expropriator can
use the property either for the public purpose for which it was
originally intended or not even use it all, meaning abandon the original
purpose.
SC however modified that ruling in at least 2 cases. One is the case of
Anunciacion Vda. De Ouano v. Republic.
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011)
If the genuine public necessity of expropriation of private land ceases
or disappears, then there is no more cogent point for the government’s
retention of the expropriated land. The same legal situation should
hold if the government devotes the property to another public use very
much different from the original or deviates from the declared purpose
to benefit another private person.
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public
purpose. As a necessary corollary, once the purpose is
terminated or peremptorily abandoned, then the former
owner, if he so desires, may seek reversion (return), subject of
course to the return, at the very least, of the just compensation
received. The notion that the government, via expropriation
proceedings, acquires unrestricted ownership for a fee simple title to
the covered land, is no longer tenable.
Of course, the just compensation will be returned. So that was an
option in 2011. Earlier in 2010 the SC mentioned of Fery v.
Municipality of Cabanatuan that there was a need to revisit that Fery
case. SC said that at that time, two reasons were given:
1. Apparently, the SC justices who resolved it were Americans.
The case was decided under the auspices of American
jurisprudence. 1921
2. Since then, 1935, 1973 and 1987 Constitution were passed
29
 and have been consistent that any taking of private property
must be for public use and there must be just compensation.
So that public purpose requirement is a condition. Unlike in the
case of Fery that there used to be a distinction as to what was
the decision of the court in the expropriation proceeding: whether
was it conditioned or not? If conditioned then it was not received
in fee simple but if it was a silent decision on the expropriation
then the property was absolutely acquired by the expropriator,
hence fee simple.
But now in 2010 and 2011, that idea of acquisition in fee simple won’t
apply today because any expropriation is always burdened with public
purpose requirement and that is the condition.
MCIAA vs. Lozada, Sr. (2010)
Reversing “Fery vs. Municipality of Cabanatuan” (1921):
“The expropriator should commit to use the property pursuant
to the purpose stated in the petition for expropriation filed,
failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to
return the said property to its private owner, if the latter
desires to reacquire the same.”
In Vda. De Anunsacion case, abandoned. In this one there is a need
for a new petition for the new public purpose, even if it is still public. If
not then it is incumbent upon the expropriator to return the said
property to the private owner, if he so desires. So, 2 important cases,
2010 and 2011. Very good subject of bar exam question this year.
Even before the 2010 and 2011 cases, this is the question in 2009 -
2009 Bar
Filipinas Computer Corporation (FCC), a local manufacturer of
computers and computer parts, owns a sprawling part in a 5,000-
square meter lot in Pasig City. To remedy the city’s acute housing
shortage, compounded by a burgeoning population, the Sangguniang
Panglungsod authorized the City Mayor to negotiate for the purchase
of the lot. The Sanggunian intends to subdivide the property into small
residential lots to be distributed at cost to qualified city residents. But
FCC refused to sell the lot. Hard pressed to find a suitable property to
house its homeless residents, the City filed a complaint for eminent
domain against FCC.
(a) If FCC hires you as lawyer, what defense or defenses would
you set up in order to resist the expropriation of the
property? Explain. (5%)
(b) If the Court grants the City’s prayer for expropriation, but
the City delays payment of the amount determined by the
court as just compensation, can FCC recover the property
from Pasig City? Explain. (2%)
(c) Suppose the expropriation succeeds, but the City decides to
abandon its plan to subdivide the property for residential
purposes having found a much bigger lot, can FCC legally
demand that it be allowed to repurchase the property from
the City of Pasig? Why or why not? (2%)
Answers:
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a) Go back to the elements. Was there a prior valid and definite
offer? Was it offered to the registered owner? Was it
rejected? Was the requirement on public purpose complied
with?
b) Republic v. Lim, 5 years
c) Vda. De Anunsacion case or MCIAA v. Lozada.
2011 Bar
When the State requires private cemeteries to reserve 10% of
their lots for burial of the poor, it exercises its:
(A) Eminent domain power.
(B) Zoning power.
(C) Police power.
(D) Taxing power.
CORPORATE POWERS
2009 Bar
The Municipality of Pinatukdao is sued for damages arising from
injuries sustained by a pedestrian who was hit by a glass pane that fell
from a dilapidated window frame of the municipal hall. The
municipality files a motion to dismiss the complaint, invoking state
immunity from suit. Resolve the motion with reasons. (3%)
A: When it comes to immunity from suit principle, one way of granting
or giving consent to be sued is express consent and there are two
statutes or laws that expressly grant that consent to be sued. One is
the Local Government Code of 1991 itself, a general law, under section
21, the right to sue and be sued. It also found in every charter of the
local government units. It is no longer an issue whether a municipality
can be sued.
This is related to your property law - properties of local government
units may be held in governmental or proprietary capacity.
Corporate Powers, cont’d…
“to acquire and convey real and personal property”
LGU’s properties may be held in:
(1) Governmental capacity (property for public use), or
(2) Proprietary capacity (patrimonial property)
[Rabuco vs. Villegas]; Art. 423 of NCC
Q: But how to tell if it is governmental or proprietary.
A: There are two norms which you can actually use, one is through the
Civil Code and the other is the general norm on the law of municipal
corporations. It is up to the SC which of the norms to apply but most
likely it would be the more specific provision under the civil code,
Article 424. Roads, bridges, ports, those are properties declared as
belonging to public dominion.
30
Two (2) norms that may be used:
The capacity in which property is held is, however, dependent
on the use to which it is intended and devoted. There are two norms
that may be used in classifying properties as public or private: 1)that
of the Civil Code, and 2) that obtaining under the Law of Municipal
Corporations. (Province of Zamboanga del Norte vs. City of
Zamboanga, G.R. No. L-24440, March 28, 1968.)
The Civil Code classification is embodied in Arts. 423 and 424.
Under the norms obtaining in the law on municipal corporations, to be
considered public, it is enough that the property be held and devoted
for governmental purposes like public administration, public education,
public health, etc…
The third test, is just a general norm under the law on Municipal
Corporation, we go by the purpose test.
LGU’s properties, cont’d…
How do you know whether the property is “public” or
“patrimonial”?
Some Tests: A. Art. 424, NCC (road, etc.)
B. How acquired? (If private fund was used,
patrimonial; if public fund, governmental)
C. Purpose for which the property is acquired or held.
Note: “Title” does not matter, because even if in the name of LGU, if in
reality it came from the national government for public purpose, then
it is held “in trust” for the State.
Problem
Filinvest, a realty firm, visited the Office of the Mayor of Mandaue City.
Filinvest is interested in establishing a commercial and industrial zone
in Mandaue City where it can build malls, hotels, sports facilities, and
other commercial establishments. The site, about 200 hectares,
consists, however, of submerged and foreshore lands. The Mayor also
thought of establishing in the site a new City Hall and a “One-Stop
Government Center” where all local government offices will be located.
Aware that submerged and foreshore lands are public lands, the Mayor
is now asking you, the City Attorney, on how to assist Filinvest in its
business plan and how to realize the Mayor’s plan of a new City Hall
and a one-stop government center. How will you advise the Mayor?
A: The law on reclamation mentions that, first you have to distinguish
between submerged and foreshore lands. Why? If we are talking about
reclamation of public lands, the law allows local government units to
reclaim only foreshore lands. The National Government of course is
allowed to reclaim even submerged lands. Unsa may kalahian sa
foreshore ug submerged? Foreshore sa dagat, submerged could be
anywhere else. So pwedeng mg.reclaim ang National government even
inland, even submerged sa water. If Local government, limited only to
foreshore lands. Unya only Municipalities and chartered cities ang
allowed.
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Reclaimed Properties
 Submerged lands are properties of public dominion,
absolutely inalienable and outside the commerce of man.
This is also true with respect to foreshore lands. (Sections 2
and 3, Article XII of the 1987 Constitution)
 Hence, it is only when the submerged and foreshore lands
are actually “reclaimed” that they become alienable
lands of public domain which can now be disposed of in
accordance with law. [Chavez vs. Public Estates Authority
(2003)]
 R.A. No. 1899 authorized municipalities and chartered cities
to reclaim foreshore lands. But all reclamation projects are
administered and under the authority of the PRA (formerly,
???) and now subject to the approval of NEDA.
Procedure
There are 2 options available on the part of the proponent of the
project.
1. Pwede niya i.reclaim ang foreshore land at its own expense;
or
2. He can enter into a joint venture with private person first
like in the case of Filinvest.
Before the physical reclamation, you need to get a permit. In the past,
you secure it from the National Housing Authority. In 2006, it was
transferred to Philippine Reclamation Authority (PRA). Just last year,
Nov. of 2013 ang final approval, dili na sa PRA, sa NEDA na. NEDA is
composed of the President as the chairman.
Now the process would be, pa approve ang plan first sa PRA and then
the final approval would be NEDA. Pero ang function sa PRA mao ra
gihapon, siya ang mag.administer sa reclamation.
After all the requirements are complied with and the fees are paid, we
now proceed to the physical reclamation of the foreshore land. The
DENR with then issue a special patent to the PRA and then the PRA
will then ask for reimbursement kay public land pa man siya, after the
actual reclamation, there will be a title to be issued, an original
certificate of title. And then the PRA has 2 options, i.reimburse ang
nag.develop. Either bayran niya through a reclaimed land, which is
always the case. The moment the title is transferred to the LGU it
ceases to be a public land and now a private land. Mao nang gitawag
na patrimonial upo reclamation. And when it becomes a reclaimed
property, then it be disposed of.
31
Requisites for Validity of Contracts entered into by LGU’s
A. The local government unit must have the power to enter
into the particular contract;
B. Pursuant to Section 22(c) of the Local Government Code,
there must be a prior authorization by the Sanggunian
concerned, and a legible copy of the contract shall be
posted at a conspicuous place in the provincial capitol or
the city, municipal, or barangay hall;
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,
Book V, 1987 Admin. Code, if the contract involves the
expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds
by the treasurer of the local government unit (Except in the
case of a contract for supplies to be carried in stock)
D.The contract must conform with the formal requisites of
written contracts prescribed by law;
What happens if there is non-compliance?
As a rule, when the contract is entered into without compliance with A
and C (power, and actual appropriation and a certificate of availability
of funds) the contract is null and void. Therefore not subject to any
ratification.
But if it is B and D (prior authorization and the formal requisites) it is
ratifiable. This is confirmed in the case of Land Bank vs. Cacayuran,
a 2013 case.
Effects of Non-compliance with Requisites
When a contract is entered into without compliance with (A)
and (C) requisites, the same is ultra vires and is null and void. Such
contract cannot be ratified or validated.
Ratification of defective municipal contracts is possible only
when there is non-compliance with (B) and (D) requirements.
Ratification may either be express or implied.
Two (2) Kinds of Ultra Vires Acts:
An act which is outside of the municipality’s jurisdiction is
considered as a void ultra vires act, while an act attended only by
an irregularity but remains within the municipality’s power is
considered as an ultra vires act subject to ratification and/or
validation. To the former belongs municipal contracts which (a) are
entered into beyond the express, implied or inherent powers of the
LGU; and (b) do not comply with the substantive requirements of law
e.g., when expenditure of public funds is to be made, there must be
an actual appropriation and certificate of availability of funds; while to
the latter belongs those which (a) are entered into by the improper
department, board, officer of agent; and (b) do not comply with the
formal requirements of a written contract e.g. Statute of Frauds. (Land
Bank vs. Cacayuran, G.R. No. 191667, April 17, 2013)
LIABILITY FOR DAMAGES
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VII. Liability for Damages
 Art. 34, NCC: subsidiary liability of LGU for liability of local
police force in re: refusal or failure to render aid or
protection to any person in case of danger to life or property
 Art. 2189, NCC: liability of LGU’s for defective condition of
roads and other public works under LGU’s control and
supervision which results to (a) death and (b) injuries to
persons.
 Art. 24, LGC: LGU’s not exempt from liability for death or
injury to persons or damage to property.
N. Bacalso is a national road; North reclamation road is also a national
road; SRP. Daghan national road. But the moment these national
roads traverse a locality then it is subject to control and supervision in
regards to the maintenance of the public work. Ang pag improve kay
duty sa DPWH but maintenance-repairs for example, if you look at the
LGC, no distinction if municipal or national. Basta lang within territorial
jurisdiction of the LGU, the city or municipal engineer has jurisdiction
in regard to the maintenance of the public works. Usually sa bar
counter argument kay national road. As you know, it is not what is
required in the code. Nigawas nas 2011 bar about damages.
2011 Bar
A collision occurred involving a passenger jeepney driven by
Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Lauro but owned by the City of Cebu. Lauro was on his way to get a
load of sand for the repair of road along Fuente Street, Cebu City. As a
result of the collision, 3 passengers of the jeepney died. Their families
filed a complaint for damages against Joseph who in turn filed a third
party complaint against the City of Cebu and Lauro.
Is the City of Cebu liable for the tort committed by its
employee?
San Fernando La Union vs Firme case, distinguish government from
proprietary. Section 24 of the LGC did not provide a distinction. So my
distinction was to give the precepts under the San Fernando La Union
Case, governmental siya because it was delivery of and repair of
roads, so it is governmental therefore, imong argument would be not
liable pero Article 24 no distinction. Niingon pa gyud ang Art 24 nga
ang officers ug LGU kay not exempt from liability arising out of
negligence of employees. This is to assume that Lauro is a regular
employee kay kung special agent sad siya, as elucidated in Meritt v
Government of the Philippine Islands. The government already
consents to be held liable if the damage is caused by a special agent.
And a special agent is one who performs a function not pertaining to
his office. We are assuming here that Lauro is a regular employee.
Problem
The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration.
The stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be
held liable?
32

Fiesta celebration is proprietary is you apply San Fernando La Union.
The question is who shall be held liable, the City or the members of
the Sanggunian who ordered the construction of the wooden stage.
Separate and Distinct personality rule—since the LGU has a separate
personality, then the precept of separate and distinct personality of the
corporation from the officials shall also be applied. So the members of
the SP may not be held liable because the LG of Carcar possesses a
distinct and separate personality.
LOCAL ELECTIVE OFFICIALS
You know the ruling of the SC in Frivaldo already. Then the matter of
residence, you already know that domicile is synonymous with
residence. The animus animus also you know already. Animus
manendi, revertendi, non revertendi.
In 2012, X was convicted of violation of B.P. Blg. 22 (Bouncing
Checks Law) and was sentenced to serve a maximum of six (6)
months of imprisonment. X wants to run for Governor of the Province
of Cebu in the 2016 elections.
A. Is X disqualified to run for local position by reason of his
conviction?
B. Will your answer be the same if X had instead applied for
and was granted probation?
1st Question: Is X disqualified to run for local position by reason of his
conviction?
A: The relevant section is Section 14 on Disqualification. It is important
to talk about this because there is an update. But first, the basics.
Let’s take a look at the relevant provision.
Disqualifications (Sec. 40, LGC)
1. Sentenced by final judgment for (1) offense involving
moral turpitude or (2) offense punishable by one (1)
year or more of imprisonment, within two years after
service of sentence.
The first disqualification of a local elective official is when he is
SENTENCED BY FINAL JUDGMENT. In the problem, that is tricky
because he was only SENTENCED to serve a maximum of 6 months of
imprisonment. It is not definite that the decision is already final.
What is the implication here?
This is important to highlight important qualifications. Sentenced by
final judgment. That is important. For what? Conjunctive word “or”.
So in an OFFENSE INVOLVING MORAL TURPITUDE, do not include the
one year because it is “or”. So it’s either:
1. The offense involves moral turpitude only, regardless of
how long the penalty is (here, the nature of the offense is
important), or
2. The offense is punishable by one year or more than one
year of imprisonment. (this time around, disregard the
nature of the offense)
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In the past, good examples of offenses involving moral turpitude
include violation of BP 22 even if it is malum prohibitum. The manner
by which BP 22 is violated, naa na siya’y element of KNOWLEDGE of
the INSUFFICIENCY OF FUNDS. This element, which is by the way
presumed, according to the Supreme Court, when the check is
deposited within a period of 90 days, there is a presumption of
knowledge of the insufficiency of funds makes the offense one of
moral turpitude even if malum prohibitum.
Then, the phrase within 2 years after service of sentence is applicable
to BOTH disqualifications, in other words, whether moral turpitude or
for a penalty of one year or more imprisonment. Meaning, this is NOT
a perpetual disqualification.
“Within 2 years from service”
The phrase “within two (2) years after serving sentence” should
have been interpreted and understood to apply both to those who
have been sentenced by final judgment for an offense
involving moral turpitude and to those who have been
sentenced by final judgment for an offense punishable by one
(1) year or more of imprisonment. The placing of comma (,) in the
provision means that the phrase modifies both parts of Sec. 40(a) of
the Local Government Code.
[MORENO vs. COMELEC (2006, En Banc)]
SO you need to know when he served and finished serving his
sentence because you count 2 years from the service of the sentence.
Mao nang layo kayo ang gap sa problem (2012 and 2016) because
you still have to qualify pa man:
1. Whether the conviction is already final or not
2. Whether the sentence has already been served or not.
So you count two years after service of sentence because after that,
he reacquires the right to hold public office and therefore be qualified
again.
2nd Question: Will your answer be the same if X had instead applied for
and was granted probation?
A: Diba, kung mu-apply ka for probation, there is already conviction?
Within the period to appeal, you file for probation instead of appealing.
If mu-appeal ka, you can’t avail of probation. So if your probation is
granted by the court? Are you still disqualified even if you availed of
probation?
The court said that disqualification disappears AFTER two years from
service of sentence. According to the court in the Moreno case, this
therefore required that there is a service of sentence which means that
if there is no service of sentence, the two years does not begin to run
and Section 40 does not apply because if you are granted probation,
you are exempt from serving the sentence. That is the effect. This is
already qualified under Moreno vs COMELEC.
33
Effect of Probation:
This is as good a time as any to clarify that those who have not
served their sentence by reason of the grant of probation which, we
reiterate, should not be equated with service of sentence, should not
likewise be disqualified from running for a local elective office because
of the two-year period of ineligibility under Sec. 40(a) of the Local
Government Code does not even begin to run. (Moreno vs. COMELEC,
2006)
Under the code 2 years after the service of sentence, qualified again
after 2 years of service of sentence. The new issue now is what if the
kind of crime committed carries with it the accessory penalty of
perpetual disqualification. Does section 40 (a) still apply? That from 2
years of service of sentence of service, qualified again? Or should the
Local government code yield to the revised penal code of perpetual
disqualification to hold public office.
To answer this, we have the case of Jalosjos VS Comelec June 18,
2013.
Art. 40 of the LGC and Perpetual Disqualification to Hold
Public Office in RPC
While Section 40(a) of the LGC allows a prior convict to run for
local elective office after the lapse of two (2) years from the time he
serves his sentence, the said provision should not be deemed to
cover cases wherein the law imposes a penalty, either as
principal or accessory, which has the effect of disqualifying
the convict to run for elective office. (Jalosjos vs. COMELEC, GR
No. 205033, June 18, 2013)
The other disqualifications:
Disqualification, cont’d…
2. Removed from office as a result of administrative
case (prospective application only; any “office” [see
Osorio case 2004]);
3. Convicted by final judgment for violating the oath of
allegiance to the Republic;
4. Those with dual citizenship. (Manzano vs. Mercado:
should be interpreted as “dual allegiance”). See also
Cordora (2009)
The other disqualifications are the removal office as result of an
administrative case. Any case basta you are removed from office, you
will be disqualified provided that the removal from office whether
elective or appointive office as a result of an administrative case
happened after the effectivity of the local government code of 1991.
Because if you are removed from office as a result of an administrative
case in 1990 or even 1991 kai ang code ni take effect Jan. 1, 1992. It
should not be considered as a disqualification on the fact of removal
because the old code did not have this provision. It is a new provision
in the Code of 1991. So only those who were removed from office
administratively during the effectivity of the Local Government Code
shall be disqualified by reason of that removal.
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Dual citizenship should be interpreted as dual allegiance.
Problem
A is a former natural-born Filipino who became an American by
naturalization. A, who wanted to run for Mayor in X Municipality, then
availed of RA 9225, took his oath of allegiance and renounced his
foreign citizenship. However, A retained his American passport for his
three trips to the Philippines before the elections. A filed his certificate
of candidacy for Mayor. M, his opponent, questioned his candidacy
because he was still using his American passport. A argued that his
filing of certificate of candidacy effectively renounced his foreign
citizenship pursuant to the Mercado vs. Manzano ruling. Is A correct?
In the above problem, A is a former natural born Filipino who became
an American by naturalization. He availed of RA 9225, the reacquisition
and retention act of 2003 which is only applicable for natural born
Filipinos.
So if you are a natural born Filipino who were naturalized and therefor
lost Filipino citizenship by naturalization shall not be deemed to have
lost their Philippine citizenship because under common wealth act no.
63 naturalization in a foreign country results in loss of Philippine
citizenship. But when RA 9225 was enacted it declared that this will
not be the case provided the person will comply with the requirement
of taking the oath under RA 9225. After 2003 and you are a natural
born Filipino who will have yourself naturalized to another country, you
will not be losing your Philippine citizenship but you will retain your
Philippine citizenship that is why it is reacquisition and retention.
Reacquisition for those who got naturalized before the effectivity of RA
9225 and retention for those who will be naturalized after RA 9225
provided you will take that oath under the law.
What happened in this question is that A availed of RA 9225 then he
took the oath of allegiance and renounced his American citizenship but
still he was using his American passport. After availing of RA 9225, he
filed his certificate of candidacy. And you remember your Mercado VS
Manzano… Si Manzano, declared by the SC that his filing of COC
effectively renounced his American Citizenship, showing that he had
only one allegiance to the Republic of the Philippines. So A invoked
Manzano case.
But the SC ruled in Maquiling vs. COMELEC, July 2, 2013 -
Maquiling vs. COMELEC (April 16, 2013; July 2, 2013)
Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took.
Section 40(d) of the Local Government Code applies to his situation.
He is disqualified not only from holding the public office but even from
becoming a candidate.
The use of foreign passport after renouncing one’s foreign
citizenship is a positive and voluntary act of representation as
to one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective
position.
So dual allegiance siya.
As to the question, ngano wla gi-apply ang Mercado vs. Manzano? Dili
34
diay to effective renunciation of citizenship? G- abandon na ba? SC
Clarified. Arnado's category of dual citizenship is that by which foreign
citizenship is acquired by applying for naturalization. Unlike in
Manzano, he acquired dual citizenship by BIRTH. So involuntary to sya.
So dili stricto an rule. Because they are not required to take the oath
of renunciation. The mere fact of filing of COC carries with it the
implied renunciation of foreign citizenship. But kung dual citizen ka by
naturalization, there is a requirement to take an oath of allegiance to
the Republic of the Philippines and you are required to personally
renounce foreign citizenship. And in Mercado, the SC warned that the
moment you renounce your foreign citizenship, it must be coupled with
overt acts compatible with renunciation. In Arnado, it is not therefore a
sincere renunciation of American Citizenship.
So you distinguish how he acquired dual citizenship, by birth or by
naturalization.
Arnado’s category of dual citizenship is that by which foreign
citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of
renunciation as the mere filing of the certificate of candidacy already
carries with it an implied renunciation of foreign citizenship. Dual
citizens by naturalization, on the other hand, are required to take not
only the Oath of Allegiance to the Republic of the Philippines but also
to personally renounce foreign citizenship in order to xxxxxx candidate
for public office.
FUGITIVE FROM JUSTICE
Rodriguez vs. COMELEC (1996)
“Fugitive from justice” includes not only those who flee after conviction
to avoid punishment but likewise who, after being charged, flee to
avoid prosecution. The definition thus indicates that the intent to
evade is the compelling factor that animates one’s flight from
a particular jurisdiction. And obviously, there can only be an
intent to evade prosecution or punishment when there is
knowledge by the fleeing subject of already instituted
indictment, or of a promulgated judgment of conviction.
Not only fleeing after conviction to avoid punishment but also fleeing
after being charged to avoid prosecution. But it’s a question of intent
at the end of the day.
3-TERM LIMIT RULE
The “Three Term Limit Rule”
Elements:
1) That the official concerned has been elected for three
consecutive terms in the same local government post
and
2) That he has fully served three consecutive terms.
The problems revolve around whether there was interruption. It can
be either voluntary or involuntary. If ordered for example by COMELEC
or any other governmental entity, then such interruption is considered
INVOLUNTARY. This interrupts the running of the “consecutiveness”.
Otherwise, if the interruption was voluntary, either through resignation
or abandonment, through the transfer to a different position for
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example, it would be considered considered as voluntary resignation
and will not interrupt the consecutiveness of the service of the term.
Another important rule is the effect of SUSPENSION. This is an on-
going question even amongst those who are already practicing law.
The case of Aldovino involved PREVENTIVE SUSPENSION. Preventive
Suspension does not interrupt the consecutiveness, it does not
interrupt the term. If one is preventively suspended, he is merely
prevented from exercising the functions, but the officer still holds the
office. There is no interruption of the term.
What if suspension was imposed as a PENALTY? This happened to
Gov. Gwen (Garcia) who was penalized with suspension months before
the expiration of her third term. Will she be allowed to run for a 4 th
term? Is there an interruption to the consecutiveness if suspension
was imposed as a penalty?
My (Atty. Daryl Bretch Largo’s) humble opinion is this—under the
Code, when one is suspended, the suspension being a penalty, a
temporary vacancy is created. The one who occupies the position of
the suspended official will merely be Acting (in an acting capacity).
For me, there is no distinction between mere preventive suspension,
and suspension as a penalty. The reasoning of the Supreme Court in
Aldovino was that preventive suspension merely barred the official
from discharging his functions. Is this not the same idea when one is
suspended? I don’t think there is removal from office, otherwise, if the
penalty of suspension really causes removal, meaning you are taken
out of your post, it should create a permanent vacancy.
You can also argue otherwise, that it would no longer constitute a
penalty if the official is not removed, that is possible. When you step
down as a result of an order of the penalty of suspension, you can
argue that you are removed from your office within the period of
suspension therefore effectively interrupting the term. I have yet to
see a definitive ruling of the Court in that regard. This is a “wait and
see” situation. But going back, insofar as preventive suspension is
concerned it does not interrupt the term.
The following are the bar questions relating to this that came out:
2008 Bar
Abdul ran and won in the May 2001, 2004, and 2007 elections
for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor
in 2004 elections, his opponent, Khalil, filed an election protest before
the Commission on Elections. Ruling with finality on the protest, the
COMELEC declared Khalil as duly elected Vice-Governor though the
decision was promulgated only in 2007, when Abdul had wholly served
2004-2007 term and was in fact already on his 2007-2010 term as
Vice-Governor.
a) Abdul now consults you if he can still run for Vice-Governor
of Tawi-Tawi in the forthcoming May 2010 elections on the
premise that he could not be considered as having served a
Vice-Governor from 2004-2007 because he was not duly
elected to the post, as he assumed office merely as a
presumptive winner and that presumption was later
overturned when the COMELEC decided with finality that he
had lost in the May 2004 elections. What will be your
advice?
35
2011 Bar
Adela served as mayor of Kasim for 2 consecutive terms. On her
third term, COMELEC ousted her in an election protest that Gudi, her
opponent, filed against her. Two years later, Gudi faced recall
proceedings and Adela ran in the recall election against him. Adela
won and served as Mayor for Gudi’s remaining term. Can Adela run
again for Mayor in the next succeeding election without violating the 3
term limit?
Let me go straight to another update—take note of Ong vs. Alegre.
One person. Three terms. The middle term was disputed. The final
resolution of the COMELEC was that the person elected during the
middle term was not the winner but such decision was released only
after the third term. Was there an interruption? According to the
Court, there was no interruption. The term was fully served but it was
served in a de facto capacity. Thus, whether the official was de facto
or de jure, for as long as the term was fully served, the full service of
the term is counted.
2011 Bar
Alfredo was elected municipal mayor for 3 consecutive terms.
During his third term, the municipality became a city. Alfredo ran for
city mayor during the next immediately succeeding election. Voltaire
sought his disqualification citing the 3 term limit for elective officials.
Will Voltaire’s action prosper?
ANSWER: Lataza vs. COMELEC (asked in the 2005 Bar)—Alfredo is
DISQUALIFIED. An interpretation allowing a fourth term in the new
city would effectively allow him to serve for 18 years. The reasoning of
the Supreme Court was that even if it was a new city, the mayor would
still be serving the same territory (same territorial jurisdiction) and the
same inhabitants. The spirit behind the three-consecutive-limit rule is
really to prevent service of more than 9 consecutive years. A contrary
ruling would be a circumvention allowing the service of 18 years.
Disqualified even if it’s a new city because the official will be serving
the same territorial jurisdiction and same inhabitants and besides it will
circumvent the spirit of the 3 term limit rule.
Problem
X, Y, and Z were the candidates for Mayor in Municipality of
ABC. Y had earlier filed a petition for the cancellation of X’s certificate
of candidacy on the ground that X failed to comply with the 6-month
residency requirement. During the election, and while the
disqualification case was still pending, X received the highest number
of votes followed by Y. Thereafter, the COMELEC disqualified X. W, the
elected Vice-Mayor insisted that he should become the Mayor. Should
W be allowed to assume the office of the Mayor?
Solbad na ni sa Election Law. Note that the ground for disqualification
affects eligibility. Therefore, any decision that will affect the eligibility
of the candidate would have the effect rendering the Certificate of
Candidacy is null and void ab initio. Therefore, the supposed candidate
will be considered as no candidate at all. You do not apply the
rejection of the second placer rule because there is no first placer to
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speak of. He is not a candidate. So who is now entitled to this? The
“second” placer. You do not reject him. Therefore, the VM cannot
insist to be installed as the Mayor. This is in Election Law.
In Local Government Law, you can offer this explanation. Jalosjos v.
COMELEC.
Svetlana Jalosjos vs. COMELEC (June 25, 2013)
The rule on succession in Section 44 of the Local Government
Code cannot apply in instances when a de facto officer is ousted from
office and the de jure officer takes over. The ouster of a de facto
officer cannot create a permanent vacancy as contemplated in the
Local Government Code. There is no vacancy to speak of as the de
jure officer, the rightful winner in the elections, has the legal right to
assume the position.
If election contest lang and not based on eligibility, so like fraud etc.,
there is no de jure or de facto. In this case, there is de jure and de
facto so cannot apply to instances when a de facto officer is ousted
from office and the de jure officer takes over. The disqualified
candidate from the very beginning (his COC is void ab initio; he not a
candidate) cannot create a permanent vacancy to trigger succession.
Since there is no permanent vacancy, it cannot trigger succession. The
Vice Mayor cannot insist. The rightful winner in the election (“second”
placer) will get the position.
Concurrent Jurisdiction with Ombudsman
In administrative cases involving the concurrent jurisdiction of two or
more disciplining authorities, the body where the complaint is filed
first, and which opts to take cognizance of the case, acquires
jurisdiction to the exclusion of other tribunals exercising concurrent
jurisdiction.
Under RA 7160, the Sangguniang Panlungsod or Sangguniang Bayan
has disciplinary authority over any elective barangay official. Since the
complaint against petitioner was initially filed with the Office of the
Omdusman, the Ombudsman’s exercise of jurisdiction is to the
exclusion of the Sangguniang Bayan whose exercise of jurisdiction is
concurrent. (Alejandro vs. Office of the Ombudsman, GR No. 173121,
April 3, 2013)
Disciplinary proceeding. Option on the part of the private complainant.
If you want to sue a local government official under the Ombudsman,
apply the Ombudsman Law; otherwise, apply the Local Government
Code. Look at Sec. 60 for the grounds of disciplinary action (grave
abuse of authority etc.) then file it before the appropriate office. In the
case of cities and provinces, file it with the Office of the President. All
others, go to the Provincial Board. Go to Sec. 60 and 61. It’s very
important.
Aguinaldo Doctrine
-mere fact that misconduct is committed in the prior term regardless if
it was known to the voters or not, upon re-election, it will operate as a
condonation of the misconduct. Principle of Condonation.
36
Practice of Profession
 All LCE’s cannot practice profession nor engage in any
occupation other than the exercise of their functions as
LCE’s.
 SP Member can practice profession or engage in any
occupation except during session hours, with certain
limitations to lawyers on grounds of conflict of interests.
 MDs may practice profession even during officer hours in
case of emergency w/o comp.
May a Mayor practice a profession?
General Rule: No.
Unless: Mayor is a doctor of medicine even during office hours
provided he receives no compensation.
elected for mayor. So when he ran in the 2001 elections, his candidacy
was questioned on the ground that such was already his 4th
consecutive term.
Borja, Jr. v. COMELEC (1998)
Private respondent was first elected as vice- mayor, but upon the
death of the incumbent mayor, he occupied the latter’s post for the
unexpired term. He was, thereafter, elected for two more terms. The
Court held that when private respondent occupied the post of the
mayor upon the incumbent’s death and served for the remainder of
the term, he cannot be construed as having served a full term as
contemplated under the subject constitutional provision. The term
served must be one “for which [the official concerned] was
elected.”
Answer:

SP members including the Vice Mayor can practice profession with

First, X was not elected when he became mayor in 1993. Second, he
limitations involving usually conflict of interest cases.
was elected, but for the position of vice-mayor. So when he assumed
Example: They cannot defend accused in a criminal case where the
the position of vice-mayor, he was not elected as mayor. So there was
private complainant is the LGU in which he is a Sanggunian member.
no consecutiveness in this case. The term served must be one for
which the official concerned was elected.
The Sanggunian has no subpoena and contempt power. Negros
Oriental Case. Remember that also. It has been asked in the bar many
times.
Problem No. 2
{September 5, 2014}
1988-1995: X was elected and served as Mayor for 2 consecutive
When you were under me in Local Government Law, there were terms
several cases that illustrate the application of the 3 term limit rule as
1995: X was re-elected and started serving as Mayor
applied to different scenarios. In 2013, the case of ABUNDO VS.
COMELEC summarizes the basic scenarios on the rules on three term 1997: COMELEC ruled that X was not validly proclaimed and X stepped
limit rule. down as ordered by the Comelec.

1998 elections: Was X barred to run as Mayor?

If you look at the elements of the three term limit rule, there is this
element that the official must be elected, had been elected for three
consecutive term and in the same position, second, there is full service
for three consecutive terms. Answer:

The “Three Term Limit Rule” This is with the element of consecutiveness. So there was interruption.
The idea of interruption connotes involuntariness on the part of the
Elements: official. It was involuntary when X step down because he was ordered
to step down. An example of voluntary renunciation of office is
1) That the official concerned has been elected for three resignation or abandonment. Here there is involuntary relinquishment
consecutive terms in the same local government post of office. This is the case of LONZANIDA VS. COMELEC. Petitioner
and did not fully serve 1995 – 1998 because when he step down in 1997, it
was involuntary relinquishment of office.
2) That he has fully served three consecutive terms.

Problem No. 1

1993: X, the Vice Mayor succeeded Y, the Mayor who died. X served as
Mayor until 1995.

1995-1998: X was elected and served as Mayor

1998-2001: X was re-elected and again served as Mayor

2001 Elections: Was X barred to run as Mayor?

This is based on the case of BORJA, JR. VS. COMELEC, the vice-
mayor succeeded Y who died, and the vice-mayor served as mayor
until 1995. That happened in 1993 and he served until 1995. For two
consecutive terms, X, then the vice-mayor and became the mayor got

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Lonzanida vs. COMELEC (1999)
Petitioner was elected and served two consecutive terms as mayor
from 1988 to 1995. He then ran again for the same position in the May
1995 elections, won and discharged his duties as mayor. However, his
opponent contested his proclamation before the RTC, which ruled that
there was a failure of elections and declared the position of mayor
vacant. The COMELEC affirmed this ruling and petitioner acceded to
the order to vacate the post. During the May 1998 elections, petitioner
therein again filed his certificate of candidacy for mayor. A petition to
disqualify him was filed on the ground that he had already served
three consecutive terms. The Court ruled, however, that petitioner
cannot be considered as having been duly elected to the post in the
May 1995 elections, and that petitioner did not fully serve the
1995- 1998 mayoralty term by reason of involuntary
relinquishment of office.
Problem No. 3
1992-1998: X was elected and served as Mayor for 2 consecutive
terms
1998: X ran as Mayor but lost to Y
2000: Y faced a recall election and X was elected in the recall election
and served as Mayor
2001: Was X barred to run as Mayor?
Answer:
According to the court there was interruption in the continuity of his
service. The reason for the rule on interruption is that when he lost in
1998 and until he got elected in 2000 in the recall election, X was a
private citizen.
Adormeo vs. COMELEC (2002)
The issue was whether or not an assumption to office through
a recall election should be considered as one term in applying
the three-term limit rule. Private respondent was elected and
served for two consecutive terms as mayor. He then ran for his third
term in the May 1998 elections, but lost to his opponent. In June
1998, his opponent faced recall proceedings and in the recall elections
of May 2000, private respondent won and served for the unexpired
term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned.
The Court held that private respondent cannot be construed as having
been elected and served for three consecutive terms. His loss in the
May 1998 elections was considered by the Court as an
interruption in the continuity of his service as mayor. For
nearly two years, private respondent therein lived as a private
citizen.
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Problem No. 4
1992-2001: X was elected and served as Mayor for 3 consecutive
terms
2001 elections: X did not run; Y was elected Mayor
2002: Y faced recall election and X filed certificate of candidacy for the
recall elections
Can X participate in the recall elections?
Answer:
The same rule in the earlier case, there was an interruption. Even for
one day, although it was legally impossible to be a private citizen in
just 1 day. But assuming that such happens, then apply the thinking of
the court, that such should serve as an interruption of the continuity of
service.
Socrates vs. COMELEC
The principal issue was whether or not private respondent Hagedorn
was qualified to run during the recall elections. Hagedorn had already
served for three consecutive terms as mayor from 1992 until 2001 and
did not run in the immediately following regular elections. On July 2,
2002, the barangay officials of Puerto Princesa convened themselves
into a Preparatory Recall Assembly to initiate the recall of the
incumbent mayor, Socrates. On August 23, 2002, Hagedorn filed his
certificate of candidacy for mayor in the recall election. A petition for
his disqualification was filed on the ground that he cannot run for the
said post during the recall elections for he was disqualified from
running for a fourth consecutive term. The Court ruled in favor of
Hagedorn, holding that the principle behind the three-term limit
rule is to prevent consecutiveness of the service of terms, and
that there was in his case a break in such consecutiveness
after the end of his third term and before the recall election.
Problem No. 5 (2005 Bar)
1992-2001: X was Mayor of a municipality for 3 consecutive terms
Before May 2001 elections: The municipality became a new city
2001 elections: X filed COC for mayor of the new city
Was X qualified to run for Mayor of the new city?
Answer:
The SC said NO. Number one, the argument that it was a new local
government having a new personality would be a circumvention of the
mandate and spirit of the three-term limit rule as this rule is not only
mandated by the Code but also the Constitution. Otherwise, an
interpretation in favor of X would allow X to serve the same territory,
constituents and jurisdiction for 18 years. This was the ruling in
the case of Latasa vs Comelec.
38
Latasa vs. COMELEC (2003)
 It can be seen from Lonzanida and Adormeo that the law
contemplates a rest period during which the local elective
official steps down from office and ceases to exercise
power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.
 Should petitioner be allowed another three consecutive
terms as mayor of the City of Digos, petitioner would then
be possibly holding office as chief executive over the
same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought
to be avoided by the Constitution, if not abhorred by it.
Problem No. 6
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and served as mayor, but an election
protest was filed against X in 1998
2001-2004: X was re-elected and served as mayor, and the 1998
election protest was decided against X
2004 elections: Was X qualified to run as mayor?
First term: X was elected and served as mayor.
Second term: elected and served but a protest was filed but not yet
decided.
Third term: the COMELEC ruled with finality that he was not the
winner in the second term.
So X contended that his disqualification in the second term should be
considered as an interruption. The SC said that even if you serve as a
de facto officer the term shall be counted against him. The case of
Franis Ong vs. Alegre.
Francis Ong vs. Joseph Alegre (2006)
Petitioner Ong was duly elected mayor (San Vicente) in the May 1995
elections and again in the May 2001 elections and serving the July 1,
1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full.
The controversy revolved around the 1998-2001 term. Ong ran for
mayor of the same municipality in the May 1998 elections and actually
served the 1998- 2001 term by virtue of a proclamation initially
declaring him mayor-elect of San Vicente. But after the term 1998-
2001, it was declared that Ong was not the real winner in the
elections. The question was whether or not Ong’s assumption of office
as Mayor of San Vicente from July 1, 1998 to June 30, 2001, may be
considered as one full term service.
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Francis Ong case, cont’d …
The Supreme Court held that such assumption of office
constitutes, for Francis, “service for the full term”, and should
be counted as a full term served in contemplation of the
three-term limit prescribed by the constitutional and statutory
provisions, supra, barring local elective officials from being elected and
serving for more than three consecutive term for the same position.
His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty
election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to
finish of the term, should legally be taken as service for a full
term in contemplation of the three-term rule (even if he was later on,
after the full term, declared that he was not the winner in the
election).
Problem No. 7
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and served again as Mayor, but a protest
was filed in 1998
2001-2004: X was re-elected and served again as Mayor, but in July of
2001, the 1998 protest was decided against X.
2004 elections: X filed COC for mayor but it was cancelled, although
he won and was proclaimed Mayor
May 17, 2007: X stepped down as mayor as ordered
2007: X was elected again as mayor
Was X qualified to run as mayor for 2007?
Dizon vs. COMELEC
We concede that Morales occupied the position of mayor of Mabalacat
for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to
30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16
May 2007. However, because of his disqualification,
Morales was not the duly elected mayor for the 2004-2007
term. Neither did Morales hold the position of mayor of Mabalacat for
the full term.
Morales cannot be deemed to have served the full term of
2004-2007 because he was ordered to vacate his post before
the expiration of the term. Morales’ occupancy of the position of
mayor from 1 July 2004 to 16 May 2007 cannot be counted as a term
for purposes of computing the three-term limit. Indeed, the period
from 17 May 2007 to 30 June 2007 served as a gap for purposes of
the three-term limit rule. Thus, the present 1 July 2007 to 30 June
2010 term is effectively Morales’ first term for purposes of the three-
term limit rule.
39
Problem No. 8
In 1994, 1997 and 2002: X was elected Punong Barangay
2004: X ran and won as municipal councilor, leaving his post as
punong barangay
2007: X filed COC for the position of punong barangay (the same
barangay)
Is he qualified?
Bolos vs. COMELEC. This case was about abandonment. That
abandonment is considered as voluntary renunciation
He said the 2002-2007 should not be counted because he was serving
as a municipal councilor, so there was an interruption. The SC said
that there was in interruption but it was voluntary. Therefore, it should
not be considered an interruption in the continuity of his service.
Bolos, Jr. vs. COMELEC
The Court agrees with the COMELEC that there was voluntary
renunciation as Punong Barangay. The COMELEC correctly held: It
is our finding that Nicasio Bolos, Jr.’s relinquishment of the
office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption to office as Sangguniang Bayan
member of Dauis, Bohol, on July 1, 2004, is a voluntary
renunciation.
All the acts attending his pursuit of his election as municipal councilor
point out to an intent and readiness to give up his post as Punong
Barangay once elected to the higher elective office. He knew that his
election as municipal councilor would entail abandonment of the
position he held, and he intended to forego of it. Abandonment, like
resignation, is voluntary.
Problem No. 9
X was elected mayor 3 times during the terms: 1998-2001, 2001-2004
and 2004-2007
In September 2005, X was ordered “preventively suspended” by the
Sandiganbayan
In 2007, X filed a COC and ran for mayor.
Was X qualified to run for the 2007 elections?
This is the case of Aldovino vs COMELEC. Preventive suspension
was not considered as an interruption because when we speak of an
event that should cause an interruption it should refer to an
involuntary loss of title. When one is preventively suspended you
are simply barred from discharging functions. There is no
corresponding loss of title so it should not be considered as loss of
title.
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Aldovino vs. COMELEC (2009)
Problem 10: Is the preventive suspension of an elected public official
an interruption of his term of office for purposes of the three-term limit
rule?
A: “Interruption” of a term exempting an elective official from the
three-term limit rule is one that involves no less than the involuntary
loss of title to office. An officer who is preventively suspended
is simply barred from exercising the functions of his office but
title to office is not lost.
Problem 11
For four (4) successive regular elections, namely, the 2001, 2004,
2007 and 2010 national and local elections, A vied for the position of
municipal mayor. In both the 2001 and 2007 runs, he emerged and
was proclaimed as the winning mayoralty candidate and accordingly
served the corresponding terms as mayor. In the 2004 electoral derby,
however the municipal BOC initially proclaimed as winner B, who, in
due time, performed the functions of the office of mayor. A protested
B’s election and proclamation. A was eventually declared the winner of
the 2004 mayoralty electoral contest, paving the way for his
assumption of office starting May 9, 2006 until the end of the 2004-
2007 term on June 30, 2007, or for a period of a little over one year
and xxxx month. Was A qualified to run for the 2010 elections?
Abundo vs. COMELEC. Unlike in the case of Ong vs Alegre, he was
able to serve a portion of the term of 2007 for a couple of months.
Was A qualified to run for the 2010 elections? Diba pag 2004 wa man
siya ni daog. Ni assume lang siya ug office pag hapit na mu end ang
term. Should it be counted against him? If we say that B was a de
facto officer beginning 2004 until May 9 2006 and the capacity of a de
facto officer serving an office is to be counted against him. Then,
conversely, it should not be counted against the de jure officer
because he did not in fact serve the term. So it was in this case that
the SC narrated all possible scenarios involving the three term limit
rule. The 2-year period during B was serving as mayor is considered as
an interruption which effectively removed A from the ambit of the
three-term limit rule. This is a new case.
Abundo, Sr. vs. COMELEC (2013)
The consecutiveness of what otherwise would have been
Abundo’s three successive, continuous mayorship was effectively
broken during the 2004-2007 term when he was initially deprived of
title to, and was veritably disallowed to serve and occupy, an office to
which he, after due proceedings, was eventually declared to have been
the rightful choice of the electorate. The two-year period during
which his opponent, Torres, was serving as mayor should be
considered as an interruption, which effectively removed
Abundo’s case from the ambit of the three-term limit rule.
The 2013 case of Abundo, Sr. vs. COMELEC summarized the
prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption.
So if you have not read the other cases, you just read Abundo vs.
COMELEC.
40
[UPDATE ON ELECTION LAW: Another update in Election law by
the way was in the news 3 or 4 days ago, the SC nullified the rule on
computation or limitation/restriction on the airtime campaign. So,
instead of the more stringent totality rule, meaning aggregate bah,
gibalik to per station. Murag overbreadth to. I have not read the case
yet but I can only surmise it’s more of unreasonable restriction to the
freedom of expression. Overbreadth because if the concern of the
COMELEC is to prevent rich candidates from abusing or taking
advantage of airtime during their campaign, there is still a limitation to
that noh. So dili diay necessary nga i-aggregate, pwede ran a per
station. Anyway, your fear is addressed by a different provision which
is limitation on election expenditure. (See GMA Network, Inc. Vs.
Commission on Elections/ABC Devt. Corp. Vs.
COMELEC/Manila Broadcasting Co., Inc., et al. Vs.
COMELEC/Kapisanan ng mga Brodkaster ng Pilipinas, et al. Vs.
COMELEC/Radio Mindanao Network, Inc. Vs. COMELEC G.R.
No. 205357/G.R. No. 205374/G.R. No. 205592/G.R. No. 205852/G.R.
No. 206360. September 2, 2014 )]
{POST-MOCK BAR, September 26, 2014}
LOCAL GOVERNMENT LAW
(Municipal Corporation Law)
Questions:
What is “local autonomy”?
True or False:
1. The National Government exercises general supervision over
a Province.
2. The National Government exercises general supervision over
the ARMM.
1. False. why?
Student: it is the president that exercises general supervision.
Atty: Ah, it wrong to say national gov’t? So, we have to specify the
agency in the national gov’t or authority in the national gov’t that for
who exercises the power of general supervision. Ok? You were right if
it were the president then the statement becomes true. Because in so
far as congress is concerned, it can be considered as one of control
because in the first place the LGU is created by law and therefore its
existence and powers are derived from Congress. The President
exercises general supervision only. Of course the SC exercises judicial
review over acts of LGU.
2. False.
What would be the correct statement? I’m asking this question
because there is a need to clarify WON all gov’t units, including ARMM
or autonomous region for that matter, are under the general
supervision of the President. Let us say, the President exercises
general supervision over LGU, included ba na ang ARMM? Considering
that there seems to be a difference in the level or degree of autonomy
between the LGUs (provinces, cities, municipalities and barangays) and
the autonomous regions. So this is again a reminder.
I am talking about the case of Limbona vs. Mangelin.
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Local Autonomy
Limbona vs. Mangelin Now, autonomy is either decentralization of
administration or decentralization of power.
There is decentralization of administration when the
central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in
the process to make local governments “more responsive and
accountable,” and “ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of
national development and social progress.”
It was in here that the SC explained two concepts of autonomy. One is
the decentralization of administration and the other is the
decentralization of powers. Decentralization of power is not being
applied or implemented in our jurisdiction. The SC mentioned or makes
this comment, now the autonomy is either decentralization of
administration or decentralization of power. The SC was simply
referring to the general idea of autonomy meaning autonomy in any
particular jurisdiction.
Limbona case, cont’d …
Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government units
declared to be autonomous . In that case, the autonomous
government is free to chart its own destiny and shape its
future with minimum intervention from central authorities.
According to a constitutional author, decentralization of power
amounts to “self-immolation,” since in that event, the autonomous
government becomes accountable not to the central authorities
but to its constituency.
But it was clarified later on in the case of Pimentel that in the
Philippines the kind of decentralization that is being applied or
implemented is decentralization of administrative powers. There is no
total abdication of political powers on the issue.
Remember I mentioned relevant provisions in the Constitution in Art.
10 on the extent of the President over autonomous region? So may
basis ta for saying that the President exercises general supervision.
Administrative Powers or Political Powers?
What is the kind of decentralization adopted or practiced in the
Philippines?
Pimentel v. Aguirre, GR No. 132988, July 19, 2000: Under the
Philippine concept of local autonomy, the national government has not
completely reqlinquished all its powers over local governments
including autonomous regions. Only administrative powers over
local affairs are delegated to political subdivisions. Thus,
policy-setting for the entire country still lies in the President
and Congress.
(Also cited in Kida vs. Senate, October 18, 2011)
41
Problem
Confident that Municipality of Consolacion can qualify as a new
city under existing laws, its officials ask you whether the whole
Province of Cebu will participate in the plebiscite that will be conducted
(assuming that they succeed in persuading Congress to pass a law
converting Consolacion into a city). What will be your advice?
In downgrading (like from independent component city to component
city) there is a need for plebiscite. Who will participate? That specific
city (its inhabitants).
If it’s a case of upgrading, (involving a highly urbanized city) the
Supreme Court ruled in the case of Umali, that if you upgrade, it will
become independent of the province. If it’s a component and it
becomes independent or a highly urbanized city, it’s beyond the
supervision of province, and since it is beyond the supervision of the
province, it is not part of the province anymore, territorially speaking.
In fact, it will not anymore contribute to the funds of the province. The
Supreme Court ruled that this is substantial alteration of boundaries.
Theoretically, you can qualify your answer, but legally, you cannot
because when you create a city today, you need to take 100 million
income in the past 2 preceding years. As was mentioned before, RA
9009 only amended the section about a newly created city but it did
not any corresponding changes or amendments to that section about
highly urbanized city (which is still 50 million). This means that if you
create a city today, legally, it can exist as a highly urbanized city
already because the requirement is just 50 million and it is then
beyond the supervision of the province of Cebu. Applying Umali
doctrine, mother province of Cebu should participate in the plebiscite.
Miranda vs. Aguirre (Sept. 1999)
The Supreme Court ruled that plebiscite was required even in
cases of “conversion”.
It observed that the common denominator in Section 10, Article X of
the 1987 Constitution is the material change in the political and
economic rights of the local government units directly affected as well
as the people therein. It is precisely for this reason that the
Constitution requires the approval of the people in the political units
“directly affected.”
Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in Sec. 10,
Article X of the Constitution, xxxx the conversion of a component
city into an HUC is substantial alteration of boundaries. As the
phrase implies, “substantial alteration of boundaries” involves and
necessarily entails a change in the geographical configuration of a local
government unit or units. The phrase “boundaries” should not be
limited to the mere physical one, referring to the metes and bounds of
the LGU, but also to its political boundaries.
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Specific Criteria
Barangays: Population
Municipalities: Income, Population & Land Area
CC: Income & Population OR Land Area
HUC: Income & Population
Province: Income & Population OR Land Area
Question
In the LGC of 1991, a municipality may be created with less
than 50 sq. kms. if it is an island. Under the LGC of 1991, however,
there is no such exception when it comes to creation of a province
which normally requires at least 2,000 sq. kms. May the implementing
rules of the LGC of 1991 provide for a similar exception?
Navarro vs. Ermita
– this is a case involving a province, which has a different rule when
compared to a municipality in terms of land area requirement
 Par. 2 of Art. 9 in the IRR of the LGC of 1991, which states
that “the land area requirement shall not apply where the
proposed province is composed of 1 or more islands” violates
the LGC of 1991 and therefore null and void.
 Nowhere in the LGC is the said provision stated or
implied. Under Sec. 461 of the LGC, the only instance when the
territorial or land area requirement need not be complied with is
when there is already compliance with the population
requirement.
2010 Navarro vs. Ermita, reversed in 2011!
 SC through J. Nachura, ruled that Congress intended to
apply the exemption on land area requirements enjoyed by
municipalities and cities which have islands as territories to
the Province (Province of Dinagat)
 Note of J. Carpio’s Dissent that the majority opinion will
allow the creation of a province with only one (1) unit (say a
municipality) instead of various component LGU’s.
Question:
For the purpose of determining compliance with the income
requirements for the creation and/or conversion of a local government
unit (LGU), what constitutes the “annual income” of an LGU?
Again, clarification, RA 9009 increasing to 100M and restricting the
component to locally generated income, therefore excluding all other
sources not internally generated, like Internal Revenue Allotment (IRA)
applies only in the creation of a city. Meaning, if there is a creation of
a province or a municipality, we go back to the general rule that IRA,
being distributed or released automatically to all LGUs, is not subject
to any condition or restriction, and it can also be considered as forming
part of the gross annual income. So, regular siya kai regularly released
man. Caveat lang ni siya. Not yet tested sa SC ruling but I’m sure it’s
an important issue.
42
So, RA 9009 only applies to the creation of cities, and I don’t know if
gi-overstretch nasad nako but I’m thinking also that it restricts the
manner of creating a city, because it mentions of two kinds of
creations of cities. One, when you convert a municipality into a city
and the other is when you make the city out of clustered barangays.
Ang ako lang thinking nga who knows, there’s another way of creating
a city, other than municipality converted into a city or cluster of
barangays made into a city. What if a province is to be converted into
a city? Di na muapply ang RA 9009. Ingon si Pimental this is to
prevent this mad rush into becoming a city para lang makakuha ug
IRA, sila sad ga mad rush sad sila sa paghimo ug RA 9009. Just a
question.
MERGER OF LGU’s
Merger of LGU’s
 Should territory to be annexed be “contiguous”?
 What will happen to the “corporate personalities” of the
merged units?
 What will happen to the ordinances of the merged units, will
these ordinances be considered ineffective?
Let’s proceed to the basic distinction first. If you create a legislative
district, the requirement is that the district should be contiguous,
compact and adjacent. Pero a local government unit, is the only
requirement contiguity? What’s the difference between adjacent and
contiguous?
- In American law on municipal corporations, gidistinguish ang
adjacent and contiguous. Ang contiguous mas restrictive siya
in the sense that the two LGUs should touch each other in
their boundaries. Adjacent only requires that the territories
are near each other. Dili mag require ug touching. Contiguity
would require a higher threshold while adjacent is more
general, pwede near. Of course, exception kung islands, dili
mana nimo ma require na contiguous.
- As to merger, there’s no specific provision in the law
whether contiguity is required, but American law states that
that should be a requirement insofar as the merger of LGUs
is concerned. So, territories that are merely adjacent but are
not contiguous may not be merged.
What will happen to the corporate personality of the merged units?
- Ma extinct na ang existence or personalities. Based on
American jurisprudence, they will lose their respective
corporate personalities and there is now just one corporate
personality.
What will happen to the ordinances that were passed in the LGUs that
have ceased to exist?
- The rule again, based on American jurisprudence, is that
until and unless the new unit can come up with its own
ordinance, then the respective ordinances of the merged
units will continue to be effective, but only with respect to
their own territories, until new ordinances shall have been
passed. Those are important considerations.
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Problem
In preparation for the 2016 local and national elections, the
COMELEC conducted investigations in order to ascertain the veracity of
reports of “ghost precincts”. Based on the investigations it conducted,
COMELEC discovered that there are no inhabitants in Barangay Diwata
in Municipality of Lazi, Siquijor. Consequently, the COMELEC removed
Barangay Diwata among the list of precincts in the Municipality of Lazi,
Siquijor for purposes of the 2016 elections. Is the act of the COMELEC
valid?
The act of the Comelec in delisting a precinct would result to delisting
a barangay because under the Omnibus Election Code, every barangay
must have at least one precinct. If that barangay is not provided with
a precinct, it is equivalent to abolition of that barangay and this is not
the correct process of abolition. There is a specific requirement in
case of abolition of a local government unit, in particular a barangay.
The Omnibus Election Code mandates that every barangay must have
at least one precinct. If you remove a barangay from the list of
precinct that would mean that you are not recognizing that particular
barangay. Supreme Court said, it does not necessarily follow that just
because there are no inhabitants at the time of the investigation that it
is a ghost precinct because people move.
It could be possible that at the time of the creation of a barangay,
which could be many decades ago, there were inhabitant and when
the Comelec conducted the investigation, the inhabitants transferred to
another barangay. Don’t you think it is possible? It is possible.
I mentioned earlier that abolition is not automatic because there is a
process. Let me go to this next problem which is related to the issue
on abolition.
Problem
Barangay Pobre is the poorest of all barangays in the
Municipality of Carmen mainly because of its rocky, hilly, and
mountainous topography. It thrives mainly on the IRA that it receives.
Without the IRA, it could hardly pay even the honoraria of the
barangay tanods.
1. Can it lawfully be abolished?
2. If yes, what is the procedure for the abolition of Barangay
Pobre?
Abolition
Ground:
When its income, population, or land area has been
irreversibly reduced to less than the minimum standards as
certified by the national agencies concerned. (Sec. 9, LGC)
Note: Irreversible reduction to less than the minimum standard only
offers a ground for abolition. Hence, a further act (law or ordinance)
is still required to effect abolition. [DILG Opinion NO. 17 Series of
2006]
Remember the rule: the ground for abolition is irreversible reduction to
less than the minimum standards but income is not a criterion for the
43
creation of a barangay. This is a bit tricky but this is just a reminder.
When its income, population or land area has been irreversibly
reduced to less than the minimum standards as certified by the
appropriate agency; income in barangay is irrelevant. No matter how
poor the barangay may be, it may not be considered right away as a
ground for the abolition.
But even if it is a ground for abolition, there is still a procedure. What
is the procedure?
First, there should be an ordinance of the Sanggunian Panlalawigan of
which the Municipality of Carmen is a part;
Next, what should be stated in the ordinance abolishing the barangay?
Second, the ordinance should specify the territory to which this
barangay will become part. As you know when you abolish a barangay,
it does not mean it will disappear. Hence, the ordinance must specify
to which territory the barangay abolished will become part of.
This brings me to Section 9 and 10 of RA 7160 –
 Section 9, RA 7160 x x x. The law or ordinance
abolishing a local government unit shall specify the
province, city, municipality, or barangay with which
the local government unit sought to be abolished will
be incorporated or merged.
 Section 10, RA 7160. Plebiscite Requirement. No creation,
divison, merger, abolition, or substantial alteration of
boundaries of local government units shall take
effect unless approved by a majority of the votes cast
in a plebiscite called for the purpose in the political
unit or units directly affected. Said plebiscite shall be
conducted by COMELEC within 120 days from the
date of effectivity of the law or ordinance affecting
such action unless such law or ordinance fixes
another date.
In regard to abolition I have three (3) important questions:
Questions
 What will happen to the properties owned by the abolished
LGU?
 What will happen to the obligations incurred by the
abolished LGU?
 Will the officers of the abolished LGU continue to exercise
their functions?
What will happen to the properties owned by the abolished LGU? They
will not of course disappear. The relevant question there is, will there
be payment of compensation? Automatic absorb? If there will be
payment of compensation who will receive when the LGU is already
annexed to another LGU?
- Ownership of the properties will be transferred to the
territory to which the abolished LGU is annexed.
What will happen to the obligations incurred by the abolished LGU?
- The rule therefore on obligations is that, obligations are
shouldered or assumed. In fact, based on American
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Jurisprudence, the territory to which the abolished LGU is
annexed, will have the right to dispose of the abolished
LGU’s properties in order to pay off the abolished LGU’s
obligations.
Will the officers of the abolished LGU continue to exercise their
function?
- Certainly, they will not. The moment there is valid abolition
of an office, then there is no more relationship between the
public officer and the office itself.
This came out in the bar exam. Settlement of boundary dispute –
2005 Bar
There was a boundary dispute between Dueñas, a municipality,
and Passi, an independent component city, both of the same province.
State how the two local government units should settle their boundary
dispute.
Before the Old Local Government Code of 1983, the Revised
Administrative Code provided for two levels of boundary disputes. The
Provincial Governments were then allowed to hear and decide
settlement disputes.
It was changed by the old Government Code where the
Sanggunian of the mother province for example were not anymore
given the power to decide. In a very long time during the time of
Marcos, any disputes as to boundary had to be filed in the Regional
Trial Court. Although there may be a requirement on exerting efforts
to settle a case, the Sanggunian panlalawigan did not have authority
to decide sitting as a quasi judicial body or probably a judicial body
since this would require a specific decision on matters of law.
Under the Local Government Code of 1991, the Sanggunian
can now decide and the Regional Trial Court will only have jurisdiction
if a decision by the Sanggunian has already been made.
Steps in Settlement:
1st level: Amicable Settlement
2nd level: Sanggunian
3rd level: Appeal to the RTC
Settlement of Boundary Disputes
1. It is mandated that boundary disputes between and among
local government units shall, as much as possible, be settled
amicably.
2. Amicable settlement is within the jurisdiction of the
Sanggunian/s of the mother unit/s as a general rule.
3. In case of failure to settle, the Sanggunian concerned tries
the case.
4. Within the time and manner prescribed by the Rules of
Court, any party may elevate the decision of the
Sanggunian concerned to the proper Regional Trial Court
having jurisdiction over the area.
Bar question: State how two Local government units can settle their
boundary dispute.
44
See Sec. 118 & 119 LGC
LOCAL POLICE POWER
Local Police Power
 THE “GENERAL WELFARE CLAUSE”:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare.
In the past (bar) you will be given an ordinance, and you will be asked
to determine the validity of the ordinance. In many cases the
ordinance involved a police power measure.
Requisites for Validity of Local Police Power
Tatel vs. Mun. of Virac:
7. must not contravene the Constitution AND statute
8. not unfair or oppressive (also a constitutional
requirement)
9. not partial or discriminatory (also a constitutional
requirement)
10. not prohibit, but only regulate lawful trade (see: De la
Cruz vs. Paras where an ordinance prohibited the operation
of night clubs)
11. consistent with public policy (because of the
requirements of valid delegation of legislative power) see:
(Lim vs. Pacquing) where it was found out that the “national
policy”was for National Government, not for LGU’s, to grant
“franchises” for operation of jai-alai. LGU’s can only regulate
but not grant operation of jai-alai.
12. not unreasonable (also a constitutional reqt.) (See:
Balacuit case where an ordinance penalized movie houses
that charged full payment for admission of children between
7-12)
13. xxx also applies “lawful subject” and “lawful means”
requirements!
Simplified by Supreme Court as:/All 6 are covered by: lawful
subject” and “lawful means”
Lawful subject – any act that affects the public, not just a private
group or class; a lawful subject of regulation/ the act affects the public
and therefore it is subject to regulation
Lawful means – the means employed in order to achieve or accomplish
the purpose of the law, shall be reasonable necessary and not unduly
oppressive upon individuals.
Q: Do you know how to apply the second requisite of lawful means?
A: There are two tests usually applied to determine compliance on the
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lawful means requirement…
Two (2) Tests are usually applied:
3. Rational Relationship Test
4. Strict Scrutiny Test
Using the rational basis examination, laws or ordinances are upheld if
they rationally further a legitimate governmental interest.
Governmental interest is extensively examined and the availability of
less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling,
rather than substantial, governmental interest and on the absence of
less restrictive means for achieving that interest. [Fernando vs. St.
Scholastica’s College, G.R. No. 161107, March 12, 2013]
On the first Test (Rational basis examination/Rational Relationship
Test), there are only two things to remember. Namely, these are the
following:
a) That there must be a “Legitimate Governmental Purpose” (e.g.
general welfare health, traffic, etc.), and
b) It is the “Least Intrusive means”
- meaning, there must be no other means of accomplishment that are
available. Otherwise, it is considered to be an overbreadth (or not the
least intrusive).
On the other hand, Strict Scrutiny Test requires a higher threshold. It
does not only require a legitimate governmental interest. It rather
requires “compelling state interest”. Examples of which are on
accounts of national security, maintenance of peace and order,
territorial integrity, etc.
Q: Since there are two tests, when do apply one and not the other?
A: The courts are guided by what the nature of the right, liberty or
freedom is. It must be determined whether or not it involves “high
value freedom”. If what is involved, is a high value freedom then Strict
Scrutiny Test must be applied. Otherwise, what is applicable is the
Rational Relationship Test.
High value freedom includes right to privacy, expression, religion and
the like.
Consequently, the burden of proving the unconstitutionality does not
lie on the one assailing it. Instead, the burden of proving the existence
of compelling state interest belongs to the state. The presumption of
constitutionality is not observed in this situation.
In the case of non-high value freedoms like socio-economic rights,
business, etc., the test applicable is the Rational Relationship Test.
Moreover, there is also a presumption of constitutionality of the
regulation.
These rules are also applicable to ordinances issued as police
measures
.
45
Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005)
As with the State, the local government may be considered as having
properly exercised its police power only if the following requisites are
met: (1) the interests of the public generally, as distinguished
from those of a particular class, require the interference of the
State, and (2) the means employed are reasonably necessary
for the attainment of the object sought to be accomplished
and not unduly oppressive upon individuals. Otherwise stated,
there must be a concurrence of a lawful subject and lawful
method.
Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005)
Facts: There were certain terminals in the interior part of the city. The
existence of these terminals was believed to be the cause of the traffic
congestion. The solution was to have a terminal and make it a central
terminal outside the city. Indeed it was implemented by the LGU but at
the same time it ordered through the ordinance that existing terminals
inside the city cannot operate as terminals anymore. Aggrieved, the
owners filed a case in court questioning the ordinance on the ground
that it took away from them their property without just compensation.
The LGU countered by contending that it was an exercise of Local
Police Power.
Issue: Was it a valid exercise of Police Power?
Ruling: No, it was an invalid exercise of Local Police Power.
A valid exercise of Local Police Power presupposes that it is of lawful
subject and lawful means. Furthermore, the lawful means requirement
holds that the means used to accomplish the subject must be
reasonably necessary.
In the present case, the means employed by the City was not
reasonably necessary. It is because there are other more conservative
means available to resolve the issue on traffic congestion. To wit, it
could have implemented strictly the traffic rules, or resorted to road-
widening—the City did not. Hence, the City’s act was an overbreadth.
CAVEAT: Most recent Jurisprudence now teaches that the Overbreadth
Doctrine should be merely contained to Freedom of expression cases.
LOCAL EMINENT DOMAIN
Heirs of Alberto Suguitan vs. City of Mandaluyong (G.R. No.
135087, March 14, 2000)
Despite the existence of this legislative grant in favor of local
governments, it is still the duty of the courts to determine
whether the power of eminent domain is being exercised in
accordance with the delegating law. In fact, the courts have
adopted a more censorious attitude in resolving questions
involving the proper exercise of this delegated power by local
bodies, as compared to instances when it is directly exercised
by the national legislature.
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Local Eminent Domain, cont’d…
Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian
School vs. City of Pasig case)
5. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular private
property.
6. For public use, purpose, or welfare, or for the benefit
of the poor and the landless. (cf. Sec. 33 of xxx IRR)
The specific requirements, diba you’ve learned this already. Just a
reminder, it’s now ordinance instead of resolution which was the
requirement before in the old code.
But the case of VM Paranaque is open to the possibility that even if a
resolution was passed in order to authorize the local chief executive to
expropriate, if the resolution was passed following the procedure for
passing an ordinance, it may comply with the requirements. So that’s
the important thing that you need to remember. So you cannot be
strictly positivist with your approach that and law kay ordinance so
there’s no way that a resolution can take the place of an ordinance.
What the Supreme Court said in MV Paranaque was that if a resolution
was passed, but then again you would ask why would the Sanggunian
would pass that, but maybe only after realizing that the requirement
now is an ordinance. And the ordinance must be specific in the sense
that it should specify the particular private property. So you should not
have an ordinance that is too sweeping simply authorizing the local
chief executive mura bag general power of attorney ba, so it must be
specific over a particular private property. This is just a reminder kay
basin imo focus ang ordinance ra then ang other requirements
makalimot ka.
City of Cebu vs. Dedamo (2002)
 While Sec. 4 of Rule 67 of the Rules of Court provides that
just compensation shall be determined at the time of the
filing of the complaint for expropriation (or, time of taking
whichever came first), such rule cannot prevail over RA
7160, which is a substantive law.
 Sec. 4, Rule 67 (time of filing of complaint or taking,
whichever came first) vs. LGC: at the time of “taking”.
You know na noh nga ang reckoning point of the just
compensation is the TAKING. Unlike in the case of expropriation of the
national government that the just compensation will have to be based
on the fair market value of the property at the time of taking or filing
of a complaint whichever comes first. Sa local government
expropriation, time of taking gyud. Specific. And then, immediate
possession would require a deposit. 15% of the fair market value
based on the current tax declaration. In the case of national
expropriation, how much is the deposit for immediate possession while
pending pa ag expropriation? That’s another important difference. You
should take note of that. The Rules of Court would require a deposit of
46
the value of the property . Meaning 100%. 100% gyud para nay
immediate possession while the case is still pending.
Now Republic vs. Lim, familiar?
Republic vs. Lim (2005)
The landowner is entitled to recover possession of the
property expropriated if the government fails to fully pay just
compensation to the owner within a period of five (5) years
from the finality of the judgment in an expropriation
proceeding.
MCIAA vs. Lozada, Sr. (2010)
Reversing “Fery vs. Municipality of Cabanatuan” (1921):
“The expropriator should commit to use the property pursuant
to the purpose stated in the petition for expropriation filed,
failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to
return the said property to its private owner, if the latter
desires to reacquire the same.”
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011)
If the genuine public necessity of expropriation of private land ceases
or disappears, then there is no more cogent point for the government’s
retention of the expropriated land. The same legal situation should
hold if the government devotes the property to another public use very
much different from the original or deviates from the declared purpose
to benefit another private person.
So the case of Fery v. Cabanatuan had been reversed.
Now remember pamo sa ruling sa Fery v Cabanatuan? Nag expropriate
for a particular public purpose pero iyang gi abandon ang public
purpose of the expropriation. Gi change niya for lain na public
purpose. So two purposes. Let’s say ni expropriate siya for public plaza
nya diay to giconvert niya to recreational facility. What was the ruling
of the court in the case of Fery ? Para makasabot mo unsay gireverse.
In Fery v. Municipality of Cabanatuan, Supreme Court said the moment
the expropriator completed the expropriation and a certificate of title is
issued pursuant thereto, the expropriator becomes kuno class an
absolute owner or an owner in fee simple. Sa ato pa, he has all the
discretion on what to do with the property. So pwede niya I abandon
ang public purpose, pwede sad niya icontinue, pwede sad niya
ireplace. Such that the original owner cannot necessarily recover the
property if the expropriator will not use it for the public purpose for
which the expropriation was initiated.
Gireverse ni sa Supreme Court. First in MCIAA v Lozada,
2010, second, Anunciacion Vda. De Ouano vs. Republic. Nya may
reasoning ang court. No. 1 ang Fery case penned by an American
jusrtice, 1921 Spreme Court America nya gitrace sa Spreme Court ug
unsa ba gyud diay ng sa US. Mao na ang conception sa US. Nya
niingon dayon ang Supreme Court: Since 1921, we had the 1935
Consti, the 1973 Consti and then of course the 1987 Constitution. Nya
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common kuno aning 3 Consti class the requirement of public purpose.
Maong niingon ang Supreme Court na, indeed correct si Lolo Bernas,
na while our constitutional law is basically patterned from that of the
US, we cut the umbilical cord.. karemember mo ana? Sakit sakit gyud
to. (hahaha) So kini, for obedience ra gud na gud. Kung applicable ang
rule sa US, I apply nato. Pero kung tan-aw nato nay change in
circumstances or a different scenario, di nato iapply. We come up with
our own. This is one example. So nachange na ang legal landscape. So
Supreme Court now says the expropriator should commit its use
pursuant to the purpose stated. Kay ug absolute owner ka, kining the
disposition was unconditional. Sa Fery v Cabanatuan naai expection
ang court na unless the expropriation proceeding provided for a
condition. Kung wala ang condition sa decision, absolute siya.
Unconditional. But now, Supreme Court said it is subject to the
condition .
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public
purpose. As a necessary corollary, once the purpose is
terminated or peremptorily abandoned, then the former
owner, if he so desires, may seek reversion (return), subject of
course to the return, at the very least, of the just compensation
received. The notion that the government, via expropriation
proceedings, acquires unrestricted ownership for a fee simple title to
the covered land, is no longer tenable.
Either i-abandon ang public purpose or ilisan ug lain na purpose.
Interestingly, niingon ang Supreme Court na dapat mu-file kuno ug
laing information.
In case of Immediate Possession
Before a local government unit may enter into the possession of the
property sought to be expropriated, it must (1) file a complaint for
expropriation sufficient in form and substance in the proper court and
(2) deposit with the said court at least 15% of the property’s fair
market value based on the current tax declaration. The law does
not make the determination of a public purpose a condition
precedent to the issuance of a writ of possession. [Francia vs.
Meycauayan (2008)]
{September 27, 2014}
(Discussion of Mock Bar Exam question earlier raised by
Miguel Lumapas pertaining to the reclassification of land containing
mineral oil deposits into commercial and ordering the oil
establishments to transfer their properties and the Secretary of Energy
assailing the same ordinance: The case of Social Justice Society vs
Chevron or Atienza (2008), involving the Pandacan Oil, something like
that. And the zoning ordinance was upheld as a police power measure.
Apparently the Supreme Court made a finding on the hierarchy of
rights, chevron and those other oil companies affected, invoked the
right to property, kay business man, so property right daw. On the
other hand, promotion of the right general welfare, involves the right
of the locality to life. Between right to property or life, mo prevail ang
right to life. Kay ang right to life daw is irreplaceable. But you can
replenish loss from property. Like love, irreplaceable, cannot be
quantified. )
47
Problem
The City of Cebu entered into a contract for services with DBL
Corporation under which the latter will provide machineries,
equipment, and facilities for the dumping of garbage in a dumpsite.
The contract is for a term of 5 years at a rate of P1.5M per month.
After two years, the City of Cebu, which was already under a new
administration, stopped paying the monthly fees to DBL Corporation on
the ground that the contract was not authorized by the SP and not
covered by actual appropriation for the full amount of the contract.
May the City of Cebu be held liable to DBL Corporation?
Requisites for Validity of Contracts entered into by LGU’s
A. The local government unit must have the power to enter
into the particular contract;
B. Pursuant to Section 22(c) of the Local Government Code,
there must be a prior authorization by the Sanggunian
concerned, and a legible copy of the contract shall be
posted at a conspicuous place in the provincial capitol or
the city, municipal, or barangay hall;
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,
Book V, 1987 Admin. Code, if the contract involves the
expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds
by the treasurer of the local government unit (Except in the
case of a contract for supplies to be carried in stock)
D. The contract must conform with the formal requisites of
written contracts prescribed by law
Requisites for validity of contracts entered into by local government
units:
1. The local government unit must have the power to enter
into a particular contract;
2. there must be a prior authorization by the Sanggunian
concerned, the authorization is posted
3. there must be actual appropriation and certificate of
availability of funds
4. the contract must conform with the formal requisites
Q: What will happen if one of the requisites is lacking? What will be
the effect of the contract?
A:
if absent ang 1 and 3 void, not subject to ratification (Doctrine of
Estoppel will not apply)
if absent ang 2 and 4  voidable, subject to ratification
What I am asking you in the question is about actual appropriation and
certification of availability of funds. The question in the problem was,
the contract is for five years at the rate of 1.5 million per month,
question: at the time that it is covered by the contract, is the LGU
required to state in the certificate of availability of funds that there will
be (1.5m x 12 months x 5 years) 90million.
Contract, kay usa ra baya ang contract unya mo-comply baya ka sa
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requirements supposedly one time kay naa na man tong contract so-
icomply nimo ang requisites karon kay karon man nako pirmahan ang
contract. Required ba nga mag certificate of availability of 90 million?
That is an important thing to consider. Or, 1.5million per month
multiplied by 12 months every year kay ang meeting raba sa council,
yearly man. Anah ba nah? The answer is per year. So it depends on
the contract class. If the obligation in the contract is to be complied
with at one time, or payable one time lang, the certificate of
availability of funds should cover the exact amount. But if the expense,
and therefore the obligation, will accrue over a long period of time,
then the certificate of availability of funds does not have to cover the
entire project amount. Pwede siya as will accrue. So that is important
rule to remember.
When to make actual appropriation for a contract:
The facts in the Osmeña case are not parallel to the facts in the instant
case. While in the former, the construction of the abattoir entailed the
payment in full of a fixed amount, the case at bar involved a contract
for services still to be rendered which was payable on a monthly basis,
just as in the Imus case. In the latter case, the Supreme Court did
not declare the contract null and void ab initio for the reason
that appropriation for the project can be made subsequent to
the execution of the contract. (Quezon City vs. Lexber, Inc. 2001)
This was the ruling of the court in Quezon City vs. Lexber. When to
make actual appropriation for a contract. Distinguishing old cases
Osmena and Imus cases, the first case, it involved payment in full of
its amount. While in the latter case, it involved services and therefore
to be rendered not at one time and therefore payable on a monthly
basis. In the Imus case, it was not declared void ab initio even if it did
not cover the entire amount because the services were to be rendered
over a period of time. So as will accrue ang ma-cover sa budget.
Alright. Kani, wala pa gyud nuon ni gi-ask since it was promulgated in
2008. Remember this Quisumbing vs. Governor Garcia case?
Resolution, or General Appropriation Ordinance? Resolution ang
requirement, correct? Ohh.
Resolution or General Appropriation Ordinance?
 Quisumbing v. Gov. Garcia (2008):
The fact that the Province of Cebu operated under a reenacted budget
in 2004 lent a complexion to this case which the trial court did not
apprehend. Sec. 323 of RA 7160 provides that in case of a reenacted
budget, “only the annual appropriations for salaries and wages
of existing positions, statutory and contractual obligations,
and essential operating expenses authorized in the annual
and supplemental budgets for the preceding year shall be
deemed reenacted.
In this case, it was argued that pwede baya ug General Appropriation
Ordinance because, asa man nah kuhaa ang funding, diba sa General
Appropriation Ordinance? And what is required is authorization lang.
Prior authorization by the Sanggunian. Pero wala gi-specify kung unsa
nga authorization. Resolution ba, or ordinance. That is the effect of
combination of American and Civil law legal system. Kay kani man gud
nga mga words like prior authorization, American origin man gud nah.
Dili specific ba as to the form. Unya for example, kanang mga posting
requirements on ordinances or resolutions, sa USA anah class, ang ila
48
rang requirement is that it shall be posted in a conspicuous place…or
in a manner…kanang mga ingon anah raba. Kita class, sobra ka
specific. Ibutang gyud nga posted in three consecutive weeks…specific
gyud ba. In this case, gibutang nga prior authorization. Wala gyud
gibutang kung unsay form. Tan-awa ning Garcia, naa pay argument
nga: Is it not nga ang ordinance, gikan sa Sanggunian? Ang resolution,
gikan sab sa sanggunian. Nganong dili man mu-take the form of a
resolution ang ordinance and consider it as a prior authorization?
Ang problema class is this. The General Appropriation Ordinance
usually, kay general gani, it cannot specify each and every project.
And you know, each and every project shall be covered with a specific
contract. So kung mu-ingon ka ug road widening of Pelaez Street,
kana lang street daan, one contract nah nah. Over-pass in another
area, another project na pud nah siya, then another contract nasad. As
a rule, every specific project covered by a contract, and because it is
covered by a contract, it should likewise carry a specific and definite
resolution for that contract. Kay ang imung resolution specific man.
Example is a resolution authorizing the city mayor to sign a contract
for the construction of an overpass. So specific siya. Unya ibutang pud
kung kinsa ang contractor. Lain-lain pa gyud gani nah. Pwede man nga
lain ang mu-trabaho sa cement, and lain pud ang sa earthmoving. Naa
man nang mga ingon anah. Daghan ang mga contractors nga
involved. So lain-lain man nah nga contract so separate sad nah nga
authorization or resolution. Mao nga ni-ingon ang SC nga depende. If
the general appropriation ordinance is specific as to the project, which
by the way does not happen kay imagina ninyo nga mu-ingon “15
million for road widening” pero walay gisulti nga street. Pero bisan ug
nag sulti pa ug street, it is not pa jud specific as to the type of the
project. Diba? So you remember this rule. This has never been asked
in the bar.
Should the appropriation ordinance, for instance, already
contain in sufficient detail the project and cost of a capital
outlay such that all that the LCE needs to do after undergoing the
requisite public bidding is to execute the contract, no further
authorization is required, the appropriation ordinance already
being sufficient.
But that is more of a theoretical explanation by the court than actual
because lisud man na pangitaon sa general appropriation ordinance
nga specific.
On the other hand, should the appropriation ordinance
described the projects in generic terms such as “infrastructure
projects”, “inter-municipal waterworks, drainage and sewerage, flood
control, and irrigation system projects”, “reclamation projects”, or
“roads and bridges”, there is an obvious need for a covering
contract for every specific project that in turn requires
approval by the sanggunian.
Specific sanggunian approval may also be required for the
purchase of goods and services which are neither specified in
the appropriation ordinance nor encompassed within the
regular personal services and maintenance operating
expenses.
LIABILITY FOR DAMAGES
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For defective public works: ownership is not the rule; only
supervision. (Sir says to check reviewers.)
2011 Bar
A collision occurred involving a passenger jeepney driven by
Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Lauro but owned by the City of Cebu. Lauro was on his way to get a
load of sand for the repair of road along Fuente Street, Cebu City. As a
result of the collision, 3 passengers of the jeepney died. Their families
filed a complaint for damages against Joseph who in turn filed a third
party complaint against the City of Cebu and Lauro.
Is the City of Cebu liable for the tort committed by its
employee?
This copied the case of San Fernando La Union vs. Firme. So are
they liable for damages for torts?
It was for the purpose of loading sand for governmental purpose. So in
this case you distinguish governmental from proprietary. If it is
governmental it is not liable but for proprietary, liable. But under
section 24 of the LGC there is no such distinction.
Problem
The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration.
The stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be
held liable?
Apply the Torio vs. Fontanilla case, fiesta celebration is proprietary,
but who will be held liable? The members of the SP will not be liable
because of the principle of distinct and separate personality.
Since a LGU may be held liable for damages in some instances, we
need to know how to enforce monetary judgment. Our case in course
here is the municipality of Makati vs CA.
Enforcement of Monetary Judgment
1. Levy on the patrimonial properties of the judgment
local government unit;
2. When a municipality fails or refuses, without justifiable
reason, to effect payment of a final money judgment
rendered against it, the claimant may avail of the remedy
of mandamus in order to compel the enactment and
approval of the necessary appropriation ordinance,
and the corresponding disbursement of municipal
funds therefore.” (Mun. of Makati vs. CA)
You cannot go straight to the funds of the LGU because as you know
public funds will be taken from the public treasury only by law for
congress and ordinance for local government officials
49
2005 Bar

In the May 8, 1995 elections for local officials whose terms were to
commence on June 30, 1995, Ricky filed on March 20, 1995 his
certificate of candidacy for the Office of Governor of Laguna. He won,
but his qualifications as an elected official was questioned. It is
admitted that he is a repatriated Filipino citizen, and resident of the
Province of Laguna. To be qualified for the office to which a local
official has been elected, what at the latest should he be:
2011 Bar
Alfredo was elected municipal mayor for 3 consecutive terms.
During his third term, the municipality became a city. Alfredo ran for
city mayor during the next immediately succeeding election. Voltaire
sought his disqualification citing the 3 term limit for elective officials.
Will Voltaire’s action prosper?

(a) A Filipino citizen? Explain.

(b) A resident of the locality? Explain. (No discussion by Sir. He presumed we know this already)

For local elective officials, the applicable case is Frivaldo vs.
COMELEC
As ruled in Frivaldo the rule of retroactivity on the effects of
repatriation. So if you have been repatriated a year before the filing of
the certificate of candidacy the court in this case that it should be
given a retroactive effect. It should retroact from the day of filing of
the application so by the time you filed for the certificate of candidacy
you are considered as a Filipino and you were elected and voted upon
he was already a Filipino.
2011 Bar
Adela served as mayor of Kasim for 2 consecutive terms. On her
third term, COMELEC ousted her in an election protest that Gudi, her
opponent, filed against her. Two years later, Gudi faced recall
proceedings and Adela ran in the recall election against him. Adela
won and served as Mayor for Gudi’s remaining term. Can Adela run
again for Mayor in the next succeeding election without violating the 3
term limit?

Section 39 of the LGC qualifications of elective officials and not of
candidates so an official is considered as an elective official upon
proclamation, taking oath and assumption of office. So at that moment
ang required nga mu possess sa citizenship requirement. Because
some other requirement has a specific reckoning point like the second
question,
So an “elected” official is considered only an “elected” official upon
proclamation, taking oath and assumption of office. So at that moment
siya required mo possess sa citizenship requirement. Only citizen
requirement because some other requirements, naay specific
reckoning point. Like the second question, the residency requirement:
it is 1 year on the day of election not noon of June 30.
Citizenship
- Natural-born or otherwise, including “naturalized”
citizen of the Philippines
Frivaldo Case: The qualifications in the LGC refer to that of
“Elective” Officials (and not of “candidates”), hence, these
qualifications need to be possessed by the official not at the
time he filed his certificate of candidacy but at the time he
takes his oath of office and assumes his post. [2005 Bar
Exam]
Vacancies and Successions
Issues:
1. Meaning of “permanent vacancy”
2. Method of “ranking”
3. Meaning of “last vacancy in the Sanggunian”
2008 Bar
On August 8, 2008, the Governor of Bohol died and Vice-
Governor Cesar became the Governor by operation of law. Accordingly,
Benito, the highest ranking member of the Sangguniang Panlalawigan
was elevated to the position of Vice-Governor. By the elevation of
Benito to the office of the Vice-Govenor, a vacancy in the Sangguniang
Panglalawigan was created. How should the vacancy be filled?
It depends whether Benito is a member of a political party. First, you
need to know what are the instances of permanent vacancy (as shown
below). Second, you need to know the formula. Third, you need to
know who caused the last vacancy. (Also what is the meaning of last
vacancy in the sanggunian)
Permanent Vacancy

Eligibility of Ecclesiastics to a Local elective position Official:

1. Fills a higher vacant position
 Section 2175 of the old Administrative Code stated: “In no 2. Refuses to assume office
case shall there be elected or appointed to a 3. Fails to qualify
municipal office ecclesiastics, soldiers in active 4. Dies
service, persons receiving salaries or compensation 5. Removed from office
from provincial or national funds, or contractors for 6. Resigns
public works of the municipality.” 7. Permanently incapacitated to discharge the functions
 In Pamil vs. Teleron (1978), the vote of 7 was not enough to of his office
declare the above provision unconstitutional.

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Formula for ranking the Sanggunian members:
“Ranking”
 Formula:
Votes Obtained
______________________________________
Total Registered Voters in each district
(not votes cast)
(see Sec. 44, Victoria vs. COMELEC)
Note: A tie between and among the highest ranking sanggunian
members shall be resolved by “drawing of lots.”
Ang kuyaw lang diha ang “in each district” kay instead of votes cast
which is the usual way of computing like in the case of party-list, it is
votes obtained over votes cast for the party-list. Kani siya dili votes
cast but “total registered voters in each district”. Technical siya nga
requirement.
How do you break the tie between the highest ranking sanggunian
members? DRAWING OF LOTS.
Vacancy
 How to fill up the vacancy?
It depends on the kind of LGU and it depends on whether the
one who “caused the last vacancy” is a member of a political
party or not.
If not a member of political party, the Sanggunian concerned
“recommends” to either the President (Prov, HUC, ICC) or the
Governor (CC & Mun), as the case may be. If a member of political
party, the party of the official who “caused the last vacancy” shall
nominate to the President or the Governor, as the case may be. If in
the Barangay Sanggunian, since there is no political party, the
Sanggunian concerned recommends to the Mayor. (See Sec. 45;
Farinas vs. Barba)
It depends on the LGU because mag depende man gud kinsay mo
appoint.
Provinces, HUC’s – President
All others – Governor except for Barangay
Barangay – Mayor
By appointment man ang pag fill-up sa vacancy. So for example (refer
to the illustration below), Mayor X died, what is the rule on
succession?
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Illustration:
Mayor: X (XXX)
Vice-Mayor: Y (PPP)
Councilors:
A (KKK)
B (XXX)
C (PPP)
D (PPP)
E (KKK)
F (Independent)
G (YYY)
H (PPP)
The death of Mayor X results in permanent vacancy. As a result, Y will
become the Mayor. Another vacancy will be created and that is the
office of the Vice-Mayor. So it will now be the highest ranking
sanggunian member who will become Vice-Mayor. So in the case, A
will the Vice-Mayor and then B will now be the highest ranking
councilor. Now we need to fill up the vacancy.
B will come out as the number one councilor, and then si H will be the
7th councilor. Now, we will have to fill up the vacancy. Meaning, there
shall be someone who will be appointed to become councilor. Nya ang
rule class kay ingon ani man: that someone should come from the
political party if the one who caused the last vacancy has a political
party. Mao na importante na makibaw ka who caused the last vacancy.
Our prospects would be: Mayor, because had he not died, wala’y
vacancy. The Vice-Mayor, because had he not assumed the post of the
Mayor, walay sa’y succession. The other prospect is A, because he
succeeded the post of the Vice-Mayor. And finally, si H, kay ni-succeed
pud siya sa number 7 spot. So who caused the last vacancy? (Navarro
vs. CA)
In this case, it is A who caused the last vacancy. Si Councilor A. Since
A is a member of KKK political party, it is his party that will nominate.
The recording has to be this kind of interpretation is because the
purpose of the rule is to maintain party representation as willed by the
people in the election. As a result nga si A ni succeed sa post sa Vice-
Mayor, ang KKK party would lose a representative in the person of A.
So it is but a sound interpretation to say nga ang KKK ang maka
appoint. Once appointed by the appointing authority, then i.restore
ang party representation in the Sanggunian.
Navarro vs. CA (2001)
The reason behind the right given to a political party to
nominate a replacement where a permanent vacancy occurs in
the Sanggunian is to maintain the party representation as
willed by the people in the election.
The case of Damasen vs. Tumamao, which can still be considered as a
recent case on the matter, states the requirements as to nomination:
1. Appointee shall come from the same political party who caused the
vacancy.
2. Appointee must have a nomination and a certificate of membership
that he is a bona fide member of the political party, from the highest
official of the political party concerned.
51
Damasen vs. Tumamao (2010)
Conditions for the rule of succession under Section 45 of the
LGC to apply:
1. The appointee shall come from the same political party as
that of the Sanggunian member who caused the
vacancy;
2. The appointee must have a nomination and a Certificate
of Membership (bona fide membership) from the
highest official of the political party concerned.
- So kung provincial chairman lang siya of the party ang ni issue sa
certificate, dili na mao ang gi require sa code. Dapat ang highest-
ranking official of the political party concerned.
Problem
Mayor X of Cebu City went to the United States for one
month. Vice-Mayor Y acted as Mayor in the meantime.
A. What powers may and may not be exercised by Y? Can Y
solemnize marriage?
B. While Y is acting as Mayor of Cebu City, may the SP select
elect a new Presiding Officer?
ANS:
(A)
(1) The powers and functions that the acting local chief executive can
exercise would be all powers and functions. The only powers and
functions that may not be exercised would be the power to appoint,
suspend , dismiss employees but subject to this exception where
temporary incapacity exceeds thirty (30) days. In which case, pwede
na cya ka appoint, pwede na cya ka dismiss , pwede na cya ka
suspend. Otherwise, the public service will be prejudiced.
(2) Yes, because it does not involve the power to appoint, suspend or
dismiss employees. It was upheld, kay gikiha pa gud og usurpation of
powers ang Vice Mayor in the case of People vs Bustamente, for
solemnizing marriage in his capacity as acting mayor. SC said, dili man
na usurpation because an acting mayor can exercise all the powers
and functions of a mayor except only the three powers mentioned
earlier.
(B) When that happens, it results also to temporary vacancy in the
position of the presiding officer. So it is not wrong for the Sanggunian
to elect an acting presiding officer. In the case of Gamboa vs Aguirre,
kay gusto man sa Vice Governor nga while nag acting siya as
Governor, siya lang japun ang presiding officer. Sc said no, your acting
as Governor creates a temporary vacancy in the position of the
presiding officer. It was correct for the Sanggunian to elect for an
acting presiding officer. (BAR)
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Temporary Vacancy, cont’d …
 In case of temporary incapacity, the Vice or the Highest
Ranking Sanggunian member (HRS) shall automatically
exercise the powers and functions of the Local Chief
Executive (LCE)
 All powers and functions of the LCE can by exercised by the
Vice or the HRS, except the power to appoint, suspend, or
dismiss employees, unless the temporary incapacity
exceeds thirty (30) days.
 Hence, in People vs. Bustamante, the Vice Mayor (who
was the Acting Mayor) was held to have the power to
solemnize marriage which is a power belonging to the Mayor
under the LGC.
 A Vice-Governor who acts as Governor effectively
creates a temporary vacancy in the position of
Presiding Officer of the SP, entitling therefore the SP
to select an acting Presiding Officer during the
period that the Vice-Governor acts as Governor.
[Gamboa vs. Aguirre (2009)]
Problem:
Mayor X of Cebu City went to Manila for three days to attend a
two-day seminar.
A. Will Y, the VM, act as Mayor during X’s absence?
B. Who shall perform the powers and functions of the Mayor of
Cebu City during X’s absence and what are the scope and
limitations to such powers and functions?
The Officer in Charge (OIC)
 To be designated by the LCE when he is “travelling within
the country but outside his territorial jurisdiction” for a
period not exceeding three (3) days
 The OIC [Vice or HRS of Brgy] shall perform the powers
and functions as may be delegated to him by the LCE
except the powers to appoint, suspend or dismiss
employees.
 If the LCE has not designated an OIC, the Vice or the HRS
has the right to assume the office of the LCE on the 4th day.
Q: What is the distinction between an OIC mayor and an acting
mayor?
If the local chief executive is travelling within the Philippines; og
abroad, regardless of days, bisag one day lang – temporary vacancy
na cya. Pero kung within the Philippines lang unya not exceeding three
days, wala’y temporary vacancy. But the mayor will designate an OIC.
A: Ang sa acting mayor, all the powers and function of the local chief
executive except for the 3 exceptions; ang OIC, ang first nimong tan-
awon ang designation kay e-designate man cya, unsa nga powers ang
gihatag sa local chief executive niya. He shall perform powers and
functions as may be delegated to him.
52
Ang sa acting, all; ang sa OIC based on the designation letter.
Q: Kung OIC, bisag kinsa ang e-appoint?
A: Dili pud. Una sa list nga e-designate ang Vice-Mayor.
So what does it tell you? Ang preventive suspension diay ani nga mga
cases sa local government code, after pa diay pg file sa answer, I think
this is important dili na siya nga inig ka receive nimo sa sub poena to
file answer dungan sad ang preventive suspension.

Under sec. 63 and as interpreted by SC in Jason III vs CA , there are

PREVENTIVE SUSPENSION
Naay specific requirements ang Sec. 63 in the imposition of preventive
suspension, this is administrative disciplinary action.
Q: Who can impose preventive suspension during the pendency of an
administrative disciplinary proceeding?
A: Kung administrative case, duha’y options , whether you go to the
Office of the Ombudsman or you go to the proper agency or officer
under the Local Government Code. Unya concurrent na siya, in the
sense nga nag file ka sa Mayor of a highly urbanized city pero ang
imong gi-file nga administrative complaint kay Office of the President
which means dili na pwede ang mo act Ombudsman. Kung gusto ka
adto lang ka sa Ombudsman, may technique man sad ron when to go
to the Office of the Ombudsman or to the Office of the President.
three conditions sine quo-non for the position of preventive
suspension, of course among others EVIDENCE OF GUILT IS STRONG,
common mana sa preventive suspension.
Given the gravity of the offense, respondent might influence witnesses
or pose a threat to records/evidence, kana understandable na man sila
nga mga elements, what will surprise you is the first issues have
already been joined. But caveat in the case of Jason III dili answer ang
gi-file it was like motion for bill of particular and several other motions,
according to the SC dili kinahanglan nga answer ang gi file, any
pleading that will tender an issue, so whatever pleading is filed in
response to the sub-poena, but nag tender ug issue then issues have
been joined. Wala pa gi ask sa bar; pwede pa sud pa within 10 years.
PRINCIPLE OF CONDONATION

What is the principle of condonation?

Kung ka political party nimo ang President, you go to the Office of the
President, assuming nga ang respondent kontra partido sad, quick ang
Actually Aguinaldo doctrine nah, and that was the first case after the
resolution didto.
effectivity of the LGC, so pwedi ra tawgun ug Aguinaldo doctrine. But
actually principle of condonation.
Kung kontra partido nimo ang President unya ang iyang ka party mate
kay ang respondent, you know, you should not go to the Office of the
The famous (or infamous) “Aguinaldo Doctrine”
President, katulgan na diha. Instead you go to the Ombudsman then.

 A public official cannot be removed from office for

Preventive Suspension
administrative misconduct committed during a prior
term, since his re-election to the office operates as a
Authority:
condonation of the officer’s previous misconduct to the
1. President, in the case of HUC and ICC;
extent of cutting off his right to remove him therefor.
2. Governor, in the case of CC and Mun;
 It applies only to administrative case for misconduct, so
3. Mayor, in the case of Barangay.
the official may still be held criminally or civilly liable
for the same act. (Cf: “Three-fold Liability Rule”)
REQUISITES FOR PREVENTIVE SUSPENSION:

(a) Issues have already been joined;

Ang issue lang karun class naay expanded understanding or
(b) Evidence of guilt is strong;
application of Aguinaldo doctrine not by the SC but kana lng mga
(c) Given the gravity of the offense, respondent might
chika2 lang bah, ang principle of condonation historically applies to RE-
influence witnesses or pose a threat to records/evidence
ELECTION. Meaning, let’s say you are serving your term 2013–2016
(Sec. 63; Jason III vs. CA, 2006)
as governor, and during your incumbency you committed misconduct
kay end na mana sa imung 3 consecutive term, ni dagan ka pgka
congressman can you be sued for the misconduct that you committed
What I would like you to remember is that, may requisite sad diay for
during the term that you are the governor at the time that you are a
preventive suspension, of course hearing is not a requirement because
congressman? Matay pangutan.a nang uban diba mu ana gyud na
it is not a penalty as you know it is just a preventive suspension, unlike
Aguinaldo doctrine, ang Aguinaldo doctrine is not original as I’ve said,
labor law that after giving show cost memo, preventive suspension
the original principle is principle of condonation.
dayun.

Aguinaldo doctrine is not original. The original doctrine is the principle

First it is required that Issues have already been joined,, which means
of condonation. In the US, it is applied in reelection. Here in Phils, we
that? What do you mean by issues have already been joined? That
used the term Aguinaldo doctrine but I think the better term is
presupposes that.. What is an issue?
principle of condonation. If there is no reelection, I respectfully submit
that there is no application of principle of condonation. What is the
An issue is that allegation of the plaintiff or the complainant have
difference if there is any?
been specifically denied by the defendant or respondent, mao na ang
technical meaning ug ng make ka ug issue ug wla pa na gi deny, wala
- You are elected as local city executive and then you became
pay issue, issues have not been joined yet until and unless allegations
a law maker
are denied, what does it mean? Kanus.a man d i deny ang allegation?
- Possibly lain lain ni sila ug mga voters. You cannot say for
Filing of an answer or any responsive pleading.

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 example (refers to gwen) ang nag reelect ra nya kana ra
ang 3rd district whereas if ni dagan pa siya ug governor, the
principle of condonation would require the entire province.
So hain mn na mo apply? It is very hard. Maayo lang if
province unya isa ra ka district diba ky dili na mo matter.
Kung governor ka the same constituents pag dagan nimo ug
congressman and ni daug ka the same constituents ky isa
raka province isa ra sad ka district pero if ingon ana na nga
dghan ug district imo gyd e.apply ang principle of
condonation? Ang minority nga condonation mo apply sa
majority? Hard to tell. Curious ko na e.clarify na sa court if
ever there will be an issue on that matter.
Three fold liability rule is important principle. Discussed already…
RECALL
Removal of a local government official during his term on
the ground only of loss of trust and confidence and the issue of loss of
trust and confidence is resolved via recall of election.
2011 Bar
Anton was the duly elected Mayor of Tunawi in the local elections of
2004. He got 51% of all the votes cast. Fourteen months later,
Victoria, who also ran for mayor, filed with the Local Election Registrar,
a petition for recall against Anton. The COMELEC approved the petition
and set a date for its signing by other qualified voters in order to
garner at least 25% of the total registered voters or total number of
those who actually voted during the local election in 2005, whichever
is lower. Anton attacked the COMELEC resolution for being invalid. Do
you agree with Anton?
[Transcribers note: I think ang pasabot nya sa 2005 katong barangay
election. (sir is not sure if there had been election in 2005) if there is
an election sa 2004 the only election possible is for the barangay ra
jd…]
ANS: It only involves procedure for the recall. There is an amendment
in the recall provision section 70 and 71 Chapter 5 Title 1 Book 1 of
the code had been amended by RA9244. So preparatory recall
assembly in the past is no longer visible. Sauna preparatory assembly
man, mao btaw na usahay mga materials na gamit nnyo and notes still
talks about preparatory recall assembly. However, wala na na siya rn.
Sauna 2 modes of inititiating recall registerd voters and preparatory
recall assembly. Wala ng preparatory recall assembly, only registered
voters nlng.
What is the procedure? (provided in the codal RA 9244)
The rule now is to file a petition. That is why dili ni midala ug wido
wido. Not the same as filing petition for people’s initiative. It has its
own procedure provided in the RA 9244.
Basic Procedure
The Recall of any elective provincial, city, municipal or barangay
official shall now be commenced by a petition of a registered
voter in the local government unit concerned and supported by the
registered voters in the local government unit concerned during the
election in which the local official sought to be recalled was elected
subject to certain percentage requirements.
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The process will be: first, petition by a registered voter. Isa lang para
lang pag trigger ug process sa petition for recall didto sa Comelec.
Under the new law, it shall be commenced by a petition by a
registered voter in the LGU concerned and then supported by the
registered voters in the LGU concerned during the election in which
the local official sought to be recalled was elected.
Dili pwede nga ang basihan sa registration ang percentage which
would be the percentage of voters at the time a petition for recall was
filed but at the time the election was conducted. Basin mag overlap
ang registration, what if nay magconduct nga barangay. It’s possible
that there will be different voters. Basihan sa percentage would be the
registered voters in which the local official sought to be recalled was
elected and of course with the required percentage.
PROHIBITIONS IN RECALL PROCEEDINGS (important)
Prohibitions in Recall Proceedings:
 No resignation during recall process;
 Recall election should only be once during the term of the
official. (note of “election”, not “proceeding”)
 No recall (election) shall take place within one (1) year
from date of official’s assumption to office or one (1)
year immediately preceding a regular election (day of
election and that election affecting the office of the
official concerned).
1. The Local Government officials subject for recall is not
allowed to resign. In fact, automatic candidate siya.
2. In the recall election, it will be conducted only once during
the term of the official.
3. No recall election in the first year and in the last year, so
middle term ra pwede. But what is prohibited is the conduct
of the recall not the election. But pwede ka mag initiate
earlier, dili magkinahanglan nga pag initiate nimo middle
gyud. Ang kinahanglan ana ehold lang kay recall elections
shall take place in the middle term.
PRACTICE OF PROFESSION
Question
Who among the following local elective officials can practice his
profession?
A. Mayor X, who is a doctor
B. Vice-Mayor Y, who is an Engineer
C. Councilor Z, who is a lawyer
ANS:
A mayor is absolutely barred to practice his profession during his
incumbency. This includes two: any profession or occupation. That
includes radio announcers. Mayor X, who is a doctor cannot practice
his profession with the exemption of course in emergency situations
where the mayor doctor is not receiving compensation.
54
Practice of Profession
 All LCE’s cannot practice profession nor engage in any
occupation other than the exercise of their functions as
LCE’s.
 SP Member can practice profession or engage in any
occupation except during session hours, with certain
limitations to lawyers on grounds of conflict of interests.
 MDs may practice profession even during officer hours in
case of emergency w/o comp.
Doctors of medicine can practice his profession during emergency
situations but without compensation.
Sangguniang Panlungson/Panlalawigan: They can practice their
profession or occupation except during session hour. Councilors can
practice their profession/occupation but outside session hour.
[END OF LOCAL GOVERNMENT LAW]
PUBLIC INTERNATIONAL LAW
{PRE-MOCK BAR, September 5, 2014}
So first, I don’t know if it will be asked in your [mock] bar but I think
it’s good to begin with the definition of Public International Law kay
lisod man sad ug “What is public international law?” unya muingon ra
sad ka ug “…the law of nations.” Because in the past that really was
the name given to the rule or norm regulating the conduct of States.
That’s why in the book of Hans Kelsen, when it was first used “inter-
national law” ang pagka suwat ana niya indeed governing nations. But
as you have already learned, the modern definition of public
international law would no longer focus on states. The importance of
this one is that while this is very elementary, please do not write
state/states in your definition. But instead you write “international
persons”. As you know in the past states were the only considered
subjects of international law, no other. But modern PIL welcomes
other international persons. Even individuals are considered possessing
international legal personality under certain conditions as we will later
on discuss.
Definitions of “Public International Law”
Brierly: “the body of rules and principles of action which are binding
upon civilized states in their relations with one another.”
Hackworth: “it is that branch of public law which regulates the
relations of states and other entities which have been granted an
international personality.”
Section 101, Restatement [Third] of the Law by the American Law
Institute of Foreign Relations Law of the United States: “rules and
principles of general application dealing with the conduct of
states and of international organizations and with their
relations inter se, as well as with some of their relations with
persons, whether natural or juridical.”
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But of the many definitions given by authors, the one that is usually
used in defining public international law is that found in the
Restatement [Third] of the Law by the American Law Institute of
Foreign Relations Law of the United States.
That therefore brings me to my next point. The concept of SUBJECT.
“Subjects” of International Law
 Subjects: those that enjoy international legal
personality and being capable of possessing
international rights and duties, including the right to
bring international claims.
 Primarily: STATES
 Secondarily: International Organizations (e.g. UN, WTO),
individuals (protected persons of IHL, insurgents and
national liberation movements, minorities), juridical persons
(multinational companies), and NGO’s (e.g. ICRC,
Greenpeace, Amnesty Int’l)
 Case: -Reparation for Injuries Case (ICJ Advisory Opinion
1949)
Subjects are those that possess international legal personality capable
of possessing international rights and duties and will have the capacity
to bring international claims. I said already that the states are the
primary subjects of international law but modern international law
would include all other. But for some we don’t put in the same level
other international persons with states. But the better approach is that
all of these are subjects of international law. We can refer to states as
primary subjects of international law; and all others if they have
international personality as secondary subjects of international law. I’m
talking about international organizations, like the UN.
In the Reparation for Damage case involving the death of the
negotiator of UN when he was killed in Israel. The UN filed a claim for
and in behalf of the Swedish negotiator. We will talk about this in
details after mock bar. Even individual are considered international
persons or rather subjects of international law. They are also entitled
to some protections. And they are protected by the effects of war
under IHL.
Even the Philippines adheres to this. Even international financial
organizations are considered international persons. Look at this 2014
case. (Sir is not sure of the title---landbank of the Philippines case)
Loan Agreement and International Bank for Reconstruction
and Development (IBRD), that’s the name of the bank, SC here
class said that even IBRD is an international person.
Loan Agreement and International Bank for Reconstruction
and Development (IBRD), an Executive Agreement
Loan Agreement No. 4833-PH is in the nature of an executive
agreement. In Bayan Muna vs. Romulo, the Court defined an
international agreement as one concluded between states in written
form and governed by international law, “whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation,” and further expounded that it may be in the
form of either (a) treaties that require legislative concurrence after
executive ratification; or (b) executive agreements that are
similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.
55

The reason SC said that the Philippines should comply with the terms
and conditions of this executive agreement is because of the principle
of pacta sunt servada. The nature of this executive agreement, even if
without the concurrence of senate, still it has the character of an
international agreement. So ana ang SC ang international agreement is
considered a treaty and kanang treaty class, by definition, can be
entered into by states. So you know that, technical nana ang treaty.
You cannot use treaty if it does not involve states. Although there is a
contention that treaty can be entered into by states and other
international persons. But under the definition of Vienna Convention of
the Law of the Treaty, a treaty can only be entered into by states.
So ingun and SC sa case, the IBRD possess an international
personality. So that is an affirmation that dli ra jud states ang
international persons. Because you cannot apply the principle of pacta
sunt servanda if this agreement by the Philippine through Landbank is
with a non international person.
Ang gilalisan man gud ani class kung unsa man ang mo govern ang
procurement act sa Philippines or the guidelines set by IBRD for the
implementation of a project. Ingun ang SC, procurement act set aside
sa ka kay this is an international agreement. So it should be governed
by international law.
(question from student: if FIBA is international organization   --- sir
said: I don’t think that this has something to do with international law
kay not an organization of states but sports organization only. But im
not sure, pwede akong tun.an? its sports man gud, nothing political, I
don’t know studihan sa nko. )
SOURCES (Formal or Legal) of PIL
Art. 38 (1), Statute of ICJ:
Primary:
(a) International conventions
(b) International custom
(c) General principles of law
Subsidiary:
(d) Judicial decisions and teachings of most highly qualified
publicists
We call this as sources of international law, but sources can be viewed
as formal or legal.
When we say formal source meaning how the international law came
about or how did it exist. When we say legal source meaning where
did you get it?
So muingon ka ug this problem should be resolve on the basis of the
general principle of good faith. So unsa source ana niya? Is it a source
of public international law? So if you say source, are you referring to
where the principle had its origin? So the answer would be, general
principles of law as practice by most civilize nations.
So if you say formal or how it came about, usually that is applicable in
the case of customary international law because they are in fact to be
form. So there is a process except to the extent probably according to
authors that there can be an instant customary international law.
In the absence of the primary sources, we have judicial decisions and
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teachings of most highly qualified publicists. If you will use the
teachings you must make sure it must be complete. This was applied
in 1 case decided by the Supreme Court. You cannot just make use of
opinions of a supposed authority if he cannot be considered as most
highly qualified publicists.
So kung highly qualified publicist lang, it is not an instructive opinion.
It should be most highly qualified publicists.
International Conventions/Treaties
 Whether general or particular and establishing rules
expressly recognized by the contesting States;
 The term “convention” includes (and actually means)
“treaty”
 Other terms: agreement, pact, understanding, protocol,
charter, statute, act, covenant, declaration, engagement,
arrangement, accord, regulation and provision.
 “Law-making treaties” vs. “contract treaties”
INTERNATIONAL CONVENTIONS
This includes treaties. So the term international convention is generic
and there are other terms covered by convention, this includes
agreement, pact, understanding, protocol and charter.
These names arise because the manner of creating the conventions
vary. Usually the convention, tawagon na siya ug convention if it is
initiated by the UN. Either directly by the general assembly, like the
CAT or convention against torture. This is a convention of course but
directly passed by the general assembly of the UN. It is also possible
that the UN will initiate but it will be signed somewhere else or it will
be agreed upon or formalize somewhere else like in Hague or in
Geneva but this is initiated by UN that is why nagcarry gihapon siya sa
name nga convention.
Some authors say, with regard to the law on treaty, that the treaty
perceive in the 1969 Vienna Convention on the law of treaties should
only cover law-making treaties. So kanang gitawag ug contract
treaties, meaning not involving polictical, governmental, economic and
other substantial terms and conditions but mostly or probably on
business dli daw ni govern by the Vienna convention on the law of
treaties. It should be govern by private international law on contracts.
So we have law on private international law and we should just
consider this as an ordinary contract. But this is just more on a
normative approach than explaining on what really is the rule on the
matter.
Now in our case, wala ta nagdeal anang rule making ba or contract
treaties. To simplify we don’t distinguish that. In the US apart from
distinguishing law making and contract treaties nag distinguish pud na
sila ug executing and non-executing treaties but in the Philippines we
don’t.
56
Custom
 Art. 38(1), ICJ Statute: “As evidence of a general
practice accepted as law”;
 Sec. 102, Restatement (Third): “Customary international
law results from a general and consistent practice of
states followed by them from a sense of legal
obligation.”
 Two elements:
(a) Objective Element [general practice]
(b) Subjective Element [opinio juris]
Let’s talk about Customary International Law or CIL. This is how it was
worded in the statute:
International custom “as evidence of a general practice accepted as
law”. As base on the definition there are therefore elements. The
objective element, general practice, and the subjective element, opinio
juris.
So apart from the ICJ Statute on Customary International Law, we can
also make use of the Restatement of Foreign Relations Law by the
United States. (as above)
Q: How do we know the presence or absence of general practice or
the objective element? The same question applies to the subjective
element.
A: The way to understand that is to go back to the cases. The leading
case on this matter is the Paquete Habana case. The US and Spain
had war at that time. Some fishing vessels of Spain were captured by
the US armed forces. These were claimed to be prize of war and
therefore, they could validly take custody of the fishing vessels. There
was an argument that you cannot consider fishing vessels (merchant,
commercial vessels) as prize of war. Only the vessels used during war
may be considered prize of war. The fishing vessels, because these are
commercial, cannot be considered legitimate prize of war. The US did
not subscribe to this argument saying there is no Customary
International Law that says that one of the limitations of a prize of war
is when the object has nothing to do with war, like in the case of
fishing vessels for commercial purposes.
The Paquete Habana Case
175 U.S. 677 (1900)
Facts: Fishing vessels of Spain were captured by US Armed Forces as
prize of war. It was established that the vessels were not aware of the
existing war between Spain and the U.S.
Held: It is customary international law that coast fishing vessels,
pursuing their vocation of catching and bringing in fresh fish, are
exempt, with their cargoes and crews, from capture as prize of war.
This the U.S. has also recognized as law as shown in the various
treaties it had entered into in the past.
Q: how did the xxx xxxx state practice of this norm?
The Supreme Court of the US itself said this is customary international
law, and even the US acknowledged that this is a customary
international law.
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What were the pieces of evidence constituting state practice in this
case? In other words, the SC looked into whether this was practiced
among members of the family of nations. (see slide below)
By the way, there is no requirement of unanimity. It is not required
that all states practice. All that is needed is “general” practice.
Take note however that Customary International Law also can be
regional or international. So there is such thing as regional customary
international law. Because of the variations in cultures and practices,
Regional CIL will have to arise. The threshold now for Regional
Customary International Law will be higher as compared to
International CIL.
The SC said:
Some evidence of “state practice” in Paquete Habana case:
 In 1403 and 1406, Henry IV of England issued orders
protecting fishermen of foreign states;
 1521 Treaty between Emperor Charles V and Francis I of
France;
 1536 Dutch edicts (orders) which permitted herring fishing in
time of war;
 During the American war, Louis XVI of France addressed a
letter to his admiral exempting fishermen from capture;
 1785 Treaty between the US and Prussia calling for the
protection of fishermen in time of war;
 184x Treaty between the US and Mexico incorporating the
xxx xxx 1785 US-Prussia Treaty
The above are examples of a general practice of states. Later on, you
will also learn that there is a corollary requirement to the practice of
states: the general practice must be a practice performed by affected
states. That is called “relevant state practice”. The practices of states
not involved in fishing are not (as) relevant. But the states who are
heavily involved in fishing and involved in war, those states’ practice
are the relevant state practice(s).
That is important because we said “general practice”. Unanimity is not
required. What is required is “relevant state practice.”
Another case that illustrated the concept of state practice is
Nicaragua vs. USA.
If you read CIL, this case has an extensive discussion of the topic.
Nicaragua vs. USA, ICJ Report (1986)
Facts: Following the overthrow of the right wing government in
Nicaragua in 1979, the US in 1981 ceased economic aid on the ground
that the left wing Sandinista government in Nicaragua had aided the
guerillas fighting against the El Salvador government with which the
US enjoyed good relations. Nicaragua complained of violations of
customary international law when the US used armed force against it
and when it provided assistance to Nicaraguan guerillas (the Contras)
who had been fighting to overthrow the Sandinista government. The
US denied ICJ jurisdiction on the basis of a reservation it made to the
jurisdiction of the ICJ in matters that involve multilateral treaty.
Nicaragua argued that customary international law had xxxxxx xxxxx
xxxxnded by the UN Charter.
57
Nicaragua supported some rebels fighting against El Salvador and El
Salvador was an ally of the US. US attacked Nicaragua. Nicaragua said
there was violation on the part of the US of the CIL prohibiting the use
of force, as well as a violation of the CIL of non-intervention. US said
those are no longer CIL because they were already incorporated in the
UN Charter. The US had a reservation when it comes to application of
multi-lateral treaties. The moment there is a claim to apply a multi-
lateral treaty against the US, the US made a reservation as to its being
subjected to the jurisdiction of the ICJ.
But ICJ said that whether or not codified in the UN Charter – the
principle against the use of force and principle on non-intervention –
they did not lose their character as Customary International Law.
Customary International therefore can co-exist with a treaty or
convention.
As we study treaty later on, you will learn there are 2 kinds of treaty
in relation to customary international law. A treaty may be
considered as a clarification or simply a manifestation of what already
existing international law. If you apply Nicaragua vs. US, that should
not have the effect of diminishing the status of the norm as customary
international law if it is codified in a treaty. If that is the case, ang
non-party to the treaty, kng tang-tangon na nimu ang customary
international law, dna cya ma govern sa customary international law,
that make sense.
A treaty or convention may (1) just be a manifestation or a
clarification of already existing customary international law or (2) it is
an evidence of a progressive development of new customary
international law.
Possible man sd class nga dunay existing customary international law
before, and then the family of nations or states realized, there is need
to adapt to changing circumstances and therefore to develop a new
norm, to replace an old one. How is it done? By putting in a
convention or a treaty that desired norm and that shall be considered
as an evidence or a progressive development of a new customary
international law. Therefore a treaty or a convention can actually
override an existing customary international law, because a treaty or
convention can be an evidence of a new customary international law.
Under the perspective that a treaty can be a progressive development
of international law, the only customary international law that the
treaty cannot of course violatate is a customary international law that
has already achieve a status of a jus cogens norms ( a peremptory
norm where no derogation is allowed). But if ordinary customary
law lng, any convention can replace that. So a treaty can be a
progressive development of a customary international law either
expression, manifestation, clarification or progressive development of
customary international law.
So we go back to Nicaragua vs. US, these were the customary
international law norms involved, I wrote here, this was asked in 1994
BAR, I just couldn’t remember now, how it was asked exactly. I don’t
remember if all of these principles were asked and how it was asked
but this slide has something to do with that 1994 BAR. So this case of
Nicaragua vs. US involved 4 customary international law:
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Nicaragua vs. USA, ICJ Report (1986)
Customary International Law norms involved: [1994 Bar]
 Principle of Non-intervention. [The US trained, armed,
equipped, and financed the Contras]
 Prohibition against violation of Sovereignty of
another State. [The US entered/laid mines in the territorial
and internal waters of Nicaragua]
 Prohibition against use of force against another
State. (Art. 2(4) UN Charter) [The US attacked ground and
naval forces of Nicaragua] (2009 Bar)
 Right to self-defense (Art. 51 UN Charter) requires
armed attack against the invoking State. [That
Nicaragua armed the rebels in El Salvador did not
necessarily constitute armed xxxxxx El Salvador] {2009 Bar}
The Principle of Non-intervention. [it was violated by the US
when, the US trained, armed, equipped, and financed the Contras, the
rebels in Nicaragua. ]
Prohibition against violation of Sovereignty of another State.
[when the US entered/laid mines in the territorial and internal waters
of Nicaragua, didtu sa lawum]
Prohibition against use of force against another State. (Art.
2(4) UN Charter) [It was observed, the US attacked ground and naval
forces of Nicaragua] (nigawas 2009 Bar, I don’t remember if it was a
problem or probably, it was a problem)
Kining Nicaragus vs. US is an important case to read when it comes to
sources of international law.
Another principle of law, the Right to self-defense (in Art. 51 UN
Charter) requires armed attack against the invoking State.
[requires armed attack against the invoking state. Because the US
said, there was an attack on an ally of the US, El Salvador. And El
Salvador and the US had a treaty of a cooperation and mutual defense
and therefore an attack to an ally is an attack to the US. But ingon ang
ICJ, ‘No, if you’re invoking self – defense, the attack must be directed
against you. }
Nicaragua vs. USA, ICJ Report (1986)
Key Principles:
1. General customary international law must be determined by
the general practice of the states and not just by the
states party to the dispute before the ICJ. Opinio juris
may be deduced from the attitude of the Parties concerned
and that of states to certain General Assembly Resolutions.
2. The prohibition on the use of force is jus cogens.
3. Principle of “non-intervention” is customary international
law and, therefore, not affected by treaty stipulation.
4. Customary international law can exist alongside treaties.
The third one is General Principles of Law. Actually ang gihimu nila
ani class, they expected, that some controversies or problems could
not be covered by Customary International Law and Convention. So
the way to fill the gap is to come up with the third source of public
international law that is general principle of Law. And general
58
principles of law are actually principles of law already practiced
domestically. So these are principles of law practiced domestically but
they can be transported at the international level to solve a particular
problem.
General Principles of Law
 Recognized by civilized (peace-loving) nations;
 Aimed at providing solutions to controversies where treaty
law or customary law provides no guidance;
 “Law” refers to both “international law” and “municipal
law” (common municipal law)
 Examples: estoppel, good faith, exhaustion of local
remedies, prescription, etc.
 See: -South-West Africa Case (2nd Phase, ICJ Report, 1966;
-Barcelona Traction Case (Belgium vs. Spain, 2nd Phase,
ICJ Report, 1970)
So these are usually practiced by States at the domestic level. Of
course, there may be principles at the international level for those
principles that are not definitely customary international law. Problema
lng ky wlay book nag enumerate jd categorize kng ang principle of
international law belongs to customary international law or just a
general principle of law. That is the reason why in our constitution, we
don’t use either customary international law or general principle of law
or simply international law. Unsa atu gigamit? Generally Accepted
Principles of International Law to cover all possible norms of
international law, either customary, general principle or even
convention.
 Naa pa diay question: is there a hierarchy among the
sources of international law?
Naay primary, naay subsidiary, no dispute about it. But among the first
three ba nga primary, mai hierarchy ba ni sila…nga dapat, convention,
customary international law, unya ug wala, general principle of law?
The preparatory works, did not show evidence of treating this
hierarchical, walai hierarchy. Although nag dugay sila ug debate ani
class kung dapat hierarchical ba or dili. They ended up nga ayaw
nalang, butangi nalang ug primary ug secondary because of so many
theories against treating the first three in a hierarchical order. First
argument was, dapat mai priority or authoritative ang treaty or
convention over customary international law. Why? Because there is a
theory that kana gud convention or treaty, evident, visible, tangible,
observable ang intent sa parties. So the intent to be bound by the
terms and conditions, express.
Unlike in customary international law that you will rely on inferences
and is in fact open to persistent objector doctrine. A state cannot be
bound by your customary international law if at the outset before the
formation of the customary international law, the state concern had
already categorically manifested an objection to the application of the
norm to its territory. If you say at the outset, meaning to say before it
became a customary international law, consistent ang objection sa
state not to be bound by the norm. Exception of course is jus cogens,
applicable to all, no exception. That is the problem of customary
international law. Evidence ba na ang intent to be bound when we
resort to inferences, nganu mo resort man ta ug inference? State
practice requirement, objective element. Subjective element pa gyud,
opinio juris. Mai acts done by that state showing that it intended to be
bound by the norm, in opinio juris there is the understanding that the
law is viewed as obligatory and usually this is found by acts of our
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governmental agencies. Tan.awon na sa ICJ, beh kung ang Philippines
naa bai opinio juris on that particular practice, check nato, naay
Supreme Court decisions ba nga nag uphold ani, about sa mga
writings sa executive officials, official pronouncements, verbal or
written, statute, kung naay statute gi pass ana nga customary law, so
we believe the obligatory nature of that norm, so that is evidence na
of opinio juris. So all of this will be taken together just to established
whether or not a particular state is bound by the norm.
On the other hand, we cannot make treaty or convention as more
persuasive or authoritative over customary international law because
treaty and conventions are valid and binding in so far as the parties to
the treaties or conventions are concerned whereas kuno ang
customary international law naa na ang objective element of general
state practice. Tinuod man ky convention or treaty is international law
only in so far as the parties are concerned, that we are talking of a
treaty or convention that is not a customary international law at the
same time. Ug mo ingon ka, what is the source of international law,
mot bag ka treaty or convention, that is true only in so far as the
parties are concerned. So between state A and state B, ni execute sila
ug treaty, that treaty is international law between state A and state B.
So ang iyang scope therefore is not that all-encompassing compared to
customary international law nga mo require ug general state practice.
Tungod sa debate class nga wa sila mgka uyon, they decided nga wa
nalang ang hierarchy. All of them shall be considered as primary with
no specific source of law as having more persuasive effect than the
others except to the extent the customary international law may be jus
cogens.
Art. 38 (2), ICJ Statute
(Ex aequo et bono)
Ex aequo et bono: a decision in which equity overrides all other
rules
Art. 38(2), ICJ Statute:
The list of sources in Art. 38(1) “shall not prejudice the power
of the Court to decide a case ex aequo et bono, if the parties agree
thereto”
The list of sources in 38 (1) kadtong gi discuss ka ganiha shall not
prejudice however the ICJ to decide a case on the basis of other rules
such as equity, not on the basis of international law but simply on the
rule of equity or that probably the parties agreed that instead of
applying the treaty between them, mangita nalang sila ug laing norm if
all the parties agreed that should be the case. So, it’s possible
therefore to disregard specific rules applicable to parties to a case in
ICJ if they agree and the ICJ will be allowed to apply rules of equity
other than the rules found in the treaty.
What’s the difference between a custom and a usage? Bar exam
question also.
Custom vs. Usage
Custom is a practice that states believe themselves to be under a
legal obligation to follow (opinio juris) [ex. State immunity]
Usage is a practice that states generally follow without believing
themselves legally bound to do so. [ex. alternat]
59

Of course custom, customary international law. Elements of state
practice and opinio juris are present but where a practice has not yet
attained the status of customary international law but it is a state
practice just the same or even probably general state practice but
usually what’s lacking is opinio juris, so the objective element of
general state practice is present but the subjective element of opinion
juris is absent, usually we call it mere usage, not customary
international law.
Typical example of customary international law is the Principle of State
Immunity.
A good example of usage is alternat. Practiced generally in diplomatic
relationship but there is no perception of it as binding or obligatory.
This is just a manifestation of the co-equality idea of states. When
you sign a treaty, for example there are 50 states to a multi-lateral
treaty or convention, how do you put the names? Alphabetical? So, in
the convention, mag-una og pirma Afghanistan nya uwahi ang
Zimbabwe?
It looks like it suggests that since Afghanistan is first in the list, it
would seem that it is superior than other states, so the way to solve
that problem is that all the parties will bring with them a copy of the
convention back home because usually it is not the Head of State who
signs or even if it is the head of state who signs, when they return to
their home state, there is still a constitutional process of concurrence,
like the Philippines and the United States. How much more if it is not
the Head of State who signs but only the authorized representative like
the Secretary of the Department of Foreign Affairs, what should be
done next here in the Philippines? There should be ratification by the
President. It became a practice in order to make sure that this is
really what was agreed upon and that the authority to sign is within
the scope of authority given, so the President will look into that. So it
may happen that it is signed by the representative but if not ratified,
you have nothing to submit to the Senate for concurrence, it has to be
ratified first by the President.
So, don’t use the term ratification by the Senate, that’s wrong. The
correct term should be concurrence by the Senate; ratification by the
President in a situation where it is signed by a representative.
So in alternat, what happens is that the copy brought by the
representative which will be ratified by the President, the first to sign is
his state. So, the copy brought back to the Philippines by the
representative, which is ratified by the President, the ‘#1’ who signs in
that copy is the Philippines. In the same manner that the copy
brought to US by their representative, the #1 who signs in that copy is
also US. So, there is co-equality among states. There is no superiority
or inferiority in paper. That’s the idea of alternat.
After which, it will be deposited with the Secretary-General of the UN,
because if not, the parties who did not deposit the treaty cannot
invoke the provisions of the treaty to resolve the conflict.
Alternat is just a usage, not a custom.
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Philippine Practice on Sources of International Law
Sec. 2, Art. 11 (1987 Constitution):
“The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principle of international
law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.”
Sec. 2 Art. II we call this the Incorporation Clause but remember that
does not mean that the Philippines is not adopting Transformation. In
fact, we both adopt transformation and incorporation.
We adopt incorporation clause for Generally Accepted Principles of
International Law (GAPIL). We adopt transformation through the
backdoor system through the execution of treaties because treaties are
sources of international law. GAPIL, automatically incorporated
through incorporation clause but treaties, assuming that they do not
represent Customary Internationnal Law (CIL), treaties that govern the
Philippines and the other signatory to that treaty, the provisions of that
become part of the law of the land the moment it is concurred by the
Senate. That is transformation.
Ocampo vs. Abando Feb. 11, 2014
Members of the CPP-NPA NDF were prosecuted for murder because
they have this Purging System wherein members and non-members
alike who are military informants were salvaged. A mass grave was
found and somebody testified that it was where the CPP-NPA would
bury the bodies of those who were salvaged. The relatives testified
that the persons who disappeared were abducted by members of the
NPA prior to their disappearance. Satur Ocampo was charged along
with 40 or 50 others. Their defense was that they cannot be charged
of murder because of the Political Offense Doctrine (POD) which
absorbs any common crime (murder in this case) committed in the
pursuit of a political crime like rebellion thus the proper charge would
only be rebellion.
SC: The fiscal has no duty to follow the Political Offense Doctrine - that
the crime to be charged must be rebellion. So at the level of the
prosecutor, during the preliminary investigation, the issue on WON
POD will apply will not yet be settled because it will require evidentiary
facts and would consequently require a hearing. The proper course of
action on the part of the fiscal is to charge them with murder and the
defense of POD will only be raised during the trial.
Sometime in 1995 or 1998, the CPP-NPA made a statement that in the
Philippines it will abide by the Common Article III of the 4 Geneva
Conventions. This article is applicable to non-international armed
conflicts and embodied therein are the prohibitions agianst torture and
the non-derogable right to life.
Associate Justice Leonen:
The Philippines is bound to punish the perpetrators if it will be proven
that this is a violation of International Humanitarian Law (IHL). It is
not a sound policy to immediately, at the level of the prosecutor, apply
the POD because of the duty of the Philippines to enforce IHL.
60
The Philippines is bound to enforce International
Humanitarian Law (IHL)
IHL and the rules and principles contained in the Geneva
Conventions are largely regarded in the international sphere as having
the character of general or customary international law given the
fundamental nature of the rules and “because they constitute
intransgressible principles of international customary law.”
In the Philippines, Republic Act No. 9851 was enacted in view
of its policy to “[renounce] war …, [adopt] the generally accepted
principles of international law as part of the law of the land and
[adhere] to a policy of peace, equality, justice, freedom, cooperation
and amity with all nations.”
{September 6, 2014}
The case of Land Bank of the Philippines vs Atlanta Industries, July 2,
2014; this is one case that you have to read very quickly before mock
bar in relation to a case decided by the Court 2 years earlier, China
National Machinery and Equipment Corporation vs. Santamaria,
February 7, 2012. Now why is this important? Two years earlier in this
case of China National Machinery and Equipment Corporation, the
Supreme Court distinguished between executive agreement and treaty.
But after making a distinction, of course the distinction being that in
the case of executive agreement as you already know, it (a) does not
require legislative concurrence; (b) is usually less formal; and (c) it is
narrower in scope compared to a treaty. And of course a treaty is
more or less permanent compared to an executive agreement.
Executive Agreement vs. Treaty
An executive agreement is similar to a treaty, except that the former
(a) does not require legislative concurrence; (b) is usually less
formal; and (c) deals with a narrower range of subject
matters.
Depsite these differences, to be considered an executive agreement,
the following three requisites provided under the Vienna Convention
must nevertheless concure: (a) the agreement must be between
states; (b) it must be written; and (c) it must be governed by
international law
[China National Machinery & Equipment Corp. v. Santamaria, G.R. No.
185572, February 07, 2012]
But after making that distinction, the Supreme Court enumerated 3
elements for an executive agreement to exist. These elements are: (1)
that the executive agreement must be between states, (2) it must be
written, (3) it must be governed by international law. In doing so, it
would seem that the Supreme Court likened the executive agreement
to a treaty. Ang distinction lang therefore is domestic. Whether or not
we require legislative concurrence. In other words at the international
level, whether it is executive agreement, international agreement,
treaty, convention or whatever, the nomenclature as you have learned
already does not govern for as long as the elements are present
entered into by states in written form and to be governed by
international law the we say that that is a document that will be
governed by the Vienna Convention of the Law of Treaties or VCLT.
And our SC acknowledged that in this case of China National
Machinery & Equipment Corp vs Santamaria.
So there you go the statement of the court. An executive agreement is
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similar to treaty and the distinction basically is at the domestic level
because we distinguish executive agreement and a treaty in our
Constitution insofar as the requirement of concurrence by the Senate
is concerned. So that’s the only difference apart from probably nature.
Because if you look at the definition of a treaty under the Vienna
Convention on the Law of Treaties (VCLT) -
But, China National Machinery & Equipment Corp. (CNMEG) is
not an international person
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty follows:
[A]n international agreement concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.
So what I’m saying is at the international level, we treat all these
international agreements similarly, but we treat these documents
differently at the local level.
But what confused me is the pronouncement of the court in this Land
Bank of the Phil. v. Atlanta Industries, Inc. because here the parties
involved are not states. One of course is the Republic of the Philippines
but the other one is an international multinational corporation, lending
institution rather, although organized by World governments. And this
was the thing that we discussed yesterday that it was again likened to
a treaty only because IBRD was considered as possessing international
personality and the effect of the characterization is that your basin
principle of pacta sunt servanda was applied here in this case.
Examining its features, Loan Agreement No. 4833-PH between the
IBRD and the Land Bank is an integral component of the Guarantee
Agreement executed by the Government of the Philippines as a
subject of international law possessed of a treaty-making capacity, and
the IBRD, which, as an international lending institution organized by
world governments to provide loans conditioned upon the guarantee of
repayment by the borrowing sovereign state, is likewise regarded a
subject of international law and possessed of the capacity to enter into
executive agreement with sovereign states. (Land Bank of the Phil. v.
Atlanta Industries, Inc., G.R. No. 193796, July 02, 2014)
Another update is the case of Biraogo v. Del Rosario. As you know
Foreign Affairs is a prerogative of the Executive Department. And this
prerogative being discretionary cannot be compelled by mandamus.
Here Biraogo etitioned the Court asking the Secretary of Department
of Foreign Affairs be compelled to pursue our claim over Sabah.
Supreme Court said its not subject of mandamus because it is not
ministerial duty. The submission to the ICJ of the Philippine claim over
Sabah involves conduct of our foreigh relations. This is primarily an
executive prerogative and therefore mandamus will not apply.
61
The Executive Department cannot be compelled to make
international claim
The Secretary of Foreign Affairs cannot be compelled by
mandamus to press the Philippine claim to North Borneo (Sabah)
before the ICJ or such other fora authorized under international law.
The submission to the ICJ of the Philippine claim over Sabah involves
the conduct of our foreign relations. This is primarily an executive
prerogative, and the courts may not inquire into the wisdom or lack of
it in the exercise thereof. [Biraogo v. Del Rosario, G.R. No. 206323,
April 1x, 2013]
The case of Navia vs. Pardico involving Writ of Amparo, SC discussed
the concept of Writ of Amparo and the elements. SC traced the history
of our Writ of Amparo that it was basically taken from the International
Convention for the Protection of All persons from enforced
disappearance. And the definition of enforced disappearance as it
appears in this convention:
Philippine Writ of Amparo on Enforced Disappearance is
based on international law
International Convention for the Protection of All Persons from
Enforced Disappearance’s definition of enforced disappearances: “the
arrest, detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law (Navia vs. Pardico, G.R. No.
184467, June 19, 2012)
And when the SC enumerated the elements of the Writ of Amparo, it
invoked the definition. The Writ of Amparo has also its international
law origin. In this case the SC said it is not sufficient to allege mere
disappearance. There should likewise be an allegation of the
participation by the state either by the authorizing, supporting or with
acquiescence the disappearance of a particular person.
And of course our older cases, applying international law include
Kuroda v. Jaladoni where the Philippines created military commission
to prosecute certain military officers for war crimes during the WWII.
The authority of the military commission was questioned as without
authority and basis because the Philippines. Was not a signatory to the
Hague Convention. It was at that time the Hague Convention as the
international document that recognized and defined war crimes. But as
you know, the ruling of the SC is since punishment of war crimes is
erga omnes, meaning duty towards international community, and war
crimes as a crime internationally is also jus cogens. So you know these
terms erga omnes and jus cogens. So regardless of the fact that we
were not a signatory of The Hague Convention, since The Hague
Convention is a manifestation of a customary international law there
was no objection to the creation of a military commission.
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Kuroda vs. Jalandoni (83 Phil. 171)
In accordance with the generally accepted principles of
international law of the present , including the Hague Convention, the
Geneva Convention and significant precedents of international
jurisprudence established by the United Nations, all those persons,
military or civilian, who have been guilty of planning, preparing, or
waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto, in violation of the laws
and customs of war, of humanity and civilization are held accountable
therefor. In the promulgation and enforcement of Execution Order No.
68, the President of the Philippines has acted in conformity with the
generally accepted principles and policies of international law which
are part of the our Constitution.
The rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on the
generally accepted principals of international law. In fact, these
rules and principles were accepted by the two belligerent nations, the
United State and Japan, who were signatories to the two Conventions.
Such rules and principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the conventions
embodying them, for our Constitution has been deliberately general
and extensive in its scope and is not confined to the recognition of
rules and principle of international law as contained in treaties to
which our government may have been or shall be a signatory.
Now, we have the International Criminal Court, in the case of USA v.
Guinto, this is the case of your Doctrine of Restrictive Immunity. You
distinguish Doctrine of Restrictive Immunity from your state immunity
from suit. Your Doctrine of State Immunity provides that states are not
always liable to all the consequences of their acts and we only make
them liable for acts that are proprietary. But for acts that are
governmental then a foreign state can invoke state immunity. So even
contracts in international law, you have to distinguish between jus
imperii and jus gestionis. Note that the principle of state immunity is
customary international law. Know that the doctrine of state immunity
is either an international concept or a domestic concept. It is an
international law concept if the situation calls for the exercise of
jurisdiction by a local court against a foreign state.
U.S.A. vs. Guinto (182 SCRA 645)
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. Even
without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations
with other states.
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In the case of the foreign state sought to be impleaded in the
local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A
contrary disposition would, in the language of a celebrated case,
"unduly vex the peace of nations.”
So if X, a citizen of the Philippines, sues the USA in the Cebu City
Court, that calls for the application of state immunity from suit in
international law. In which case we follow the Restrictive Theory of
State Immunity from Suit. We distinguish between jus imperii and jus
gestionis So even if contracts are involved in the case, if the contract is
carried out in its governmental capacity, in the USA in this example,
Cebu City court will not exercise jurisdiction.
Jus imperii vs. Jus gestionis: There is no question that the
United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such
waiver may be implied. This was our ruling in United States of
America v. Ruiz, where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic Bay. As
this was a clearly governmental function, we held that the contract did
not operate to divest the United States of its sovereign immunity from
suit
Invocation of state immunity from suit will have to prosper if it is
governmental. But state immunity from suit in the domestic level is
different because in the Philippines we allow suit against the state on
the basis of contracts. Our relevant law is Act No. 3083. So what I am
saying is state immunity from suit is both an international law concept
and a domestic concept. That in the international law level, we apply
the Doctrine of Restrictive Theory, at the domestic level, for contracts
the Philippines government has already consented to be sued under
Act No. 3083. Let me show you the provision. So this is Act No. 3083
and it says:
Caveat:
Act No. 3083: Subject to the provisions of this of this Act, the
Government of the Philippine Islands hereby consents, and submits to
be sued upon any moneyed claim involving liability arising from
contract, expressed or implied, which could serve as basis of civil
action between private parties.
C.A. No. 327 and PD 1445: File claim with COA, if denied, go to SC on
Certiorari.
So this is the basis for the precept that when the government enters
into a contract, we have to specify. So if the Philippine government
enters into a contract, then it has descended to the level of individual
when it said “as basis of civil action between private parties.”
Now how to effect the claim. CA 327 provides for the period of 2
months on the part of the Commission on Audit (COA) to decide
whether to accept or reject a claim on the basis of a contract against
the Philippine government.
PD 1445 is an amendment to the CA 327 such that where the claim is
rejected, the claimant can go to the SC on certiorari after that claim
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before COA, in CA 327 it was called Auditor General, in PD 1445 it is
now the Commission of Audit. So, just please take note of that.
INTERNATIONAL LAW & MUNICIPAL LAW
International Law and Municipal Law
 Which law prevails in case of conflict?
- Theories: Monism & Dualism
 How do rules of international law take effect in domestic
legal system?
- Theories: Incorporation & Transformation
(Strong and Weak)
 What is the status of PIL in Philippine Legal System?
- GAPIL
- TBPIL
In case of conflict between an International Law and Municipal Law
which law prevails?
This could be answered by applying the theory of Monism or Dualism.
Under the theory of Monism, there is only one legal system
in this world and that is natural law which means that if there is a
conflict between International Law (“IL”) and Municipal Law (“ML”)
then International Law prevails since International law is perceived
under this theory as reflective of Universal Law on the basis of natural
law. (Basically, this is influenced by the teachings of natural law
theorist Hans Kelsen himself. international law is perceived by Hans
Kelsen as reflective of universal law, the basis of natural law, then
international law prevails. International law prevails for a monist.)
Under the theory of Dualism, there are two sets of legal
systems in the world. One is IL and the other is ML and there is no
necessary connection between the two. So, if there is a conflict you
cannot say that IL prevails over ML or vice versa. IL or ML will prevail
depending on the forum deciding the case. If the forum is in the
international field it is expected that international law will prevail. On
the other hand, if the controversy is presented before a municipal
forum ML will prevail. But this is not an absolute rule because even a
domestic court may uphold international law. It is just a matter of
expectation. There is no duty on the part of any domestic court to be
domestic also on its approach.
How do rules of international law take effect in domestic legal system?
By incorporation which is influenced by monism, principles of
IL become part of the law of the land automatically. The Philippines
adopts this doctrine as can be gleaned from Section 2, Art. II of the
Constitution.
By Transformation which is a process by which IL becomes
part of domestic law by an affirmative act of the government either at
the level of the legislature (passage of a law), executive (conscious
application by the executive department of IL) or judiciary (SC
applying IL principles in a particular controversy). There are two kinds
of transformations. One is Strong transformation while the other is
Weak transformation. The former is restrictive while the latter is
not. The former requires a process that IL becomes part of the law of
the land only by Congressional Act. While the latter allows
transformation of IL law into domestic law by a governmental act other
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than Congressional Act thus it is weak.
In the Philippines, we can say that we can transform IL on
the basis of either congressional, executive or even Supreme Court
decisions. So that is weak transformation. In England it is strong
transformation.
What is the status of PIL in Philippine Legal System?
Insofar as GAPIL is concerned, we adopt the doctrine of incorporation.
As to treaty based public international law we apply the
doctrine of transformation. This is done by a treaty being concurred in
by the Senate. Thus, it is a process through Congressional act. In our
jurisdiction, treaty has the same effect of a Statute. Consequently, we
apply our rules on statutory construction in case of conflict between a
treaty and a statute. However, our domestic statutes will prevail over a
treaty when our statutes are reflective of police power and other
statutes manifesting public policy.
Determination of Statehood Scenarios
 Break-up of a large state into several states (e.g.
USSR, former Yugoslavia, and Czechoslovakia in 1990’s)
 Secession by part of a territory (e.g. Kosovo’s
declaration of independence from Serbia in 2008)
 Foreign control is exercised over affairs of a state
(e.g. US’s control over the island of Palau in the Pacific
ocean before 1994)
 Merger or union of states (e.g. Egypt and Syria merged
in 1958 to form the United Arab Republic [Syria the seceded
from the UAR in 1961 and Egypt renamed itself Egypt])
 Claims by constituent units or a union or federation
to the attributes of statehood (e.g. separatist claims in
Quebec)
 Territorial or non-territorial communities which have
special international status (e.g. Palestine’s “non-
member observer state” of UN status in 2012)
What happened in the conflict of Russia and Ukraine involving Crimea?
It involves the situation of statehood. What happened in Crimea was
that there was a referendum and the result was more than 90% which
favored the separation of Crimea from Ukraine. It could probably
involve the issue of cessation. Now, is there such a right to secede?
The problem of “Secession” vis-à-vis the right of states to
Territorial Integrity
 Opinion of the SC of Canada in re: Secession of
Quebec [1998]:
- Secession is not authorized by the Constitution of Canada;
- International law does not specifically authorize nor prohibit
unilateral secession;
- But, states have the implied duty to recognize people’s “right
to self-determination”’
- Right to self-determination must be exercised within the
framework of sovereign states and consistent with territorial
integrity of those states (“right to internal self-
determination”) and “right to external self-determination”
(unilateral secession).
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Is there such a right to secede? If yes, under what condition? Can
secession be done unilaterally? It’s a continuing issue in international
law. But we have a Supreme Court decision, not an international court
decision, that’s considered by many authorities as instructive on the
issue of unilateral secession. And I’m talking about the decision of the
Supreme Court of Canada on the issue of Quebec. Quebec exercised
unilateral secession, the SC of Canada made an instructive outline as
to when unilateral secession may be made.
The problem with unilateral secession is this: It seems like there is a
conflict between the right to secede, and the right of the state to its
territorial integrity. So the better formula according to SC of Canada,
the rule is territorial integrity. A group of person may only separate if it
is one via constitutional proceess. That’s the general rule. So if one
group wants to separate from the rest of the territory, it has to be
done constitutionally. Second rule: where that group, however,
exercises right to self-determination, which right is recognized as
customary international law, then we ask 2 questions:
Has that right been recognized and addressed by the national
government? If the answer is yes, that it had been addressed
therefore the group has not been denied by its right to self-
determination, like what we’ve been doing with our Muslim brothers in
Mindanao and anywhere else where we allow them to have their own
personal laws. We separate our theory on criminalization on polygamy
and many other practices. So we recognize this right to self-
determination. But where there is a valid exercise of self-determination
but rejected or denied by the national government, then this is where
the group may unilaterally secede because such unilateral secession
can be justified by the exercise of the right to self-determination.
That’s how the case of Crimea should be resolved. We call it the right
to external self-determination.
When right to “self-determination” may be exercised
SC of Canada:
The international law right to self-determination only generates,
at best, a right to external self-determination in situations of former
colonies; where a people is oppressed, as for example under foreign
military occupation; or where a definable group is denied meaningful
access to government to pursue their political, economic, social, and
cultural development (meaning, where the people have been denied
the right to internal self-determination)
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Peoples’ “Right to Self-determination”
 A customary international law; a jus cogens and erga omnes
norm;
 Set out in Art. 1(2) and Art. 55 of the UN Charter, Art. 2 of
G.A. Resolution entitled Declaration on the Granting of
Independence (1960) [“All peoples have the right to
self-determination; by virtue of that right they freely
determine their political status and freely pursue
their economic, social, and cultural development’]; in
ICCPR and ICESCR, and in 1970 Declaration of Friendly
Relations of the G.A.
 Article 1(4) of Protocol I of the 1949 Geneva Conventions
make the laws of international armed conflict applicable to
“armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against
racist regimes in the exercise of the right of self-
determination.”
 Any group within a territory claiming to be fighting against
colonial domination, alien occupation or a racist
regime (national liberation movement) is now
protected by the laws of war, and that its members are
entitled to prisoner-of-war status.
Basicallly murag diha ra na nga situations makaingon ka there is,
actually we call it national liberation movement. Because national
liberation movements are considered movements exercising the right
to self-determination, and the way such national liberation movement
is defined to trigger international armed conflict, the Geneva
Convention focused on 3 areas where the right to self-determination
maybe validly exercised. Where there is no colonial domination, alien
occupation and racist regime, any armed group that would try to
liberate itself may be treated as criminals and not as national liberation
movement.
Recognition of State
-Theories on Legal Effects of Recognition of State in International Law:
(1) Constitutive
(2) Declaratory
-Article 3 of Montevideo Convention acknowledges “Declaratory
Theory”, to wit: “The political existence of the State is independent of
recognition by the other States. Even before recognition, the State has
the right to defend its integrity and independence….”
Let me proceed to jurisdiction. As you know, jurisdiction is the clear
manifestation of sovereignty. That’s why each time sovereignty is
discussed, there is also a need to discuss jurisdiction because states
exercise sovereignty by exercising jurisdiction. In international law,
jurisdiction may be classified as: jurisdiction to prescribe law,
jurisdiction to adjudicate, and jurisdiction to enforce.
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JURISDICTION
 Jurisdiction to prescribe law (the authority of the state
to make its policy applicable to persons or activities) (See:
Restatement 402, except for universal jurisdiction, which is
in Restatement 404)
 Jurisdiction to adjudicate (authority of the state to
subject particular persons or things to its courts)
 Jurisdiction to enforce (concerned with the authority of a
state to use the resources of government to induce or
compel compliance with its law; includes authority to arrest.
a. Jurisdiction to prescribe law- Congressional, enactment
of statute whether it becomes applicable within or
without. i.e. Art 2 of the RPC on extraterritorial
application of Penal Laws
b. Jurisdiction to adjudicate- Judicial
c. Jurisdiction to enforce- Executive
The issues usually emerge when it comes to Criminal
Jurisdiction. There are four theories that will justify the acquisition of
jurisdiction over the person of the accused.
Criminal Jurisdiction
Various Principles/Theories:
Territorial Principle (Subjective vs. Objective)
Nationality Principle (Active vs. Passive)
Protective Principle
Universality Principle
Of the four theories, more acceptable is are the Territorial
Principle and Universality Principle, which means courts all over the
world are not unanimous they way Nationality Principle and Protective
Principle are applied. That would therefore depend on the kind of State
involved. In the case of the United States of America, the US Courts
usually have more leeway and more aggressive application of all of
these principles.
Territorial Jurisdiction
-State has jurisdiction over property, persons, acts or events occurring
within its territory.
 Subjective Territorial Principle: jurisdiction to prosecute
or punish crimes commenced within their territory but
completed or consummated in the territory of another state.
 Objective Territorial Principle: certain states apply their
territorial jurisdiction to offenses or acts commenced in
another state, but (i) consummated or completed within
their territory, or (ii) producing gravely harmful
consequences to the social or economic order inside their
territory.
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Under the Subjective Territorial Principle, an example is if X
from State A, using a long ranged riffle killed Y in State B, which has
the proper jurisdiction of the crime?
From the given example, the crime commenced in State A
and the Court therein has the option to exercise jurisdiction or not
depending on which principle it will apply. If it chooses to exercise
jurisdiction over the said crime, it should then choose to apply the
Subjective Territorial Principle, wherein the jurisdiction to prosecute or
punish crimes commenced in State A but completed or consummated
in another state or in State B. However, if it chooses not to exercise
jurisdiction over the said crime, it should then choose to apply the
Objective Territorial Principle, wherein State B where the crime was
consummated or completed acquires the jurisdiction although the
offense commenced in State A.
United States vs. Vasquez-Velasco (1972)
Facts:
Javier Vasquez-Velasco, a member of a drug cartel in
Guadalajara, Mexico and several other members, beat and killed
(John) Walker [an American citizen writing a novel in Mexico] and
(Alberto) Radelat [a photographer and US legal resident]. At trial, the
US argued that Velasquez-Velasco and his three co-defendants
committed the crimes to further their positions in a Guadalajara drug
cartel. The murders Velasco was charged with were allegedly
retaliatory actions against a US Drug Enforcement Agency (DEA)
crackdown. He was convicted under US law. On appeal, Vasquez-
Velasco argued that US penal laws do not apply extraterritorially.
Nationality Principle in Jurisdiction
 Active Nationality
- states may regulate the conduct of their nationals wherever
they are in the world
 Passive Nationality
- a state may prescribe law for situations where its nationals
are a victim of the conduct being regulated
- this has limited scope, usually applicable to terrorist attacks
Active Nationality- Offender/ Actor
Passive Nationality- Victim
But of course, Nationality Principle is not equivalent to
assessing citizenship, so mere citizenship is not equivalent to
nationality when it comes to nationality principle. Remember the case
of Nottebohm where the real and effective link with the State of
Nationality is necessary.
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Nottebohm Case
(Liechtenstein vs. Guatemala, ICJ, 1955)
Key Principle:
Nationality as a basis for exercising jurisdiction must
be real and effective to give a right to a state who has
conferred it. Real and effective link with the state of
nationality necessary. Right to diplomatic protection and
protection by means of international judicial proceedings only
arises when proper nationality link exists between the
individual concerned and the state seeking to exercise such
rights. [“Effective Nationality Theory”]
THE FACT THAT A PERSON IS A CITIZEN OF A STATE DOES
NOT AUTOMATICALLY TRIGER THE APPLICATION OF NATIONALITY
PRINCIPLE BECAUSE IN PUBLIC INTERNATIONAL LAW, THERE MUST
BE A REAL AND EFFECTIVE LINK IN THE SUPPOSED NATIONAL
AND THE STATE.
In Passive Nationality, it has been perceived to have limited scope and
usually applicable in terrorist attacks. For the 1998 bombings of the US
Embassy in Kenya. Kinsa ma’y victims? Passive man? Americans. So
that was justified by the United States because US Court man. As I
told you earlier, option na sa court, kung gusto siya muexercise of
jurisdiction, pili lang siya asa’y applicable. Apparently the Passive
Nationality Principle justified the exercise of jurisdiction over Usama
Bin Laden and others.
United States vs. Usama Bin Laden (2000)
Facts: Defendants are charged with a variety of crimes stemming
from the August 1998 bombings of the US Embassies in Nairobi,
Kenya.
Court: The passive personality principle is increasingly
accepted as applied to terrorists and other organized attacks
on a state’s nationals by reason of their nationality, or to
assassination of a state’s diplomatic representatives or other
officials…” (citing Restatement 402). “…..Universal jurisdiction is
increasingly accepted for certain acts of terrorism…” (citing
Restatement 404)…Both universal jurisdiction and the protective
principle xxxxxx xxxxx for jurisdiction by the United States over the
death of xxxxx citizens.”
Then we go to Protective Principle in jurisdiction. Leading practitioner
of Protective Principle is the United States.
Protective Principle in Jurisdiction
- a state can legislate crimes that it considers to be a threat to
its security, integrity, or economic interests
- common examples: espionage, counterfeiting (terrorism?)
Restatement 402: “…a state has jurisdiction to prescribe the law with
respect to…(3) certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or against a
limited class of other state interests.”
 This principle is limited to conduct that occurs outside a
state’s territory, by noncitizens
66
So we have here perceptions that this Protective Principle, being
narrow in scope, would usually apply only to situations where there is
threat to security, integrity or economic interest. Economic interest is
very much practiced in the US but anywhere else, courts only focus on
security and integrity. So that makes it narrower in scope. Di na siya
applicable in all cases – ang protective principle.
We have here examples of the application of Protective Principle.
Panamanian ship outside of the territory of any court, in the high seas,
the Supreme Court of the US affirmed the validity of the acquisition(?)
on the basis of Protective Principle. Because the ship was instrumental
in the introduction of prohibited drugs to the US. In the US, kanang
introduction of prohibited drugs, would be a threat to the security.
United States vs. Romero-Galue, 757 F.2d 1147 (11th Cir.
1985)
US could still exercise jurisdiction over the Panamanian ship even if
there is no treaty because the protective principle would allow the US
to prosecute foreign nationals on foreign vessels on the high seas for
possession of narcotics (and in some way inherently harmed the US)
 “The protective principle permits a nation to assert
jurisdiction over a person whose conduct outside the
nation’s territory threatens the nation’s security or
could potentially interfere with the operation of
governmental functions.”
Universality Principle (Universal Jurisdiction) –
Our leading case is Attorney General of Government of Israel v.
Eichmann. Involves one of the trusted generals of Hitler. So Eichmann
was in Argentina, captured by Israeli agents and prosecuted in Israel
for crimes committed in Germany. Crime committed is Genocide.
Attorney General of Government of Israel vs. Eichmann
(1961)
Israel tried and convicted Adolf Eichmann, who had been captured by
Israeli agents in Argentina and brought to Israel for trial. Eichmann
was charged of committing crimes against Jewish people, crimes
against humanity, war crimes, and membership in hostile organization
as defined in Israel’s Nazis and Nazi Collaborators Punishment Law.
Eichmann argued that the court had no jurisdiction because he was
captured in a foreign country in violation of international law.
What should justify the exercise of jurisdiction? Universal Jurisdiction
because universal jurisdiction is usually applicable for crimes that are
violation of erga omnes norms, or jus cogens, one of which of course
is genocide. Torture, slavery.
Court:
“From the point of view of international law, the power of
the State of Israel to enact the law in question…is based… on a dual
foundation: the universal character of the crimes in question and their
specific character intended to exterminate Jewish people.”
The case of Pinochet is also a leading case in jurisdiction. Pinochet was
then dictator in Chile and there were allegations of torture against
Spanish citizens in Chile. When ousted by a democratic group, he went
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to England for medical purpose. There he was arrested. Spain had
earlier issued an international warrant of arrest against Pinochet.
When he was arrested in England, Spain wanted to exercise
jurisdiction over Pinochet.
How was it justified? Spain invoked Universal Jurisdiction because the
crime committed is a universally punished crime – torture. And acts of
torture have already been considered customary international law and
in fact we now have CAT as its clear manifestation of its being a
customary international law. Convention Against Torture.
Also, Spain relied on Passive Nationality Principle because the victims
were Spanish. Blue Spanish Eyes. 
Pinochet Case
- Spain relied on Universal Jurisdiction to argue for Pinochet’s
extradition from England to Spain
- It also relied on Passive Nationality/Personality (Spanish
citizens were killed in Chile)
- Passive Nationality/Personality was found to be more
persuasive than Universal Jurisdiction
- No Territorial Jurisdiction – happened in Chile, not Spain
- No Active Nationality – Pinochet was not Spanish
- No Protective Principle – there was no imminent threat to
Spain’s national security from Chile
EXTRADITION
These are the six fundamental rules in extradition – all of them asked
in the bar exam.
Basic Principles in Extradition
1. No treaty, no “obligation” to extradite
2. Pacta sunt servanda applies
3. Dual purposes: 1. Prosecution, 2. Execution
4. Could not cover “political offenses”
a. Cf: “Attentat
Clause”
5. “Rule of Specialty” must be followed
6. Ex post Facto Law prohibition does not apply
1. Extradition is treaty-based. Where there is no extradition
treaty, there is no obligation to extradite.
2. The only way by which a state can be compelled to extradite
is pacta sunt servanda.
3. There are two purposes: prosecution and execution.
Prosecution before conviction, and execution for those who
have already been convicted but were able to go to a foreign
territory.
4. Because there is the Right to Asylum, we don’t apply
extradition to political offenses.
- What is this attentat clause? Attentat clause is usually found
in extradition treaties would provide that the mere killing of
a head of state should not constitute automatically as a
political offense to avoid extradition.
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5. Then we have the rule of specialty in extradition. What does
it mean? What are the kinds of crimes that can be subject of
extradition? There are two kinds, one considered listed and
one through the application of double criminality principle.
So pwede mag enumerate ang 2 ka parties sa treaty kung
unsa na crimes ang pwede ma subject sa extradition then it
will provide a clause, double-criminality clause which
provides that if in the event a crime is committed which is
not among those listed. The reasons being the characters of
people change or new crime laws will be passed. That's why
most states would stipulate on double-criminality clause
which means that even if a crime is not listed in the treaty, if
the crime is punishable in both states, then it can be a
subject of extradition. The rule of specialty means that if a
request for extradition is done on a specific offense or crime
let's say murder, it is a violation of due process and
international law will not allow a prosecution of the
extraditee or extradited person for another offense. So kung
gi extadite ka on the basis of the request for murder then
pag balik na sa receiving state, iprosecute ka for rape, then
whether or not extraditable offense siya or dili, it does not
matter. If the extradition is for murder then the extraditee
must be prosecutecd for murder.
6. Ex post facto law does not apply because it is not a penal
law. So pwede na crimes committed in the past, let's say
committed on 2010 and then extradition treaty took effect
on 2012, pwede mu apply.
Of course the issue of legality of the abduction of criminals in foreign
territory is also a relevant issue in jurisdiction.
Legality of “Abduction” of criminals in foreign territory:
 Three modes of “Rendition”: Extradition, Deportation, and
Abduction.
 Abduction of criminals in the territory of another is
understood as “intervention” and therefore violates
customary law and the UN Charter (Art. 2(4));
 It can only be justified if done invoking self-defense;
 But, the illegal apprehension will not necessarily
affect the jurisdiction of the apprehending state
(male captus, bene detentus) unless the defendant
was secured through torture, brutality, or similar
outrageous conduct.
There are 3 modes of rendition as observed by experts in international
law. The two are institutionalized extradition. Deportation is also
institutionalized, abduction is not. It is an accepted mode of rendition.
Theoretically of course, if you abduct a criminal or any person for that
matter from foreign soil, it's a violation of international law, the
principle of non-intervention. That's a given. If abduction is made in a
foreign territory, there is violation of international law but will that
violation affect the validity of the abduction to the point that the court
will be divested of its jurisdiction? We are guided by the general
principle of male captus bene detentus or wrongfully captured, validly
detained, meaning the illegal apprehension of a criminal will not
necessarily affect the jurisdiction of the apprehending state.
Bar exam question: What is the justification for the rule? The
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justification is this: apprehension or arrest of a criminal is not a
function of the court therefore, any conduct or misconduct or whatever
manner is employed in the arrest of the criminal should not affect the
jurisdiction of the court for as long as according to the court in the
case of Ker vs. Illinois: for as long as the person arrested when already
in court will be afforded due process. And the rules on criminal
procedure and the rights of an accused will be afforded to the
accused. He will be presumed innocent until proven otherwise,
evidence obtained in violation of due process and evidentiary rules will
not be admitted in evidence. So those principles will still be applied. So
the court said: di mo matter ang manner of abduction basta the
moment he is prosecuted, he will have all the rights of the accused,
including his rights to due process.
The principle of male captus bene detentus was affirmed in the case of
Attorney General of the Government of Israel v. Eichmann
1961 but as early as 1886, you have the cases of Ker vs. Illinois and
Friesbie vs Collins in 1952. Abduction in and on itself does not
invalidate a prosecution against a foreign national.
Attorney General of Israel vs. Eichmann (1961)
Israeli agents had abducted Eichmann from Argentina without consent
of Argentinian government. Eichmann argued before the Israeli Court
that the illegal act of abduction took away the jurisdiction of Israeli
courts to try him and he should be returned to Argentina to be tried
there. Argentina complained to the UN about this abduction,
demanding not only compensation for unlawful intervention on its
territory, but also for the return of Eichmann. The issue was however
mooted by an agreement entered into by Argentina and Israel.
Ker vs. Illinois (1886)
The treaties of extradition to which the United States are
parties do not guarantee a fugitive from the justice of one of countries
an asylum in the other. They do not give such person any greater or
more sacred right of asylum than he had before. They only make
provision that for certain crimes, he shall be deprived of that asylum
and surrendered to justice, and they prescribe the mode in which this
shall be done…How far such forcible transfer of the defendant
so as to bring him within the jurisdiction of the state where
the offense was committed may be set up against the right to
try him is the province of the state court to decide, and
presents no question in which this Court can review its
decision.
Frisbie vs. Collins (1952)
Court: This court has never departed from the rule announced in Ker
v. Illinois, … that the power of a court to try a person for crime
is not impaired by the fact that he had been brought within
the court’s jurisdiction by reason of a “forcible abduction.” No
persuasive reasons are now presented to justify overruling this line of
cases. They rest on the sound basis that due process of law is satisfied
when one present in court is convicted of crime after having been
fairly apprised of the charges against him, and after a fair trial in
accordance with constitutional procedural safeguards. There is nothing
in the Constitution that requires a court to permit a guilty person
rightfully convicted to escape justice because he was brought to xxxxx
xxxx (against) his will.
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United States vs. Alvarez-Machain (1992)
The presence of an extradition treaty between the United
States and another nation does not necessarily preclude obtaining a
citizen of that nation through abduction. It has long been the rule that
abduction, in and of itself, does not invalidate a prosecution
against a foreign national. The only question, therefore, is
whether the abduction violates any extradition treaty that may be in
effect between the United States and the nation in which the abductee
was to be found. Here, the US-Mexican authorities presumably were
aware of the United States’ long-standing law regarding abductions
and did not insist on including a prohibition against abductions.
Now, let's go to the exception: unless the defendant was secured
through torture, brutality or similar outrageous conduct. Our authority
on the matter is the case of US vs Toscanino 1974. Why was this case
applied and not Ker vs. Illinois and Friesbie vs Collins in 1952?
You look at the date when it was decided. The SC of the US in the
Toscanino case traced back the perception of the world of an
individual at the international level. In the past, it's easy to disregard
certain rights of individual in favor of state interest. Utilitarianism. The
idea in the past is the end justifies the means. But because of
development of international humanitarian law, perception of giving an
individual more rights at the international level, domestic courts also
adopted to that.
U.S. vs. Toscanino (1974)
Toscanino was abducted in Uruguay by an agent of the United States,
taken to Brazil, and brutally tortured and interrogated for 17 days. He
was then placed on a civilian aircraft bound for the U.S. and arrested
on arrival. He contended that the district court lacked jurisdiction over
him because of the circumstances of his arrest. Notwithstanding Ker-
Frisbie, the U.S. Court of Appeals for the Second Circuit agreed, ruling
that, if the allegations were true, they were so shocking to the
conscience that due process required that the district court
divest itself of jurisdiction.
Court (through J. Mansfield):
“We view due process as now requiring a court to divest itself
of jurisdiction over the person of a defendant where it has been
acquired as the result of the government’s deliberate, unnecessary and
unreasonable invasion of the accused’s constitutional rights.”
And so the court said, due process would now require the court to
divest itself of its jurisdiction over the person of the defendant where it
has been acquired as a result of government’s deliberate, unnecessary,
and unreasonable invasions of the constitutional rights of an accused.
Abduction is a violation of principle of non-intervention. However, the
court held that abduction per se will not divest the court of jurisdiction.
If the abduction is accompanied by brutality, torture and other similar
outrageous conduct, the court is also duty bound to consider such
situation, and part of due process, to divest itself of its jurisdiction.
That is the case of US vs. Toscanino (1974).
But a few months after Toscanino, the case of Lujan v. Gengler
(1974) wherein the Toscanino was not applied, and it reverted back
to Ker-Frisbie applying male captus, bene detentus because according
to the court, mere kidnapping or abduction will not divest the court of
its jurisdiction, unlike in Toscanino where the kidnapping was
accompanied by torture (the brutality in Toscanino was to the extent
that he was hit with the butt of a gun, and such brutalities were done
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in front of his wife). In Lujan, he was blindfolded, kidnapped and
detained in a secret place but there was no allegation of brutality,
torture or similar outrageous conduct, thus, the court went back to the
basic principle of male captus, bene detentus.
Lujan v. Gengler (1974)
Government-sponsored abduction, in and of itself, did not constitute
conduct sufficiently “shocking” to violate due process and therefore did
not trigger the Toscanino exception to Ker-Frisbie. Rather, the
Toscanino exception required more - - such as kidnapping combined
with torture at the hands of agents of the US Government. Here and
unlike in Toscanino, there is no showing that police brutality,
torture or similar outrageous conduct accompanied the
abduction.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
There are two kinds of immunity: ratione personae and ratione
materiae. In immunity ratione personae, we look at the person and the
law as it is applicable to the person, i.e., we look at the head of state
while he is the head of state or a diplomat. On the other hand,
immunity ratione materiae becomes relevant when we look at a
FORMER head of state or a diplomat.
Two categories of diplomatic immunity:
 Immunity ratione personae
- Immunity that attaches to the person of the diplomat while
he is a diplomat
- This is irrelevant for former diplomats
 Immunity ratione materiae
- For former officials, the focus is on the act. This is normally
irrelevant while a person is a diplomat;
- When a person ceases to be a diplomat, or his government
waives his immunity, the person retains substantive
immunity for actions he performs in his civil function while
still diplomat.
Head of State
What is the rule on head of state? Is the head of state immune from
suit?
If he’s incumbent, immunity ratione personae—during incumbency a
head of state is immune from suit, even foreign ministers (in the case
of Congo), and even diplomatic officials are immune from arrest,
detention, and processes while they are incumbent. However, in the
case of head of state, it is absolute in all cases whether civil, criminal,
special proceeding, even for international crimes (although that is still
a debatable issue). In the case of Belgium v Congo, he’s exempt
even for international crimes as long as he’s incumbent, meaning,
prosecution comes only after their incumbency applying immunity
ratione personae.
Diplomatic Immunity
69
Personal and Functional Immunity of Diplomatic Officials

In terms of immunity from jurisdiction, a distinction must be (Sir skipped TREATY LAW)
drawn between civil and criminal process.

In terms of criminal jurisdiction, diplomatic agents have total

immunity from the law of the receiving state and the only remedy LAW OF THE SEA
available to the receiving state is to declare the diplomat persona non
The Law of the Sea
grata. The immunity from criminal jurisdiction applies to any offense
committed by the diplomat whether official or not. In terms of civil
 Governed by the 1982 UNCLOS III (UNCLOS I – 1958;
jurisdiction, diplomats are immune from the civil jurisdiction of the
UNCLOS II – 1960)
receiving state except in three (3) cases. The immunity of diplomats
 Basic Zones: 1. Internal Waters, 2. Territorial Sea, 3.
extends to “arrests” and “detentions”. (See: DR of Congo vs. Belgium,
Contiguous Zone, 4. Exclusive Economic Zone, and 5.
2002)
High Seas.
 Baseline (Low-water mark Method vs. Straight Baseline
In the case of diplomats, when we’re talking about immunity ratione Method)
personae, there is absolute immunity in criminal suit only, but he is not
immune in civil suit in certain cases. Distinguished from a head of state
UNCLOS, the latest is UNCLOS III, 1982 and it governs basic zones:
who enjoys absolute immunity in all cases whether criminal or civil.
internal waters, territorial sea, contiguous zone, EEZ and the high
Total immunity in criminal jurisdiction for diplomats, the remedy of the
seas.
receiving State is to declare diplomat as persona non grata (an
ungrateful person). The concept of persona non grata is specifically
Let us explore the rights of the coastal states of these maritime zones.
applicable to diplomats (not applicable to fellow Filipinos, it is a
misapplication of such remedy). Persona non grata is a remedy
First, we have to know the baselines because these zones are
because the diplomat is supposedly totally immune from criminal
computed from the baselines. The baseline is mandated to be done
jurisdiction, i.e., arrest, detention, processes whether done in his
domestically. So all member states of the UNCLOS were given a
official capacity or not.
deadline to define their baselines on the basis of the mandate of the
UNCLOS. And the Philippines, siguro as a manifestation of our
In terms of civil jurisdiction, diplomats are immune generally, except in
character, nag – JIT ta class. ‘Just In Time’. We already defined our
three cases (please just look at our convention on diplomatic and
baseline law and it was questioned in the case of Magallona v. Ermita,
consular officials), regardless of whether done in their official capacity.
and it was upheld as valid. It did not restrict or expand our territory. It
Unlike in consuls we limit their immunity to official conduct only.
simply defined our baseline.
Functional Immunity of Consular Officials
We use Low-Water Mark for non-archipelagic states. For archipelagic
states, we use the Straight Baseline Method. And the Straight Baseline
As for Consuls, however, although they enjoy more or less the
Method would require the drawing of an imaginary line, connecting the
same immunities and privileges as diplomats, their immunity from
outermost points of the outermost islands, including dry reefs of a
criminal and civil jurisdiction extends to their official acts only.
particular archipelago. Then, you comply with certain limitations, such
as:

Ambassadors are for political concerns of the state. Consuls are for
commercial aspects of the state.
After incumbency, a head of State, may already be prosecuted except
for acts done in his official capacity. So, totally exempt during
incumbency. Post-incumbency, we need to distinguish between acts
done in official capacity and acts done not in official capacity. So for
acts done in official capacity even if it is post-incumbency, EXEMPT.
That is why, in the case of PINOCHET since it was an act of torture,
according to the Court, it cannot be official because it is a violation of
Jus Cogens norm prohibiting torture.
Immunity of Former Head of State in Criminal Proceedings
1. The straight baseline shall not depart appreciably from the
natural configuration or form of the archipelago.
2. The water to land ratio shall not exceed 9:1 (9-water, 1-land
mass)
These are the common limitations of the straight baseline method.
[This is not complete. Here’s Art.47 of the UNCLOS where these
limitations were lifted:
“1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs
of the archipelago provided that within such baselines are included the
main islands and an area in which the ratio of the area of the water to
the area of the land, including atolls, is between 1 to 1 and 9 to 1.

The Pinochet Case (2001):
The House of Lords of UK ruled that “the absolute
prohibition of torture, a jus cogens norm, overrides immunity
afforded to a former Head of State in criminal proceedings.
The commission of a crime against humanity and jus cogens cannot be
done in an official capacity on behalf of a state.”
2. The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of
125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable

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extent from the general configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations,
unless lighthouses or similar installations which are permanently above
sea level have been built on them or where a low-tide elevation is
situated wholly or partly at a distance not exceeding the breadth of the
territorial sea from the nearest island.
5. The system of such baselines shall not be applied by an archipelagic
State in such a manner as to cut off from the high seas or the
exclusive economic zone the territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic State lies
between two parts of an immediately adjacent neighbouring State,
existing rights and all other legitimate interests which the latter State
has traditionally exercised in such waters and all rights stipulated by
agreement between those States shall continue and be respected.
7. For the purpose of computing the ratio of water to land under
paragraph l, land areas may include waters lying within the fringing
reefs of islands and atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown
on charts of a scale or scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of points, specifying the
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or lists
of geographical coordinates and shall deposit a copy of each such
chart or list with the Secretary-General of the United Nations.”]
So, if as an example, non-archipelagic state, so our zone would look
like this: (Refer to ILLUSTRATION) internal waters, meaning waters
inland before the territorial sea and would include bays, rivers, canals.
Measurements of Zones of Sea
Then you have the Territorial Sea, 12 nm from the baseline (the yellow
color)
Then 24 nm from the baseline, is the contiguous zone. 200 nm from
the baseline is the EEZ. Beyond is the high seas. Remember, the high
seas is not similar to international waters. These zones can be divided
into two kinds: INTERNATIONAL and NON-INTERNATIONAL WATERS.
International Waters are waters after the territorial sea. Within the
territorial sea are non-international waters. So that’s one perspective,
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ventral (referring to above illustration).
We have to know this because we have to know the rule regarding the
Continental Shelf. We still have to know the rights of the coastal states
over continental shelves especially in relation with the EEZ. That’s how
it should look. (referring to below illustration)
Baselines – 12NM – 24NM …There can be 350nm from the territorial
sea for the Continental Shelf where the natural prolongation of the
shelf extends 200 nm because if this [kanang nag slope, that is the
continental shelf (Sir referring to the Illustration)] Kung shorter na siya
sa 200nm, the rights of the coastal states over minerals and living
organisms that would qualify as sedentary species, would be within the
sovereign rights of the coastal state even if found to be beyond the
natural prolongation kung less than 200 nm siya.
In a situation where the natural prolongation would extend beyond the
200 nm, then it can reach up to 350 nm. There’s a more complicated
Isopath Rule.
Competences in Zones of the Sea
Let’s go to the different maritime zones.
First, the Internal Waters. ABSOLUTE. Ship in distress is the ONLY
EXCEPTION when foreign vessels can enter Internal Waters.
Internal Waters
- include ports, harbors, rivers, lakes and canals.
- the coastal state can prohibit entry into its internal waters by foreign
ships, except for ships in distress.
- When already within internal waters, different legal questions arise
depending on the kind of vessel that is within the internal waters:
merchant ships, warships, other foreign non-commercial ships.
Internal Waters include ports, harbors, rivers, lakes and canals (man-
made canals in international law).The coastal state can prohibit entry
into its internal waters by foreign ships, except for ships in distress.
Territorial Waters.
EXCEPTION: Right to innocent passage. When is passage considered
innocent, that’s also found in the UNCLOS. Take a look at examples of
acts which do not fall under the right of innocent passage later.
71
Territorial Sea
- Not Exceeding 12 n.m. from the “baseline”
- Baselines: 1. Normal Baseline (Low-Water Mark method), and 2.
Straight Baseline Method
- Limitation: “Right of Innocent Passage” by foreign ships. It is
innocent if not prejudicial to the peace, good order or security of the
coastal state. Fishing vessels must comply with local laws and
submarines must navigate on the surface and show their flag.
Recap: Internal Waters, exception: Ships in Distress. Territorial Sea,
exception: Right to Innocent Passage.
When is passage considered innocent? It is found in the UNCLOS. Take
a look at examples of acts which do not fall under the right of innocent
passage later.
Territorial Sea, 12nm from the Baseline. For Archipelagic States,
straight baselines; For non- archipelagic states, Low water mark.
That’s the point where the water and the dry land mass meet during
low tide.
Territorial Sea
 Breadth (Art. 3)
- Up to 12 nautical miles from baseline …
 Measurement - baseline (Art. 5):
- Except where otherwise provided in this Convention, the
normal baseline for measuring the breadth of the territorial
sea is the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal State.
So that’s part of the territory ha, ang territorial sea of course. So our
laws extend up to 12 NM in all respects.
Territorial Sea
Sovereignty, subject to the Law of the Sea Convention (Art. 2)
1. The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.
2. This sovereignty extends to the airspace over the territorial sea
as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.
SO these are the examples of exercise of the right to innocent
passage.
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Territorial Sea
 Rights of Ships – innocent passage (Arts. 17-18)
Art. 17: Subject to this Convention, ships of all States … enjoy the
right of innocent passage through the territorial sea.
Art. 18: 1. Passage means navigation through the territorial sea for
the purpose of:
(a) Traversing that sea without entering internal waters or
calling at a roadstead or port facility outside internal waters;
or
(b) Proceeding to or from internal waters or a call at such
roadstead port facility.
2. Passage shall be continuous and expeditious. However, passage
includes stopping and anchoring, but only in so far as the same are
incidental to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress.
Examples of acts that will negate right of innocent passage. This is
where the French Rule and English Rule comes in. But ayaw na nah
ninyo iapply because these were rules followed before the UNCLOS.
Territorial Sea
Meaning of Innocent Passage (Art. 19):
1. Passage is innocent so long as it is not prejudicial to the
peace, good order, or security of the coastal State. Such
passage shall take place in conformity with this Convention
and with other rules of international law.
2. Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order, or security of the
coastal State if in the territorial sea it engages in any of the
following activities:
- [Paraphrased: threat or use of force, weapon exercise,
espionage, launching or landing of aircraft or other military
device, violation of customs, fiscal, immigration or sanitary
laws, willful and serious pollution, fishing, research or
surveying activities, interfering with communications or other
facilities, or “any other activity not having a direct bearing
on passage”]
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Territorial Sea
Civil Jurisdiction in Relation to Foreign Ships (Art. 28)
1. The coastal State should not stop or divert a foreign ship
passing through the territorial sea for the purpose of
exercising civil jurisdiction in relation to a person on board
the ship.
2. The coastal State may not levy execution against or arrest
the ship for the purpose of any civil proceedings, save only
in respect of obligations or liabilities assumed or incurred by
the ship itself in the course or for the purpose of its voyage
through the waters of the coastal State.
3. Paragraph 2 is without prejudice to the right of the coastal
State, in accordance with its laws, to levy execution against
or to arrest, for the purpose of any civil proceedings, a
foreign ship lying in the territorial sea, or passing through
the territorial sea after leaving internal waters.
Territorial Sea
Criminal Jurisdiction on Board a Foreign Ship (Art. 27)
1. The criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on
board the ship during its passage, save only in the following
cases:
(a) If the consequences of the crime extend to the coastal
State;
(b) If the crime is of a kind to disturb the peace of the
country or the good order of the territorial sea;
(c) If the assistance of the local authorities has been
requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or
(d) If such measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic
substances.
Contiguous Zone, this is where the state can exercise protective
jurisdiction. Kung territorial sea, absolute.
Contiguous Zone
-24 n.m. from the baseline
-Coastal State is limited to Protective Jurisdiction only, that is, to
prevent infringement of its customs, fiscal, immigration, or
sanitary regulations
EEZ
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Exclusive Economic Zone
Specific Legal Regime created by UNCLOS
 Art. 55 – the exclusive economic zone is an area beyond
and adjacent to the territorial sea, subject to the specific
legal regime established in this Part, under which the rights
and jurisdiction of the coastal State and the rights and
freedoms of other States are governed by the relevant
provisions of this Convention.
Breadth
 Art. 57 – The exclusive economic zone shall not extend
beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured.
Difference between the EEZ and Continental Shelf
1. Ang EEZ will have to be claimed by the coastal state, not in the
case of Continental shelf. Exclusive gyud na siya (referring to the
continental shelf). Ang EEZ (exclusive sovereign rights of
exploitation) if you cannot exploit the resources, you are mandated
by the UNCLOS to enter into a joint venture with other states. So
kinanglan i-claim na nimo. Ang continental shelf exclusive gyud na
siya sa coastal state. It is not mandated to enter into a joint
venture without the consent of the coastal state.
2. Sovereign rights of the EEZ would have to cover resources in the
waters superjacent to the seabed and the seabed and the subsoil.
SO pag- imagine lang gud class, nga tubig ni, kaning fish nga
superjacent sa subsoil (sa ibabaw), part na siya sa EEZ sovereign
rights. Inig touch na sa seabed ug subsoil, naa pa diha ang living
and non – living resources. Pero kung ilawm na gani sa seabed ug
subsoil, under seabed and subsoil, MINERALS, maw na nah ang
subject sa CONTINENTAL Shelf sovereign rights.
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Exclusive Economic Zone {POST-MOCK BAR, October 3, 2014}

Art. 56 – Rights, jurisdiction and duties of the coastal State in CONTEMPORARY ISSUES IN PUBLIC INTERNATIONAL LAW
the EEZ
If an agreement is not entitled “Treaty”, will it be governed by the
1. In the exclusive economic zone, the coastal State has: Vienna Convention on the Law of Treaties?
(a) Sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural UN Sanctions and Collective Security – this is a recurring issue. We’re
resources, whether living or non-living, of the waters talking about the recurring issues involving Middle-East countries, in
superjacent to the seabed and of the seabed and Syria, in Israel. Also, special status of some territories, whether they
its subsoil, and with regard to other activities for the can be considered state or not.
economic exploitation and exploration of the zone, such
UN SANCTIONS AND COLLECTIVE SECURITY
as the production of energy from the water, currents
and winds;
What is the rule of thumb when it comes to resolving conflicts? The
(b) Jurisdiction as provided for in the relevant provisions of
first rule of thumb (?) when it comes to Conflict Resolution in
this Convention with regard to:…..(ii)marine scientific
International Law is through Peaceful Means. When we talk about UN
research; (iii)the protection and preservation of the
Sanctions and Collective Security, we begin with measures that are
marine environment;
short of armed force. One of the issues that we’ll be talking about will
(c) Other rights and duties provided for in this Convention
be the issue on the use of force either by the UN, by an individual
state, or by a collective effort in pursuit of Self Defense.
2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State
1. MEASURES SHORT OF ARMED FORCE
shall have due regard to the rights and duties of other
States…..
 Art. 33 allows the Security Council (SC) to call upon the
3. The rights set out in this article with respect to the seabed
parties to settle their disputes peacefully (through
and subsoil shall be exercised in accordance with Part VI
negotiation, enquiry, mediation, conciliation, arbitration,
[Continental Shelf]
judicial settlement, arrangements, etc.)

 Art. 39 allows UN to call upon the partners concerned to

Continental Shelf
implement “provisional measures”

Art. 77 – Rights of the coastal State over the continental shelf

 Art. 41 suggests that the SC should take measures “not
involving the use of force” “to give effect to its decision”
1. The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and
Examples:
exploiting its natural resources.
1. Complete or partial interruption of economic relations,
2. The rights referred to in paragraph 1 are exclusive in the
means of telecommunications, and severance of diplomatic
sense that if the coastal State does not explore the
ties;
continental shelf or exploit its natural resources, no one may
2. Non-recognition of illegal situations;
undertake these activities without the express consent of the
3. Condemnation of illegal acts;
coastal State.
4. Public Exposure by the GA of gross violations; and
3. The rights of the coastal State over the continental shelf do
5. Establishment of ad hoc criminal tribunals.
not depend on occupation, effective or notional, or on any
express proclamation.
4. The natural resources referred to in this Part consist of the
If you look at Article 33 of the UN Charter, you will see there the
mineral and other non-living resources of the seabed
idea/suggestion that before use of force will be employed – even by
and subsoil together with living organisms belonging
the UN – peaceful resolution should be availed of. Article 33 allows the
to sedentary species, that is to say, organisms which, at
Security Council (SC) to call upon the parties to settle their disputes
the harvestable stage, either are immobile on or under the
peacefully. And you will have negotiation, inquiry, mediation,
seabed or are unable to move except in constant physical
arbitration, conciliation, judicial settlement. And it’s very common
contact with the seabed or the subsoil.
when parties voluntarily submit their controversies to the international
court of justice.

The sedentary resources referred to in No. 4 is the only living
resources in the continental shelf subject to the sovereign rights of the
coastal state, all others, non – living gyud na siya, meaning minerals.
Apart from continental seas, of course your high seas.
(Referring to Mock Bar preparation: Please read Environmental Law –
The Trail Smelter Case. Then the transboundary norm. Apart from
knowing that, we should also know whether these norms are norms of
Customary Intl Law. Do not disregard Intl Humanitarian Law)
Under Article 39 of the UN Charter, UN through SC may call upon the
parties to implement some provisional measures during armed conflict.
Instead of immediately sending troops to an area where there is an
ongoing armed conflict, it may be possible to send peacekeeping
operations for the purpose of implementing some provisional measures
that the parties have probably agreed upon, such as peaceful transport
or evacuation of citizens. Both parties can request the UN through
their relevant Committees to help implement some provisional
measures. Agreement to have cease fire – the UN can be called upon

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to make sure that such arrangement will be complied with.
Article 41 is the core Article suggesting the resort to measures that are
short of armed force. The SC may decide what measures to take that
do not involve the use of force to give effect to its decision. And in
fact, we call upon UN members to implement such measures. There
are examples mentioned in Article 41. Examples of which would be
complete, or partial interruption of economic relations,
complete/partial interruption of means of telecommunications, and
severance of diplomatic ties. These are peaceful means.
Other options available to the SC would be the non-recognition of
illegal acts or situation. The issuance of resolutions. For example,
when Iraq invaded Kuwait, the SC passed a series of resolutions
declaring that none of these acts done by Iraq would be recognized by
the members of the Family of Nations. So that’s a measure peaceful in
character but will have significant effects in International Law. What
else? Condemnation of illegal acts through resolutions. Public exposure
by the General Assembly of gross violations. Establishment of ad hoc
criminal tribunals. You’ve learned that there were ad hoc criminal
tribunals that were established upon the initiative of the UN. You have
the International Criminal Tribunal of the former Yugoslavia, for
Rwanda, Nuremberg, Tokyo, others. Those were upon the initiative of
the UN. These are examples of peaceful measures.
Aside from these measures, UN actively conducts peacekeeping
operations.
2. PEACEKEEPING OPERATIONS
 Deployment of peacekeeping forces (UN Blue Berets)
 Main functions: To separate contending parties, forestall
armed hostilities between them, and maintain order in a
given area.
 Evolved functions: To take necessary measures, including
use of force, to reply to bombardments against safe areas of
any of the parties
The idea of Peacekeeping operations is now very well-known to us.
Re: Filipino soldiers who got involved in hostage-taking or armed
confrontation at Syria (?), issue is, is there a moral obligation or legal
obligation to send troops? The moment we became a member of the
UN, part of commitments is to send troops under certain
arrangements. So we sent about 75 Filipino soldiers. That’s one nuh,
deployment of peacekeeping forces.
Antonio Cassese made an analysis of the functions of peacekeeping
operations, and he made an observation that the original purpose of
peacekeeping operation would simply be to one, separate contending
parties and maintain order in a given area. Probably because
sophisticated na ang methods of warfare at present murag ang
traditional function of the peace keeping operation would not be
sufficient. Mao ang getawag nga evolving function of peace keeping
operation. I called it contemporary issues because it is indeed an issue
because sometimes the Security Council will allow the use of force
even in safe keeping operations. So, Security Council sa resolution
would even specify when sending peace keeping operations that they
may be allowed to use all means necessary to implement the decision
of the Security Council and ”that all means necessary” may include the
use of force. That is one.
Another UN Security measure would be the use of force by states upon
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UN authorization.
3 ways by which use of force may be authorized by the UN:
1. May authorize a particular state to use force; [#3 IN
SLIDES]
2. The UN may authorize regional organizations (like
the NATO) to use force; or [#4 IN SLIDES]
3. The General Assembly will authorize the Security
Council to use force. [#5 IN SLIDES]
[TN] All these, upon the authorization of the Security Council.
And this 1st instance of UN authorization by the state is recognized in
Article 43 of the UN charter.
[1ST INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY
UN]
3. USE OF FORCE BY STATES UPON U.N.
AUTHORIZATION
 Art. 43 authorizes Security Council to call upon member
States “to contribute to the maintenance of international
peace and security”;
 This covers:
1. After a State had been engaged in acts of aggression
against another State which had reacted in self-defense; or
2. When there is “threat to the peace or ongoing
international or internal armed conflicts” to implement IHL
rights (humanitarian crises)
1st situation. Ex. State A attacks State B and if it can be established
that indeed there is armed attack or unlawful aggression therefore
entitling the victim state to exercise self defense, the UN can authorize
State C, another state, to use force to repel the aggression.
TN that this is UN authorized action different from unilateral
intervention by some states even if it is apparently or allegedly for
humanitarian reasons. Different to cya. It is still an issue whether a
state can unilaterally suppress atrocities in foreign counrties that are
violating human rights. If unilateral by that state, that is still an issue.
But if it is authorized by the Security Council, that is already a
legitimate effort to suppress atrocities abroad that are already
considered violations of human rights. This is the first instance when
the Sec. council will allow the use of force calling upon a member
state to use force.
[2ND INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY
UN]
4. USE OF FORCE BY ORGANIZATIONS UPON
AUTHORIZATION OF THE SECURITY COUNCIL
 Art. 43 allows Security Council to utilize regional
arrangements or agencies for “enforcement actions” “under
its authority”
 In 1999, during the Kosovo crisis, NATO decided to attack
the Federal Republic of Yugoslavia (Serbia and Montenegro)
without any specific authorization.
 There is no customary law yet legitimizing forcible
intervention for humanitarian purposes without the need of
formal Security Council authorization (see: Antonio Cassese,
International Law)
75

This is very common and there is a legal basis for this. Under Article
53. An example of an issue, as i have said it has to be with the
authorization of the Security Council ,so indeed, this is an issue at one
point in 1999 in the Kosovo crisis NATO attacked Serbia and
Montenegro without waiting for specific authorization from the sec.
council. Just like what happened to US, although adverted ang effort
to attack Syria because of some developments, pero the plan
supposedly for the US is to take the attack to Syria because of the
alleged use of neurological weapons by the government of Syria and
so you remember that Russia did not and was not expected to
cooperate with the Security Council.
By the way, kanang veto power will not allow the Security Council to
authorize a particular major decision. Going back to the basic, there
are 11 members of Security Council. Naa 5 permanent and 6 non-
permanent members. For procedural issues, the Security Council will
have to arrive at a vote of 7 but ang problem sa Security Council kai
kung other decision than procedures it would have to require the vote
of the 5 permanent members, unanimous sila. If one nila disagrees mo
veto cya that no major action may be taken by the Security Council.
Supposedly, may clause cya nga if a member is involved in the armed
conflict dapat mu abstain cya.
Pero mga ingani na problem, as you know the 5 permanent members
also have informal allies. The 5 permanent members are China,
France, US, Russia and Great Britain. Russia apparently has financial
economic interest over oil in Syria so it was expected nga ang Russia
mo veto gyud sa pag grant og authority sa US to use force, na issue
man to.
According to Cassese, there is no customary law yet recognizing the
legitimacy of forceful intervention either for humanitarian purposes if it
is without Security Council authorization. That is a contemporary issue.
Why an issue? Because you have the norm, the rule and state practice,
apparently is not in confimity with the norm mao na issue, not because
the norm itself is problematic but because developing man gud unta
ang International Law yet we somehow limited some of the possible
practices of states by putting threshold and standards in the UN
charter. This is the second.
[3RD INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY
UN]
5. USE OF FORCE AS AUTHORIZED BY THE GENERAL
ASSEMBLY
 The General Assembly may recommend actions to the
Security Council, upon the latter’s request, under Art. 11 and
Art. 12 (1) of the UN Charter.
 Usually done in situations where a member State has
exercised individual or collective self-defense under Art. 51
of the Charter and has informed the SC about the use of
force in self-defense.
Gen. Assembly authorizing the UN itself to use force. Wala military
personnel ang UN. These are all provided for by member nations. If
they will go there eithr as UN Security Council forces or they will go
there, let’s say US authorized to use force so dunay US forces
authorized by Security Council then there will also be security council
forces nga naa pud mga americans. If the US is a member of a mutual
or collective defense sa treaty then authorized by the Security Council
,naa sad amerikano didto. That is why it is possible, just like in Gulf
war. It has to be by the Gen. assembly issuing such recommendation
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but there seems to be a requirement that a resolution by the General
Assembly authorizing the use of force will have to be upon the request
of Security Council. So dili pwede na ang Gen. Assembly on its own mu
issue og resolution for the use of force. It has to be upon the request
of Security Council. This is found in Art. 11 in relation 12 par. 1 of the
charter, another important article to study.
Next issue: unilateral resort to use of force.
UNILATERAL RESORT TO FORCE
Jus Ad Bellum (the law of going to war)
 Art. 2(4) of the UN Charter prohibits “use of force” and
“threat to use force”; customary international law (see
Nicaragua vs. US); analyze the scope and intensity
(“massive armed attack” against the “territorial
integrity and political independence of a state that
imperils its life and government); note: Retorsion &
Reprisal are coercive measures short of war;
 Any use of force/threat to use force may only be lawful if
done with the collective decision of the UN in cases of
threats to peace, breaches of peace, or acts of aggression
[Chapters V-VII, UN Charter] [including against international
terrorism, threats posed by weapons of mass destruction,
and on humanitarian grounds; cf: Art. 2(7)as limitation];
 States can only justify use of force in case of self-defense
as recognized in Art. 51 of the UN Charter [Individual or
Collective self-defense (see Arts. 52-53)] until the Security
Council has taken measures; the State exercising right of
self-defense must report the measures taken to the
Security Council;
 Self-Defense must comply with the requirements of (1)
presence of “armed attack”; and (2) observance of the
principles of “proportionality”, “precaution” and
“military necessity”
So this brings me to that field of law called Jus Ad Bellum. There are 2
kinds of rules or legal system involving war. One is Pre-War and the
other is During-War. So when we say Jus ad Bellum, this is the
category of law evaluating situations or instances when a state can
lawfully engage in war, in short, when to lawfully use force. The most
relevant article of course is Article 2(4) in relation to Article 51. Article
2(4) of the UN Charter prohibits the use of force. Article 51 limits that
declaration in Article 2(4) about the prohibition to use force because it
allows the use of force when done in self-defense.
But first, before we go the right of self-defense, let’s take a look at the
scope or limitations to the use of force. It is prohibited and it is in fact
a customary international law as recognized in the case of Nicaragua
vs. US. More often than not, the concept of self-defense will revolve
around the parameters set forth by the ICJ in Nicaragua vs. US. In
fact, one of the issues that you will have to deal with is the “use of
force”. If the “use of force” or even the “threat to use force” is
prohibited, you need to understand what constitutes “force”.
In the case of Nicaragua vs. US, there is a suggestion that one should
analyze the scope and the intensity. If it is to qualify as force, so that
it may be prohibited, and therefore be considered illegal.
76
Retorsions and reprisals are considered coercive measures but not
considered “force” unless reprisal is armed reprisal, in which case it
may be considered as “use of force”.
In relation to this, we ask the question of when is “use of force”
allowed, and you’ve learned that it can be allowed only in two
instances: (1) collective decision of the UN (2) used as a result of the
exercise of self-defense (whether individual or collective).
The UN Charter always uses the word “State” when it comes to “use of
force” or “armed attack”. However, commentators say that it would
not be correct to limit the concept of “force” when the UN Security
Council is allowed to use force if it is limited to “states” because it is
possible that the acts of aggression or armed attack may be
perpetrated by non-state actors such as organized terrorist groups,
even insurgents.
The idea of “force” as prohibited by the UN Charter and in relation to
the exercise of the power of the UN through the Security Council to
repel such force does not have to be “force” done or exerted by states.
The second instance where force may be lawfully used is in case of
self-defense. It may be individual or collective. If you look at Article
51, there are certain rules to be observed. One, the exercise of the
right of self-defense is good only until the Security Council has taken
measures. In other words, the moment the Security Council is
informed of the acts done pursuant to the exercise of the right to self-
defense, the moment the Security Council steps in, maintain peace and
order, and may effectively control any use of force by the aggressor,
then the state invoking self-defense should stop and cease using force.
So the right to self-defense is limited in scope and also in time. That is
saying that any use of force while the Security Council is already in
control of the situation may be a questionable act under the
international law. That is if you look into the literal interpretation of
Article 51.
But Cassese does not necessarily agree, because it should be the state
invoking self-defense should right away cease to use force the moment
the Security Council already exerts effort to control the aggressor.
These are inherent limitations to the use of force when invoking right
to self-defense. Of course, there must be the presence of armed
attack. And in Nicaragua vs. US, “armed attack” should not just any
armed attack to warrant the use of force by way of self-defense.
Small-scale armed attack will not warrant the use of force. It should
be, reading the pronouncement of the ICJ in Nicaragua case “such an
attack that is characterized as massive armed attack and endangering
territorial integrity and political independence of the state.” So small
scale staging of an attack, even if it is armed will not necessarily entitle
the victim state to invoke the right to self-defense and consequently
use force. In other words, we need to know the intensity of the attack
if it could qualify as the kind of armed attack that will necessitate self-
defense and the use of force in furtherance of such defense. Second,
still in Nicaragua vs. US, there shall likewise be observance of
proportionality, precaution, and military necessity.
Always remember that not all armed attacks will warrant the use of
force for right of self-defense. It should be a massive armed attack as
explained in Nicaragua vs. US. It could also be widespread, and
probably with the intensity that endangers not only the territorial
integrity but even political independence.
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Jus Ad Bellum
“SELF-DEFENSE”
1. Inherent! Case: Caroline case (standard: “necessity of that
self-defense is instant, overwhelming, and leaving no choice
of means, and no moment for deliberation”)
2. Recognized by Art. 51 of the UN Charter (already limited and
fixed?)
3. Preventive/Anticipatory Self-defense, still contentious
Case: Nicaragua vs. US, supra; Cuban Missile Crisis; Caroline
Standard [Daniel Webster Formulation: “leaving no moment
for deliberation” standard]
4. Self-defense and Claims to Territory, inconsistent
- See 1970 General Assembly Friendly Relations
Declaration
5. Self-defense and Nuclear Weapons; still broad, not clearly
settled
6. Self-defense and Rescue of Hostages or Protection of
Nationals Abroad; still contentious
7. Self-defense against Non-State Actors (e.g. terrorists), now
accepted
8. Self-defense against Armed infiltration and indirect
Aggression [organizing, assisting, fomenting, financing,
inciting, or tolerating subversive or terrorist activities carried
out against another State]; not yet settled
In the Caroline case, the threshold or standard enunciated there to be
able to invoke self-defense is of such generic phrase such as “necessity
of that self-defense is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation”.
The question now is, the limitation to the exercise of the right to self-
defense seem to be unwarranted. Why? Because the right to self-
defense is supposedly inherent. Now that this right of self-defense
found its way to the UN Charter and the Charter provided thresholds,
do we have to put limitations to the right of self-defense (which is
supposedly inherent)? Because if this is customary international law,
the treatment is that it (right to self-defense?) should be there, it
should be continued to exist because that is customary international
law. Now that we have somewhat codified or fixed the right to self-
defense, will that give limitations to the exercise of the right to self-
defense? Such as the requirement that it should really be instant,
leaving no moment of choice or moment of deliberation?
For example, in relation to the issue of anticipatory self-defense. The
traditional concept of armed attack is that there is already an armed
attack. Kay ni.ingon gd siya necessity of that self-defense that is
instant, overwhelming, and leaving no choice of means, and no
moment for deliberation.
Diba kabaw namo sa idea sa anticipatory self-defense? Diba mao mani
ang g-invoke sa Israel in relation to operations of Hamas in Gaza?
Unsa man ilang claim? Ang Hamas in Gaza may mga missile sila that
they will use against Israel. Infact, there were attacks using these
missiles although na control sa Israel kay naa silay bag-ong US
supported/financed technology. Pero until when man sila mg use ana
nga technology if continuous ang aggression on the part of Hamas?
So, the idea now is, assuming wala nay attack, but there is evidence of
the attack, will international law require that there should be an actual
77
attack or an actual aggression before self-defense may be invoked?
In the past, were methods of warfare were not that sophisticated,
kanang idea of actual aggression as a requirement will probably be a
proper element of self-defense. But now, means and methods of
warfare are becoming more sophisticated. By mere push of a button
you can attack against any state wherever located. Unlike sauna, ang
nearby states lang. Pero karon, even ang opposite part of the globe
can be an object of a missile attack by a mere push of the button.
Nganong issue man na? Can it be a valid argument that the right of
self-defense will now be limited to the requirements set forth in section
51 and also the readings of the ICJ in the Caroline case. Or can you
argue that since the right to self-defense is an inherent right, and as
you know part of customary international law, it will not lose its
character as customary international law even if it is codified in a
convention?
So are you familiar with this principle? That even a customary
international law is codified in a convention, it can co-exist with that
convention.
So we have a situation wherein we have a limited right of self-defense
under Art. 51 and an expanded right of self-defense in customary
international law. Because if it is customary international law, it has to
be evolving. And this evolution of customary international law may be
manifested in treaties and conventions outside of the UN. It could be
regional, multilateral. And as you know, conventions and treaties are
also evidence of the progressive development of customary
international law.
So, I’m bringing this up class, as an issue. So that you when you go
home, you will review the basic rules on the use of force. So,
preventive or anticipatory self-defense NOT YET SETTLED. But leading
states are advocating for preventive or anticipatory self-defense would
have to be US and Israel.
Ka remember moa tong 1960s man guro toh nga ang Israel gdungan
ug attack ang Egypt ug mga neighboring countries like Jordan because
when they calculated the impending attacks of these neighboring
countries; Egypt, Jordan and Syria. Sa pagcalculate sa Israel, kay pirte
man gamaya aning Israel, tungod sa kagamay nila, halos tanang
residents mu undergo ug military training.
So what they did was, if they would wait for the attack of the 3
countries, aw sigurado gyud maluto ang Israel. So ilang gibuhat niuna
nalang sila ug attack like sa military installations and stations. So very
strategic.
And if you remember, the famous spy of Israel, he was an Israelite
and he became a defense secretary of Egypt. Liman kag ang ilang spy
nahimo ug high ranking official sa ilang opponent. The states counter
attacks kabaw gyd sila asa tirahon ang military installations. So when
Egypt learn about the plot of Israel nga manira sila ug military
installations, naghimo sila ug toy aircraft. Kahoy ba. Made of wood. So
mao toy tirahan. Dili pa lage sophisticated kay 1960s baya.
So when Israel conducted the military operations, aw igo tanan.
Kadtong mga fake military installations, wa hilabti. That’s when they
discovered nga naa gyud spy diri somewhere.
[Additional notes by the Transcriber Assigned to this topic: I think sir
was referring to ELI COHEN who was an Israeli spy. He is best known
for his espionage work in 1961 - 1965 in Syria (not Egypt as what DBL
discussed), where he developed close relationships with
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the political and military hierarchy and became the Chief Adviser to
the Minister of Defense. Syrian counter-intelligence authorities
eventually uncovered a spy conspiracy, tried and convicted Cohen
under pre-war 'martial law' to death penalty in 1965. The intelligence
he gathered is claimed to have been an important factor in Israel's
success.]
So, ang PREVENTIVE AND ANTICIPATORY SELF-DEFENSE has not yet
evolved into a customary international law. But, practiced by some
states.
Self-defense and Nuclear Weapons. You just go to the advisory opinion
of the ICJ on the validity on the use of nuclear weapons.
Self-defense and rescue of hostages or protection of nationals abroad.
Si Cassese made an opinion of converting this into customary
international law but under the strict requirement or threshold:
1. Pwede nato i-allow ang rescue of nationals abroad for
limited and very narrow purposes.
2. Dapat wala nay laing means to rescue or all means have
already been exhausted either peacefully or through
diplomatic channels.
3. After the successful rescue dapat mu stop na daw ang use
of force. But I don’t think this is a valid subject of Bar exam
question.
What I’m trying to say is that you should remember that it is still
contentious. You are not to say that this is valid or invalid depending
on the possible justifications for this.
Self-defense against Non-State Actors (e.g. terrorists), now acceptable.
So in the case of Nicaragua vs. US, ang decision man gud sa ICJ when
it comes to aggression, ni-mention man gd siya ug state. And
according to some commentators, it is wrong to limit lang ang armed
attack sa state. So pwede diay, especially at this time, organized
groups like terrorists are capable of staging massive armed attacks.
Mas sophisticated pa na ilang weapons compared to regular members
of the armed forces. So that is also accepted.
Another issue you will take note is about Self-defense against Armed
infiltration and indirect Aggression. Unsa manang armed infiltration
and indirect aggression? Definitely, if ang armed forces sa State A mu
cross ug border ug mu conduct ug armed attack, way issue. There is
an armed attack contemplated by article 51. Pero naa manay,
sometimes naa na daan sa state B. Unya, State A, the attacking state
would either finance, trains, supply or assist in the logistics of
organizing an armed attack against the central authority of state B. So
that is indirect aggression. Instead of troops crossing the border,
ang ilang buhaton kay kadtong mga rebelde sa target state mao to
ilang idevelop in order to stage an attack against the central authority
of state B.
Will self-defense be available to the victim state in such a way it is
authorized to use force against state a? No question, if they will use
self-defense against the ACTUAL aggressors, kadtong mga insurgents
or rebels within the state. However will it justify an armed attack
against the supporting state? NOT YET SETTLED.
78
Nicaragua (Merits) on Indirect Aggression:
“training or providing economic or military or logistical or other
assistance to rebels fighting against the central authority in another
country may be regarded as a threat or use of force or as an
intervention in the internal or external affairs of another State.
However, it does not amount to armed attack (unless the provision of
significant military support to an insurgency is major and
demonstrable” (p.195). “Hence, it does not entitle the target State to
respond by self-defense against the assisting State” (p. 195, 228, and
230)
What’s the legal basis for you answer? If you cannot use force against
State A, what are the remedies available to the victim State? Is there a
violation of International Law (IL) if another State assists—financially,
statistically, logistically—support rebel groups in another country? If
yes, would that warrant the use of force in the exercise of self-
defense?
[DBL note: this problem might come out in the BAR] State A, State B
usually belong to one territory, but since they belong to different
ethnicities, they were divided into two groups. Eventually, for
economic reasons, these two States became hostile to each other;
there were cross-border encounters. Eventually, because there were
minorities in State B, State A began supporting, financing, training the
minorities in State B. What are the IL aspects in that problem?
Indeed it is a violation of IL: the principle of non-intervention, and the
principle of prohibition against the use of force. You have to go back
to the landmark pronouncement of the ICJ in the case of Nicaragua:
“training or providing economic or military or logistical or other
assistance to rebels fighting against the central authority in another
country may be regarded as a threat or use of force or as an
intervention in the internal or external affairs of another State.
However, it does not amount to armed attack (unless the provision of
significant military support to an insurgency is major and
demonstrable” (p.195). “Hence, it does not entitle the target State to
respond by self-defense against the assisting State” (p. 195, 228, and
230).
The facts of the case were as follows: US attacked Nicaragua on the
ground that Nicaragua provided economic, military or logistical
assistance to the rebels in El Salvador. When US attacked Nicaragua,
US claimed that there was an armed attack by Nicaragua against El
Salvador, and El Salvador allegedly sought the help of US, invoking
self-defense.
ICJ held that there should be an existence of an armed attack by
Nicaragua against El Salvador that would justify the use of force
purportedly pursuant to self-defense.
What should the victim State do? Like in this case, what could El
Salvador do if US is its ally, what should they do if they cannot use
force under self-defense (against this indirect aggression)? They are
not entirely helpless. There are various ways in which force can be
used, provided that it is upon the authority of the Security Council
(SC). There is a different armed attack threshold requirement for
armed attack in self-defense from armed attack that would warrant
use of force upon the instance of the SC. To repeat, the force
amounting to armed attack that would justify the use of force pursuant
to self-defense, therefore an exception to art. 2(4), has a high
threshold for armed attack, mere provision of economic, military,
logistical training will not amount to armed attack; even small scale
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armed attack will not warrant self-defense. So the remedy here is UN
through the SC will ask or authorize another State to help the victim
State.
In that case therefore, it would have been better if US secured the
authorization of SC in order to quell the intervention of Nicaragua
when it supported the rebels in El Salvador. Remember that the scope
of authority of the SC does not even require actual aggression, as long
as there is threat to peace, thus this remedy should have been availed
of rather than invoking self-defense. All other types of “forces” lower
than that contemplated in art. 51 would warrant an action on the part
of the SC, but NOT because of the exercise of the right to self-defense.
On Collective Self-Defense
 Recognized in Art. 51 of the Charter
 In support of another State which has suffered an armed
attack
 The intervening State must not be itself a victim of the armed
attack
 Requires (1) prior “bond” (e.g. treaty) or (2) request or
previous consent of the victim State
 It is for the victim State to establish that it has been militarily
attacked (see Nicaragua [merits])
The idea of collective self-defense (CSD) usually presupposes a
situation wherein another State comes to the aid of a victim State,
meaning, the one using force should not be itself the object of the
attack (the victim), otherwise it would be individual self-defense and
not a CSD. If the State is not the object of the attack, and it just came
to the rescue of this victim State, that’s an instance of CSD. Generally,
CSD would be justified if there is (1) an agreement, i.e., a prior “bond”
(e.g. treaty between the victim State and the helping State) OR (2) the
victim State makes a request or gives previous consent to a helping
State; it is also for the victim State to establish that it has been
militarily attacked not by the one aiding (Nicaragua case). In other
words, use of force of another State in favor of a victim State, cannot
be justified if it is without the consent of the victim State because that
would qualify as an “intervention”. Remember, there are three
categories of law is PIL: law of peace, law of war, and law of
neutrality. States not involved in armed conflict should observe certain
rules on neutrality. If the helping State intervenes even without the
consent of the victim State, it could be considered as violation of the
laws of neutrality, and considered as an intervention.
ARMED REPRISALS AGAINST UNLAWFUL SMALL-SCALE USE
OF FORCE
 Literally, not allowed by Art. 51 in relation to Art. 2(4) of UN
Charter
 Has been declared by various Security Council and General
Assembly Resolutions as “incompatible with the purpose and
principles of the United Nations”
 Commentators and experts suggest that the armed reprisal
should be categorized into: (1) Retaliatory armed force; and (2)
“On-the-spot-reaction” (applying ‘state of necessity’ doctrine, but
requiring ‘proportionality’ and ‘immediacy’)
Art 51 presupposes that the armed attack should be massive. So small
scale armed attack would not justify the use of self-defense. It is not
allowed under Art 51 in relation to Art. 2(4) prohibiting the use of
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force.
In many SC (Security Council) and General Assembly resolutions, gina-
declare nani sila class armed reprisals as a contrary to the purposes of
principles of the UN charter.
That is why, in order to justify and therefore that you know that it may
be justified, armed reprisal in response to small scale use of force, e-
categorize nimo ang reprisal:
Number one, (1) there is reprisal that is considered retaliatory.
Retaliatory armed force. Ang idea is, the retaliation or reprisal have
been may after a considerable length of time from the time small scale
armed attack have been made that is why it is retaliatory. Medyo
delayed ang response ba, as opposed to what we call (2) on-the-spot-
reaction. Some commentators will give us some example kana daw
magpatrol ang military near sa border, attackon dayon na sya sa
neighboring and enemy state, justifiable, right away, right there and
then mo use sila og force against attacking forces of the enemy state.
And it will be justified under the State of Necessity doctrine provided
that, again, as the requirements every time armed forces used, there
should be proportionality and immediacy. In other words, use of force
in armed reprisals, may be valid only in a situation where it is called
on-the-spot-reaction. May immediacy ba, of course you follow
proportionality. Di pud na gi-attack of troops sa border by use of,
kanang dili mga artilleries, kanang mga handguns lang, di pud pwede
na tirahan nimog missile as a retaliation because you have to comply
every time basta use of force with the requirement of proportionality.
So, akong balikon, kanang small scale use of force, that will not
warrant use of force pursuant for self-defense but it will warrant use of
force provided it is categorize as on-the-spot because there was
immediacy requirement. Use of force there may be justified by the
state of necessity doctrine. It is a state of necessity doctrine ra rather
than some sort of anticipatory self-defense.
Pero kung ang iyang armed reprisal delayed use of force, there may
not be justified anymore. If the use of force is in the category of
retaliatory armed reprisal then it is unlawful because of Art. 2 par. 4 of
the UN charter prohibiting the use of force. Commentators say that the
other kind of armed reprisal should be justifiable for terrorism for,
number one state of necessity doctrine. Second one it is not a sound
policy to delay responses because for all we know that is the beginning
of a massive armed attack. So you don’t expect victim state to wait
and see kung unsa ni siya, small scale or massive, nya huwaton nya
after one month, ai massive so I can use of force pursuant to self-
defense ky massive naman siya. Commentators say, ok na kung naay
immediacy. Ky kung naay immediacy then maapply nimo ang state of
necessity doctrine. Pero kung delayed siya, naa pa ky remedies during
that time na wa pa ni take og action against the small scale armed
attack against your state. You can go through peaceful processes
attack even if gi-attact naka by use of force, go to SC then go to UN.
Pero after a long period of time,wa pa ni react dn usa pa ka ni use of
force dn it becomes retaliatory, prohibited na xa under art. 2 par. 4.
What I am saying now is wa ky koy nagdiscuss obvious basic concept
because I assume nga naa na nato, we already know this.
In relation to all of this, I think it’s important to know international
huminatarian law kay I was supposedly planning to show other issues
like environmental law, human right. Naghisgot naman jud tag war, e-
relate nalang nato ning IHL kay related rman.
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INTERNATIONAL HUMANITARIAN LAW
So those issues, as I have said, are in the category of jus ad bellum
rules engaging in war. Now, when there is armed conflict or war, we
also have another category of rules governing the conduct of hostilities
and this where we talk about IHL. That’s jus in bello not jus ad bellum.
Means of Waging War and Criminal Responsibility: Jus In
Bello
1. Purposes/objectives of International Humanitarian Law (IHL)
2. Meaning of “armed conflict” to which IHL applies
3. What if there is no “armed conflict”?
4. Fundamental principles that govern conduct of war;
(a) Principle of Distinction;
(b) Principle of Proportionality; and
(c) Principle of Precaution
5. Means and Methods of Warfare
6. Other IHL Rules (Sick and Wounded, Detention, etc)
7. Criminal Responsibility
So, here let’s talk about in order to understand the purposes of IHL,
let’s talk about armed conflict which the IHL would apply because IHL
does not apply to all kinds of armed conflict, only to certain categories
of armed conflict. So that, if there is no armed conflict as understood
in IHL what would be the remedies and what would be the situations.
There are so many rules on IHL, but for purposes of PIL bar exam, the
three important principles are the usual questions ask in bar exams
although naay mga stray questions sometimes. Let’s talk about the
three basic principles in IHL: principle of distinction, proportionality
and precaution. The rule is very simple but if you take a look into
specific provisions medyo complicated xa actually.
Let’s talk about rules in warfare and then we relate also these
principles to other rules. For example, rules on the sick and the
wounded, detention, displacements and other concerns and then we
finally end with criminal responsibility.
International Humanitarian Law (IHL) or Law on Armed
Conflict
- IHL or jus in bello, not jus ad bellum. It governs the laws of
armed conflict or law of war. It primarily seeks to protect
civilian population and objects (to “humanize” the
effects of war) (calls for balancing of “military
necessity” and “humanity”). It covers international or
non-international armed conflict, but not mere internal
disturbances.
- E.g. the 1949 Geneva Conventions and Additional Protocols
prohibit the “attack on civilian population or objects as such”
during armed conflict.
Let’s talk on the law on armed conflict, that’s the other term of IHL. It
governs the law on armed conflict in times of war.
Purpose is to seek or protect civilian population or objects from the
effects of war that’s why it is called the IHL to humanize the effects of
war and therefore the study of IHL calls for a balancing of the concept
of military necessity because the moment there is armed conflict or
war, you know and it is to be understood, that the object or the main
objective of war is really to defeat the opponent. So means and
80
methods of warfare were really want to be regulated for that purpose
if you want to humanize the effects of war and therefore so you have
to balance the military necessity and humanity because some means
and methods of warfare may disregard human dignity. A good
example of which is the use of weapons that will cause unnecessary
sufferings. Maka-use man kag weapon because what is the object of
war? dba the object of war is to achieve peace and the only way to
achieve peace is to defeat the opponent. There are really methods of
warfare but IHL governs these methods in order to humanize the
effects of war.
It covers 2 kinds of armed conflict: international and non-international
armed conflicts. Excluded are internal disturbances, such as riots or
demonstrations and other similar internal disturbances, lacking in
intensity and lacking in organization.
What is International Criminal Law(ICL),on the other hand, because it
is another category of law that is more or less interrelated with IHL.
International Criminal Law (ICL) is a body of international
law that prohibits certain categories of conduct viewed as serious
atrocities and to make the perpetrators of such conduct criminally
accountable. It defines crimes, its elements, and individual criminal
responsibility.
E.g. Rome Statute creating the International Criminal Court
(ICC) in the Hague which defines and punishes genocide, war crimes,
crimes against humanity, and aggression.
In the course of armed conflict, certain acts of atrocities have been
categorized as crimes committed during war. Related xa sa IHL in the
sense nga ang IHL nagregulate xa sa means and methods of warfare
and at the same time there is another category of law that is created
or established for the purpose of prosecuting those who have
committed atrocities during armed conflict. So it’s another category in
ICL.
So lain ang IHL og lain sa ang ICL. As defined, it is a body of
international law that prohibits certain categories of conduct viewed as
serious atrocities and to make the perpetrators may be held liable. In
the past ICL scattered na xa in various documents, now we have one
document on ICL and that is the Rome Statute created by the Int’s
Criminal Court (ICC).
International Human Rights Law (IHRL) vs. IHL
 IHRL refers to inalienable fundamental rights to which a
person is inherently entitled; while IHL refers to the rights of
persons affected by armed conflicts
 IHRL applies at all times; IHL applies to armed conflicts
 Some rights in IHRL may be limited or suspended (e.g.
freedom of expression) and some are absolute or non-
derogable (e.g. right against torture)
1st distinction. So International human rights law will apply to all
persons. Why? Because IHL (International Humanitarian Law) is
limited in scope; it will only apply to those persons affected by armed
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conflict.
2nd distinction. Necessarily, International human rights law applies
AT ALL TIMES; in times of peace, and in times of war. IHL is specific;
only in times of war. But there are however rights that in fact some
commentators would say that broader ang international human rights
law, mas specific ang IHL. But may area sila class na mag overlap.
Because if you look at my notes here, some rights in international
human rights law may be limited or suspended, an example of which is
freedom of expression. So when for example in times of war, the state
or any authority will limit your right to travel, for example, or to
peaceably assemble, like bawal na mag group in times of war, or
probably curfew policies. So pwede ma limit ang some of the rights.
BUT- this is where mag converge ang IHRL ug IHL – there are NON-
DEROGABLE RIGHTS that are observed even in times of war. So in
IHRL, iyang categories kay derogable and non-derogable. Ang kaning
derogable rights ma limited ni in times of war. To this extent, there’s a
difference between IHRL and IHL. But mag converge sila in regard to
NON-Derogable right such as the right against torture, the prohibition
against inhumane treatment of prisoners, observed in IHRL also
observed in IHL.
If you are to distinguish the two, ayaw lang pud ng “applicable both in
times of peace and war ang IHRL, and IHL in times of war.” Ayaw.
Probably, the examiner will try to see if you have an idea nga mag
OVERLAP na sila. The above answer is too simplistic. Whereas if you
say nga naay areas na mag converge ang IHRL ug IHL, then that
means lawm2 imong understanding sa two.
*Sir gives advice: One skill you have to learn is to have the eye and
the brain of a surgeon. Tagaan ug general problem, ay sus, general ra
kaayo pag answer. Mura bitaw ang problem para ra mag trigger unsa
ang topic all about and tagaan rakas topic, dili bitaw i.solve ang issues
sa problem. That might probably ensure a passing score in the bar, but
mas mayo unta sobra pas pasar.
Let’s take a look at the types of armed conflict. (Sir: But na discuss
naman ni nato. Let’s go straight to the principles.)
So who and what are the protected persons and objects in IHL;
Civilians and Civilian Objects. This we will appreciate the moment we
talk about the different principles in IHL.
Protected Persons and Objects in IHL:
1. Civilians – persons who do not belong to armed forces and
who are not combatants
2. Civilian Objects – objects which are not military objectives.
“Military Objects” are those which by their nature, location,
purpose or use make effective contribution to military action
and advantage.
Fundamental Principles in IHL
Principle of Distinction
Principle of Proportionality
Principle of Precaution
One is the Principle of DISTINCTION. Ayaw ra nang “we
distinguish civilians from combatants, and civilian objects and military
objects.” Butangi sad ug “IN THE CONDUCT OF MILITARY
OPERATIONS, a distinction must be made between these two: civilian
81
population distinguished from combatants, civilian objects
distinguished from military objects.” Additional Protocol 1 Article 48
governs the principle of distinction. [NOTHING FOLLOWS]

Principle of Distinction

Art. 48, AP I:
“In order to ensure respect for and protection of the civilian
population and civilian objects, the Parties to the conflict shall at all
times distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly shall
direct their operations only against military objectives.”
CREDITS:
Arnado, Arriesgado, Atuel, Balt, Barcenas, Baya, Bayalas, Biton, Blanco, Borres,
Bristol, Caminade, Canada, Chan, Cinco, Cokaliong, Dente, Diao, Duran-Ybañez,
Ediza, Fiel, Gallego, Gan, Georfo, Gonzalodo, Gregorio, Lao, Lesigues, Lim, A.,
Lim, J., Lulu, Lumapas, Medequiso, Menchavez, Narca, Nardo, Olvis, Ong,
Ortezuela, Otero, Paglinawan, Pasatiempo, Pena, Plaza, A., Plaza, L., Rejuso,
Robles, Rosales, Salas, Sanchez, Santos, Semillano, Sotto, Susvilla, Tampus,
Tan-Yu, Tapia, Ubod, Uy, J., Uy, P.

#ONEBATCH

Lawful Targets

 Combatants (except hors de combat)

 Civilians Taking Direct Part in Hostilities
 Military Objects (including civilian objects that lost protection
such as those used for military objective)

In other words, the lawful targets during armed conflict would be:

1.) COMBATANTS, unless they become Hors de combat (combatants

that surrendered, laid their arms, and no longer participate in combat
functions.) So even if originally lawful combatants sila, they will cease
to be when they become Hors de Combat.

2.) Civilians may be a lawful subject or target IF in direct

hostilities. Basic lang gud, Civilians not lawful subject except when
they take direct part in hostilities.

3.) Military Objects. Civilian Objects not a lawful subject,

EXCEPT when these are used for military objectives in which
case these civilian objects will lose their protection. This is important in
view of what is happening in GAZA, in relation to the way Israel makes
their attack on Gaza. If you are up to date, Israel will come out as
violating IHL; schools, hospitals have been attacked. Churches, have
been attacked. If you have not studied IHL, you will say that Israel is
violating IHL. But you that these civilian objects, although generally
enjoying protection may lose such protection if they have been used
militarily. For example, the school has been used as storage for
armaments and weapons. Israel daw has proof that Hamas is storing
weapons in schools and hospitals, and in fact use them as sites for
launching missiles against Israel. Certainly, they will lose that
protection. Mao nay gi tawag ug COLLATERAL DAMAGE RULE.

Civilian Population

Art. 51, AP I:

“1. The civilian population and individual civilians shall enjoy

general protection against dangers arising from military operations. To
give effect to this protection, the following rules, which are additional
to other applicable rules of international law, shall be observed in all
circumstances.
2. The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence the
primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this section,
unless and for such time as they take part in hostilities.”

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