University of Cebu

College of Law
UCLASS Bar Operations
Political Law Society

POLITICAL LAW
BAR NOTES
2012
Chairperson: Paul Nejudne
Vice Chair: Lester Wee

Members:
Robie Quino, Gibran Abubakar,
Jhona Grace Alo, Leah Lara Bardoquillo,
Jennelyn Bilocura, Joy Bolivar,
Kristine Athena Nedamo,
Kristine Nejudne, Chelisa Roxas

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References: Law Textbooks, Codes, Reviewers, Notes, Compilations, Articles and Internet Sources

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Political Law Bar Notes
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on the coast without departing to any

ARTICLE I – THE NATIONAL TERRITORY appreciable extent from the general
direction of the coast.
The national territory comprises:
R.A. 9522. This law provides for
one baseline around the
1. the Philippine archipelago, with all the
archipelago and separate baselines
a. islands and
for the “regime of islands” outside
b. waters embraced therein: that is, the
the archipelago.
waters
1) around,
It is a principle where appropriate points are set
2) between, and
along the coast of the archipelago including
3) connecting the islands of the
the outermost islands and then connect
archipelago, regardless of their
those points with straight baselines. All
breadth and dimensions, form part
waters within the baselines are considered
of the internal waters of the
internal waters of the Archipelago State.
Philippines.
and
It is adopted in the constitution when it says that,
2. all other territories over which the
"the waters around, between and
Philippines has sovereignty or jurisdiction,
connecting the islands of the archipelago,
consisting of its
regardless of their breadth and
a. terrestrial,
dimensions, form part of the internal
b. fluvial and
waters of the Philippines."
c. aerial domains, including its
1) territorial sea,
2) the seabed,
Important distances with respect to the
3) the subsoil,
waters around the Philippines
4) the insular shelves, and
5) other submarine areas. (Article
Territorial sea 12 nautical miles (n.m.)
1,1987 Constitution)
Contiguous zone 12 n.m. from the edge of
the territorial sea
Exclusive 200 n.m. from the baseline
DEFINITIONS of “ARCHIPELAGO” economic zone [includes (1) and (2)

An archipelago is a body of water studded with

islands. The Philippine archipelago is that body of
water studded with islands which are delineated in
the (1898), as amended by the Treaty of
Washington (1900) and the Treaty with Great
Britain (1930).
TERRITORIAL SEA
The belt of the sea located between the coast and
internal waters of the coastal state on the one
hand, and the high seas on the other, extending up
to 12 nautical miles from the low water mark.

“ALL OTHER TERRITORIES OVER WHICH THE

PHILIPPINES HAS SOVEREIGNTY OR CONTIGUOUS ZONE
JURISDICTION” Extends up to 12 nautical miles from the territorial
It includes any territory that presently belongs or sea. Although not part of the territory, the coastal
might in the future belong to the Philippines State may exercise jurisdiction to prevent
through any of the accepted international modes of infringement of customs, fiscal, immigration or
acquiring territory. sanitary laws.

ARCHIPELAGIC PRINCIPLE EXCLUSIVE ECONOMIC ZONE

Two elements:
1. The definition of internal waters (as
provided above);
2. The straight baseline method of delineating
the territorial sea – consist of drawing
straight lines connecting appropriate points
1. Not a part of the national territory but
exclusive economic benefit is reserved for the
country. Thus, the coastal state has in the
exclusive economic zone:
A. Sovereign rights for the purpose of
exploring and exploiting, conserving

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Political Law Bar Notes
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and managing the natural resources,
whether living or non-living, if the
waters super adjacent to the seabed
and subsoil, with regard to other
activities for the economic exploitation
and exploration of the zone, such as
the production of energy from the
waters, currents and winds.
B. Jurisdiction with regard to:
i. the establishment and use of
artificial islands, installations,
and structures;
ii. marine, scientific research;
iii. the protection and preservation
of marine environment;
C. other rights and duties provided in the
convention (Art. 56 of the UN
Convention of the Law of the Sea)
ARTICLE II – DECLARATION OF PRINCIPLES
AND STATE POLICIES
Selected principles
SECTION 1. The Philippines is a democratic and
republican state. Sovereignty resides in the people
and all government authority emanates from them.
Elements of a State (for municipal law
purposes) CODE: PTSG
1. A Community of persons; A community of
persons, more or less numerous (PEOPLE)
2. Permanently occupying a definite portion of
territory (TERRITORY)
3. Independent of external control
(SOVEREIGNTY)
4. Possessing an organized government to
which the great body of inhabitants render
habitual obedience (GOVERNMENT)
“PEOPLE” CODE: CNCH
a.
b. Sufficient in Number;
c. Capable of maintaining the continued
existence of the community; and
d. Held together by a common bond of
law.
“SOVEREIGNTY”
1. LEGAL sovereignty
a. The supreme power to make law.
b. It is lodge in the people.
2. POLITICAL sovereignty
a. The sum total of all the influences in a
state,
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b. Legal and non-legal,
c. Which determine the course of law.
3. According to the Principle of AUTO-
LIMITATION: Sovereignty is the property of
the State-force due to which it has the
exclusive capacity of legal self-determination
and self-restriction.
4. INTERNAL sovereignty: Power of the State to
control its domestic affairs.
5. EXTERNAL sovereignty: Power of the State to
direct its relations with other states.
“GOVERNMENT” CODE: IS-RNI
1. That Institution or aggregate of institutions
2. by which an independent Society
3. makes and carries out those Rules of
action
4. which are Necessary to enable men to live
in a social state
5. or which are imposed upon the people
forming that society by those who possess
the power or authority of prescribing them.
Classification of governments
1. De jure – has rightful title but no power or
control, either because this has been
withdrawn from it or because it has not yet
actually entered into the exercise thereof.
2. De facto – a government in fact; it actually
exercises power or control but without legal
title.
Classification of de facto governments
1. De facto proper
a. That government that gets possession
and control of
b. Or usurps by force or by the voice of
majority
c. The rightful legal government
d. And maintains itself against the will of
the latter.
2. Government of paramount force
a. That which is established and
maintained by military forces
b. Who invade and occupy a territory of
the enemy
c. In the course of war.
3. That established as an independent
government by the inhabitants of a country
who rise in insurrection against the parent
state.
“REPUBLICAN STATE”
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It is the one wherein all government authority
emanates from the people and is exercised by
representatives chosen by the people.
“DEMOCRATIC STATE”
This merely emphasize that the Philippines has
some aspects of direct democracy such as initiative
and referendum.
SECTION 2. The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of
the land and adheres to the policy of peace
equality, justice, freedom, cooperation, and amity
with all nations
Some “generally accepted principles of
International law” recognized by the Court:
1. The right of an alien to be released on bail
while awaiting deportation when his failure to
leave the country is due to the fact that no
country will accept him (Mejoff v. Director of
Prisons, 90 Phil. 70)
2. The right of a country to establish military
commissions to try war criminals (Kuroda v.
Jalondoni, 83 Phil. 171)
3. The Vienna Convention on Road Signs and
Signals (Agustin v. Edu, 88 SCRA 195)
4. Duty to protect the premises of embassies and
legations (Reyes v. Bagatsing, G.R. 65366)
Amity with all nations
This does not mean automatic diplomatic
recognition of all nations. Diplomatic recognition
remains a matter of executive discretion.
SECTION 3. Civilian authority is, at all times,
supreme over the military. The Armed Forces of
the Philippines is the protector of the people and
the State. Its goal is to secure the sovereignty of
the State and the integrity of the national territory
Civilian authority/supremacy clause (1st
sentence)
1. Civilian authority simply means the
supremacy of the law because authority,
under our constitutional system, can only
come from law.
2. Under this clause, the soldier renounces
political ambition.
Mark of sovereignty (2nd and 3rd sentences)
1. Positively, this clause singles out the
military as the guardian of the people and
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of the integrity of the national territory and
therefore ultimately of the majesty of the
law.
2. Negatively, it is an expression of
disapproval of military abuses.
SECTION 4. The prime duty of the Government is
to serve and protect the people. The Government
may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to
render personal military, or civil service.
SECTION 5. The maintenance of peace and order,
the protection of life, liberty and property, and the
promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of
democracy.
SECTION 6. The separation of Church and State
shall be inviolable.
SECTION 7. The State shall pursue an
independent foreign policy. In its relations with
other states, the paramount consideration shall be
national sovereignty, territorial integrity, national
interest, and the right to self-determination.
Paramount considerations in its relations
with other states;
1. National sovereignty
2. Territorial integrity
3. National interest
4. Right to self-determination
SECTION 8. The Philippines, consistent with the
national interest, adopts and pursues a policy of
freedom from nuclear weapons in its territory.
Policy of freedom from nuclear weapons
1. The policy PROHIBITS
a. The possession, control and
manufacture of nuclear weapons
b. Nuclear arms tests.
2. The policy does NIT prohibit the peaceful
uses of nuclear energy.
SECTION 12. The State recognizes the sanctity of
family life and shall protect and strengthen the
family as a basic autonomous social institution. It
shall equally protect the life of the mother and the
life or the unborn from conception. Xxx
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1. It is not an assertion that the unborn is a
legal person.
2. It is not an assertion that the life of the
unborn is place exactly on the level of the
life of the mother. Hence, when it is
necessary to save the life of the r, the life
of the unborn may be sacrificed.
3. Under this provision, the Roe v. Wade
doctrine allowing abortion up to the 6 th
month of pregnancy cannot be adopted in
the Philippines because the file of the
unborn is protected from the time of
conception.
SECTION 16. The State shall protect and advance
the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.
1. Policies and not under the Bill of Rights, it
does not follow that it is less important
than any of the civil and political rights
enumerated in the latter. (Oposa v.
Factoran, 224 SCRA 792)
2. The right to balanced and healthful ecology
carries with it the correlative duty to
refrain from impairing the environment.
(Oposa v. Factoran)
SECTION 26. The State shall guarantee equal
access to opportunities for public service, and
prohibit political dynasties as may be defined by
law.
Sec. 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.
ARTICLE III – BILL OF RIGHTS
A. Fundamental Powers of the State
1. Police Power
2. Power of Eminent Domain /
Expropriation
3. Power of Taxation
Similarities
- Inherent in the state; no need for
express constitutional grant
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- Necessary for State to be effective
- All involve State interference with
private property
- Presuppose equivalent compensation
- Exercised primarily by the Legislature
Limitations
- May not be exercised arbitrarily, to the
prejudice of the Bill of Rights
- Subject at all times to the limitations
and requirements of the Constitution
and may in proper cases be annulled
by the courts of
justice
1. Police Power
Concept
- Power vested in the legislature by the
constitution to make, ordain, and
establish all manner of wholesome and
reasonable laws, statutes, and all
ordinances either with penalties or
without not repugnant to the
constitution as they shall judge to be
for the good and welfare of the
commonwealth and of the subjects of
the same.
– the power of the State authority to enact
legislations that may interfere with personal
liberty and property in order to promote the
general welfare. (Agustin v. Edu)
- An inherent attribute of sovereignty.
(MMDA v. Bel-Air)
- Power vested in the legislature to make,
ordain, and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either
with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good
and welfare of the commonwealth. (MMDA v. Bel-
Air)
Nature and Basis
- Power of promoting the public welfare by
restraining and regulating the use of liberty and
property (Freund)
- Inherent and plenary power of the state
which enables it to prohibit all that is hurtful to the
comfort, safety and welfare of society (Ermita-
Malate Hotel and Motel Operators Association, Inc.
v Mayor of Manila, 1967)
Basis
- Salus populi suprema est lex (the welfare
of the people is the supreme law)
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- Sic utere tuo ut alienum non laedeas (so
use your own property as not to injure another’s
property
Police Power can be viewed in two ways:
i. Positive – the power to prescribe regulations to
promote the health, morals, peace, education,
good order or safety, and general welfare of the
people.
ii. Negative – that inherent and plenary power in
the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of
society. (Agustin v. Edu)
Limitations
a. General
- The legislative determination of what is a proper
exercise of its police power is not final or
conclusive, but is subject to the supervision of the
courts (US v Toribio, 1910)
- No conflict with due process and equal protection
of the laws
- Police power prevails over future contracts as
well as past ones. The non-impairment of contracts
clause, and other vested rights, have to yield to
the legitimate exercise of State police power
(Ortigas & Co. v. CA)
- Balancing is the essence or the indispensable
means for the attainment of legitimate aspirations
of any democratic society
b. Due process and Equal Protection of Laws
No conflict with due process and equal protection
Art. III, Sec. 1. No person shall be deprived of
life, liberty or property without due process of law,
nor shall any person be denied the equal protection
of the laws.
Art. XIII, Sec. 1. The Congress shall give highest
priority to the enactment of measure that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities and remove cultural inequities by
equitably diffusing wealth and political power for
the common good. To this end, the State shall
regulate the acquisition, ownership, use, and
disposition of property and its increments.
Scope of Application
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a. Generally
By reason of its function:
- extends to all the great public needs
- most pervasive, the least limitable and the
most demanding of the three powers
- The powers of taxation and eminent
domain may be used to implement a police
objective
b. Particular aspects
- public health
- public morals
- public safety
- public welfare
“Police power is so extensive and so
comprehensive that the courts have refused
to give it an exact definition; neither have they
attempted to define its definition its limitation …
depends the security of social order the life and
health of the citizens, the comfort of an existence
in a thickly populated community, the enjoyment
of private and social life and the beneficial use of
property. It extends to the protection of the lives,
limbs, health, comfort and quiet of all persons and
the protection of all property within the state.
(U.S. v. Torribio).
“It has been said the police power is so far -
reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its
existence from the very existence of the State
itself, it does not need to be expressed or defined
in its scope; it is said to be co-extensive with self-
protection and survival, and as such it is the most
positive and active of all governmental processes,
the most essential, insistent and illimitable.
Especially is it so under a modern democratic
framework where the demands of society and of
nations have multiplied to almost unimaginable
proportions; the field and scope of police
power has become almost boundless, just as
the fields of public interest and public
welfare have become almost all-embracing
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and have transcended human foresight.

Police Eminent Taxation

Power Domain Distinguished from other powers
What it Liberty and Property Property
Regulates Property rights rights
only only

Who may State State and State Who may exercise

Exercise Private
Entities a. Legislature. Police power is lodged primarily
in the national legislature
Otherwise stated, as we cannot foresee the -Inherent. Consequently, Need no constitutional
needs and demands of public interest and welfare conferment.
in this constantly changing and progressive world,
so we cannot delimit beforehand the extent or Delegation
scope of police power by which and through
which the State seeks to attain or achieve Police Power Eminent Taxation
interest or welfare. So it is that Constitutions do Domain
not define the scope or extent of the police power Compensa None Just None
of the State; what they do is to set forth the tion (the altruistic compensati (the
limitations thereof. The most important of these feeling that on protection
are the due process clause and the equal one has (full and fair given and
protection clause.(Ichong v Hernandez). contributed to equivalent of public
the public the property improvement
- Far reaching as long as it covers public good - taken) s instituted
interest and public welfare. Nachura) required. by the State
-The most essential, insistent and least because of
illimitable powers extending to all great public these taxes -
needs. Nachura
-Must be elastic and must be responsive to Use of Not Appropriated Use taxing
various social conditions. (Sangalang v. Property Appropriated for public use power as an
IAC, cited in Binay v. Domingo) for public use implement
for
the
attainment of
Elements for valid exercise a legitimate
police
 “There is no need to redefine here the police objective—to
power of the State. Suffice it to repeat that the regulate a
power is validly exercised if (a) the interests business or
of the public generally, as distinguished from trade
those of a particular class, require the Objective To destroy Property Earn revenue
interference of the State, and (b) the means noxious taken for the
employed are reasonably necessary to the property or to for public government
attainment of the object sought to be restrain the use; it is not
accomplished and not unduly oppressive noxious use of necessarily
upon individuals. (DECS vs. San Diego) property noxious

1. Interest of the public generally, as

distinguished from that of a particular class b. Executive. By virtue of a valid delegation of
[lawful subject]. legislative power, it may also be exercised by the
president, administrative bodies, and lawmaking
2. The means employed are reasonably bodies of LGUs (R.A. 7160, sec. 16).
necessary to the attainment of the object
sought to be accomplished and not unduly - The MMDA is not delegated with police power
oppressive upon individuals [lawful (MMDA v. Bel-Air Village Association) but it is
means].

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mandated by R.A. 7924 to enforce traffic rules and
regulations (MMDA v. Garin).
Churchill vs. Rafferty
“There can be no doubt that the exercise of
the police power of the Philippine Government
belongs to the Legislature and that this power
is limited only by the Acts of Congress and
those fundamentals principles which lie at the
foundation of all republican forms of
government. An Act of the Legislature which is
obviously and undoubtedly foreign to any of the
purposes of the police power and interferes with
the ordinary enjoyment of property would, without
doubt, be held to be invalid. But where the Act is
reasonably within a proper consideration of
and care for the public health, safety, or
comfort, it should not be disturbed by the
courts. The courts cannot substitute their own
views for what is proper in the premises for
those of the Legislature. In Munn vs. Illinois (94
U.S., 113), the United States Supreme Court states
the rule thus: "If no state of circumstances could
exist to justify such statute, then we may declare
this one void because in excess of the legislative
power of this state; but if it could, we must
presume it did. Of the propriety of legislative
interference, within the scope of the legislative
power, a legislature is the exclusive judge."
2. Power of Eminent Domain
Article III, Sec. 9. Private property shall not be
take for public use without just compensation.
Article XII, Sec. 18. The State may, in the
interest of national welfare or defense, establish
and operate vital industries and, upon payment of
just compensation, transfer to public ownership
utilities and other private enterprises to be
operated by the government.
CONST
Art. XIII, Sec. 4 The State shall, by law,
undertake an agrarian reform program founded on
the right of farmers and regular farm workers who
are landless, to own directly or collectively the
lands they till or, in the case of other farm
workers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural
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lands, subject to such priorities and reasonable
retention limits as the Congress may prescribe,
taking into account ecological, developmental, or
equity considerations, and subject to the payment
of just compensation. In determining retention
limits, the State shall respect the right of small
landowners. The State shall further provide
incentives for voluntary land-sharing.
Art. XIII, Sec. 9 The State shall, by law, and for
the common good, undertake, in cooperation with
the private sector, a continuing program of urban
land reform and housing which will make available
at affordable cost, decent housing and basic
services to under-privileged and homeless citizens
in urban centers and resettlement areas. It shall
also promote adequate employment opportunities
to such citizens. In the implementation of such
program the State shall respect the rights of small
property owners.
Art XIV, Sec. 13. The National assembly may
authorize, upon payment of just compensation, the
expropriation of private lands to be subdivided into
small lots and conveyed at cost to deserving
citizens.
1. Concept
 Ultimate right of the sovereign power to
appropriate not only public but private property
of citizens within the territorial sovereignty to
public purpose. (Charles River
Bridge vs. Warren Bridge)
An ejectment suit ordinarily should not prevail over
the State’s power of eminent domain.
 Being inherent, it need not be lodged or
specifically conferred on government by the
Constitution.
Art III sec. 9 of the Constitution merely imposes a
limit on the government’s exercise of power.
 Note that eminent domain is different from
police power.
Police power implies a “temporary taking” of a
private company’s operations and
business;ownership is not transferred.
“Eminent domain, the power which the Municipality
of Bunawan exercised in the instant case, is a
fundamental State power that is inseparable from
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sovereignty. It is government's right to

appropriate, in the nature of a compulsory sale 2. Who may exercise
to the State, private property for public use or  Congress, primarily.
purpose. Inherently possessed by the national  Other governmental and private entities,
legislature, the power of eminent domain may be by delegation:
validly delegated to local governments, other 1. President
public entities and public utilities. For the taking of 2. Various local legislative bodies
private property by the government to be valid, 3. Certain public corporation like MWSS.
the taking must be for public use and there must
be just compensation.” (Moday vs. CA) 4. Quasi-public corporations like National
Railways, PLDT, Meralco
 “xxx It is recognized by all writers that the  Power is dormant until the legislature
power of eminent domain is inseparable from sets it in motion (Executive Department
sovereignty being essential to the existence needs to act on statute)
of the State and inherent in government even
in its most primitive forms. Philosophers and  Once authority is given to be exercised,
legists may differ as to the grounds upon which the the matter ceases to be wholly legislative
exercise of this high power is to be justified, but no
one can question its existence. No law, therefore,
is ever necessary to confer this right upon As exercised As exercised by
sovereignty or upon any government exercising by Congress delegates
sovereign or quasi-sovereign powers. The power Extent of Pervasive and Can only be as
of eminent domain does not depend for its Power all broad as the
existence on a specific grant in the encompassing enabling law and
constitution. It is inherent in sovereignty and the
exists in a sovereign state without any conferring
recognition of it in the constitution. The authorities want it
provisions found in most of the state constitutions to be
relating to the taking of property for the public use Question Political Justiciable
do not by implication grant the power to the of question question. RTC has
government of the state, but limit a power which Necessity to determine
would otherwise be without limit.” (Visayan whether there is a
Refining Co. vs. Camus and Paredes) genuine necessity
for its exercise, as
Heirs of Alberto Suguitan vs. City of
well as what the
Mandaluyong
property’s value is

 “Eminent
“Eminent domaindomain is is the
the right
rightor orpower
powerof ofaa Re: Delegate cannot
sovereign
sovereign statestate to appropriate
to appropriateprivate private private expropriate
property
property to to particular
particular uses usesto topromote
promotepublic public property private property
welfare.
welfare. ItItis an is indispensable
an indispensable attribute of
attribute of already devoted
sovereignty;
sovereignty; a a power
power grounded
grounded in in the
the primary
primary duty
duty to public use
of
of government
governmenttotoserve serve thethecommon
common needneed
and and
advance the general welfare. Thus,
advance the general welfare. Thus, the right the right of of
eminent
eminent domain
domain appertains
appertainstotoevery every independent
independent 3. Conditions for exercise
government
government without
without the the necessity
necessity for for constitutional
constitutional a. General Requisites:
recognition. The provisions
recognition. The provisions found found in modern
in modern (1) Taking of
constitutions
constitutions of of civilized
civilizedcountries
countriesrelating
relating to to
thethe
(2) private property,
taking
taking ofof property
propertyforfor thethepublic
publicuse use
do notdo bynot by (3) for public use,
implication
implication grant
grant the
the power
power to to the
the government,
government, but but (4) with just compensation, and
limit a power which would
limit a power which would otherwise otherwise be without
be without (5) upon observance of due process.
limit.
limit. Thus,
Thus,our ourownownConstitution
Constitution provides that that
provides
"[p]rivate
"[p]rivate property
property shall shallnot notbebetakentaken for public use
for public b. Requisites for LGUs to Validly Exercise ED:
without just compensation."
use without just compensation." Furthermore,
Furthermore, the duethe (1) Ordinance by a local legislature council
process and equal
due process protection
and equal clausesclauses
protection act as act as
is enacted authorizing local chief executive
additional
additional safeguards
safeguards against
against the the arbitrary
arbitrary exercise
exercise to exercise eminent domain,
of
of this
thisgovernmental
governmental power.”
power.” legislative
(Heirs power, a
of Alberto
legislature
Suguitan vs. is City
the exclusive judge."
of Mandaluyong)

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(2) For public use, purpose or welfare or
for the benefit of the poor and of the
landless,
(3) Payment of just compensation,
(4) Valid and definite offer has been
previously made to owner of the property
sought to be expropriated but such offer
was not accepted (Municipality of
Parañaque v VM Realty, 1998)
c. Subject to Judicial Review:
(1) Adequacy of compensation,
(2) Necessity of taking,
(3) “Public use” character of the purpose of
taking
4. Taking
 A physical dispossession of the owner of
his actual property, or its use
 May include trespass without actual
eviction of owner, such as the material
impairment of value of property, or
preventions of ordinary uses for which the
property was intended.
 What may be taken: All private property
capable of ownership, including services.
 What cannot be taken: money and choses in
action
 Requisites for taking (Republic v. Castelvi)
a. The expropriator must enter a private
property
b. Entry must be for more than a
momentary period
c. Entry must be under warrant or color of
legal authority
d. Property must be devoted to public use
or otherwise informally appropriated or
injuriously affected
e. Utilization of the property must be in
such a way as to oust the owner and
deprive him of beneficial enjoyment of
the property
5. Public Use
 Public use = public purpose / public interest /
public welfare / public benefit.
 It is enough that it serves a public purpose,
even if it benefits a large group of people short of
the public in general (e.g. expropriating property
for the relocation of squatters).
 The idea that "public use" means "use by the
public" has been discarded. At present, whatever
may be beneficially employed for the general
welfare satisfies the requirement of public use.
(Heirs of Juancho Ardona v. Reyes, 123 SCRA 220)
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 That only a few benefit from the expropriation
does not diminish its public-use character,
inasmuch as pubic use now includes the broader
notion of indirect public benefit or advantage
(Filstream International v. CA, 284 SCRA 716)
6. Just Compensation
 Fair and full equivalent of the loss which the
owner has to suffer by reason of the expropriation;
usually the fair market value of the property
 Fair Market Value:
 Price fixed by a buyer (desirous but not
compelled to buy) and a seller (willing but not
compelled to sell).
 However, the determination of what counts as
“just compensation” is a judicial(RTC)
prerogative; thus, executive determinations of
just compensation in eminent domain cases are
unconstitutional.
 Must include consequential
damages(damages to other interest of the owner
attribute to the expropriation) and deduct
consequential benefits (increase of value of
other interests attribute to new use of the former
property)
 Compensation has to be paid in money, and
has to be paid within a reasonable time from its
taking
 General Rule: the value of the property will be
determined at the date of the filing of the
complaint for eminent domain, which normally
coincides with the taking
 Exception: when the taking precedes the filing
of the complaint, and the owner would be given
undue incremental advantage arising from the
government’s use of the property, the value will be
determined at the time of the taking
 So in effect: the value of the property must be
determined either at the time of taking or filing of
the complaint, whichever comes first (Eslaban v.
De Onorio, G.R. 146062)
 Non-payment of just compensation
 General rule: non-payment by government
does not entitle private owners to recover
possession of the expropriated property (because
expropriation is an in rem proceeding, not an
ordinary sale), but only to demand payment of
the fair market value of the property (Republic
v. CA, G.R. 146587; Reyes v. National Housing
Authority, G.R. 147511)
 Exception: deliberate refusal to pay just
compensation entitles the owners to recover the
property
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b. Tool for regulation

 5-year rule: the non-payment of the c. Protection/power to keep alive
compensation does not entitle the private
landowner to recover possession of the  Extent: as broad as the purpose for which it is
expropriated lots; however, in cases where the given. Primarily vested in the national legislature.
government failed to pay the compensation within
5 years from the finality of the judgment in the Taxes License Fees Special
expropriation proceedings, the owner concerned Assessments
shall have the right to recover possession of their - Raise  Imposed for  Specific
property. This is in connection with the principle revenues regulatory benefits for
that the government cannot keep the property and for the purposes only specific
dishonor the judgment. To be sure, the 5-year governmen persons
period limitation will encourage the government to t Justification is
pay just compensation punctually. (Republic vs. police power  Basis is cost of
Lim, 2005)  Levied construction
against  Amount is
7. Agrarian Reform (Art. XIII, Sec. 4) Revenues limited to cost
 Is an exercise of the police power of the State of regulation
through eminent domain (Association of Small  Basis of
Landowners v. Secretary of Agrarian Reform) as it amount is
is a means to regulate private property. higher

8. Urban Development and Housing Act (R.A.
7279, mandated by Art. XIII, Sec. 9)
 The power of eminent domain may be exercised
by LGUs for urban land reform purposes, but
expropriation of privately-owned lands must be
resorted to only after all other lands have been
exhausted.
Also: local legislative bodies (Article 10, Section 5,
1987 Constitution).
 To a limited extent, the President may exercise
this power when granted delegated tariff powers
under Art.
VI, sec. 28 (2)

 Under R.A. 7279, lands for socialized housing

are to be acquired in the ff. order:
a. Gov’t lands
b. Alienable lands of the public domain
c. Unregistered, abandoned, or idle lands
d. Lands within declared Areas for Priority
Development, Zonal Improvement Program sites,
Slum Improvement and Resettlement sites that
have not yet
been acquired
e. BLISS sites that have not yet been acquired
f. Privately-owned lands
 Among privately-owned lands, small landowners
(defined as those owning not more than 300 sq.
m. of land in highly urbanized cities, or 800 sq. m.
in other urban areas, and no other residential
property) are exempted from such acquisition.
3. Limitations
 Power to tax exists for the general welfare;
should be
exercised only for a public purpose
 might be justified as for public purpose even if
the immediate beneficiaries are private individuals
 Tax should not be confiscatory.
 If a tax measure is so unconscionable as to
amount to confiscation of property, the Court will
invalidate it. But invalidating a tax measure must
be exercised with utmost caution, otherwise, the
State’s power to legislate for the public welfare
might be seriously curtailed.

3. POWER OF TAXATION  Specific Limitations:

1. Nature and Extent a. Uniformity of taxation

 Enforced proportional contributions from
persons and property, levied by the state by virtue  simply geographical uniformity, meaning it
of its sovereignty, for the support of the operates with the same force and effect in every
government and for all public needs. place where the subject of it is found.

 Purpose:  But does not prohibit classification for

a. To raise revenue purposes of taxation

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 Requisites:
i. standards used are substantial and not arbitrary
ii. categorization is germane to achieve the
legislative purpose
iii. the law applies, all things being equal to both
present and future conditions
iv. applies equally to members of the same class
b. Equal protection clause – taxes should be
uniform (persons or things belonging to the same
class shall be taxed at the same rate) and
equitable (taxes should be apportioned among the
people according to their capacity to pay)
c. Progressive system of taxation
 The rate increases as the tax base increases
 Basis is social justice
 Taxation as an instrument for a more equitable
distribution of wealth
d. Delegated tax legislation
2 B: BILL OF RIGHTS
 Congress may delegate law-making authority
when the constitution itself specifically authorizes
it.
4. Double Taxation
 Occurs when additional taxes are laid on the
same subject by the same taxing jurisdiction
during the same taxing period for the same
purpose
 No provision in the Constitution specifically
prohibiting double taxation, but will not be allowed
if it violates equal protection.
5. Impairment of obligations of contracts
 Power of taxation may not be used to violate the
constitutional right of every person to be secured
against any statute that impairs the obligation of
contracts.
 But if the statute exempts a party from any one
class of taxes, the imposition of a different tax is
not an impairment of the obligation of contracts.
6. Tax exemptions
 A corollary power but must be for a public
purpose, uniform and equitable and in conformity
with the equal protection clause.
 Tax exemptions are granted gratuitously and
may be revoked at will, except when it was
granted for valuable consideration.
 May either be constitutional or statutory
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 If statutory, it has to have been passed by
majority of all the members of Congress (Art. VI,
sec. 28 (4))
 Constitutional exemptions (1987 CONST., art.
VI, sec. 28(3))
a. Educational institutions (both profit and
nonprofit)
- Benefits redound to students
- Only applied to property taxes not excise taxes
b. Charitable institutions
- Religious and charitable institutions give
considerable assistance to the State in the
improvement of the morality of the people and the
care of the indigent and the handicapped.
c. Religious property
Sec. 1. No person shall be deprived of life, liberty
or property without due process of law, nor shall
any person be denied the equal protection of the
laws.
IN GENERAL
 A bill of rights is a declaration and enumeration
of a person's fundamental civil and political
rights. It also imposes safeguards against
violations by the government, by individuals, or by
groups of individuals.
1. Civil rights – rights that belong to an individual
by virtue of his citizenship in a state or community
(eg, rights to property, marriage, freedom to
contract, equal protection, etc.)
2. Political rights – rights that pertain to an
individual’s citizenship vis-à-vis the management
of the government (eg., right of suffrage, right to
petition government for redress, right to hold
public office, etc.)
3. Social and economic rights – rights which are
intended to insure the well being and economic
security of the individual Rights of the accused –
civil rights intended for the protection a person
accused of any crime.
 Is generally self-executing
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 Article III contains the chief protection for
human rights but the body of the Constitution
guarantees other rights as well.
Bases:
a. Importance accorded to the dignity and worth of
the individual.
b. Protection against arbitrary actions of
government and other members of society
Purpose:
a. To preserve democratic ideals
b. To safeguard fundamental rights
c. To promote the happiness of an individual
Sales vs. Sandiganbayan, G.R No. 143802,
November 16, 2001
The purpose of the Bill of Rights is to protect the
people against arbitrary and discriminatory use of
political power. This bundle of rights guarantees
the preservation of our natural rights which include
personal liberty and security against invasion by
the government or any of its branches or
instrumentalities. Certainly, in the hierarchy of
rights, the Bill of Rights takes precedence over the
right of the State to prosecute, and when weighed
against each other, the scales of justice tilt towards
the former
Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co.,
Inc 51 SCRA 189 (1973) primacy of human rights
over property rights is recognized.
 the rights of free expression and of assembly
occupy a preferred position.
- Mere reasonable or rational relation between
the means employed by the law and its object
or purpose-that the law is neither arbitrary nor
discriminatory nor oppressive—would suffice to
validate a law which restricts or impairs property
rights.
- But a constitutional or valid infringement of
human rights require a more stringent
criterion, namely existence of a grave and
immediate danger of a substantive evil which the
State has the right to prevent.
Aspects of “Due Process”
a. Procedural due process – refers to the
mode of procedure which government
agencies must follow in the enforcement
and application of laws
b. Substantive due process – prohibition
against arbitrary laws.
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NOTE: PROCEDURAL DUE PROCESS:
a. A law which hears before it condemns,
proceeds upon inquiry and renders
judgment only after trial.
b. Due process of law contemplates notice
and opportunity to be heard before
judgment is rendered affecting one’s
person or property (Lopez v. Dir. of Lands)
c. Due process depends on circumstances; it
varies with the subject matter and the
necessities of the situation.
Requisites of PROCEDURAL due process:
For JUDICIAL proceedings: CODE: I J H J
1) An impartial court or tribunal clothed with
judicial power to hear and determine the
matter before it.
2) Jurisdiction must be lawfully acquired over
the person of the defendant or over the
property which is the subject of the
proceedings.
3) The defendant must be given notice and an
opportunity to be heard. (notice and
hearing)
4) Judgment must be rendered upon a lawful
hearing.
For ADMINISTRATIVE proceedings:
CODE: H E D S H I P
1. The right to a hearing, which includes the
right to present one’s case and submit
evidence in support thereof.
2. The tribunal must consider the evidence
presented.
3. The decision must have something to
support itself.
4. Evidence supporting the conclusion must
be substantial.
5. The decision must be based on the
evidence presented at the hearing or at
least contained in the record and disclosed
to the parties affected.
6. The tribunal or body or any of its judges
must act on its or his own independent
consideration of the law and facts of the
controversy, and not simply accept the
views of a subordinate in arriving at a
decision.
7. The board or body should, in all
controversial questions, render its decision
in such a manner that the parties to the
proceeding can know the various issues
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involved and the reasons for the decision
rendered.
NOTE:
1. What is required is not actual hearing, but
a real opportunity to be heard.
2. The requirement of due process can be
satisfied by subsequent due hearing.
3. Violation of due process: when the same
person reviews his own decision on appeal.
4. Notice and hearing are required in judicial
and quasi-judicial proceedings, but not in
the promulgation of general rule.
For SCHOOL DISCIPLINARY proceedings:
CODE: W A In A D P
1. The student must be informed in writing of
the nature and cause of any accusation
against them.
2. The student shall have the right to answer
the charges against him, with the
assistance of counsel if desired.
3. The student has the right to be informed of
the evidence against him.
4. The student has the right to adduce
evidence in his own behalf.
5. The evidence must be duly considered by
the investigating committee or official
designated by the school authorities to
hear by the school authorities to hear and
decide the case.
6. The penalty imposed must be
proportionate to the offense.
NOTE:
1. The school has a contractual obligation to
afford its students a fair opportunity to
complete the course a student has enrolled
for.
2. Exceptions:
a. Serious breach of discipline; or
b. Failure to maintain the required
academic standard.
3. Proceedings in student disciplinary cases
may be summary; cross-examination is not
essential
Instances when hearings are NOT
necessary:
1. When administrative agencies
exercising their quasi-legislative functions.
2. Abatement of nuisance per se.
3. Granting y courts of provisional remedies.
4. Cases of preventive suspension.
5. Removal of temporary employees in the
government service.
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6. Issuance of warrants of distraint and/or
levy by the BIR Commissioner.
7. Cancellation of the passport of a person
charged with a crime.
8. Issuance of sequestration orders
(considered a provisional remedy).
9. Judicial order which prevents an accused
from traveling abroad in order to
maintain the effectivity of the court’s
jurisdiction.
10. Suspension of a bank’s operations by the
Monetary Board upon a prima finding of
liquidity problems in such bank.
NOTE:
1. The right to counsel is a very basic
requirement of substantive due process
and has to be observed even in
administrative and quasi-judicial bodies.
2. The right to appeal is a statutory
privilege that may be exercised only in
the manner accordance with the law,
except for the minimum appellate
jurisdiction of the Supreme Court provided
in Article VIII Section 5 of the Constitution,
which may not be increased or reduced by
law.
Requisites of SUBSTANTIVE due process:
CODE: I M
1. The INTERESTS of the public generally, as
distinguished from those of a particular
class, requires the interference by the
government and
2. The MEANS employed are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive upon
individuals.
Requisites of a valid ordinance: CODE: Must
NOT CUPPU, Must be GC
1. Must not contravene the Constitution or
any statute
2. Must not be unfair or oppressive
3. Must not be partial or discriminatory
4. Must not prohibit, but may regulate trade
5. Must not be unreasonable
6. Must be general and consistent with public
policy
are
Relative Constitutionality.
The constitutionality of a statute cannot, in every
instance, be determined by a mere comparison of
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its provisions with applicable provisions of the 1. Vagueness and overbreadth are distinct
Constitution, since the statute may be from each other; a vague maw must lack
constitutionally valid as applied to one set of facts charity and precision, while an overbroad
and invalid in its application to another. law need not.
2. Vagueness may be applied to cases
A statute valid at one time may become void at involving speech and also criminal cases
another time because of altered circumstances. (although see contrary ruling that
Thus, if a statute in its practical operation becomes vagueness does not apply to criminal
arbitrary or confiscatory, its validity, even though cases, as held in Estrada v.
affirmed by a former adjudication, is open to Sandiganbayan, G.R. No. 148560)
inquiry and investigation in the light of changed 3. Overbreadth as an analytical tool is
conditions. applicable only to cases involving speech.

Demonstrative of this doctrine is Vernon

Park Realty v. City of Mount
Vernon, where the Court of Appeals of
EQUAL PROTECTION OF THE LAW
New York declared as unreasonable and
1. Concept
arbitrary a zoning ordinance which placed
The equality that it guarantees is legal equality or
the plaintiff's property in a residential
the equality of all persons before the law. It does
district, although it was located in the
not demand absolute equality. It merely requires
center of a business area. Later
that all persons shall be treated alike, under like
amendments to the ordinance then
circumstances and conditions both as to privileges
prohibited the use of the property except
conferred and liabilities enforced.
for parking and storage of automobiles,
and service station within a parking area.
 Equal protection of the laws means that "all
The Court found the ordinance to
persons or things similarly situated should be
constitute an invasion of property rights
treated alike, both as to rights conferred and
which was contrary to constitutional due
responsibilities imposed."
process. (Central Bank Employees vs.
 Natural and juridical persons are entitled to this
BAngko Sentral, G.R No. 148208,
guarantee, but artificial persons are protected only
December 15, 2004)
insofar as their property is concerned.
 Equality of operation of statues does not mean
indiscriminate operation on persons merely as
VOID FOR VAGUENESS DOCTRINE such, but on persons according to the
circumstances surrounding them.
When is law VAGUE?  It guarantees equality, not identity of rights.
1) When it lacks COMPREHENSIVE  It does not forbid discrimination as to persons
STANDARDS and things that are different. What it forbids are
2) That men of common intelligence must distinctions based on impermissible criteria
necessarily GUESS as to its meaning unrelated to a proper legislative purpose.
3) And differ as to its application.
 What the guarantee prohibits is class or
Why is a VAGUE law unconstitutional? discriminatory legislation, which
1) It VIOLATES DUE PROCESS for failure to discriminates against some and favors others
accord persons fair notice of the conduct to when both are similarly situated.
avoid; and
2) It leaves law enforces UNBRIDLED Purpose
DISCRETION in carrying out its provisions.  It prohibits undue favor to anyone,
special privilege for any individual or class,
or hostile discrimination against any party.
OVERBREADTH DOCTRINE: A government It guarantees the equality of all persons
purpose may not be achieved by means which before the law
sweeps unnecessarily broadly are thereby invade
the area of protected freedoms. Conditions or Requisites for valid
classification for purpose of the equal
NOTE: protection clause
The classification must: CODE: SGEE

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1. Rest on SUBSTANTIAL DISTICTIONS
2. Be GERMANE to the purpose of the law
3. NOT LIMITED TO EXISTING CONDITIONS
only
4. APPLY EQUALLY to all members of the
SAME CLASS.
Discrimination against aliens
 Although the guarantee of equal protection
applies to all persons, both citizens and aliens,
statutes may validly limit to citizens exclusively the
enjoyment of rights or privileges connected with
the public domain, the public works, or the
natural resources of the state. The rights and
interests of the state in these things are not simply
political but also proprietary in nature; and so the
citizens may lawfully be given preference over
'aliens in their use or enjoyment.
 But statutes discriminating against aliens in
ordinary private occupations are generally held
void.
 The Constitution, as a general rule, places the
civil rights of aliens on an equal footing with those
of citizens. Their political rights, however, do not
enjoy the same protection.
Classification of citizens
 The general rule is that a legislative act may not
validly classify the citizens of the state on the basis
of their origin, race or parentage.
 But in times of great and imminent danger,
such as a threatened invasion or war, such a
classification is permitted by the Constitution when
the facts so warrant (e.g. discriminatory legislation
against Japanese citizens duringWWII).
 All classifications made by law are generally
presumed to be valid unless shown otherwise by
petitioner
Three Standards of Judicial Review:
a. Rational Basis Test
 Classification bears a reasonable relation to
government's purpose.
 Important when there is no plausible difference
between the disadvantaged class and those not
disadvantaged.
 Also important when the government attaches a
morally irrelevant and negative significance to a
difference between the advantaged and the
disadvantaged.
 Generally not useful since nothing suggests that
legislators make irrational judgments.
b. Strict Scrutiny Test
 Requires the government to show an
overriding or compelling government interest
so great that it justifies the limitation of
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fundamental constitutional rights (the courts make
the decision of WON the purpose of the law makes
the classification
necessary).
 It is applied when the law classifies people of
their ability to exercise a fundamental right.
 Applied also when the classification has a
"suspect" basis "Strict in theory, fatal in fact"
when this standard is applied almost invariably the
statutory classification is struck down for being
violative of the EP clause.
c. Intensified Means Test
 New EP goes beyond two-tiered (first two other
tests) level of review; said to apply the middle-
level test, the balancing test or the equality
test.
 The court accepts the articulated purpose of the
legislation but it should closely scrutinize the
relationship between the classification and the
purpose. based on a spectrum of standards, by
gauging the extent to which constitutionally
guaranteed rights depend upon the affected
individual interest.
 Applicable for certain sensitive but not
suspect classes; certain important but not
fundamental interest.
 Suspect Classes - saddled with such
disabilities, or subject to such a history of
purposeful unequal treatment or relegated to such
a position of political powerlessness, as to
command extraordinary protection from the
majoritarian political process.
Substantial distinctions clearly exist between
elective officials and appointive officials.  The
former occupy their office by virtue of the mandate
of the electorate.  They are elected to an office for
a definite term and may be removed therefrom
only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of
their designation thereto by an appointing
authority.  Some appointive officials hold their
office in a permanent capacity and are entitled to
security of tenure while others serve at the
pleasure of the appointing authority. (Fariñas vs.
Executive Secretary, G.R No. 147387, December
03, 2003)
Sec. 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant or arrest shall be
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issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the person or things to be seized.
Requisites for a valid warrant:
CODE: P J E D One
1) It must be issued upon PROBABLE
CAUSE.
2) The existence of probable cause is
determined personally by the JUDGE.
3) The judge must EXAMINE UNDER
OATH the complainant and the
witnesses he may produce.
4) The warrant must PARTICULARLY
DESCRIBE the place to be searched and
person or things to be seized.
5) It must be in connection with One
specific offense.
“PROBABLE CAUSE”
For the issuance of a warrant of arrest:
Probable cause refers to such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe than an
offense has been committed by the person sought
to be arrested.
For the issuance of a search warrant:
Probable cause would mean such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe than an
offense has been committed and that the objects
sought in connection with the offense are in the
place to be searched.
NOTE: Probable cause for the issuance of a search
warrant does NOT require that the probable guilt of
a specific offender be established, unlike in the
case of a warrant of arrest.
Existence of probable cause “DETERMINED
PERSONALLY BY THE JUDGE”
The judge is NOT required to personally examine
the complainant and his witnesses. What the
Constitution underscores is the exclusive and
personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause
(Soliven v. Makasiar, 167 SCRA 394).
To be sure, the Judge must beyond the
prosecutor’s certification and investigation report
whenever necessary (Lim v. Felix, 187 SCRA 292).
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Procedure:
1. The judge personally evaluates the report
and supporting documents submitted by the
prosecutor regarding the existence of
probable cause and, on the basis thereof,
issue a warrant of arrest or
2. If on the basis thereof, the judge finds no
probable cause, he may disregard the
prosecutor’s report and require the
submission of supporting affidavits of
witnesses to aid him in arriving at the
conclusion as to the existence of probable
cause.
Examination “UNDER OATH OR AFFIRMATION
OF THE COMPLAINANT AND WITNESSES”
1. The oath required must refer to the truth of
the facts within the personal knowledge of
the complainant or his witnesses because the
purpose is to convince the judge of the
existence of probable cause (Alvarez v. CFI,
64 Phil. 33).
2. The true test of sufficiency of an affidavit to
warrant the issuance of a search warrant is
whether it has been drawn in such a manner
that perjury could be charged thereon and
affiant could be held liable for the damages
caused (Alvarez v. CFI).
PARTICULARITY OF DESCRIPTION (SEARCH
WARRANT)
1) A search warrant may be said to particularly
describe the things to be seized when the
description therein is a specific as the
circumstances will ordinary allow or
2) When the description expresses a conclusion
of fact-not of law- by which the warrant
officer may be guided in making the search
and seizure or
3) When the things described are limited to
those which bear a direct relation to the
offense for which the warrant is being issued
(Bache and Co. v. Ruiz, 37 SCRA 823).
JOHN DOE WARRANT
A “John Doe” warrant can satisfy the requirement
of particularly of description if it contains a
descripto personae such as will enable the officer
to identify the accused (People v. Veloso, 48 Phil.
159)
GENERAL WARRANT
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A general warrant is one that does not allege any Searches in these areas do not require
specific acts or omissions constituting the offense the existence of probable cause.
charged in the application for the issuance of the 4) Seizure of evidence in Plain view
warrant. It contravenes the explicit demand of the A. There was a prior valid intrusion;
Bill of Rights that the things to be seized be B. The evidence was inadvertently
particularly described. discovered;
C. The evidence is immediately apparent;
D. Plan view is justified seizure without
VALID WARRANTLESS SEARCH further search. (People v. Valdez, 341
(IM CWAPO) SCRA 25)
1) Search made as an Incident to lawful arrest 5) Waiver of right or Consented Warrantless
A. An officer making an arrest may take Arrest
from the person arrested: A. Requisites of a valid waiver:
i. Any money or property found i. The right exists.
upon his person which was ii. The person had actual or
used in the commission of constructive knowledge of
the offense or the existence of such right.
ii. Was the fruit thereof or iii. There is an actual intention
iii. Which might furnish the to relinquish such right
prisoner with the means of B. The right against unreasonable searches
committing violence or and seizures is a personal right. Thus,
escaping or only the person being searched can
iv. Which may be used in waive the same.
evidence in the trial of the C. Waiver requires a positive act from the
case person. Mere absence of opposition is not
B. The search must be made simultaneously a waiver.
with the arrest and it may only be made D. The search made pursuant to the waiver
in the area within the immediate control must be made within the scope of the
of the person arrested. waiver.
6) Armed Conflict (wartime)
2) Search of Moving vehicles 7) Others
A. This exception is based on exigency.
Thus, if there is time to obtain a warrant A. Conduct of “Areal Target Zone” and
in order to search the vehicle, a warrant Saturation Drives” in the exercise of
must first be obtained. military powers of the President (Guazon
B. The search of a moving vehicle must be vs. De Villa, 181 SCRA 623)
based on probable cause. B. Checkpoints (Valmonte vs. De Villa, 178
SCRA 211)
-Highly regulated by the government, REQUISITES:
the vehicle’s inherent mobility reduces 1. Abnormal times
expectation of privacy. But there must be 2. Limited to visual search
a highly reasonable suspicion amounting 3. Vehicle not searched
to probable cause that the occupant 4. Passengers not subjected to body
committed a criminal activity. search

3) Seizure of goods concealed to avoid Customs C. Stop and Frisk

duties/authorized under the Tariffs and i. Even before an arrest, when an
Customs Code officer is justified in believing
A. The Tariffs and Customs Code authorizes that the individual whose
persons having police authority under suspicious behavior he is
the Code to effect search and seizures investigating at close range is
without a search warrant to enforce presently dangerous, he may
customs laws. conduct a limited protective
B. Exception: A search warrant is required search.
for the search of a dwelling house. ii. The purpose of this limited
C. Searches under this exception include search is not to discover
searches at borders and ports of entry. evidence of a crime but to allow
the officer to pursue his

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investigation without risk or
violence.
D. Exigent and emergency circumstances
best illustrated in People v. De Gracia
(233 SCRA 716), where a warrantless
search was allowed where there was a
prevailing general chaos and disorder
because of an ongoing coup.
E. R.A No. 6235 (AN ACT PROHIBITING
CERTAIN ACTS INIMICAL TO CIVIL
AVIATION, AND FOR OTHER PURPOSES)
NOTE:
1. Checkpoints: as long as the vehicle is
neither searched nor its occupants
subjected to a body search and the
inspection of the vehicle is limited to a
visual search = valid search (Valmonte V.
De Villa)
2. Carroll rule: warrantless search of a vehicle
that can be quickly moved out of the
locality or jurisdiction is valid
3. The 1987 Constitution has returned to the
1935 rule that warrants may be issued
only by judges, but the Commissioner or
Immigration may order the arrest of an
alien in order to carry out a FINAL
deportation order.
INSTANCES WHEN WARRANTLESS ARREST
ARE VALID:
1. When the person to be arrested has
committed, is actually committing, or is
about to commit an offense in the presence
of the arresting officer.
2. When an offense has in fact just been
committed and the arresting officer has
probable cause to believe based on
personal knowledge of facts and
circumstances indicating that the person to
be arrested has committed it.
3. When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined
while his case is pending, or has escaped
while being transferred from one
confinement to another.
4. Waiver of an invalid arrest: When a person
who is detained applies for bail, he is
deemed to have waived any irregularity
which may have occurred in relation to his
arrest. However, when a person who is
detained applies for bail, before he
enters a plea, he is not barred from later
questioning the legality of his arrest.
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5. Hot pursuit
A. The pursuit of the offender by the
arresting officer must be continuous
from the time of the commission of the
offense to the time of the arrest.
B. There must be no supervening event
which breaks the continuity of the
chase.
6. Stop and frisk
When a policeman observes suspicious
activity which leads him to believe that a
crime is about to be committed, he can
investigate the suspicious looking person
and may frisk him for weapons as a
measure of self-protection. Should he find,
however, a weapon on the suspect which is
unlicensed, he can arrest such person then
and there for having committed an offense
in the officer’s presence.
NOTE: Probable cause is the minimal requirement
for the validity of either a warrantless arrest or a
warrantless search.
Warrantless Drug Tests
The constitutionality of Section 36 of Republic Act
No. (RA) 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of
2002,  insofar as it requires mandatory drug testing
of candidates for public office, students of
secondary and tertiary schools, officers and
employees of public and private offices, and
persons charged before the prosecutor's office with
certain offenses, among other personalities, is put
in issue.
As applied to candidates for national office, the
requirement is unconstitutional because it adds to
the exclusive qualifications for such offices
prescribed by the constitution.
In sum, what can reasonably be deduced from the
above two cases and applied to this jurisdiction
are: (1) schools and their administrators stand in
loco parentis with respect to their students; (2)
minor students have contextually fewer rights than
an adult, and are subject to the custody and
supervision of their parents, guardians, and
schools; (3) schools, acting in loco parentis, have a
duty to safeguard the health and well-being of
their students and may adopt such measures as
may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose
conditions on applicants for admission that are fair,
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just, and non-discriminatory.
As to employees, the reasonable test was applied.
As to candidates for local office, the mandatory
character was found to be unreasonable and
oppressive to privacy. Similarly it was declared
unconstitutional for people charged before the
prosecutor’s office. (Social Justice Society vs.
Dangerous Drugs Board, G.R no. 157870,
November 03, 2008).
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceedings.
R.A 4200 (Anti-Wiretapping
Act)
1. The law does not distinguish between
a party to the private communication or
a third person. Hence, both a party and
a third person could be held liable
under R.A. 4200 if they commit any of
the prohibited acts under R.A. 4200
(Ramirez v. Ca)
2. The use of a telephone extension to
overhear a private conversation is not
a violation of R.A. 4200 because It is
not similar to any of the prohibited
devices under the law. Also, a
telephone extension is not purposely
installed for the purpose of secretly
intercepting or recording private
communication. (Gaanan v. IAC, 145
SCRA 112)
Types of communication protected:
Letters, messages, telephone calls, telegrams and
the like.
Exclusionary rule:
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Any evidence obtained shall be inadmissible for
any purpose in any proceeding. However, in the
absence of governmental interference, the
protection against unreasonable search and seizure
cannot be extended to acts committed by private
individuals. (People v. Marti, 193 SCRA 57)
Constitutional Right to Privacy
The right to privacy, the right to be left alone, is
protected by the guarantee of due process over
liberty, the right against unreasonable searches
and seizures, and the right to privacy of
communications, liberty of abode, the right to form
associations, and the right against self
incrimination. (Ople v. Torres, 293 SCRA141)
THE RULE ON THE WRIT OF HABEAS DATA
[A.M. No. 08-1-16-SC  dated 22 January
2008.  This Resolution shall take effect on February
2, 2008 following its publication in three (3)
newspapers of general circulation.]
SECTION 1. Habeas Data. – The writ of habeas
data is a remedy available to any person whose
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home and
correspondence of the aggrieved party.
SEC. 2. Who May File. -Any aggrieved party may
file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the fourth
civil degree of consanguinity or affinity, in default
of those mentioned in the preceding paragraph.
SEC. 3. Where to File. – The petition may be filed
with the Regional Trial Court where the petitioner
or respondent resides, or that which has
jurisdiction over the place where the data or
information is gathered, collected or stored, at the
option of the petitioner.
The petition may also be filed with the Supreme
Court or the Court of Appeals or the
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Sandiganbayan when the action concerns public
data files of government offices.
SEC. 4. Where Returnable; Enforceable. – When
the writ is issued by a Regional Trial Court or any
judge thereof, it shall be returnable before such
court or judge.
When issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof,
or to any Regional Trial Court of the place where
the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected or stored.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
any justice thereof, or before the Court of Appeals
or the Sandiganbayan or any of its justices, or to
any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has
jurisdiction over the place where the data or
information is gathered, collected or stored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.
SEC. 5. Docket Fees. – No docket and other lawful
fees shall be required from an indigent petitioner.
The petition of the indigent shall be docketed and
acted upon immediately, without prejudice to
subsequent submission of proof of indigency not
later than fifteen (15) days from the filing of the
petition.
SEC. 6. Petition. – A verified written petition for a
writ of habeas data should contain:
(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or databases,
the government office, and the person in charge,
in possession or in control of the data or
information, if known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction
of the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and
equitable.
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SEC. 7. Issuance of the Writ. – Upon the filing of
the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its
face it ought to issue. The clerk of court shall issue
the writ under the seal of the court and cause it to
be served within three (3) days from its issuance;
or, in case of urgent necessity, the justice or judge
may issue the writ under his or her own hand, and
may deputize any officer or person to serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not be
later than ten (10) work days from the date of its
issuance.
SEC. 8. Penalty for Refusing to Issue or Serve the
Writ. – A clerk of court who refuses to issue the
writ after its allowance, or a deputized person who
refuses to serve the same, shall be punished by
the court, justice or judge for contempt without
prejudice to other disciplinary actions.
SEC. 9. How the Writ Is Served. – The writ shall be
served upon the respondent by the officer or
person deputized by the court, justice or judge
who shall retain a copy on which to make a return
of service. In case the writ cannot be served
personally on the respondent, the rules on
substituted service shall apply.
SEC. 10. Return; Contents. – The respondent shall
file a verified written return together with
supporting affidavits within five (5) work days from
service of the writ, which period may be
reasonably extended by the Court for justifiable
reasons. The return shall, among other things,
contain the following:
(a) The lawful defenses such as national security,
state secrets, privileged communication,
confidentiality of the source of information of
media and others;
(b) In case of respondent in charge, in possession
or in control of the data or information subject of
the petition:
(i) a disclosure of the data or information about
the petitioner, the nature of such data or
information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to
ensure the security and confidentiality of the data
or information; and
(iii) the currency and accuracy of the data or
information held; and
(c) Other allegations relevant to the resolution of
the proceeding.
A general denial of the allegations in the petition
shall not be allowed.
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SEC. 11. Contempt. – The court, justice or judge
may punish with imprisonment or fine a
respondent who commits contempt by making a
false return, or refusing to make a return; or any
person who otherwise disobeys or resists a lawful
process or order of the court.
SEC. 12. When Defenses May Be Heard in
Chambers. – A hearing in chambers may be
conducted where the respondent invokes the
defense that the release of the data or information
in question shall compromise national security or
state secrets, or when the data or information
cannot be divulged to the public due to its nature
or privileged character.
SEC. 13. Prohibited Pleadings and Motions. – The
following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
SEC. 14. Return; Filing. – In case the respondent
fails to file a return, the court, justice or judge
shall proceed to hear the petition ex parte,
granting the petitioner such relief as the petition
may warrant unless the court in its discretion
requires the petitioner to submit evidence.
SEC. 15. Summary Hearing. – The hearing on the
petition shall be summary. However, the court,
justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
SEC. 16. Judgment. – The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence,
the court shall enjoin the act complained of, or
order the deletion, destruction, or rectification of
the erroneous data or information and grant other
relevant reliefs as may be just and equitable;
otherwise, the privilege of the writ shall be denied.
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Upon its finality, the judgment shall be enforced by
the sheriff or any lawful officer as may be
designated by the court, justice or judge within
five (5) work days.
SEC. 17. Return of Service. – The officer who
executed the final judgment shall, within three (3)
days from its enforcement, make a verified return
to the court. The return shall contain a full
statement of the proceedings under the writ and a
complete inventory of the database or information,
or documents and articles inspected, updated,
rectified, or deleted, with copies served on the
petitioner and the respondent.
The officer shall state in the return how the
judgment was enforced and complied with by the
respondent, as well as all objections of the parties
regarding the manner and regularity of the service
of the writ.
SEC. 18. Hearing on Officer’s Return. – The court
shall set the return for hearing with due notice to
the parties and act accordingly.
SEC. 19. Appeal. – Any party may appeal from the
judgment or final order to the Supreme Court
under Rule 45. The appeal may raise questions of
fact or law or both.
The period of appeal shall be five (5) work days
from the date of notice of the judgment or final
order.
The appeal shall be given the same priority as
habeas corpus and amparocases.
SEC. 20. Institution of Separate Actions. – The
filing of a petition for the writ of habeas data shall
not preclude the filing of separate criminal, civil or
administrative actions.
SEC. 21. Consolidation. – When a criminal action is
filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the
criminal action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of
habeas data, the petition shall be consolidated with
the criminal action.
After consolidation, the procedure under this Rule
shall continue to govern the disposition of the
reliefs in the petition.
SEC. 22. Effect of Filing of a Criminal Action. –
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The
reliefs under the writ shall be available to an
aggrieved party by motion in the criminal case.
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The procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of habeas data.
SEC. 23. Substantive Rights. – This Rule shall not
diminish, increase or modify substantive rights.
3. Security of community life may be
protected against incitements to acts of
violence or overthrow by force of orderly
government.

SEC. 24. Suppletory Application of the Rules of

Court. – The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule.
SEC. 25. Effectivity. – This Rule shall take effect on
February 2, 2008 following its publication in three
(3) newspapers of general circulation.
Sec. 4 No law shall be passed abridging the
freedom of speech, of expression, or of the press,
or of the right of the people peaceably to assemble
and petition the government for redress of
grievances.
What are considered protected speech:
Protected speech includes every form of
expression, whether oral, written, tape or disc
recorded. It includes motion pictures as well as
what is known as symbolic speech such as the
wearing of an armband as a symbol of protest.
Peaceful picketing has also been included within
the meaning of speech.
When is a Government control-based
regulation justified?
1. It is within the constitutional power of the
government;
2. It furthers an important or substantial
government interest;
3. The governmental interest is unrelated to
the suppression of free expression; and
4. The incidental restriction is no greater than
is essential to the furtherance of the
interest.
The prohibition of publication of election surveys
shortly before election does not meet the last two
tests. The casual connection of expression to the
asserted government interest makes such interest
related to the suppression of free expression. The
regulation can be more narrowly pursued by
punishing unlawful acts rather than prohibiting
speech.
The COMELEC can confiscate false survey results
by virtue of its power under the Administrative
Code of 1987 to stop false election propaganda
(Social Weather Station v. COMELEC).

Prohibitions under Section 4

1. Prohibition against PRIOR RESTRAINT
2. Prohibition against SUBSEQUENT PUNISHMENT

Examples/forms of prior restraint

A. movie censorship
B. judicial prior restraint = injunction against
publication Standards for allowable subsequent
C. license taxes based on gross receipts for punishment
the privilege of engaging in the business of
advertising in any newspaper
D. flat license fees for the privilege of selling
religious books

When prohibition does not apply (Near v.

Minnesota, 238 US 697)
1. When the nation is at war. Ex: government
can prevent publication about the
number/location of its troops
2. Obscene publications

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Freedom of Speech Unprotected Speech

The doctrine on freedom of speech was formulated
1. LIBEL
TEST CRITERION A. FAIR COMMENT (U.S. Rule). These are
1.Dangerous There should be a RATIONAL statement of OPINION, not of fact, and are
Tendency Test CONNECTION between the not considered actionable, even if the
speech and the evil words used are neither mild nor
apprehended. (Focus on temperate. What is important is that the
CONTENT) opinion is the true and honest opinion of
2. Clear and There should be a clear and the person. The statements are not used to
Present Danger present danger that the attack personalities but to give one’s
Test words when used under such opinion on decisions and actions.
circumstances are of such a
nature as to create a CLEAR Fair commentaries on matters of public
AND PRESENT DANGER that interest are privileged and constitute a
they will bring about the valid defense in an action for libel or
substantive evils that the slander. The doctrine of fair comment
State has a right to prevent. means that while in general, every
(Focus on CONTENT & discreditable imputation publicly made is
CONTEXT) deemed false, because every man is
3. Balancing of The courts should BALANCE presumed innocent until his guilt is
Interests Test the PUBLIC INTEREST served judicially proved, and every false
by legislation on one hand imputation is deemed malicious,
and the FREEDOM OF nevertheless, when the discreditable
SPEECH (or any other imputation is directed against a public
constitutional right) on the person in his public capacity, it is not
other. The courts will then necessarily actionable; unless it be a false
decide where the greater allegation of fact or a comment is an
weight should be placed. expression of opinion, based on facts, then
(Focus on weighing it is immaterial that the opinion happens to
Government and Private be mistaken as long as it might reasonably
interest). be inferred from the facts. (Borjal v. CA,
primarily for the protection of “core” speech, i.e. 301 SCRA 1)
speech which communicates political, social or
religious ideas. These enjoy the same degree of B. OPINIONS. With respect to public
protection. Commercial speech, however, does not. personalities (politicians, actors, anyone
with a connection to a newsworthy event),
opinions can be aired regarding their public
Commercial Speech actuations. Comments on their private
1. A communication which no more than lives, if not germane to their public
purpose a commercial transaction. personae, are not protected.
2. To enjoy protection:
A. It must not be false or misleading: and
B. It should not purpose an illegal 2. OBSCENITY
transaction. A. Test for obscenity (Miller v. California)
3. Even truthful and lawful commercial i. Whether the average person,
speech may be regulated if: applying contemporary community
A. Government has a substantial interest standards would find that the work,
to protect; taken as a whole, appeals to the
B. The regulation directly advances that prurient interest.
interest; and ii. Whether the work depicts or
C. It is not more extensive than is describes, in a patently offensive
necessary to protect than interest. way, sexual conduct, specifically
(Central Hudson Gas and Electric Corp. defined by law.
v. Public Service Commission of NY,
447 US 557)

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iii. Whether the work, taken as a The Court in Chavez elucidated on the

whole, lacks serious literary, distinction between regulation or restriction
artistic, political or scientific value. of protected speech that is content-based
B. Procedure for seizure of allegedly obscene and that which is content-neutral. A
publications content-based restraint is aimed at the
i. Authorities must apply for issuance contents or idea of the expression,
of search warrant. whereas a content-neutral restraint
ii. Court must be convinced that the intends to regulate the time, place, and
materials are obscene. Apply clear manner of the expression under well-
and present danger test. defined standards tailored to serve a
iii. Judge will determine whether they compelling state interest, without restraint
are in fact “obscene” on the message of the expression. Courts
iv. Judge will issue a search warrant. subject content-based restraint to strict
v. Proper action should be filed under scrutiny. (Soriano vs. Laguardia, G.R No.
Art. 201 of the RPC. 164785, April 29, 2009)
vi. Conviction is subject to appeal.
- Expression not subject to prior restraint
is protected expression or high-value
expression. Any content-based prior
Right of Assembly and Petition restraint on protected expression is
unconstitutional without exception. A
1. The standards for allowable impairment of protected expression means what it says –
speech and press also apply to the right of it is absolutely protected from censorship.
assembly and petition. Thus, there can be no prior restraint on
2. Rules on assembly in PUBLIC places public debates on the amendment or
(Reyes v. Bagatsing G.R. No. L-65366): repeal of existing laws, on the ratification
A. Applicant should inform the licensing of treaties, on the imposition of new tax
authority of the date, the public place measures, or on proposed amendments to
where and the time when the assembly the Constitution.
will take place.
B. The application should be filed ahead
- Prior restraint on expression is content-based
of time to enable the public official
if the restraint is aimed at the message or idea
concerned to appraise whether there
of the expression. Courts will subject to strict
are valid objections to the grant of the
scrutiny content-based restraint. If the
permit or to its grant, but in another
content-based prior restraint is directed at
public place. The grant or refusal
protected expression, courts will strike down
should be based on the application of
the restraint as unconstitutional because there
the Clear and Present Danger Test.
can be no content-based prior restraint on
C. If the public authority is of the view
protected expression. The analysis thus turns
that there is an imminent and grave
on whether the prior restraint is content-
danger of a substantive evil, the
based, and if so, whether such restraint is
applicants must be heard on the
directed at protected expression, that is, those
matter.
not falling under any of the recognized
D. The decision of the public authority,
categories of unprotected expression.
whether favorable or adverse, must be
transmitted to the applicants at the
earliest opportunity so that they may, - If the prior restraint is not aimed at the
if they so desire, have resource to the message or idea of the expression, it is
proper judicial authority. content-neutral even if it burdens
3. Rules on assembly in PRIVATE properties: expression. A content-neutral restraint is a
Only the consent of the owner of the restraint which regulates the time, place or
property or person entitled to possession manner of the expression in public places
thereof is required. without any restraint on the content of the
expression. Courts will subject content-
Content-based and Content-neutral neutral restraints to intermediate scrutiny.
Regulations
- An example of a content-neutral restraint
is a permit specifying the date, time and

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route of a rally passing through busy public
streets. A content-neutral prior restraint on
protected expression which does not touch
on the content of the expression enjoys the
presumption of validity and is thus
enforceable subject to appeal to the courts.
Courts will uphold time, place or manner
restraints if they are content-neutral,
narrowly tailored to serve a significant
government interest, and leave open
ample alternative channels of expression.
- In content-neutral prior restraint on
protected speech, there should be no prior
restraint on the content of the expression
itself. Thus, submission of movies or pre-
taped television programs to a government
review board is constitutional only if the
review is for classification and not for
censoring any part of the content of the
submitted materials. However, failure to
submit such materials to the review board
may be penalized without regard to the
content of the materials. The review board
has no power to reject the airing of the
submitted materials. The review board’s
power is only to classify the materials,
whether for general patronage, for adults
only, or for some other classification. The
power to classify expressions applies only
to movies and pre-taped television
programs but not to live television
programs. Any classification of live
television programs necessarily entails
prior restraint on expression.
- Expression that may be subject to prior
restraint is unprotected expression or
low-value expression. (
HECKLER’S VETO
- Occurs when an acting party's right to freedom of
speech is curtailed or restricted by the government
in order to prevent a reacting party's behavior.  financial aid subsidizing parochial schools is
Sec. 5. No law shall be made respecting an
establishment of religion, on prohibiting the free
exercise thereof. The free exercise and enjoyment
of religious profession and worship, without
discrimination of preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.
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Clauses under Section 5
1. Non-establishment clause
2. Free exercise of Religion
1. Non-Establishment Clause
 Rooted in the separation of Church and State
(as reflected in the CONST.: Art. IX-C, sec. 2(5);
Art. VI, sec. 5(2); Art. VI, sec. 29(2))
 The clause prohibits excessive government
entanglement with, endorsement or disapproval of
religion [Victoriano v. Elizalde RopeWorkers Union,
59 SCRA 54 (1974); Lynch v. Donnelly, 465 US
668 (1984) (O'Connor, J., concurring); Allegheny
County v. Greater Pittsburg ACLU, 492 US 574
(1989).]
 The Non-Establishment clause is violated when
the State gives any manifest support to any one
religion, even if nothing is done against the
individual.
 In Everson v. Board of Education (30 US 1), it
was held that non-establishment means that the
State cannot set up a church or pass laws aiding
one religion, all religion, or preferring one religion
over another, or force a person to believe /
disbelieve in any religion.
a.What are NOT permitted by the
Establishment Clause:
1. Prayer and Bible-reading in public schools
 In Engel v. Vitale, 370 U.S. 421 (1967), the SC
disallowed the conducting of an
interdenominational prayer before the start of
classes in public schools as violative of the Non-
Establishment clause.
 In Abington School District v. Schemp, 374 U.S.
203 (1963), it likewise disallowed the reading of a
passage from the bible without comment in public
schools as contrary to the Non- Establishment
clause.
2. Financial subsidy for parochial schools
 Lemon vs. Kurtzman, 403 U.S. 602 – WON
constitutional. HELD: No, it creates excessive
entanglement because program will require
continuous monitoring of schools to ensure they
meet the requirement that only secular programs
are subsidized. Enunciates the Lemon
Test (see above).
3. Religious displays in public spaces
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 County of Allegheny vs. ACLU, 57 L.W. 5045 –
WON display of crèche and menorah in public
building is constitutional. HELD: No for crèche:
prominent setting sends unmistakable message
that gov’t supports Christianity. Yes for menorah:
its setting (combined with a Christmas tree) has a
secular dimension, a recognized tradition.
 Glassroth vs. Moore, 335 F.3d 1282 (11th Cir.
2003) – WON Granite monument of 10
commandments in front of courthouse is
constitutional. HELD: No, display is unmistakably
non-secular. Nothing in its setting de-emphasizes
its religious nature, engenders in viewers a sense
that Christianity is endorsed by the government.
3. Mandatory religious subjects or
prohibition on
4. secular subjects
 Epperson vs. Arkansas, 393 U.S. 97 (1968)
– WON law prohibiting the teaching of evolution in
schools is constitutional.
HELD: No, state may not require schools to tailor
their teaching in accordance with the principles or
prohibitions of any religious sects.
5. Mandatory bible reading in school
 School District vs. Schempp, 374 U.S. 203
– WON bible reading at the opening of school day
is constitutional. HELD: No, the exercise is
religious in character. May not prefer belief over
non-belief.
6. The word “God” in the Pledge of Allegiance
 Newdow vs. US, No.00-16423, 9th Cir. (opinion
amended Feb. 28, 2003) – WON
Pledge of Allegiance containing the word
“God” is constitutional. HELD: No, mandatory
recitation in school would tend to discriminate
against students who are atheists.
b. What are permitted (i.e. EXCEPTIONS to
the Establishment Clause):
1. Tax exemption
Art. VI, Sec. 28 (3). Charitable institutions, churches and
personages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for
religious, charitable, or educational purposes shall be
exempt from taxation.
 The ruling in Bishop of Nueva Segovia v.
Provincial Board, 51 Phil. 352 (1927) is modified to
the extent now that the property must be
"actually, directly and exclusively" used for
religious purposes to be exempt.
2. Operation of sectarian schools
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Art. XIV, Sec. 4(2). Educational institutions, other than
those established by religious groups and mission boards,
shall be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum of
the capital of which is owned by such citizens.
 Foreign ownership of educational institutions
established by religious groups and mission boards
(otherwise citizen or corporation whose capital is
at least 60% citizen owned).
 Administration must be in the hands of Filipinos
who may or may not be sectarian.
3. Religious instruction in public schools
Art. XIV, Sec. 3(3).
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to their
children or wards in public elementary and high schools
within the regular class hours by instructors designated or
approved by the religious authorities of the religion to
which the children or wards belong, without additional
cost to the Government.
Civil Code, Art. 359. The government promotes the full
growth of the faculties of every child. For this purpose, the
government will establish, whenever possible: (1) Schools
in every barrio, municipality and city where optional
religious instruction shall be taught as part of the
curriculum at the option of the parent or guardian.xxx
 Religious instruction permitted during class
hours in elementary and high school
if:
 With written parental/guardian request;
 By instructors approved by religious authority
and;
 Without additional cost to government.
4. Public aid to religion
Art. VI, Sec. 29 (2). No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government
orphanage or leprosarium.
 Financial support permissible for priest,
preacher, minister, or dignitary assigned
to:
-Armed forces.
-Penal institution.
- Government orphanage or
leprosarium.
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5. Postage stamps depicting Philippines as
the site of a significant religious event.
 Alipay vs. Ruiz, 64 Phil. 201 – WON Postage
stamps which promote a Catholic event is
constitutional. HELD: Yes, benefit to religious sect
incidental to promotion of Philippines as a tourist
destination.
6. Government sponsorship of town fiestas
 Garces vs. Estenzo, 104 SCRA 510 – WON
Barangay resolutions regarding barrio fiesta
honoring a patron saint is constitutional. Held: Yes,
traditions which used to be purely religious but
have now acquired secular character are
permissible.
LAW 2
7. Book lending program for students in
parochial schools
 Board of Education vs. Allen, 392 U.S. 236
– WON lending program of books to students in
parochial schools is constitutional. HELD: Yes,
benefit redounds to students and parents not to
any particular sect.
8. Display of crèche in a secular setting
 Lynch vs. Donnely, 465 U.S. 668 (1984) –
WON crèche is constitutional. HELD: Yes, it is
displayed in a secular manner, merely depicts the
origins of the holiday. The Constitution mandates
accommodation and not merely tolerance. Instead
of an absolutist approach, court inquires if the law
or conduct has a secular purpose.
9. Financial support for secular academic
facilities
 Tilton vs. Richardson, 403 U.S. 672 –WON law
granting financial support for expansion of
educational facilities in parochial schools is
constitutional. HELD: Yes, secular purpose –
facilities to be used for secular activities. Since no
constant monitoring there is also no excessive
entanglement (unlike Lemon).
10. Exemption from zoning requirements to
accommodate unique architectural features of
religious buildings
 Martin vs. Corporation of the Presiding
Bishop, 434 Mass. 141 – WON zoning law giving
exemption to religious sect (Mormons building a
tall pointed steeple) is constitutional. HELD: Yes,
court may not determine whether architectural
features are necessary for a particular religion, e.g.
steeple pointing upwards into heaven for Mormons.
c. Tests:
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 Lemon Test – to determine if government
program violates Establishment Clause. (Lemon vs.
Kurtzman, 403 U.S. 602)
i. Statute must have a secular legislative
purpose.
ii. Primary effect must be one that neither
advances nor inhibits religion.
iii. Must not foster excessive entanglement
between government and religion.
F. FREE EXERCISE OF RELIGION
Two aspects: (a) Right to believe, which is
absolute; and (b) right to act according to one’s
beliefs, which may be regulated.
1. Right to believe
 Freedom of religious belief is absolute, it may
not be curtailed.
 “Men may believe what they cannot prove”. (US
vs. Ballard, 322 US 78). Courts may not inquire
into the veracity of the subject of belief but only in
the sincerity of the belief.
2. Right to act according to one’s belief
 May be regulated by police power measures
(subject to Clear and Present Danger Test).
German vs. Barangan, 135 SCRA 514 – the
security of presidential family and their guests
supersedes that of people’s religious freedom to
attend a mass at St. Jude in Malacanang.
5. The following government laws and
policies were justified under free
exercise clause:
a. Exemption from flag salute
 Conscientious Objectors cannot be
compelled to salute the flag. The idea that one
may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed
from one's job or of being expelled from school, is
alien to the conscience of the present generation of
Filipinos who cut their teeth on the Bill of Rights
w/c guarantees their rights to free speech and the
free exercise of religious profession and worship.
[Ebralinag v. Division Superintendent of Schools of
Cebu, 219 SCRA 256 (1993)]
b. Freedom to propagate religious doctrines
 The power to tax the exercise of the privilege is
the power to control or suppress its enjoyment.
Those who can tax the exercise of religious
practice can make its exercise so costly as to
deprive it of the resources necessary for its
maintenance. [American Bible Society v. City of
Manila, 101 P 386 (1957)]
c. Exemption from union shop
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 Neither does the law constitute an
establishment of religion. It has been held that in
order to withstand objections based on this
ground, the statute must have a secular purpose
and that purpose must not directly advance or
diminish the interest of any religion. Congress
acted merely to relieve persons of the burden
imposed by union security agreements. [Victoriano
v. Elizalde Rope Workers Union, 59 SCRA 54
(1974)]
 The free exercise of religious profession or belief
is superior to contract rights. In case of conflict,
the latter must yield to the former. (Gonzalez v.
Central Azucarera de Tarlac Labor Union, 1985;
Basa v. Federacion Obrera, 1974; Victoriano v.
Elizalde Rope Workers Union, 1974)
d. Non-disqualification from local government
office
 For lack of votes, law disqualifying religious
leaders from public office is held valid. As per free
exercise clause it is invalid for it requires a
religious test for qualification. Dean Pangalangan:
There should be no distinction between ordinary
believer and the Pope; if the former can hold
office, why not the latter. [Pamil v. Teleron 86
SCRA 413 (1978).
 In the same year (1978), in McDaniel v. Patty,
435 US 618, the US Supreme Court declared a
similar law to be violative of the free exercise
clause.
4. Tests
a. Clear and Present Danger Test
 The existence of a grave and present danger of
a characterboth grave and imminent, of a serious
evil to public safety, public morals, public health or
any other legitimate interest, that the state has a
right to prevent. (Ebralinag vs. Div.
Superintendent, 219 SCRA 256).
b. Compelling State Interest Test (from a
benevolent neutrality stance)
 Although the morality contemplated by laws is
secular, benevolent neutrality
could allow for accommodation of morality based
on religion, provided it does not offend compelling
state interests. [Estrada v Escritor 408 SCRA 1
(2003)]
 To apply the test:
i. Determine sincerity and centrality of claimed
religious belief and practice.
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ii. Compelling state interest to override religious
belief and practice.
iii. The means adopted in pursuing its interest is
the least restrictive to religious freedom.
c. Conscientious Objector Test
 Deployed in granting exemption from mandatory
exercises, e.g. military service in Cassius Clay vs.
US, 403 US 698 (1971) and flag salute in Ebralinag
vs. Division Superintendent, 219 SCRA 256.
 Establish the following:
i. Conscientiously opposed to war in any form.
ii. Opposition is based upon religious training and
belief.
iii. Objection is sincere.
 Note: Meaning of religious training and belief:
WON it is sincere and meaningful and occupies a
place in the life of its possessor parallel to that
filled by the orthodox belief in God. (US vs.
Seeger, 380 US 163). Expands the meaning of
religion to cover not just recognized sects but also
personal beliefs akin to traditional religion.
Distinction between the clauses (School
District v. Schempp, 374 US 203)
1. The non-establishment clause does not
depend upon any showing of direct
governmental compulsion. It
is violated by the enactment of laws which
establish an official religion whether those
laws operate directly to coerce non-
observing individuals or not. The test of
compliance with the non-establishment
clause can be stated as follows: What are
the purposes and primary effect of the
enactment? If either is the advancement or
inhibition of religion, the law violates the
non-establishment clause. Thus, in order
for a law to comply with the non-
establishment clause, two requisites must
be met:
A. It has a secular legislative
purpose.
B. Its primary effect neither
advances nor inhibits religion.
2. The free exercise of religion clause
withdraws from legislative power the
exertion of any restraint on the free
exercise of religion. In order to show a
violation of this clause, the person affected
must show the coercive effect of the
legislation as it operates against him in the
practice of his religion. While the freedom
to believe (non-establishment) is absolute,
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the moment such belied flows over into

action, it becomes subject to government
regulation. Recognized restrictions on the right of the
people to information:
1. National security matters
2. Intelligence information
Requisites for government aid to be 3. Trade secrets
allowable: 4. Banking transactions
1. It must have a secular legislative purpose; 5. Diplomatic correspondence
2. It must have a primary effect that neither 6. Executive sessions
advances nor inhibits religion; 7. Closed door cabinet meetings
3. It must not require excessive Supreme Court deliberations
entanglement with recipient institutions.
RIGHT MANNER OF
Sec. 6. The liberty of abode and of changing the CURTAILMENT
same within the limits prescribed by law shall not 1. Liberty of abode Lawful order of the court and
be impaired except upon lawful order of the court. within the limits prescribed
Neither shall the right to travel be impaired except by law.
in the interest of national security, public safety or 2. Right to travel May be curtailed even by
public health, as may be provided by law. administrative officer (ex.
passport officer) in the
Rights guaranteed under Section 6: interest of national security,
A. Freedom to choose and change one’s place public safety, or public
of abode. health, as may be provided
B. Freedom to travel within the country and by law.
outside.
Sec. 7. The right of the people to information on
NOTE: The right to travel and the liberty of abode matters of public concern shall be recognized.
are distinct from the right to return to one’s
country, as shown by the fact that the Declaration
of Human Rights and the Covenant on Human Rights guaranteed under Section 7
Rights have separate guarantees for these. Hence, 3. Right to information on matters of public
the right to return to one’s country is not covered concern
by the specific right to travel and liberty of abode. 4. Right to access to official records and
(Marcos v. Manglapus, 177 SCRA 668) documents

Sec. 7. The right of the people to information on Persons entitled to the above rights: Only
matters of public concern shall be recognized. Filipino citizens.

Rights guaranteed under Section 7

1. Right to information on matters of public Discretion of government
concern The government has discretion with respect to the
2. Right to access to official records and authority to determine what matters are of public
documents concern and the authority to determine the
manner of access to them.

Persons entitled to the above rights: Only

Filipino citizens. Recognized restrictions on the right of the
people to information:
8. National security matters
Discretion of government 9. Intelligence information
The government has discretion with respect to the 10. Trade secrets
authority to determine what matters are of public 11. Banking transactions
concern and the authority to determine the 12. Diplomatic correspondence
manner of access to them. 13. Executive sessions

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Political Law Bar Notes
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14. Closed door cabinet meetings
15. Supreme Court deliberations
Sec. 8. The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law, shall not be abridged.
The right to form associations shall not be impaired
without due process of law and is thus an aspect of
the right of liberty. It is also an aspect of the
freedom of contract. In addition, insofar as the
associations may have for their object the
advancement of beliefs and ideas, the freedom of
associations is an aspect of the freedom of speech
and expression, subject to the same limitation.
The right also covers the right not to join as
associations.
Government employees have the right to form
unions. They also have the right to strike, unless
there is a statutory ban on them (i.e. ban on public
school teachers).
Sec. 9. Private property shall not be taken for
public use without just compensation.
domain:
1. The national government
i. Congress
ii. Executive, pursuant to legislation
enacted by Congress
2. Local government units, pursuant to an
ordinance enacted by their respective
legislative bodies (under LGC)
3. Public utilities, as may be delegated by
law.
When is the exercise of the power of eminent
domain necessary?
It is only necessary when the owner does not want
or opposes the sale of his property. Thus, if a valid
contract exists between the government and the
owner, the government cannot exercise the power
of eminent domain as a substitute to the
enforcement of the contract.
Elements of the power of eminent domain
1. There is a TAKING of private property
2. Taking is for PUBLIC USE
3. Payment of JUST COMPENSATION
“TAKING”
A. Elements: CODE: E P A P O
1. The expropriator enters the property
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2. The entrance must not be for a momentary
period, i.e.., it must be permanent
3. Entry is made under warrant or color of
legal authority
4. Property is devoted to Public use
5. Utilization of the property must be in such
a way as to oust the owner and deprive
him of the beneficial enjoyment of his
property.
B. Compensable taking does not need to involve
all the property interests which form part of
the right of ownership. When one or more of
the property rights are appropriated and
applied to a public purpose, there is already a
compensable taking, even if bare title still
remains with the owner.
“PUBLIC USE”
1. Public use, for purposes of expropriation, is
synonymous with public welfare as the
latter term is used in the concept of police
power.
2. Examples of public use include land reform
and socialized housing.
“JUST COMPENSATION”
1. Compensation is just if the owner receives
a sum equivalent to the market value of
his property. Market value is generally
defined as the fair value of the property as
between one who desires to purchase and
one who desires to sell.
2. The point of reference used in determining
fair value is the value at the date of the
taking of the property or the filing of
complaint, whichever came first. Thus,
future potential use of the land is not
considered in computing just
compensation.
Judicial review of the exercise of the power of
eminent domain
1. To determine the adequacy of the
compensation
2. To determine the necessity of the taking
3. To determine the “public use” character of
the taking. However, if the expropriation is
pursuant to specific law passed by
Congress, the courts cannot question the
public use character of the taking.
When municipal property is taken by the
State:
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Compensation is required is the property is a 1. If it is changes the terms and

patrimonial property, that is, property acquired by conditions of a legal contract either as
the municipality with its private funds in its to the time or mode of performance
corporate or private capacity. However, if it is any 2. If it imposes new conditions or
other property such as public buildings or legua dispenses with those expressed
comunal held by the municipality for the State in 3. If it authorizes for its satisfaction
trust for the inhabitants, the State is free to something different from that provided
dispose of it will, without any compensation. in its terms.

A mere change in PROCEDURAL REMEDIES which

Point of reference for valuating a piece of does not change the substance of the contract, and
property which still leaves an efficacious remedy for
General Rule: The value must be that as of the enforcement does NOT impair the obligation of
time of the filing of the complaint for expropriation. contracts.
REGULATION TAKING
Compensation is Just compensation A valid exercise of police power is superior to
not required Title is transferred obligation of contracts.
Title is not Property taken for public use
transferred
Property interest is
restricted or
destroyed Sec. 11. Free access to the courts and quasi-
An exercise of judicial bodies and adequate legal assistance shall
police power, not not be denied to any person by reason of poverty.
for public use
Sec. 12. Rights of person under investigation for
Exception: When the filing of the case comes later the commission of an offense.
than the time of taking and meanwhile the value of
the property has increased because of the use to
which the expropriator has put it, the value is that
of the time of the earlier taking. BUT if the value Rights of person under investigation for the
increased independently of what the expropriator Commission of an offense (Miranda
did, then the value is that of the latter filing of the
case.
POST ARREST RIGHTS OF ACCUSED
NOTE:
1. Even before compensation is given, entry may Right of persons under custodial
be made upon the property condemned. The investigation: Right to silence, to counsel, and to
deposit of money or an equivalent form of warnings.
payment such as government bonds is
necessary and sufficient to satisfy the When rights are available:
requirement. 1. AFTER a person has been taken into
2. Any law fixing the amount of just custody or
compensation is not binding on the courts 2. When a person is otherwise deprived of his
because it is a question of fact which is always freedom of action in any significant way
subject to review by the courts. 3. When a person is merely “invited” for
questioning (R.A. No. 7438)
4. When the investigation is being conducted
REGULATION v. TAKING by the government (police, DOJ, NBI) with
respect to a criminal offense.
5. Signing of arrest reports and booking
Sec. 10. No law impairing the obligation of sheets.
contracts shall be passed.

When does a law impair the obligation of When rights are not available:
contracts: 1. During a police line-up. Exception: Once
there is a move among the investigators to

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Political Law Bar Notes
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elicit admissions or confessions from the
suspect.
2. During administrative investigations.
3. Confessions made by an accused at the
time he voluntarily surrendered to the
police or outside the context of a formal
investigation.
4. Statements made to a private person.
Rights end at the time of the filing of criminal
cases in court:
MIRANDA RIGHTS [Miranda v. Arizona, 384 U.S.
436 (1966)]
Any person under custodial or police investigation
has the right to be informed of the following rights:
1. Right to remain silent
2. Right to be reminded that if he waives his right
to remain silent, anything he says can and will be
used against him.
3. Right to counsel before and during interrogation
4. Right to be reminded that if he cannot afford
counsel, then one will be provided for him by the
state.
5. Even if the person consent to answer questions
without the assistance of counsel, the moment he
asks for a lawyer at any point in the investigation,
the interrogation must cease until an attorney is
present.
6. if the foregoing protections and warnings are
not demonstrated during the trial to have been
observed by the prosecution, no evidence obtained
as a result of the interrogation can be used against
him.
The reading of these rights is no less indispensable
even if the person arrested is a prominent
Constitutional lawyer, as to assure him that his
interrogators are willing to respect his rights
amidst the pressure of custodial investigation.
 The “Miranda rights” are available to avoid
involuntary extrajudicial confession
Right to remain silent
1. Right to have competent and independent
counsel, preferably of his own choice
2. Right to be provided with the services of
counsel if he cannot afford the services of
one.
3. Right to be informed of these rights.
Exclusionary rule
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1. Any confession or admission obtained in
violation of this section shall be
inadmissible in evidence against him (the
accused).
2. Therefore, any evidence obtained by virtue
of an illegally obtained confession in also
inadmissible, being the fruit of a poisonous
tree.
iii. Exclusionary rule a.k.a. FRUIT OF THE
POISONOUS TREE DOCTRINE
Art. III, Sec. 12(3). Any confession or admission
obtained in violation of this or section 17 hereof
shall be inadmissible in evidence against him.
Justice Frankfurter, in Nardone v. US: Once the
primary source is shown to have been unlawfully
obtained, any secondary or derivative evidence is
also inadmissible.
 InPeo. v. Urro, went back to the former rule that
involuntary or coerced confessions, regardless of
their truth, are null and void
 This is not bec. such confessions are unlikely to
be true but bec. the methods used to extract them
offend an underlying principle in the enforcement
of our criminal
law: that ours is an accusatorial and not an
inquisitorial system.
Exceptions to the Exclusionary rule:
1. In Harris v. US, it was held that a confession
obtained w/o complying w/ the Miranda may
nevertheless be presented in evidence to impeach
his credit. Miranda
shield cannot be perverted into a license to use
perjury by way of a defense.
2. In New York v. Quarles, the SC created a "public
safety" exception to the Miranda rule. In such
exigent circumstances, police officers must not be
made to choose bet. giving the warnings at the
risk that public
safety will be endangered.
3. Miranda rule not applicable to confessions
executed before January 17, 1973. [Magtoto v.
Manguera, 63 SCRA 4 (1975)], the date of
effectivity of the 1973 Constitution
4. Not applicable to res gestaestatements [People
v. Dy, 158 SCRA 111 (1988)]
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Political Law Bar Notes
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5. Not applicable to statements given in
administrative investigations [People v. Ayson, 175
SCRA 216 (1989)]
Privilege against self-incrimination
 The right is NOT to "be compelled to be a
witness against himself."
 It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of
inquiry."
 However, the right can be claimed only when
the specific question, incriminatory in character, is
actually put to the witness. It cannot be claimed at
any other time.
 It does not give a witness the right to disregard
a subpoena, to decline to appear before the court
at the time appointed.
 The right against self-incrimination is not self-
executing or automatically operational. It must be
claimed.
 Rights of Defendant in Criminal Case As
Regards Giving of Testimony
A suspect has the following rights in the matter of
his testifying or producing evidence, to wit:
1. BEFORE THE CASE IS FILED IN COURT but
after having been taken into custody the
continuing right to remain silent and to counsel,
and to be informed thereof, not to
be subjected to force, violence, threat, intimidation
or any other means which vitiates the free will;
and to have
evidence obtained in violation of these rights
rejected;
and
2. AFTER THE CASE IS FILED IN COURT
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to
him by such refusal;
c) to testify in his own behalf, subject to cross-
examination by the prosecution;
d) WHILE TESTIFYING, to refuse to answer a
specific question which tends to incriminate him for
some crime other than that for which he is then
prosecuted.
Signing receipts not self-incriminatory
 The receipts for seized items are mandatory on
the part of apprehending and seizing police
officers. They are merely intended to show that the
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items were taken from the accused. [People v.
Boholst 152 SCRA 263 (1987)]
Rights against double jeopardy
No person can be prosecuted twice for the same
offense.
 Requisites:
(1) Valid complaint or information
(2) Filed before a competent court
(3) To which the defendant had pleaded
(4) Defendant was previously acquitted or
convicted, or the case was otherwise terminated
without his express consent (People v. Judge
Pineda, G.R. 44205
)
 When is 2nd prosecution allowed?
supervening death unjustified dismissal
dismissal on motion to quash absence of
jurisdiction
 When is 2nd prosecution prohibited:
(1) dismissal on demurrer
(2) prosecution for the same act
1. Prosecution for supervening death even
after earlier conviction for physical injuries
 When after the 1st prosecution a new fact
supervenes for which the defendant is responsible,
which changes the character of the offense, and,
together with the facts existing at the time,
constitute a new and distinct offense, the accused
could not be said to be in 2nd jeopardy in indicted
for the new offense [Melo v. People, 85 Phil 766
(1950)]
2. Retrial after unjustified dismissal allowed
 If dismissal was void for having been issued
without legal basis, the acquittal bought about by
the dismissal is also void. Hence, no jeopardy can
attach from such acquittal [People v. Jardin]
Double jeopardy for same act
 The constitutional protection against double
jeopardy is available although the prior offense
charged under an ordinance be different from the
offense charged subsequently under a national
statute, provided that both offenses spring from
the same set of acts. [People v. Relova]
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Political Law Bar Notes
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4. Dismissal on motion to quash prevents
jeopardy
 The dismissal on motion to quash does not
amount to an acquittal on the merits, from a legal
standpoint, the defendant is deemed as not having
been charged with the commission of any offense
whatsoever under the defective information.
5. Double jeopardy after dismissal on
demurrer
6. Absence of jurisdiction prevents jeopardy
Requisites of valid waiver of these rights:
1. Made voluntarily, knowingly, and
intelligently
2. Waiver should be made in WRITING
3. Waiver should be made in the PRESENCE
OF COUNSEL.
Test of waiver of Miranda rights
What may be waived: the right to remain
silent and to counsel but not the right to be
given “Miranda warnings” or the right to be
informed of these rights.
 As the warnings are the means of insuring that
the suspect is apprised of his rights so that any
subsequent waiver of his rights can be "voluntary,
knowing and intelligent,"
 Waiver must be in writing, and made in the
presence of counsel (ruling effective only on April
26, 1983. Cannot apply retrospectively to waivers
before that date.)
Requisites for a valid extra-judicial
confession:
1. voluntary
2. made with the assistance of competent and
independent counsel
3. must be express
4. made in writing
5. signed, or if the confessant does not know
how to read and write, thumbmarked by
him (P.v. Olivares, G.R. No. 77865)
CUSTODIAL INVESTIGATION commerce when a
person is taken into custody and signed out as a
suspect in the commission of a crime under
investigation.
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Rights during custodial investigation apply
only against testimonial compulsion and not when
the body of the accused is proposed to be
examined (i.e. urine sample; photographs;
measurements; garments; shoes).
Rep. Act No. 7438
AN ACT DEFINING CERTAIN RIGHTS OF
PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS THE
DUTIES OF THE ARRESTING, DETAINING,
AND INVESTIGATINGOFFICERS AND
PROVIDING PENALTIES FOR VIOLATIONS
THEREOF.
Be it enacted by the Senate and House of
Representatives ofthe Philippines in Congress
assembled:
Section 1.Statement of Policy.--- It is the policy of
the
State to value the dignity of every human being
and guarantee full
respect for human rights.
Sec. 2.Rights of Persons Arrested, Detained, or
under
Custodial Investigation; Duties of Public
Officers.---
(a) Any person arrested, detained or under
custodial investigation shall at all times be assisted
by counsel.
(b) Any public officer or employee, or anyone
acting under his order or in his place, who arrests,
detains or investigates any person for the
commissionof an offense shall inform the latter, in
a language known to and understood by him, of his
rights to remain silent and to have competent and
independent counsel, preferably of his own choice,
who shall at all times be allowed to confer privately
with the person arrested, detained or under
custodial investigation. If such person cannot
afford the services of his own counsel, he must be
provided with
a competent and independent counsel by the
investigating officer.
(c) The custodial investigation report shall be
reduced to writing by the investigating officer,
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Political Law Bar Notes
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provided that before such report is signed, or
thumbmarked if the person arrested or detained
does not know how to read and write, it shall be
read and adequately explained to him by his
counsel or by the assisting counsel provided by the
investigating officer in the language or dialect
known to such arrested or detained person,
otherwise, such investigation report
shall be null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person
arrested, detained or under custodial investigation
shall be in writing and signed by such persons in
the presence of his counsel or in the latter's
absence, upon a valid waiver, and in the presence
of any of the parents, elder brothers and sisters,
his spouse, the municipal mayor, the municipal
judge, district school supervisor, or priest or
minister of the gospelas chosen by him; otherwise,
such extrajudicial confessionshall be inadmissible
in evidence in any proceeding.
(e) Any waiver by a person arrested or detained
under the provisions of Art. 125 of the RPC, or
under custodial investigation, shall be in writing
and signed by such person in the presence of his
counsel; otherwise such waiver shall be null and
void and of no effect.
(f) Any person arrested or detained or under
custodial investigation shall be allowed visits by or
conferences with any member of his immediate
family, or any medical doctor or priest or religious
minister chosen by him or by any member of his
immediate family or by his counsel, or by any
national NGO duly accredited by the CHR or by any
international NGO duly accredited by the Office of
the President. The person's "immediate family"
shall include his or her spouse, fiancé or fiancée,
parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and
guardian or ward.
As used in this Act, "custodial investigation" shall
include the practice of issuing an "invitation" to a
person who is under investigation in connection
with an offense he is suspected to have
committed, without
prejudice to the liability of the "inviting" officer for
any violation of law.
Sec. 3.Assisting Counsel.--- Assisting counsel is
any lawyer, except those directly affected by the
case, those charged with conducting preliminary
investigation or those charged with the prosecution
of crimes. The assisting counsel other than the
government lawyers shall be entitled to the
following fees:
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(a) The amount of P150.00 if the suspected person
is chargeable with light felonies;
(b) The amount of P250.00 if the suspected person
is chargeable with less grave or grave felonies;
(c) The amount of P350.00 if the suspect is
chargeable with a capital offense. The fee for the
assisting counsel shall be paid by the
city or municipality where the custodial
investigation is conducted, provided that if the
municipality or city cannot pay such fee, the
province comprising such municipality or city shall
pay the fee: Provided, That the Municipal or City
Treasurer must certify that no funds are available
to pay the fees of assisting counsel before the
province pays said fees. In the absence of any
lawyer, no custodial investigation shall be
conducted and the suspected person can only be
detained by the investigating officer in accordance
with the provision of Art. 125 of the RPC.
Sec. 4.Penalty Clause.---
(a) Any arresting public officer or employee, or any
investigating officer who fails to inform any person
arrested, detained or under custodial investigation
of his right to remain silent and to have competent
and
independent counsel preferably of his own choice,
shall suffer a fine of P6,000.00 or a penalty of
imprisonment of not less than 8 years but not
more than 10 years, or both. The penalty of
perpetual absolute disqualification shall also be
imposed upon the investigating officer who has
been previously convicted of a similar offense.
The same penalties shall be imposed upon a public
officer or employee, or anyone acting upon orders
of such investigating officer or in his place, who
fails to provide a competent and independent
counsel to a person arrested, detained or under
custodial investigation for the commission of an
offense if the latter cannot afford the services of
his own counsel.
(b) Any person who obstructs, prevents or
prohibits any lawyer, any member of the
immediate family of a person arrested, detained or
under custodial investigation, or any medical
doctor or priest or religious minister or by
hiscounsel, from visiting and conferring privately
chosen by him or by any member of his immediate
family with him, or from examining and treating
him, or from ministering to his spiritual needs, at
any hour of the day or, in urgent cases, of the
night shall suffer the penalty of imprisonment of
not less than 4 years nor more than 6 years, and a
fine of P4,000.00.
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Political Law Bar Notes
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The provisions of the above Section
notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may
undertake such reasonable measures as may be
necessary to secure his safety and prevent his
escape.
Sec. 5.Repealing Clause.--- RA 857, as amended,
is hereby repealed.Other laws, PDs, EOs or rules
and regulations, or parts thereof inconsistent with
the provisions of this Act are repealed or modified
accordingly.
Sec. 6.Effectivity.--- This Act shall take effect 15
days
followingits publication in the OG or in any daily
newspaper of general circulation in the Philippines.
Approved, April 27, 1992.
When do the rights begin to be available?
(1) when the person is already in custody
(2) custodial investigation involves any questioning
initiated by law enforcement
(3) during “critical pre-trial stages” in the criminal
process.
Section 13. Right to Bail
Who are entitled to bail:
1. All persons ACTUALLY DETAINED
2. shall, BEFORE CONVICTION
3. Be entitled to bail.
Who are not entitled to bail:
1. Persons charged with offenses
PUNISHABLE by RECLUSION PERPETUA or
DEATH, when evidence of guilt is strong
2. Persons CONVICTED by the trial court. Bail
is only discretionary pending appeal.
3. Persons who are members of the AFP
facing a court martial.
Other rights in relation to bail.
1. The right to bail shall NOT be impaired
even when the privilege of the writ of
habeas corpus is suspended.
2. Excessive bail shall not be required.
Factors considered in setting the amount of
bail:
1. Ability to post bail
2. Nature of the offense
3. Penalty imposed by law
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4. Character and reputation of the accused
5. Health of the accused
6. Strength of the evidence
7. Probability of appearing at the trial
8. Forfeiture of previous bail bonds
9. Whether accused was a fugitive from
justice when arrested
10. If accused is under bond in other cases
Implicit limitations on the right to bail:
1. The person claiming the right must be in
actual detention or custody of the law.
2. The constitutional right is available only in
criminal cases, not, e.g. in deportation
proceedings.
Waiver of the right to bail:
1. If appellant escapes from prison or
confinement
2. If appellant jumps bail
3. If appellant flees to another country during
the pendency of the appeal
NOTE:
1. Persons charged with offenses punishable
by LIFE IMPRISONMENT, when evidence of
guilt is strong, are likewise not entitled to
bail.
2. Right to bail is not available in the military.
3. Apart from bail, a person may attain
provisional liberty through recognize,
which is an obligation of record entered
into by a third person a court,
guaranteeing the appearance of the
accused for trial. It is in the nature of a
contract between the surety and the state.
Bail – the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before
any court
Bail may be given in the form of
corporate surety
property bond
cash deposit, or
recognizance
Conditions of all kinds of bail :
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Political Law Bar Notes
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1. effective upon approval shall remain in force
at all stages of the case until
cancellation, or
promulgation of any judgment of the RTC,
whether original or appellate
accused shall appear before the proper courts
whenever required by the court or these
Rules;
failure of the accused to appear at the trial
without justification and despite due notice
shall be deemed a waiver of his right to be
present thereat; the trial may proceed in
absentia; and
bondsman shall surrender the accused to the
court for execution of the final judgment.
Note: Absence of the accused out on bail on a
hearing in which he is duly notified is not a
ground to forfeit bail. It is merely a waiver of
the right to be present.
Accused is required to be present only upon
(where absence is ground to forfeit bail)
arraignment (Rule 116, Sec. 1 [b])
identification by witnesses of the prosecution
(Rule 115, Sec. 1 [c])
promulgation of judgment, unless promulgation
allowed in absentia (in case of light offense)
(Rule 120, Sec. 6)
The original papers shall state
the full name and address of the accused
the amount of the undertaking and
the required conditions
passport size photographs taken within the last 6
months showing the face, left and right
profiles of the accused
No person under detention by legal process shall
be released or transferred, except upon
order of the court or
when he is admitted to bail.
When bail a matter of right
before or after conviction by the inferior courts
(Sec. 4, Rule 114; Sec. 13, Art. III, 1987
Constitution)
before conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or
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life imprisonment (Sec. 4, Rule 114; Sec. 13,
Art. III, 1987 Constitution)
Section 13. All persons, except those charged
with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by
law. xxx
Note: The Constitutional right to bail ceases
upon initial conviction. Pending appeal, the
right to bail is merely statutory.
When bail not a matter of right
2. Before conviction by the RTC of an offense
punishable by death, reclusion perpetua, or
life imprisonment (Sec. 13, Art. III, 1987
Constitution, and Sec. 7, Rule 114, RoC) –
see if evidence of guilt is strong
After conviction by the RTC of an offense
punishable by death, reclusion perpetua, or
life imprisonment (Sec. 7, Rule 114, RoC) –
no bail allowed, conviction means evidence
of guilt is strong
After imposition by the RTC of a penalty
exceeding 6 years, but not death, reclusion
perpetua, or life imprisonment – bail
discretionary, but bail not allowed upon a
showing of the following or other similar
circumstances
That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed
the crime aggravated by the
circumstance of reiteration;
That he has previously escaped from legal
confinement, evaded sentence, or
violated the conditions of his bail
without valid justification;
That he committed the offense while under
probation, parole, or under conditional
pardon;
That the circumstances of his case indicate
the probability of flight if released on
bail; or
That there is undue risk that he may
commit another crime during the
pendency of the appeal.
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Political Law Bar Notes
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After imposition by the RTC of a penalty not
exceeding 6 years, whether in its original or
appellate jurisdiction – bail discretionary
The appellate court may, motuproprio or on motion
of any party, review the resolution of the RTC after
notice to the adverse party in either case.
When conviction is appealed, application for bail
may be filed and acted upon by the
Appellate court if
conviction by the trial court changed the
nature of the offense from non-bailable
to bailable, or
the original records have already been
transmitted
Trial court if
the conviction did not change the nature of
the offense, and
before transmittal of the original record to
the appellate court.
Should the court grant the application, the accused
may be allowed to continue on provisional liberty
during the pendency of the appeal under the same
bail subject to the consent of the bondsman.
Meaning of capital offense
 An offense which, under the law existing at the
time of its commission, and at the time of the
application to be admitted to bail, may be punished
by death (Sec. 5 Rule 114 of the
ROC)
 The capital nature of an offense is determined
by the penalty prescribed by law.
 Generally, bail is a matter of right before
conviction, unless the accused is charged with a
capital offense and the evidence of guilt is strong.
[Bravo, Jr. v. Bravo]
At the hearing of an application for bail filed by a
person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or
life imprisonment
the prosecution has the burden of showing that
evidence of guilt is strong
the evidence presented during the bail hearing
shall be considered automatically reproduced
at the trial
but, upon motion of either party, the court may
recall any witness for additional examination
unless the latter
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is dead
outside the Philippines or
otherwise unable to testify.
Note: Excessive bail shall not be required.
Qualifications of Corporate surety:
any domestic or foreign corporation
licensed as a surety and currently authorized to act
as such
bail bond subscribed jointly by the accused and an
officer of the corporation duly authorized by its
BoD.
Property bond – an undertaking constituted as
lien on the real property given as security for the
amount of the bail; within 10 days after the
approval of the bond, the accused shall
cause the annotation of the lien
either
on the certificate of title on file with the
RoD if the land is registered, or
if unregistered, in the Registration Book on
the space provided therefor, in the RoD
for the province or city where the land
lies, and
on the corresponding tax declaration in the
office of the provincial, city and
municipal assessor concerned.
submit to the court his compliance; his failure to
do so shall be sufficient cause for cancellation
of the property bond and his re-arrest and
detention.
Qualifications of sureties in property bond
Each must be a resident owner of real estate
within the Philippines;
Where there is only one surety, his real estate
must be worth at least the amount of the
undertaking;
If there are 2 or more sureties – the aggregate of
the justified sums must be equivalent to the
whole amount of the bail demanded.
every surety must be worth the amount specified
in his own undertaking over and above all just
debts, obligations and property exempt from
execution.
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Political Law Bar Notes
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Justification of sureties:
Every surety shall justify by affidavit taken before
the judge
that he possesses the qualifications
describe the property given as security
stating the
nature of his title
its encumbrances
the number and amount of other bails
entered into by him and still
undischarged, and
his other liabilities
2. The court may examine the sureties upon oath
concerning their sufficiency in such manner as it
may deem proper.
Note: No bail shall be approved unless the
surety is qualified.
Cash as bail:
The accused or any person acting in his behalf may
deposit in cash the amount of bail fixed by the
court, or recommended by the prosecutor who
investigated or filed the case with the nearest
collector of internal revenue or
provincial, city, or municipal treasurer
Upon submission of a proper certificate of deposit
and a written undertaking showing compliance
with the requirements of bail, the accused shall
be discharged from custody.
The money deposited shall be considered as bail
and applied to the payment of fine and costs
while the excess, if any, shall be returned to
the accused or to whoever made the
deposit.
Recognizance
Whenever allowed by law or these Rules, the court
may release a person in custody on his own
recognizance or that of a responsible person.
Bail, when not required:
No bail shall be required when the law or these
Rules so provide.
A person may be released, without prejudice to the
continuation of the trial or the proceedings on
appeal, if he is in custody for a period equal to or
more than
the possible maximum imprisonment prescribed for
the offense charged
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the minimum of the principal penalty prescribed for
the offense charged, without application of the
Indeterminate Sentence Law or any modifying
circumstance, on
a reduced bail or
his own recognizance
If the maximum penalty to which the accused may
be sentenced is destierro, he shall be released
after 30 days of preventive imprisonment.
Where bail filed:
3. not yet charged in court – with any court in
the province, city or municipality where he is
held.
Already charged in court
only be filed in the court where the case is
pending, at any stage, if
the grant of bail is a matter of discretion,
or
the accused seeks to be released on
recognizance
otherwise, Bail may be filed with
the court where the case is pending, or
in the absence or unavailability of the
judge thereof, with any judge in the
province, city, or municipality.
Any RTC judge of, or if no RTC judge is
available, with any inferior court judge
of the place where he was arrested if
he was arrested in a place other than
where the case is pending.
Note: The court must give reasonable
notice of the hearing in the application for
bail to the prosecutor or require him to
submit his recommendation.
After the accused is admitted to bail, the court
may, upon good cause, either
reduce the amount of bail, or .
increase (accused may be committed to custody if
he does not give the increased bail within a
reasonable period)
An accused held to answer a criminal charge, who
is released without bail upon filing of the complaint
or information, may, at any subsequent stage of
the proceedings whenever a strong showing of
guilt appears to the court, be required to give bail
in the amount fixed, or in lieu thereof, committed
to custody.
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Political Law Bar Notes
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Note: This does not violate the constitutional
right of the accused to bail before conviction
because this section applies only to the
accused who is out without bail. There is no
such thing as a constitutional right of the
accused to be out without bail.
Forfeiture of Bail:
When the presence of the accused is required by
the court, his bondsmen shall be notified to
produce him before the court on a given date and
time. If the accused fails to appear in person as
required, his bail shall be declared forfeited and
the bondsmen given 30 days within which to
produce their principal and to show cause why no
judgment should be rendered against them for the
amount of their bail.
Where an accused out on surety bail fails to appear
when required, the bondsman, to avoid liability on
the bond, within 30 days must
produce the accused or give the reason for his
non-production; and
explain why the accused did not appear before the
court when first required to do so.
GR: The court cannot reduce or mitigate the
liability of the bondsmen
Exceptions: The accused has been
surrendered or is acquitted.
Cancellation of Bail:
Cancellation of bail – without prejudice to any
liability on the bail
Upon application of the bondsmen, with due notice
to the prosecutor,
surrender of the accused or
proof of accused’s death.
automatic
acquittal of the accused
dismissal of the case, or
execution of the judgment of conviction.
For the purpose of surrendering the accused, the
bondsmen may
arrest the accused or
cause him to be arrested
by a police officer or any other person of
suitable age and discretion
upon written authority endorsed on a certified
copy of the undertaking
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Note: An accused released on bail may be re-
arrested without the necessity of a warrant if
he attempts to depart from the Philippines
without permission of the court where the
case in pending.
GR: No bail shall be allowed after a judgment of
conviction has become final.
Exception: If before such finality, the accused
applies for probation, he may be allowed
temporary liberty under his bail or recognizance.
Exception to the Exception: In no case shall bail be
allowed after the accused has commenced to serve
sentence.
Court supervision of detainees:
The court shall exercise supervision over all
persons in custody for the purpose of eliminating
unnecessary detention.
The executive judges of the RTCs shall
conduct monthly personal inspections of
provincial, city and
municipal jails and the prisoners within their
respective jurisdictions.
ascertain the number of detainees
inquire on their proper accommodation and
health and
examine the condition of the jail facilities
order the segregation of sexes and of minors
from adults
ensure the observance of the right of detainees
to confer privately with counsel, and
strive to eliminate conditions inimical to the
detainees.
In cities and municipalities to be specified by the
SC, the municipal trial judges or municipal
circuit trial judges shall conduct monthly
personal inspections of municipal jails in their
respective municipalities and submit a report
to the executive judge of the RTC having
jurisdiction therein.
A monthly report of such visitation shall be
submitted by the executive judges to the Court
Administrator which shall state
the total number of detainees
the names of those held for more than 30 days
the duration of detention
the crime charged
the status of the case
the cause for detention, and
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 Dinapol v. Baldado, 225 SCRA 110 (1993) No
petition for bail can be validly entertained for as
long as the applicant is NOT in the custody of the
Political Law Bar Notes law. Since the accused were not yet arrested, and
did not voluntarily submit to the jurisdiction of the
University of Cebu College of Law UCLASS Bar Operations: Political Law Society
trial court, they had no standing in court to file a
motion for bail. Nor did the court have any
other pertinent information. business setting the same for hearing. The
Concerned can
prosecution Citizens
not bev. required
Judge Elma, to prove 241thatSCRAits
Before arraignment, an application for or 84 (1995)
Tucay v. Domagas, 242 SCRA 110 (1995) if
evidence of the applicant’s guilt is strong the
Even
admission to bail shall not bar the accused from Tucay hasv.not
court
where there isDomagas,
yet
no objection242
acquired SCRA
to the grant 110
jurisdiction (1995)
of over
bail, the
the
Even should
where still
applicant.
court theresetisano objection
hearing for to the
the grantfor
petition of
challenging the validity of his arrest or the legality
bail,tothe
bail takecourt should still
into account set a hearing
the guidelines for the
in fixing the
of the warrant issued therefor, or
petition of
amount forthebail to take into account the guidelines
bail.
assailing the regularity or questioning the absence People v. CarlosTheofoffended
in fixing the amount the bail. party has standing
of a preliminary investigation of the charge toPeople v. CarlosThe
question the grantoffended
of the party has standing
bail even if the
against him, to question
accused the grant
was charged with of the bail
a capital even if the
offense.
accusedv.
Marcos was charged
Ruiz, 213 with
SCRA a capital
177 (1992)offense. Absence
The court shall resolve the matter not later than
the start of the trial of the case. of the accused at a stage when his presenceAbsence
Marcos v. Ruiz, 213 SCRA 177 (1992) is not
of the accused
required is not a at ground
a stagewhen his presence
to forfeit the bond.isThe not
Arraignment is a still waiver of the right to
required is not a ground to forfeit
accused is required to appear only in 3 instances the bond. The
preliminary investigation and objections on the
accused is required to appear only in 3 instances
legality of his arrest. arraignment (Rule 116, Sec. 1 [b])
arraignment (Rule 116, Sec. 1 [b])
Cases: promulgation of judgment, unless promulgation
promulgation
allowed in of judgment,
absentia (in case unless promulgation
of light offense)
Feliciano v. Pasicolan, 2 SCRA 888 (1961)
Feliciano v. Pasicolan, 2 SCRA 888 (1961) allowed in
(Rule 120, Sec. 6)absentia (in case of light offense)
Though it is not necessary that a person applying
Though it is not necessary that a person applying (Rule 120, Sec. 6)
for bail wait until an information is filed against
for identification by witnesses of the prosecution (Rule
him,bailhewait until be
an ininformation is filed
should the custody of against
law or identification by[c])
witnesses of the prosecution (Rule
him, he should be in the custody of law or 115, Sec. 1
otherwise deprived of liberty. Only persons who 115, Sec. 1 [c])
otherwise
have beendeprived of liberty. Only persons who
either arrested, detained or otherwise
have been either arrested, detained or
deprived of their liberty can apply for bail. Bail otherwise
deprived
cannot beofapplied
their liberty
for by can applyoffor
an bail. Bail
the wife accused,
cannot
more sobe applied
if the for by
accused is inthe wife of an accused,
hiding.
more so if the accused is in hiding.
Dinapol v. Baldado, 225 SCRA 110 (1993) .No
petition for bail can be validly entertained for as
long as the applicant is NOT in the custody of the
law. Since the accused were not yet arrested, and
did not voluntarily submit to the jurisdiction of the Sec. 14. Rights of an accused
trial court, they had no standing in court to file a
motion for bail. Nor did the court have any Rights of a person charged with a criminal
business setting the same for hearing. The offense
prosecution can not be required to prove that its 1. Rights to due process of law
evidence of the applicant’s guilt is strong if the 2. Right to be presumed innocent
court has not yet acquired jurisdiction over the 3. Right to be heard by himself and counsel
applicant. 4. Right to be informed of the nature and
cause of the accusation against him
5. Right to have a speedy, impartial and
public trial
6. Right to meet the witnesses face to face
7. Right to have compulsory process to
secure the attendance of witnesses and the
Concerned Citizens v. Judge Elma, 241 SCRA production of evidence in his behalf
84 (1995)
Where bail Citizens
Concerned is not a matter
v. Judge of right,
Elma,a241petition
SCRAfor
bail(1995)
should Where
be set for “DUE PROCESS”
84 bail hearing
is not abefore
matterit of
is right,
granted.
a This means that the accused can only be convicted
At the for
petition hearing, the court
bail should be setshould assurebefore
for hearing that the
it by a tribunal which is required to comply with the
isprosecution
granted. Atisthe
afforded
hearing,thetheopportunity
court should to assure
adduce
stringent requirements of the rules of criminal
evidence
that relevant to
the prosecution is the factual
afforded the issue, with the
opportunity to
applicant having relevant
the rightto ofthe
cross-examination and procedure.
adduce evidence factual issue, with
to introduce
the applicant his own the
having evidence in cross-examination
right of rebuttal.
and to introduce his own evidence in rebuttal. “PRESUMPTION OF INNOCENCE”

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The Constitution does not prohibit the legislature
from providing that the proof of certain facts leads
to a prima facie presumption of guilt, provided that
the facts proved have a reasonable connection to
the ultimate fact presumed.
Presumption of guilt should not be conclusive.
“RIGHT TO BE HEARD BY HIMSELF AND
COUNSEL”
The right to be heard includes the following
rights:
1. The right to be present at the trial
A. The right to be present covers the period
form ARRAIGNMENT to PROMULGATION of
sentence.
B. After arraignment, trial may proceed
notwithstanding absence of accused.
Note: Trial in absentia is allowed only if
the accused has been validly arraigned
and the following 2 requisites are met:
i. Accused has been duly
notified; and
ii. His failure to appear is
unjustifiable.
C. The accused may waive the right to be
present at the trial by not showing up.
However, the court can still compel the
attendance of the accused if necessary for
identification purposes. EXEPTION: if the
accused, after arraignment, has stipulated
that he is indeed the person charged with
the offense and named in the information
and that any time a witness refers to a
name by which he is known, the witness is
to be understood as referring to him.
D. While the accused is entitled to be present
during promulgation of judgment, the
absence of his counsel during such
promulgation does not affect its validity.
2. Right to counsel
A. Right to counsel means the right to
EFFECTIVE REPRESENTATION.
B. If the accused appears at arraignment
without counsel, the judge must:
1. Inform the accused that he has a
right to a counsel before
arraignment
2. Ask the accused if he desires the
aid of counsel
3. If the accused desires counsel,
but cannot afford one, a counsel
de oficio must be appointed
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4. If the accused desires to obtain
his own counsel, the court must
give him reasonable time to get
one.
3. Right to an impartial judge
4. Right of confrontation and cross-
examination
5. Right to compulsory process to secure the
attendance of witnesses
“RIGHT TO BE INFORMED OF THE NATURE
AND CAUSE OF ACCUSATION AGAINST HIM”
Purpose of the right:
1. To furnish the accused with a description of
the charge against him as will enable him
to make his defenses
2. To avail himself of his conviction or
acquittal against a further prosecution for
the same cause.
3. To inform the court of the facts alleged.
If the information fails to allege the material
elements of the offense, the accused cannot be
convicted thereof even if the prosecution is able to
present evidence during the trial with respect to
such elements.
The real nature of the crime charged is determined
from the recital of facts in the information. It is not
determined based on the caption or preamble
thereof or from the specification of the provision of
law allegedly violated.
“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
TRIAL”
Factors used in determining whether the right
to a speedy trial has been violated
1. Time expired from the filling of the
information
2. Length of delay involved
3. Reasons for the delay
4. Assertion or non-assertion of the right by
the accused
5. Prejudice caused to the defendant
Effect of dismissal based on the ground of
violation of the accuser’s right to speedy trial
If the dismissal is valid, it amounts to an acquittal
and can be used as basis to claim double jeopardy.
This would be the effect even if the dismissal was
made with the consent of the accused.
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Sec. 16. All persons shall have the right to a

Remedy of the accused if his right to speedy speedy disposition of their cases before all judicial,
trial has been violated quasi-judicial, or administrative bodies.
 He can move for the dismissal of the
case While the rights of an accused only apply to the
 If he distained, he can file a petition for trial phase of criminal cases, the right to a speedy
the issuance of writ of habeas corpus. disposition of cases covers ALL phases of
JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE
proceedings.
Definition of Impartial trial
 The accused is entitled to the “cold
Sec. 17. No person shall be compelled to be a
neutrality of an impartial judge.”
witness against himself.
 It is an element of due process.
Definition of public trial
 The attendance at the trial is open to
When is a question incriminating:
all irrespective of their relationship to
A question tends to incriminate when the answer of
the accused. However, if the evidence
the accused of the witness would establish a fact
to be adduced is “offensive to decency
which would be a necessary link in a chain of
or public morals,” the public may be
evidence to prove the commission of a crime by
excluded.
the accused or the witness.
 The right of the accused to a public
trial is not violated if the hearings are
conducted on Saturdays, either with
Distinction between an accused and an
the consent of the accused or if failed
ordinary witness
to object thereto.
1. An accused can refuse to take the witness
stand altogether by invoking the right
against self-incrimination.
“RIGHT TO MEET WITNESS FACE TO FACE”
2. An ordinary witness cannot refuse to take
Purpose of the right:
stand. He can only refuse to answer
1. To afford the accused an opportunity to
specific question which would incriminate
cross-examine the witness
him in the commission of an offense.
2. To allow the judge the opportunity to
observe the deportment of the witness
Scope of right
1. What is PROHIBITED is the use of physical
Failure of the accused to cross-examine a
or moral compulsion to extort
witness
communication from the witness or to
If the failure of the accused to cross-examine a
otherwise elicit evidence which would not
witness is due to his own fault or was not due to
exist were it not for the actions compelled
the fault of the prosecution, the testimony of the
from the witness.
witness should be excluded.
2. The right does NOT PROHIBIT the
examination of the body of the accused or
the use of findings with respect to his body
When the right to cross-examine is
as physical evidence. Hence, the
demandable
fingerprinting of an accused would not
It is demandable only during trials. Thus, it cannot
violate the right against self-incrimination.
be availed of during preliminary investigations.
However, obtaining a sample of the
Principal EXCEPTIONS to the right of
handwriting of the accused would violate
confrontation
this right if he is charged for falsification.
1. The admissibility of “dying declarations”
3. The accused cannot be compelled to
2. Trial in absentia under Section 14(2)
produce a private document in his
3. With a respect to child testimony
possession which might tend to incriminate
him. However, a third person is custody of
the document may be compelled to
produce it.
Distinction between Section 14 and Section
When the right can be invoked:

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1. In criminal cases
2. In all other government proceedings,
including civil actions and administrative or
legislative investigations.
Who can invoke the right:
Only natural persons. Judicial persons are subject
to the visitorial powers of the state in order to
determine compliance with the conditions of the
charter granted to them.
Sec. 18. Right against involuntary servitude
“INVOLUNTARY SERVITUDE”
It is every condition of enforced or compulsory
service of one to another no matter under what
form such servitude may be disguised.
Exception:
A. Punishment for a crime for which the party
has been duly convicted
B. Personal military or civil service in the
interest of national defense
C. In naval enlistment: a person who enlists
in a merchant ship may be compelled to
remain in service until the end of the
voyage
D. Posse comitatus for the apprehension of
criminals
E. Return to work order issued by the DOLE
Secretary or the President
F. Minors under patria potestas are obliged to
obey their parents.
Sec. 19. Prohibition against cruel, degrading and
inhuman punishment
When is a penalty “cruel, degrading and
inhuman”?
A. A penalty is cruel and inhuman if it
involves torture or lingering suffering. Ex.
Being drawn and quartered.
B. A penalty is degrading if it exposes a
person to public humiliation. Ex. Being
tarred and feathered, then paraded
throughout town.
Standard used:
i. The punishment must not be so severe
as to be degrading to the dignity of
human beings.
ii. It must not be applied arbitrarily.
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iii. It must not be unacceptable to
contemporary society
iv. It must not be excessive, i.e. it must
serve a penal purpose more effectively
than a less severe punishment would.
Excessive fine
A fine is excessive, when under any circumstances,
it is disproportionate to the offense.
NOTE: Fr. Bernas says that the accused cannot be
convicted of the crime to which the punishment is
attached if the court finds that the punishment is
cruel, degrading or inhuman.
Reason: Without a valid penalty, the law is mot a
penal law.
Sec. 20. No person shall be imprisoned for debt or
non-payment of a poll tax.
Definition of “DEBT” under Section 20
1. Debt refers to a CONTRACTUAL obligation,
whether express or implied, resulting in any
liability to pay money. Thus, all other types
of obligations are not within the scope of this
prohibition.
2. Thus, if an accused fails to pay the fine
imposed upon him, this may result in his
subsidiary imprisonment because his liability
is ex delicto and not ex contractu.
A FRAUDULENT debt may result in the
imprisonment of the debtor if:
1) The fraudulent debt constitutes a crime such
as estafa; and
2) The accused has been duly convicted.
Sec. 21. No person shall be twice put in jeopardy
of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to
another prosecution for the same act.
What are the TWO KINDS OF JEOPARDY?
1. First Sentence of Sec. 21: No person shall
be twice put in jeopardy of punishment for
the same offense.
2. Second Sentence: When an act is
punished by a law and an ordinance,
conviction or acquittal under either shall
constitute a bar to another prosecution for
the same act.
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Under the first kind of jeopardy, conviction,
acquittal, or dismissal of the case without the
express consent of the accused will bar a
subsequent prosecution. Under the second kind of
jeopardy, only conviction or acquittal – not
dismissal without the express consent of the
accused – will bar a subsequent prosecution.
Requisites for a valid defense of double
jeopardy: CODE: ATS
1) First jeopardy must have attached prior to
the second.
2) The first jeopardy must have terminated.
3) The second jeopardy must be for the same
offense, one that includes or is necessarily
included in the first offense, or is an
attempt or frustration of the first, or is an
element thereof.
When does jeopardy ATTACH: 1st requisite)
CODE: CICAV
(1) A person is charged
(2) Under a complaint or information sufficient
in form and substance to sustain a
conviction
(3) Before a court of competent jurisdiction
(4) After the person is arraigned
(5) Such person enters a valid plea.
When does jeopardy NOT attach:
1. If information does not charge any offense
2. If, upon pleading guilty, the accused
presents evidence of complete self-
defense, and the court thereafter acquits
him without entering a new plea of not
guilty for accused. There is no valid plea
here.
3. If the information for an offense cognizable
by the RTC is filed with the MTC.
4. If a complaint filed for preliminary
investigation is dismissed.
When does first jeopardy TERMINATE: (2nd
REQUISITE)
(1) Acquittal
(2) Conviction
(3) Dismissal W/O the EXPRESS consent of the
accused
(4) Dismissal on the merits.
Examples of termination of jeopardy:
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1. Dismissal based on violation of the right to
a speedy trial. This amounts to an
acquittal.
2. Dismissal based on a demurer to evidence.
This is a dismissal on the merits.
3. Dismissal on motion of the prosecution,
subsequent to a motion for reinvestigation
filed by the accused.
4. Discharge of an accused to be a state
witness. This amounts to an acquittal.
When can the PROSECUTION appeal from an
order of dismissal:
a. If dismissal is on motion of the accused.
Exception: If motion is based on violation
of the right to a speedy trial or on a
demurrer to evidence.
b. If dismissal does NOT amount to an
acquittal or dismissal on the merits.
c. If the question to be passed upon is purely
legal.
d. If the dismissal violates the right of due
process of the prosecution.
e. If the dismissal was made with grave
abuse of discretion.
What are considered to be the “SAME
OFFENSE”: (under the 1st sentence of Sec. 21)
a. Exact identity between the offenses
charged in the first and second cases.
b. One offense is an attempt to commit or a
frustration of the other offense.
c. One offense is necessarily included or
necessary includes the other.
NOTE: Where a single act results in the violation
of different laws or different provisions of the same
law, the prosecution for one will not bar the other
so long as none of the exceptions apply.
Definition of double jeopardy (2nd sentence of
Sec. 21)
Double jeopardy will result if the act punishable
under the law and the ordinance are the same. For
there to be double jeopardy, it is not necessary
that the offense be the same.
SUPERVENING FACTS
1. Under the Rules of Court, a conviction for an
offense will not bar a prosecution for an
offense which necessarily includes the offense
charged in the former information where:
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A. The graver offense developed due to a
supervening fact arising from the same act
or omission constituting the former charge.
B. The facts constituting the graver offense
became known or were discovered only
after the filing of the former information.
C. The plea of guilty to the lesser offense was
made without the consent of the
prosecutor and the offended party.
2. Under (1)(b), if the facts could have been
discovered by the prosecution but were not
discovered because of the prosecution’s
incompetence, it would not be considered a
supervening event.
Effect of appeal by the accused:
If the accused appeals his conviction, he WAIVES
his right to plead double jeopardy. The whole case
will be open to review by the appellate court. Such
court may even increase the penalties imposed on
the accused by the trial court.
Sec. 22. No ex post facto law or bill of attainder
shall be enacted.
“EX-POST FACTO LAW”
a. One which makes an action done before
the passing of the law, and which was
innocent when done, criminal and punishes
such action.
b. One which aggravates the crime or makes
it greater than when it was committed.
c. One which changes the punishment and
inflicts a greater punishment than that
which the law annexed to the crime when
it was committed.
d. One which alters the legal rules of evidence
and receives less testimony than the law
required at the time of the commission of
the offense in order to convict the accused.
e. One which assumes to regulate civil rights
and remedies only BUT, in effect, imposes
a penalty or deprivation of a right, which,
when, done, was lawful.
f. One which deprives a person accused of a
crime of some lawful protection to which
he has become entitled such as the
protection of a former conviction or
acquittal, or a proclamation of amnesty.
NOTE: The prohibition of ex post facto laws only
applies to retrospective PENAL laws.
Characteristic of an Ex Post Facto Law
1. Refers to criminal matters
2. Retrospective
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3. Causes prejudice to the accused
“BILL OF ATTAINDER”
A. A bill of attainder is a LEGISLATIVE act
which inflicts punishment W/O JUDICIAL
trial.
B. The bill of attainder does not need to be
directed at a specifically named person. It
may also refer to easily ascertainable
members of a group in such a way as to
inflict punishment on them without judicial
trial.
Elements of the bill of attainder:
1. There must be a LAW.
2. The law imposes a PENAL burden on a
NAMED INDIVIDUAL or EASILY
ASCERTAINABLE MEMBERS of a GROUP.
3. The penal burden is imposed DIRECTLY by
the LAW W/O JUDICIAL trial.
G. NON-IMPAIRMENT OF OBLIGATIONS OF
CONTRACTS Art. III, Sec. 10. No law impairing
the obligation of contracts shall be passed. Civil
Code, Art. 1306. The contracting parties may
establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided
they are not contrary to law, morals, good
customs, public order, or public policy.
 Nature of protection
 Purpose: Safeguard the integrity of valid
contractual agreements against unwarranted
interference by the State.
 General Rule: Contracts should be respected
by the legislature and not tampered with by
subsequent laws that will change the intention of
the parties or modify their rights and obligations.
The will of the parties to the contract must prevail.
 Contracts affected
 Affects legal, executed and executory contracts,
which must be valid.
 Limitations
 A contract valid at the time of its execution may
be legally modified or even completely invalidated
by a subsequent law.
 Strict construction. Charters, franchises and
licenses granted by the Government are strictly
construed against the grantees.
 If a law is a proper exercise of the police power,
it will prevail over the contract. This is because
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public welfare is superior to private rights (PNB v.
Remigio, G.R. 78508,
March 21, 1995). Into each contract are read the
provisions of existing law and, always, a
reservation of the police power as long as the
agreement deals with a matter affecting the public
welfare.
 Eminent domain and taxation may also validly
limit the impairment clause.
 Effect of emergency legislation on
contracts
 In a national emergency, such as a protracted
economic depression, the police power may be
exercised to the extent of impairing some of the
rights of parties arising from contracts. However,
such emergency laws are to remain in effect only
during the continuance of the emergency.
 Currency legislation and contracts
 The legislative department has complete
authority to determine the currency of the state
and to prescribe what articles shall be used and
accepted as legal tender in the payment of lawful
obligations.
 Private parties are bound to observe this
governmental authority over the nation's currency
in the execution of their contracts.
 Impairment
 In order to come within the meaning of the
constitutional provision, the obligation of contract
must be impaired by some legislative act (statute,
ordinance, etc.). The act need not be by a
legislative office; but it should be legislative in
nature. Furthermore, the impairment must be
substantial (Philippine Rural Electric Cooperatives
Assoc. v. DILG Secretary, G.R. 143076, June 10,
2003).
 A mere administrative order, not legislative in
nature, may not be considered a cause of
impairment within the scope of the constitutional
guarantee. The guarantee is also not violated by
court decisions.
 The act of impairment is anything which
diminishes the value of the contract. The
legislature may, however, change the remedy or
may prescribe new modes of procedure. The
change does not impair the obligation of contracts
so long as another remedy, just as efficacious, is
provided for the adequate enforcement of the
rights under the contract. (Manila Trading Co v.
Reyes, 1935)
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THE WRIT OF AMPARO
A.M. No. 07-9-12 SC
October 24, 2007
SECTION 1. Petition. – The petition for a writ of
amparo is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or
threats thereof.
SEC. 2. Who May File. – The petition may be
filed by the aggrieved party or by any qualified
person or entity in the following order:
(a) Any member of the immediate family, namely:
the spouse, children and parents of the aggrieved
party;
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the fourth
civil degree of consanguinity or affinity, in default
of those mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association
or institution, if there is no known member of the
immediate family or relative of the aggrieved
party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein.
SEC. 3. Where to File. The petition may be filed on
any day and at any time with the Regional Trial
Court of the place where the threat, act or
omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such
courts. The writ shall be enforceable anywhere in
the Philippines.
When issued by a Regional Trial Court or any judge
thereof, the writ shall be returnable before such
court or judge.
When issued by the Sandiganbayan or the Court of
Appeals or any of their justices, it may be
returnable before such court or any justice thereof,
or to any Regional Trial Court of the place where
the threat, act or omission was committed or any
of its elements occurred.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan
or the Court of Appeals or any of their justices, or
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to any Regional Trial Court of the place where the
threat, act or omission was committed or any of its
elements occurred.
SEC. 4. No Docket Fees. The petitioner shall be
exempted from the payment of the docket and
other lawful fees when filing the petition. The
court, justice or judge shall docket the petition and
act upon it immediately.
SEC. 5. Contents of Petition.– The petition shall
be signed and verified and shall allege the
following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying
the names, personal circumstances, and addresses
of the investigating authority or individuals, as well
as the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by the
petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for the petition may include a
general prayer for other just and equitable reliefs.
SEC. 6. Issuance of the Writ.– Upon the filing of
the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its
face it ought to issue. The clerk of court shall issue
the writ under the seal of the court; or in case of
urgent necessity, the justice or the judge may
issue the writ under his or her own hand, and may
deputize any officer or person to serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not be
later than seven (7) days from the date of its
issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the
Writ. – A clerk of court who refuses to issue the
writ after its allowance, or a deputized person who
refuses to serve the same, shall be punished by
the court, justice or judge for contempt without
prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. – The writ shall
be served upon the respondent by a judicial officer
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or by a person deputized by the court, justice or
judge who shall retain a copy on which to make a
return of service. In case the writ cannot be served
personally on the respondent, the rules on
substituted service shall apply.
SEC. 9. Return Contents. – Within seventy-two
(72) hours after service of the writ, the respondent
shall file a verified written return together with
supporting affidavits which shall, among other
things, contain the following:
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
(b) The steps or actions taken by the respondent
to determine the fate or whereabouts of the
aggrieved party and the person or persons
responsible for the threat, act or omission;
(c) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party; and
(d) If the respondent is a public official or
employee, the return shall further state the actions
that have been or will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the
death or disappearance of the person identified in
the petition which may aid in the prosecution of
the person or persons responsible;
(iii) to identify witnesses and obtain statements
from them concerning the death or disappearance;
(iv) to determine the cause, manner, location and
time of death or disappearance as well as any
pattern or practice that may have brought about
the death or disappearance;
(v) to identify and apprehend the person or
persons involved in the death or disappearance;
and
(vi) to bring the suspected offenders before a
competent court.
The return shall also state other matters relevant
to the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed.
SEC. 10. Defenses not Pleaded Deemed
Waived.— All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions.– The
following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings;
(c) Dilatory motion for postponement;
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(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
SEC. 12. Effect of Failure to File Return.— In case
the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition
ex parte.
SEC. 13. Summary Hearing.— The hearing on the
petition shall be summary. However, the court,
justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus.
SEC. 14. Interim Reliefs.— Upon filing of the
petition or at anytime before final judgment, the
court, justice or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. – The court,
justice or judge, upon motion or motuproprio, may
order that the petitioner or the aggrieved party
and any member of the immediate family be
protected in a government agency or by an
accredited person or private institution capable of
keeping and securing their safety. If the petitioner
is an organization, association or institution
referred to in Section 3(c) of this Rule, the
protection may be extended to the officers
involved.
The Supreme Court shall accredit the persons and
private institutions that shall extend temporary
protection to the petitioner or the aggrieved party
and any member of the immediate family, in
accordance with guidelines which it shall issue.
The accredited persons and private institutions
shall comply with the rules and conditions that
may be imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or
judge, upon verified motion and after due hearing,
may order any person in possession or control of a
designated land or other property, to permit entry
for the purpose of inspecting, measuring,
surveying, or photographing the property or any
relevant object or operation thereon.
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The motion shall state in detail the place or places
to be inspected. It shall be supported by affidavits
or testimonies of witnesses having personal
knowledge of the enforced disappearance or
whereabouts of the aggrieved party.
If the motion is opposed on the ground of national
security or of the privileged nature of the
information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order is
necessary to establish the right of the aggrieved
party alleged to be threatened or violated.
The inspection order shall specify the person or
persons authorized to make the inspection and the
date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.
(c) Production Order. – The court, justice or
judge, upon verified motion and after due hearing,
may order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic
form, which constitute or contain evidence relevant
to the petition or the return, to produce and permit
their inspection, copying or photographing by or on
behalf of the movant.
The motion may be opposed on the ground of
national security or of the privileged nature of the
information, in which case the court, justice or
judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of all
the parties.
(d) Witness Protection Order. – The court, justice
or judge, upon motion or motuproprio, may refer
the witnesses to the Department of Justice for
admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No.
6981. The court, justice or judge may also refer
the witnesses to other government agencies, or to
accredited persons or private institutions capable
of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to
Respondent.– Upon verified motion of the
respondent and after due hearing, the court,
justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of
the preceding section.
A motion for inspection order under this section
shall be supported by affidavits or testimonies of
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witnesses having personal knowledge of the
defenses of the respondent.
SEC. 16. Contempt. – The court, justice or judge
may order the respondent who refuses to make a
return, or who makes a false return, or any person
who otherwise disobeys or resists a lawful process
or order of the court to be punished for contempt.
The contemnor may be imprisoned or imposed a
fine.
SEC. 17. Burden of Proof and Standard of Diligence
Required. – The parties shall establish their
claims by substantial evidence. The respondent
who is a private individual or entity must prove
that ordinary diligence as required by applicable
laws, rules and regulations was observed in the
performance of duty. The respondent who is a
public official or employee must prove that
extraordinary diligence as required by applicable
laws, rules and regulations was observed in the
performance of duty. The respondent public official
or employee cannot invoke the presumption that
official duty has been
SEC. 18. Judgment.— The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence,
the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.
SEC. 19. Appeal.– Any party may appeal from
the final judgment or order to the Supreme Court
under Rule 45. The appeal may raise questions of
fact or law or both. The period of appeal shall be
five (5) working days from the date of notice of the
adverse judgment. The appeal shall be given the
same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The
court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot
proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on
their lives.
A periodic review of the archived cases shall be
made by the amparo court that shall, motuproprio
or upon motion by any party, order their revival
when ready for further proceedings. The petition
shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years
from notice to the petitioner of the order archiving
the case.
The clerks of court shall submit to the Office of the
Court Administrator a consolidated list of archived
cases under this Rule not later than the first week
of January of every year.
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SEC. 21. Institution of Separate Actions.— This
Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action.–
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion
in the criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
SEC. 23. Consolidation.– When a criminal action
is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the
criminal action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the
criminal action. After consolidation, the procedure
under this Rule shall continue to apply to the
disposition of the reliefs in the petition.
SEC. 24. Substantive Rights.— This Rule shall not
diminish, increase or modify substantive rights
recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of
Court. – The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. – This
Rule shall govern cases involving extralegal killings
and enforced disappearances or threats thereof
pending in the trial and appellate courts.
SEC. 27. Effectivity. – This Rule shall take effect on
October 24, 2007, following its publication in three
(3) newspapers of general circulation.
RULE 102: Special Proceedings
HABEAS CORPUS
Sec. 1. To what habeas corpus extends. - Except
as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is
deprived of his liberty, or by which the rightful
custody of any person is withheld from the person
entitled thereto.
Sec. 2. Who may grant the writ. - The writ of
habeas corpus may be granted by the Supreme
Court, or any member thereof, on any day and at
any time, or by the Court of Appeals or any
member thereof in the instances authorized by
law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made
returnable before the court or any member
thereof, or before the Court of First Instance, or
any judge thereof for the hearing and decision on
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the merits. It may also be granted by a Court of
First Instance, or a judge thereof, on any day and
at any time, and returnable before himself,
enforceable only within his judicial district.
Sec. 3. Requisites of application therefor. -
Application for the writ shall be by petition signed
and verified either by the party for whose relief it
is intended, or by some person on his behalf, and
shall set forth:
(a) That the person in whose behalf the application
is made is imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he
is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may
be described by an assumed appellation, and the
person who is served with the writ shall be deemed
the person intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be procured
without impairing the efficiency of the remedy; or,
if the imprisonment or restraint is without any
legal authority, such fact shall appear.
Sec. 4. When writ not allowed or discharge
authorized. - If it appears that the person alleged
to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction
to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if
the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of
any informality or defect in the process, judgment,
or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with
or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful
judgment.
Sec. 5. When the writ must be granted and issued.
- A court or judge authorized to grant the writ
must, when a petition therefor is presented and it
appears that the writ ought to issue, grant the
same forthwith, and immediately thereupon the
clerk of the court shall issue the writ under the seal
of the court; or in case of emergency, the judge
may issue the writ under his own hand, and may
depute any officer or person to serve it.
Sec. 6. To whom writ directed, and what to
require. - In case of imprisonment or restraint by
an officer, the writ shall be directed to him, and
shall command him to have the body of the person
restrained of his liberty before the court or judge
designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a
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person not an officer, the writ shall be directed to
an officer, and shall command him to take and
have the body of the person restrained of his
liberty before the court or judge designated in the
writ at the time and place therein specified, and to
summon the person by whom he is restrained then
and there to appear before said court or judge to
show the cause of the imprisonment or restraint.
Sec. 7. How prisoner designated and writ served. -
The person to be produced should be designated in
the writ by his name, if known, but if his name is
not known he may be otherwise described or
identified. The writ may be served in any province
by the sheriff or other proper officer, or by a
person deputed by the court or judge. Service of
the writ shall be made by leaving the original with
the person to whom it is directed and preserving a
copy on which to make return of service. If that
person cannot be found, or has not the prisoner in
his custody, then the service shall be made on any
other person having or exercising such custody.
Sec. 8. How writ executed and returned. - The
officer to whom the writ is directed shall convey
the person so imprisoned or restrained, and named
in the writ, before the judge allowing the writ, or,
in case of his absence or disability, before some
other judge of the same court, on the day specified
in the writ, unless, from sickness or infirmity of the
person directed to be produced, such person
cannot, without danger, be brought before the
court or judge; and the officer shall make due
return of the writ, together with the day and the
cause of the caption and restraint of such person
according to the command thereof.
Sec. 9. Defect of form. - No writ of habeas corpus
can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody or
under whose restraint the party imprisoned or
restrained is held and the court or judge before
whom he is to be brought.
Sec. 10. Contents of return. - When the person to
be produced is imprisoned or restrained by an
officer, the person who makes the return shall
state therein, and in other cases the person in
whose custody the prisoner is found shall state, in
writing to the court or judge before whom the writ
is returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his
custody or power, or under restraint;
(b) If he has the party in his custody or power, or
under restraint, the authority and the true and
whole cause thereof, set forth at large, with a copy
of the writ, order, execution, or other process, if
any, upon which the party is held;
(c) If the party is in his custody or power or is
restrained by him, and is not produced, particularly
the nature and gravity of the sickness or infirmity
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of such party by reason of which he cannot,
without danger, be brought before the court or
judge;
(d) If he has had the party in his custody or power,
or under restraint, and has transferred such
custody or restraint to another, particularly to
whom, at what time, for what cause, and by what
authority such transfer was made.
Sec. 11. Return to be signed and sworn to. - The
return or statement shall be signed by the person
who makes it; and shall also be sworn to by him if
the prisoner is not produced, and in all other cases
unless the return is made and signed by a sworn
public officer in his official capacity.
Sec. 12. Hearing on return; Adjournments. - When
the writ is returned before one judge, at a time
when the court is in session, he may forthwith
adjourn the case into the court, there to be heard
and determined. The court or judge before whom
the writ is returned or adjourned must immediately
proceed to hear and examine the return, and such
other matters as are properly submitted for
consideration, unless for good cause shown the
hearing is adjourned, in which event the court or
judge shall make such order for the safekeeping of
the person imprisoned or restrained as the nature
of the case requires. If the person imprisoned or
restrained is not produced because of his alleged
sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person cannot
be produced without danger, before proceeding to
hear and dispose of the matter. On the hearing the
court or judge shall disregard matters of form and
technicalities in respect to any warrant or order of
commitment of a court or officer authorized to
commit by law.
Sec. 13. When the return evidence, and when only
a plea. - If it appears that the prisoner is in
custody under a warrant of commitment in
pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint; but
if he is restrained of his liberty by any alleged
private authority, the return shall be considered
only as a plea of the facts therein set forth, and
the party claiming the custody must prove such
facts.
Sec. 14. When person lawfully imprisoned
recommitted, and when let to bail. - If it appears
that the prisoner was lawfully committed, and is
plainly and specifically charged in the warrant of
commitment with an offense punishable by death,
he shall not be released, discharged, or bailed. If
he is lawfully imprisoned or restrained on a charge
of having committed an offense not so punishable,
he may be recommitted to imprisonment or
admitted to bail in the discretion of the court or
judge. If he be admitted to bail, he shall forthwith
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file a bond in such sum as the court or judge
deems reasonable, considering the circumstances
of the prisoner and the nature of the offense
charged, conditioned for his appearance before the
court where the offense is properly cognizable to
abide its order or judgment; and the court or judge
shall certify the proceedings, together with the
bond, forthwith to the proper court. If such bond is
not so filed, the prisoner shall be recommitted to
confinement.
Sec. 15. When prisoner discharged if no appeal. -
When the court or judge has examined into the
cause of caption and restraint of the prisoner, and
is satisfied that he is unlawfully imprisoned or
restrained, he shall forthwith order his discharge
from confinement, but such discharge shall not be
effective until a copy of the order has been served
on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
not desire to appeal, the prisoner shall be forthwith
released.
Sec. 16. Penalty for refusing to issue writ, or for
disobeying the same. -A clerk of a court who
refuses to issue the writ after allowance thereof
and demand therefor, or a person to whom a writ
is directed, who neglects or refuses to obey or
make return of the same according to the
command thereof, or makes false return thereof,
or who, upon demand made by or on behalf of the
prisoner, refuses to deliver to the person
demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recovered in
a proper action, and may also be punished by the
court or judge as for contempt.
Sec. 17. Person discharged not to be again
imprisoned. - A person who is set at liberty upon a
writ of habeas corpus shall not be again
imprisoned for the same offense unless by the
lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of this
rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense, or
pretended offense, any person so set at liberty, or
knowingly aids or assists therein, shall forfeit to
the party aggrieved the sum of one thousand
pesos, to be recovered in a proper action,
notwithstanding any colorablepretense or variation
in the warrant of commitment, and may also be
punished by the court or judge granting writ as for
contempt.
Sec. 18. When prisoner may be removed from one
custody to another. - A person committed to
prison, or in custody of an officer, for any criminal
matter, shall not be removed therefrom into the
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custody of another officer unless by legal process,
or the prisoner be delivered to an inferior officer to
carry to jail, or, by order of the proper court or
judge, be removed from one place to another
within the Philippines for trial, or in case of fire,
epidemic, insurrection, or other necessity or public
calamity; and a person who, after such
commitment, makes, signs, or countersigns any
order for such removal contrary to this section,
shall forfeit to the party aggrieved the sum of one
thousand pesos, to be recovered in a proper
action.
Sec. 19. Record of writ, fees and costs. - The
proceedings upon a writ of habeas corpus shall be
recorded by the clerk of the court, and upon the
final disposition of such proceedings the court or
judge shall make such order as to costs as the
case requires. The fees of officers and witnesses
shall be included in the costs taxed, but no officer
or person shall have the right to demand payment
in advance of any fees to which he is entitled by
virtue of the proceedings. When a person confined
under color of proceedings in a criminal case is
discharged, the costs shall be taxed against the
Republic of the Philippines, and paid out of its
Treasury; when a person in custody by virtue or
under color of proceedings in a civil case is
discharged, the costs shall be taxed against him,
or against the person who signed the application
for the writ, or both, as the court shall direct.
ARTICLE IV – CITIZENSHIP
Who are citizens of the Philippines?
1. Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution
2. Those whose fathers or mothers are
citizens of the Philippines.
3. Those born before January 17, 1973 of
Filipino mothers, who elect Philippine
Citizenship upon reaching the age of
majority.
4. Those who are naturalized in accordance
with the law.
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Modes of acquiring citizenship:
i. Jus Soli – acquisition of citizenship on
the basis of place of birth
ii. Jus Sanguinis – acquisition of
citizenship on the basis of blood
relationship
iii. Naturalization – the legal act of
adopting an alien and clothing him with
the privilege of a native-born citizen.
NOTE: The Philippines follows (2) and
(3)
Election of citizenship under the 1987
Constitution:
 Prior to the 1973 Constitution, if a
Filipina married an alien, she lost her
Filipino citizenship. Hence, her child
would have to elect Filipino citizenship
upon reaching the age of majority.
 Under the 1973 Constitution, however,
children born of Filipino mothers were
already considered Filipinos.
 Therefore, the provision on election of
citizenship under the 1987 Constitution
only applies to those persons who were
born under the 1935 Constitution. In
order for the children to elect Filipino
citizenship, the mothers must have
been Filipinos at the time of their
marriage. So if your mother was a
Filipina who married an alien under the
1935 constitution and you were born
before January 17, 1973, you can elect
Filipino citizenship upon reaching the
age of majority.
When the election must be made:
The election must be made within a reasonable
period after reaching the age of majority – WITHIN
3 YEARS.
Effects of naturalization:
 The legitimate minor children of the
naturalized father become Filipinos as
well.
 The wife also becomes a Filipino
citizen, provided that she does not
have any disqualification which would
bar her from being naturalized.
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Natural-born citizens:
1. Citizens of the Philippines from birth who
do not need to perform any act to acquire
or perfect their Philippine citizenship.
2. Those who elect Philippine citizenship
under Art. IV, Sec. 1(3) of 1987
Constitution.
Marriage of Filipino with an alien:
1. General Rule: The Filipino RETAINS Philippine
citizenship
2. Exception: If, by their act or omission they
are deemed, under the law, to have renounced
it.
How may one lose citizenship (C.A. No. 63):
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing to an oath of allegiance to
the laws or constitution of a foreign
country
4. By serving in the armed forces of an
enemy country
5. By cancellation of certificates of
naturalization
6. By being a deserter of the armed forces of
one’s country
How many one reacquire citizenship:
1. By direct act of Congress
2. By naturalization
3. By repatriation
Re-acquisition of citizenship
Natural-born Filipinos who are deemed to have lost
their citizenship may re-acquire the same via
repatriation proceedings. This involves taking an
oath of allegiance and filling the same with the civil
registry.
RA 9225 – Citizen Retention and Re-
acquisition Act
a. Natural born citizens, who lost their
citizenship by reason of their naturalization as
citizens of a foreign country, are deemed to have
reacquired their Philippine citizenship upon taking
the oath of allegiance to the Republic.
b. Derivative citizenship-the unmarried child
below 18 yrs. Old of those who re-acquired the
citizenship shall likewise be deemed as citizens of
the Philippines.
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Distinguish dual citizenship from dual
allegiance
Dual citizenship arises when, as a result of the
concurrent application of the laws of two or more
states, a person is simultaneously considered a
citizen of those states. Dual allegiance refers to the
situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
states. Dual nationality is involuntary and legal,
while dual allegiance is voluntary and illegal
(Mercado v. Manzano)
Citizenship
Section 1. The following are citizens of the
Philippines:
Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
Those whose fathers or mothers are citizens of the
Philippines;
Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
Those who are naturalized in accordance with law.
Section 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having
to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born
citizens.
Section 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
Section 4. Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their
act or omission they are deemed, under the law, to
have renounced it.
Section 5. Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law.
(1987 Constitution)
Any natural-born citizen who has lost his Philippine
citizenship may acquire a private land up to a
maximum area of five thousand (5,000) square
meters in the case of urban land or three (3)
hectares in the case of rural land to be used by
him/her for business or other purposes. In the
case of married couples, one of them may avail of
the privilege herein granted (please see Republic.
Act 8179, Sec 10)
RA 9225
Section 3. Retention of Philippine Citizenship - Any
provision of law to the contrary notwithstanding,
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natural-born citizenship by reason of their
naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of
allegiance to the Republic:
"I _____________________, solemny swear (or
affrim) that I will support and defend the
Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by the
duly constituted authorities of the Philippines; and
I hereby declare that I recognize and accept the
supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that
I imposed this obligation upon myself voluntarily
without mental reservation or purpose of evasion."
Natural born citizens of the Philippines who, after
the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
Section 4. Derivative Citizenship - The unmarried
child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-
acquire Philippine citizenship upon effectivity of
this Act shall be deemed citizenship of the
Philippines.
Section 5. Civil and Political Rights and Liabilities -
Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant
liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
(1) Those intending to exercise their right of
surffrage must Meet the requirements under
Section 1, Article V of the Constitution, Republic
Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing
laws;
(2) Those seeking elective public in the Philippines
shall meet the qualification for holding such public
office as required by the Constitution and existing
laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship
before any public officer authorized to administer
an oath;
(3) Those appointed to any public office shall
subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
Provided, That they renounce their oath of
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allegiance to the country where they took that
oath;
(4) Those intending to practice their profession in
the Philippines shall apply with the proper
authority for a license or permit to engage in such
practice; and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which they are naturalized
citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the
country which they are naturalized citizens.
3. Exploration, Development and Utilization of
Natural Resources
ARTICLE V- SUFFRAGE
Qualifications: CODE: CD18RR
1. Citizen of the Philippines
2. Not disqualified by law
3. At least 18 years old
4. Resident of the Philippines for at least 1 year
5. Resident of the place wherein he/she proposes
to vote for at least 6 months immediately
preceding the election.
NOTE: No literacy, property or other substantive
requirement can be imposed on the exercises of
suffrage.
Residency requirement
Residency, under Article V has 2 senses:
1. DOMICLE – This is in reference to the 1 year
residency requirement in the Philippines. The
principal elements of domicile – physical
presence in the country and intention to adopt
it as one’s domicile – must concur.
2. TEMPORARY RESIDENCE – This is in reference
to the 6 month residency requirement in the
place where one wants to vote. In this case,
residence can either mean domicile or
temporary residence.
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Disqualifications:
1. Any person sentenced by final judgment to
imprisonment of not less than 1 year, which
disability has not been removed by plenary
pardon, provided, however, That such a person
shall automatically reacquire the right to vote
upon expiration of 5 years after service of
sentence.
2. Any person adjudge by final judgment of
having violated his allegiance to the Republic
of the Philippines.
3. Insane or incompetent persons as declared by
competent authority.
To whom does Absentee Voting apply:
1. Persons who have the qualifications of a voter
but who happen to be temporarily abroad
2. Qualified voters who are in the Philippines but
are temporarily absent from their voting places
ARTICLE VI – THE LEGISLATIVE
DEPARTMENT
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines, which shall consist of a
Senate and a House of Representatives, except to
the extent reserved to the people by the provision
on initiative referendum.
“Legislative Power”
The authority to make laws and alter or repeal
them.
Classification of legislative power:
(O De CO)
a. Original – Possessed by the people in their
sovereign capacity
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b. Delegated – Possessed by Congress and
other legislative bodies by virtue of the
Constitution
c. Constituent – The power to amend of
revise the Constitution
d. Ordinary – The power to pass ordinary
laws
NOTE: The original legislative power of the people
is exercised via initiative and referendum. In this
manner, people can directly propose and enact
laws, or approve or reject any act or law passed by
Congress or a local government unit.
Limits on the legislative power of Congress:
1. Substantive – limitations on the content of
laws. E.g. no law shall be passed
establishing a state religion.
2. Procedural – limitations on the manner of
passing laws. E.g. generally a bill must go
through three readings on three separate
days.
NOTE: Provided that these two limitations are not
exceeded, Congress’ legislative power is plenary.
Corollaries of legislative power:
1. Congress cannot pass irrepealable laws.
Since, Congress’ powers are plenary, and
limited only by the Constitution, any
attempt to limit the powers of future
Congresses via an irrepealable law is not
allowed.
2. Congress, as a general rule, cannot
delegate its legislative power. Since the
people have already delegated legislative
power to Congress, the latter cannot
delegate it any further, under the maxim
delegate potestas non potest delagari
(delegated power may not be delegated).
Exceptions to non-delegability of legislative
power: (PETAL)
a. Congress may delegate tariff powers to the
President
b. Emergency powers delegated by Congress
to the President
c. Delegation to the people through initiative
and referendum
d. Delegation to local governments
e. Delegation to administrative bodies
What may Congress delegate:
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Congress can only delegate, usually to
administrative agencies, RULE-MAKING POWER or
LAW EXECUTION. This involves either of two tasks
for the administrative agencies:
a. “Filling up the details” on an otherwise
complete statute; or
b. Ascertaining the facts necessary to bring a
“contingent” law or provision into actual
operation.
SECTION 2-4: Senate
1. Composition of Senate (Sec. 2)
2. Qualification of Senators (Sec. 3)
3. Term of Office of Senators (Sec. 4)
Composition
24 senators who shall be elected at large by the
qualified voters of the Philippines, as may be
provided by law.
Qualifications of senators
1.) Natural-born citizen;
2.) At least 35 years old on the day of
election;
3.) Able to read and write;
4.) A registered voter; and
5.) Philippine resident for at least 2 years
immediately proceeding the day of the
election.
NOTE: The qualifications of both Senators and
Members of the House are limited to those
provided by the Constitution. Congress cannot, by
law, add or subtract from these qualifications.
Term of Office:
a. No Senator shall serve for more than 2
consecutive terms
b. Voluntary renunciation of office for any
length of time shall not be considered as
an interruption in the continuity of his
service for the full term for which he was
elected.
HOUSE OF REPRESENTATIVES
Composition:
A. Not more than 250 members,
unless otherwise fixed by law;
including
B. Party-list Representatives
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District Representatives:
1.) They shall be elected from legislative
districts apportioned among the provinces,
cities and the Metropolitan Manila Area.
2.) Legislative districts are apportioned in
accordance with the number of inhabitants
of each area an on the basis of a uniform
and progressive ratio.
3.) Each district shall comprise, as far as
practicable, contiguous, compact and
adjacent territory;
4.) Each city with at least 250,000 inhabitants
will be entitled to at least one
representative.
5.) Each province will have at least one
representative.
6.) Legislative districts shall be re-
apportioned by Congress within 3 years
after the return of each census.
7.) The standards used to determine the
apportionment of legislative districts is
meant to prevent ‘gerrymandering’, which
is the formation of a legislative district out
of separated territories so as to favor a
particular candidate or party.
Qualifications
1.) Natural born citizen of the Philippines;
2.) At least 25 years old on the day of the
election;
3.) Able to read and write;
4.) Registered voter in the district he seeks to
represent; and
5.) A resident of such district for at least one year
immediately preceding
the day of the election.
Term of Office
1. Each member of the House shall be elected for
a term of 3 years which shall commence
(unless otherwise provided for by law) at noon
on 30 June next following their election.
2. Voluntary renunciation of office for any length
of time shall not be considered as an
interruption in the continuity of his service for
the full term for which he was elected.
Terms Limitations
No members of the House of Representatives shall
serve for more than 3 consecutive terms.
Distinctions between TERM and TENURE
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A. Definition 1.) Natural born citizen of the Philippines

a) Term: the period during which the elected 2.) At least 25 years of age on the day of the
officer is legally authorized to assume his election (Youth sector nominee must be at
office and exercise the powers thereof. least 25 years but not more than 30 years
b) Tenure: the period during which such old on day of election)
officer actually holds his position. 3.) Able to read and write
4.) Must be a bona fide member of the party
B. Limitation/Possible Reduction he seeks to represent at least ninety days
1. Term CANNOT be reduced. before election day.
2. Tenure MAY, by law, limited. Thus, a
provision which considers an elective office Guidelines for the election of party-list
automatically vacated when the holder representatives:
thereof files a certificate of candidacy for 1. The parties or organizations must
another elective office (except President represent the marginalized and
and Vice President) is valid, as it only underrepresented in section 5 of R.A.
affects the officer’s tenure and NOT his 7941 (Party-List Law);
constitutional term. (This is no longer true 2. Political parties who wish to participate
under the Fair Election Act) must comply with this requirement’
3. The religious sector may not be
represented;
PARTY-LIST REPRESENTATIVES 4. The party or organization must not be
a. Constitute 20% of the total number of disqualified under Section 6 of R.A. 7941
representatives, including those under the i.e. religious sector/organization,
party-list system (thus a maximum of 50 advocates of violence or unlawful means
party-list members of the House) to seek its goal, foreign party
b. However, for 3 consecutive terms from 2 organization;
February 1987 (i.e., the 1987-92, 92-95 5. The party or organization must not be an
and 95-98 terms), 25 seats shall be adjunct of or a project organized or a
allotted to sectoral representatives. Under entity funded or assisted by the
Art. XVIII, Sec. 7, the sectoral government;
representatives are to be appointed by the 6. Its nominees must likewise comply with
President until legislation otherwise the requirement of the law;
provides. 7. Its nominees must likewise be able to
contribute to the formation and enactment
of legislation that will benefit the nation.
Mechanics of the party-list system (Ang Bagong Bayani-OFW Labor Party v.
1) The sectors shall include labor, peasant, COMELEC, GR No. 147589)
fisher-folk, urban poor, indigenous cultural
communities, elderly, handicapped,
women, youth, veterans, overseas PARTY LIST;  ACCREDITATION.  
workers, and professionals. Religious sects,
foreign organizations, and those
Ang Ladlad has sufficiently demonstrated its
advocating violence or unlawful means are
compliance with the legal requirements for
disqualified.
accreditation. Indeed, aside from COMELEC’s moral
2) Registered organizations submit a list of
objection and the belated allegation of non-
candidates in order of priority.
existence, nowhere in the records has the
3) During the elections, these organizations
respondent ever found/ruled that Ang Ladlad is not
are voted for at large.
qualified to register as a party-list organization
4) Those parties getting at least 2% of the
under any of the requisites under RA 7941 or the
total votes cast for the party-list system
guidelines in Ang Bagong Bayani.  Ang Ladlad
shall be entitled to one seat each. Those
LGBT Party vs. Commission on Elections, G.R. No.
obtaining more than 2% shall be given
190582, April 8, 2010.
additional seats in proportion to their total
number of votes, but none of them shall
have more than 3 seats each. PARTY LIST;  MORAL DISAPPROVAL AS
GROUND FOR ACCREDITATION.  

Qualifications of Party-List Representative

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Moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of
homosexuals from participation in the party-list
system. The denial of Ang Ladlad’s registration on
purely moral grounds amounts more to a
statement of dislike and disapproval of
homosexuals, rather than a tool to further any
substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals
themselves as a class, not because of any
particular morally reprehensible act. It is this
selective targeting that implicates our equal
protection clause.
It bears stressing that our finding that COMELEC’s
act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does
not imply that any other law distinguishing
between heterosexuals and homosexuals under
different circumstances would similarly fail. We
disagree with the OSG’s position that homosexuals
are a class in themselves for the purposes of the
equal protection clause. We are not prepared to
single out homosexuals as a separate class
meriting special or differentiated treatment. We
have not received sufficient evidence to this effect,
and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that
it be recognized under the same basis as all other
groups similarly situated, and that the COMELEC
made “an unwarranted and impermissible
classification not justified by the circumstances of
the case.”  Ang Ladlad LGBT Party vs. Commission
on Elections, G.R. No. 190582, April 8, 2010.
PARTY LIST;  SECTORS QUALIFIED.
The COMELEC denied Ang Ladlad’s application for
registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA
7941, nor is it associated with or related to any of
the sectors in the enumeration.
Respondent mistakenly opines that our ruling
in Ang Bagong Bayani stands for the proposition
that only those sectors specifically enumerated in
the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals)
may be registered under the party-list system. As
we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections, “the
enumeration of marginalized and under-
represented sectors is not exclusive”. The crucial
element is not whether a sector is specifically
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enumerated, but whether a particular organization
complies with the requirements of the Constitution
and RA 7941.  Ang Ladlad LGBT Party vs.
Commission on Elections, G.R. No. 190582, April
8, 2010.
Sec. 9. In case of vacancy in the Senate or in the
House of Representatives, a special election may
be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of
the House of Representatives thus elected shall
serve only for the unexpired term.
Special Election (R.A. 6645)
1. No special election will be called if vacancy
occurs:
a. at least eighteen (18) months before the
next regular election for the members of the
Senate;
b. at least one (1) year before the next
regular election members of Congress
2. The particular House of Congress where vacancy
occurs must pass either a resolution if Congress is
in session of the Senate President of the Speaker
must sign a certification, if Congress is not in
session.
a. declaring the existence of vacancy;
b. calling for a special election to be held
within 45 to 90 days from the date of the
resolution or certification.
3. The Senator or representative elected shall
serve only for the unexpired term.
Sec. 10. Salaries of Senators and Members of the
House
Determination of Salaries:
Salaries of Senators and Members of the House of
Representative shall be determined by law.
Rule on increase in salaries: No increase in their
salaries shall take effect unit AFTER the
EXPIRATION OF THE FULL TERM (NOT TENURE) of
all the members of the Senate and the House of
Representatives approving such increase.
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concerned of a potential conflict of interest that

may arise from the filling of a proposed legislation
NOTE: Since the Constitution ‘provides for rules on of which they are authors.
“salaries” and not on ‘emoluments,’ our
distinguished legislators can appropriate for
themselves other sums of money such as travel
allowances, as well as other side ‘benefits.’

Sec. 11. CONGRESSIONAL IMMUNITIES

Sections 13-14: CONGRESSIONAL
DISQUALIFICATIONS:
A. Immunity from arrest:
1. Legislators are privileged from arrest while Disqualifications:
Congress is “in session” (whether regular or
special) with respect to offenses punishable by up
to 6 years of imprisonment.
2. In Congress is in recess, members thereof
may be arrested.
3. The immunity is only with respect to arrest
and NOT to prosecution for criminal offense.

B. Legislative privilege:
1. No member shall be questioned or held
liable in any forum other than his/her respective
Congressional body for any debate or speech in the
Congress or in any Committee thereof
2. Limitation on the privilege:
a) Protection is only against prosecution in
any forum other than Congress itself. Thus, for
inflammatory remarks which are otherwise
privileged, a member may be sanctioned by either
the Senate or the House as the case may be.
b) The ‘speech or debate’ must be made in
performance of their duties as members of
Congress. This includes speeches delivered,
statements made, votes cast, as well as bills
introduced, and other activities done in
performance of their official duties.
c) Congress need NOT be in session when the
utterance is made, as long as it forms part of
‘legislative action.’ i.e. part of the deliberative and
communicative process used to participate in
legislative proceedings in consideration of
proposed legislation or with respect to other
matters with Congress’ jurisdiction

Sec. 12. All Members of the Senate and the House

of Representatives shall, upon assumption of
office, make a full disclosure of their financial and
business interests. They shall notify the House

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1. Suspension
SECTION 15: Regular and Special Sessions a) Concurrence of 2/3 of ALL its members and
b) Shall not exceed 60 days.
2. Expulsion
a) Concurrence of 2/3 of ALL its members.
Difference of Special Session from a Regular
Session DISQUALIFICATION WHEN APPLICABLE
(1) Regular Sessions
 Convenes once every year on the 4th 1. Senator/Member of During his term. If he
Monday of July. the House cannot hold does so, he forfeits his
 Continues to be in session until 30 days any other office or seat
before the start of its next regular session, employment in the
exclusive of Saturdays, Sundays, and legal Government or any
holidays. subdivision, agency or
(2) Special Sessions instrumentality thereof,
 Called by the President at any time when including GOCCS or their
Congress is not in session subsidiaries.
2. Legislators cannot be If the office was
SECTION 16: Officers and Rules appointed to any office created or the
emoluments thereof
1.) Senate President; increased during the
2.) Speaker of the House; and term for which he was
3.) Each House may choose such other officers as elected.
it may deem necessary. 3. Legislators cannot During his term of
personally appear as office.
counsel before any court
Election of Officers of justice, electoral
By a majority vote of all respective members. tribunal, quasi-judicial
and administrative
bodies.
Quorum to do business: 4. Legislators cannot be During his term of
a. Majority of each House shall constitute a financially interested office
quorum. directly or indirectly in
b. A smaller number may adjourn from day to any contract with or in
day and may compel the attendance of any franchise, or special
absent members. privilege granted by the
c. In computing a quorum, members who are Government, or any
outside the country and thus outside of subdivision, agency or
each House’s coercive jurisdiction are not instrumentality thereof,
included. including any GOCCS or
its subsidiary.
5. Legislators cannot When it is for his
Internal Rules: intervene in any matter pecuniary benefit or
1.) Each House shall determine its own before any office of the where he may be
procedural rules. government. called upon to act on
2.) Since this is a power vested in Congress as account of his office.
part of its inherent powers, under the
principle of separation of powers, the
courts cannot intervene in the
implementation of these rules insofar as Congressional Journals and Records:
they affect the members of Congress. 1. The Journal is conclusive upon the courts.
3.) Also, since Congress has the power to 2. BUT an enrolled bill prevails over the
make these rules, it also has the power to contents of the Journal.
ignore them when circumstances so 3. An enrolled bill is the official copy of
require. approved legislation and bears the
certifications of the presiding officers of
each House. Thus, where the certifications
Discipline: are valid and are not withdrawn, the

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contents of the enrolled bill are conclusive
upon the courts as regards the provision of
that particular bill.
Adjournments:
a. Neither House can adjourn for more than 3
days during the time Congress is in session
without the consent of the other House.
b. Neither can they adjourn to any other
place than that where the two houses are
sitting, without the consent of the other.
c. SECTION 17: Electoral Tribunals
The Senate and the House shall each have an
Electoral Tribunal which shall be composed
of:
a. 3 Supreme Court Justices to be designated
by the Chief Justice; &
b. 6 Members of the Senate or House, as the
case may be.
The senior may Justice in the Electoral Tribunal
shall be its Chairman.
NOTE: The congressional members of the ET’s
shall be chosen on the basis of proportional
representation from the political parties and party-
list organizations.
Jurisdiction:
1. Each ET shall be the sole judge of all
COTESTS relating to the election, returns,
and qualifications of their respective
members. This includes determining the
validity or invalidity of a proclamation
declaring a particular candidate as the
winner.
2. An ‘election contest’ is one where a
defeated candidate challenges the
qualification and claims for himself the seat
of a proclaimed winner.
3. In the absence of an election contest, the
ET is without jurisdiction. However, the
power of each House to expel its own
members or even to defer their oath-taking
until their qualifications are determined
may still be exercised even without an
election contest.
Issues regarding the Electoral Tribunals:
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1. Since the ET’s are independent
constitutional bodies, independent even of
the House from which the members are
respectively taken, neither Congress nor
the Courts may interfere with procedural
matters relating to the functions of the
ET’s, such as the setting of deadlines or
filing their election contests with the
respective ETs.
2. The ETs being independent bodies, its
members may not be arbitrarily removed
from their positions in the tribunal by the
parties which they represent. Neither may
they be removed for not voting according
to party lines, since they are acting
independently of Congress.
3. The mere fact that the members of either
the Senate or the House sitting on the ET
are those which are sought to be
disqualified due to the filling of an election
contest against them does not warrant all
of them from being disqualified from sitting
in the ER. The Constitution is quite clear
that the ET must act with both members
from the SC and from the Senate or the
House. If all the legislator-members of the
ET were to be disqualified, the ET would
not be able to fulfill its constitutional
functions.
4. Judicial review of decisions of the ETs may
be had with the SC only insofar as the
decision or resolution was rendered
without or in excess of jurisdiction or with
grave abuse of discretion constituting
denial of due process.
SECTION 18: The Commission on
Appointments
Composition:
a. Senate President as ex-officio chairman;
b. 12 Senators; and
c. 12 Members of the House.
NOTE: The 12 Senators and 12 Representatives
are elected of the basis of proportional
representation from the political parties and party-
list organizations.
Voting/Action
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a. The chairman shall only vote in case of a
tie.
b. The CA shall act on all appointments within
30 session days from their submission to
Congress.
c. The Commission shall rule by a majority
vote of all the Members.
Jurisdiction
1. CA shall confirm the appointments by the
President with respect to the following
positions: (CODE: HAPCOO)
2. Heads of Executive Departments (except if
it is the Vice-President who is appointed to
the post).
3. Ambassadors, other public ministers or
consuls.
4. Other officer whose appointments are
vested in him by the Constitution (e.g.
COMELEC members).
 Congress CANNOT by law prescribe
that the appointment of a person to an
office created by such law shall be
subject to confirmation by the CA.
 Appointments extended by the President
to the above-mentioned positions while
Congress is not in session shall only be
effective until disapproval by the CA or
until the next adjournment of Congress.
Meetings of the CA
1. CA meets only while Congress is in session.
2. Meetings are held either at the call of the
Chairman or a majority of all its members.
3. Since the CA is also an independent
constitutional body, its rules of procedure
are also outside the scope of congressional
powers as well as that of the judiciary.
NOTE: The ET and the CA shall be constituted
within 30 days after the Senate and the House of
Representative shall have been organized with the
election of the President and the Speaker.
SECTION 21-22: Legislative Inquiries
Scope of Legislative Inquires:
1. Either House or any of their committees
may conduct inquires ‘in aid legislation.’
2. “In aid of legislation” does not mean that
there is pending legislation regarding the
subject of the inquiry. In fact, investigation
may be needed for purposes of proposing
future legislation.
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3. If the stated purpose of the investigation is
to determine the existence of violations of
the law, the investigation is no longer ‘in
aid of legislation’ but ‘in aid of
prosecution.’ This violates the principle of
separation of powers and is beyond the
scope of congressional powers.
Enforcement:
a. Since experience has shown that the mere
request for information do not usually
work, Congress has the inherent power to
punish recalcitrant witnesses for contempt,
and may have them incarcerated until such
time that they agree to testify.
b. The continuance of such incarceration only
subsists for the lifetime, or term, of such
body. Once the body ceases to exist after
its final adjournment, the power to
incarcerate ceases to exist as well. Thus,
each ‘Congress’ of the House lasts for only
3 years. But if one is incarcerated by the
Senate it is indefinite because the Senate,
with its staggered terms, is a continuing
body.
c. BUT, in order for a witness to be subject to
this incarceration, the primary requirement
is that the inquiry is within the scope of the
powers of Congress. i.e. it is an aid of
legislation.
d. The materiality of a question is determined
not by its connection to any actually
pending legislation, but by its connection
to the general scope of the inquiry.
e. The power to punish for contempt is
inherent in Congress and this power is sui
generic. It cannot be exercised by local
government units unless they are
expressly authorized to do so.
Limitations:
1. The inquiry must in aid of legislation.
2. The inquiry must be conducted in
accordance with the ‘duly published rules
of procedure’ of the House conducting the
inquiry; and
3. The rights of persons appearing in or
affected by such inquiries shall be
respected. Ex. The right against self-
incrimination.
Question Hour – Appearance of department
heads before Congress:
A. Since members of the executive
department are co-equals with those of the
legislative department, under the principle
of separation of powers, department heads
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cannot be compelled to appear before b. Powers will be subject to restrictions

Congress. Neither may the department prescribed by Congress
heads impose their appearance upon 3. Expiration of emergency powers
Congress. 1. By resolution of Congress or
2. Upon the next adjournment of
B. Department heads may appear before Congress
Congress in the following instances:
1. Upon their own initiative, with the ECTION 24-27, 30-31: Legislation
consent of the President (and of the
House concerned); or
2. Upon the request of either House
Bills that must originate from the House of
(which cannot compel them to attend)
Representatives (Sec. 24) (CODE: A R T Pu Lo
P)
C. The appearance will be conducted in
1. Appropriation bills
EXECUTIVE SESSION when:
2. Revenue bills
1. Required by the security of state or
3. Tariff bills
required by public interest; and
4. Bills authorizing the increase of public debt
2. When the President so states in writing
5. Bills of local application
6. Private bills
NOTE: The Senate may, however, propose or
Question Legislative
concur with amendments.
Hour (Sec. Investigation
22, Article (Sec. 21,
Appropriation bills
VI) Article VI)
1) The primary and specific aim of an
As to persons Only a Any person
appropriation bills is to appropriate a sum of
who may department
money from the public treasury.
appear head
2) Thus, a bill enacting the budget is an
As to who Entire body Committees appropriations bill.
conducts the 3) BUT: A bill creating a new office, and
investigation appropriating funds therefor is NOT an
As to the Matters Any matter for appropriation bill.
subject matter related to the the purpose of
department legislation Revenue Bill
only 1) A revenue bill is one specifically designed to
raise money or revenue through imposition or
levy.
SECTION 23: Declaration of War / Emergency 2) Thus, a bill introducing a new tax in a revenue
Powers bill, but a provision in, for instance, the
1. War Powers Videogram Regulatory Board law imposing a
2. Emergency Powers tax on video rentals does not make the law a
revenue bill.

Bills of local application

Vote requirement: (to declare the existence
A bill of local application, such as one asking for
of a state of war)
the conversion of a municipality into a city, is
3. 2/3 of both Houses, in joint session
deemed to have originated from the House
4. Voting separately
provided that the bill of the House was filed prior
to the filling of the bill in the Senate even if, in the
Emergency powers:
end, the Senate approved its own version.
1. During times of war or other national
emergency, Congress may, BY LAW,
Limitations
authorize the President to exercise powers
A. For appropriation bills:
necessary and proper to carry out a
1) Congress cannot increase the
declared national policy.
appropriations recommended by the
2. Limitations:
President for the operation of the
a. Powers will be exercised for a limited
Government as a specified in the budget.
period only; and

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2) Each provision or enactment in the General
Appropriations Bill must relate specifically
to some particular appropriation therein
and any such provision or enactment must
be limited in its operation to the
appropriation to which it relates.
3) The procedure in approving appropriations
for Congress shall strictly follow the
procedure for approving appropriation for
other departments and agencies.
4) A special appropriations bill must specify
the purpose for which it is intended and
must be supported by funds actually
available as certified by the National
Treasurer or to be raised by corresponding
revenue proposal therein.
5) Transfer or appropriations:
a) Rule: No law shall be passed
authorizing any transfer of
appropriations
b) BUT the following may, BY LAW, be
authorized to AUGMENT any item in
the general appropriations law for their
respective offices from savings in other
items of their respective appropriations
1. President
2. President of the Senate
3. Speaker of the House
Representatives
4. Chief Justice of the Supreme
Court
5. Heads of the Constitutional
Commissions
6) Discretionary funds appropriated for
particular officials shall be:
a) Disbursed only for public purposes;
b) Should be supported by appropriate
vouchers; and
c) Subject to guidelines as may be
prescribed by law.
7) If Congress fails to pass General
Appropriations Bill (GAB) by the end of any
fiscal year:
a) The GAB for the previous year is
deemed reenacted
b) It will remain in full force and effect
until the GAB is passed by Congress
B. For law granting tax exemption:
It should be passed with the concurrence of a
MAJORITY of ALL the members of Congress.
C. For bills in general
1. Every bill shall embrace only one (1) subject,
as expressed in the title thereof
a) As a mandatory requirement
b) The title does not have to be a
complete catalogue of everything
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stated in the bill. It is sufficient if the
title expresses the general subject of
the bill and all the provisions of the
statute are germane to that general
subject.
c) A bill which repeals legislation
regarding the subject matter need not
state in the title that it is repealing the
latter. Thus, a repealing clause in the
bill is considered germane to the
subject matter of the bill.
2. Readings
a) In order to become a law, each bill
must pass three (3) readings in both
Houses.
b) General rule: Each reading shall be
held on separate days & printed copies
thereof in its final form shall be
distributed to its Members three (3)
days before its passage.
c) Exception: If a bill is certified as urgent
by the President as to the necessity of
its immediate enactment to meet a
public calamity or emergency, the 3
readings can be held on the same day.
d) First reading – only the title is read;
the bill is passed to the proper
committee
Second reading – Entire text is read
and debates are held, and
amendments introduced.
Third reading – only the title is read,
no amendments are allowed. Vote shall
be taken immediately thereafter and
the yeas and nays entered in the
journal.
Vote power of President:
1. Every bill, in order to become a law, must be
presented to and signed by the President.
2. If the President does not approve of the bill, he
shall veto the same and return it with his
objections to the House from which is
originated. The House shall enter the
objections in the Journal and proceed to
reconsider it.
3. The President must communicate his decision
to veto within 30 days from the date of receipt
thereof. If he fails to do so, the bill shall
become a law as if he signed it.
4. This rule eliminates the ‘pocket veto’ whereby
the President would simply refuse to act on the
bill.
5. To OVERIDE the veto, at least 2/3 of ALL the
members of each House must agree to pass
the bill. In such case, the veto is overridden
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and becomes a law without need of Limitations: (UP DEP)

presidential approval. 1) The rule of taxation should be UNIFORM
6. ITEM VETO 2) It should be EQUITABLE
a) The President may veto particular items in 3) Congress should evolve a PROGRESSIVE
an appropriation, revenue or tariff bill. system of taxation.
b) This veto will not affect items to which he 4) The power to tax must be exercised for a
does not object. Public purpose because the power exist for the
c) Definition of item general welfare
5) The Due process and equal protection clauses
TYPE OF BILL ITEM of the Constitution should be observed.
1. Revenue/tax bill Subject of the tax and
the tax rate imposed
thereon Delegation of power to fix rates
2. Appropriations bill Indivisible sum 1) Congress may, BY LAW, authorize the
dedicated to a stated President to fix the following:
purpose a) Tariff rates
b) Import and Export Quotas
c) Tonnage and wharfage dues
d) Veto of RIDER d) Other duties imposts
 A rider is a provision which does not Within the framework of the national
relate to a particular appropriation stated development program of the Government
in the bill. 2) The exercise of such power by the President
shall be within the specified limits fixed by
 Since it is an invalid provision under
Congress and subject to such limitations and
Section 25(2), the President may veto it restrictions as it may impose.
as an item.

Constitutional tax exemptions:

General Rule: If the president disapproves a bill 1. The following properties are exempt from REAL
enacted by Congress, he should veto the entire PROPERTY taxes
bill. He is not allowed to veto separate items of a (CODE: Cha Chu M – CA)
bill. a) Charitable institutions
b) Churches, and personages or convents
Exceptions appurtenant thereto
1. Doctrine the Inappropriate Provisions – a c) Mosques
provision that is constitutionally inappropriate d) Non-profit cemeteries; and
for an appropriation bill may be singled for e) All lands, buildings and improvements
veto even if it is not an appropriation or actually, directly and exclusively use for
revenue “item” (Gonzales vs. Macaraig, 191 religious, charitable, or educational
SCRA 452) purposes.
2. Executive Impoundment- refusal of the 2. All revenues and assets of NON-STOCK NON-
President to spend funds already allocated by PROFIT EDUCATIONAL institutions are exempt
Congress for specific purpose. It is the failure from taxes and duties PROVIDED that such
to spend or obligate budget authority of any revenues and assets are actually, directly,
type (Philconsa vs. Enriquez, G.R. No. 113105. exclusively used for educational purposes. (Art.
August 19, 1994) XIV Sec. 4(3))
3. Grants, endowments, donations or
contributions used actually, directly and
Specific limitations on legislation exclusively for educational purposes shall be
1) No law shall be enacted increasing the exempt from tax. This is subject to conditions
Supreme Court’s appellate jurisdiction without prescribed by law. (Art. XIV. Sec. 4(4))
the SC’s advice and concurrence.
2) No law shall be enacted granting titles of
SECTION 29: Power of the Purse
royalty or nobility.

SECTION 28: Power to Tax

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1) No money shall be paid out of the National
Treasury EXCEPT in pursuance of an
appropriation made by law.
a) This places the control of public funds in
the hands of Congress.
b) BUT: This rule does not prohibit continuing
appropriations. e.g. for debt servicing. This
is because the rule does not require yearly,
or annual appropriation.
2) Limitations.
a) Appropriations must be for a PUBLIC
PURPOSE
b) Cannot appropriate public funds or
property, directly or indirectly, in favor of
i. Any sect, church, denomination, or
sectarian institution or system of
religion or
ii. Any priest, preacher, minister, or
other religious teacher or dignitary
as such. EXCEPT if the priest, etc is
assigned to:
1. the Armed Forces; or
2. any penal institution; or
3. government orphanage; or
4. leprosarium
c) BUT the government is not prohibited from
appropriating money for a valid secular
purpose, even if it incidentally benefits a
religion, e.g. appropriations for a national
police force is valid even if the police also
protects the safety of clergymen.
d) ALSO, the temporary use of public property
for religious purposes is valid, as long as
the property is available for all religions
3) Special Funds
a) Money collected on a tax levied for a
special purpose shall be treated as a
special fund and paid out of such
purpose only.
b) Once the special purpose is fulfilled or
abandoned, any balance shall be
transferred to the general funds of the
Government
SECTION 32: Initiative and Referendum
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Initiative: The power of the people to propose
amendments to the Constitution or to propose and
enact legislation called for the purpose.
Referendum: Power of the electorate to approve
or reject legislation through an election called for
the purpose.
Required Petition
a) Should be signed by at least 10% of the
total number of registered voters
b) Every legislative district should be
represented by at least 3% of the
registered voters
c) Petition should be registered
LEGISLATIVE DISTRICT;  POPULATION
REQUIREMENT.  
Petitioners Senator Benigno Simeon C. Aquino III
and Mayor Jesse Robredo seek the nullification as
unconstitutional of Republic Act No. 9716, entitled
“An Act Reapportioning the Composition of the
First (1st) and Second (2nd) Legislative Districts in
the Province of Camarines Sur and Thereby
Creating a New Legislative District From Such
Reapportionment.”
Petitioners contend, citing Section 5(3), Article VI
of the 1987 Constitution, that the reapportionment
introduced by Republic Act No. 9716, runs afoul of
the explicit constitutional standard that requires a
minimum population of two hundred fifty thousand
(250,000) for the creation of a legislative district.
The petitioners claim that the reconfiguration by
Republic Act No. 9716 of the first and second
districts of Camarines Sur is unconstitutional,
because the proposed first district will end up with
a population of less than 250,000 or only 176,383.
The second sentence of Section 5(3), Article VI of
the Constitution, succinctly provides: “Each city
with a population of at least two hundred fifty
thousand, or each province, shall have at least one
representative.”  The provision draws a plain and
clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a
province to a district on the other. For while a
province is entitled to at least a representative,
with nothing mentioned about population, a city
must first meet a population minimum of 250,000
in order to be similarly entitled. Plainly read,
Section 5(3) of the Constitution requires a 250,000
minimum population only for a city to be entitled
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to a representative, but not so for a province.
Senator Benigno Simeon C. Aquino III and Mayor
Jesse Robredo vs. Commission on Elections,  G.R.
No. 189793, April 7, 2010.
ARTICLE VII. THE EXECUTIVE DEPARTMENT
SECTION 1: Executive Power
Scope:
1) Executive power is vested in the President of
the Philippines.
2) The scope of this power is set forth in Art. VII
of the Constitution. But this power is not
limited to those set forth therein. The SC, in
Marcos v. Manglapus, referred to the
RESIDUAL powers of the President as the Chief
Executive of the country, which powers include
others not set forth in the Constitution.
EXAMPLE: The President is immune from suit
and criminal prosecution while he is in office.
3) Privileged of immunity from suit is personal to
the President and may be invoked by him
alone. It may also be waived by the President,
as when he himself files suit.
4) BUT the President CANNOT dispose of state
property unless authorized by law.
NOTE: Marcos vs. Manglapus
1. The President, upon whom executive power is
vested, has unstated residual powers which are
implied from the grant of executive power and
which are necessary for her to comply with her
duties under the Constitution. The powers of the
President are not limited to what are expressly
enumerated in the article on the Executive
Department and in scattered provisions of the
Constitution. This is so, notwithstanding the
avowed intent of the members of the
Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was
a limitation of specific power of the President,
particularly those relating to the commander-in-
chief clause, but not a diminution of the general
grant of executive power.
2. A recognition of the President's implied or
residual powers is tantamount to setting the stage
for another dictatorship. Despite petitioners'
strained analogy, the residual powers of the
President under the Constitution should not be
confused with the power of the President under the
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1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:
“Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the
interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment
requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees,
orders, or letters of instruction, which shall form
part of the law of the land.”
3. There is no similarity between the residual
powers of the President under the 1987
Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No.
6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then,
Amendment No. 6 refers to a grant to the
President of the specific power of legislation.
4. Among the duties of the President under the
Constitution, in compliance with his (or her) oath
of office, is to protect and promote the interest and
welfare of the people. Her decision to bar the
return of the Marcoses and subsequently, the
remains of Mr. Marcos at the present time and
under present circumstances is in compliance with
this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or
with grave abuse of discretion in arriving at this
decision, the Court will not enjoin the
implementation of this decision.
SECTION 2: Qualifications of President
1) Natural-born citizen of the Philippines
2) Registered voter;
3) Able to read and write;
4) At least 40 years old on the day of election
5) Philippine resident for at least 10 years
immediately preceding such election.
NOTE: The Vice-President has the same
qualifications & term of office as the President. He
is elected with & in the same manner as the
President. He may be removed from office in the
same manner as the President.
SECTION 4: Manner of Election / Term of
Office
Manner of Election
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a) The President and Vice-President shall be a) Official salaries are determined by law.
elected by direct vote of the people. b) Salaries cannot be decreased during the
b) Elections return for President and Vice- TENURE of the President and the Vice-
President, as duly certified by the proper President.
Board of Canvassers shall be forwarded to c) Increases take effect only after the
Congress, directed to the Senate President. expiration of the TERM of the incumbent
c) Not later than 30 days after the day of the during which the increase was approved.
election, the certificates shall be opened in d) Prohibited from receiving any other
the presence of both houses of Congress, emolument from the government or any
assembled in joint public session. other source during their TENURE.
d) The Congress, after determining the
authenticity and due execution of the
certificates, shall canvass the votes.
e) The person receiving the highest number SECTION 7-12: Presidential Succession
of votes shall be proclaimed elected.
f) In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of ALL the members of both 1. Vacancies at the beginning of the term
Houses, voting separately. In case this VACANCY SUCCESSOR
results in a deadlock, the Senate President-elect VP-elect will be Acting
President shall be the acting President fails to qualify or President until someone is
until the deadlock is broken. to be chosen qualified/chosen as
g) The Supreme Court en banc shall act the President
sole judge over all contests relating to the President-elect VP becomes President
election, returns, and qualifications of the dies or is
President or Vice-President and may permanently
promulgate its rules for the purpose. disabled.
Both President 1) Senate President or
TERM OF OFFICE and VP-elect are 2) In case of his inability,
not chosen or do the Speaker of the
A. President not qualify or House shall act as
1) 6 years beginning at noon on 30 June both die, or both President until a
immediately following the election and become President or a VP shall
ending at noon on the same day 6 years permanently have been chosen and
later. disabled. qualified.
2) Term limitation: Single term only; not In case of death or disability
eligible for any reelection. of (1) and (2), Congress
3) Any person who has succeeded as shall determine, by law, who
President, and served as such for more will be the acting President.
than 4 years shall NOT be qualified for
election to the same office at any rime.

B. Vice-President: 2. Vacancies after the office is initially filled:

1. 6 years, starting and ending the same time
as the President. VACANCY
2. Term limitation: 2 successive terms. President dies, is
3. Voluntary renunciation of the office for any permanently disabled,
length of time is NOT an interruption in the is impeached, or
continuity of service for the full term for resigns.
which the Vice-President was elected. Both President and
Vice-President die,
become permanently
disabled, are
impeached, or resign.
SECTION 6: Salaries and Emoluments
SUCCESSOR
Vice-President becomes
President for the
unexpired term.
1. Senate President or
2. In case of his
inability, the
Speaker of the
House shall act as
President until the
President or VP shall
have been elected

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and qualified. majority of the Cabinet retransmits

3. Vacancy in office of Vice-President during the
term for which he was elected:
a) President will nominate new VP from any
member of either House of Congress.
b) Nominee shall assume office upon
confirmation by majority vote of ALL
members of both Houses, voting
separately. (Nominee forfeits seat in
Congress)
4. Election of President and Vice-President after
vacancy during term
a) Congress shall convene 3 days after the
vacancy in the office of both the President
and the VP, without need of a call. The
convening of Congress cannot be
suspended.
b) Within 7 days after convening, Congress
shall enact a law calling for a special
election to elect a President and VP. The
special election cannot be postponed.
c) The special election shall be held not
earlier than 45 days not later than 60 days
from the time of the enactment of the law.
d) The 3 readings for the special law need not
be held on separate days.
e) The law shall be deemed enacted upon its
approval on third reading.
their written declaration, Congress
shall decide the issue. In this
event, Congress shall reconvene
within 48 hours if it is not in
session, without need of a call.
iv. Within 10 days after Congress is
required to assemble, or 12 days if
Congress is not in session, a 2/3
majority of both Houses, voting
separately, is needed to find the
President temporarily disabled, in
which case, the VP will be Acting
President.
6. Presidential Illness:
a) If the President is seriously ill, the public
must be informed thereof.
b) Even during such illness, the National
Security Adviser, the Secretary of Foreign
Affairs, and the Chief of Staff of the AFP
are entitled to access to the President.

BUT: No special election shall be called if the

vacancy occurs within 18 months before the date
of the next presidential election.
5. TEMPORARY DISABILITY of the President: The
temporary inability of the President to
discharge his duties may be raised in either of
two ways:

a) By the President himself, when he sends a

written declaration to the Senate President
and the Speaker of the House. In this case,
the Vice-President will be Acting President
until the President transmits a written
declaration to the contrary.
b) When a majority of the Cabinet members
transmit to the Senate President and the
Speaker their written declaration.
i. The VP will immediately be Acting
President.
ii. BUT: If the President transmits a
written declaration that he is not SECTION 13: Disqualifications
disabled, he reassumes his position
iii. If within 5 days after the President
re-assumes his position, the

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SUBJECT SOURCE OF DISQUALIFICATION

President, Vice-President, Prohibited from:
Cabinet Members, Deputies or 1) Holding any office or employment during their tenure, UNLESS:
Assistants of
Cabinet Members 1) otherwise provided in the Constitution (e.g. VP can be appointed a
Cabinet Member, Sec. of Justice sits on Judicial and Bar Council);
or
2) the positions are ex-officio and they do not receive any salary or
other emoluments therefore (e.g. Sec. of Finance is head of
Monetary Board).
3) Practicing, directly or indirectly, any other profession during their
tenure;
4) Participating in any business;
5) Being financially interested in any contract with, or in any
franchise, or special privilege granted by the government or any
subdivision, agency of instrumentality thereof, including GOCC’s or
their subsidiaries.
N.B. The rule on disqualifications for the President and his Cabinet are
stricter than the normal rules applicable to appointive and elective
officers under Art. IX-B, Sec. 7
Spouses and 4th degree Cannot be appointed during President’s tenure as:
relatives of the President 1) Members of the Constitutional Commissions;
(consanguinity or affinity) 2) Office of the Ombudsman;
3) Department Secretaries;
4) Department under-secretaries;
5) Chairman or heads of bureaus or offices including GOCC’s and their
subsidiaries.

N.B.
1) If the spouse, etc., was already in any of the above offices at the
time before his/her spouse became President, he/she may continue
in office. What is prohibited is appointment and reappointment,
NOT continuation in office.
2) Spouses, etc., can be appointed to the judiciary and as
ambassadors and consuls.

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SECTION 14-16: Power to Appoint d. ALSO: Voluntary submission by the
President to the CA for confirmation of
an appointment which is not required
to be confirmed does not vest the CA
Principles:
with jurisdiction. The President cannot
1) Since the power to appoint is executive in
extend the scope of the CA’s power as
nature, Congress cannot usurp this
provided for in the Constitution.
function.
2) While Congress (and the Constitution in
certain cases) may prescribe the
Procedure:
qualifications for particular offices, the
1. CA confirmation needed:
determination of who among those who
a) Nomination by President
are qualified will be appointed is the
b) Confirmation by CA
President’s prerogative.
c) Appointment by President; and
d) Acceptance by appointee.
Scope:
NOTE: At any time before all four steps
The President shall appoint the following:
have been complied with, the President
1. Heads of executive departments (CA
can withdraw the
confirmation needed);
nomination/appointment.
2. Ambassadors, other public ministers, and
consuls (CA confirmation needed).
2. No CA confirmation:
3. Officers of AFP from rank of colonel or naval
a) Appointment; and
captain (CA confirmation needed).
b) Acceptance.
4. Other officers whose appointment is vested in
NOTE: Once appointee accepts, President
him by the Constitution (CA confirmation
can no longer withdraw the appointment.
needed), such as:
a) Chairmen and members of the
COMELEC, COA and CSC.
b) Regular members of the Judicial and
Bar Council.
c) The Ombudsman and his deputies;
d) Sectoral representatives in Congress.
Ad-interim appointments:
NOTE: President also appoints members
1.) When Congress is in recess, the President
of the Supreme Court and judges of the lower
may still appoint officers to positions
courts, but these appointments do not need CA
subject to CA confirmation.
confirmation.
2.) These appointments are effective
5. All other officers whose appointments are not
immediately, but are only effective until
otherwise provided for by law; and those
they are disapproved by the CA or until
whom he may be authorized by law to
the next adjournment of Congress.
appoint.
3.) Appointments to fill an office in an ‘acting’
a. This includes the Chairman and
capacity are NOT ad-interim in nature and
members of the Commission on
need no CA approval.
Human Rights, whose appointments
are provided for by law NOT by the
Constitution.
Appointments by an Acting President:
b. Congress may, by law, vest the
These shall remain effective UNLESS revoked by
appointment of other officers lower in
the elected President within 90 days from his
rank in the President alone or in the
assumption or re-assumption of office.
courts, or in the heads of
departments, agencies, boards or
Limitation
commissions.
1.) 2 months immediately before the next
c. BUT: Congress cannot, by law, require
President elections, and up to the end of
CA confirmation of the appointment of
his term, the President or Acting President
other officers for offices created
SHALL NOT makes appointments.
subsequent to the 1987 Constitution
This is to prevent the practice of ‘midnight
(e.g. NLRC Commissioners, Bangko
appointments.”
Sentral Governor).
2.) EXCEPTION:
 a) Can make TEMPORARY
APPOINTMENTS
b) To fill EXECUTIVE POSITIONS;
c) If continued vacancies therein will
prejudice public service or endanger
public safety.
SECTION 17: Power of Control
POWER OF CONTROL:
The power of an officer to alter, modify, or set
aside what a subordinate officer has done in the
performance of his duties, and to substitute the
judgment of the officer for that of his subordinate.
Thus, the President exercises control over all the
executive departments, bureaus, and offices.
The President’s power over government-owned
corporations comes not from the Constitution but
from statute. Hence, it may be taken away by
statute.
Qualified Political Agency:
1.) Since all executive and administrative
organizations are adjuncts of the
Executive Department, the heads of such
department, etc. are assistants and
agents of the President.
2.) Thus, generally the act of these
departments heads, etc, which are
performed and promulgated in the regular
course of business, are presumptively the
acts of the President.
3.) Exception: If the acts are disapproved or
reprobated by the President.
4.) Under Administrative Law, decisions of
Department Secretaries need not be
appealed to the President in order to
comply with the requirement of
exhaustion of administrative remedies.
5.) Qualified political agency does NOT apply
if the President is required to act in
person by law or by the Constitution.
Example: The power to grant pardons
must be exercised personally by the
President.
Disciplinary Powers:
1.) The power of the President to discipline
officers flows from the power to appoint
the officer, and NOT from the power to
control.
2.) BUT While the President may remove
from office those who are not entitled to
security of tenure, or those officers with
not set terms, such as Department
Heads, the officers, and employees
entitled to security of tenure cannot be
summarily removed from office.
Power of Supervision:
1.) This is the power of a superior officer to
ensure that the laws are faithfully
executed by subordinates.
2.) The power of the president over local
government units in only of general
supervision. Thus, he can only interfere
with the actions of their executive heads if
these are contrary to law.
3.) The execution of laws is an OBLIGATION
of the President. He cannot suspend the
operation of laws.
4.) The power of supervision does not include
the power of control; but the power of
control necessarily includes the power of
supervision.
SECTION 18: Commander-in-Chief Powers
Scope:
1.) The President is the Commander-in-Chief of
the Armed Forces.
2.) Whenever necessary, the President may call
out the AFP to PREVENT or SUPPRESS:
a) Lawless violence;
b) Invasion; or
c) Rebellion.
3.) The President may also:
a) Suspend the privilege of the writ of
habeas corpus; and
b) Proclaim a state of martial law.
Suspension of the privilege of the writ of
habeas corpus and declaring martial law;
1.) Grounds
a) Invasion or
b) Rebellion; and
c) Public safety requires it.
2.) The invasion or rebellion must be ACTUAL and
not merely imminent.
3.) Limitations:
a) Suspension or proclamation is
effective for only 60 days.
b) Within 48 hours from the declaration
or suspension, the President must
submit a report to Congress.
c) Congress, by majority vote and voting
jointly, may revoke the same, and the
President cannot set aside the
revocation.
d) In the same manner, at the
President’s initiative.
 Congress can extend the same for a The factual necessity of calling out the armed
period determined by Congress if: forces is something that is for the President to
i. Invasion or rebellion decide, but the Court may look into the factual
persist and basis of the declaration to determine if it was
ii. Public safety requires it. done with grave abuse of discretion amounting to
lack of jurisdiction. (IBP v. Zamora, G.R. 141284)
NOTE: Congress CANNOT extend the period motu
propio. SECTION 19: Executive Clemency
e) Supreme Court review:
i. The appropriate Scope:
proceeding can be filed 1) The President may grant the following: [ Pa R
by any citizen. C Re]
ii. The SC can review the a. Pardons (conditional or plenary)
FACTUAL BASIS of the b. Reprieves
proclamation or c. Commutations
suspension. d. Remittance of fines and forfeitures
iii. Decision in promulgated 2) These may only be granted AFTER conviction
within 30 days from by final judgment.
filing. 3) ALSO: The power to grant clemency includes
f) Martial Law does NOT: cases involving administrative penalties.
i. Suspend the operation 4) Where a conditional pardon is granted, the
of the Constitution. determination of whether it has been violated
ii. Supplant the functioning rests with the President.
of the civil courts of
legislative assembles.
iii. Authorize conferment of
jurisdiction on military Limitations:
courts over civilians 1) As to scope:
where civil courts are Cannot be granted:
able to function and a. Before conviction
iv. Automatically suspend b. In cases of impeachment
the privilege of the writ c. For violations of elections law, rules,
of habeas corpus. and regulations without the favorable
g) Suspension of privilege of the writ of recommendation of the COMELEC.
habeas corpus: d. In cases of civil or legislative
i. Applies ONLY to persons contempt
judicially charged for 2) As to effect:
rebellion or offenses a. Does not absolve civil liabilities for an
inherent in or directly offense.
connected with invasion. b. Does not restore public offices already
ii. Anyone arrested or forfeited, although eligibility for the
detained during same may be restored.
suspension must be Amnesty:
charged within 3 days. 1) An act of grace concurred in by Congress,
Otherwise he should be usually extended to groups of persons who
released. commit political offenses, which puts into
oblivion the offense itself.
2) President alone CANNOT grant amnesty.
NOTE: While the suspension of the privilege of Amnesty needs concurrence by a majority of
writ and the proclamation of martial law is subject all the members of Congress.
to judicial review, the actual use by the President 3) When a person applies for amnesty, he must
of the armed forces is not. Thus, troop admit his guilt of the offense which is subject
deployments in times of war are subject to the to such amnesty. If his application is denies,
President’s judgment and discretion. he can be convicted based on this admission
of guilt.
4) Amnesty V. Pardon

Declaration of State of Rebellion

 AMNESTY PARDON (e) Conflict between treaty and municipal law.
Addressed to Addressed to i. Philippine court: The later
POLITICAL offense ORDINARY offenses enactment will prevail, be it
Granted to a CLASS of Granted to treaty or law, as it is the
persons INDIVIDUALS latest expression of the
Need not be accepted Must be accepted Senate’s will.
Requires concurrence No need for ii. International tribunal:
of majority of all Congressional Treaty will always prevail. A
members of Congress concurrence state cannot plead its
A public act. Subject Private act of President. municipal law to justify
to judicial note It must be proved. noncompliance with an
Extinguishes the Only penalties are international obligation.
offense itself extinguished. May or
may not restore
political rights. Absolute (2) Power to appoint ambassadors, other
pardon restores. public ministers, and consuls.
Conditional does not. (3) Power to receive ambassadors and other
May be granted before Only granted after public ministered accredited to the
or after conviction conviction by final Philippines.
judgment (4) Power to contract and guarantee foreign
loans on behalf of the Republic
(5) Power to deport aliens
SECTION 19: Foreign Relations Powers 1. This power is vested in the President by
virtue of his office, subject only to
restrictions as may be provided by
legislation as regards the grounds for
(1) Power to negotiate treaties and other deportation.
International agreements 2. In the absence of any legislative
restriction to authority, the President may
(a) BUT: Such treaty or international agreement still exercise this power.
must be concurred in by at least 2/3 of all 3. The power to deport aliens is limited by
Senators in order to be valid and effective in the requirements of due process, which
our country. entitles the alien to a full and fair hearing.
BUT: The alien is not entitled to bail as a
(b) Options of Senate when a treaty is submitted matter of right.
for its approval:
i. Approve with 2/3 majority;
ii. Disapprove outright; or PRESIDENT; EXECUTIVE PREROGATIVE.  
iii. Approve conditionally, with
suggested amendments.
The Executive Department did not commit grave
abuse of discretion in not espousing petitioners’
(c) If treaty is not re-negotiated, no treaty
claims for official apology and other forms of
reparations against Japan.  From a domestic law
(d) If treaty is re-negotiated and the Senate’s perspective, the Executive Department has the
suggestions are incorporate, the treaty will go exclusive prerogative to determine whether to
into effect without need of further Senate espouse petitioners’ claims against Japan.
approval. Isabelita C. Vinuya, et al. vs. Hon. Executive
Secretary, et al., G.R. No. 162230, April 28,
NOTE: While our municipal law makes a 2010.
distinction between international agreements and
executive agreements, with the former requiring
PRESIDENT;  POWER OF APPOINTMENT.
Senate approval and the latter not needing the
same, under international law, there is no such
distinction. The incumbent President can appoint the
NOTE: The President cannot, by executive successor of Chief Justice Puno upon his
agreement, undertake an obligation which retirement on May 17, 2010 as the prohibition
indirectly circumvents a legal prohibition. against presidential appointments under Section
15, Article VII does not extend to appointments in
the Judiciary.  Arturo M. De Castro vs. Judicial
and Bar Council, et al.,  G.R. No. 191002, April
20, 2010.
PRESIDENT;  POWER TO REORGANIZE.
 It is a well-settled principle in jurisprudence that
the President has the power to reorganize the
offices and agencies in the executive department
in line with the President’s constitutionally granted
power of control over executive offices and by
virtue of previous delegation of the legislative
power to reorganize executive offices under
existing statutes.
Executive Order No. 292 or the Administrative
Code of 1987 gives the President continuing
authority to reorganize and redefine the functions
of the Office of the President.  Section 31, Chapter
10, Title III, Book III of the said Code, is explicit.
It is undisputed that the NPO, as an agency that is
part of the Office of the Press Secretary (which in
various times has been an agency directly
attached to the Office of the Press Secretary or as
an agency under the Philippine Information
Agency), is part of the Office of the President.
Pertinent to the case at bar, Section 31 of the
Administrative Code of 1987 quoted above
authorizes the President (a) to restructure the
internal organization of the Office of the President
Proper, including the immediate Offices, the
President Special Assistants/Advisers System and
the Common Staff Support System, by abolishing,
consolidating or merging units thereof or
transferring functions from one unit to another,
and (b) to transfer functions or offices from the
Office of the President to any other Department or
Agency in the Executive Branch, and vice versa.
There is a view that the reorganization actions
that the President may take with respect to
agencies in the Office of the President are strictly
limited to transfer of functions and offices as
seemingly provided in Section 31 of the
Administrative Code of 1987.
However, Section 20, Chapter 7, Title I, Book III
of the same Code significantly provides:  ”Sec. 20.
Residual Powers. – Unless Congress provides
otherwise, the President shall exercise such other
powers and functions vested in the President
which are provided for under the laws and which
are not specifically enumerated above, or which
are not delegated by the President in accordance
with law. “
Pursuant to Section 20, the power of the President
to reorganize the Executive Branch under Section
31 includes such powers and functions that may
be provided for under other laws.  To be sure, an
inclusive and broad interpretation of the
President’s power to reorganize executive offices
has been consistently supported by specific
provisions in general appropriations laws.  Atty.
Sylvia Banda, et al. vs.. Eduardo R. Ermita etc., et
al. G.R. No. 166620, April 20, 2010.
ARTICLE VIII.
THE JUDICIAL DEPARTMENT
The Judiciary, unlike the Executive and the
Legislative which are active, is passive and
reactive as it has to wait for a case to be filed
before it will act to settle the controversy.
Sec. 1. The Judicial Power
Scope:
1. Judicial power is the authority to settle
justiciable controversies or disputes involving
rights that are enforceable and demandable
before the courts of justice or the redress of
wrongs for violations of such rights.
2. Vested in the Supreme Court and such lower
courts as may be established by law.
3. Since the courts are given ‘judicial power’ and
nothing more, courts may neither attempt to
assume or be compelled to perform non-
judicial functions. They may not be charged
with administrative functions except when
reasonably incidental to the fulfillment of their
duties.
4. In order that the courts may exercise this
power, there must exist the following:
a) An actual controversy with legally
demandable and enforceable rights;
b) Involving real parties in interest;
c) The exercise of such power will bind the
parties by virtue of the court’s application
of existing laws.
5. Judicial power cannot be exercised in vacuum.
Without any laws from which rights arise and
which are violated, there can be no resource
to the courts.
6. The courts cannot be asked for advisory
opinions.
7. Judicial power includes:
 a) The duty of the courts to settle actual
controversies involving rights which are
legally demandable and enforceable; and
b) To determine whether or not there has
been a grave abuse of discretion
amounting to lack or excess of jurisdiction
on the part of any branch or
instrumentality of the government.
Political Questions:
1.) A ‘POLITICAL QUESTION’ is one the
resolution of which has been vested by the
Constitution exclusively in either the people,
in the exercise of their sovereign capacity, or
in which full discretionary authority has been
delegated to a co-equal branch of the
Government.
2.) Thus, while the courts can determine question
of legality with respect to governmental
action, they cannot review government policy
and the wisdom thereof, for these question
have been vested by the Constitution in the
Executive and Legislative Departments.
Sec. 2. Roles of Congress
1. Defining enforceable and demandable rights
and prescribing remedies for violations of such
rights; and
2. Determining the court with jurisdiction to hear
and decide controversies or disputes arising
from legal rights.
3. Thus, Congress has the power to define,
prescribe and apportion the jurisdiction of
various courts.
4. BUT, Congress cannot deprive the Supreme
Court of its jurisdiction over cases provided
for in the Constitution.
5. Creation and abolition of courts:
a. The power to create courts implies the
power to abolish and even re-organize
courts.
b. BUT this power cannot be exercised in a
manner which would undermine the
security of tenure of the judiciary.
c. If the abolition/re-organization is done in
good faith and not for political or personal
reasons, then it is VALID. (same rule
applies for civil servants)
De la Llana vs. Alba
Sec. 144 of BP 129 replaced the existing court
system, with the exception of the SC and the SB,
with a new one and provided that upon the
completion of the reorganization by the President,
the courts affected "shall be deemed automatically
abolished and the
incumbents thereof shall cease to hold office." The
validity of the Act was questioned on the grounds
that it contravened the security of tenure of
judges and that there was lack of good faith. The
abolition of an office is within the competence of a
legislative body if done in good faith. In this case
there was good faith in that the Act was the
product of careful study and deliberation not only
by the BP but also by a Presidential study
committee (where CJ and
justices were members). As that element is
present in the enactment of BP 129, the lack of
merit of the petition becomes apparent.
While the jurisdiction of lower courts is a matter of
legislative apportionment, the Constitution sets
certain limitations on this prerogative when it
involves the SC:
1. It cannot decrease the constitutionally set
jurisdiction of the Supreme Court. (It may not
deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.)
2. It cannot increase the constitutionally set
appellate jurisdiction of the Supreme Court. (Art.
VI, Sec. 30).
Thus, in the case of Fabian vs. Desierto, Sec.
27, RA 6770, which authorizes an appeal to the
Supreme Court from decisions of the
Ombudsman in administrative disciplinary cases,
was declared unconstitutional because the
provision was passed without the advice and
consent of the Supreme Court.
However, Congress can:
 increase the original jurisdiction of the SC
(pursuant to its general power).
 It can make the jurisdiction of the SC
concurrent with lower courts (pursuant to its
general power).
Thus, under the Rules of Court, the original
jurisdiction of the SC is concurrent with the RTC
and in the case of the special civil actions, with
the CA.
Sec. 3. Fiscal Autonomy
1) The entire judiciary shall enjoy fiscal
autonomy.
2) Annual appropriations for the judiciary cannot
be reduced below the amount appropriated for
the previous year.
3) Once approved, appropriations shall be
automatically and regularly released.
Sec. 4-7; 12 JUDICIARY
Composition of the Supreme Court:
1) Chief Justice and
2) 14 Associate Justices
NOTE: Members of the Supreme Court and of
other courts established by law shall not be
designated to any agency performing quasi-
judicial or administrative functions.
Qualifications of members of the SC:
1.) Natural born citizen of the Philippines
2.) At least 40 years old
3.) At least 15 years old of experience as a judge
or in the practice of law in the Philippines.
4.) Person of proven competence, Integrity,
probity and independence.
Qualifications of members of lower collegiate
courts (CA, CTA, Sandiganbayan)
1. Natural born citizen of the Philippines
2. Member of the Philippine bar
3. Possesses other qualifications prescribed by
Congress
4. Person of proven competence, Integrity,
probity and independence.
Qualifications of judges of lower non-
collegiate courts:
1.) Citizen of the Philippines (may be naturalized
citizen)
2.) Member of the Philippine Bar
3.) Possesses other qualifications prescribed by
Congress
4.) Person of proven competence, integrity,
probity and independence.
Noblejas v Teehankee,
The Commissioner of Land Registration is given
the rank of judge of the CFI but he is still an
administrative official. Hence he is outside
the jurisdiction of the SC and cannot be
investigated by it as if he were a lower court
judge. Otherwise, the SC would be performing a
non-judicial work.
Sec. 8. Judicial and Bar Council
1. The Judicial and Bar Council is under the
supervision of the SC.
A. Composition
1) Chief Justice, as ex-officio chairman
2) Secretary of Justice, as an ex-officio
member
3) Representative of Congress, as an ex-
officio member
4) Representative of the Integrated Bar
5) A professor of law
6) A retired member of the SC
7) A representative of the private sector.
NOTE: The last four are the regular members of
the JBC. Regular members are appointed by the
President with CA approval. Regular members
serve for 4 years, with staggered terms.
B. Functions of JBC
1) Principal function; recommend appointees
to the Judiciary
2) Exercise such other functions as the SC
may assign to it.
C. Appointments to the Judiciary
1. President shall appoint from a list of at
least 3 nominees for each vacancy, as
prepared by the JBC.
2. No CA confirmation is needed for
appointments to the Judiciary.
3. acancies in SC should be filled within 90
days from the occurrence of the vacancy.
4. Vacancies in lower courts should be filled
within 90 days from submission to the
President of the JBC list.
Vargas v Rilloraza
-Grounds to disqualify a justice of the SC cannot
be legislated. To allow this would in effect deprive
the SC of jurisdiction as established by the
Constitution.
- Only the President can appoint justices to the
SC.
 In this case, the designation of the CFI judges a. Only the SC en banc has jurisdiction to
was made by Congress and therefore discipline or dismiss judges of lower
constitutionally repugnant. courts.
- The designated judge, even if his action or b. Disciplinary action/dismissal: Majority
participation is temporary, would be acting as a vote of SC Justices who took part in the
SC justice and his vote will be counted as that of a deliberations and voted therein.
regular justice 3. Removal of SC Justices:
a. Only by IMPEACHMENT
Sec. 10. Salaries b. Cannot be disbarred while they hold
office.

1.) Salaries of SC Justices and judges of lower
courts shall be fixed by law.
2.) Cannot be decreased during their continuance
in office, but can be increased.
3.) Members of the Judiciary are NOT exempt
from payment of income tax.
Art. XVIII, Sec. 17.
Unless the Congress provides otherwise, xxx;the
annual salary of
- the Chief Justice shall receive an annual salary
of P240,000 and xxx;
- the Associate Justices shall receive P204,000
each; xxx.
Although the salaries may not be decreased, they
may be increased by law, to take effect at once.
Reasons:
(1) the Constitution does not prohibit it;
(2) the Judiciary plays no part in the passage of
the law increasing their salary unlike the Congress
and the Executive, and so there can
be no conflict of interest; and
(3) this will promote the independence of the
Judiciary.
Is the imposition of income tax on the salary of
the Justices and Judges a diminution of their
salary as prohibited by the Constitution?
NO. In the Nifatan v CIR case, the SC, based on
the deliberation of the Constitutional Commission
which ultimately deleted the tax
exemption original included in the draft Art. VIII,
Sec 10, ruled that salaries of members of the
judiciary are not exempt from taxes.
Sec. 11. Tenure / Disciplinary Powers of SC
1. Members of the SC and judges of the lower
courts hold office during good behavior until
a. The age of 70 years old; or
b. They become incapacitated to discharge
their duties.
2. Disciplinary action against judges of lower
courts:
Members of the SC cannot be removed
except by impeachment.
Thus, a SC justice cannot be charged in a criminal
case or a disbarment proceeding, because the
ultimate effect of either is to
remove him from office, and thus circumvent the
provision on removal by impeachment thus
violating his security of tenure
(In Re: First Indorsement from Hon. Raul M.
Gonzalez, A.M. No. 88-4-
5433).
Sec. 4-6, 13. The Supreme Court
Hearing of cases:
1.) En banc; or
2.) Division of 3, 5, or 7.
One Supreme Court
The SC remains and functions as “one Supreme
Court” even when it sits in divisions (US v
Limsiongco).
Cases required to be heard en banc:
1. All cases involving constitutionally of a/an:
(CODE: T I L)
a. Treaty
b. International or exclusive agreement or
c. Law.
2. All cases required to be heard en banc under
the Rules of Court:
a. Appeals from Sandiganbayan; and
b. From the Constitutional Commissions
3. All cases involving the constitutionality,
application or operation of:
(CODE: PPOIRO)
a. Presidential decrees
b. Proclamations
c. Orders
d. Instructions
e. Ordinances; and
f. Other regulations.
4. Cases heard by a division where required
majority of 3 was not obtained.
5. Cases where SC modifies or reverses a
doctrine or principle of law laid down by the
SC en banc or by a division.
6. Administrative cases to discipline or dismiss
judges or lower courts; and
7. Election contests for President and Vice-
President.
Cases heard by division
1. Must be decided with the concurrence of a
majority of the members who took part in the
deliberations and voted thereon.
2. Majority vote in a division should be at least 3
members.
Powers of the SC
1. SC has ORIGINAL jurisdiction over
a. Cases affecting ambassadors, other
public ministers and consuls.
NOTE: This refers to foreign
ambassadors, etc., stationed in the
Philippines.
b. Petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
c. Sufficiency of factual basis
proclamation of martial law and
suspension of privilege of writ of HC.
Note: The SC does not have jurisdiction over
declaratory relief cases, which must be filed with
the RTC (In Re Bermudez said so too, and yet
gave due course to the petition.)
The first case (ambassadors, etc.) is made
concurrent with RTCs by law (Judiciary Act of
1948). The second case (special civil actions) is
concurrent with the CA and the RTC, with respect
to inferior bodies.
2. SC has APPELLATE jurisdiction over final
judgments and orders in the following:
a. All cases involving the constitutionality
or validity of any (CODE: TILP-
POIRO)
1. treaty
2. International or executive
agreement
3. law
4. presidential decree
5. proclamation
6. order
7. instruction
8. ordinance, or
9. regulation;
b. All cases involving the legality of any:
(CODE: TITA P)
1. tax
2. impost
3. toll
4. assessment or
5. any penalty imposed in relation
thereto;
c. All cases in which the jurisdiction of
any lower court is in issue
d. Criminal cases where the penalty
imposed is reclusion perpetua or
higher; and
e. All cases where ONLY errors or
questions of law are involved.
f. Orders of the Constitutional
Commissions.
g. Jurisdiction over proclamation of
Martial law or suspension of the
writ of Habeas Corpus.
h. Jurisdiction over Presidential and Vice
Presidential election contests
Jurisdiction over criminal cases where
penalty imposed is reclusion perpetua.
People v Daniel; People v Ramos
Both are rape cases where the trial court imposed
lesser penalties because of misappreciation of the
of aggravating and qualifying circumstances and on
appeal the penalty was increased. Chief Justice
Castro, for the majority, explained: Art. X, Sec. 5
(2) (d)
[now Art. VIII, Sec. 5 (2) (d)] provides that the
SC shall have appellate jurisdiction over "final
judgments and decrees of inferior courts" in
criminal cases in w/c the "penalty imposed is
death or life imprisonment." Unless the CA
renders judgment and imposes the penalty of
death or reclusion perpetua, there would be no
judgment for SC to review. Indeed, Section 34 of
the Judiciary Act of
1948 and the present Rule 124, Sec. 13 provide
that, whenever the CA should be of the opinion
that the penalty of death or life imprisonment
should be imposed, "the said court shall refrain
from entering judgment thereon, and shall
forthwith certify the case
brought before it on appeal," which that it is not
prohibited from rendering judgment. In other
words, the CA is not prohibited from rendering
judgment but from "entering judgment." The
distinction between the two is well established.
The phrase "entering judgment" is not to be
equated w/ an "entry of judgment" as the latter is
understood in R36 in relation to Sec. 8, R 121 and
Sec. 16, R 124, ROC. "Entry of judgment"
presupposes a final judgment-- final in the sense
that no appeal was taken from
the decision of the trial court or appellate court
w/in the reglamentary period. A judgment in a
criminal case becomes final after the lapse of the
period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or
served, or the defendant has expressly waived in
writing his right to appeal. It is only then that
there is a judgment which is to be entered or
recorded in the book of entries of judgments.
Rule 124, Sec. 13.
xxx Whenever the Court of Appeals should be of
the opinion that the penalty of reclusion perpetua
or higher should be imposed in a
case, the Court after discussion of the evidence
and the law involved, shall render judgment
imposing the penalty of reclusion perpetua or
higher as the circumstances warrant, refrain from
entering judgment and forthwith certify the case
and elevate the entire record thereof to the
Supreme Court for review.
3. Temporarily assign lower court judges to other
stations in the public interest.
NOTE: Temporary assignment shall not exceed 6
months without the consent of the judge
concerned.
4. Order a change of venue or place of trial to
avoid a miscarriage of justice.
5. Promulgate rules concerning:
a. The protection and enforcement of
constitutional rights;
b. Pleading, practice and procedure in all
courts;
c. Admission to the practice of law;
d. The Integrated Bar; and
e. Legal assistance to the
underprivileged.
Limitations on Rule Making Power
a. It should provide a simplified and
inexpensive procedure for the speedy
disposition of cases.
b. It should be uniform for all courts of
the same grade.
c. It should not diminish, increase, or
modify substantive rights.
6. Appoint ALL officials and employees of the
Judiciary, in accordance with Civil Service
Law.
7. Exercise administrative supervision over ALL
courts and the personnel thereof.
Noblejas v Teehankee,
The Commissioner of Land Registration is given
the rank of judge of the CFI but he is still an
administrative official. Hence he is outside
the jurisdiction of the SC and cannot be
investigated by it as if he were a lower court
judge. Otherwise, the SC would be performing a
non-judicial work.
Decisions of the Supreme Court:
1.) Reached in consultation before being assigned
to a member for the writing of the opinion.
2.) A certification to this effect must be signed by
the Chief Justice and attached to the record of
the case and served upon the parties.
3.) Members of the SC who took no part, or who
dissented or abstained must state the reasons
therefore.
NOTE: This procedure shall also be observed by
all lower collegiate courts (CA, CTA, and the
Sandiganbayan).
JUDICIAL REVIEW
Definition
1.) Judicial Review is the power of the SC to
declare a law, treaty, ordinance etc.
unconstitutional.
2.) Lower courts may also exercise the power of
judicial review, subject to the appellate
jurisdiction of the SC.
3.) Only SC decisions are precedent, and thus,
only SC decisions are binding on all.
Requisites: Code: [A R S E L]
1.) An ACTUAL CASE calling for the exercise of
judicial power
2.) The question involved must be RIPE FOR
ADJUDICATION, i.e. a personal and
substantial interest in the case such that he
has sustained, or will sustain, direct injury as
a result of its enforcement.
3.) The person challenging the governmental act
must have ‘STANDING’, i.e. a personal and
substantial interest in the case such that he
has sustained, or will sustain, direct, injury as
a result of its enforcement.
4.) The question of Constitutionality must be
raised in the first instance, or at the earliest
opportunity.
5.) Resolution of the issue of constitutionality is
unavoidable or is the very lis mota
Effect of a declaration of unconstitutionality:
1.) Prior to the declaration that a particular law is
unconstitutional, it is considered as an
‘operative fact’ which at that time had to be
complied with.
2.) Thus, vested rights may have been acquired
under such law before it was declared
unconstitutional.
Sec. 14. Decisions
1. Decisions MUST state clearly and distinctly the
facts and the law on which they are based.
2. Refusal to give due course to petitions for
review and motions for reconsideration must
state the legal basis for such refusal.
3. Memorandum decisions, where the appellate
court adopts the findings of fact and law of
the lower court, are allowed as long as the
decision adopted by reference is attached to
the Memorandum for easy reference.
4. These rules only apply to courts. They do not
apply to quasi-judicial or administrative bodies
nor to military tribunals.
Decisions on the merit.
The rule requiring statement of the relevant facts,
the issues, the ruling, and the reasoned opinion in
support of the ruling, applies only to decisions on
the merit by a court of record, based on the
following rulings of the SC:
Valladolid v Inciong
- lack of the statement of facts and conclusion in
this case is not covered by the constitutional
requirement for decisions of a court of record as
this is an administrative case.
- the Ministry of Labor being an administrative
agency with quasi-judicial functions, with rules of
procedure mandated to be non-litigious,
summary and non-technical.
Section 14, Chapter 3, Book VII,
Administrative Code of 1987.
Decision.-- Every decision rendered by the agency
in a contested case shall be in writing and shall
state clearly and distinctly the facts
and the law on which it is based. xxx
Bacolod Murcia Milling Co. v Henares,
The SC ruled that orders of a court on an
incidental matter (in this case, the order imposing
the payment of attorney's fees) need not state the
legal basis of the ruling.
Minute Resolutions
Cruz: Minute resolutions denying due course or
dismissing a petition always gives the legal basis
and are used:
- where a case is patently without merit
- where the issues raised are factual in nature,
- where the decision appealed from is supported
by substantial evidence and is in accord w/ the
facts of the case and the applicable laws,
- where it is clear from the records that the
petitions were filed merely to forestall the early
execution of judgment and for noncompliance
w/ the rules. .
xxxx
The Court is not duty bound to render signed
decisions all the time. It has ample discretion to
formulate decisions and/ or minute resolutions,
provided a legal basis is given, depending on its
evaluation of a case."
Prudential Bank v. Castro
- an administrative case disposed of by the SC via
a minute resolution
- in an administrative case, the constitutional
mandate that 'no *** motion for reconsideration
of a decision of the court shall be ***
denied without stating the legal basis therefor is
inapplicable.
- And even if it were, said resolution stated the
legal basis for the denial, and, therefore, adhered
faithfully to the constitutional requirement. 'Lack
of merit,' as a ground for denial is legal basis. No
petition for review or motion for reconsideration of
a decision of
the court shall be refused due course or denied,
without stating the legal basis therefor. (Art.
VIII, Sec. 14, par. 2.)
The past practice used to be that when the
appellate court denied a petition for review, or
denied a MFR, it simply did so in a Minute
Resolution, stating that the case was dismissed
for lack of basis.
This aggrieved many a lawyer, specially those
who would spend days preparing pages of briefs,
only to find out that all their effort was answered
by a one-liner "Dismissed for lack of basis".
This prompted the framers of the 1987
Constitution to force the Court to at least write
down the legal basis for the denial. This means
that while a fully detailed decision is not required,
neither is a skimpy one-liner is allowed. The legal
reason for the dismissal must be written. This rule
applies to a dismissal of a motion for
reconsideration of a
"decision on the merits", said the SC in Mendoza
v CFI. It does not apply, as in this case, to a
dismissal of a motion for reconsideration of a
previous dismissal of a petition for habeas corpus. SECTION 1: Constitutional Commissions
(The dismissal of the petition for habeas corpus is
not a decision on the merits, but is similar to a
dismissal of a petition for review, which is a
decision not to give due course to the petition.)
Independent Constitutional Commissions:
1) Civil Service Commission (CSC)
Dissenters and Abstainers
2) Commission on Elections (COMELEC)
In the case of a decision on the merits, ia member
3) Commissions on Audit (COA)
must state his reason if
(a) took no part, or
Why Independent?
(b) dissented, or
They perform vital functions of government.
(c) abstained from a decision or resolution. (Art.
VIII, Sec. 13.)
Safeguards that guarantee Independence of
Even those who took no part in the deliberations
Commissions:
but were present and those who abstained are
1. They are constitutionally created; may not be
required to write their reasons for these are really
abolished by statute;
forms of casting their vote. Those who inhibited
2. Each is expressly described as “independent”
themselves are, of course, not required to vote,
3. Each is conferred certain powers and functions
since they did not really participate. Procedurally,
which cannot be reduced by statute;
the purpose is to enable the party to find out the
4. The Chairmen and members cannot be
reason for the action taken. For courts lower than
removed except by impeachment;
the SC, and even the SC itself, this is important
5. The chairmen and the members are given
for appeal or motion for reconsideration purposes,
fairly a long term of office of 7 years;
as the basis for the assignment of error.
6. The Chairmen and members may not be re-
appointed or appointed in an acting capacity
(Brillantes v. Yorac, 192 SCRA 358);
Safeguards that guarantee Independence of
7. The salaries of the Chairmen and members
the Judiciary:
are relatively high and may not be decreased
1. SC is a Constitutional body; may not be
during continuance in office;
abolished by law;
8. The Commissions enjoy fiscal autonomy;
2. Members are only removable by
9. Each Commission may promulgate its own
impeachment;
procedural rules, provided they do not
3. SC may not be deprived of minimum and
diminish, increase or modify substantive
appellate jurisdiction; appellate jurisdiction
rights (though subject to disapproval by the
may not be increased without its advice or
SC.);
concurrence;
10. The Chairmen and members are subject to
4. SC has administrative supervision over all
certain disqualifications calculated to
inferior courts and personnel;
strengthen their integrity;
5. SC had exclusive power to discipline judges/
11. The Commissions may appoint their own
justices of inferior courts;
officials and employees in accordance with
6. Members of the judiciary enjoy security of
Civil Service Law (Nachura, Reviewer in
tenure;
Political Law, p. 209)
7. Members of judiciary may not be designated
to any agency performing quasi-judicial or
administrative functions; SECTION 2: Disqualifications
8. Salaries of judges may not be reduced;
judiciary enjoys fiscal autonomy;
9. SC alone may initiate Rules of Court; Disqualifications:
10. SC alone may order temporary detail of Members cannot, during their tenure:
judges; and 1) Hold any other office or employment;
11. SC can appoint all officials and employees of 2) Engage in the practice of any
the Judiciary (Nachura, Reviewer in Political profession;
Law, p. 199-200.) 3) Engage in the active management or
control of any business, which, in any
way, may be affected by the functions
ARTICLE IX- of their office; and
THE CONSTITUTIONAL COMMISSIONS
 4) Be financially interested, directly or - The “no report, no release” policy may not be
indirectly, in any contract, franchise, validly enforced against offices vested with fiscal
privilege granted by the government, autonomy without violating Sec. 5,
any of its subdivisions, agencies, Art. IX-A. The “automatic release” of approved
instrumentalities, including GOCC’s and annual appropriations to a constitutional
their subsidiaries. commission vested with fiscal autonomy, should
be construed to mean that no condition to fund
NOTE: The Ombudsman and his deputies are releases to it may be imposed.
subject to the same qualifications.
SECTION 6: Rules of Procedure
Impeachment
Art. XI, Sec. 2.
The members of the Constitutional Commissions
Procedures:
may be removed
1) Rules: The Commissions may promulgate
from office
their own rules EN BANC.
(1) on impeachment for, AND
2) Limitation: The rules shall not:
(2) conviction of,
a) Diminish
a. culpable violation of the Constitution
b) Increase, or
b. treason
c) Modify substantive rights.
c. bribery
3) Power of SC
d. graft and corruption
a.) The SC may not, under Art. VIII Sec.
e. other high crimes, or betrayal of public trust.
5(5), exercise the power to disapprove
rules of “special courts and quasi-judicial
SECTION 3: Salaries bodies.”
b.) In proceedings before the Commissions,
the rules of the Commission prevail.
1. Salaries are fixed by law and shall not be c.) In proceedings before a court, the Rules
decreased during their TENURE. of Court prevail.
2. Decreases in salaries only affect those d.) The SC may, however, in appropriate
members appointed AFTER increase. cases, exercise JUDICIAL REVIEW
3. Incumbent take effect IMMEDIATELY.
SECTION 7: Decision Making / Appeal
Section 4
the Constitutional Commissions shall appoint their
officials & employees in accordance with law.
Decision-Making:
Approval of appointments by the CSC
1) Each commission shall decide matter or cases
Barrozo v. CSC
by a majority vote of all the members within
- The CSC has no power of appointment except
60 days from submission.
over its own personnel. Neither does it have the
a. COMELEC may sit en banc or in 2
authority to review the appointments made by
divisions.
other officers except only to ascertain if the
b. Election cases, including pre-
appointee possesses the required qualifications.
proclamation controversies are
The determination of who among aspirants with
decided in division, with motions for
the minimum statutory qualifications should be
reconsideration filed to the COMELEC
preferred belongs to the appointing authority and
en banc.
not the
c. The SC has held that a majority
CSC.
decision decided by a division of the
COMELEC is a valid decision.
2) As COLLEGIAL BODIES, each commission
must act as one, and no one member can
decide a case for the entire commission. (i.e.
Section 5 Fiscal Autonomy The Chairman cannot ratify a decision which
would otherwise have been void).
Art. IX, A, Sec. 5.
The Commissions shall enjoy fiscal autonomy.
Their approved annual appropriations shall be Appeals:
automatically and regularly released.
CSC vs. DBM
1. Decisions, orders or rulings of the the Office of the Ombudsman, or as Secretaries,
COMELEC/COA may be brought on certiorari Undersecretaries, chairmen or heads of bureaus
to the SC under Rule 65. or offices, including governmentowned or
2. Decisions, orders or ruling of the CSC should controlled corporations and their subsidiaries.”
be appealed to the CA under Rule 43.
Enforcement: Term:
It has been held that the CSC can issue a writ of 1) 7 years (except for the 1st appointees where
execution to enforce judgments which are final. the Chairman has 7 years, 1 Commissioner
has 5 years while another has 3 years)
THE CIVIL SERVICE COMMISSION 2) Limitation: single term only, no reappointment
3) Appointment to vacancy: only for unexpired
Functions of the CSC term of predecessor
Art. IX, B, Sec. 3. 4) No temporary appointments or appointments
“The Civil Service Commission, as the central in acting capacity.
personnel agency of
the Government, shall SECTION 2: Scope
- establish a career service
- adopt measures to promote
= morale
The Civil Service embraces all:
= efficiency
1. branches,
= integrity
2. subdivisions,
= responsiveness
3. instrumentalities,
= progressiveness
4. agencies of the government,
= courtesy
5. including GOCCs with original charters.
- strengthen the merit and reward system
a) “With Original Charter” means
- integrate all human resources development
that the GOCC was created by
programs for all levels and ranks
special law/by Congress
- institutionalize a management climate conducive
b) If incorporated under the
to public accountability
Corporation, Code it does not fall
- submit to the President and Congress an annual
within the Civil Service, and is not
report on its personnel program
subject to the CSC jurisdiction.
c) If previously government-
SECTION 1: controlled, but is later privatized,
Composition/Qualifications/Term it ceases to fall under CSC.
d) Jurisdiction is determined as of
Composition: the time of filing the complaint.
1) Chairman
2) Commissioners – 2 commissioners National Service Corp. v. NLRC
In the matter of coverage by the civil service of
GOCC, the 1987 Consti starkly differs from the
Qualifications: 1973 constitution. It provides that the "civil
1) Natural-born citizens of the Philippines; service embraces all branches, subdivisions,
2) At least 35 years old at the time of their instrumentalities, and agencies of the
appointments; Government, including government owned or
3) With proven capacity for public controlled corporation with original charter."
administration; and Therefore by clear implication, the civil service
4) NOT candidates for any elective position in the does not include GOCC which are organized as
elections immediately preceding their subsidiaries of GOCC under the general
appointment. corporation law.
5) Appointees by the President to the CSC need
Commission on Appointments (CA) Trade Unions of the Philippines and Allied
confirmation Services (TUPAS) VS.
NHA
Art. VII, sec. 13. There is no impediment to the holding of a
“xxx The spouse and relatives by consanguinity or certification election among the workers of NHC
affinity within the fourth civil degree of the for it is clear that they are covered by the Labor
President shall not during his tenure be appointed Code, the NHC being a GOCC without an original
as Members of the Constitutional Commissions, or charter
 is better qualified, as long as the
appointee is himself qualified.
a. Terms, conditions of employment in the Civil 3) The CSC CANNOT add qualifications other
Service than those provided by law.

(a) Oath of allegiance to the Constitution F. Next-in-Rank Rule

Art. IX, B, Sec. 4. While a person next in rank is entitled to
“All public officers and employees shall take an preferential consideration, it does not follow
oath or affirmation that only he, and no one else, can be
to uphold and defend the Constitution.” appointed. Such person authority is not bound
Art. XI, Sec. 18. to appoint the person next in rank.
“Public officers and employees owe the State and Tenure (Classification of Positions)
this Constitution Career Service Non-Career Service
allegiance at all times, and any public officer or 1. Entrance based on 1. Entrance on bases
employee who merit and fitness to OTHER than usual test
seeks to change his citizenship or acquire the be determined as far of merit and fitness.
status of an immigrant as practicable by
of another country during his tenure shall be dealt competitive
with by law.” examinations or
based on highly
Appointments to civil service shall be: technical
A. Competitive positions qualifications.
According to merit and fitness to be determined 2. Entitled to security 2. Tenure limited to
by competitive examinations, as far as of tenure a) Period specified by
practicTable except to positions which are policy- law,
determining, primarily confidential, or highly b) Coterminous with
technical. appointing authority
or subject to his
B. Non-competitive positions pleasure, or
1. No need for competitive examinations. c) Limited to the
2. 3 kinds: duration of a
a) Policy determining - formulate a method particular project for
of action for the government which purpose the
employment was
b) Primarily confidential - more than ordinary made.
confidence; close intimacy insures
freedom of intercourse without betrayals
3. With opportunity
or personal trust.
for advancement to
higher career
c) Highly technical - requires technical
positions.
skill to a superior degree.
Security of Tenure:
C. The TEST to determine whether non-
1) Officers or employees of the Civil Service
competitive is the nature of the
cannot be removed or suspended EXCEPT for
responsibilities, NOT the administrative or
cause provided by law. It guarantees both
legislative description given to it.
procedural and substantive due process.
D. Both types of positions are entitled to
2) For “LEGAL CAUSE” – Cause is:
security of tenure. They only differ in the
a. related to and affects the
manner in which they are filled.
administration of office; and
b. must be substantial (directly affects
the rights & interests of the public)
E. Who may be appointed:
De los Santos v. Mallare
1) RULE: Whoever fulfills all the qualifications
- Sec. 2545 of the Rev. Admin. Code which
prescribed by law for a particular position
provides that the Pres.may remove at pleasure
may be appointed therein.
any appointive officer was declared
2) The CSC cannot disapprove an
appointment just because another person
unconstitutional for being contrary to Art. IX, B, 2
of the Constitution.
Art. XI, Sec. 2.
“xxx [T]he members of the Constitutional
Commissions xxx may be
removed from office, on impeachment for, and
conviction of,
- culpable violation of the Constitution,
- treason,
- bribery,
- graft and corruption,
- other high crimes, or
- betrayal of public trust. xxx”
3) Security of tenure for Non-competitive
positions
a) Primarily confidential officers and
employees hold office only for so long as
confidence in them remains.
b) If there is GENUINE loss of confidence,
there is no removal, but merely the
expiration of the term of office
c) Non-career service officers and employees
do not enjoy security of tenure.
d) Political appointees in the foreign service
possess tenure coterminous with that of
the appointing authority or subject to his
pleasure.
4) One must be VALIDLY APPOINTED to enjoy
security of tenure. Thus, one who is not
appointed by the proper appointing authority
does not acquire security of tenure.
Abolition of Office
To be valid, abolition must be made:
(a) In good faith; (good faith is presumed)
(b) Not for political or personal reasons; and
(c) Not in violation of law.
Temporary employees are covered by the
following rules:
1. Not protected by security of tenure – can be
removed anytime even without cause
2. If they are separated, this is considered an
expiration of his term.
3. BUT: They can only be removed by the one
who appointed them.
4. Entitled only to such protection as may be
provided by law.
No officer or employee in the Civil Service
shall engage in any electioneering or in
partisan political activity
1) Cannot solicit votes in favor of a particular
candidate.
2) Cannot give campaign contributions or
distribute campaign materials.
3) BUT: Allowed to express views on political
issues, and to mention the names of the
candidates whom he supports.
4) Prohibition does not apply to department
secretaries
Santos v. Yatco
- The position of department secretaries is NOT
embraced and included within the terms officers
and employees in the Civil Service.
- The question of impropriety as distinct from
illegality of the secretary’s act of campaigning a
candidate is not justiciable by the court.
Cailles v. Bonifacio
- The Constitution prohibits members of the AFP
from engaging in any partisan political activity or
otherwise taking part in any election except to
vote, but it does not ex vi termini grant or confer
upon them the right of suffrage.
- Section 431 of the Election Law, as amended
disqualifies from voting only members in the
ACTIVE service of the Philippine Army.
- Rationale for limitation to active members: it
would lead to widespread disqualification of the
majority of the able bodied men who are part of
the reserve corps of the armed forces from voting
and from being voted upon.
- Rationale for the disqualification: Members of
the AFP are servants of the State and not the
agents of any political group.
Right to organize
The right to organize does NOT include the right
to strike
TUPAS v NHA
- The right to unionize is now explicitly recognized
and granted to both employees in both
governmental and the private sectors.
There is no impediment to the holding of a
certificate of election among the workers of NHC
for it is clear that they are covered by
the Labor Code, for NHC is a GOCC without an
original charter. Statutory implementation of the
Consti (par 5 sec 2 art IX-B) is found in Art 244 of
the Labor Code.
Right to strike
SSS Employees Association v CA
- Gen. Rule: Employees in the Civil Service may
not resort to strikes,
walkouts and other temporary work stoppages.
- Reason: The terms and conditions of
employment in the
Govt, including any political subdivision or
instrumentality
thereof and GOCCs with original charters, are
governed by
law and employees therein shall not strike for the
purpose
of securing changes thereof.
- Statutory Basis: Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of
Govt.
EEs to Self-Organization
- EO 180: allows negotiation where the terms and
conditions of
employment involved are not among those fixed
by law.
Government employees may, through their unions
or associations, either (1) petition the Congress
for the betterment of the terms and conditions of
employment which are within the ambit of
legislation or (2) negotiate with the appropriate
government agencies for the improvement of
those which are not fixed by law. If there be any
unresolved grievances, the dispute may be
referred to the Public Sector Labor-Management
Council for appropriate action.
- On Injunction: The RTC can enjoin the union
from striking. EO 180 vests the Public Sector
Labor-Management Council with jurisdiction over
unresolved labor disputes involving government
employees.
Clearly, the NLRC has no jurisdiction over the
dispute. The RTC was not precluded, in the
exercise of its general jurisdiction under BP
129, as amended, from assuming jurisdiction over
the SSS's complaint for damages and issuing the
injunctive writ prayed for therein. Unlike the
NLRC, the PSLM Council has not been granted by
law authority to issue writs of injunction in labor
disputes within its jurisdiction. Thus, since it is the
Council and the NLRC that has jurisdiction over
the instant labor dispute, resort to general courts
of law for the issuance of a writ of injunction to
enjoin the strike is appropriate.
SECTION 6-7: Disqualifications
Disqualifications
Appointment of lame ducks
1) Losing candidates in any election
a) Cannot be appointed to any office in
the government or GOCC’s or their
subsidiaries
b) Period of disqualification: (1) year
after such election.
Ban on holding multiple positions
2) Elective officials
a) Not eligible for appointment or designation
in ANY CAPACITY to ANY PUBLIC OFFICE
or position during their tenure.
b) EXCEPTION: May hold ex officio positions.
Examples:
 The Vice President may be appointed as
a Cabinet member
 A congressman may sit in the Judicial
and Bar Council
 Art. VII, Sec. 13.
“The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this
Constitution,
- hold any other office or employment during their
tenure,
- directly or indirectly, practice any other
profession,
- participate in any business, or
- be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries.
They shall strictly avoid conflict of interest in the
conduct of their office.
Art. VI, Sec. 13.
“No Senator or Member of the House of
Representatives may hold any other office or
employment in the Government, or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be
appointed to any office which may have been
created or the emoluments thereof increased
during the term for which he was elected.”
c) To be eligible to hold any other office, the
elected official must first resign form his
office
d) Even Congress cannot, by law, authorize
the appointment of an elective official.
Flores v. Drilon
- The congressional act of mandating the
Preisdent ot appoint the mayor of Olongapo City
as chairman of SMBA is unconstitutional on two
counts
- it is in conflict with the constitutional prohibition
regarding the ineligibility of elective officials for
appointment or designation in any capacity to any
public office or position (Sec. 7, 1st par of Art
IX-B).
- it is an encroachment on the President”s
prerogative by limiting the choice to only the
Mayor of Olongapo
3) Appointive officials
a) Cannot hold any other office or
employment in the government any
subdivision, agency,
instrumentality, including GOCC’s
and their subsidiaries.
b) EXCEPTION: Unless otherwise
allowed by law, or by the primary
functions of his position.
c) This exception DOES NOT APPLY to
Cabinet members, and those
officers mentioned in Art. VII, Sec.
13. They are governed by the
stricter prohibitions contained
therein.
SECTION 8: Compensation
1) Prohibitions: apply to elected or appointed
officers and employees cannot receive:
A. Additional compensation: an extra
reward given for the same office i.e.
bonus
B. Double compensation: when an officer
is given 2 sets of compensation for 2
different offices held concurrently by 1
officer
C. Indirect Compensation
2) EXCEPTION: Unless specifically authorized by
law
A. “SPECIFICALLY AUTHORIZED” means a
specific authority particularly directed to
the officer or employee concerned.
B. BUT: per diems and allowances given as
REIMBURSEMENT for expenses actually
incurred are not prohibited
3) Cannot accept any present, emolument,
office, title of any kind from foreign
governments UNLESS with the consent of
Congress.
4) Pensions and gratuities are NOT considered as
additional double, or indirect compensation.
THE COMMISSION ON ELECTIONS
SECTION 1:
Composition/Qualifications/Term
Composition: (7)
1) Chairman and
2) Commissioners (6)
Qualifications:
1) Natural-born citizens of the Philippines;
2) At least 35 years old at the time of
appointment
3) Holders of college degrees; and
4) Not candidates for any elective position in the
immediately preceding elections.
5) Majority of the Commissions, including the
Chairman must be:
a) Members of the Philippines Bar
b) Engaged in the practice of law for at least
10 years; “any activity in or out of court,
which requires the application of law, legal
procedure, knowledge, training and
experience.”
6) Appointments subject to CA approval
Cayetano v. Monsod
The practice of law is not limited to the conduct of
cases or litigation in court. It embraces:
(1) preparation of pleadings and other papers
incident to actions and special proceedings
(2) management of such actions and proceedings
on behalf of clients
(3) other works where the work done involves the
determination ofthe trained legal mind of the legal
effect of facts and conditions.
Term:
1) 7 years (1st appointed: Chairman -7 yrs; 3
Members -7 yrs;
2) Members -5 yrs; 1 Member -3 yrs ;)
3) Appointment to a vacancy: only for unexpired
portion of predecessor’s term
4) No temporary appointments, or appointments
in acting capacity
a) Thus, the President cannot designate an
incumbent commissioner as acting
Chairman.
b) The choice of temporary chairman falls
under the COMELEC’s discretion.
Nacionalista Party v. Angelo Bautista
- The designation of the SolGen as acting member
of the Comelec was not valid. By the nature of the
Comelec's functions, the Comelec must be
independent. Members are not allowed to perform
other functions, powers and duties to preserve its
impartiality.
- When there is a vacancy, appointment is
preferred to designation.
Brillantes v. Yorac
- Doctrine: The President may not appoint the
Acting Chairman of the Comelec in the absence of
the Regular Chairman.
- Reasoning: Art. IX-A, Section 1, of the
Constitution expressly describes all the
Constitutional Commissions as "independent".
Although essentially executive in nature, they are
not under the control of the President in the
discharge of their respective functions. Each of
these Commissions conducts its own proceedings
under the applicable laws and its own rules and in
the exercise of its own discretion. Its decisions,
orders and rulings are subject only to review on
certiorari by the SC as provided in Art. IX-A, Sec
7. The choice of a temporary chairman in the
absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for
it, even with its consent, by the President.
Nacionalista Party v. Vera
- The prohibition in Art. X, Sec. 1 of the 1935
Constitution which provides that the members of
the COMELEC shall hold office for 9 years without
reappointment, comes as a continuation of the
requirement that the Commission shall hold office
for a term of 9 years. Reappointment is not
prohibited provided his term will not exceed 9
years in all.
SECTION 2: Powers and Functions
Powers:
1) Enforce and administer all laws and
regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and
recall.
Ex. COMELEC can enjoin construction of public
works within 45 days of an election.
2) Exercise:
A. Exclusive original jurisdiction over all
contests relating to the elections, returns,
and qualifications of all elective
1. Regional
2. Provincial, and
3. City officials
B. Appellate jurisdiction over all contests
involving:
1. Elective municipal officials decided by
trial courts of general jurisdiction
2. Elective barangay officials decided by
trial courts of limited jurisdiction.
C. Decisions, final orders, or rulings of the
Commission on election contest involving
elective municipal and barangay offices
shall be final, executory, and not
appealable. Exception: Appealable to the
SC on question of law.
D. Contempt powers
1. COMELEC can exercise this power only
in relation to its adjudicatory or quasi-
judicial functions. It CANNOT exercise
this in connection with its purely
executive or ministerial functions.
2. If it is a pre-proclamation controversy,
the COMELEC exercises quasi-
judicial/administrative powers.
3. Its jurisdiction over ‘contest’ (after
proclamation), is in exercise of its
judicial functions.
E. The COMELEC may issue writs of
certiorari, prohibition and mandamus in
exercise of its appellate jurisdiction. This
is not an inherent power.
RA 7166, Sec. 22
Election Contests for Municipal Offices.
- must be decided expeditiously by the RTC.
- decision may be appealed to the Commission
within 5 days from promulgation or receipt of a
copy thereof by the aggrieved party.
- the Commission shall decide the appeal within
60 days after it is submitted for decision, but not
later than 6 months after the filing
of the appeal, which decision shall be final,
unappealable, and executory.
Municipal - original with the RTC; appeal to the
COMELEC
Barangay - original with inferior court; appeal to
COMELEC
Javier v. Comelec
Definitions discussed in the case:
Contests.-- It should not be given a restrictive
meaning, but should receive the widest possible
scope conformably to the rule that the words used
in the Constitution should be interpreted liberally.
As employed in the 1973 Constitution, the term
refers to any matter involving the title or claim of
title to an elective office, made before or after
proclamation of the winner, whether or not the
contestant
is claiming the office in dispute.
Elections, returns and qualifications.-- It should be
interpreted in its totality as referring to all matters
affecting the validity of the
contestee's title. But if it is necessary to specify,
“election” refers to the conduct of the polls,
including the listing of voters, holding of electoral
campaign, and casting and counting of votes;
"returns" to the canvass of the returns and the
proclamation of the winners, including questions Pambansa, elective provincial and city officials,
concerning the composition of the board of has the following powers:
canvassers and the authenticity of the election (1) power to nullify the elections where the will of
returns; and the voters has been defeated and the purity of
"qualifications" to matters that could be raised in elections sullied
a quo warranto proceeding against the proclaimed (2) power to call special elections - The Comelec
winner, such as his disloyalty, or ineligibility, or has the duty to take necessary steps to complete
the inadequacy of his certificate of candidacy. the elections, that is, to see to it that the real
winners are proclaimed. But when the winners
Garcia
Garcia v. v. de
de Jesus
Jesus cannot be determined from the elections, which
-- COMELEC’s
COMELEC’s Jurisdiction:
Jurisdiction: In In the
theabsence
absenceofofany any was marred by massive and pervasive terrorism,
specific
specific conferment
conferment upon uponthe theCOMELEC,
COMELEC,either eitherbyby the Comelec must call for a special election in
the
the Constitution
Constitution or or by
bylaw,law,the theCOMELEC
COMELECisisbereftbereft order to proclaim the real winners.
of
of jurisdiction
jurisdiction to to issue
issue Writs Writs ofof Certiorari,
Certiorari,
Prohibition
Prohibition and and Mandamus
Mandamus inin electoral electoralcontests.
contests.
What
What thethe Constitution
Constitution grantedgrantedthe theCOMELEC
COMELECwas was
appellate
appellate jurisdiction.
jurisdiction. The The Constitution
Constitutionmakesmakesnono Flores v. Comelec
mention
mention of of anyany power
power given given the the COMELEC
COMELEC toto - Declared as unconstitutional Sec. 9 of RA 6679
exercise
exercise original
original jurisdiction
jurisdiction over over Petitions
Petitions for for Flores v. Comelec
(Local Govt Code) insofar as it provides that the
Certiorari,
Certiorari, Prohibition
Prohibition and andMandamus
Mandamusunlike unlikeininthethe -decision
Declared
of as
theunconstitutional Sec. 9 of RA
municipal or metropolitan 6679
court in a
case
case ofof the
the SC SC which
which was wasspecifically
specificallyconferred
conferred (Local
barangay case should be appealed to the RTC. the
Govt Code) insofar as it provides that
such
such authority.
authority. The The immutable
immutable doctrine doctrine isisthatthat decision of the municipal or metropolitan court in
jurisdiction fixed by
jurisdiction is fixed bylaw, law,the the power
power to issue
to issue such a- barangay
Decisions case should
of the be appealed
COMELEC to the RTC.
on election contests
such
Writs Writs
can notcan not from
implied implied the from the mereof
mere existence involving municipal and barangay officer shall be
existence
appellate of appellate jurisdiction.
jurisdiction. -final
Decisions of the COMELEC
and unappealable on election
with respect contestsof
to questions
-- The
The COMELEC
COMELEC isis bereft
bereftofofauthorityauthoritytotodeprive
deprive involving municipal and barangay officer
fact and not of law. Art IX-6 Sec 2(2) of the shall be
Consti
RTCs
RTCs of ofthethe competence
competence to order
to order executionexecution
pending final and unappealable with respect to questions
was not intended to divert the SC of its authority to
pending
appeal. appeal.
For one, For one,
it is it isessentially
essentially aa judicial
judicial of fact and
resolve not of oflaw.
questions lawArt
as IX-6 Sec in2(2)
inherent the of the
judicial
prerogative.
prerogative. For For another,
another,ititisisa apronouncement
pronouncementofof Consti was not intended
power conferred upon it bytothedivert the SC of its
the COMELEC alone
the COMELEC alone in procedural
in its its procedural rules,
rules, without authority
Consti. to resolve questions of law as inherent
without
benefit of benefit
statute, of unlike
statute, unlike
in the past.in There
the past.
is no in the judicial power conferred upon it by the
There
expressis no expressofprovision
provision of law disauthorizing
law disauthorizing executions Consti.
executions pending appeal,
pending appeal, and the and COMELEC,
the COMELEC, in inits
its procedural
procedural rules
rules alone,
alone, should
should notnotbebeallowed
allowedto
to divestRTCs
divest RTCsofof thatthat authority. It It deprives
deprivesthe the Galido
Galido v.
v. Comelec
Comelec
prevailing
prevailing party
party ofofaasubstantive
substantiveright righttotomove
movefor for -- The
The fact
fact that
that decisions,
decisions,final
finalorders
ordersororrulings
rulingsofof
such
such relief
relief contrary
contrary totothe theconstitutional
constitutionalmandate
mandate the
the COMELEC
COMELEC in in contests
contestsinvolving
involvingexecutory
executoryand and
that
that those
those RulesRules cannot
cannot diminish diminish nor nor modify
modify not
not appealable doesdoes not
notpreclude
precludea arecourse
recourseto to
the
substantive
substantive rights.
rights. the SC way
SC by by way
of aof a special
special civilcivil action
action of certiorari.
of certiorari.
of this governmental power.” legislative power, a
legislature is the exclusive judge."
3) Decide, except those involving the right to
vote, all questions affecting elections,
including determination of the number and
Veloria v. Comelec location of polling places, appointment of
Veloria v. Comelec
- An original special civil action of certiorari, election officials and inspectors, and
-Sanchez
An original
v.or special civil action of certiorari,
Comelec
prohibition mandamus against a RTC in an registration of voters.
prohibition
- The Comelec, or mandamus
as the against of a RTCcontests
in an
election contest may be sole
filed judge
in the CAall or in the NOTE: Questions involving the right to vote
election
relating contest
to the may be
the elections, filed in
returns the CA or in the SC
SC being only courts givenand qualifications
such original fall within the jurisdiction of the ordinary
being
of all the only
members of thecourts
Batasang given such original
jurisdiction under the Constitution and the law courts.
jurisdiction
Pambansa, under the
elective Constitution
provincial and and
city the law has
officials, 4) Deputize, with the concurrence of the
the following powers: President, law enforcement agencies and
(1) power to nullify the elections where the will of instrumentalities of the Government, including
the voters has been defeated and the purity of the Armed Forces of the Philippines, for the
elections sullied
Sanchez v. Comelec exclusive purpose of ensuring free, orderly,
-(2)Thepower to call
Comelec, as special
the sole elections
judge of - The Comelec
all contests honest, peaceful, and credible elections.
has the to
relating duty
the to take necessary
elections, returns andsteps to complete
qualifications i. This power is NOT limited to the
oftheallelections,
members thatof theis, to see to it that the real
Batasang election period.
winners are proclaimed. But when the winners
cannot be determined from the elections, which
was marred by massive and pervasive terrorism,
the Comelec must call for a special election in order
to proclaim the real winners.
 ii. Applies to both criminal and
administrative cases.
People v. Inting
-Gen. Rule: The power to conduct preliminary
investigations in cases involving election offenses
for the purpose of helping the judge determine
probable cause and for filing an information in
court is exclusive with the COMELEC. Exception:
The Fiscal may file an information charging an
election offense or prosecute a violation of
election law, when he has been deputized by the
COMELEC.
- It is only after a preliminary examination
conducted by the COMELEC through its officials or
its deputies that Sec. 2, Art. III of the 1987
Constitution comes in. This is so, because, when
the application for a warrant of arrest is made and
the information is filed with the court, the judge
will then determine whether or not a probable
cause exists for the issuance of a warrant of
arrest.
5) Registration of political parties,
organizations, or coalitions/accreditation of
citizens’ arms of the Commission on Elections.
a) The political parties etc. must present
their platform or program of
government.
b) There should be sufficient publication
c) Groups which cannot be registered:
i. Religious denominations/sects
ii. Groups which seek to achieve
their goals through violence or
unlawful means
iii. Group which refuse to uphold
and adhere to the Constitution
iv. Groups which are supported by
any foreign government.
d) BUT: Political parties with religious
affiliation or which derive their principles
from religious beliefs are registrable.
e) Financial contributions from foreign
governments and their agencies to
political parties, organizations,
coalitions, or candidates related to
elections constitute interference in
national affairs. If accepted, it is an
additional ground for the cancellation of
their registration with the Commission,
in addition to other penalties that may
be prescribed by law.
6) File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion of
exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting election frauds, offenses and
malpractices.
A. COMELEC has exclusive jurisdiction to
investigate and prosecute cases for
violations of election laws.
B. COMELEC can deputize prosecutors for
this purpose. The actions of the
prosecutors are the actions of the
COMELEC
C. Preliminary investigation conducted by
COMELEC is valid
If the Board of Registration cancels the name of a
voter, the voter can
- file in the MTC a petition for an order to include
his name in the list of voters or to reinstate him
- within 20 days form the last day of registration
- appeal can be made to the RTC within 5 days,
and the decision shall be final and unappealable
and no motion for reconsideration shall be allowed
Exclusion Proceedings (Articles 138, 139, 142)
A petition for exclusion must be filed with the MTC
within 20 days from the last day of registration.
Prosecute election law violators
1. COMELEC has exclusive jurisdiction to
investigate and prosecute cases for violations of
election laws.
2. COMELEC can deputize prosecutors for this
purpose. The actions of the prosecutors are the
actions of the COMELEC. (BP 881 sec. 265; EO
134, Sec. 11, Feb 27, 1987)
3. In the event that the Commission fails to act on
any complaint,
a. within 4 months from the filing of the
complaint, complainant may file complaint with
the office of the fiscal or with the Ministry of
Justice for proper investigation and prosecution, if
warranted. (BP 881 sec. 265)
b. within 2 months from filing, the complainant
may file the complaint with the Office of the Fiscal
or with the Department of Justice for proper
investigations and prosecution, if warranted. (EO
134, Sec. 11, Feb 27, 1987)
De Jesus v. People
- A govt official who violated the election law must
be prosecuted by the COMELEC before the RTC,
not the Sandiganbayan. The 1978 Election Code is
clear that the COMELEC shall have the power to
conduct preliminary investigations of all election
offenses, and that the RTC has exclusive original
jurisdiction to try and decide such ncases. It is not
the character or personality of the offender (public
official) but the crime committed (violation of
election law) that determines jurisdiction.
People v. Delgado
- The Comelec has the following functions: (1)
enforcement of election laws; (2) decision of
election contests; (3) decision of administrative
questions; (4) deputizing law enforcement
agencies; (5) registration of political parties; and
(6) improvement of elections.
- What are reviewable on certiorari by the SC are
those orders, decisions, etc., rendered in actions
or proceedings before the
Comelec in the exercise of its adjudicatory or
quasi-judicial powers. Decisions of the Comelec on
election contests or on administrative questions
are subject to judicial review only by the SC.
ONSTITUTIONAL LAW 1
- As a public prosecutor, the Comelec has the
exclusive authority to
conduct preliminary investigation and prosecute
offenses punishable under the election code
before the competent court.
But when the Comelec files the information, the
subsequent disposition of the case is subject to
the court's approval. The
Comelec can't conduct reinvestigation unless so
ordered by that court nor refuse its order of
reinvestigation.
7) Recommend to the Congress effective
measures to minimize election spending,
including limitation of places where
propaganda materials shall be posted, and to
prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance
candidates.
8) Recommend to the President the removal of
any officer or employee it has deputized, or
the imposition of any other disciplinary action,
for violation or disregard of, or disobedience
to its directive, order, or decision.
9) Submit to the President and the congress a
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or
recall.
10)Other functions
Art. IX, A, Sec. 8.
Each Commission shall perform such other
functions as may be provided by law.
l. Act as National Board of Canvassers for
senators
EO 144, Sec. 2, March 2, 1987
National Board of Canvassers for the election of
Senators
- composed of the Chairman and Members of the
COMELEC sitting en banc
- shall canvass all certificates of canvass coming
from and prepared by the district, provincial, and
city boards of canvassers (of those cities which
comprise one or more legislative districts.)
- There shall be a board of canvassers for each
province, city, municipality and district of
Metropolitan Manila
8. Review of COMELEC decisions, orders and
resolutions
CONSTITUTIONAL LAW 1
Art. IX, C, Sec. 2.
The COMELEC has:
(1) exclusive original jurisdiction over all contests
relating to the elections, returns, and
qualifications of all elective regional, provincial,
and city officials
(2) appellate jurisdiction over all contests
involving elective municipal officials decided by
trial courts of general jurisdiction, or involving
elective barangay officials decided by courts of
limited jurisdiction.
- Decisions, final orders, or rulings of the
Commission on election contests involving elective
municipal and barangay offices shall be final,
executory, and not appealable.
Art. IX, A, Sec. 7.
- COMELEC decision: (1) decided by a majority
vote of all its
Members, (2) within 60 days from the date of its
submission for decision or resolution, that is upon
the filing of the last pleading, brief, or
memorandum required by the rules of the
Commission or by the Commission itself
- Review: by the SC on certiorari brought by the
aggrieved party within 30 days from receipt of a
copy the decision, order or ruling
- Exception: unless otherwise provided by the
Constitution or by law
SECTION 2: Rules of Procedure / Decision-
Making
Rules of Procedure
1. COMELEC can sit en banc or in two divisions
2. It has the power to promulgate its own rules
or procedure in order to expedite disposition
of election cases, including pre-election
controversies.
Decision-Making
1. Election cases should be heard and
decided in division.
2. However, motions for reconsideration of
decision should be decided by COMELEC
en banc.
 3. “Decisions” means resolution on
substantive issues.
4. If a division dismisses a case for a failure
of counsel to appear, the Motion for
Reconsideration here may be heard by the
division.
5. EXCEPTION: COMELEC en banc may
directly assume jurisdiction over a petition
to correct manifest errors in the tallying of
results by Board of Canvassers.
NOTE: In Balajonda v. COMELEC (GR No.
166032), the COMELEC CAN ORDER IMMEDIATE
EXECUTION OF ITS OWN JUDGMENTS.
SECTION 4: Supervision/Regulation of
Franchises/Permits/Grants/Special
Privileges/Concessions
Regulation of franchises
A. What can COMELEC supervise or regulate
1) The enjoyment or utilization of all
franchises or permits for the operation
of transportation and other public
utilities, media of communication or
information.
2) Grants, special privileges or
concessions granted by the
Government or any subdivision,
agency or instrumentality thereof, any
GOCC or its subsidiary
B. When can COMELEC exercise this power
1) During the election period
a) Under Article XI, Section 9, the
election period commences 90
days before the day of the
election and ends 30 days
thereafter.
b) In special cases, COMELEC can
fix a period.
2) Applies not just to elections but also to
plebiscites and referenda.
3) Plebiscite: Submission of constitutional
amendments or important legislative
measures to the people for ratification
4) Referendum: power of the electorate to
approve or reject legislation through an
election called for that purpose.
COMELEC and the MEDIA
a. COMELEC cannot compel print media to
donate free space to the COMELEC. It
may, however compel it to provide space
after paying just compensation.
b. Power of COMELEC is over franchises and
permits, NOT individuals. For example,
COMELEC may not regulate media
petitioners, for this would violate the
freedom of expression.
National Press Club v. Comelec
- The Comelec has been expressly authorized by
the Constitution to supervise or regulate the
enjoyment or utilization of the franchises
or permits for the operation of media of
communication and information.
CONSTITUTIONAL LAW 1
- Purpose: to ensure "equal opportunity, time, and
space, and the right to reply," as well as uniform
and reasonable rates of charges
for the use of such media facilities, in connection
with "public information campaigns and forums
among candidates."
- The law limits the right of free speech and of
access to mass media of the candidates
themselves. The limitation however, bears a clear
and reasonable connection with the objective set
out in the Constitution. For it is precisely in the
unlimited purchase of print space and radio and
television time that the resources of the financially
affluent candidates are likely to make a crucial
difference.
SECTION 5: No pardon, amnesty, parole, or
suspension of sentence for violation of
election laws, rules, and regulations shall be
granted by the President without the
favorable recommendation of the
Commission.
SECTION 6: A free and open PARTY SYSTEM
Definition of “POLITICAL PARTY”
Organized group of persons pursuing the
same political ideals in a government and includes
its branches, and divisions
Importance of registration of a political party
1. Registration confers juridical personality on
the party.
2. It informs the public of the party’s existence
and ideals.
3. It identifies the party and its officers for
purposes of regulation by the COMELEC.
SECTION 7: No votes cast in favor of a
political party, organization, or coalition shall
be valid, except for those registered under
the party-list system as provided in this
Constitution.
Prohibition on block-voting
1) General rule: Block voting NOT allowed
 2) EXCEPTION: those registered under the
party-list system SECTION 10: Bona fide candidates for any
public office shall be free from any form of
SECTION 8: PARTY LIST SYSTEM harassment and discrimination.

No Right to be Represented in Various a. This section does not give candidates

Boards immunity from suit.
Political parties, organizations, or coalitions b. Discrimination includes unequal treatment
registered under the party-list system shall NOT in the availment of media facilities.
be represented in the following:
 Voters’ registrations boards,
 Boards of election inspectors, SECTION 11: FUNDING
 Boards of canvassers, or
 Other similar bodies
How provided
Poll Watchers 1. Funds certified by the COMELEC as necessary
Political parties, etc. are entitled to appoint poll to defray the expenses for holding regular and
watchers in accordance with law. special elections, plebiscites, initiative,
referenda and recalls, shall be provided in the
Registration under the party list system regular or special appropriations.
2. Funds should be certified by the COMELEC as
Art. IX, C, Sec. 7. No votes cast in favor of a necessary.
political party, organization, or coalition shall be
valid, except for those registered under the party- Release of funds
list system as provided in this Constitution. Once approved, funds should be released
automatically upon certification by the Chairman
Art. IX, C, Sec. 8. Political parties, or of COMELEC.
organizations or coalitions registered under the
party-list systems THE COMMISSION ON AUDIT
- shall not be presented in the voters' registration
boards, boards of election inspectors, boards of SECTION 1: Composition / Qualifications
canvassers, or other similar bodies.
- shall be entitled to appoint poll watchers in
accordance with law
Composition:
Art. VI, Sec. 5. xxx 1) Chairman, and
Party-list representatives 2) Commissioners (2).
- shall constitute 20% of the total number of
representatives including those under the party
list. Qualifications:
- For 3 consecutive terms after the ratification of A. Natural-born citizens of the Philippines
this Constitution, one-half of the seats allocated to B. At least 35 years old at the time of their
the partylist representatives shall be filled, as appointment;
provided by law, by selection or election from C. Either:
labor, peasant, urban poor, indigenous cultural 1. CPA’s with at least 10 years auditing
communities, women, youth, and such other experience; or
sectors as may be provided by law, EXCEPT the 2. Members of Phil. Bar with 10 years of
religious sector. practice.
D. Members cannot all belong to the same
Art. XVIII, Sec. 7. profession.
WHO: President E. Subject to confirmation of the CA.
WHAT: fill the seats reserved for sectoral F. Must not have been candidates for any
representation in Sec 5(2) of Art VI elective position in the elections immediately
HOW: by appointment from a list of nominees by preceding their appointment.
the respective sectors
PERIOD: until a law is passed
Term:
1) 7 years (1st appointees) Chairman-7yrs; the payment of a proposed
Commissioner1-5yrs; Commissioner2-3yrs) expenditure.
2) LIMITATION: Single terms only; no re-
appointment allowed NOTE:
3) Appointments to any vacancy shall only be 1) The functions of COA can be classified as:
for the unexpired portion of predecessor’s A. Examine and audit all forms of
term government revenues;
B. Examine and audit all forms of gov’t
SECTION 2: Powers expenditures
C. Settle gov’t accounts
D. Promulgate accounting and auditing rules
(including those for the prevention of
1) Examine, audit, and settle accounts pertaining
irregular…expenditures).
to:
E. To decide administrative cases involving
a) Revenue and receipts of funds or
expenditures of public funds.
property; or
2) COA can settle only LIQUIDATED ACCOUNTS
b) Expenditures and uses of funds or
or those accounts which may be adjusted
property
simply by arithmetic process.
Owned or held in trust by, or pertain to:
3) COA has authority not just over accountable
1) The Government;
officers but also over other officers who
2) Any of its subdivisions, agencies or
perform functions related to accounting such
instrumentalities;
as verification of evaluations and computation
3) Including GOCC’s with original
of fees, collectible, and the adoption of
charters.
internal rules of control.
4) COA does not have the power to fix the
2) Conduct post-audit with respect to the
amount of an unfixed or undetermined debt.
following:
5) Where the following requirements are
a) Constitutional bodies, commissions, and
complied with, it becomes the ministerial duty
offices granted fiscal autonomy;
of the COA to approve and pass in audit
b) Autonomous state colleges and
vouchers for payment:
universities;
a) There is a law appropriating funds for a
c) GOCC’s and their subsidiaries incorporated
particular purpose;
under the Corporation Code.
b) There is a contract, made by the proper
d) Non-governmental entities receiving
officer, entered into in conformity with the
subsidies or equity, directly or indirectly,
above-mentioned law;
from or through the government, which
c) he goods or services covered by such
are required by law of the granting of
contract have been delivered or rendered
institution to submit to such audit.
in pursuance to such contract, as attested
3) If COA finds internal control system of audited
by the proper officer; and
agencies as inadequate, COA may adopt
d) Payment has been authorized by officials
measures, including temporary or special pre-
of the corresponding department or
audit, as may be necessary.
bureau.
4) Keep the general accounts of the government,
6) Prosecutors may still review accounts already
preserving vouchers and other supporting
settled and approved by COA for the purpose
papers pertaining thereto.
of determining possible criminal liability. This
5) Exclusive authority to define the scope of
is because COA’s nterest in such accounts is
COA’s audit and examination and to establish
merely administrative.
the techniques and methods required
7) COA has the power to determine the meaning
therefore.
of ‘public bidding’ and what constitutes failure
6) Promulgate accounting and auditing rules and
when regulations require public bidding for the
regulations.
sale of government property.
a) Including those for the prevention or
8) Rule-making
disallowance of irregular,
9)
unnecessary, excessive,
Art. IX, A, sec. 6
extravagant, or unconscionable
Each Commission en banc may promulgate its
expenditures or uses of government
own rules concerning pleadings and practice
funds and properties.
before it or before any of its offices. Such rules,
b) Failure to comply with these rules
however, shall not diminish, increase, or modify
can be a ground for disapproving
substantive rights.

9. Other Functions
Art. IX, A, sec. 8
Each Commission shall perform such other
functions as may be provided by law.
10. Review of Decisions of COA
Art. IX, A, sec. 7
- COA decision: (1) decided by a majority vote of
all its Members, (2) within 60 days from the date
of its submission for decision or resolution, that is
upon the filing of the last pleading, brief, or
memorandum required by the rules of the
Commission or by the
Commission itself
- Review: by the Supreme Court on certiorari
brought by the aggrieved party within 30 days
from receipt of a copy the decision, order or
ruling- Exception: unless otherwise provided by
the Constitution or by law
SECTION 3:. No law shall be passed
exempting any entity of the Government or
its subsidiary in any guise whatever, or any
investment of public funds, from the
jurisdiction of the Commission on Audit.n
Audit.
ARTICLE X:
Section 4 Annual report of COA to the President &
Congress.
Annual Report
Art. IX-D, §4
The COA shall submit
- TO WHOM: President and Congress
- WHEN: within the time fixed by law
- WHAT: (1) annual report covering the financial
condition and operation of the Government, its
subdivisions, agencies, and instrumentalities,
including GOCCs, and non-governmental entities
subject to its audit, and recommend measures
necessary to improve their effectiveness and
efficiency, (2) such other reports as may be
required by law
LOCAL GOVERNMENT
SECTION 1:. TERRITORIAL/POLITICAL
SUBDIVISIONS OF THE REPUBLIC OF THE
PHILIPPINES ARE:
Composition:
1) Provinces
2) Cities;
3) Municipalities; and
4) Barangays
There shall be Autonomous regions in:
1) Muslim Mindanao, and
2) Cordilleras [At present, it is only the
Cordillera ADMINISTRATIVE region]
NOTE: 1) A third autonomous region would
require a constitutional amendment.
2) These political subdivisions, created
by the Constitution can be replaced by
AMENDMENT, and not by law.
3) While Congress can be abolish or
eradicate individual units, it cannot abolish an
entire class of LGUs
SECTION 2:. Local Autonomy
1) All political subdivision shall enjoy local
autonomy
2) This does not mean that the LGU are
completely free from the central government.
A. Judiciary may still pass on LGU actions
B. President may exercise disciplinary power
over LGU officials.
SECTION 3:. Congress shall enact a local
government code which shall provide for a
more responsive and accountable local
government structure instituted through a
system of decentralization with effective
mechanisms of recall, initiative, and
referendum, allocate among the different
local government
SECTION 4:. PRESIDENTIAL SUPERVISION
OF LGU’S
Supervision of President
A. The President exercises GENERAL
supervision over all LGUs
B. The President exercises DIRECT
supervision over
C. Provinces
D. Autonomous regions and
E. Independent cities.
F. This power is limited to ensuring that
lower officers exercise their functions in
accordance with law.
G. The President cannot substitute his
judgment for that of an LGU official unless
the latter is acting contrary to law.
 H. The President may, however, impose
administrative sanctions against LGU
officials, such as suspension for 120 days,
and may even remove them from their
posts, in accordance with law.
I. Provinces exercise DIRECT supervision
over component cities and municipalities.
J. Cities and municipalities exercise DIRECT
supervision over component Barangays.
SECTION 5: Each local government shall
have the power to create own sources of
revenue/levy taxes, fees and charges etc.
Limitations on Power
A. It is subject to such guidelines and
limitations as Congress may provide. See
Local Government Code for examples.
B. The guidelines set by Congress should be
consistent with the basic policy of local
autonomy.
Accrual of taxes, fees, charges
The taxes, fees and charges shall accrue
exclusively to the local governments.
SECTION 6: LGUs shall have a just share in
national taxes, as determined by law, which
shall be automatically released to them.
Internal Revenue Allotment (IRA)
1) Share of LGUs in national taxes is limited to
the internal revenue taxes.
2) The share of each LGU should be released,
without need of any further action, directly to
the provincial, city, municipal or barangay
treasurer. Release is made on a quarterly
basis within 5 days after the end of each
quarter.
3) The share of each LGU should not be subject
to any lien or holdback that may be imposed
by the national government for whatever
purpose.
4) Each LGU should appropriate in its annual
budget at least 20% of its annual IRA for
development or infrastructure projects in
accordance with local development plan
5) Adjustments in IRA
A. Ground: Unmanageable public section
deficit
B. President can make the necessary
adjustments in the IRA upon the
recommendation of the following:
a) Department of Finance Secretary
b) DILG Secretary
c) DBM Secretary
6) IRA is included as part of the income of an
LGU for purposes of compliance with the
income requirement for conversion from one
political subdivision to the next (Alvarez v.
Guingona)
SECTION 7: Share of LGUs in National
Wealth
Share of LGUs in national wealth
1. LGUs are entitled to an equitable share in the
proceeds of the utilization and development of
the national wealth within their respective
areas in the manner provided by law.
2. This includes sharing the same with the
inhabitants by way of direct benefits.
Under the LGC: CODE: MR.-FOS
1. LGUs have a share of 40% of the gross
collection derived by the national government
from the preceding fiscal year from
a. Mining taxes
b. Royalties
c. Forestry and fishery charges
d. Other taxes, fees and charges
e. Share in any co-production, joint venture
or production sharing agreement in the
utilization and development of the national
wealth w/in their territorial jurisdiction
SECTION 3:Term of Office
Term of Office
Elective local officials, now including barangay
officials, have a term of 3 years.
Limitations
1. No elective official shall serve for more
than 3 consecutive terms
2. Voluntary renunciation of office for any
length of time shall not be considered as
an interruption in the continuity of his
service for the full for which he was
elected.
SECTION 9: SECTORAL REPRESENTATION IN
LGUS
Legislative bodies of the local governments
shall have Sectoral Representation (under
the LGC) as may be provided by law
There should be representatives from:
a. The women’s sector SECTION 12: CITIES
b. The workers
c. Third sector (can choose form any of the
following)
Classification of Cities:
a. Urban poor
1. Highly urbanized (as determined by law)
b. Indigenous cultural communities
2. Component cities (cities still under provincial
c. Disabled persons
control); and
d. Any other sector as may be determined by
3. Independent component cities (non-highly
the Sanggunian
urbanized cities whose voters are prohibited
by the city charter from voting in provincial
elections)
Election of Sector Representatives

SECTION 10. Creation, abolition and division
of LGU’s
1) Requisites
a) Compliance with the requirement of the
local Government Code; and
b) Approved by a majority of the votes cast
in a plebiscite held in the political units
DIRECTLY affected.
2) Thus, if a province is to be divided into 2
separate provinces, plebiscite will include
voters of the ENTIRE province, and not just
the area to comprise the new province.
3) LGC requirement relate to matters such as
POPULATION, REVENUE, and AREA
requirements.
Independence from the Province
1. Highly urbanized cities and independent
component cities are independent of the
province.
2. Component cities whose charter contains no
such prohibition are still under the control of
the province and its voters may still vote for
elective provincial officials.
SECTION 13: Coordination Among LGUs
Consolidation and Coordination of Efforts,
Services and Resources
A. It is optional on the part of LGUs as
shown by the use of the word “may”
B. It can be done for purposes commonly
beneficial to them in accordance with
the law.

LGC, Section 33
Consolidation and coordination may
Section 14. REGIONAL DEVELOPMENT COUNCILS be done through appropriate
SECTION 11: Special Metropolitan Political ORDINANCE.
Subdivisions A PUBLIC HEARING should be
conducted and the approval of the
sanggunian obtained.
Creation: An LGU can:
A. Congress may create special metropolitan Contribute funds, real estate,
political subdivision by law. equipment and other kinds of
B. It is subject to a plebiscite
property
Jurisdiction of Metropolitan authority Appoint/assign personnel under such
It is limited to basic services requiring terms and conditions as may be
coordination. agreed upon by the participating
LGUs through MEMORANDA OF
Basic Autonomy of Component Cities and AGREEMENT.
Municipalities
The component cities and municipalities retain Section 14. REGIONAL DEVELOPMENT
their basic autonomy COUNCILS
They shall be entitled to their own local executive
and legislative assembles.
Who can provide for RDC
The President shall provide for RDC or other 5. The question of which LGUs shall constitute an
similar bodies composed of: autonomous region is one which is exclusively
for Congress to decide.

Composition
(i) Local government officials
(ii) Regional heads of Section 16. GENERAL SUPERVISION OVER
departments and other AUTONOMOUS REGIONS
government offices
(iii) Representatives of NGOS By Whom: The President
within the regions Purpose: To ensure that the laws
are faithfully executed.
For Purpose of
1) Administrative decentralization
2) To strengthen local autonomy
3) To accelerate the economic and social
Sec.17. All powers, functions and
growth and development of the units in
responsibilities not granted by this
the region
Constitution or by law to the autonomous
region shall be vested in the National
Government.

Section 15. AUTONOMOUS REGIONS

Examples: 1) Foreign relations,
2) National defense and
Security
3) Monetary Affairs
Where:
1) Muslim Mindanao Section 20. LEGISLATIVE POWERS
2) Cordillera region

Factors: The Organic Act of Autonomous Region shall

1. Historical heritage provide for legislative powers over
2. Cultural heritage 1. Administrative organizations;
3. Economic and social structures, 2. Creation of sources of revenues;
4. Other relevant characteristics within: 3. Ancestral domain and natural resources
a) The framework of the constitution 4. Personal, family and property relations
b) National sovereignty 5. Regional, urban, and rural planning
c) Territorial integrity. development;
6. Economic, social, and tourism development;
7. Educational policies;
Creation: 8. Preservation and development of the cultural
1. Provided BY LAW. heritage; and
2. EFFECTIVITY of such creation occurs only 9. Such other matters as may be authorized by
when it is approved by a majority of the votes law for the promotion of the general welfare
cast in a plebiscite held among the constituent of the people of the region.
units.
3. Only those Provinces, Cities, and Geographical
Areas voting favorably in such plebiscite shall Limitations:
from part of the autonomous region. 1. Subject to the provisions of the Constitution
4. If only 1 province approved the law, NO and national laws
AUTONOMOUS REGION is created, since the 2. To be exercised within its territorial
constitution requires more than one province jurisdiction
to constitute one (like what happened in the
Cordillera plebiscite)
Section 21. PRESERVATION OF PEACE AND impeachment proceedings; he can still be
ORDER/DEFENSE AND SECURITY impeached.

All other Public Officers and Employees

1. They may be removed from office as provided
Peace and Order
by law
1) It shall be responsibility of the local police
2. BUT: NOT by impeachment
agencies.
Defense and Security
2) It shall be the responsibility of the national
government.
Section 3: PROCEDURE FOR IMPEACHMENT

ARTICLE XI: ACCOUNTABILITY OF PUBLIC Exclusive Power of House of Representatives

OFFICERS The House of Representatives has not exclusive
power to INITIATE all cases of impeachment.
Section 1: PUBLIC OFFICE AS A PUBLIC
TRUST Procedure:
1. Filling of verified complaint
a. Can be filed by:
Public officers and employees must at all times be
i. Any member of the House of
accountable to the people, serve them with
Representatives or
utmost responsibility, integrity, loyalty and
ii. Any citizen upon a resolution or
efficiency, act with patriotism and justice and lead
endorsement by any Member of
modest lives.
the House or
iii. By at least 1/3 of all the
Section 2: IMPEACHMENT/REMOVAL FROM Members of the House of
OFFICE Representatives
2. Inclusion of complaint in the order of
Impeachment: (as means of removal from business with 10 session days
office) 3. Referral to proper Committee within 3
session days thereafter
1. Who may be impeached: 4. Submission of Committee report to the
1. President House together with corresponding
2. VP resolution
3. SC Justice a) There should be a hearing
4. Constitutional Commission members b) There should be a majority vote of
5. Ombudsman the members
c) The report should be submitted
within 60 days from referral, after
2. Grounds (CODE: CT-GOBB) hearing, and by a majority vote of
a) Culpable violation of the Constitution ALL its members.
b) Treason 5. Calendaring of resolution for consideration
i. graft and corruption by the House
ii. other high crimes or Should be done within 10 session days
iii. betrayal of public trust from receipt thereof
iv. bribery 6. Vote of at least 1/3 of all Members of the
House necessary to:
NOTE: It is an exclusive list. Congress cannot, by 7. Affirm a favorable resolution with the
law, add to the list of impeachable offense. Articles of Impeachment of the Committee
1) These officers cannot be charged in court with or
offenses that have removal from office as 8. To override its contrary resolution
penalty.
2) SC Justice cannot be disbarred because this NOTE: If the verified complaint or resolution of
would disqualify him from his position. impeachment was filed by at least 1/3 of all the
3) BUT AFTER an official has been impeached, he Members of the House, it shall constitute the
can be charged with the appropriate offense. Articles of Impeachment. Trial in the Senate shall
4) Resignation by an impeachable official does proceed.
not place him beyond the reach of
Trial in the Senate
1. Senate has the sole power to try and decide
all cases of impeachment
2. For this purpose, the Senators shall be under
oath or affirmation
3. When the President of the Philippines is on
trial, the CJ of the Supreme Court presides.
However, he/she will not vote.
Judgment of Conviction
This requires the concurrence of 2/3 of all the
Members of the Senate
Effect of the Impeachment
1. Removal from office of the official concerned
2. Disqualification to hold any office under the
Republic of the Philippines
3. Officer still liable to prosecution, trial, and
punishment if the impeachable offense
committed also constitutes a felony or crime.
Section 4: SANDIGANBAYAN
Sandiganbayan = the anti-graft court
Disqualifications/Prohibitions (under Article
IX, Section 2)
a) Cannot hold any other office or employment
during his tenure
b) Cannot engage in the practice of any
profession or in the active management or
control of any business which may be affected
by the functions of his office
c) Cannot be financially interested, directly or
indirectly, in any contract with or in any
franchise or privilege granted by the
Government, any of its subdivisions, agencies
or instrumentalities, including GOCCs or their
subsidiaries
Appointment Of Ombudsman and deputies
1) By the president from a list of at least 6
nominees prepared by the Judicial and Bar
Council. Vacancies will be filled from a list of 3
nominees
2) Appointments do NOT require confirmation
3) All vacancies shall be filled within 3 months
after they occur.
Of other officials and employees of the Office of
the Ombudsman
1. By the Ombudsman
2. In accordance with Civil Service Law

Term: (Ombudsman and deputies)

Sections 5-6, 8-14: OFFICE OF THE
1. 7 years with reappointment
OMBUDSMAN
2. They are NOT qualified to run for any office in
the election immediately succeeding their
Composition: cessation from office
a) Ombudsman/Tanodbayan
b) Overall deputy
c) At least one Deputy each for Luzon, Rank/Salaries:
Visayas and Mindanao 1. The Ombudsman has the rank of Chairman of
d) Deputy for military establishment may be a Constitutional Commission
appointed 2. The Members have the rank of members of a
Constitutional Commission
3. Their salaries cannot be decreased during
Qualifications: (Ombudsman and his their term of office.
deputies)
a) Natural born citizen of the Philippines Powers, Functions and Duties of the Office of the
b) At least 40 years old at a time of Ombudsman
appointment 1. Investigate on its own, or on complaint by any
c) Of recognized probity and independence person, any act or omission of any public
d) Member of the Philippine bar official, employee, office or agency, when such
e) Must not have been candidate for any act or omission appears to be illegal, unjust,
elective office in the immediately improper, or inefficient.
preceding election a. The SC held that the power to
For Ombudsman: He must have been for ten investigate and prosecute cases
years or more involving public officers and
f) A judge or employees has been transferred to
g) Engaged in the practice of law in the the Ombudsman.
Philippines
 b. The Ombudsman may always
delegate his power to investigate.
c. The power to investigate includes
the power to impose preventive
suspension.
d. This preventive suspension is not a
penalty.
e. “INVESTIGATE” does not mean
preliminary investigation
f. The complaint need not be drawn up
in the usual form
g. The “ILLEGAL” act or omission need
not be in connection with the duties
of the public officer or employee
concerned.
h. ANY illegal act may be investigated
by the Ombudsman. In this regard,
the Ombudsman’s jurisdiction is
CONCURRENT with that of the
regular prosecutors.
2. Direct, upon complaint or at its own instance,
any public official or employee of the
government, or any subdivision, agency or
instrumentality thereof, as well as of any
government-owned or controlled corporation
with original charter, to perform and expedite
any act of duty required by law, or to stop,
prevent, and correct any abuse or impropriety
in the performance of duties.
a.) The Ombudsman has PERSUASIVE
POWER, and may require that
proper legal steps are taken by the
officers concerned.
b.) The public official or employee must
be employed in:
i. The Government
ii. Any subdivision, agency, or
instrumentality thereof; or
iii. GOCC’s with original
charters
c.) The SC has held that the SP may
prosecute before the Sandiganbayan
judges accused of graft and
corruption, even if they are under
the Supreme Court.
3. Direct the officer concerned to take the
appropriate action against a public official or
employee at fault, and recommend his
removal, suspension, demotion, fine, censure,
or prosecution, and ensure compliance
therewith.
a. The Ombudsman does NOT himself
prosecute cases against public
officers or employees
b. Final say to prosecute still rest in
the executive department.
c. The Ombudsman of Tanodbayan
may use mandamus to compel the
fiscal to prosecute.
4. Direct the officer concerned, in any
appropriate case, and subject to such
limitations as may be provided by law to
furnish it with copies of documents relating to
contracts or disbursement or use of public
funds or properties, and report any
irregularity to COA for appropriate action.
5. Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to
examine, if necessary, pertinent records and
documents.
6. Public matters covered by its investigation
when circumstances so warrant and with due
process
7. Determine the cause of inefficiency, red tape,
mismanagement, fraud and corruption in the
government and make recommendations for
their elimination and the observance of high
standards of ethics and efficiency
8. Promulgate its rules of procedure and exercise
such other powers or perform such functions
or duties as may be provided by law
NOTE: The Office of the Ombudsman also has the
duty to act promptly on complaints filed in any
form or manner against public officials or
employees of the government, or any subdivision,
agency or instrumentality including GOCCs and
their subsidiaries. In appropriate cases, it should
notify the complainants of the action taken and
the result thereof.
Fiscal Autonomy:
The Office of the Ombudsman enjoys fiscal
autonomy. Its approved annual appropriations
should be automatically and regularly released.
Section 7: OFFICE OF THE SPECIAL
PROSECUTOR
1. Under the 1987 Constitution, the existing 1. The above mentioned officials cannot obtain,
Tanodbayan became the Office of the Special directly or indirectly for BUSINESS
Prosecutor PURPOSES:
2. Powers a. Loans
a. It will continue to function and exercise its b. Guarantees
powers as now or hereafter may be c. Other forms of financial
provided by law accommodation From:
b. Exception: Powers conferred on the Office i. Government owned or
of the Ombudsman controlled banks; or
3. The Office of the Special Prosecutor is ii. Government owned or
subordinate to and acts under the orders of controlled financial
the Ombudsman institutions.
2. If the loan, etc, is NOT for business purpose,
NOTE: According to Jack, the SC was e.g. housing loan, the prohibition does not
wrong because the ConCom intended apply.
that the SP was to prosecute anti-graft
cases.

Section 17: Statements of assets, liabilities

Section 15: RECOVERY OF ILL-GOTTEN
WEALTH
Prescription, Laches, Estoppel
1. The right of the State to recover properties
unlawfully acquired by public
officials and employees from them or from
their nominees or transferees shall
NOT be barred by prescription, laches or
estoppel.
2. Their right to prosecute criminally these
officials and employees may prescribe.
Section 16: PROHIBITION ON CERTAIN
FINANCIAL TRANSACTIONS
Coverage:
This prohibition applies to:
1. President
2. Vice-President
3. Members of the Cabinet
4. Members of Congress
5. Members of Supreme Court
6. Members of Constitutional Commissions
7. Ombudsman
8. Any firm or entity in which they have
controlling interest
When prohibition applies: during their TENURE.
Scope of prohibition:
and net worth
When submitted:
Public officer and employees shall submit a
declaration under oath of his assets, liabilities and
net worth upon assumption of office and as often
as required under the law.
When declaration shall be disclosed to the
public:
These declarations shall be disclosed to the public
in a manner provided by law in the case of:
1. President
2. Vice-President
3. Members of the Cabinet
4. Members of Congress
5. Justices of the Supreme Court
6. Members of Constitutional Commissions
7. Other constitutional offices
8. Officers of the armed forces with general
or flag rank
Section 18: Allegiance of public officers and
employees
Allegiance to the State and to the
Constitution
Change in Citizenship/immigrant Status
1. Incumbent public officers and employees who
seek either:
a. Change his citizenship; or
 b. Acquire immigrant status in another
country shall be dealt with by law.
2. If Philippine citizenship is one of the
qualifications to the office, the loss of such
citizenship means the loss of the office by the
incumbent.
3. The Election Code provides the rules with
respect to non-incumbents, i.e. persons
running for elective offices.
a. The Code provides that the permanent
residents of or immigrant to a foreign
country cannot file certificates of
candidacy unless they expressly waive
their status as such
NOTE: This renunciation must be some other
than, and prior to, the filling of the certificate of
candidacy.
6. Corporate Powers (§ 22) CODE: S C Re C
O property of a party is received under such
a. To sue and be used
b. To acquire and convey real or
personal property
c. To enter into contracts
ii. Requisites of valid municipal
contracts:
1. LGU has express, implied or
inherent power to enter into a
particular contract;
2. Entered into by proper
department, board, committee, or
agent;
3. must comply with substantive
requirements;
4. must comply with formal
requirements;
5. in case entered into by local chief
executive on behalf of LGU, prior
authorization by Sanggunian
concerned is needed
ii. Ultra vires contracts
When a contract is entered into without
compliance with the first and the third
requisites (above), 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
the second and/or fourth requirements
above. Ratification may be express or
implied.
d. To have continuous succession in its
corporate name
e. To have and use a corporate seal
f. To exercise such other powers as are
granted to corporations, subject to
limitations in LGC/other laws.
7. Liability of LGUs
Rule: Local Government units and their officials
are not exempt from liability for death or injury to
persons or damage to property (Sec 24 R.A.
7160)
Doctrine of Implied Municipal Liability
A municipality may become obligated upon an
implied contract to pay the reasonable value of
the benefits accepted or appropriated by it as to
which it has the general power to contract; the
doctrine applies to all cases where money or other
circumstances that the general law, independent
or an express contract, implies an obligation to do
justice with respect to the same (Nachura,
Reviewer in Political Law, p. 499)
8. Settlement of boundary dispute (§118 a-
d, RA 7160):
Boundary disputes between and among local
government units shall, as much as possible, be
settled amicably. To this end:
a. Boundary disputes involving two or
more barangays in the same city or
municipality shall be referred for
settlement to the sangguniang
panlungsod or sangguniang bayan
concerned.
b. Boundary disputes involving two or
more municipalities within the same
province shall be referred for
settlement to the sangguniang
panlalawigan concerned.
c. Boundary disputes involving
municipalities or component cities of
different provinces shall be jointly
referred for settlement to the
sanggunians of the provinces
concerned.
d. Boundary disputes involving a
component city or municipality on
the one hand and a highly urbanized
city on the other, or two or more
highly urbanized cities, shall be
jointly referred for settlement to the
respective sanggunians of the
parties.
Procedure:
In the event the sanggunian fails to effect
an amicable settlement within 60 days from the
date the dispute was referred thereto, it shall
issue a certification to that effect. Thereafter, the
dispute shall be formally tried by the sanggunian
concerned which shall decide the issue within 60
days from the date of the certification referred to
above.
Within the time and manner prescribed by
the Rules of Court, any party may elevate the
decision of the sanggunian concerned, any party
may elevate the decision of the sanggunian
concerned to the proper Regional Trial Court
having jurisdiction over the area in dispute. The
Regional Trial Court shall decide the appeal within
one (1) year from the filing thereof. Pending final
resolution of the case, the disputed area prior to
the dispute shall be maintained and continued for
all legal purposes. (§119, LGC)
9. Succession of Elective Officers
Disqualifications for Local Elective Officials
(§ 40)
1. Those sentenced by final judgment for an
offense involving moral turpitude, or for an
offense punishable by 1 year or more or
imprisonment within 2 years after serving
sentence
2. Those removed from office as a result of an
administrative case.
3. Those convicted by final judgment for
violating the oath or allegiance to the Republic
4. Those with dual citizenship
5. Fugitives from justice in criminal or non-
political cases here or abroad
6. Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code
7. The insane of feeble minded

Qualifications of Elective Local Officials (§ Vacancies

39) Permanent vacancy
1. Filipino citizen a. Grounds
2. Registered voter in the barangay, 1. Elective local official fills a higher
municipality, city or province where he intends vacant office
to be elected/Registered voter in the district 2. Refuses to assume office
where he intends to be elected in case of a 3. Fails to qualify
member of the Sangguniang panlalawigan, 4. Dies
Sangguniang panlungsod or Sangguniang 5. Removed from office
bayan. 6. Voluntarily resigns
3. Resident therein for at least 1 year 7. Permanently incapacitated to
immediately preceding the day of the election. discharge the functions of his office
4. Able to read and write Filipino/ any other local b. Filling of vacancy
language or dialect
1. Automatic succession
Age requirement
POSITION AGE REQUIREMENT
Governor, Vice At least 23 years old on VACANCY SUCCESSOR
Governor, Mayor, Vice election day 1. In the office of the Vice-Governor, Vice-
Mayor, member of governor, mayor Mayor
Sangguniang 2. In the office of the Highest ranking
Panlungsod in highly governor, vice- Sanggunian member
urbanized cities governor, mayor or
Mayor, Vice Mayor of At least 21 years old vice-mayor
independent 3. In the office of the Second highest ranking
component cities or highest ranking Sanggunian member
municipalities Sangguniang
Member of At least 18 years old member (who was
Sangguniang supposed to fill the
Panglungsod, Member vacant position of
of Sangguniang governor etc.
Bayan, Punong 4. In the office of the Highest ranking
Barangay, Member of punong barangay sangguniang barangay
Sangguniang member/2nd highest
Barangay ranking sanggunian
member

2. By appointment
 declaration by the local chief that he has
VACANCY APPOINTMENT BY reported back to office
WHOM If the temporary incapacity was due to
1. Sanggunian President, through legal reasons, the local chief executive
Panlalawigan or Executive Secretary should also submit necessary documents
Panlungsod of showing that the legal cause no longer
highly urbanized exist.
cities and
independent  Appointment of OIC:
component cities The local chief executive can designate
2. Sangguniang Governor in writing an OIC if he is traveling within
Panlungsod of the country but outside his territorial
Component Cities, jurisdiction for a period not exceeding 3
Sangguniang consecutive days.
Bayan The OIC cannot exercise the power to
3. Sangguniang City/Municipal Mayor appoint, suspend or dismiss employees.
Barangay upon Recommendation
of the Sangunian
barangay concerned

 Omnibus Election Code (§ 67)

c. Ranking – it is determined on the basis of
proportion of votes obtained by each winning
candidate to the total number of registered
voters in each district in the immediately
preceding local election
d. The general rule is that the successor (by
appointment) should come from the same
political party as the Sanggunian member
whose position has become vacant. The
exception would be in the case of vacancy in
the Sangguniang barangay.
Any elective official, whether national or
local, running for any office other than
the one which he is holding in a
permanent capacity, except for
President and Vice-President, shall be
considered ipso facto resigned from his
office upon filling of his certificate of
candidacy.
10. Discipline of Local Officials
A. Elective Officials
i. Grounds for Disciplinary Actions (§
60) CODE: DCDCAUAS

Temporary Vacancy An elective local official may be

 Grounds (not exclusive list) disciplined, suspended or removed from
1. Leave of absence office on any of the following grounds:
2. Travel abroad 1. Disloyalty to the Republic of the
3. Suspension from office Philippines
2. Culpable violation of the Constitution
 If the positions of governor, mayor or 3. Dishonesty, oppression, misconduct in
punong barangay become temporarily office, gross negligence, dereliction of
vacant, the vice-governor, vice-mayor or duty
highest ranking Sanggunian member will 4. Commission of any offense involving
automatically exercise the powers and moral turpitude or an offense
perform the duties and functions of the punishable by at least prison mayor
local chief executive concerned. 5. Abuse authority
Exception: He/she cannot exercise the 6. Unauthorized absence for 15
power to appoint, suspend or dismiss consecutive working days, except in
employees. Exception to exception: If the case of members of the
the period of temporary incapacity Sanggunian panlalawigan,
exceeds 30 working days. Sangguniang panlungsod,
Sangguniang bayan, Sangguniang
Termination of temporary incapacity barangay.
Upon submission to the
appropriate Sanggunian of a written
 7. Application for acquisition of foreign iv. Removal as result of
citizenship or residence or the status Administrative Investigation
of an immigrant of another country. It serves as a BAR to the
8. Such other ground as may be candidacy of the respondent for any
provided by the Code/other laws. elective position.

ii. Jurisdiction
v. Administrative Appeal
iii. Preventive Suspension (§ 63)
1. When can it be imposed Decisions may, within 30 days from
a. After the issues are joined receipt thereof, be appealed to:
b. When the evidence of guilt is i. The sangguniang panlalawigan, in
strong the case of decisions of component cities’
c. Given the gravity of the offense, sangguniang panlungsod and the
there is great probability that the sangguiniang bayan;
continuance in office of the ii. The Office of the President, in the
respondent could influence the case of decisions of the sangguniang
witnesses or pose a threat to the panlalawigan and the sangguniang
safety and integrity of the records panlungsod of highly urbanized cities and
and other evidence independent component cities. Decisions
2. Who can impose preventive of the Office of the President shall be final
suspension and executory.
IMPOSED RESPONDENT LOCAL
BY: OFFICIAL Case:
1. President Elective official of a The Supreme Court ruled that
province, highly certiorari will not lie because there is still
urbanized an adequate remedy available in the
or independent ordinary course of law, i.e., appeal of the
component city decision of the Sangguniang Panlalawigan
2. Governor Elective official of a to the Office of the President (Malinao
component city or vs. Reyes, 255 SCRA 616).
municipality
3. Mayor Elective official of a Execution pending appeal
barangay An appeal shall not prevent a
decision from being executed; the
3. Duration of preventive suspension respondent shall be considered as having
a. Single preventive suspension been placed under preventive suspension
should not exceed 60 days. during the pendency of the appeal. But in
b. If several administrative cases are Berces vs. Executive Secretary, 241 SCRA
filed against an elective official, he 539, the Supreme Court pointed out that
cannot be preventively suspended Administrative Order No. 18 authorizes the
for more than 90 days within a Office of the President to stay the
single year on the same ground/s execution of a decision pending appeal.
existing and known at the time of A.O. No. 18 was not repealed by the Local
the first suspension. Government Code.

Suspension vi. Doctrine of Condonation

 It should not exceed
unexpired term of the respondent
or a period of 6 months for every
administrative offense.
 Penalty is NOT a bar to the
candidacy of the respondent
suspended as long as he meets
the qualifications for the office.
the
Petitioners urge this Court to expand the
settled doctrine of condonation to cover
coterminous appointive officials who were
administratively charged along with the reelected
official/appointing authority with infractions
allegedly committed during their preceding term.

The Court rejects petitioners’ thesis.

More than 60 years ago, the Court in Pascual v. Petitioners’ theory is not novel.
Hon. Provincial Board of Nueva Ecija issued the
landmark ruling that prohibits the disciplining of A parallel question was involved in Civil Service
an elective official for a wrongful act committed Commission v. Sojor where the Court found no
during his immediately preceding term of office.  basis to broaden the scope of the doctrine of
The Court explained that “[t]he underlying theory condonation.
is that each term is separate from other terms,
and that the reelection to office operates as a
Contrary to petitioners’ asseveration, the non-
condonation of the officer’s previous misconduct
application of the condonation doctrine
to the extent of cutting off the right to remove
to appointive officials does not violate the right to
him therefor.”
equal protection of the law.

The Court should never remove a public officer for

acts done prior to his present term of office.  To
do otherwise would be to deprive the people of
their right to elect their officers. When the people
elect[e]d a man to office, it must be assumed that
they did this with knowledge of his life and
character, and that they disregarded or forgave
his faults or misconduct, if he had been guilty of
any.  It is not for the court, by reason of such
faults or misconduct[,] to practically overrule the
will of the people.  (underscoring supplied)
Lizares v. Hechanova, et al. replicated the
doctrine.  The Court dismissed the petition in that
case for being moot, the therein petitioner “having
been duly reelected, is no longer amenable to
administrative sanctions.”
Ingco v. Sanchez, et al. clarified that the
condonation doctrine does not apply to a criminal
case.  Luciano v. The Provincial Governor, et al.,
Olivarez v. Judge Villaluz, and Aguinaldo v.
Santos echoed the qualified rule that reelection of
a public official does not bar prosecution for
crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine
in a string of recent jurisprudence including two
cases involving a Senator and a Member of the
House of Representatives.
Salalima v. Guingona, Jr. and Mayor Garcia v.
Hon. Mojica reinforced the doctrine.  The
condonation rule was applied even if the
administrative complaint was not filed before the
reelection of the public official, and even if the
alleged misconduct occurred four days before the
elections, respectively.  Salalima did not
distinguish as to the date of filing of the
administrative complaint, as long as the alleged
misconduct was committed during the prior term,
the precise timing or period of which Garcia did
not further distinguish, as long as the wrongdoing
that gave rise to the public official’s culpability
was committed prior to the date of reelection.
In the recent case of Quinto v. Commission on
Elections, the Court applied the four-fold test in
an equal protection challenge against the resign-
to-run provision, wherein it discussed the material
and substantive distinctions between elective and
appointive officials that could well apply to the
doctrine of condonation.
The electorate’s condonation of the previous
administrative infractions of the reelected official
cannot be extended to that of the reappointed
coterminous employees, the underlying basis of
the rule being to uphold the will of the people
expressed through the ballot.  In other words,
there is neither subversion of the sovereign will
nor disenfranchisement of the electorate to speak
of, in the case of reappointed coterminous
employees.
It is the will of the populace, not the whim of one
person who happens to be the appointing
authority, that could extinguish an administrative
liability.  Since petitioners hold appointive
positions, they cannot claim the mandate of the
electorate.  The people cannot be charged with
the presumption of full knowledge of the life and
character of each and every probable appointee of
the elective official ahead of the latter’s actual
reelection.
Moreover, the unwarranted expansion of
the Pascual doctrine would set a dangerous
precedent as it would, as respondents posit,
provide civil servants, particularly local
government employees, with blanket immunity
from administrative liability that would spawn and
breed abuse in the bureaucracy.  Atty. Vicente E.
Salumbides, Jr., et al. vs. Office of the
Ombudsman, et al., G.R. No. 180917, April 23,
2010
B. Appointive Officials
 NOTE:
1. Responsibility for human resources and ●In the barangay, the mandated
development- The local chief executive appointive officials are the Barangay Secretary
shall be responsible for human resources and the Barangay Treasurer, although other
and development in his unit and shall officials of the barangay may be appointed by the
take all personnel actions in accordance punong barangay.
with the Constitution, pertinent laws,
including such policies, guidelines and 3. Administrative discipline
standards as the Civil Service Investigation and adjudication of
Commission may establish; Provided administrative complaints against
that the local chief executive may employ appointive local officials and
emergency or casual employees or employees as well as their suspension
laborers paid on a daily wage or and removal shall be in accordance
piecework basis and hired through job with the civil service law and rules
orders for local projects authorized by the and other pertinent laws.
sanggunian concerned, without need of
approval or attestation by the CSC as a. Preventive suspension- The local
long as the said employment shall not chief executive may preventively
exceed 6 months. suspend for a period not
exceeding 60 days any
Case: subordinate official or employee
But the Provincial Governor is without under his authority pending
authority to designate the petitioner as Assistant investigation if the charge against
Provincial Treasurer for Administration, because such official or employee involves
under §471 of the Local Government Code, it is dishonesty, oppression or grave
the Secretary of Finance who has the power to misconduct or neglect in the
appoint Assistant Provincial Treasurers from a list performance of duty, or if there is
of recommendees of the Provincial Governor reason to believe that the
(Dimaandal vs. Commission on Audit, 291 respondent is guilty of the
SCRA 322). charges which would warrant his
removal from the service.
2. Officials common to all
Municipalities, Cities and Provinces (§469- b. Disciplinary Action- Except as
490, R.A. 7160) otherwise provided by law, the
a. Secretary to the Sanggunian local chief executive may impose
b. Treasurer the penalty of removal from
c. Assessor service, demotion in rank,
d. Accountant suspension for not more than 1
e. Budget Officer year without pay, fine in an
f. Planning and Development amount not exceeding 6 months’
Coordinator salary or reprimand. If the
g. Engineer penalty imposed is suspension
h. Health Officer without pay for not more than 30
i. Civil Registrar days, his decision shall be final; if
j. Administrator the penalty imposed is heavier,
k. Legal Officer the decision shall be appealable to
l. Agriculturist the Civil Service Commission
m. Social Welfare and Development which shall decide the appeal
Officer within 30 days from receipt
n. Environment and Natural thereof.
Resources Officer
o. Architect
p. Information Officer 11. RECALL (§§ 69-75)
q. Cooperatives Officer Recall is the power of the electorate (registered
r. Population Officer voters) to remove a local elected official for loss of
s. Veterinarian confidence through the holding of a special/recall
t. General Services Officer election.
Two modes of initiating a recall: 4. Petition should be filed with COMELEC through
1. adoption of a resolution by the Preparatory its office in the LGU concerned
Recall Assembly (composed of local officials of 5. Publication of petition for 10-20 days in order
the lower/supervised local government unit) to verify the authenticity and genuineness of
2. petition by at least 25% of the registered the petition and the required % of voters.
voters.
GROUND = Loss of confidence Conduct of Recall Election
The official/s sought to be recalled are
automatically considered as duly registered
candidates.
Process of Initiating Recall
a. By Preparatory Recall Assembly (PRA) The date set for the recall election should not be
(1). Composition of PRA less than 30 days after filing of resolution/petition
in the case of barangay, city or municipal officials
and 45 days in the case or provincial officials
IMPOSED BY: RESPONDENT LOCAL
OFFICIAL
1. President Elective official of a province, Effectivity of Recall
highly urbanized or Recall with only be effective upon the election and
independent component city proclamation of a successor.
2. Governor Elective official of a If the official sought to be recalled receives the
component city or municipality highest number of votes, confidence in him is
3. Mayor Elective official of a barangay affirmed and he shall continue in office.
LEVEL COMPOSITION
1. Provincial Mayors, vice-mayors, Limitations on Recall
Sanggunian members of the Elective local official can be the subject of a recall
municipalities and component election only once during his term of office
cities No recall shall take place within 1 year from the
2. City Punong barangay and date of the official’s assumption to office or 1 year
Sangguniang barangay immediately preceding a regular local election.
members in the city
3. Legislative Elective municipal/barangay
District officials 12. TERM LIMITS
4. Municipal Punong barangay and
Term of Office
sangguniang barangay
members in the municipality  Term of office: 3 years
 No local elective officer shall serve for
more than 3 consecutive terms in the
(2). Procedure same position
Session in a public place to initiate recall  Voluntary renunciation of the office for
proceeding any length of time shall be considered
Resolution adopted by a majority of all the an interruption in the continuity of
members of the PRA during the session called for service for the full term for which the
the purpose of initiating recall proceedings elective official concerned was elected.

b. By Petition of Registered Voters

1. Petition of at least 25% of the total number of
registered voters in the LGU concerned during
the election in which the local official sought ARTICLE XII – NATIONAL ECONOMY AND
to be recalled was elected. PATRIMONY
2. The written petition for recall should be dully
signed before the election registrar or his SEC.1. GOALS OF THE NATIONAL ECONOMY
representative and in the presence of the
representatives of the petitioner and the
Three-fold goal:
official sought to be recalled.
1. More equitable distribution of opportunities,
3. It should be signed in a public place
income and wealth;
2. Sustained increase in the amount of goods
and services produced by the nation for the
benefit of the people; and
3. Expanding productivity, as the key to raising
the quality of life for all.
The State shall promote industrialization and
full employment
1. It should be based on sound agricultural
development and agrarian reform.
2. It should be through industries that make full
and efficient use of human and natural
resources. Industries should also be
competitive in both domestic and foreign
markets.
Protection of Filipino enterprises
1) The State shall protect Filipino enterprises
against unfair foreign competition and trade
practices.
Role of Private Enterprises
2) Private enterprises, including corporations,
cooperatives, and similar collective
organizations, shall be encouraged to broaden
the base of their ownership.
Section 2. REGALIAN DOCTRINE
WHAT IS THE CONCEPT OF JURE REGALIA?
(REGALIAN DOCTRINE)
 Generally, under this concept, private title
to land must be traced to some grant,
express or implied, from the Spanish
Crown or its successors, the American
Colonial Government, and thereafter, the
Philippine Republic.
 In a broad sense, the term refers to royal
rights, or those rights to which the King
has by virtue of his prerogatives. The
theory of jure regalia was therefore
nothing more than a natural fruit of
conquest
CONNECTED TO THIS IS THE STATE’S POWER OF
DOMINIUM
 Capacity of the state to own or acquire
property—foundation for the early
Spanish decree embracing the feudal
theory of jura regalia
 The Philippines passed to Spain by virtue
of discovery and conquest. Consequently,
all lands became the exclusive patrimony
and dominion of the Spanish Crown.
 The Law of the Indies was followed by the
Ley Hipotecaria or the Mortgage Law of
1893. This law provided for the
systematic registration of titles and deeds
as well as possessory claims
 The Maura Law: was partly an
amendment and was the last Spanish
land law promulgated in the Philippines,
which required the adjustment or
registration of all agricultural lands,
otherwise the lands shall revert to the
State
Distinction between Imperium and
Dominium:
1. Imperium: Government authority possessed
by the State which is appropriately embraced
in sovereignty.
2. Dominium:
a. The capacity of the State to own and
acquire property.
b. It refers to lands held by the government
in a proprietary character that: can
provide for the exploitation and use of
lands and other natural resources.
WHAT IS THE REGALIAN DOCTRINE OF PROPERTY
OWNERSHIP?
A principle in law which means that all natural
wealth - agricultural, forest or timber, and mineral
lands of the public domain and all other natural
resources belong to the state. Thus, even if the
private person owns the property where minerals
are discovered, his ownership for such does not
give him the right to extract or utilize said
minerals without permission from the state to
which such minerals belong.
Scope:
The following are owned by the State:
1. Lands of the public domain:
 Waters
 Minerals, coals, petroleum, and other
mineral oils;
 All sources of potential energy;
 Fisheries;
 Forests or timber;
 Wildlife;
 Flora and fauna; and
 Other natural resources.
Alienation of Natural Resources
1. General Rule: All natural resources CANNOT
be alienated
2. Exception: Agricultural lands
Exploration, Development and Utilization of 1. The State shall protect its marine wealth
Natural Resources in its Archipelagic water Territorial sea &
1. Shall be under the full control and supervision EEZ.
of the State 2. The State shall reserve its use and
2. Means enjoyment exclusively to Filipino citizens.
A. The state may DIRECTLY UNDERTAKE
such activities TAKE NOTE THAT THE REGALIAN DOCTRINE IS
B. The state may enter into CO- ENSHRINED IN OUR PRESENT AND PAST
PRODUCTION, JOINT VENTURE OR CONSTITUTIONS THE 1987 CONSTITUTION
PRODUCTION SHARING arrangements PROVIDES UNDER NATIONAL ECONOMY AND
with PATRIMONY THE FOLLOWING—
(1) Filipino citizen; or
(2) Corporation or association at least “ Section 2. All lands of the public domain, waters,
60% of whose capital is owned by minerals, coal, petroleum, and other mineral oils,
such citizens all forces of potential energy, fisheries, forests or
3. Limitations: timber, wildlife, flora and fauna, and other natural
A. Period: It should not exceed 25 years, resources are owned by the State. With the
renewable for not more than 25 years exception of agricultural lands, all other natural
B. Under terms and conditions as may be resources shall not be alienated. The exploration,
provided by law. development, and utilization of natural resources
4. In case of water rights/water shall be under the full control and supervision of
supply/fisheries/industrial uses other than the the State. The State may directly undertake such
development of water power activities, or it may enter into co-production, joint
5. The beneficial use may be the measure and venture, or production-sharing agreements with
limit of the grant. Filipino citizens, or corporations or associations at
least sixty per centum of whose capital is owned
Small-scale Utilization of Natural Resources by such citizens. Such agreements may be for a
1. Congress may, by law, authorize small-scale period not exceeding twenty-five years, renewable
utilization of natural resources by Filipino for not more than twenty-five years, and under
citizens. such terms and conditions as may be provided by
2. Congress may also authorize cooperative fish law. In cases of water rights for irrigation, water
farming with priority given to subsistence supply fisheries, or industrial uses other than the
fishermen and fishworkers in the rivers, lakes, development of water power, beneficial use may
bays and lagoons. be the measure and limit of the grant.”

The abovementioned provision provides that

Large-Scale Exploration, Development and
Utilization of Minerals/Petroleum/Other
Mineral Oils
1. The President may enter into agreements with
foreign owned corporations involving technical
or financial assistance for large-scale
exploration etc. of minerals, petroleum, and
other mineral oils. These agreements should
be in accordance with the general terms and
conditions provided by law.
2. They should be based on the real
contributions to economic growth and general
welfare of the country.
3. In the agreements, the State should promote
the development and use of local scientific
and technical resources.
4. The President should notify Congress of every
contract under this provision within 30 days
from its execution.
5. Management and service contracts are not
allowed under this rule.
Protection of Marine Wealth
except for agricultural lands for public domain
which alone may be alienated, forest or timber,
and mineral lands, as well as all other natural
resources must remain with the State, the
exploration, development and utilization of which
shall be subject to its full control and supervision
albeit ing it to enter into coproduction, joint
venture or production-sharing agreements, or into
agreements with foreign-owned corporations
involving technical or financial assistance for
large-scale exploration, development, and
utilization.
THE 1987 PROVISION HAD ITS ROOTS IN THE
1935 CONSTITUTION
WHICH PROVIDES—
Section 1. All agricultural timber, and mineral
lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of
potential energy and other natural resources of
the Philippines belong to the State, and their
disposition, exploitation, development, or
utilization shall be limited to citizens of the
Philippines or to corporations or associations at
least sixty per centum of the capital of which is
owned by such citizens, subject to any existing
right, grant, lease, or concession at the time of
the inauguration of the Government established
under this Constitution. Natural resources, with
the exception of public agricultural land, shall not
be alienated, and no license, concession, or lease
for the exploitation, development, or utilization of
any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for
another twenty-five years, except as to water
rights for irrigation, water supply, fisheries, or
industrial uses other than the development of
water power, in which cases beneficial use may be
the measure and limit of the grant.
THE 1973 CONSTITUTION REITERATED THE
REGALIAN DOCTRINE
AS FOLLOWS—
Section 8. All lands of public domain, waters,
minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, wildlife,
and other natural resources of the Philippines
belong to the State. With the exception of
agricultural, industrial or commercial, residential,
or resettlement lands of the public domain,
natural resources shall not be alienated, and no
license, concession, or lease for the exploration,
or utilization of any of the natural resources shall
be granted for a period exceeding twentyfive
years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other
than development of water power, in which cases,
beneficial use may by the measure and the limit
of the grant.
(THE REGALIAN DOCTRINE DOESN'T NEGATE
NATIVE TITLE)
Regalian theory doesn’t negate the native title to
lands held in private ownership since time
immemorial, adverting to the landmark case of
CARINO V. LOCAL GOVERNMENT, where the US
SC through Holmes held: “xxx the land has been
held by individuals under a claim of private
ownership, it will be presumed to have been held
in the same way from before the Spanish
conquest, and never to have been public land.”
Existence of native titie to land, or ownership of
land by Filipinos by virtue of possession under a
claim of ownership since time immemorial and
independent of any grant from the Spanish crown
as an exception to the theory of jure regalia
(Justice Puno): Carino case firmly established a
concept of private land title that existed
irrespective of any royal grant from the State and
was based on the strong mandate extended to the
Islands via the Philippine Bill of 1902. The IPRA
recognizes the existence of ICCs/IPs as a distinct
sector in the society. It grants this people the
ownership and possession of their ancestral
domains and ancestral lands and defines the
extent of these lands and domains.
(Justice Vitug): Carino cannot override the
collective will of the people expressed in the
Constitution.
(Justice Panganiban): All Filipinos, whether
indigenous or not, are subject to the Constitution,
and that no one is exempt from its all
encompassing provisions. (Cruz vs. Secretary of
Environment and Natural Resources, G.R No.
135385, December 06, 2000)
Section 3. LANDS OF THE PUBLIC DOMAIN
ARE CLASSIFIED INTO:
1. Agricultural;
2. Forest/timber;
3. Mineral lands; and
4. National Parks.
NOTE:
 Reclassification of PUBLIC (MINERAL AND
AGRICULTURAL) lands is an exclusive
prerogative of the Executive Department
through the Office of the President, upon
recommendation by the DENR.
 But as to FOREST AND NATIONAL PARKS,
it is the Congress which has the sole
power to reclassify.
 Classification is descriptive of the legal
nature of the land and NOT what it looks
like. Thus, the fact that the forest land is
denuded does not mean it is no longer
forest land.
Alienable lands of public domain
 Only agricultural lands are alienable.
 Agricultural lands may be further classified by
law according to the uses to which they may
be devoted.
Limitations Regarding Alienable Lands of the
Public Domain
1. For private corporations or associations
A. They can only hold alienable lands of the
public domain BY LEASE
B. Period: Cannot exceed 25 years,
renewable for not more than 25 years
C. Area: Lease cannot exceed 1,000 hectares
NOTE: A corporation sole is treated like other
private corporations for the purpose of acquiring
public lands.
2. For Filipino citizens
A. Can lease up to 500 hectares
B. Can ACQUIRE not more than 12 hectares
by purchase, homestead or grant
3. Taking into account the requirements of
conservation, ecology and development, and
subject to the requirements of agrarian
reform, Congress shall determine by law the
size of lands of the public domain which may
be acquired, developed, held or leased and
the conditions therefore.
Means by Which Lands of the Public Domain
Become Private Land
1. Acquired from government by purchase or
grant;
2. Uninterrupted possession by the occupant and
his predecessors-in-interest since time
immemorial; and
3. Open, exclusive, and undisputed possession of
ALIENABLE (agricultural) public land for a
period of 30 years.
 Upon completion of the requisite period,
the land becomes private property ipso
jure without need of any judicial or other
sanction.
 Possession since time immemorial leads to
the presumption that the land was never
part of public domain.
 In computing 30 years, start from when
land was converted to alienable land, not
when it was still forest land
 Presumption is always that land belongs
to the State.
Section 4. Congress shall, as soon as
possible, determine by law, the specific
limits of forests lands and national parks,
marking clearly their boundaries on the
ground. Thereafter, such forest lands and
national parks shall be conserved and may
not be increased or diminished, EXCEPT by
law. Congress shall provide measures to
prohibit logging in Endangered forest and
Watershed areas for such period as it may
determine.
Section 5. ANCESTRAL LANDS
Protection of Indigenous Cultural
Communities
1. The State protects the rights of indigenous
cultural communities to their ancestral lands
A. Subject to Constitutional provisions
B. Subject to national development policies
and programs
2. In determining ownership and extent of
ancestral domain, Congress may use
customary laws on property rights and
relations.
3. “ANCESTRAL DOMAIN”
 It refers to lands which are considered as
pertaining to a cultural region
 This includes lands not yet occupied, such
as deep forests.
Section 7. PRIVATE LANDS
General Rule
1. Private lands CAN only be transferred or
conveyed to:
A. Filipino citizens
B. Corporations or associations
incorporated in the Philippines, at
least 60% of whose capital is owned
by Filipino citizens
2. Exceptions
A. In intestate succession, where an
alien heir of a Filipino is the transferee
of private land
B. A natural born citizen of the
Philippines who has lost of his
Philippine citizenship may be a
transferee of PRIVATE LAND, subject
to limitation provided by law. Hence,
land can be used only for residential
 purposes. In this case, he only
acquires derivative title.
C. Foreign states may acquire land but
only for embassy and staff residence
purposes.
3. Filipino citizenship is only required at the time
the land is acquired. Thus, loss of citizenship
after acquiring the land does not deprive
ownership.
4. Restriction against aliens only applies to
acquisition of ownership. Therefore:
A. Aliens may be lessees or
usufructuaries of private lands
B. Aliens may be mortgagees of land, as
long as they do not obtain possession
thereof and do not bid in the
foreclosure sale.
5. Land tenure is not indispensable to the free
exercise of religious profession and worship. A
religious corporation controlled by non-
Filipinos cannot acquire and own land, even
for religious purposes.
Remedies to recover private lands from
disqualified aliens:
1. Escheat proceedings
2. Action for reversion under the Public Land Act
3. An action by the former Filipino owner to
recover the land
A. The former in pari delicto principle has
been abandoned
B. Alien still has the title (didn’t pass it
on to one who is qualified)
ection 10. NATIONAL ECONOMY AND
PATRIMONY/INVESTMENTS
Power of Congress
1. Congress, upon the recommendation of NEDA,
can reserve to Filipino citizens or to
corporations or associations at least 60% of
whose capital is owned by such citizens, or
such higher percentage as Congress may
prescribe, certain areas of investment. This
may be done when the national interest
dictates.
2. Congress shall also enact measures to
encourage the formation and operation of
enterprises whose capital is wholly owned by
Filipinos.
National Economy and Patrimony
In the grant of rights, privileges and concessions
covering the national economy and patrimony, the
State shall give preference to QUALIFIED Filipinos.
Section 11. FRANCHISES FOR PUBLIC
UTILITIES
Power to grant:
1. Congress may directly grant a legislative
franchise; or
2. Power to grant franchises may be delegated to
appropriate regulatory agencies and/or LGU/s
Public utility
1. In order to be considered as a public utility,
and thus, subject to this provision, the
undertaking must involve dealing directly with
the public.
2. Thus, a Build-Operate-Transfer grantee is NOT
a public utility. The BOT grantee merely
constructs the utility and it leases the same to
the government. It is the government which
operates the public utility (operation separate
from ownership).
To whom granted:
1. Filipino citizens or
2. Corporations or associations incorporated in
the Philippines and at least 60% of the capital
is owned by Filipino citizens.
Terms and conditions:
1. Duration: Not more than 50 years
2. Franchise is NOT exclusive in character
3. Franchise is granted under the condition that
it is subject to amendment, alteration, or
repeal by Congress when the common goods
so requires.
Participation of Foreign Investors
1. The participation of foreign investors in the
governing body of any public utility enterprise
shall be limited to their proportionate share in
its capital.
2. Foreigners cannot be appointed as the
executive and managing officers because
these positions are reserved for Filipino
citizens.
Section 16.
FORMATION/ORGANIZATION/REGULATION
OF CORPORATIONS
1. Private corporations
Congress can only provide for the formation,
etc of private corporations through a general
law.
2. GOCC’s
They may be created by:
 1. Special charters in the interest of the
common good and subject to the test of C.
economic viability. D. Duration of the takeover: period of
2. By incorporation under the general emergency
corporation law. E. Takeover is subject to reasonable terms
and conditions
Sections 18-19. SPECIAL ECONOMIC F. No need for just compensation because it
POWERS OF THE GOVERNMENT is only temporary.

2. Nationalization of vital industries:

Section 19. MONOPOLIES
A. Exercised in the interest of national
welfare or defense
B. Involves either:
1. Temporary takeover or direction of i. Establishment and operation
operations:
a. of vital industries, or NOTE:
b. Transfer to public ownership
upon payment of just compensation 1. The Constitution does NOT prohibit the
existence of monopolies.
A. Conditions 2. The State may either regulate or prohibit
i. National emergency and monopolies, when public interest so requires.
ii. When the public interest requires Combinations in restraint of trade or unfair
B. May be used against privately owned competition are prohibited.
public utilities or businesses affected with
public interest.
2. Corporations
incorporated in RP, and
Filipino citizenship or equity requirements: 100% Filipino owned

ACTIVITY CITIZENSHIP AND/OR Advertising 1. Filipino citizens; or

EQUITY REQUIREMENTS 2. Corporations
Exploitation of a. Filipino citizens; or incorporated in RP, and
natural resources i. Corporations 70% Filipino owned
incorporated in RP,
with 60% Filipino Educational 1. Filipino citizens; or
ownership Institution 2. Corporations
incorporated in RP, and
Operation of 1. Filipino citizens; or 60% Filipino owned
Public Utilities 2. Corporations
incorporated in RP, with EXCEPT: Schools established
60% Filipino ownership by religious groups and
mission boards.
Acquisition of 1. Filipino citizens; or Congress may, by law.
alienable lands of 2. Corporations Increase Filipino
the public incorporated in RP, with requirements for ALL
domain 60% Filipino ownership educational institutions
3. Former natural-born
citizens of RP, as Other economic Congress may, by law,
transferees, with certain activities reserve to Filipino citizens or
legal restrictions; and to corporations 60% Filipino
4. Alien heirs as transferees owned (or even higher)
in case of intestate certain investment areas.
succession.

Practice of ALL Filipino citizens only (natural ARTICLE XIII –

professions persons) SOCIAL JUSTICE AND HUMAN RIGHTS
*But Congress may, by law,
otherwise prescribe Social Justice
Mass media 1. Filipino citizens; or
1. Social justice in the Constitution is
principally the embodiment of the
principle that those who have less in life
should have more in law.
2. The 1987 Constitution advances beyond what
was in previous Constitutions in that it seeks
not only economic social justice but also
political social justice.
Principal activities in order to achieve social
justice
1) Creation of more economic opportunities
and wealth; and
2) Closer regulation of the acquisition,
ownership, use and disposition of property
in order to achieve a more equitable
distribution of wealth and political power.
Labor
Section 3 of Article XIII elaborates on the
provision in Article II by specifying who are
protected by the Constitution, what rights are
guaranteed, and what positive measures the state
should take in order to enhance the welfare of
labor.
Right to organize and to hold peaceful
concerted activities
The right to organize is given to all kinds of
workers BOTH in the PRIVATE and PUBLIC
sectors.
The workers have a right to hold peaceful
concerted activities except the right to strike,
which is subject to limitation by law.
1. Right to participate in the decision
making process of employers
The workers have the right to participate
on matters affecting their rights and benefits, “as
may be provided by law”.
This participation can be through:
1) collective bargaining agreements;,
2) grievance machineries;,
3) voluntary modes of setting disputes;, and
4) conciliation proceedings mediated by
government.
Agrarian Reform
Goals: Agrarian reform must aim at:
1) efficient production;,
2) a more equitable distribution of land which
recognizes the right of farmers and regular
farm workers, who are landless, to own the
land they till;, and
3) a just share of other or seasonal farm workers
in the fruits of the land.
CARL as an exercise of police power and
power of eminent domain
4) To the extent that the law prescribes retention
limits for landowners, there is an exercise of
police power. But where it becomes necessary
to deprive owners of their land in excess of
the maximum allowed, there is compensable
taking and therefore the exercise of eminent
domain.
Reach of agrarian reform
5) It extends not only to private agricultural
lands, but also to “other natural resources,”
even including the use and enjoyment of
“communal marine and fishing resources” and
offshore fishing grounds”.
A Summary of United Nations Agreements
on Human Rights
Universal Declaration of Human Rights
The UDHR is the first international statement to
use the term "human rights", and has been
adopted by the Human Rights movement as a
charter. It is short, and worth reading in its
entirety -- a summary would be about as long as
the document itself.
Covenant on Civil and Political Rights
This covenant details the basic civil and political
rights of individuals and nations. Among the rights
of nations are:
 the right to self determination;
 the right to own, trade, and dispose of
their property freely, and not be deprived
of their means of subsistence
Among the rights of individuals are:
 the right to legal recourse when their
rights have been violated, even if the
violator was acting in an official capacity
 the right to life
 the right to liberty and freedom of
movement
 the right to equality before the law
 the right to presumption of innocence til
proven guilty
 the right to appeal a conviction
 the right to be recognized as a person
before the law
  the right to privacy and protection of that
privacy by law
 freedom of thought, conscience, and
religion
 freedom of opinion and expression
 freedom of assembly and association
The covenant forbids torture and inhuman or
degrading treatment, slavery or involuntary
servitude, arbitrary arrest and detention, and
debtor's prisons. It forbids propaganda advocating
either war or hatred based on race, religion,
national origin, or language.
It provides for the right of people to choose freely
whom they will marry and to found a family, and
requires that the duties and obligations of
marriage and family be shared equally between
partners. It guarantees the rights of children and
prohibits discrimination based on race, sex, color,
national origin, or language.
It also restricts the death penalty to the most
serious of crimes, guarantees condemned people
the right to appeal for commutation to a lesser
penalty, and forbids the death penalty entirely for
people under 18 years of age.
The covenant permits governments to temporarily
suspend some of these rights in cases of civil
emergency only, and lists those rights which
cannot be suspended for any reason. It also
establishes the UN Human Rights Commission.
After almost two decades of negotiations and
rewriting, the text of the Universal Covenant on
Civil and Political Rights was agreed upon in 1966.
In 1976, after being ratified by the required 35
states, it became international law.
Optional Protocol to the Covenant on Civil and
Political Rights
The protocol adds legal force to the Covenant on
Civil and Political Rights by allowing the Human
Rights Commission to investigate and judge
complaints of human rights violations from
individuals from signatory countries.
Covenant on Economic, Social, and Cultural
Rights
This covenant describes the basic economic,
social, and cultural rights of individuals and
nations, including the right to:
1. self-determination
2. wages sufficient to support a minimum
standard of living
3. equal pay for equal work
4. equal opportunity for advancement
5. form trade unions
6. strike
7. paid or otherwise compensated maternity
leave
8. free primary education, and accessible
education at all levels
In addition, this convention forbids exploitation of
children, and requires all nations to cooperate to
end world hunger. Each nation which has ratified
this covenant is required to submit annual reports
on its progress in providing for these rights to the
Secretary General, who is to transmit them to the
Economic and Social Council.
UN Convention on the Condition of the
Wounded and Sick in Armed Forces (Also
called the first Geneva Convention)
The first Geneva Convention focuses on the rights
of individuals, combatants and non-combatants,
during war. It is lengthy and detailed, perhaps
because human rights are rarely at such risk as
during war and, in particular, involving prisoners
of war or enemy captives.
Convention against Genocide
This convention bans acts committed with the
intent to destroy, in whole or in part, a national,
ethnic, racial or religious group. It declares
genocide a crime under international law whether
committed during war or peacetime, and binds all
signatories of the convention to take measures to
prevent and punish any acts of genocide
committed within their jurisdiction. The act bans
killing of members of any racial, ethnic, national
or religious group because of their membership in
that group, causing serious bodily or mental harm
to members of the group, inflicting on members of
the group conditions of life intended to destroy
them, imposing measures intended to prevent
births within the group, and taking group
members' children away from them and giving
them to members of another group.
It declares genocide itself, conspiracy or
incitement to commit genocide, attempts to
commit or complicity in the commission of
genocide all to be illegal. Individuals are to be
held responsible for these acts whether they were
acting in their official capacities or as private
individuals. Signatories to the convention are
bound to enact appropriate legislation to make the
acts named in Article 3 illegal under their national
law and provide appropriate penalties for
violators.
People suspected of acts of genocide may be tried
by a national tribunal in the territory where the
acts were committed or by a properly constituted
international tribunal whose jurisdiction is
recognized by the state or states involved. For
purposes of extradition, an allegation of genocide
is not to be considered a political crime, and
states are bound to extradite suspects in
accordance with national laws and treaties. Any
state party to the Convention may also call upon
the United Nations to act to prevent or punish acts
of genocide.
The remainder of the Convention specifies
procedures for resolving disputes between nations
about whether a specific act or acts constitute(s)
genocide, and gives procedures for ratification of
the convention.
Convention against Torture
This convention bans torture under all
circumstances and establishes the UN Committee
against Torture. In particular, it defines torture,
requires states to take effective legal and other
measures to prevent torture, declares that no
state of emergency, other external threats, nor
orders from a superior officer or authority may be
invoked to justify torture. It forbids countries to
return a refugee to his country if there is reason
to believe he/she will be tortured, and requires
host countries to consider the human rights record
of the person's native country in making this
decision.
The CAT requires states to make torture illegal
and provide appropriate punishment for those
who commit torture. It requires states to assert
jurisdiction when torture is committed within their
jurisdiction, either investigate and prosecute
themselves, or upon proper request extradite
suspects to face trial before another competent
court. It also requires states to cooperate with
any civil proceedings against accused torturers.
Each state is obliged to provide training to law
enforcement and military on torture prevention,
keep its interrogation methods under review, and
promptly investigate any allegations that its
officials have committed torture in the course of
their official duties. It must ensure that individuals
who allege that someone has committed torture
against them are permitted to make and official
complaint and have it investigated, and, if the
complaint is proven, receive compensation,
including full medical treatment and payments to
survivors if the victim dies as a result of torture. It
forbids states to admit into evidence during a trial
any confession or statement made during or as a
result of torture. It also forbids activities which do
not rise to the level of torture, but which
constitute cruel or degrading treatment.
The second part of the Convention establishes the
Committee Against Torture, and sets out the rules
on its membership and activities.
The Convention was passed and opened for
ratification in February, 1985. At that time twenty
nations signed, and five more signed within the
month. At present sixty five nations have ratified
the Convention against torture and sixteen more
have signed but not yet ratified it.
Convention on Elimination of Discrimination
Against Women
This convention bans discrimination against
women. The copy of the Convention on Women
presently accessible through this page is a fully-
indexed HTML document. A linked summary of the
document will be written in the next few weeks.
Convention on the Rights of the Child
This convention bans discrimination against
children and provides for special protection and
rights appropriate to minors. The copy of the
Convention on the Rights of the Child presently
accessible through this page is a fully-indexed
HTML document. A linked summary of the
document will be written in the next few weeks.
JURISPRUDENCE:
 SOCIAL JUSTICE- while the pursuit of
social justice can have revolutionary
effect, it cannot justify breaking the law.
(Astudillo v. Board of Directors, PHHC, 73
SCRA 15).
 HUMAN RIGHTS- read EPZA VS, HR, 208
SCRA; Simon vs. Com. on Human Rights,
229 SCRA 1170- limited to violations of
civil and political rights only either by
government official or private individual.
 Human Security Act- granting
adjudicatory and prosecutorial powers to
the CHR re violations of human rights.-
refer to Section 5- perform such other
functions and duties as may be provided
by law.
 CHREA vs. CHR, November 25, 2004-
The CHR, although admittedly a
constitutional creation is, nonetheless, not
included in the genus of offices
accorded fiscal autonomy by
constitutional or legislative fiat.
  People vs. Leachon, 1998- The
constitutional requirement that the
eviction and demolition be in accordance
with law and conducted in a just and
humane manner does not mean validity or
legality of the demolition or eviction is
hinged on the existence of resettlement
area designated or earmarked by the
government.
The Commission on Human Rights
The Commission on Human Rights is an
independent office created by the Constitution of
the Philippines, with the primary function of
investigating all forms of human rights violations
involving civil and political rights in the
Philippines.
Composition:
1) Chairman; and
2) 4 members
Qualifications:
1) Natural-born citizens of the Philippines;
2) Majority of the Commission must be members
of the Philippine Bar;
3) Term of office, other qualifications and
disabilities shall be provided by law;
4) The appointment of the CHR members is NOT
subject to CA confirmation; and
5) The CHR is not of the same level as the
COMELEC, CSC, or COA.
Powers:
1) INVESTIGATE all forms of human rights
violations involving civil or political rights
A. Violations may be committed by public
officers, or by civilians or rebels.
B. CHR cannot investigate violations of social
rights.
C. They cannot investigate cases where no
rights are violated.
D. Example: There is no right to occupy
government land, i.e. squat thereon.
Therefore, eviction therefrom is NOT a
human rights violation.
2) ADOPT operational guidelines and rules of
procedure.
3) CITE FOR CONTEMPT for violations of its rules,
in accordance with the Rules of Court.
4) PROVIDE APPROPRIATE LEGAL MEASURES for
the protection of the human rights of all
persons, within the Philippines, as well as
Filipinos residing abroad, and provide for
preventive measures and legal aid services to
the underprivileged whose human rights have
been violated or need protection.
A. CHR can INITIATE COURT PROCEEDINGS
on behalf of victims of human rights
violations.
B. They can RECOMMEND THE
PROSECUTION of human rights violators,
but it cannot itself prosecute these cases.
C. BUT: The CHR CANNOT ISSUE
RESTRAINING ORDERS OR INJUNCTIONS
against alleged human rights violators.
These must be obtained from the regular
courts.
5) EXERCISE VISITORIAL POWERS over jails,
prisons and other detention facilities.
6) ESTABLISH CONTINUING PROGRAMS FOR
RESEARCH, education and information in
order to enhance respect for the primacy of
human rights.
7) RECOMMEND TO CONGRESS EFFECTIVE
MEASURES to promote human rights and to
provide compensation to victims of human
rights violations or their families.
8) MONITOR COMPLIANCE BY THE GOVERNMENT
with international treaty obligations on human
rights.
9) GRANT IMMUNITY FROM PROSECUTION to
any person whose testimony or whose
possession of documents or other evidence is
necessary or convenient to determine the
truth in any CHR investigation.
10) REQUEST ASSISTANCE from any department,
bureau, office, or agency in the performance
of its functions.
11) APPOINT ITS OFFICERS and employees in
accordance with law.
12) Perform such OTHER FUNCTIONS AND DUTIES
as may be provided for by law.
At present: President Benigno Aquino III have
called former Akbayan Party-list representative
Etta Rosales to head the commission. Despite to
resistance from some sectors, she is appointed as
chairperson of the human rights.
The Commission originated from the Presidential
Committee on Human Rights established in 1986
by President Corazon Aquino, which was chaired
by former Senator Jose Diokno and former
Supreme Court Associate Justice J.B.L. Reyes. A
separate Commission on Human Rights was
established upon the promulgation of the 1987
Constitution.
Cariño v. Commission on Human Rights, 204
SCRA 483 (1991) - The Supreme Court of the
Philippines declared that the Commission did not
possess the power of adjudication, and
emphasized that its functions were primarily
investigatory.
ARTICLE XIII (Social Justice and Human
Rights)
SECTION 1. The Congress shall give highest
priority to the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for
the common good. To this end, the State shall
regulate the acquisition, ownership, use, and
disposition of property and its increments.
SECTION 2. The promotion of social justice shall
include the commitment to create economic
opportunities based on freedom of initiative and
self-reliance.
Labor
SECTION 3. The State shall afford full protection
to labor, local and overseas, organized and
unorganized, and promote full employment and
equality of employment opportunities for all. It
shall guarantee the rights of all workers to self-
organizations, and peaceful concerted activities,
including the right to strike in accordance with
law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage.
They shall also participate in policy and decision-
making processes affecting their rights and
benefits as may be provided by law. The State
shall promote the principle of shared responsibility
between workers and employers and the
preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace. The State shall regulate the
relations between workers and employers,
recognizing the right of labor to its just share in
the fruits of production and the right of
enterprises to reasonable returns on investments,
and to expansion and growth.
Women
SECTION 14. The State shall protect working
women by providing safe and healthful working
conditions, taking into account their maternal
functions, and such facilities and opportunities
that will enhance their welfare and enable them to
realize their full potential in the service of the
nation.
ARTICLE II
Indigenous People
SECTION 22. The State recognizes and promotes
the rights of indigenous cultural communities
within the framework of national unity and
development.
ARTICLE XV
Children
SECTION 3. The State shall defend the right of
children to assistance, including proper care and
nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development.
ARTICLE XIV – EDUCATION, SCIENCE AND
TECHNOLOGY, ARTS, CULTURE, AND SPORTS
Education
Goals of the State:
The State shall promote and protect:
1) The right to quality education at all levels;
2) The right to affordable and accessible
education; and
3) Education that is relevant to the needs of
people and society.
Right to Education and Academic Freedom
The right to education must be read in conjunction
with the academic freedom of schools to require
“fair, reasonable, and equitable admission
requirements.”
Power to Dismiss Student
1) Schools have the power to dismiss students,
after due process, for disciplinary reasons.
2) Acts committed outside the school may also
be a ground for disciplinary action if:
a) It involves violations of school policies
connected to school-sponsored activities;
or
b) The misconduct affects the student’s
status, or the good name or reputation of
the school.
Regulation of Right to Education
The right to education in particular fields may be
regulated by the State in the exercise of its police
power, e.g. the State may limit the right to enter
medical school by requiring the applicants to take
the NMAT.
Free Education
1) The State shall maintain a system of free
education in:
a) Elementary level; and
b) High school level.
2) Elementary education is compulsory for all
children of school age. However, this is a
moral right rather than a legal compulsion.
Educational Institutions
I. Filipinization
A. Ownership:
1) Filipino citizens,; or
2) Corporations incorporated in RP and
60% Filipino-owned.
 EXCEPT: Schools established by
religious groups and missions boards.
3) Congress may increase Filipino equity
requirements in ALL educational
institutions.
B. Control and Administration:
1) Must be vested in Filipino citizens
2) Refers to line positions, such as
President, Dean, Principal, and
Trustees
3) Faculty members may be foreigners.
C. Student Population:
1) GENERAL RULE: Cannot establish
school exclusively for aliens. Aliens
can only comprise up to 1/3 of total
enrollment.
2) EXCEPTIONS: Schools established for
foreign diplomatic personnel and their
dependents, and unless otherwise
provided for by law for other foreign
temporary residents.
II. Tax Exemptions
A. Non-stock, non-profit educational
institutions:
1) All revenues and assets actually,
directly and exclusively (ADE) used
for educational purposes are exempt
from taxes and duties.
2) This is self-executory.
B. Proprietary educational institutions,
including cooperative:
1) Entitled to exemptions as may be
provided by law, including restrictions
on dividends and re-investment
2) Requires an enabling statute
3) Grants, endowments, donations and
contributions actually, directly and
exclusively used for educational
purposes are exempt from taxes,
subject to conditions prescribed by
law.
III. Academic Freedom
A. Educational Institutions
Schools have the freedom to determine:
1) Who may teach;,
2) What may be taught;,
3) How it shall be taught;, and
4) Who may be admitted to study.
B. Faculty members
1) Full freedom in research and in the
publication of the results, subject to
the adequate performance of their
other academic duties.
2) Freedom in the classroom in
discussing their subjects, but they
should be careful not to introduce into
their teaching controversial matter
which has no relation to their
subjects.
3) When faculty members speak or write
in their capacity as citizens, then they
are free from institutional censorship
or discipline.
C. Students
They have the right to enjoy in school the
guarantees of the Bill of Rights.
D. Limitations
1) Dominant police power of the State
2) State interest of the community
E. Budgetary Priority:
1) Education must be assigned the
highest budgetary priority.
2) BUT: This command is not absolute.
Congress is free to determine what
should be given budgetary priority in
order to enable it to respond to the
imperatives of national interest and
for the attainment of other state
policies or objectives.
Religious Education in Public Schools:
Religion may be taught in public schools subject
to the following requisites:
1) Express written option by parents and
guardians;
2) Taught within regular class hours;
3) Instructors are designated and approved
by the proper religious authorities; and
4) WITHOUT ADDITIONAL COST TO THE
GOVERNMENT.
Section 6. Language
1) National language: Filipino
2) Official Languages: Filipino and, unless
otherwise provided by law, English.
3) Regional languages are auxiliary to the official
languages.
4) Spanish and Arabic are promoted only on an
optional and voluntary basis.
1. Academic Freedom
ARTICLE XIV
EDUCATION, SCIENCE AND TECHNOLOGY,
ARTS, CULTURE AND SPORTS
(1987 Philippine Constitution)
Education
Section 1. The State shall protect and promote
the right of all citizens to quality education at all
levels and shall take appropriate steps to make
such education accessible to all.
Section 2. The State shall:
(1) Establish, maintain, and support a complete,
adequate, and integrated system of education
relevant to the needs of the people and society;
(2) Establish and maintain, a system of free public
education in the elementary and high school
levels. Without limiting the natural rights of
parents to rear their children, elementary
education is compulsory for all children of school
age;
(3) Establish and maintain a system of scholarship
grants, student loan programs, subsidies, and
other incentives which shall be available to
deserving students in both public and private
schools, especially to the underprivileged;
(4) Encourage non-formal, informal, and
indigenous learning systems, as well as self-
learning, independent, and out-of-school study
programs particularly those that respond to
community needs; and
(5) Provide adult citizens, the disabled, and out-
of-school youth with training in civics, vocational
efficiency, and other skills.
Section 3. (1) All educational institutions shall
include the study of the Constitution as part of the
curricula.
(2) They shall inculcate patriotism and
nationalism, foster lover of humanity, respect for
human rights, appreciation of the role of national
heroes in the historical development of the
country, teach the rights and duties of citizenship,
strengthen ethical and spiritual values, develop
moral character and personal discipline,
encourage critical and creative thinking, broaden
scientific and technological knowledge, and
promote vocational efficiency.
(3) At the option expressed in writing by the
parents or guardians, religion shall be allowed to
be taught to their children or wards in public
elementary and high schools within the regular
class hours by instructors designated or approved
by the religious authorities of the religion to which
the children or wards belong, without additional
cost to the Government.
Section 4.(1) The State recognizes the
complementary roles of public and private
institutions in the educational system and shall
exercise reasonable supervision and regulation of
all educational institutions.
(2) Educational institutions, other than those
established by religious groups and mission
boards, shall be owned solely by citizens of the
Philippines or corporations or associations at least
sixty per centum of the capital of which is owned
by such citizens. The Congress may, however,
require increased Filipino equity participation in all
educational institutions.
The control and administration of educational
institutions shall be vested in citizens of the
Philippines.
No educational institution shall be established
exclusively for aliens and no group of aliens shall
comprise more than one-third of the enrollment in
any school. The provisions of this subsection shall
not apply to schools established for foreign
diplomatic personnel and their dependents and,
unless otherwise provided by law, for other
foreign temporary residents.
(3) All revenues and assets of non-stock, non-
profit educational institutions used actually,
directly, and exclusively for educational purposes
shall be exempt from taxes and duties. Upon the
dissolution or cessation of the corporate existence
of such institutions, their assets shall be disposed
of in the manner provided by law.
Proprietary educational institutions, including
those cooperatively owned, may likewise be
entitled to such exemptions subject to the
limitations provided by law including restrictions
on dividends and provisions for reinvestment.
(4) Subject to conditions prescribed by law, all
grants, endowments, donations, or contributions
used actually, directly, and exclusively for
educational purposes shall be exempt from tax.
Section 5. (1) the State shall take into account
regional and sectoral needs and conditions and
shall encourage local planning in the development
of educational policies and programs.
(2) Academic freedom shall be enjoyed in all
institutions of higher learning.
(3) Every citizen has a right to select a profession
or course of study, subject to fair, reasonable, and
equitable admission and academic requirements.
(4) The State shall enhance the right of teachers
to professional advancement. Non-teaching
academic and non-academic personnel shall enjoy
the protection of the State.
(5) The State shall assign the highest budgetary
priority to education and ensure that teaching will
attract and retain its rightful share of the best
available talents through adequate remuneration
and other means of job satisfaction and
fulfillment.
Language
Section 6. The national language of the Philippines
is Filipino. As it evolves, it shall be further
developed and enriched on the basis of existing
Philippine and other languages.
Subject to provisions of law and as the Congress
may deem appropriate, the Government shall take
steps to initiate and sustain the use of Filipino as
a medium of official communication and as
language of instruction in the educational system.
Section 7. For purposes of communication and
instruction, the official languages of the
Philippines are Filipino and, until otherwise
provided by law, English.
The regional languages are the auxiliary official
languages in the regions and shall serve as
auxiliary media of instruction therein.
Spanish and Arabic shall be promoted on a
voluntary and optional basis.
Section 8. This Constitution shall be promulgated
in Filipino and English and shall be translated into
major regional languages, Arabic, and Spanish.
Section 9. The Congress shall establish a national
language commission composed of
representatives of various regions and disciplines
which shall undertake, coordinate, and promote
researches for the development, propagation, and
preservation of Filipino and other languages.
Science and Technology
Section 10. Science and technology are essential
for national development and progress. The State
shall give priority to research and development,
invention, innovation, and their utilization; and to
science and technology education, training, and
services. It shall support indigenous, appropriate,
and self- reliant scientific and technological
capabilities, and their application to the country’s
productive systems and national life.
Section 11. The Congress may provide for
incentives, including tax deductions, to encourage
private participation in programs of basic and
applied scientific research. Scholarships, grants-
in-aid, or other forms of incentives shall be
provided to deserving science students,
researchers, scientists, inventors, technologists,
and specially gifted citizens.
Section 12. The State shall regulate the transfer
and promote the adaptation of technology from all
sources for the national benefit. It shall encourage
the widest participation of private groups, local
governments, and community-based
organizations in the generation and utilization of
science and technology.
Section 13. The State shall protect and secure the
exclusive rights of scientists, inventors, artists,
and other gifted citizens to their intellectual
property and creations, particularly when
beneficial to the people, for such period as may be
provided by law.
Arts and Culture
Section 14. The State shall foster the
preservation, enrichment, and dynamic evolution
of a Filipino national culture based on the principle
of unity in diversity in a climate of free artistic and
intellectual expression.
Section 15. Arts and letters shall enjoy the
patronage of the State. The State shall conserve,
promote, and popularize the nation’s historical
and cultural heritage and resources, as well as
artistic creations.
Section 16. All the country’s artistic and historic
wealth constitutes the cultural treasure of the
nation and shall be under the protection of the
State which may regulate its disposition.
Section 17. The State shall recognize, respect,
and protect the rights of indigenous cultural
communities to preserve and develop their
cultures, traditions, and institutions. It shall
consider these rights in the formulation of national
plans and policies.
Section 18. (1) The State shall ensure equal
access to cultural opportunities through the
educational system, public or private cultural
entities, scholarships, grants and other incentives,
and community cultural centers, and other public
venues.
(2) The State shall encourage and support
researches and studies on the arts and culture.
Sports
Section 19. (1) The State shall promote physical
education and encourage sports programs, league
competitions, and amateur sports, including
training for international competitions, to foster
self-discipline, teamwork, and excellence for the
development of a healthy and alert citizenry.
(2) All educational institutions shall undertake
regular sports activities throughout the country in
cooperation with athletic clubs and other sectors.
JURISPRUDENCE:
 ACADEMIC FREEDOM- from standpoint
of the educational institution and the
members of the academe. The Supreme
Court sustained the primacy of academic
freedom over Civil service rules on AWOL,
stressing when UP opted to retain private
petitioner and even promoted him
despite his absence, the University was
exercising its freedom to choose who may
teach or who may continue to teach its
faculty (UP, et al. vs. CSC, April 3, 2001).
 Morales vs. UP Board of Regents,
December 13, 2004- As enunciated by
this Court in the case of University of San
Carlos v. Court of Appeals, the discretion
of schools of learning to formulate rules
and guidelines in the granting of honors
for purposes of graduation forms part of
academic freedom.  And such discretion
may not be disturbed much less controlled
by the courts, unless there is grave abuse
of discretion in its exercise.  Therefore,
absent any showing of grave abuse of
discretion, the courts may not disturb the
University’s decision not to confer honors
to petitioner.
 Lacuesta vs. Ateneo, December 9,
2005- Consistent with academic freedom
and constitutional autonomy, an
institution of higher learning has the
prerogative to provide standards for its
teachers and determine whether these
standards have been met.  At the end of
the probation period, the decision to re-
hire an employee on probation, belongs to
the university as the employer alone.
 UP vs. CSC, April 3, 2001- the
University has the academic freedom to
determine for itself on academic grounds
who may teach, what may be taught, how
it shall be taught, and who may be
admitted to study.” Clearly, this freedom
encompasses the autonomy to choose
who should teach and, concomitant
therewith, who should be retained in its
rolls of professors and other academic
personnel. This Court declared in Ateneo
de Manila University v. Capulong: “As
corporate entities, educational institutions
of higher learning are inherently endowed
with the right to establish their policies,
academic and otherwise, unhampered by
external controls or pressure.”
ARTICLE XVI –
GENERAL PROVISIONS
Section 1-2. Symbols of Nationality
1) FLAG
Red, white, and blue.
With a sun and 3 stars
The design may be charged by
constitutional amendment.
2) Congress may, by law, adopt a new:
(a) NAME FOR THE COUNTRY,
(b) NATIONAL ANTHEM, or
(c) NATIONAL SEAL.
NOTE: Law will take effect upon ratification by the
people in a NATIONAL REFERENDUM.
Section 3. State Immunity
Suability of State
1) The State cannot be sued without its consent.
2) When considered a suit against the State
a) The Republic is sued by name;
b) Suits against an un-incorporated
government agency;
c) Suit is against a government official,
but is such that ultimate liability
shall devolve on the government
i. When a public officer acts in
bad faith, or beyond the scope
of his authority, he can be
held personally liable for
damages.
ii. BUT: If he acted pursuant to
his official duties, without
malice, negligence, or bad
faith, he is not personally
liable, and the suit is really
one against the State.
3) This rule applies not only in favor of the
Philippines but also in favor of foreign states.
4) The rule likewise prohibits a person from filing
for interpleader, with the State as one of the
defendants being compelled to interplead.

Consent to be sued
A. Express consent:
1) The law expressly grants the authority to
sue the State or any of its agencies.
2) Examples: a) A law creating a
government body expressly providing
that such body “may sue
or be sued”
b) Art. 2180 of the Civil
Code, which creates
liability against the State
when it acts through a
special agent.
B. Implied consent:
1) The State enters into a private contract.
a) The contract must be entered into
by the proper officer and within the
scope of his authority.
b) UNLESS: The contract is merely
incidental to the performance of a
governmental function.
2) The State enters into an operation that is
essentially a business operation.
a) UNLESS: The operation is incidental
to the performance of a Government in Money Judgments against it:
governmental function (e.g. arrastre
services)
b) Thus, when the State conduct
business operations through a
GOCC, the latter can generally be
sued, even if its charter contains no
express “sue or be used” clause.
NOTE: difference between:
i. Jure Gestionis – by right of
economic or business relation =
may be sued
ii. Jure Imperil – by the sovereign
power, in the exercise of
sovereign functions. = no
implied consent; cannot be
sued.
3) Suit against an incorporated government
agency.
a) This is because they generally
conduct proprietary business
operations and have charters which
grant them a separate juridical
personality.
4) The State files suit against a private party.
UNLESS: The suit is entered into
only to resist a claim.
Garnishment of government funds:
1. GENERAL RULE: Not allowed. Whether the
money is deposited by way of general or
special deposit, they remain government
funds and are not subject to garnishment.
2. EXCEPTION: Where a law or ordinance has
been enacted appropriating a specific amount
to pay a valid government obligation, then the
money can be garnished.
Consent to be sued is not equivalent to
consent to liability:
1) The Fact that the State consented to being
sued does not mean that the State will
ultimately be held liable.
2) Even if the case is decided against the State,
an award cannot be satisfied by writs
execution or garnishment against public
funds. Reasons: No money shall be paid out of
the public treasury unless pursuant to an
appropriation made by law.
Rules regarding payment of interests by
General Rule: Government cannot be made to
pay interests;
Exceptions:
1. Eminent domain;
2. Erroneous collection of taxes; or
3. Where government aggress to pay interest
pursuant to law.
Section 4. THE ARMED FORCES OF THE
PHILIPPINES
Composition: A citizen armed force
Prohibitions and disqualifications:
1) Military men cannot engage, directly or
indirectly, in any partisan political activity,
except to vote.
2) Members of the AFP in active service cannot
be appointed to a civilian position in the
government, including GOCCs or their
subsidiaries.
The Chief of Staff:
1) Tour duty: Not to exceed three years
2) EXCEPTION: In times of war or other national
emergency as declared by Congress, the
President may extend such tour of duty.
1) Proposal of amendments or revisions by the
proper constituent assembly;
2) Submission of the proposed amendments or
revisions; and
3) Ratification.

ARTICLE XVII –
AMENDMENTS OR REVISIONS Proposal of amendments:
Amendments may be proposed by:
A. Congress, acting as a constituent assembly,
DEFINITIONS: by a ¾ vote of all its members.
1) The power of Congress to propose
1) AMENDMENT: an alteration of one or a few amendments is NOT part of its ordinary
specific provisions of the Constitution. Its legislative power.
main purpose is to improve specific provisions 2) The only reason Congress can exercise
of the Constitution. The changes brought such power is that the Constitution has
about by amendments will not affect the other granted it such power.
provisions of the Constitution.
B. Constitutional Convention:
2) REVISION: An examination of the entire 1) How a Constitutional Convention may be
Constitution to determine how and what called
extent it should be altered. A revision implies a) Congress may call a ConCon by a 2/3
substantive change, affecting the Constitution vote of all its members; or
as whole. b) By a majority vote of all its members,
Congress may submit to the electorate
the question of whether to call a
Constituent power Legislative power ConCon or not.
1. The power to 1. The power to pass, 2) Choice of which constituent assembly
formulate a repeal or amend (either Congress or ConCon) should
Constitution or to ordinary laws or initiate amendments and revisions is left
propose amendments statutes (as opposed to the discretion of Congress. In other
to or revisions of the to organic law) words, it is a political question.
Constitution and to 3) BUT: The manner of calling a ConCon is
ratify such proposal subject to judicial review, because the
2. It is exercised by 2. It is an ordinary Constitution has provided for voting
Congress (by special power of Congress and requirements.
constitution of the people, also 4) If Congress, acting as a constituent
conferment), by a through initiative and assembly, calls for a ConCon but does not
Constitutional referendum. provide the details for the calling of such
Convention or ConCon, Congress – exercising its
Commission, by the ordinary legislative power – may supply
people through such details. But in so doing, Congress (as
initiative and legislature should not transgress the
referendum, and resolution of Congress acting as a
ultimately, by the constituent assembly.
sovereign electorate 5) Congress, as a constituent assembly and
3. The exercise of the exercise of the ConCon has no power to appropriate
constituent power does legislative power money for their expenses. Money may be
not need the approval ordinary needs the spent from the treasury only pursuant to
of the Chief Executive approval of the Chief an appropriation made by law.
Executive, except
when done by people C. People’s Initiative
through initiative and 1) Petition to propose such amendments
referendum. must be signed be at least 12% of ALL
registered voters.
2) Every legislative district represented by at
Three (3) steps necessary to give effect to least 3% of the registered voters therein.
amendments and revisions: 3) Limitation: It cannot be exercised more
often than once every 5 years.
 4) Requires implementing legislation: The election. Thus, they may be submitted
Supreme Court held that RA 6735, the for ratification simultaneously with a
initiative and Referendum law is general election.
insufficient. Therefore, amendment by 2) The determination of the conditions
initiative and referendum must still await under which proposed
a valid law. (Defensor- Santiago v. amendments/revisions are submitted
COMELEC, G.R. 127325) to the people falls within the
legislative sphere. That Congress
NOTE: could have done better does not make
1) While the substance of the proposals made by the steps taken unconstitutional.
each type of constituent assembly is not 3) All the proposed
subject to judicial review, the manner of the amendments/revisions made by the
proposals are made is subject to judicial constituent assembles must be
review. submitted for ratification in one single
2) Since these constituent assemblies owe their plebiscite. There cannot be a piece-
existence to the Constitution, the courts may meal ratification of
determine whether the assembly has acted in amendments/revisions.
accordance with the Constitution. 4) Presidential proclamation is NOT
3) Examples of judiciable issues: required for effectivity of
a) Whether a proposal was approved by the amendments/revisions, UNLESS the
required number of votes in Congress proposed amendments/revisions so
(acting as a constituent assembly). provide.
b) Whether the approved proposals were
properly submitted to the people for
ratification.

Proposal of Revisions ARTICLE XVIII –

A. By Congress, upon a vote of 3/4 of its
members
B. By a constitutional convention
Ratification
1. Amendments and revisions proposed by
Congress and/or by a ConCon:
1) Valid when ratified by a MAJORITY of
votes cast in a plebiscite.
2) Plebiscite is held not earlier than 60
days not later than 90 days from the
approval of such amendments or
revisions.
2. Amendments proposed by the people via
initiative:
Valid when ratified by a MAJORITY of
votes cast in plebiscite.
1) Plebiscite is held not earlier than 60
days nor later than 90 days after the
certification by COMELEC of the
petition’s sufficiency.
3. Requisites of a valid ratification:
A. Held in a plebiscite conducted under
the election law;
B. Supervised by the COMELEC; and
C. Where only franchised voters
(registered) voters take part.
4. Issues regarding ratification:
1) The Constitutions does not require
that amendments and revisions be
submitted to the people in a special
TRANSITORY PROVISIONS
Effectivity of the 1987 Constitution
1. The 1987 Constitution took effect immediately
upon its ratification.
2. According to the SC, this took place on
February 2, 1987, which was the day the
people cast their votes ratifying the
Constitution.
Military bases agreements
A) Renewals of military bases agreements
must be through a strict treaty.
B) Ratification of the agreement in a
plebiscite is necessary only when
Congress so requires.
C) Section 25 of Article XVIII allows possible
local deployment of only AMERICAN
forces.
PUBLIC INTERNATIONAL LAW
I. THE NATURE OF INTERNATIONAL LAW
INTERNATIONAL LAW is that branch of public
law which regulates the relations of States and of
other entities which have been granted
international personality (e.g. the UN). Modern
international law after World War II, however,
now deals not only with the relations between
states, but also their relations with persons,
natural or juridical (e.g. int’l human rights law).
Although this Court stands willing to assume the
responsibility of giving effect to the Philippines’
international law obligations, the blanket
invocation of international law is not the panacea
for all social ills. We refer now to the petitioner’s
invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In
Relation to Sexual Orientation and Gender
Identity), which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that
these Yogyakarta Principles contain norms that
are obligatory on the Philippines. There are
declarations and obligations outlined in said
Principles which are not reflective of the current
state of international law, and do not find basis in
any of the sources of international law
enumerated under Article 38(1) of the Statute of
the International Court of Justice. Petitioner has
not undertaken any objective and rigorous
analysis of these alleged principles of international
law to ascertain their true status. Ang Ladlad
LGBT Party vs. Commission on Elections, G.R. No.
190582, April 8, 2010.
Distinction between a subject and object of
international law
A SUBJECT is an entity that has rights
and responsibilities under international law; it can
be a proper party in transactions involving the
application of international law among members
of the international community. Subject include:
states, colonies, the Holy See, the United Nations.
An OBJECT is a person or thing in respect of
which rights are held and obligations assumed by
the subject; it is not directly governed by the
rules of international law; its rights are received,
and its responsibilities imposed, indirectly through
the instrumentality of an international agency.
Traditionally, individuals have been considered
merely as objects, not primarily through treaties,
a certain degree of international personality to
individuals (e.g. individuals are granted by treaty
the power to sue before the European Court of
Human Rights).
Divisions of International Law
1) LAWS OF PEACE – governs the normal
relations of States
2) LAWS OF WAR –rules during periods of
hostility
3) LAWS OF NEUTRALITY – rules governing
States not involved in the hostilities
II. SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of the
International Court of Justice (ICJ) is
considered the authoritative enumeration of the
sources of International Law.
A) PRIMARY SOURCES
1. TREATY / INTERNATIONAL CONVENTION
Generally, a treaty only binds the parties.
However, treaties may be considered a direct
source of int’l law when concluded by a sizable
no. of States, and is reflective of the will of
the family of nations (in which case, a treaty
is evidence of custom).
2. CUSTOM – General and consistent practice of
states followed by them from a sense of legal
obligation. 2 Elements:
1. STATE PRACTICE – a consistent
and uniform external conduct of
States. Generally, both what states
say and what they do so by int’l law,
and not through mere courtesy or
comity, or because of humanitarian
considerations.
2. OPINO JURIS – State practice
must be accompanied with the
conviction that the State is legally
obligated to do so by int’l law, and
not through mere courtesy or
comity, or because of humanitarian
considerations.
Q: What is ‘INSTANT’ CUSTOM?
A. Customary law may emerge even within a
relatively short passage of time, if within that
period, State Practice has been uniform and
extensive. It is not the product of constant
and prolonged practice but comes about as a
spontaneous activity of a great number of
states supporting a specific line of action (ex.
Law on the Continental Shelf, aftermath of
attack on WTC: coalition of forces arose
supportive of the US). Thus, int’l law does
NOT always require a long period of time to
elapse before conduct is considered
customary.
3. GENERAL PRINCIPLES OF LAW - Principles
common to most national systems of law; 2) DISTINGUISHED FROM EXECUTIVE
rules based on natural justice. Ex. good faith, AGREEMENTS
estoppels, exhaustion of local remedies

TREATY EXECUTIVE
B) SECONDARY SOURCES AGREEMENT
1) JUDICIAL DECISIONS – a subsidiary means SUBJEC [CODE: PCI] [CODE: TAAI]
for the determination of rules of law (e.g., T 1. Political a. Have Transitory
determining what rules of customary IL exist) MATTER issues effectivity
that is acceptable so long as they correctly 2. Changes in b. Adjustment of
interpret and apply int’l law. National Policy details carrying
NOTE: Even decisions of national courts, 3. Involve out-well
when applying int’l law, are acceptable. Ex. international established
Principles on diplomatic immunity have been arrangements national policies
developed by judgments of national courts. of a permanent and traditions
character c. Arrangements
2) TEACHINGS OF PUBLICISTS – The world of temporary
‘Publicist’ means ‘learned writer.’ Learned nature
writings, like judicial decisions, can be d.
evidence of customary law, and can also play Implementation of
a subsidiary role in developing new rules of treaties, statutes,
law.
well-established
2 Requisites:
1. Fair and impartial representation of policies
law.
2. By an acknowledged authority in the RATIF. While the Do not need to be
field. BY Constitution ratified by the
SENATE vest the power Senate
to NEGOTIATE
treaties with the
III. TREATIES President, such
must be
1) DEFINITION (Art. 2, Vienna Convention RATIFIED by
on the Law of Treaties) the 2/3 of the
A. TREATY is: 1) an international agreement Senate to
2) conduct between States become valid
3) in written form and effective
4) governed by international (Art.7, Sec 21)
law
5) embodied in a single
instrument or in 2 or
more related
3) PRINCIPAL RULES OF INTERNATIONAL
instruments.
LAW IN CONNECTION WITH TREATIES
A. PACTA SUNT SERVANDA – Every treaty in
force is binding upon the parties and must be
Q: If not in writing, is it still considered a
performed by them in good faith.
treaty?
- this applies despite hardships on the
A: Yes, Oral agreements between States are
contracting State such as conflicts
recognized as treaties under customary
between the treaty and its
International law (but are extremely rare
Constitution. NOTE: A state can avoid
nowadays).
PERFORMANCE if the treaty obligation
collides with its Constitution, but it
CANNOT escape whatever LIABILITY it
may incur as a result of such non-
performance.

B. REBUS SIC STANTIBUS – A party is not
bound to perform a treaty if there has been a
fundamental change of circumstances since
the treaty was concluded.
1) it has been described as the exception to
the rule of pacta sunt servanda.
2) justifies the non-performance of a treaty
obligation if the subsequent condition in
relation to which the parties contracted
has changed so materially and
unexpectedly as to create a situation in
which the exaction of performance would
be unreasonable.
3) Rebus sic stantibus may not be invoked as
a ground for terminating or withdrawing
from a treaty:
a. if the treaty established a boundary
b. if the ‘fundamental change’ is the
result of a breach by the party
invoking it of an obligation under
the treaty or of any other obligation
owed to any other party to the
treaty.
C. JUS COGENS – a rule which has the status of
a preemptory (i.e., absolute,
uncompromising) norm of international law
where no derogation may be permitted.
Elements:
1. a norm accepted and recognized
2. by the int’l community of States as a
whole
3. as a norm from which no derogation is
permitted.
4. it can only be modified by a subsequent
norm having the same character.
a. If a treaty, at the time of its
conclusion, conflicts with jus
cogens, it is
void.
Examples:
(1) prohibition against the unlawful use of
force;
(2) prohibition against piracy, genocide, and
slavery
4) STEPS IN TREATY-MAKING PROCESS:
1. Negotiation;
2. Signature;
3. Ratification;
4. Exchange of Instruments of Ratification;
and
5. Registration with UN.
RESERVATIONS
This is a unilateral statement made by a State
when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effects of certain
provisions of the treaty in their application to that
State.
Invalidity of treaties: Grounds
1) Error of fact
2) Fraud
3) Corruption
4) Duress
5) Jus cogens
5) TERMINATION OF TREATY
1. Expiration of term;
2. Accomplishment of purpose;
3. Impossibility of performance;
4. Loss of subject matter;
5. Novation;
6. Desistance of parties;
7. Extinction of one of parties, if treaty is
bipartite;
8. Occurrence of vital change of
circumstances;
9. Outbreak of war; and
10. Voidance of treaty.
Succession to treaties: the “Clean State” rule
When one state ceases to exist and is succeeded
by another on the same territory, the
Newly independent state is not bound to maintain
in force, or become a party to, any treaty
although it may agree to be bound by treaties
made by its predecessor.
IV. INTERNATIONAL LAW AND MUNICIPAL
LAW
Q: When there is conflict between
International law and domestic law, which is
to prevail?
A:
1. International rule: Before an international
tribunal, a state may not pleads its own law as
an excuse for failure to comply with
international law. The state must modify it
laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional
violation is manifest and concerns a rule of
internal law of fundamental importance.
2. Municipal rule: When the conflict comes
before a domestic court, domestic courts are
bound to apply the local law. Should a conflict
arise between an international agreement and
the Constitution, the treaty would not be valid
and operative as domestic law. It does not,
 however, lose its character as international
law.
Effect of Municipal Law in International Law
2 THEORIES:
1) DUALISM – domestic and international law
are independent of each other, as they
regulate different subject matters. IL
regulates the relations of sovereign states,
while municipal law regulates the internal
affairs of a state. Thus, no conflict can ever
arise between international and municipal law,
because the two systems are mutually
exclusive. If IL is applied within a state, it is
only because it has been expressly
incorporated by municipal law. The Philippines
is a dualist state.
2) MONISM – Monists have a unitary concept of
law and see all law – including both
international and municipal law – as an
integral part of the same system. If conflict
exists between international law and
municipal law, international law must prevail.
Germany is a monist state.
Effect of International Law on Municipal Law
2 VIEWS:
1) DOCTINE OF INCORPORATION – rules of
international law form part of the law of the
land and no further legislative action is
needed to make such rules applicable in the
domestic sphere.
a) Such recognized in art.2, sec.2, as the
Philippines “adopts the generally
accepted principles of international
law as part of the law of the land.”
b) Rules of international law are given,
equal standing with, but are not
superior to, national legislative
enactments. Thus, the Constitution, as
the highest law of the land, may
invalidate a treaty in conflict with it.
(Secretary of Justice v. Hon. Lantion
and Mark Jimenez, Jan. 18, 2000)
2) DOCTRINE OF TRANSFORMATION – the
generally accepted rules of int’l law are not
per se binding upon the State must first be
embodied in legislation enacted by Only when
so transformed will they become binding upon
the State as part of its municipal law.
In case of conflict between international law
and domestic law:
3. International rule: Before an international
tribunal, a state may not pleads its own law as
an excuse for failure to comply with
international law. The state must modify it
laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional
violation is manifest and concerns a rule of
internal law of fundamental importance.
4. Municipal rule: When the conflict comes
before a domestic court, domestic courts are
bound to apply the local law. Should a conflict
arise between an international agreement and
the Constitution, the treaty would not be valid
and operative as domestic law. It does not,
however, lose its character as international
law.
V. SUBJECTS OF INTERNATIONAL LAW
STATE
A) ELEMENTS OF A STATE:
A State should possess the following qualifications
(Art.1, Montevideo Convention):
1) a permanent population;
2) a defined territory;
3) government;
4) capacity to enter into relations with other
States
B) DISTINCTIONS BETWEEN SOVEREIGNITY
AND INDEPENDENCE
A. SOVEREIGNITY is the broader term. It
refers to the supreme and uncontrollable
power inherent in the State by which
such State is governed. It has 2 aspects:
1. INTERNAL – freedom of the State to
manage its own affairs.
2. EXTERNAL – freedom of the State to
direct its foreign affairs.
B. INDEPENDENCE is synonymous with
external sovereignty. It is defined as the
power of a State to manage its external
affairs without direction or interference
from another State.
C) PRINCIPLES OF STATE SUCCESSION
A. STATE SUCCESSION is the substitution of
one State by another, the latter taking
over the rights and some of the
obligations of the former.
B. 2 types of State Succession:
1. UNIVERSAL – takes place when a
State is completely annexed by
another, or is dismembered or
dissolved, or is created as a result of
merger of 2 or more States.
 2. PARTIAL – takes place when a claimed, following its sinuosities
portion of the territory of a State loses and curvatures but excluding the
part of its sovereignty by joining a internal waters in bays and gulfs.
confederation or becoming a
protectorate or suzerainty. b. Straight baseline method
Straight lines are made to connect
appropriate points on the coast
C. EFFECTS OF STATE SUCCESSION without departing radically from
1. The allegiance of the inhabitants of its general direction. The waters
the predecessor State is transferred to inside the lines are considered
the successor State. internal.
2. The political laws of the predecessor
State are automatically abrogated but 2. Some modes of acquisition:
the non-political laws are deemed a. Cession
continued unless expressly repealed It is a derivative mode of
or contrary to the institutions of the acquisition by which territory
new sovereign. belonging to one state is
3. The public property of the predecessor transferred to the sovereignty of
State is acquired by the successor another state in accordance with
State but not the tort liability of the an agreement between them.
former. b. Subjugation
4. Treaties entered into by the It is a derivative mode of
predecessor State are not considered acquisition by which the territory
binding on the successor State except of one state is conquered in the
those dealing with local rights and course of war and thereafter
duties such as servitudes and annexed and placed under
boundaries. sovereignty of the conquering
state.
c. Prescription
D) SUCCESSION OF GOVERNMENT It is a derivative mode of
1. In succession of government, the integrity acquisition by which territory
of the original state is not affected as belonging to one state is
what takes place is only a change in one transferred to the sovereignty of
of its elements, the government. another state by reason of the
2. Effects of a change in government: adverse and uninterrupted
a. If effected by peaceful means, the possession thereof by the latter
new government inherits all rights for a sufficiently long period of
and obligations of the old time.
government.
b. If effected by violence, the new F) RIGHT OF LEGATION
government inherits all the rights of
the old government. However, the a. It is the right of a state to maintain diplomatic
new government may reject the relations with other states.
obligations of the old government if b. Types:
they are of a political complexion. If 1. Active – right to send diplomatic
the obligations are the consequence representatives
of the routinary act of 2. Passive – right to receive diplomatic
administration of the old representatives
government, they should be c. Functions of Diplomatic Missions:
respected.  representing sending state in receiving
state;
E) TERRITORY
 protecting in receiving state interests of
1. Methods used in defining the territorial sending state and its nationals;
sea  negotiating with government of
a. Normal baseline method receiving state;
Under this method, the territorial  promoting friendly relations between
sea is drawn from the low-water sending and receiving states and
mark of the coast to the breadth
 developing their economic, cultural, and nationality, or to assassination of a state’s
scientific relations; diplomatic representatives of other
 ascertaining by all lawful means officials.
conditions and developments in
receiving state and reporting thereon to
government of sending state; and
 in some cases, representing friendly SOME INCOMPLETE SUBJECTS OF
INTERNATIONAL LAW
governments at their request.
1. PROTECTORATES – dependent states which
have control over their internal affairs but
d. Diplomatic and Consular immunity
whose external affairs are controlled by
1. personal inviolability
another state.
2. immunity of embassy and legation
2. FEDERAL STATE – union of previously
buildings
autonomous entities. The central organ will
3. right of protection
have personality in international law, but the
4. extraterritoriality – exemption from local
extent of the international personality of the
jurisdiction on the basis of international
component entities can be a problem.
custom
3. MANDATED AND TRUST TERRITORIES –
5. exemption from taxes and personal
territories placed by the League of Nations
services
under one or other of the victorious allies of
6. inviolability of means of communication
WWI.
7. Diplomatic bag – immune from search

VI. STATE RESPONSIBILITY

PRINCIPLES OF JURISDICTION OF STATES
i. Territoriality principle: The fundamental
1) It is the doctrine which holds a state
source of jurisdiction is sovereignty over
responsible for any injury sustained by an
territory. A state has absolute, though not
alien within its jurisdiction. Because of an
necessarily exclusive, power to prescribe,
international wrong imputable to it, the state
adjudicate, and enforce rules for conduct
will be responsible if it is shown that it
within its territory.
participated in the act or omission complained
ii. Nationality principle: Every state has
of or was remiss in redressing the resultant
jurisdiction over its nationals even when
wrong.
those nationals are outside the state.
2) Elements of State Responsibility
iii. Protective principle: A state may
a. breach of an international obligation
exercise jurisdiction over conduct outside
b. attributability
its territory that threatens its security, as
3) Types of State responsibility
long as that conduct is generally
a. Direct responsibility-attaches to the
recognized as criminal by the states in the
state if the wrongful act/omission was
international community.
effected through any of its superior organs
iv. Universality principle: Recognizes that
acting on its behalf.
certain offenses are also heinous and so
b. Indirect responsibility- Acts of the
widely condemned that any state, if it
following are attribute to the state: state
captures the offender, may prosecute and
organs other persons exercising elements
punish that person on behalf of the
of governmental authority in the absence
offender or victim or where the crime was
or default of the official authorities and in
committed.
circumstances calling for exercise of those
elements of authority insurrectional or
5. Passive personality principle: A state may
other movement which becomes the new
apply law – particularly criminal law – to an
government
act committed outside its territory by a person
4) Conditions for the enforcement of the doctrine
not its national where the victim of the act
of state responsibility
was its national.
a. The injured alien must first exhaust all
This principle has not been ordinarily
local remedies
accepted for ordinary torts or crimes, but
b. He must be represented in the int’l Claim
is increasingly accepted as applied to
for damages by his own state (ordinarily,
terrorist and other organized attacks on a
individuals have no standing to bring a
state’s national by reason of their
claim before international law).

VII. SETTLEMENT OF DISPUTES
AMICABLE METHODS
a. NEGOTIATION – discussion by the
parties of their respective claims and
counterclaims with a view to the just and
orderly adjustment.
b. INQUIRY – an investigation of the points
in question with the view that this will
contribute to the solution of the problem
c. GOOD OFFICES – method by which a 3 rd
party attempts to bring the disputing
states together in order that they may be
able to discuss the issues in contention.
d. MEDIATION – 3rd party actively
participates in the discussion in order to
reconcile the conflicting claims.
Suggestions of mediator are merely
persuasive
e. CONCILIATION – 3rd party also actively
participates in order to settle the conflict.
Suggestions of conciliator are also not
binding. As distinguished from mediation
the services of the conciliator were
solicited by the parties in dispute.
f. ARBITRATION – process by which the
solution of a dispute is entrusted to an
impartial tribunal usually created by the
parties themselves under a charter known
as the compromise. The proceedings are
essentially judicial and the award is, by
previous agreement, binding on the
parties
HOSTILE/NON-AMICABLE METHODS
1. RETORSION – is a lawful act which is
designed to injure the wrongdoing State.
Ex. cutting off economic aid (this is lawful
because there is no legal obligation to provide
economic aid).
2. REPRISAL – an act which would normally be
illegal but which is rendered legal by prior
illegal act committed by the State against
which the reprisal is directed; it is a form of
retaliation against the prior illegal act.
3. Reprisals may be used only when other
means of redress (e.g. protests and warnings)
have failed.
4. SEVERANCE (OF DIPLOMATIC
RELATIONS) – One country cuts of all
diplomatic ties with another, as a sign of
protest/hostility.
5. NAVAL BLOCKADE – Blocking the ports of a
country with naval forces.
6. EMBARGO – Preventing the ingress to and
egress from a country of commercial
transactions with another state.
VIII. SPECIAL TOPICS
A. EXTRADITION
1) EXTRADITION is the surrender of a person
by one state to another state where he is
wanted for prosecution or, if already
convicted, for punishment.
2) Basis of Extradition: a treaty. Outside of
treaty, there is no rule in international law
compelling a State to extradite anyone. Such
may be done, however, as a gesture of
comity.
3) Principles:
a) Principle of Specialty – a fugitive who is
extradited may be tried only for the crime
specified in the request for extradition and
such crime is included in the list of
extraditable offenses in the treaty.
b) Under the Political offense exception,
most extradition treaties provide that
political and religious offenders are not
subject to extradition.
─ Attentant Clause- assassination of head of
state or any member of his family is not
regarded as political offense for purposes of
extradition. Also for the crime of genocide.
c) There can only be extradition if there is a
treaty between the states.
4) PROCEDURE FOR EXTRADITION: (Judicial
and diplomatic process of request and
surrender) PD 1069
i. Request through diplomatic
representatives with:
ii. DFA forwards request to DOJ
iii. DOJ files petition for extradition with
RTC,
iv. RTC issues summons of warrant of
arrest to compel the appearance of
the individual;
v. Hearing (provide counsel de officio if
necessary)
vi. Appeal to CA within 10 days whose
decision shall be final and executory;
vii. Decision forwarded to DFA through
the DOJ;
 viii. Individual placed at the disposal of the
authorities of requesting state-costs
and expenses to be shouldered by
requesting state.
Q: The Philippines entered into an
extradition treaty with another country
which provided that it would apply crimes
committed before its effectivity. The country
asked the Philippines to extradite X for a
crime committed before the effectivity of the
treaty. X argued the extradition would
violate the prohibition against ex post facto
laws. Is he right?
A: No. The constitutional prohibition applies to
penal laws only. The extradition treaty is not
penal law. (Wright v. CA, 235 SCRA 341)
SECRETARY OF JUSTICE V. HON. LANTION
AND MARK JIMENEZ (G.R. # 139465, Oct. 17,
2000. overturning the Court’s previous
decision I 322 SCRA 160 dated Jan. 18,
2000)
By the virtue of an extradition treaty
between the US and the Philippines, the US
requested for the extradition of Pending
evaluation of the extradition documents by the
Philippine government, Jimenez requested for
copies of the US’ extradition request. The
Secretary of Justice denied that request.
ISSUE: During the evaluation stage of the
extradition proceedings, is private respondent
entitled to the two basic due process rights of
notice and hearing?
HELD: Private respondent is benefit of the right to
notice and hearing during the evaluation stage of
the extradition process. Extradition is a
proceedings sui generis. It is not a criminal
proceeding which will can into operation all the
rights of an accused guaranteed by the Bill of
Rights. The process of extradition does not involve
the determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudge in
the court of the state where he will be extradited.
There is NO deprivation of the right to due
process.
Dissent (original decision): Under the
extradition treaty, the prospective extradites may
be provisionally arrested pending the submission
of the request. Because of this possible
consequence, the evaluation process is akin to an
administrative agency conducting an investigate
proceeding, and partakes of the nature of a
criminal investigation. Thus, the basic due process
rights of notice and hearing are indispensable.
Assuming that the extradition treaty does
not allow for such rights, the Constitutional right
to procedural due process must override treaty
obligations. When there is a conflict between
international law obligations and the Constitution,
the Constitution must prevail.
B. UNITED NATIONS ORGANS
1. GENERAL ASSEMBLY
Composition: All members of the UN (as
of 1996: 185 member States)
Function: The GA may discuss any
question or matter within the scope of the Charter
or relating to the powers and functions of any
other organ. It is also vested with jurisdiction over
matters concerning internal machinery and
operations of the UN.
2. SECURITY COUNCIL
Composition: 15 members:
a) 5 Permanent Members (China,
France, UK, US, Russia)
b) 10 non-permanent: elected for 2
year terms by the General
Assembly.
Function: the maintenance of international
peace and security.
Q: What is the “double veto”?
A: In all non-procedural matters, each permanent
member is given a ‘veto’ – a Security Council
decision is ineffective if even one permanent
member votes against it. The veto does not
ordinarily apply to Procedural matters. However, a
permanent member may exercise a ‘double veto’
when it vetoes any attempt to treat a question as
procedural, and then proceed to veto any draft
resolution dealing with that question.
1. SECRETARIAT – CHIEF ADMINISTRATIVE
ORGAN OF THE UN
2. ECONOMIC AND SOCIAL COUNCIL – organ
charged with promoting social progress and
better standards of life in larger freedom
3. TRUSTEESHIP COUNCIL – organ charged
with administration of int’l Trusteeship
System.
4. INTERNATIONAL COURT OF JUSTICE –
judicial organ of the UN.
C. USE OF FORCE
1. Under Article 2(4) of the UN Charter, all
members States are bound to refrain from the
treat or use of force against the territorial
integrity or political independence of a State.
Recognized exceptions:
a) self-defense
b) military action taken or authorized by
the UN or competent Regional
organizations (such as NATO). –
collective self-defense
2. Requirement of proportionality in the use of
force
3. Aggression – as used in international law
means the use of armed force by a state
against the sovereignty, territorial integrity or
political independence of another state, or in
army other manner inconsistent with the
charter of the UN.
Types:
 direct
 indirect-ideological aggression
D. CALVO CLAUSE
1. It is a provision inserted in contracts, in which
the foreigner agrees in advance not to seek
the diplomatic protection of his national State.
2. In general, International Courts have
disregarded such clauses, as the right to
diplomatic protection is a right which belongs
to a State, and waiver from an individual does
not bind his State.
E. STATE IMMUNITY (JURE IMPERI and JURE
GESTIONIS)
a. Originally, under customary international law
the doctrine of absolute state immunity
applied, covering all areas of State activity
and recognizing only very narrows exceptions.
b. Nowadays, the rule is to adopt a doctrine of
qualified immunity – that is, immunity is
granted to foreign States only in respect of
their governmental acts (acts jure imperil),
not in respect of their commercial acts (acts
jure gestionis).
F. DIPLOMATIC IMMUNITY
1. Diplomatic immunity is a principle of
customary international law that grants
immunity to diplomatic representatives, in
order to uphold their dignity as
representatives of their respective states and
to allow them free and unhampered exercise
of their functions. In the Philippines, immunity
is claimed by request of the foreign state for
endorsement by the Department of Foreign
Affairs. The determination by the executive
department is considered a political question
that is conclusive upon Philippine Courts.
G. INTERNATIONAL CONTRACTS
2. Usually, agreements between States and
foreign corporations contain stipulations as to
which national legal system governs the
contract. Occasionally, however, in case of
powerful multinational companies, such
contracts are placed not under any single
system of municipal law, but under
international law, general principles of law, or
the provisions of the contrast itself.
3. The reason for concluding these so-called
internationalized contracts is to establish a
balance between the parties and prevent the
State party from evading its obligations under
the contract by changing its own internal law.
This is mostly secured by an arbitration clause
referring disputes under the agreement to an
international body.
G. THE INTERNATIONAL COURT OF JUSTICE
1) “Optional Clause” of the ICJ:
As a rule, the ICJ can operate only on the
basis of the consent of States to jurisdiction. Such
may take the form of a special agreement
between States to submit an existing dispute
before the Court (i.e. compromise).
However, under the ‘optional clause’
(art.36(2), ICJ Statute), a State may declare in
advance that they recognize the jurisdiction of
the Court as compulsory ipso facto and without
need of special agreement, in relation to any
other State accepting the same obligation, in all
legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law
c. existence of any fact which, if established,
would constitute breach of international
obligation; and
d. nature or extent or reparation to be made
for breach of international obligation.
2) STARE DICISIS does not apply to the ICJ.
Under the statute of the Court, previous
decisions have no binding force; in practice,
however, the Court always takes past
decisions into account.
Q: What does it mean to decide a case EX
AEQUO ET BONO?
A: Only States may be parties in contentious
proceedings before the ICJ (art 34, ICJ Statute).
I. OUTER SPACE
1. The exploration and use of outer space,
including the moon and other celestial bodies,
shall be carried out for the benefit and in the
interest of all countries, irrespective of their
degree of economic or scientific development,
and shall be the province of all mankind.
2. Outer space, including the moon and other
celestial bodies, shall be free from exploration
and use by all States without discrimination of
any kind, on a basis of equality and in
accordance with international law, and there
shall be free access to all areas of celestial
bodies.
3. Outer space, including the moon and other
celestial bodies, is not subject to national
appropriation by claim of sovereignty, by
means of use or occupation, or by any other
means.
4. Astronauts are envoys of mankind in outer
space, and states party to the Treaty on the
Exploration and Use of Outer Space shall
render to them all possible assistance in the
event of accident, distress, or emergency
landing on the territory of another State party
or on the high seas. When astronauts make
such a landing, they shall be safely and
promptly returned to the State of registry on
their space vehicle.
J. WAR
a. armed contention between public forces of
states or other belligerent communities
implying employment o force between parties
of force between parties for purpose of
imposing their respective demands upon each
other.
b. BASIC PRINCIPLE OF WAR:
1. Principle of Military Necessity –
belligerents may employ any amount and
kind of force to compel complete
submission or enemy with least possible
loss of lives, time, and money.
2. Principle of Humanity – prohibits use of
any measure that is not absolutely
necessary for purposes of war; and
3. principle of Chivalry – basis of such rules
as those that require belligerents to give
proper warning before launching a
bombardment or prohibit use of perfidy
(treachery) in conduct of hostilities.
c. RIGHTS OF PRISONERS OF WAR
a. to be treated humanely;
b. not subject to torture;
c. allowed to communicate with their families
d. receive food, clothing religious articles,
medicine;
e. bare minimum of information;
f. keep personal belongings
g. proper burial;
h. group according to nationality;
i. establishment of an informed bureau;
j. repatriation for sick and wounded (1949
Geneva Convention)
LAW ON HUMAN RIGHTS
UNIVERSAL DECLARATION OF HUMAN
RIGHTS
What is the Universal Declaration of Human
Rights (UDHR)?
The UDHR is the basic international statement of
the inalienable and inviolable rights of human
beings. It is the first comprehensive international
rights instrument.
What are the rights covered by the UDHR?
The UDHR proclaims two broad category of rights:
(a) civil and political rights: and (b) economic,
social, and cultural rights.
Are these rights subject to limitations?
Yes, the exercise of these rights and freedoms
may be subject to certain limitations, which must
be determined by law, only for the purpose of
securing due recognition and respect for the rights
of others and of the meeting the just
requirements of morality, public order and the
general welfare in a democratic society. Rights
may not be exercised contrary to the purposes
and principles of the UN. (Article 29 of the UDHR)
International Covenant on Economic, Social,
and Cultural Rights (ICESCR)
What are the rights guaranteed by the
Covenant?
1. Right of self-determination (Art. 1)
2. Right to work and accompanying rights
thereto (Arts.6, 7, 8)
3. Right to Social Security and other social
rights (Arts. 9& 10)
4. Adequate standard of living (Art. 11 (1))
including: (a) right to adequate housing
(Art. 11 (1)); (b) right to adequate
clothing (Art. 11 (1)
5. Right to health (Art. 12)
6. Right to education (Arts. 13 & 14)
 7. Cultural rights (Art. 15)
What are the States-parties’ obligations
under the Covenant?
1. Specific Obligations under Article 2
a. To take steps it the maximum
available resources, towards the
progressive realization of the
rights in the covenant;
b. Non-discrimination- states
guarantee the exercise of the
rights without discrimination (Art.
2 [2]).
2. Three General duties/obligations of states:
Just like the ICCPR and other human
rights conventions, ESCR imposes three
different types of obligations:
a. To respect- requires to refrain from
interfering with enjoyment of rights.
Thus, there is violation if it engages in
forced eviction;
b. To protect- requires states to prevent
violations by third parties. Thus, there
is violation if it engages in forced
eviction;
c. To fulfill- requires states to take
appropriate measures (legislative,
judicial etc.) towards the full
realization of the rights. Thus, the
states’ failure to provide essential
primary health care to the needy
amounts to a violation.
International Covenant on Civil and Political
Rights (ICCPR)
What are some of the civil and political
rights recognized under the ICCPR?
 Right of the peoples to self-
determination (art. 1)
 Right to an effective remedy (art. 2)
 Equal rights of men and women in the
enjoyment of civil and political rights/
non-discrimination on the basis of sex
(Art.3)
 Right to life (art.6)
 Freedom from torture or cruel, inhuman
or degrading punishment (art. 7)
 Freedom from slavery (art.8)
 Right to liberty and security of person
(art.9)
 Right to be treated with humanity in
cases of deprivation of liberty (art.10)
 Freedom from imprisonment for failure
to fulfill a contractual obligation (art.11)
 Freedom of movement and the right to
travel (art.12)
 Right to a fair, impartial and public trial
(art.14)
 Freedom from ex post fact laws (art.15)
 Right of recognition everywhere as a
person before the law (art.16)
 Right to privacy 9art.17)
 Freedom of thought, conscience, and
religion (art.18)
 Freedom of expression (art.19)
 Freedom of peaceful assembly (art.21)
 Freedom of association (art.22)
 Right to marry and found a family
(art.23)
 Right of a child to protection, a name
and nationality (art.24)
 Right to participation, suffrage, and
access to public service (art.25)
 Right to equal protection before the law
(art.260
 Right of minorities to enjoy their own
culture, to profess and practice their
religion and to use their own language.
When can a State Party derogate from the
ICCPR?
A state party to the ICCPR may derogate from the
treaty “in time of public emergency which
threatens the life of the nation and the existence
of which is officially proclaimed, the States Parties
to the present Covenant to the extent strictly
required by the exigencies of the situation,
provided that such measures are not inconsistent
with their obligations under international law and
do not involve discrimination solely on the ground
of race, colour, sex, language, religion of social
origin.” (Art. 4(1), ICCPR)
What are the Non-derogable rights under the
ICCPR?
Even in times of national emergency, no
derogation can be made from the following:
1. Right to life (art. 6)
2. Freedom from torture or cruel, inhuman or
degrading punishment (art.7)
3. Freedom from slavery (art. 8)
4. Freedom from imprisonment for failure to
fulfill a contractual obligation (art.11)
5. Freedom from ex post facts laws (art. 15)
6. Right of recognition everywhere as a
person before the law (art. 16)
7. Freedom of thought, conscience, and
religion (art.18) (Art. 4(2), ICCPR)

Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)
What does discrimination against women
cover?
Art. 1 defines Discrimination against
Women as “any distinction, exclusion, or
restriction made of the basis of sex which
has the effect or purpose or impairing or
nullifying the recognition, enjoyment or
exercise by women, irrespective or their
marital status, on a basis of equality of
men and women, of human rights and
fundamental freedoms in the political,
economic, social cultural, civil, or any
other field.
What are the State Obligations of State-
Parties under CEDAW?
Arts. 2-16 enumerate the Obligations of
State-Parties
I. Legal Measures (de jure)
a. embody principle of equality of
men and women in the national
constitution and other
appropriate laws (art. 2[a])
b. adopt appropriate legislative and
other measures prohibiting all
discrimination against women,
which includes legislation to
modify, abolish or repeal
discriminatory laws, regulations,
customs, and practices (art.2
[b]. [f] and [g])
c. adopt appropriate legislation to
ensure full development and
advancement of women, for the
purpose of guaranteeing
exercise and enjoyment of
Human Rights on the basis of
equality with men (art.3)
d. adopt appropriate legislation to
suppress all forms of traffic in
women exploitation and
prostitution of women. (Art. 6)
II. Administrative Measures 9de facto)
a. refrain from any act or practice
which is discriminatory against
women (includes public
authorities and institutions)
(art.2 [d[)
b. adopt temporary special
measures to address de fact
inequality of men and women
(art. 4[1])
c. modify the social and cultural
patterns of conduct of men and
women to eliminate practices
based on the idea or inferiority.
Superiority of either men or
women (art.5 [a])
d. educate family as to proper
social function of maternity and
common responsibility in rearing
children (art.5 [b])
What are some Civil and Political Rights
under CEDAW, which are unique to women?
Guarantee of civil and political rights
a. right to acquire, change, and retain
nationality- not prejudiced by marriage to
a foreigner (art. 9[1])
b. equal rights with men as regard
nationality of children (art.9 [2])
c. equal rights with men as regards freedom
of movement and choice of
domicile/residence (art. 15[4])
What are some Economic, Social and Cultural
Rights under CEDAW which are unique to
women?
Guarantee of Economic, Social and Cultural rights
a. equal rights with men as regards
education (Art. 10)
- elimination of stereotyped concept of
roles of man and women through co-
education, revision of textbooks,
programmes and teaching methods;
reduction of female student drop-outs;
and access to information on health
and well-being of families, including
advice of family planning.
b. equal rights with men as regards
employment (art. 11)
- prohibition against dismissal due to
marriage, pregnancy or maternity
leave;
- promotion of child-care facilities;
special protection to pregnant women
as regards type of work.
c. equal access with men as regards health
services, right to services in connection
with pregnancy, adequate nutrition during
pregnancy and lactation and confinement
and the post natal period (art. 12)
- right to enter into marriage, to freely
choose a spouse and to enter into
marriage only with free and full
consent;
- equal rights and responsibilities as
parents, to freely decide number of
children and access to information and
 education to be able to exercise these
rights.
1. Concepts
Definition of Public Internation law-defined as the
rules, based on the natural moral law and on
common consent, which governethe relations of
sovereign states and other intnernational persons.
It is a body of legal principles, norms and other
international persons and governs their conduct
affecting the interests of the internation
community as a whole.
1) Natural Moral law principles
2) A set of generally agreed upon norms of
conduct
3) Certain authoritative processes for
enacting and changing aforementioned
norms.
Basis of PIL:
1) Natural Law School-natural moral law
2) Positivist-Common consent of states
3) Eclectic-premised on both the natural
moral law and on common consent.
Competent authority-refers to equal states which
observe expressly or implicitly common standards
of conduct in their mutual relations.
Transnational law-is an emerging body based
upon universally accepted general principles of
law supplemented by that portion of municipal law
of disputants applicable in an attempt to resolve
conflict.
Jus Civile
Foundation of legal systems of Europe and other
parts of the world, contributing to many concepts
and principle now embodied in internation law.
a. Obligations ErgaOmnes
Erga omnes (in relation to everyone) is frequently
used in legal terminology describing obligations or
rights toward all. For instance a property right is
an erga omnes right, and therefore enforceable
against anybody infringing that right. An erga
omnes right (a statutory right) can here be
distinguished from a right based on contract,
which is only enforceable against the contracting
party.
In international law it has been used as a legal
term describing obligations owed by states
towards the community of states as a whole. An
erga omnes obligation exists because of the
universal and undeniable interest in the
perpetuation of critical rights (and the prevention
of their breach). Consequently, any state has the
right to complain of a breach. Examples of erga
omnes norms include piracy, genocide, slavery,
torture, and racial discrimination. The concept was
recognized in the International Court of Justice's
decision in the Barcelona Traction case [(Belgium
v Spain) (Second Phase) ICJ Rep 1970 3 at
paragraph 33]:
""… an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the
former are the concern of all States. In view of
the importance of the rights involved, all States
can be held to have a legal interest in their
protection; they are obligations erga omnes. [at
34] Such obligations derive, for example, in
contemporary international law, from the
outlawing of acts of aggression, and of genocide,
as also from the principles and rules concerning
the basic rights of the human person, including
protection from slavery and racial discrimination.
Some of the corresponding rights of protection
have entered into the body of general
international law . . . others are conferred by
international instruments of a universal or quasi-
universal character."
b. Jus Cogens
For a norm to be considered as such, it must be
accepted and ecognised by the international
community of states as a whole.
c. Concept of AeguoEt Bono
Ex aequo et bono (Latin for "according to the right
and good" or "from equity and conscience") is a
legal term of art. In the context of arbitration, it
refers to the power of the arbitrators to dispense
with consideration of the law and consider solely
what they consider to be fair and equitable in the
case at hand.
Article 38(2) of the Statute of the International
Court of Justice provides that the court may
decide cases ex aequo et bono, but only where
the parties agree thereto. Through 2007, ICJ has
never decided such a case. It reads as Article
38(2) This provision shall not prejudice the power
of the Court to decide a case ex aequo et bono, if
the parties agree thereto.[1]
Article 33 of the United Nations Commission on
International Trade Law's Arbitration Rules (1976)
[2] provides that the arbitrators shall consider
only the applicable law, unless the arbitral
agreement allows the arbitrators to consider ex
aequo et bono, or amiable compositeur, instead.
[3] This rule is also expressed in many national
and subnational arbitration laws, for example s.
22 of the Commercial Arbitration Act 1984 (NSW).
On the other hand, the constituent treaty of the
Eritrea-Ethiopia Claims Commission explicitly
forbids this body to interpret ex aequo et bono.
 4) Restricted automatic doctrine
2. International and National Law
PIL distinguished from municipal law 4. Subjects
a. States
Sanctions PIL b. International Organizations
Mun. Law c. Individuals
a) Reprisal a) Civil execution
b) War 5. Diplomatic and Consular Law
b) Criminal Punishment
Responsibility Collective 6. Treaties
Individual
Centralized/decentralized Relatively decentralized 7. Nationality and Statelessness
Relatively a centralized coercive order
Enforcement comparatively harder 8. Treatment of Aliens
comparatively easier a. Extradition
(1) Fundamental Principles
3. Sources
Direct Sources: Definition
1) International conventions
2) International customers Extradition is the process by which one State (the
Indirect/secondary sources requested State) surrenders an individual found
1) Decisions of Intl. Tribunals on its territory to another State (the requesting
2) Writings and teachings of the most State) where he is wanted either to stand trial for
qualified publicists an offence he is alleged to have committed, or to
serve a penal sentence already pronounced
Hans Kelsen: PIL has its source principally in the against him.
decision of an internation tribunal, said decision is
a valid norm of IL only if the tribunal has been A distinction should be drawn between extradition
properly constituted by an international treaty; and:
the treaty itself is valid if the maxim of pacta sun
servanda is adhered to, and the reason for such deportation, which takes place for reasons (often
maxim is because of Internationa Custom. In administrative) which are specific to the deporting
short, the ultimate SOURCE is the international State;
custom which gives rise to pacta sunt servanda, refusing a person entry into a country at the
which in turn justifies the existence of border;
international conventions; treaties make it repatriation, which does not come within the
possible the formation of internation courts, scope of a penal procedure;
precise prupose being is to lay down decisions transfer, which is a notion deriving from the
upon the matter. Decisions rendered cosntitue the Statute of the International Tribunal set up for the
sources of international law. prosecution of persons responsible for serious
violations of international humanitarian law
The generally accepted principles of international committed in the territory of the former
law: Yugoslavia since 1991: this involves transferring
1) acquisition of territory by prescription to the Tribunal a person who was initially being
2) doctrine of res judicata tried by a national court, in application of the
3) rule that an accuser state cannot, at the principle of the primacy of the Tribunal over
same time, be the judge national courts for the prosecution of crimes for
4) the principle of “prior exhaustion of which it is competent.
national remedies before resort to be had surrender as understood by the European Union
in international tribunals within the framework of the European arrest
5) the rule that all persons guilty of waging warrant, which is intended to abolish formal
aggressive wars should be held extradition procedures by accepting the principle
accountable of mutual recognition of judicial decisions.
Extradition presupposes that the individual is to
Theories regarding the incorporation of IL into the be prosecuted: if he is merely wanted to give
municipal law of the RP” evidence as a witness, the matter must be settled
1) Transformation doctrine by a letter rogatory and not by extradition.
2) Adoption doctrine
3) Harmonization doctrine 2. Sources of extradition law
In addition to international courtesy based on the
principle of reciprocity, there are two legal
sources: international law and national legislation.
The content of national extradition laws varies
considerably: they may for example lay down the
procedural rules, or define the conditions to be
incorporated in future extradition treaties.
There are various types of international legal text.
They may be bilateral extradition treaties (it is
worth noting that in 1990, the United Nations
drew up a model extradition treaty providing a
framework to assist those Member States wishing
to negotiate and conclude bilateral extradition
agreements); or multilateral extradition
conventions, such as the European Convention on
Extradition, the Commonwealth Scheme for the
Rendition of Fugitive Offenders, the Arab League
Extradition Convention, the Interamerican
Extradition Convention and the Economic
Community of West African States Extradition
Convention, or again, international conventions
which, without being extradition conventions as
such, incorporate provisions relating to extradition
law.
3. Principles of extradition law
Since there are numerous provisions which deal
with extradition, each case has to be considered
individually and according to the applicable
provisions. However, there are six basic principles
which are common to most extradition laws.
3.1 Influence of nationality on extradition
Many States apply the principle of not extraditing
their own nationals. In such cases, a State may
undertake to place its nationals on trial under the
conditions laid down in its own laws, in application
of the principle 'Aut tradere, aut judicare' (either
extradite or judge).
3.2 Nature of the extraditable offence
It is an accepted principle in international
extradition law that political offences may not give
rise to extradition. Since no precise definition of a
political offence exists in international law, it is up
to the requested country to determine whether a
given offence is political. In the case of more
complex offences (offences which are ordinary law
crimes by nature but inspired by political
motives), the current tendency is to restrict the
definition of a political offence and to allow
extradition (see, for example, the European
Convention on the suppression of terrorism, which
includes a list of offences that, for extradition
purposes, are not to be considered as political
offences). In addition, whereas earlier treaties
contained lists of extraditable offences, more
recent treaties define extraditable offences in
general terms, according to their gravity and to
the penalty which may be incurred (for example,
minimum duration of a prison sentence).
3.3 'Double criminality'
According to this principle, extraditable offences
are only those which are punishable offences in
the requesting State, and would have been
punishable in the requested State if committed
there. By extension of this principle, extradition
may be refused if the time limit for prosecution in
the requested State has expired. This principle is
gradually losing ground.
3.4 'Non bis in idem'
In application of this principle, extradition must be
refused if the individual whose extradition is
requested has already been tried for the same
offence. However, if the individual has been
pardoned, he may - under the terms of some
recent extradition treaties - be tried again.
3.5 Specificity
According to this principle, the person whose
extradition has been requested may only be
prosecuted, tried or detained for those offences
which provided grounds for extradition or those
committed subsequent to extradition. If an
individual has been extradited in application of a
judgment, only the penalty imposed by the
decision for
which extradition was granted may be enforced.
The principle of speciality means that an individual
may only be tried for the offences cited in the
extradition request, on the basis of the definition
of the offences applicable at that time. If the
requesting State discovers, subsequent to
extradition, that offences had been committed
prior to that date and those offences should give
rise to prosecution, it may ask the requested
State for authorization to prosecute the extradited
person for the new offences (this constitutes a
request for extension of extradition).
3.6 Capital punishment
If the requested State does not apply the death
penalty to its own nationals who are to stand trial,
or if it does not carry out the death penalty even
though it is one of the penalties that may be
applicable, the requested State may refuse
extradition if the person whose extradition is
requested is likely to be sentenced to death in the
requesting State. However, extradition may be
granted if the requesting State provides sufficient
assurance that the death penalty will not be
carried out.
4. Extradition procedure
The extradition procedure in the requested State
may be one of three types:
Purely administrative;
Purely judicial;
A combination of both judicial and administrative:
this is the most frequent type. In this procedure,
a refusal on the part of the judicial authorities to
grant extradition is binding on the administrative
authorities; on the other hand, if the judicial
authorities give their consent to extradition, the
administrative authorities may - in addition to
purely legal considerations - examine the question
of reciprocity or whether extradition is desirable.
Depending on extradition laws, there are two
kinds of examination:
an examination of the documents submitted with
the extradition request, the purpose of which is to
verify whether the formal conditions for
extradition have been met (this is the system in
'Continental-law' countries);
an examination of the substance of the case, and
of the evidence to determine whether there is
'reasonable and probable cause' (this is the
system in common-law countries).
(2) Procedure
(3) Distinguished from Deportation
1) The following are the differences between
extradition and deportation:
EXTRADITION is effected for the benefit of the
state to which the person being extradited will be
surrendered because he is a fugitive criminal in
that state, while DEPORTATION is effected for the
protection of the State expelling an alien because
his presence is not conducive to the public good.
EXTRADITION is effected on the basis of an
extradition treaty or upon the request of another
state, while DEPORTATION is the unilateral act of
the state expelling an alien.
In EXTRADITION, the alien will be surrendered to
the state asking for his extradition, while in
DEPORTATION the undesirable alien may be sent
to any state willing to accept him.
9. International Human Rights Law
a. Universal Declaration of Human Rights
b. International Covenant on Civil and Political
Rights (ICCPR)
c. International Covenant on Economic, Social and
Cultural Rights (ICESCR)
10. International Humanitarian Law (IHL) and
Neutrality
a. Categories of Armed Conflicts
(1) International Armed Conflicts
(2) Internal or Non-International Armed Conflict
(3) War of National Liberation
b. Core International Obligations of States in IHL
International humanitarian law and international
human rights law (hereafter referred to as human
rights) are complementary. Both strive to protect
the lives, health and dignity of individuals, albeit
from a different angle.
Humanitarian law applies in situations of armed
conflict (see Q7), whereas human rights, or at
least some of them, protect the individual at all
times, in war and peace alike. However, some
human rights treaties permit governments to
derogate from certain rights in situations of public
emergency. No derogations are permitted under
IHL because it was
conceived for emergency situations, namely
armed conflict.
Humanitarian law aims to protect people who do
not or are no longer taking part in hostilities. The
rules embodied in IHL impose duties on all parties
to a conflict. Human rights, being tailored
primarily for peacetime, apply to everyone. Their
principal goal is to protect individuals from
arbitrary behaviour by their own governments.
Human rights law does not deal with the conduct
of hostilities.
The duty to implement IHL and human rights lies
first and foremost with States. Humanitarian law
obliges States to take practical and legal
measures, such as enacting penal legislation and
disseminating IHL. Similarly, States are bound by
human rights law to accord national law with
international obligations. IHL provides for several
specific mechanisms that help its implementation.
Notably, States are required to ensure respect
also by other States. Provision is also made for an
enquiry procedure, a Protecting Power
mechanism, and the International Fact-Finding
Commission. In addition, the ICRC is given a key
role in ensuring respect for the humanitarian
rules.
Human rights implementing mechanisms are
complex and, contrary to IHL, include regional
systems. Supervisory bodies, such as the UN
Commission on Human Rights, are either based
on the UN Charter or provided for in specific
treaties (for example the Human Rights
Committee, which is rooted in the International
Covenant on Civil and Political Rights of 1966).
The Human Rights Commission and its
Subcommissions have developed a mechanism of
special rapporteurs and working groups, whose
task is to monitor and report on human rights
situations either by country or by topic. Six of the
main human rights treaties also provide for the
establishment of committees (e.g. the Human
Rights Committee) of independent experts
charged with monitoring their implementation.
Certain regional treaties (European and American)
also establish human rights courts. The Office of
the UN High Commissioner for Human Rights
(UNHCHR) plays a key part in the overall
protection and promotion of human rights. Its role
is to enhance the effectiveness of the UN human
rights machinery and to build up national, regional
and international capacity to promote and protect
human rights and to disseminate human rights
texts and information.
Human rights instruments
The many texts now in force include:
a) Universal instruments
the Universal Declaration of Human Rights,
adopted by the UN General Assembly in 1948
the Convention on the Prevention and Punishment
of the Crime of Genocide of 1948
the International Covenant on Civil and Political
Rights of 19 66 o the International Covenant on
Social and Economic Rights of 1966
the Convention on the Elimination of All Forms of
Discrimination against Women of 1981
the Convention against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment
of 1984 o the Convention on the Rights of the
Child of 1989
b) Regional instruments the European Convention
on Human Rights of 1950 the American
Convention on Human Rights of 1969 the African
Charter of Human and Peoples Rights of 1981
The hard core
The international human rights instruments
contain clauses that authorize States confronted
with a serious public threat to suspend the rights
enshrined in them. An exception is made for
certain fundamental rights laid down in each
treaty, which must be respected in all
circumstances and may never be waived
regardless of the treaty. In particular, these
include the right to life, the prohibition of torture
and inhuman punishment or treatment, slavery
and servitude, and the principle of legality and
non-retroactivity of the law. These fundamental
rights that States are bound to respect in all
circumstances even in the event of a conflict or
disturbances are known as the hard core of
human rights.
Points of convergence
Since humanitarian law applies precisely to the
exceptional situations which constitute armed
conflicts, the content of human rights law that
States must respect in all circumstances (i.e. the
hard core) tends to converge with the
fundamental and legal guarantees provided by
humanitarian law, e.g. the prohibition of torture
and summary executions (see p. 21; Art. 75,
Protocol I; and Art. 6, Protocol II).
c. Principles of IHL
International humanitarian law (IHL) is part of
international law. Therefore, basic knowledge of
international law is necessary for the
understanding of IHL.
International law is a combination of rules and
customs governing the relations between states in
different fields,
such as the law of the sea, space law, trade law,
territorial boundaries of states, and diplomatic
relations.
The sources of international law are treaty law
and international customary law.
Treaty law is composed of treaties, which are
agreements that states willingly sign and ratify
and are obliged to
follow. Agreements between states govern the
mutual relations between them and may be called
conventions, statutes
or protocols. Agreements are only legally binding
on states that signed and also ratified them. The
basis of Treaty
law is the rule of law ‘pacta sunt servanda’, which
means, that agreements must be honoured, and
adhered to.
Unlike treaty law, which must be followed only by
states that are parties to the agreement in
question, international customary law is binding
upon all states, no matter whether they have
ratified a treaty, which contain the rule in
question, or not.
When states act consistently in their international
and internal relations during a long period of time,
these
actions/practices become accepted by the
international community as applicable law.
International customary law is compromised of all
the written or unwritten rules that form part of
the general
international idea of justice.
There are two criteria for identifying a rule as part
of international customary law.
Opinio Juris - Opino Juris is the expressed opinion
of states that their actions have a legal basis. It is
thus
states themselves (subjective criteria) that
recognise certain legal practices or rules as being
legally binding.
Usus - Customary law is confirmed through the
actions of states (objective criteria) in accordance
with what is
expected of them by international jurisprudence.
States' actions are manifested through their
official statements
and actual actions.
International customary law is based on prolonged
and consistent actions by most states in the
world. When states
act constintently in their international and internal
relations during a long period of time these
actions/practices
become accepted by the international community
as applicable law.
Examples of international customary law are the
right to life, the prohibition of torture, and that
civilians should not be the object of an attack.
A number of rules of international law are part of
the Latin concept of "jus cogens", also referred to
as
peremptory norms, and meaning "the compelling
law". Jus cogens status is the highest status that
can be attained
by any principles or norms in international law.
Jus cogens status is given only to the most
fundamental rules of international law, which are
recognized and
accepted by the international community as rules
from which no exceptions can be made (article 53
of the Vienna
Convention on the Law of Treaties).
All states are obliged to follow jus cogens rules at
all times. Crimes which have attained the status
of jus cogens
are particularly outrageous crimes, which are seen
as affecting the international community as a
whole, such as
genocide, slavery and torture.
To the Vienna Convention on the Law of Treaties
A number of particularly heinous crimes -
normally those that are categorised as violations
of jus cogens rules -
give rise to so called "erga omnes" obligations.
Erga omnes is another Latin concept and means
"towards all".
Just as the jus cogens crimes, the crimes that
give rise to erga omnes obligations are seen as
affecting the
international community as a whole, and
consequently all states in the world have an
obligation to take action
against the perpetrators of such crimes.
For example, states should search for and
prosecute the perpetrators. This obligation follows
from what is called
the principle of universal jurisdiction - all national
courts in the world can put perpetrators of erga
omnes
crimes to trial.
(1) Treatment of Civilians
Persons hors de combat and those not taking part
in hostilities shall be protected and treated
humanely.
It is forbidden to kill or injure an enemy who
surrenders or who is hors de combat.
The wounded and sick shall be cared for and
protected by the party to the conflict which has
them in its power. The emblem of the "Red
Cross," or of the "Red Crescent," shall be required
to be respected as the sign of protection.
Captured combatants and civilians must be
protected against acts of violence and reprisals.
They shall have the right to correspond with their
families and to receive relief.
No one shall be subjected to torture, corporal
punishment or cruel or degrading treatment.
Parties to a conflict and members of their armed
forces do not have an unlimited choice of methods In the status-of-forces agreement concluded
and means of warfare. between the United Nations and a State in whose
Parties to a conflict shall at all times distinguish territory a United Nations force is deployed, the
between the civilian population and combatants. United Nations undertakes to ensure that the
Attacks shall be directed solely against military force shall conduct its operations with full respect
objectives. for the principles and rules of the general
conventions applicable to the conduct of military
(2) Prisoners of War personnel. The United Nations also undertakes to
UN Secretary-General's Bulletin on Applicability of ensure that members of the military personnel of
IHL to UN Forces the force are fully acquainted with the principles
6 August 1999 and rules of those international instruments. The
obligation to respect the said principles and rules
Secretary-General's Bulletin is applicable to United Nations forces even in the
absence of a status-of-forces agreement.
Observance by United Nations forces of Section 4
international humanitarian law Violations of international humanitarian law

The Secretary-General, for the purpose of setting In case of violations of international humanitarian
out fundamental principles and rules of law, members of the military personnel of a
international humanitarian law applicable to United Nations force are subject to prosecution in
United Nations forces conducting operations under their national courts.
United Nations command and control, Section 5
promulgates the following: Protection of the civilian population
5.1 The United Nations force shall make a clear
Section 1 distinction at all times between civilians and
Field of application combatants and between civilian objects and
military objectives. Military operations shall be
1.1 The fundamental principles and rules of directed only against combatants and military
international humanitarian law set out in the objectives. Attacks on civilians or civilian objects
present bulletin are applicable to United Nations are prohibited.
forces when in situations of armed conflict they 5.2 Civilians shall enjoy the protection afforded by
are actively engaged therein as combatants, to this section, unless and for such time as they take
the extent and for the duration of their a direct part in hostilities.
engagement. They are accordingly applicable in
enforcement actions, or in peacekeeping 5.3 The United Nations force shall take all feasible
operations when the use of force is permitted in precautions to avoid, and in any event to
self-defence. minimize, incidental loss of civilian life, injury to
1.2 The promulgation of this bulletin does not civilians or damage to civilian property.
affect the protected status of members of
peacekeeping operations under the 1994 5.4 In its area of operation, the United Nations
Convention on the Safety of United Nations and force shall avoid, to the extent feasible, locating
Associated Personnel or their status as non- military objectives within or near densely
combatants, as long as they are entitled to the populated areas, and take all necessary
protection given to civilians under the precautions to protect the civilian population,
international law of armed conflict. individual civilians and civilian objects against the
dangers resulting from military operations.
Section 2 Military installations and equipment of
Application of national law peacekeeping operations, as such, shall not be
considered military objectives.
The present provisions do not constitute an
exhaustive list of principles and rules of 5.5 The United Nations force is prohibited from
international humanitarian law binding upon launching operations of a nature likely to strike
military personnel, and do not prejudice the military objectives and civilians in an
application thereof, nor do they replace the indiscriminate manner, as well as operations that
national laws by which military personnel remain may be expected to cause incidental loss of life
bound throughout the operation. among the civilian population or damage to
Section 3 civilian objects that would be excessive in relation
Status-of-forces agreement
to the concrete and direct military advantage
anticipated.
5.6 The United Nations force shall not engage in
reprisals against civilians or civilian objects.
Section 6
Means and methods of combat
6.1 The right of the United Nations force to choose
methods and means of combat is not unlimited.
6.2 The United Nations force shall respect the
rules prohibiting or restricting the use of certain
weapons and methods of combat under the
relevant instruments of international humanitarian
law. These include, in particular, the prohibition
on the use of asphyxiating, poisonous or other
gases and biological methods of warfare; bullets
which explode, expand or flatten easily in the
human body; and certain explosive projectiles.
The use of certain conventional weapons, such as
non-detectable fragments, anti-personnel mines,
booby traps and incendiary weapons, is
prohibited.
6.3 The United Nations force is prohibited from
employing methods of warfare which may cause
superfluous injury or unnecessary suffering, or
which are intended, or may be expected to cause,
widespread, long-term and severe damage to the
natural environment.
6.4 The United Nations force is prohibited from
using weapons or methods of combat of a nature
to cause unnecessary suffering.
6.5 It is forbidden to order that there shall be no
survivors.
6.6 The United Nations force is prohibited from
attacking monuments of art, architecture or
history, archaeological sites, works of art, places
of worship and museums and libraries which
constitute the cultural or spiritual heritage of
peoples. In its area of operation, the United
Nations force shall not use such cultural property
or their immediate surroundings for purposes
which might expose them to destruction or
damage. Theft, pillage, misappropriation and any
act of vandalism directed against cultural property
is strictly prohibited.
6.7 The United Nations force is prohibited from
attacking, destroying, removing or rendering
useless objects indispensable to the survival of
the civilian population, such as foodstuff, crops,
livestock and drinking-water installations and
supplies.
6.8 The United Nations force shall not make
installations containing dangerous forces, namely
dams, dikes and nuclear electrical generating
stations, the object of military operations if such
operations may cause the release of dangerous
forces and consequent severe losses among the
civilian population.
6.9 The United Nations force shall not engage in
reprisals against objects and installations
protected under this section.
Section 7
Treatment of civilians and persons hors de combat
7.1 Persons not, or no longer, taking part in
military operations, including civilians, members
of armed forces who have laid down their
weapons and persons placed hors de combat by
reason of sickness, wounds or detention, shall, in
all circumstances, be treated humanely and
without any adverse distinction based on race,
sex, religious convictions or any other ground.
They shall be accorded full respect for their
person, honour and religious and other
convictions.
7.2 The following acts against any of the persons
mentioned in section 7.1 are prohibited at any
time and in any place: violence to life or physical
integrity; murder as well as cruel treatment such
as torture, mutilation or any form of corporal
punishment; collective punishment; reprisals; the
taking of hostages; rape; enforced prostitution;
any form of sexual assault and humiliation and
degrading treatment; enslavement; and pillage.
7.3 Women shall be especially protected against
any attack, in particular against rape, enforced
prostitution or any other form of indecent assault.
7.4 Children shall be the object of special respect
and shall be protected against any form of
indecent assault.
Section 8
Treatment of detained persons
The United Nations force shall treat with humanity
and respect for their dignity detained members of
the armed forces and other persons who no longer
take part in military operations by reason of
detention. Without prejudice to their legal status,
they shall be treated in accordance with the
relevant provisions of the Third Geneva
Convention of 1949, as may be applicable to them
mutatis mutandis. In particular:
(a) Their capture and detention shall be notified
without delay to the party on which they depend
and to the Central Tracing Agency of the
International Committee of the Red Cross (ICRC),
in particular in order to inform their families;
(b) They shall be held in secure and safe premises
which provide all possible safeguards of hygiene
and health, and shall not be detained in areas
exposed to the dangers of the combat zone;
(c) They shall be entitled to receive food and
clothing, hygiene and medical attention;
(d) They shall under no circumstances be
subjected to any form of torture or ill-treatment;
(e) Women whose liberty has been restricted shall
be held in quarters separated from men's
quarters, and shall be under the immediate
supervision of women;
(f) In cases where children who have not attained
the age of sixteen years take a direct part in
hostilities and are arrested, detained or interned
by the United Nations force, they shall continue to
benefit from special protection. In particular, they
shall be held in quarters separate from the
quarters of adults, except when accommodated
with their families;
(g) ICRC's right to visit prisoners and detained
persons shall be respected and guaranteed.
Section 9
Protection of the wounded, the sick, and medical
and relief personnel
9.1 Members of the armed forces and other
persons in the power of the United Nations force
who are wounded or sick shall be respected and
protected in all circumstances. They shall be
treated humanely and receive the medical care
and attention required by their condition, without
adverse distinction. Only urgent medical reasons
will authorize priority in the order of treatment to
be administered.
9.2 Whenever circumstances permit, a suspension
of fire shall be arranged, or other local
arrangements made, to permit the search for and
identification of the wounded, the sick and the
dead left on the battlefield and allow for their
collection, removal, exchange and transport.
9.3 The United Nations force shall not attack
medical establishments or mobile medical units.
These shall at all times be respected and
protected, unless they are used, outside their
humanitarian functions, to attack or otherwise
commit harmful acts against the United Nations
force.
9.4 The United Nations force shall in all
circumstances respect and protect medical
personnel exclusively engaged in the search for,
transport or treatment of the wounded or sick, as
well as religious personnel.
9.5 The United Nations force shall respect and
protect transports of wounded and sick or medical
equipment in the same way as mobile medical
units.
9.6 The United Nations force shall not engage in
reprisals against the wounded, the sick or the
personnel, establishments and equipment
protected under this section.
9.7 The United Nations force shall in all
circumstances respect the Red Cross and Red
Crescent emblems. These emblems may not be
employed except to indicate or to protect medical
units and medical establishments, personnel and
material. Any misuse of the Red Cross or Red
Crescent emblems is prohibited.
9.8 The United Nations force shall respect the
right of the families to know about the fate of
their sick, wounded and deceased relatives. To
this end, the force shall facilitate the work of the
ICRC Central Tracing Agency.
9.9 The United Nations force shall facilitate the
work of relief operations which are humanitarian
and impartial in character and conducted without
any adverse distinction, and shall respect
personnel, vehicles and premises involved in such
operations.
d. Law on Neutrality
Types Of Neutrality
Lauterpacht lists various types of neutrality:
Perpetual neutrality: The status of states
permanently neutralized by special treaty.
General & Partial neutrality: General
neutrality covers the territory of an entire State,
but circumstances may exist in which only a part
of its territory is neutral, for example, by treaty.
Voluntary & Conventional neutrality: In
some instances a state is bound by treaty to
remain neutral; in all others the status is purely
voluntary.
Armed neutrality: The status of a state
which takes military measures to protect its
neutral status.
Benevolent neutrality: An obsolete term
for less than neutral behavior.
 Absolute vs. Qualified neutrality: Qualified
neutrality implied the giving of some kind of aid to
one belligerent.
11. Law of the Sea
a. Baselines
b. Archipelagic States
(1) Straight Archipelagic Baselines
(2) Archipelagic Waters
(3) Archipelagic Sea Lanes Passage
Internal waters Covers all water and waterways
on the landward side of the baseline. The coastal
state is free to set laws, regulate use, and use any
resource. Foreign vessels have no right of passage
within internal waters.
Territorial waters
Out to 12 nautical miles from the baseline, the
coastal state is free to set laws, regulate use, and
use any resource. Vessels were given the right of
innocent passage through any territorial waters,
with strategic straits allowing the passage of
military craft as transit passage, in that naval
vessels are allowed to maintain postures that
would be illegal in territorial waters. "Innocent
passage" is defined by the convention as passing
through waters in an expeditious and continuous
manner, which is not “prejudicial to the peace,
good order or the security” of the coastal state.
Fishing, polluting, weapons practice, and spying
are not “innocent", and submarines and other
underwater vehicles are required to navigate on
the surface and to show their flag. Nations can
also temporarily suspend innocent passage in
specific areas of their territorial seas, if doing so is
essential for the protection of its security.
Archipelagic waters
The convention set the definition of Archipelagic
States in Part IV, which also defines how the state
can draw its territorial borders. A baseline is
drawn between the outermost points of the
outermost islands, subject to these points being
sufficiently close to one another. All waters inside
this baseline are designated Archipelagic Waters.
The state has full sovereignty over these waters
(like internal waters), but foreign vessels have
right of innocent passage through archipelagic
waters (like territorial waters).
Contiguous zone
Beyond the 12 nautical mile limit there was a
further 12 nautical miles or 24 nautical miles from
the territorial sea baselines limit, the contiguous
zone, in which a state could continue to enforce
laws in four specific areas: pollution, taxation,
customs, and immigration.
Exclusive economic zones (EEZs) Extends from
the edge of the territorial sea out to 200 nautical
miles from the baseline. Within this area, the
coastal nation has sole exploitation rights over all
natural resources. In casual use, the term may
include the territorial sea and even the continental
shelf. The EEZs were introduced to halt the
increasingly heated clashes over fishing rights,
although oil was also becoming important. The
success of an offshore oil platform in the Gulf of
Mexico in 1947 was soon repeated elsewhere in
the world, and by 1970 it was technically feasible
to operate in waters 4000 metres deep. Foreign
nations have the freedom of navigation and
overflight, subject to the regulation of the coastal
states. Foreign states may also lay submarine
pipes and cables.
Continental shelf
The continental shelf is defined as the natural
prolongation of the land territory to the
continental margin’s outer edge, or 200 nautical
miles from the coastal state’s baseline, whichever
is greater. A state’s continental shelf may exceed
200 nautical miles until the natural prolongation
ends. However, it may never exceed 350 nautical
miles from the baseline; or it may never exceed
100 nautical miles beyond the 2,500 meter
isobath (the line connecting the depth of 2,500
meters). Coastal states have the right to harvest
mineral and non-living material in the subsoil of
its continental shelf, to the exclusion of others.
Coastal states also have exclusive control over
living resources "attached" to the continental
shelf, but not to creatures living in the water
column beyond the exclusive economic zone.
Aside from its provisions defining ocean
boundaries, the convention establishes general
obligations for safeguarding the marine
environment and protecting freedom of scientific
research on the high seas, and also creates an
innovative legal regime for controlling mineral
resource exploitation in deep seabed areas
beyond national jurisdiction, through an
International Seabed Authority and the Common
heritage of mankind principle.[4]
Landlocked states are given a right of access to
and from the sea, without taxation of traffic
through transit states.
c. Internal Waters
d. Territorial Sea
e. Exclusive Economic Zone
f. Continental Shelf
The United Nations Convention on the Law of the
Sea (UNCLOS), also called the Law of the Sea
Convention or the Law of the Sea treaty, is the
international agreement that resulted from the
third United Nations Conference on the Law of the
Sea (UNCLOS III), which took place from 1973
through 1982. The Law of the Sea Convention
defines the rights and responsibilities of nations in
their use of the world's oceans, establishing
guidelines for businesses, the environment, and
the management of marine natural resources. The
Convention, concluded in 1982, replaced four
1958 treaties. UNCLOS came into force in 1994, a
year after Guyana became the 60th state to sign
the treaty.[1] To date, 161 countries and the
European Community have joined in the
Convention. However, it is uncertain as to what
extent the Convention codifies customary
international law.
While the Secretary General of the United Nations
receives instruments of ratification and accession
and the UN provides support for meetings of
states party to the Convention, the UN has no
direct operational role in the implementation of
the Convention. There is, however, a role played
by organizations such as the International
Maritime Organization, the International Whaling
Commission, and the International Seabed
Authority (the latter being established by the UN
Convention).
(1) Extended Continental Shelf
g. Tribunal of the Law of the Sea
12. International Environment Law
Environmental Laws in General
Environmental laws are the standards that
governments establish to manage
naturalresources and environmental quality. The
broadcategories of “natural resources” and
“environmental quality” include such areas as air
and water pollution, forests and wildlife,
hazardous waste, agricultural practices, wetlands,
and landuse planning. In the United States, some
of the more widely known environmental laws are
the Clean Air Act, the Clean Water Act, the
National Environmental Policy Act, and the
Endangered Species Act. The body of
environmental law includes not only the text of
these laws but also the regulations that
implement and the judicial decisions that interpret
this legislation. In general, the standards set forth
in environmental laws can apply to either private
parties or the government. The Clean Air and
Clean Water Acts, for example, are frequently
used to regulate the polluting activities of private
enterprises. These laws mandate certain pollution-
reducing technology or limit the levels of pollution
for power plants and factories. The National
Environmental Policy Act (NEPA) applies only to
the actions of the U.S. government. NEPA
requires that the federal government undertake a
comprehensive environmental impact assessment
before it can proceed with projects that are likely
to harm the environment. Distinguishing National
Law from International Law
To understand the nature of international
environmental law, one must first understand the
difference between national and international law.
National law is law that is adopted by the
government of an individual country. In the
United States, the most common examples of
national
law are federal and state legislation and judicial
decisions. Agency regulations and executive
orders would also fall within this category.
Although these national laws are adopted by an
individual country, they may have international
impacts. A foreign manufacturer whose defective
product injures a person living in the United
States may be held liable for resulting damages
under U.S. law. The U.S. Corrupt Practices Act
prevents a U.S. corporate executive from bribing
a foreign government official. While these laws
affect international activities and non-national
parties, they are generally not considered
international law. Rather, they are considered
extraterritorial applications of national law.
International law, on the other hand, concerns
agreements among different nations, or between
citizens or corporations of different nations.
Agreements or treaties among different nations
are
generally referred to as public international law.
Contracts between private parties (corporations or
citizens) residing in different nations are generally
referred to as private international law. Because
the field of international environmental law
focuses on
the relations and agreements among nations, it is
part of public international law.
Distinguishing between Hard and Soft
International Law
A distinction is often made between hard and soft
international law. Hard international law generally
refers to agreements or principles that are directly
enforceable by a national or international body.
Soft international law refers to agreements or
principles that are meant to influence individual
nations to respect certain norms or incorporate
them into national law Soft international law by
itself is not enforceable. It serves to articulate
standards widely shared, or aspired to, by
nations. Similar parallels can be found at the
national level. Often an official, a legislative body,
or an agency will announce a new public policy or
priority. In this announcement, or proclamation,
there are often pledges to incorporate this new
policy or priority into specific legal provisions.
While the announcement itself is not enforceable
in court, it nonetheless can have a powerful
influence on the development and implementation
of specific legal provisions. Private international
law generally concerns business transactions
between citizens or corporations of different
countries. Because most of the rules governing
these private transactions are enforceable in the
courts of the concerned countries, these rules are
usually deemed hard international law. Most of
international environmental law, however,
concerns general principles agreed upon among
nations. Although these principles sometimes
oblige countries to adopt implementing legislation,
they are not usually enforceable on their own in
court.
The soft status of international environmental law,
and most international law, is a result of concerns
over sovereignty. Nations are generally reluctant
to surrender control over their territory, peoples,
and affairs to external international authorities.
Even when nations have joined in international
agreements, many of them have added
reservations to preserve their right to decline to
be bound by particular parts of the agreement.
The exercise of this power weakens the total
effectiveness of many international
agreements.
Means of Implementing and Enforcing
International Environmental Law
There are forums where international
environmental disputes can be adjudicated, such
as national courts, the International Court of
Justice, and international arbitration panels.
These forums, however, generally require that the
disputing parties voluntarily submit to the
jurisdiction of the court or panel. Additionally,
even when these forums obtain jurisdiction over
an international environmental dispute, they must
rely on the cooperation of national governments
to enforce rulings. For economic and political
reasons, this cooperation is often withheld. A
small number of environmental agreements have
established international institutions that can
directly impose trade sanctions (such as the
Montreal Protocol, discussed on p. 20) or have
authorized member states to impose trade
sanctions against violating parties (such as the
International Convention for the Regulation of
Whaling, discussed on p. 29). For instance, in
response to Japan’s violation of the International
Whaling Commission’s whaling moratorium, the
United States threatened to restrict Japanese
fishing vessel activity in U.S. territorial waters.
Japan elected to accede to the whaling
moratorium rather than suffer any such
restrictions.
The type of sanctions envisioned under the
Montreal Protocol and International Whaling
Commission are procedurally very difficult to
impose. In general, there is no international body
authorized to directly enforce international
environmental law. The task of direct
enforcement is left to the member nations, whose
governments propose and adopt implementing
policies.
Sometimes the implementing national legislation
is identical to the international agreement. For
example, Canada implemented the Migratory
Birds Treaty (with the United States) by adopting
the Migratory Birds Treaty Act. Because the
language of this act is identical to language in the
treaty, the law is basically a legislative codification
of the international agreement.
Other times, however, the international
environmental agreement is of a general nature
and national governments must draft and
implement more specific laws. For instance, in
1989 the International Convention on
Transboundary Movement of Hazardous Waste
was signed in Basel, Switzerland. This convention
forbids the export of hazardous wastes to
countries that lack “adequate means to dispose of
them.” Under the terms of the convention,
signatory nations are called upon to draft their
own more specific national laws to implement this
pledge.
Although international institutions are generally
not responsible for directly implementing and
enforcing international environmental law, they
often play important monitoring, informational,
and diplomatic roles. For example agendas
adopted at the 1992 Convention on Environment
and Development at Rio de Janeiro created a new
international body, the Commission on
Sustainable Development (CSD).
The CSD meets yearly at the United Nations in
New York to review and advance the
implementation of Agenda 21—an enormous and
complex mandate. Most global agreements, such
as the Biodiversity Convention and the Framework
Convention on Climate Change, are implemented
by an annual or biennial Conference of Parties
(COP). These COPs lack the power to bring
enforcement actions against either governments
or private parties. They help monitor national
compliance by requiring member nations to
submit annual reports. Through meetings and
publications, COPs also provide a forum to discuss
and debate issues associated with the
implementation of the agreement.
There are other institutions similar in function to
the CSDs and the COPs. The North American
Commission on Environmental Cooperation
(NACEC), based in Montreal, Canada, monitors
compliance with the North American Agreement
on Environmental Cooperation, one of the side
agreements under the North American Free Trade
Agreement (NAFTA). The European
Environmental Agency, based in Copenhagen,
Denmark, monitors the compliance of individual
European countries with environmental directives
adopted by the European Union. Although the
CSD, COPs, NACEC, and the European
Environmental Agency indicate that the
international community is trying to improve
compliance with environmental agreements, there
is still a lack of effective implementation and
enforcement. A 1992 study by the U. S. General
Accounting Office concluded that international
environmental agreements lack adequate
procedures to monitor and ensure compliance.
Countries have become skilled in negotiating
international environmental agreements, but they
are much less skilled at making the agreement
operate effectively. In the past two decades,
states have also used economic incentives and
trade bans to encourage compliance with
international environmental agreements. For
example, the Montreal Protocol, the Framework
Convention on Climate Change, and the
Biodiversity Convention provide economic
incentives in the form of technical assistance,
technology transfers, and money to build the
administrative capacity of national environmental
agencies. These incentives have been of
particular value in promoting the involvement and
compliance of developing countries—part of the
Rio bargain between northern (developed) and
southern (developing) countries. The Global
Environmental Facility (GEF), a new international
funding institution, also provides money for
training, equipment, and enforcement related to
environmental protection measures. Some recent
international environmental agreements, such as
the Biodiversity Convention, have designated the
GEF as their exclusive funding mechanism.
Jurisdiction for Disputes: Courts, Parties, and
Enforcement Roughly speaking, jurisdiction may
be defined as a court’s legal ability to hear a
complaint. If the subject matter of the case is not
within the scope of a court’s jurisdiction, or if one
of the parties, either the one bringing the case
(plaintiff) or the one against whom it is brought
(defendant) is not within a court’s jurisdiction, the
court will not hear the dispute. This is particularly
relevant to international environmental law for a
number of reasons. First and foremost, if a treaty
or convention does not specify an international
forum that has subject-matter jurisdiction, often
the only place to bring a suit with respect to that
treaty is in the member state’s domestic court
system. This then presents at least two additional
hurdles. If the member state being sued does not
have domestic implementing legislation in place to
hear the dispute, there will be no forum available.
Even in the event that the domestic legislation
provides for suits of this nature, the judges who
decide the case are residents of the country
against which it is brought, and the resulting
potential conflicts of interest are apparent. With
respect to parties, only nations are bound by
treaties and conventions. In international forums,
such as the International Court of Justice,
countries must consent to being sued in order to
preserve their sovereignty. Thus, it is often
impossible to sue a country. In any case, it is
often a transnational corporation (TNC), not a
country, that has violated an international
agreement. It is nearly impossible to sue a
country for not enforcing its laws against a TNC or
for not enacting sufficient implementing
legislation. The final difficulty in the jurisdictional
arena is the question of who may bring a suit.
Often, only countries may sue countries, not
individual citizens and not nongovernmental
organizations. This has huge repercussions in that
the environmental harm must be large and
notorious for a country to even notice it. Second,
for a country to have a stake in the outcome of
the subject matter, some harm may have to cross
the borders of the violating country into the
country that is suing. Finally, even if trans-
boundary harm does exist, the issue of causation,
especially in the environmental field, is often
impossible to demonstrate with any certainty. In
addition, in all fields of international law no
country is ever in perfect compliance with every
international obligation. Moreover, some
countries are substantially more powerful than
others. This may seem self-evident and
unimportant, until one considers that suing
another country may expose the plaintiff country
to retaliatory actions. In spite of this political
reality, however, Mexico successfully challenged
the United States in the World Trade Organization
in the Tuna Dolphin Case, and several Asian
countries successfully challenged the United
States over U.S. efforts to compel shrimp-
exporting countries to harvest shrimp without
harming turtles.
The enforcement issue is one where advocates for
a safer environment often find themselves
stymied. The entirety of international law, beyond
the environmental field, remains largely
unenforceable, even if a treaty or convention
provides for specific substantive measures to be
taken by a country (which is not always the case,
since many treaties merely provide frameworks),
and even if a forum for litigation or dispute
resolution is specified or sanctions by member
states for noncompliance are authorized. A
country cannot be forced to do what it is not
willing to do. One can sanction the country, order
damages, restrict trade, or, most frequently,
declare noncompliance, but beyond that, if a
country will not comply, there is very little to be
done. Countries usually accept or avoid
international environmental obligations because it
is in their economic self-interest to do so. Nations
rarely take actions that may harm their domestic
economy or their international trade for altruistic
reasons. They take these actions expecting some
economic or political benefit sooner or later.
a. Principle 21 of Stockholm Declaration
Principle 21 of the Stockholm declaration clearly
states, "States have in accordance with the
Charter of the United Nations and the principles of
international law, the sovereign right to exploit
their own resources pursuant to their own
environmental policies, and the responsibility to
ensure that activities within their jurisdiction or
control do not cause damage to the environment
of other States or of areas beyond the limits of
national jurisdiction."
The practices of States can be affected
consciously by various international actions and
conventions are adopted in the hope that they
follow and act in the particular way stated and
may even suggest that they are legally obliged to
do so. Principle 21 has now become a customary
law, which generally applies to all states and not
only to the parties to a particular instrument.
Principle 21 focuses on transboundary harm or
State responsibility.
Transboundary Damage
Large-scale industrial, agricultural and technical
activities of one country can cause damage to the
environment of another nation or simply cause
detrimental effects to its people at large. Such
damage can be caused through water, soil, and
air and to one or more nations or quite possibly to
the global commons. Such transboundary damage
gives rise to the question of State responsibility
and compensation for damage caused.
State responsibility and international liability for
injurious consequences have been two of the
major issues on the agenda of the International
Law Commission. International treaties of various
numbers have come into existence, pollution of
international waters, long-range air pollution, land
source damage to the ocean and oil pollution to
give a few examples. Most treaties only lay down
preventive methods and norms to be followed by
states and very few lay down firm rules regarding
liability and compensation. Another challenge
posed before Nations is how State liability for
environmental damage caused accidentally and
non accidentally should differ, and, what liability
can be imposed; who decides such liability
compensation; whether or not such liability can be
imposed for damage arising from acts which are
legal and what can make such decisions binding
on States and whether or not such mechanisms
will be of use in the future. What may be effective
in theory may not be effective in practice. Some
believe that more emphasis should be laid on the
preventative factor rather than focusing on who
will take up responsibility.
Such damage may, however, be caused not just
by human activities but also by natural factors.
Earthquakes, floods, volcanoes, landslides and
hurricanes can also bring tremendous destruction
to human life and property. For such "acts of
God", liability rules do not apply. In principle,
transboundary damage should have "some
reasonably proximate casual relation to human
conduct."
Environmental damage thus poses a menace not
just to one nation but also to the environments of
States as a whole. "All states parties to such
instruments have the responsibility to protect the
natural environment and the common areas, and
correlative rights to see that others do so."
Some Digested Public International Law Cases
1) COMPAGNIE DE COMMERCE ET DE
NAVIGATION D’EXTREME ORIENT VS. THE
HAMBURG AMERIKA
PACKETFACHT ACTIEN GESELLSCHAFT -
-The Court held that after examining the terms
and conditions of the convention that at the
outbreak of the present war, there was no such
general recognition of the duty of a belligerent to
grant "days of grace" and "safe-conducts" to
enemy ships in his harbors, as would sustain a
ruling that such alleged duty was prescribed by
any imperative and well settled rule of public
international law, of such binding force that it
was the duty of the master of the Sambia to rely
confidently upon a compliance with its terms by
the French authorities in Saigon.
-It was nothing but a *pious wish* at least,
adherence to the practice by any belligerent could
not be demanded by virtue of any convention,
tacit or express, universally recognized by the
members of the society of nations; and that it
may be expected only when the belligerent is
convinced that the demand for adherence to the
practice inspired by his own commercial and
political interests outweighs any advantage he
can hope to gain by a refusal to recognize the
practice as binding upon him.
-The Court concluded that under the
circumstances surrounding the flight of the
Sambia from the port of Saigon, her master had
no such assurances, under any well-settled and
universally accepted rule of public international
law, as to the immunity of his vessel from seizure
by the French authorities, as would justify us in
holding that it was his duty to remain in the port
of Saigon in the hope that he would be allowed to
sail for the port of destination designated in the
contract of affreightment with a laissez-passer or
safe- conduct which would secure the safety of his
vessel and cargo en route.
-The Court also held that it was the duty of the
ship-owner to sell, and not to just transship the
cargo, due to the fact of the perishable nature of
the cargo (rice) and that he was justified in the
delay of acting, so as to ascertain reasonably
what course of action to take.
-RE: jurisdiction. It cannot be raised on appeal for
the first time.
2) COLUMBIA VS. PERU - Beron
The Colombian government must prove that the
rule (American international law more particularly
regional or local custom peculiar to Latin-
American States...) invoked by it is accordance
with a constant and uniform usage practiced by
the States in question, and that this usage is the
expression of a right appertaining to the State
granting asylum and a duty incumbent on the
territorial state (in this case, Peru..).
Colombia claims that this regional customs has
been codified by the Monteviedo Convention, but
this argumen must fail. The limited number of
States which ratified this Convention reveals the
weakness of this argument. The Colombian
Government failed to prove the existence of such
customs as invoked by it. Even if such customs
exist, it could not be invoked against Peru which
has repudiated it by refraining from ratifying the
Montevideo Conventions.
The court further stated in its decision that the
only solution to a dispute between states adhering
to different set of customs is to go back in history
to a time when a rule accepted by both groups of
States exist and continue to apply that rule.
3) NICARAGUA VS. US - Calinisan c/o SC notes
Tanquilit
The ICJ has jurisdiction. The 1946 declaration is
still binding on the US.
The US cannot derogate from the time-limit
proviso included in its 1946 declaration. The
notion of reciprocity is concerned with the scope
and substance of the commitments entered into,
including reservations, and not with formal
conditions of their creation, duration, or
extinction. Reciprocity cannot be invoked in order
to excuse departure from the terms of a State’s
own declaration. Nicaragua can invoke the six
months’ notice against the US, not on the basis of
reciprocity, but because it is an undertaking which
is an integral part of the instrument that contains
it. The 1984 notification cannot override the
obligation of the US to submit to the jurisdiction of
the Court vis-à-vis Nicaragua.
The evidence is insufficient to demonstrate the
total dependence of the contras on US aid. A
partial dependency may be inferred from the fact
that the leaders were selected by the US, and
from other factors such as the organization,
training and equipping of the force, planning of
operations, the choosing of targets, and the
operational support provided. There is, however,
no clear evidence that the US actually exercised
such a degree of control as to justify treating the
contras as acting on its behalf. Therefore, the
contras, remain responsible for their own acts, in
particular for alleged violations by them of
humanitarian law.
For the US to be legally responsible, it would have
to be proved that the State had effective control
of the operations in the course of which the
alleged violations were committed.
4) CORFU CHANNEL (UK V ALBANIA) – Fernandez
Albania is responsible under international law for
the damage and loss of lives, and that it owned a
duty to pay compensation to Great Britain. Before
and after the incident, the Albanian Government’s
attitude showed its intention to keep a jealous
watch on its territorial waters. And when the
Albania came to know of the minefield, it
protested strongly against the minesweeping
conducted by Britain but not to the laying of
mines. It is but showing that Albania desired the
presence of such mines. Moreover, the layout of
the minefield shows that this could only be
accomplished by stationing a look-out post near
the coasts (that is in Albania). The inevitable
conclusion is that the laying of the minefield could
not have been done without the knowledge of
Albania. It is then its duty to notify and warn
ships proceeding through the Strait. Its failure to
undertake such constitutes neglect of its
international, responsibility.
As to the argument on passage through territorial
waters, the ICJ ruled that the North Corfu Channel
constituted a frontier between Albania and
Greece, that a part of it is wholly within the
territorial waters of these 2 States, and that the
Strait is of special importance to Greece. Hence,
the Channel belongs to a class of international
highways through which passage cannot be
prohibited by a coastal State in time of peace.
Moreover, the passage of the British warships
through the Channel was carried out in such
manner that is consistent with the principle of
innocent passage—the guns were in a normal
position and not targeted to the shores.
5) TEMPLE OF PREAH VIHEAR (CAMBODIA V.
THAILAND) – Gana
-The Court said yes. The Court held that the 1959
decision is only applicable to the parties thereto
(which were Israel and Bulgaria). Furthermore,
the Court held that Thailand’s 1950 declaration
made its situation different from that of Bulgaria.
Thailand’s being a party to the statute expired on
May 6, 1950. Thus, it’s declaration on May 20,
1950 was a new declaration made outside the
operation of the Statute of the Court
and consequently outside the application of Art.
36.
Second Objection:
-Cambodia bases its claim on the Temple of Preah
on a map (Annex 1) made by a group of people.
On the other hand, Thailand bases its claim on a
treaty signed by France (who was then conducting
the foreign relations of Indo-China) and Siam.
-Thailand argues that Annex 1 was never
accepted by the parties to the treaty. Also,
Thailand reiterates that the treaty says that the
boundary between Thailand and Cambodia is
based on the watershed and the boundary
delineated by Annex 1 does not conform to this
agreement.
: continuation of the Gabcíkovo-Nagymaros System
-The Court held that Annex 1 should be followed.
Even if it was not accepted by France, there was
an implied acceptance of such map. This can be
seen through the acts of France and Thailand. In
1934-1935 a survey had established a divergence
between the map line and the true line of the
watershed, and other maps had been produced
showing the Temple as being in Thailand:
Thailand had nevertheless continued also to use
and indeed to publish maps showing Preah Vihear
as lying in Cambodia. Moreover, in the course of
the negotiations for the 1925 and 1937 Franco-
Siamese Treaties, which confirmed the existing
frontiers, and in 1947 in Washington before the
Franco-Siamese Conciliation Commission, it would
have been natural for Thailand to raise the
matter: she did not do so.
-In effect, Cambodia and Thailand are now
estopped from questioning the validity of Annex 1.
Thus, the Temple of Preah Vihear belongs to
Cambodia.
-
6) GABCÍKOVO-NAGYMAROS (HUNGARY VS.
SLOVAKIA) (1993) – Lopez
Held:
(a)
The Court says No. Hungary rests the validity of
its action upon the principle of a state of
necessity. The state says that they had to
abandon the treaty because of economic and
ecological concerns. The Court enumerated the
requirements for the application of such a
principle, to wit:
a. it must have been occasioned by an "essential
interest" of the State which is the author of the
act conflicting with one of its international
obligations
b. that interest must have been threatened by a
"grave and imminent peril"
c. the act being challenged must have been the
"only means" of safeguarding that interest
d. that act must not have "seriously impair[ed] an
essential interest" of the State towards which the
obligation existed
e. the State which is the author of that act must
not have "contributed to the occurrence of the
state of necessity" In this case, the Court held
that there was an essential interest, which is the
environment. But, the court held that the peril to
be caused is not imminent. The future problems
being pointed out by Hungary were not impending
enough to justify their abandonment of the treaty
(ie, problem regarding drinking water was a long-
term problem). The Court also pointed out that
there were other means by which Hungary could
have avoided the alleged perils attached to the
of Locks
(ie, lessening of the river bed could have been
solved by constant refilling of the bed with
gravel). The
Court also pointed out that Hungary helped in
bringing about the state of necessity by rushing
the projects without fully understanding the
effects it would have in the environment.

(b) The Court says no.
Czechoslovakia rests its claim on what it calls the
"principle of approximate application" to justify
the construction and operation of Variant C. The
principle states that whenever a legal instrument
of continuing validity cannot be applied literally
owing to the conduct of one of the parties, it
must, without allowing that party to take
advantage of its own conduct, be applied in a way
approximating most closely to its primary object.
The Court took note that the basic characteristic
of the treaty is to provide for the construction of
the Gabcíkovo-Nagymaros System of Locks as a
joint investment constituting a single and
indivisible operational system of works. Clearly,
through Variant C, Czechoslovakia violated such
main objective of the treaty. Through Variant C,
the Czechs wanted to create their own system of
works on the Gabcikovo side of the Danube. This
is obviously an internationally wrong act for it
violated the treaty agreed upon between the
parties. The Court considers that
Czechoslovakia, by unilaterally assuming control
of a shared resource, and thereby depriving
Hungary of its right to an equitable and
reasonable share of the natural resources of the
Danube — with the continuing effects of the
diversion of these waters on the ecology of the
riparian area of the Szigetköz — failed to respect
the proportionality which is required by
international law.
(c) The 19 May 1992 declaration of Hungary did
not have any legal effect. It did not terminate the
treaty between the two states. When Hungary
made such a declaration, it did not have any basis
to terminate the treaty. It was actually the one
which violated the treaty by abandoning their
obligations. There was no fault committed by the
Czechs to justify what Hungary did. In the Court's
view, therefore, the notification of termination by
Hungary on 19 May 1992 was premature. No
breach of the Treaty by Czechoslovakia had yet
taken place and consequently Hungary was not
entitled to invoke any such breach of the Treaty
as a ground for terminating it when it did.
(d) The Court finds that Hungary and Slovakia
must negotiate in good faith in the light of the
prevailing situation, and must take all necessary
measures to ensure the achievement of the
objectives of the Treaty.
Unless the Parties otherwise agree, a joint
operational régime must be established in
accordance with the
Treaty. Also, unless the Parties otherwise agree,
Hungary shall compensate Slovakia for the
damage sustained by Czechoslovakia and by
Slovakia on account of the suspension and
abandonment by Hungary of works for which it
was responsible; and Slovakia shall compensate
Hungary for the damage it has sustained on
account of the putting into operation of the
"provisional solution" by Czechoslovakia and its
maintenance in service by Slovakia.
7) ADVISORY OPINION ON THE LEGAL
CONSEQUENCES OF THE PALESTINIAN WALL –
Mendiola
The Court has already indicated that the subject
of the present request for an advisory opinion falls
within the competence of the General Assembly
under the Charter.
Even if Article 12, paragraph 1, of the Charter
provides that: “While the Security Council is
exercising in respect of any dispute or situation
the functions assigned to it in the present Charter,
the General Assembly shall not make any
recommendation with regard to that dispute or
situation unless the
Security Council so requests.” a request for an
advisory opinion is not in itself a
“recommendation” by the General Assembly “with
regard to [a] dispute or situation”.
As regards the practice of the United Nations,
both the General Assembly and the Security
Council initially interpreted and applied Article 12
to the effect that the Assembly could not make a
recommendation on a question concerning the
maintenance of international peace and security
while the matter remained on the Security
Council’s agenda. However, this interpretation of
Article 12 has evolved subsequently. Thus the
General Assembly deemed itself entitled in 1961
to adopt recommendations in the matter of the
Congo (resolutions 1955 (XV) and 1600 (XVI))
and in 1963 in respect of the Portuguese colonies
(resolution 1913 (XVIII)) while those cases still
appeared on the Council’s agenda, without the
Council having adopted any recent resolution
concerning them.
The Court can exercise its jurisdiction.
One of the arguments is to the effect that the
Court should not exercise its jurisdiction in the
present case because the request concerns a
contentious matter between Israel and Palestine,
in respect of which Israel has not consented to the
exercise of that jurisdiction. According to this
view, the subject-matter of the question posed by
the General Assembly “is an integral part of the
wider Israeli-Palestinian dispute concerning
questions
of terrorism, security, borders, settlements,
Jerusalem and other related matters”. Israel has
emphasized that it
has never consented to the settlement of this
wider dispute by the Court or by any other means
of compulsory
adjudication; on the contrary, it contends that the
parties repeatedly agreed that these issues are to
be settled by negotiation, with the possibility of an
agreement that recourse could be had to
arbitration.
The Court observes that the lack of consent to the
Court’s contentious jurisdiction by interested
States has no bearing on the Court’s jurisdiction
to give an advisory opinion. In an Advisory
Opinion of 1950, the Court explained that:
“The consent of States, parties to a dispute, is the
basis of the Court’s jurisdiction in contentious
cases. The situation is different in regard to
advisory proceedings. The Court’s reply is only of
an advisory character: as such, it has no binding
force. It follows that no State, whether a Member
of the United Nations or not, can prevent the
giving of an Advisory Opinion which the United
Nations considers to be desirable in order to
obtain enlightenment as to the course of action it
should take.
As regards the principle of the right of peoples to
self-determination, the Court observes that the
existence of a “Palestinian people” is no longer in
issue. Such existence has moreover been
recognized by Israel in the exchange of letters of
9 September 1993 between Mr. Yasser Arafat,
President of the Palestine Liberation Organization
(PLO) and Mr. YitzhakRabin, Israeli Prime Minister.
In that correspondence, the President of the PLO
recognized “the right of the State of Israel to exist
in peace and security” and made various other
commitments. In reply, the Israeli Prime Minister
informed him that, in the light of those
commitments, “the Government of Israel has
decided to recognize the PLO as the
representative of the Palestinian people”.
8) ADVISORY OPINION ON THE USE OF NUCLEAR
WEAPONS – Morada
The General Assembly only meant to lend its
political support to the action taken by WHO, not
to pass upon WHO’s competence to request an
opinion on the question raised
9) NOTTEBOHM (LIECHTENSTEIN VS.
GUATEMALA) – Rivas
Nottebohm is still considered a citizen of
Guatemala.
-When two States have conferred their nationality
upon the same individual and this situation is no
longer confined within the limits of the domestic
jurisdiction of one of these States but extends to
the international field, international arbitrators or
the Courts of third States which are called upon to
deal with this situation would allow the
contradiction to subsist if they confined
themselves to the view that nationality is
exclusively within the domestic jurisdiction of the
State.
-In order to resolve the conflict they have, on the
contrary, sought to ascertain whether nationality
has been conferred in circumstances such as to
give rise to an obligation on the part of the
respondent State to recognize the effect of that
nationality.
-In determining his nationality, different factors
are taken into consideration, and their importance
will vary from one case to the next:
habitual residence of the individual concerned
the centre of his interests, his family ties, his
participation in public life, attachment shown by
him for a given country and inculcated in his
children, etc.
-According to the practice of States, nationality
constitutes the juridical expression of the fact that
an individual is more closely connected with the
population of a particular State.
-At the time of his naturalization, does Nottebohm
appear to have been more closely attached by his
tradition, his establishment, his interests, his
activities, his family ties, his intentions for the
near future, to Liechtenstein than to any other
State?
-Nottebohm always retained his family and
business connections with Germany and that
there is nothing to indicate that his application for
naturalization in Liechtenstein was motivated by
any desire to dissociate
himself from the Government of his country.
-Also, Nottebohm had been settled for 34 years in
Guatemala, which was the centre of his interests
and his business activities. He stayed there until
his removal as a result of war measures in 1943
(remember that he became a citizen of
Liechtenstein in 1979), and complains of
Guatemala's refusal to readmit him. Members of
Nottebohm's family had, moreover, asserted his
desire to spend his old age in Guatemala.
- There is thus the absence of any bond of
attachment with Liechtenstein, but there is a long-
standing and close connection between him and
Guatemala, a link which his naturalization in no
way weakened.
10) OPOSA VS. FACTORAN – Sarenas
Petitioners indeed have locus standi to file the
case. They can file the case for themselves aswell
as for the succeeding generations.
Issue:
Petitioners have successfully showed that they
have a specific legal right. The right to a balanced
and healthful ecology (Sec 16, Art II of the 1987
Constitution)
• Whatever the nature of the obligations invoked,
The right to a balanced and healthful ecology
carries with it the correlative duty to refrain from
impairing
the environment. It is the DENR’s duty to protect
such right.
• d) if the court were to exercise jurisdiction over
A denial or violation of that right by the other who
has the correlative duty to respect or protect the
same
gives right to a cause of action.
Issue:
No. What is principally involved is the
enforcement of a right vis-à-vis policies already
formulated and
expressed in legislation.
The non-impairment clause must yield to the
police power of the state. All licenses may be
revoked or rescinded by executive action.
Decision: Order of dismissal set aside (I
guessremanded yung case)
11) EAST TIMOR – Anastacio
Court cannot exercise jurisdiction over the case
because Indonesia is not a party thereto. The
court held that in order to rule on the proceedings
instituted by Portugal against Australia concerning
"certain activities of Australia with respect to East
Timor", it would be necessary for the court to
determine the rights and obligations of Indonesia.
Specifically, the court held that the very subject-
matter of its decision would necessarily be a
determination whether, having regard to the
circumstances in which Indonesia entered and
remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf
of East Timor relating to the resources of its
continental shelf. The Court could not make such
a determination in the absence of the consent of
Indonesia;
b) regarding the contention that Portugal and
Australia have accepted the compulsory
jurisdiction of the Court under Article 36,
paragraph 2, of its Statute, the court noted that
Indonesia did not do so. This, in effect, precludes
the court from exercising jurisdiction since were it
to rule on the case, its decision would affect, but
would not be binding on, Indonesia because of its
lack of consent to the court’s jurisdiction;
c) while it is true that the right of peoples to self-
determination, as it evolved from the Charter and
from United Nations practice, has an erga omnes
character, the Court nonetheless considers that
the erga omnes character of a norm and the rule
of consent to jurisdiction are two different things.
the Court could not rule on the lawfulness of the
conduct of a State when its judgment would imply
an evaluation of the lawfulness of the conduct of
another State which is not a party to the case;
the case and render judgment thereon
notwithstanding the lack of Indonesia’s consent,
such a judgment would run directly counter to the
"well-established principle of international law
embodied in the Court's Statute, namely, that the
Court can only exercise jurisdiction over a State
with its consent" (Monetary Gold Removed from
Rome in 1943, I.C.J. Reports 1954, p. 32).
Re the separate opinion of Judge Oda:
Judge Oda, while agreeing that Portugal's
Application should be dismissed as the Court lacks
jurisdiction to entertain it, considers that its
dismissal should not have been based upon the
absence of Indonesia's consent, as in the Court's
Judgment, but upon the sole consideration that
Portugal lacked locus standi. His reasoning
appears to be based on his view that the central
issue in the case is whether Portugal or Indonesia,
as a State lying opposite to Australia, was entitled
to the continental shelf in the "Timor Gap"(maybe,
this is what is referred to in the Treaty of
11 December 1989 between Australia and
Indonesia as an area between the Indonesian
Province of East Timor and
Northern Australia).
. He notes that on the matter of the delimitation
of the continental shelf in the relevant areas, it
appears that since the seventies, Indonesia
claimed the status of a coastal State for East
Timor and, as such, negotiated with Australia
while, on the other hand, Portugal did not. Had
Portugal also claimed that status, it could and
should have initiated a dispute over the
corresponding title to the continental shelf with
Indonesia, but not with Australia. Not
unless and until such time as Portugal had been
established as having the status of the coastal
State entitled to the corresponding continental
shelf could any issue concerning the seabed area
of the "Timor Gap" have been the subject matter
of a dispute between Portugal and Australia Since
Portugal does not have such status as yet, it has
no locus standi and hence, its complaint should be
dismissed on such ground.
Re the dissenting opinion of Judge Weeramantry:
Judge Weeramantry disagrees with the majority
view on the question as to whether or not the
Court lacks jurisdiction on the ground that a
decision against Australia would involve a decision
concerning the rights of Indonesia, a third State,
not before the Court.
Judge Weeramantry, after analyzing the Monetary
Gold decision and the prior and subsequent
jurisprudence on the matter, concludes that,
having regard to the facts of this case, the
Monetary Gold decision is not relevant inasmuch
as the Court could determine the matter before it
entirely on the basis of the obligations and actions
of Australia alone, without any need to make an
adjudication on the conduct of Indonesia. He
bases this on the view that a central principle of
State responsibility in international law is the
individual responsibility of a State for its actions,
quite apart from the complicity of another State in
those actions. Accordingly, he believes that
Australia’s actions, in negotiating, concluding and
initiating performance of the Timor Gap Treaty,
and taking internal legislative measures for its
application, are thus justiciable on the basis of its
unilateral conduct.
Re the dissenting opinion of Judge Skubiszewski:
In his view, the court has jurisdiction because
even it finds itself without jurisdiction to
adjudicate on any
issue relating to the Timor Gap Treaty, it can still
rule on Portugal’s first submission, i.e., with the
status of East
Timor, the applicability to that territory of the
principle of self-determination and some other
basic principles of
international law, and the position of Portugal as
administering Power. This is so because the first
submission can be
separated from the other submissions which
concern exclusively the specific issues of the
treaty.
Judge Skubiszewski believes that the Court can
decide on the lawfulness of some unilateral acts of
Australia leading to the conclusion of the Treaty. A
decision thereon does not imply any adjudication
on Indonesia,
nor does it involve any finding on the validity of
the Treaty. The conduct of Australia can be
assessed in the light of
United Nations law and resolutions. Such
assessment is not linked to any passing upon
Indonesia's activities.
Further, it is his view that Portugal has the
capacity to act before the Court in this case on
behalf of East
Timor and to vindicate the respect for its position
as administering Power. The position of Portugal
as administering
Power was questioned by Australia; the Court
should have clarified this issue. It is within its
jurisdiction.
12) ISLAND OF PALMAS – Beron
It is recognized that the US communicated the
Treaty of Paris to the Netherlands, and that no
reservations or protests were made by the
Netherlands in respect of the delimitation of the
Philippines which included the Palmas. However
the territorial sovereignty (which as stated above
serves as good title...) which Netherlands
exercised over the Palmas could not be affected
by the mere silence as regards a treaty which has
been notified.
Discovery alone without subsequent act cannot at
the present time suffice to prove sovereignty over
the Palmas. Even considering that the US
possesses an imperfect title over the Palmas by
virtue of the Treaty of Paris, this title cannot
prevail over the continuous display of authority of
another state.
The principle of contiguity as contention should
also fail. This principle itself is by its very nature
so uncertain and contested that even
governments of the same state have on different
occasions maintained contradictory opinions. If
this principle alone is to be used as basis for
acquiring sovereignty over a territory, this
principle would be in conflict with what has been
said about territorial sovereignty
13) VFA CASE (LIM VS. EXEC. SEC.) – Calinisan
After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In our
view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In
this manner, visiting US forces may sojourn in
Philippine territory for purposes other than
military. As conceived, the joint exercises may
include training on new techniques of patrol and
surveillance to protect the nation's marine
resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief
operations, civic action projects such as the
building of school houses, medical and
humanitarian missions, and the like.
•
The Terms of Reference are explicit enough.
Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat
"except in self-defense." We wryly note that this
sentiment is admirable in the abstract but difficult
in implementation. The target of "Balikatan 02-1
I" the Abu Sayyaf, cannot reasonably be expected
to sit idly while the battle is brought to their very
doorstep. They cannot be expected to pick and
choose their targets for they will not have the
luxury of doing so. We state this point if only to
signify our awareness that the parties straddle a
fine line, observing the honored legal maxim
"Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is
actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally
conducted by the United States government, and
that the provision on self-defense serves only as
camouflage to conceal the true nature of the
exercise. A clear pronouncement on this matter
thereby becomes crucial.
Notes:
• services, labor and enterprises, at the same time,
The entry of American troops into Philippine soil is
proximately rooted in the international anti-
terrorism campaign declared by President George
W. Bush in reaction to the tragic events that
occurred on September
11, 2001
• addition, the GATT itself has provided built-in
Mutual Defense Treaty—as the "core" of the
defense relationship between the Philippines and
its traditional ally, the United States. Its aim is to
enhance the strategic and technological
capabilities of our armed forces through joint
training with its American counterparts; in re:
VFA.
• sovereignty, but is not necessarily reprehensible.
Visiting Forces Agreement—provides the
"regulatory mechanism" by which "United States
military and civilian personnel [may visit]
temporarily in the Philippines in connection with
activities approved by the Philippine Government."
It contains provisions relative to entry and
departure of American personnel,
driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation,
movement of vessels and aircraft, as well as the
duration of the agreement and its termination. Its
primary goal is to facilitate the promotion of
optimal cooperation between American and
Philippine military forces in the event of an attack
by a common foe.
Public International Law (Dean Roy): Case Digests
nastacio, Beron, Calinisan, Fernandez, Gana,
Lopez, Mendiola, Morada, Rivas, Sarenas
14) WTO CASE (TAÑADA VS. ANGARA) –
Fernandez
An initial question was posed regarding
jurisdiction. The SC ruled that it has jurisdiction
over the matter since it has the power to
determine whether there was GADLEJ on the part
of the Senate and President. However, the SC will
not review the wisdom of their decisions.
The WTO Agreement is not violative of the
Constitution. The reliance on the priniciple of
economic nationalism espoused in Articles 2(sec
19) and 12(secs 10 and 12) of the Constitution is
misplaced as these are not self-executing
provisions. They do not embody judicially
enforceable constitutional rights but are guidelines
for legislation. These are broad constitutional
principles that need legislative enactments to
implement them. Moreover, while the Constitution
indeed mandates a bias in favor of Filipino goods,
it recognizes the need for business exchange with
the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino
enterprises only against foreign competition and
trade practices that are unfair. The Constitution
did not intend to promote an isolationist policy. In
protection from such unfair foreign competition
and trade practices.
(the important part)
Participating in the WTO Agreement did limit or
restrict, to some extent, the absoluteness of our
While sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic
level, it is however subject to restrictions and
limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member
of the family of nations. Through the incorporation
clause in the Constitution, the Philippines is bound
by generally accepted principles of law as they
automatically form part of the laws of the land. Of
great importance is the principle of pacta sunt
servanda, which means that international
agreements must be performed in good faith. A
state which has contracted valid international
obligations is bound to make in its legislation such
modifications as may be necessary to ensure the
fulfillment of the obligations undertaken. So by
their voluntary act, nations may surrender some
aspects of their state power in exchange for
greater benefits granted by or derived from a
convention or pact. For instance, when the
Philippines joined the UN and other bilateral
relations with other States, it effectively limits its
sovereign powers of taxation, eminent domain
and police power. It can then be inferred that a
portion of sovereignty may be waived without
violating the Constitution by virtue of the
Philippines being bound by generally accepted
principles of law.
A Final Act is not the treaty itself. It is just a
summary of the proceedings that took place
during the negotiation stage. In fact, the Senate
did what the Final Act required—the concurrence
tot the WTO Agreement. By the ratification of the
Agreement, the other documents in question
(Ministerial Declarations etc) were deemed
adopted.
Plus, the WTO Agreement itself stipulated what
multilateral agreements are deemed included.
In sum, there was no GADLEJ on the part of the
Senate and the President. When the WTO
Agreement was ratified and made part of the law
of the land, the Senate and the President was
exercising, legitimately, its sovereign duty and
power. Notwithstanding objections against
possible limitations on national sovereignty, the
WTO remains as the only viable structure for
multilateral trading and development of
international trade law.
15) CASE CONCERNING MARITIME DELIMITATION
IN THE AREA BETWEEN GREENLAND AND
JAN MAYEN (DENMARK VS. NORWAY) – Gana
-The Court held that Art. 6 of the 1958 Geneva
Convention on the Continental Shelf should be
followed. The said article states that in cases
where two or more states have disputes of the
same sort as the one in this case, there should be
a median line formed equidistant from the coasts
of the states involved. This medial line, though,
can be adjusted as stated in the Article and
affirmed by several decisions of the International
Court. The adjustment would be based on special
circumstances, at the discretion of the
Court.
-In this case, the Court found that the respective
coastal lengths of Greenland and Jan Mayen can
be considered as a special circumstance which
calls for the adjustment of the median line. This is
considered a special circumstance because the
difference is substantial. Greenland possesses a
much longer coastline, thus it should be afforded
a wider claim over the disputed area based on the
principle of proportionality.
16) CASE CONCERNING THE MILITARY AND
PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA VS.
US) – Lopez
The ICJ has jurisdiction. The 1946 declaration is
still binding on the US.
The US cannot derogate from the time-limit
proviso included in its 1946 declaration. The
notion of reciprocity is concerned with the scope
and substance of the commitments entered into,
including reservations, and not with formal
conditions of their creation, duration, or
extinction. Reciprocity cannot be invoked in order
to excuse departure from the terms of a State’s
own declaration. Nicaragua can invoke the six
months’ notice against the US, not on the basis of
reciprocity, but because it is an undertaking which
is an integral part of the instrument that contains
it. The 1984 notification cannot override the
obligation of the US to submit to the jurisdiction of
the Court vis-à-vis Nicaragua.
The evidence is insufficient to demonstrate the
total dependence of the contras on US aid. A
partial dependency may be inferred from the fact
that the leaders were selected by the US, and
from other factors such as the organization,
training and equipping of the force, planning of
operations, the choosing of targets, and the
operational support provided. There is, however,
no clear evidence that the US actually exercised
such a degree of control as to justify treating the
contras as acting on its behalf. Therefore, the
contras, remain responsible for their own acts, in
particular for alleged violations by them of
humanitarian law.
For the US to be legally responsible, it would have
to be proved that the State had effective control
of the operations in the course of which the
alleged violations were committed.
17) Treaty of Antarctica – Mendiola

18) Principality of Sealand – Morada
There are eight accepted criteria used to
determine whether an entity is an independent
country or not.
1) Has space or territory which has internationally
recognized boundaries. No. Sealand has no land
or boundaries at all, it's a tower built by the
British as an anti-aircraft platform during World
War II. Certainly, the government of the U.K. can
assert that it owns this platform. Sealand also lies
within the United Kingdom's proclaimed 12
nautical mile territorial water limit. Sealand claims
that since it asserted its sovereignty before the
U.K. extended its territorial waters, it concept of
being "grandfathered in" applies. Sealand also
claims its own 12.5 nautical mile territorial water.
2) Has people who live there on an ongoing basis.
Not really. As of 2000, only one person lives at
Sealand and he's going to move out, to be
replaced by temporary residents working for
Haven Co. Prince Roy maintains his U.K.
citizenship and passport, lest he end up
somewhere where Sealand's passport isn't
recognized.
3) Has economic activity and an organized
economy. A State regulates foreign and domestic
trade and issues money. No. Haven Co represents
Sealand's only economic activity up to now. While
Sealand issued money, there's no use for it
beyond collectors. Likewise, Sealand's stamps
only have value to a philatelist (stamp collector)
as Sealand is not a member of the Universal
Postal Union, mail from Sealand can't be sent
elsewhere (nor is there much sense in mailing a
letter across the tower itself).
4) Has the power of social engineering, such as
education. Perhaps. If it had any citizens.
5) Has a transportation system for moving goods
and people. No.
6) Has a government which provides public
services and police power. Yes, but that police
power is certainly not absolute. The United
Kingdom can assert its authority over Sealand
quite easily with a few police officers.
7) Has sovereignty. No other State should have
power over the State's territory. No. The United
Kingdom has power over Sealand's territory. The
British government was quoted in Wired,
"Although Mr. Bates styles the platform as the
Principality of Sealand, the U.K. government does
not regard Sealand as a state."
8) Has external recognition. A State has been
"voted into the club" by other States. No. No
other country recognizes Sealand. An official from
the United States Department of State was quoted
in Wired, "There are no independent principalities
in the North Sea. As far as we are concerned, they
are just Crown dependencies of Britain." The
British Home Office was quoted by the BBC that
the United Kingdom does not recognize Sealand
and, "We've no reason to believe that anyone else
recognizes it either."
19) Western Sahara Case – Rivas
Territories inhabited by tribes or people having a
social and political organization were not regarded
as terra nullius The court concludes that the
material and information presented to it do not
establish any tie of territorial sovereignty over the
Western Sahara. Discovery of terra nullius is not
enough to establish sovereignty. It must be
accompanied by effective control
20) Holy See vs. Del Rosario – Sarenas
In PIL, when a state or international agency
wishes to plead sovereign or diplomatic immunity,
it requests
the Foreign office of the state where it is to
convey to the court that it is entitled to immunity.
In the Philippines, the practice is to first secure an
executive endorsement of its claim of sovereign or
diplomatic immunity. See the case for history of
the sovereignty of the Vatican (The Lateran Treaty
established the statehood of the Vatican City) The
Philippines has accorded the Holy See the status
of foreign sovereign. It had diplomatic
representations with the country since 1957. Sec
2 of Article 2 of the 1987 Constitution adopts
principles of International Law. Principles of Intl.
Law are deemed incorporated as part of the law of
the land. Where the plea of immunity is
recognized and affirmed by the executive branch,
it is the duty of the courts to accept this claim so
as not to embarrass the executive arm of the
government.
21) Expenses of the UN – Anastacio
22) Tinoco Arbitration – Beron
Under the Principle of Continuity of States, the
sate is bound by the engagements entered into by
governments that have ceased to exist. The
restores government is generally liable for the
acts of the usurper Also changes in the
government or the internal policy do not, as a
rule, affect its position in the International Law.
Though the government changes, the nation
remains, with rights and obligations unimpaired
Non-recognition by other nations of a government
claiming to be a national personality, is usually
appropriate evidence that it has not attained the
independence and control entitling it by
International Law to be classified as such. But
when recognition of a government is determined
by inquiry, not into its de facto sovereignty but
into its illegitimacy or irregularity of origin, their
non-recognition loses evidential weight – it cannot
outweigh evidence of the de facto character if a
government.
23) Anglo-Norweigian Fisheries Case – Calinisan
using Fernandez’ Book
It should be carried out by agreement between
the States taking into account geographical
equitable considerations including general and
special features of the coasts. The Court decided
the case based on equity considerations. Since
neither treaty nor custom is governing, the Court
tried to reach an equitable conclusion.
(On apportioning the continental shelf area into
just and equitable shares) The Court is not tasked
to apportion the areas concerned, but merely to
delimit it. The continental shelf is a natural
prolongation of a State’s land territory. Since a
State has sovereignty over its land territory, it
naturally has a right over the prolongation of its
land—i.e. the continental shelf. For the court to
apportion the areas is inconsistent with the basic
concept of continental shelf entitlement.
(On the argument of custom)
Article 6 of the Geneva Convention does not
embody an existing customary norm. The
provision cannot be said to have crystallized into a
rule of customary international law for several
reasons: First, Article 6 was framed to be purely
contractual (Suffice it to state that the Convention
was not a treaty of codification but purely de lege
ferenda [creating new rules between the
contracting States]); Second, the number of
ratifications and accessions to the treaty was
hardly sufficient to constitute a general rule of
international law; Third, state practice was neither
extensive enough nor virtually uniform to show a
general recognition of an evolving norm; And
fourth, the treaty itself allows for reservations (in
effect, contracting States may practice or not
practice the equidistance principle)
(On the argument of treaty)
Germany was not legally bound by Article 6.
Though it signed the Geneva Convention, it has
not ratified said treaty.
Why is this case important on the topic of territory
of States?
The case illustrates a mode of settling disputes on
overlapping maritime areas. It has been observed
that
International courts and arbitration bodies have
applied equitable principles instead of traditional
median line or middle lines. UNCLOS III has also
recognized such manner of settling overlapping
maritime areas.
Eastern Greenland (Norway vs. Denmark) – Gana
Skylab - Lopez
Ah Sing (People vs. Wong Chuen Ming) – Mendiola
At the outset, the Court holds that the signatures
of accused on the boxes, as well as on the plastic
bags containing “shabu,” are inadmissible in
evidence. A careful study of the records reveal
that accused were never informed of their
fundamental rights during theentire time that they
were under investigation. Specifically, accused
were not informed of their Miranda rights i.e. that
they had the right to remain silent and to counsel
and any statement they might make could be
used against them, when they were made to affix
their signatures on the boxes of Alpen Cereals
while they were at the NAIA and again, on the
plastic bags when they were already taken in
custody at Camp Crame.
By affixing their signatures on the boxes of Alpen
Cereals and on the plastic bags, accused in effect
made a tacit admission of the crime charged for
mere possession of “shabu” is punished by law.
These signatures of accused are tantamount to an
uncounselled extra-judicial confession which is not
sanctioned by the Bill of Rights (Section 12[1][3],
Article III, 1987 Constitution). They are,
therefore, inadmissible as evidence for any
admission wrung from the accused in violation of
their constitutional rights is inadmissible against
them. The fact that all accused are foreign
nationals does not preclude application of the
“exclusionary rule” because the constitutional
guarantees embodied in the Bill of Rights are
given and extend to all persons, both aliens and
citizens.
Lotus Case (Turkey vs. France) – Morada
Achille Lauro Incident – Rivas
Pinochet Case – Sarenas
Adolf Eichman – Anastacio
Tuscanino Case – Beron
Alvarez-Machain – Calinisan
The fact of respondent's forcible abduction does
not prohibit his trial in a United States court for
violations of this country's criminal laws.
(a) A defendant may not be prosecuted in
violation of the terms of an extradition treaty.
United States v. Rauscher. However, when a
treaty has not been invoked, a court may properly
exercise jurisdiction even though the defendant's
presence is procured by means of a forcible
abduction. Ker v. Illinois. Thus, if the
Extradition Treaty does not prohibit respondent's
abduction, the rule of Ker applies and jurisdiction
was proper.
(b) Neither the Treaty's language nor the history
of negotiations and practice under it supports the
proposition that it prohibits abductions outside of
its terms.
The Treaty says nothing about either country
refraining from forcibly abducting people from the
other's territory or the consequences if
anabduction occurs. Inaddition, although the
Mexican government was made aware of the Ker
doctrine as early as 1906, and language to curtail
Ker was drafted as early as 1935, theTreaty's
current version contains no such clause.
(c) General principles of international law provide
no basis for interpreting the Treaty t include an
implied term prohibiting international abductions.
It would go beyond established
precedent and practice to draw such an inference
from the Treaty based on respondent's argument
that abductions are so clearly prohibited in
international law that there was no reason to
include the prohibition in the Treaty itself. It was
the practice of nations with regard to extradition
treaties that formed the basis for this Court's
decision in Rauscher, supra, to imply a term in the
extradition treaty between the United States and
England.Respondent's argument, however, would
require a much larger inferential leap with only
the most general of international law principles to
support it. While respondent may be correct that
his abduction was "shocking" and in violation of
general international law principles, the decision
whether he should be returned to Mexico, as a
matter outside the Treaty, is a matter for the
Executive Branch.
Republic of Indonesia vs. Vinzon – Fernandez
The Republic of Indonesia did not waive its
immunity. The provision in the contract is not
necessarily a waiver of sovereign immunity from
suit. Submission by a foreign state to local
jurisdiction must be clear and unequivocal. It
must be given explicitly or by necessary
implication. There is no such waiver in this case.
A State may not be sued without its consent.
When a State enters into purely commercial
activities the nature of the act should be
determined as to whether it is jure imperii (public)
or jure gestionis (private). If the act is in pursuit
of a sovereign activity, oran incident thereof, then
it is an act jure imperii. Consequently, it is
covered by sovereign immunity.
The establishment of a diplomatic mission is an
act jure imperii. And a State may enter into
contracts with private entities to maintain the
premises, furnishings and equipment of the
embassy and the living quarters of its diplomatic
agents and officials. Applying it in this case, the
Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract
with Vinzon.
As to whether or not Ambassador Soeratmin and
Minister Kasim may be sued in their private
capacities, Article 31 of the Vienna Convention on
Diplomatic Relations is clear that a diplomatic
agent enjoys immunity from the criminal
jurisdiction of the receiving State. Though there
are exceptions (i.e. real action relating to private
immovable property; action relating to
succession; action relating to any professional or
commercial activity outside official functions), the
case does not fall under any of them. The acts of
the 2 diplomats were incidental to the exercise of
an official function.
Jeffrey Liang vs. People – Gana
SLANDER CANNOT BE SAID TO BE COVERED BY
THE
IMMUNITY GRANTED TO ADB EMPLOYEES
REGARDING ACTS
PERFORMED BY THEM IN THEIR OFFICIAL
CAPACITY
RATIO
• matters of sovereign authority. Had Abu Bakr,
Nowhere in the assailed decision is diplomatic
immunity denied
• independent sovereign is entitled to immunity
However, the issue in this case is not really about
diplomatic immunity but whether or not the
statements allegedly made by LIANG were uttered
while in the performance of his official functions,
in order for this case to fall squarely under the
provisions of Section 45 (a) of the "Agreement
Between the Asian Development Bank and the
Government of the Republic of the Philippines
Regarding the Headquarters of the Asian
Development Bank ," to wit:
Officers and staff of the Bank, including for the
purpose of this Article experts and consultants
performing missions for the Bank, shall enjoy the
following privileges and immunities:
(a) Immunity from legal process with respect to
acts performed by them in their official capacity
except when the Bank waives the immunity.
• person is a diplomat entitled to immunity is the
After careful consideration, the Court held that it
had no cogent reason to disturb its Decision of
January 28, 2000. As the Court has stated
therein, the slander of a person, by any stretch,
cannot be considered as falling within the purview
of the immunity granted to ADB officers and
personnel Mighell vs. Sultan of Johore – Lopez
The fifth case, that of Mighell v Sultan of Johore in
1894 deals with a woman who fell under another
kind of spell, for which there was no legal redress.
A man she had met in high society, who appeared
gentlemanly, wealthy and plausible, and who
called himself Albert Baker, promised her
marriage. He promised marriage to her and then
reneged on the promise, so she sued him, like
Polly Frost in a rather different social milieu, for
breach of promise. The case came on for hearing
in the Court of Appeal on November 27, 1893. The
case again attracted a wealth of legal talent: Lord
Esher, Master of the Rolls, and Lords Justices
Lopes and Kay.
Apparently Miss Mighell knew already that her
fiancé was not Albert Baker: this was a not very
imaginative pseudonym for Abu Bakr, His Serene
Highness the Sultan of Johore. The case revealed
his secret life in the high society of London, a long
way absent from his kingdom in the Malay Straits.
The status of the defendant was important. Miss
Mighell.s argument was that he had originally
presented himself as a private individual and a
subject of the Queen. This pointed up of course
the duality of a sovereign.s status- that they are
both public and private personalities. A distinction
was drawn between private transactions and
(who declined to appear in court) lost this
privilege of diplomatic immunity by his deceit? An
from jurisdiction, unless he waives this privilege,
which Abu Bakr was not going to do. Did his
conduct amount to waiver? Persisted the lawyers
for Miss Mighell. No, it must be an active waiver
was the uncompromising answer.
Ultimately, political considerations and agendas
often decide the day. In 1894 the British
Government was unwilling to offend a friendly
foreign potentate to appease a private individual.
In this sense, Miss Mighell was a victim of state
policy, but the peculiar nature of breach of
promise also meant she was a victim because she
was a woman.
Minucher vs. CA – Mendiola
The main yardstick in ascertaining whether a
determination of whether or not he performs
duties of diplomatic nature. Also, vesting a person
with diplomatic immunity is a prerogative of the
executive branch of
the government.
The consent or imprimatur of the Philippine
government to the activities of the United States
Drug Enforcement Agency, can be gleaned from
the facts mentioned. The official exchanges of
communication between agencies of the
government of the two countries, certifications
from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as
well as the participation of members of the
Philippine
Narcotics Command in the “buy-bust operation”
conducted at the residence ofMinucher at the
behest of Scalzo, may be inadequate to support
the "diplomatic status" of the latter but they give
enough indication that the Philippine government
has given its imprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo
of the United States Drug Enforcement Agency.
The job description of Scalzo has tasked him to
conduct surveillance on suspected drug suppliers
and, after having ascertained the target, to inform
local law enforcers who would then be expected to
make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-
buyer during the buy-bust operation, and then
becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to
have acted beyond the scope of his official
function or duties.
All told, this Court is constrained to rule that
respondent Arthur Scalzo, an agent of the United
States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the
country to help contain the problem on the drug
traffic, is entitled to the defense of state immunity
from suit. N.B. It might be recalled that the
privilege is not an immunity from the observance
of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction
Fisheries Case – Morada
Nuclear Tests Case (Australia/New Zealand vs.
France) – Rivas
Callado vs. International Rice Research Institute –
Sarenas
·Under PD 1620 (Act Granting to IRRI the
privileges of an international organization), the
Institute shall enjoy immunity from any penal,
civil and administrative proceedings.
·The grant of immunity to IRRI is clear and
unequivocal and an express waiver by its Director-
General is the only way which it may relinquish or
abandon this immunity.
·Though there is a memo regarding guidelines to
implementation of PD 1620, the memo cannot be
considered as the express waiver by the Director
General. It is merely an internal memo.
·According to the Memo: in cases involving
dismissal of employees, the Institute may waive
its immunity, signifying that such waiver is
discretionary on its part.
ILO – Anastacio
WHO vs. Aquino – Beron
HELD: The essential principle contained in the
notion of an illegal act is that reparation must, as
far as possible, wipe out all the consequences of
the illegal act and re-establish the situation which
would, in all probability, have existed if that act
had not been committed. Restitution in kind, or if
this is not possible, payment of a sum
corresponding to the value which a restitution in
kind would bear; the award, if need be, of
damages for loss sustained which would not be
covered by restitution in kind or payment in place
of it – such are the principles which should serve
to determine the amount of compensation due for
an act contrary to international law.
In this case, the obligation of Poland is to restore
the factory and, if this be not possible, to pay its
value at the time of the indemnification, which
value is designed to take the place of restitution
which has become impossible. In addition, Poland
must pay the compensating loss sustained as a
result of the seizure.
Mavrommatis Palestine Concessions – Fernandez
It is true that the dispute was at first between a
private person (Mavrommatis) and a State
(Britain). But the Greek Government subsequently
took up the case. The case, then, entered into a
new phase: it became a dispute between two
States and is covered by international law.
Referring to the Mandate of Palestine, the case is
undoubtedly between a Mandatory (Britain) and
another member of the League of Nations
(Greece). When Greece took the case of one of its
subjects and resorted to diplomatic action or
international judicial proceedings on that person’s
behalf, a State is in reality asserting its own
rights. Though the present dispute originated in
an injury to a private interest, such is irrelevant
now. The fact that the opposing parties are States
is sufficient to comply with the Palestinian
Mandate. Being signatory to his Mandate, Britain
has given consent to the PCIJ’s jurisdiction.
The Court’s decision dismissed Britain’s objection
with respect to the claims in Jerusalem. But
upheld the objection as to the claims in Jaffa. The
court said that the claims in Jaffa were not subject
of the Mandate of Palestine with which Britain
submitted jurisdiction.
ADMINISTRATIVE LAW
Sources of power of administrative agencies:
 charter or statute
 constitution
Powers of Administrative Agencies
As to their nature:
1. Quasi-legislative power / Power of
subordinate legislation
2. Quasi-judicial power/Power of adjudication
3. Determinative powers (Note: Senator
Neptali Gonzales calls them incidental
powers)
4. Investigatory power (although some
authors include this as part of quasi-
judicial power, De Leon is of the opinion
 that it is separate and distinct, not merely
incidental)
(Note: the failure to exercise such powers granted
to them does not forfeit or extinguish them)
As to the degree of subjective choice:
1. discretionary- the power or right conferred
upon them by law to act officially under
the circumstances, according to the
dictates of their own judgment/conscience
2. ministerial- nothing is left to discretion; a
duty performed in response to what has
been imposed by law
Definition of “QUASI-LEGISLATIVE POWER”
It is the authority delegated by law-making body
to the administrative body to adopt rules and
regulations intended to carry out the provisions of
a law and implement legislative policy.
Distinctions between Quasi-legislative power
and legislative power
1) LEGISLATIVE power involves the
discretion to determine what the law shall
be. QUASI-legislative power only involves
the discretion to determine how the law
shall be enforced.
2) LEGISLATIVE power CANNOT be
delegated. QUASI-legislative power CAN
be delegated.
Test of Delegation (applies to the power to
promulgate administrative regulations)
1. COMPLETENESS test. This means that the
law must be complete in all its items and
conditions when it leaves the legislature
so that when it reaches the delegate, it
will have nothing to do but to enforce it.
2. SUFFICIENT STANDARD test. The law
must offer a sufficient standard to specify
the limits of the delegate’s authority,
announce the legislative policy and specify
the conditions under which it is to be
implemented.
NOTE: These two must CONCUR. If one or both
are absent, any delegation that occurs is UNDE
DELEGATION of legislative powers.
Exceptions to the rule requiring standards or
guides
 handling of state property or funds
 when the law does not involve personal
or property rights
 matters of internal administration
 power of the board to make
recommendation
 matters involving privileges (like use of
property, engaging in profession)
 regulation or exercise of police power to
protect general welfare, morals and
public policy.
Limitations on the exercise of quasi-
legislative power
0. it must be w/in the limits of the powers
granted to Administrative agencies
1. cannot make rules or regulations which
are inconsistent with the provisions of the
Constitution or statute
2. cannot defeat, derogate the purpose of
the statute
3. may not amend, alter, modify, supplant.
Enlarge, or limit the terms of the statute
4. a rule or regulation must be in uniform in
operation, reasonable and not unfair or
discriminatory
Definition of “QUASI-JUDICIAL POWER”
It is the power of administrative authorities to
make determinations of facts in the performance
of their official duties and to apply the law as they
construe it to the facts so found. The exercise of
this power is only incidental to the main function
of administrative authorities, which is the
enforcement of the law.
Determinative Powers
1. ENABLING powers
Those that PERMIT the doing of an act which
the law undertakes to regulate and would be
unlawful without government approval.
Ex. Issuance of licenses to engage in a
particular business
2. DIRECTING powers
Those that involve the corrective powers of
public utility commissions, powers of
assessment under the revenue laws,
reparations under public utility laws, and
awards under workmen’s compensation laws,
and powers of abstract determination such as
definition-valuation, classification and fact
finding
3. DISPENSING powers
Exemplified by the authority to exempt from
or relax a general prohibition, or authority to
relieve from an affirmative duty. Its difference
 from licensing power is that dispensing power
sanctions a deviation from a standard.
4. SUMMARY powers
Those that apply compulsion or force against
person or property to effectuate a legal
purpose without a judicial warrant authorizing
such action; usually without notice and
hearing.
Ex. Abatement of nuisance, summary
restraint, levy of property of delinquent
taxpayers
5. EQUITABLE powers
Those that pertain to the power to determine
the law upon a particular state of facts. It
refers to the right to, and must, consider and
make proper application of the rules of equity.
Ex. Power to appoint a receiver, power to
issue injunctions
Definition of “INVESTIGATORY POWER”
The power to inspect, secure, or require the
disclosure of information by means of accounts,
records, reports, statements and testimony of
witnesses.
Administrative agencies do not have the inherent
power to require the attendance of witnesses but
has the power to require the production of books,
etc. The exertion if not expressly provided for by
law must be done thru judicial process.
Neither do they have the inherent power to punish
a person who fails to appear before them for
contempt in the absence of any statutory
provision granting the same.

Kinds of Administrative Regulations

DISTINCTIONS LEGISLATIVE INTERPRETATIVE

1. Capacity that Legislative Judicial

administrative agency is
acting in

2. What administrative It supplements the statute by It says what the statute

agency is doing filling in the details means

3. Force and effect Legislative regulations have Merely persuasive/ Received

the force and effect of law
immediately upon going into
effect. Such is accorded by
the courts or by express
provision of statute.
by the courts with much
respect but not accorded
with finality

Requisites of a Valid Administrative Need for Previous Notice and Hearing

Regulation
1. Its promulgation must be authorized by the 1. General Rule: Administrative rules of
legislature. GENERAL application do NOT require notice
2. It must be within the scope of the authority and hearing.
given by the legislature. 2. Exception: When the legislature itself
3. It must be promulgated in accordance with requires it and mandates that the regulation
prescribed procedure. shall be based on certain facts as determined
4. It must be reasonable at an appropriate investigation.
3. If the regulation is in effect a settlement of a
controversy between specific parties, it is
 considered an administrative adjudication,
requiring notice and hearing.
Prescribe of Rates
It can be either:
1. LEGISLATIVE
If the rules/rates are meant to apply to all
enterprises of a given kind throughout the
country, no prior notice and hearing is
required.
2. QUASI-JUDICIAL
If the rules and rates imposed apply
exclusively to a particular party, based upon a
finding of fact, prior notice and hearing is
required.
Requirement of Publication
Administrative Regulations that MUST be
published:
1. Administrative regulations of GENERAL
application.
2. Administrative regulations which are PENAL in
nature.
3. when the law specifically requires notice and
hearing Administrative regulations that do
NOT NEED to be PUBLISHED:
1. Interpretative regulations
2. Internal rules and regulations governing the
personnel of the administrative agency.
3. Letters of instruction issued by administrative
superiors concerning guidelines to be followed
by their subordinates. (Tanada v. Tuvera)
Special Requisites of a Valid Administrative
Regulation with a PENAL sanction
0. The law itself must make violation of the
administrative regulation punishable.
1. The law itself must impose and specify the
penalty for the violation of the regulation.
2. The regulation must be published.
Requisites for Proper Exercise of Quasi-
Judicial Power
1. Jurisdiction
2. Due process
Requirements of Procedural Due Process in
Administrative Proceedings
1. The right to a hearing, which includes the
right to present one’s case and submit
evidence in support thereof.
2. The tribunal must consider the evidence
presented.
3. The decision must have something to
support itself.
4. The evidence must be substantial.
5. The decision must be rendered on the
evidence presented at the hearing, or at
least contained in the record and disclosed
to the parties affected.
6. The tribunal or body or any of its judges
must act on its or his own independent
consideration of the law and facts of the
controversy and not simply accept the
views of a subordinate in arriving at a
decision.
7. The board or body should, in all
controversial questions, render its decision
in such a manner that the parties to the
proceeding can know the various issues
involved, and the reason for the decision
rendered.
NOTE: the rule requiring an admin officer to
exercise his own judgment and discretion does not
preclude him from utilizing the aid of his
subordinates in the hearing and reception of
evidence
When an admin agency acts as a collegiate body,
its power and duties cannot be exercised by the
members individually.
Exceptions to the Notice and Hearing
Requirement
0. Urgency of immediate action
1. Tentativeness of the administrative action
2. Right was previously offered but not claimed
3. Summary abatement of a nuisance per se
4. Preventive suspension of a public servant
facing administrative charges
5. Padlocking of filthy restaurants/theaters
showing obscene movies
6. Cancellation of a passport of a person sought
for criminal prosecution
7. Summary distraint and levy of properties of a
delinquent taxpayer
8. Replacement of a temporary or acting
appointee
Doctrine of ripeness for judicial review
1. This determines the point at which courts may
review admin action.
2. application:
a. when the interest of the plaintiff is
subjected to or imminently threatened
with substantial injury
 b. if the statute is self-executory
c. when a party is immediately confronted
with the problem of complying or violating
a statute and there is a risk of criminal
penalties
d. when plaintiff is harmed by the vagueness
of the statute
Questions Reviewable on Judicial Review:
1. Questions of FACT
The general rule is that courts will not disturb the
findings of administrative agencies acting within
the parameters of their own competence so long
as such findings are supported by substantial
evidence. By reason of their special knowledge,
expertise, and experience, the courts ordinarily
accord respect if not finality to factual findings of
administrative tribunals.
2. Question of LAW
Administrative decision may be appealed to the
courts independently of legislative permission.
It may be appealed even against legislative
prohibition because the judiciary cannot be
deprived of its inherent power to review all
decisions on questions of law.
Enforcement of admin determinations/
decisions
0. in accordance with the manner prescribed by
the statute
1. if there is no provision, resort to the court is
necessary for enforcement.
Doctrine of Finality
Courts are reluctant to interfere with an action of
an administrative agency prior to its completion of
finality, the reason being that absent a final order
or decision, power has not been fully and finally
exercised, and there can usually be no irreparable
harm.
EXCEPTIONS: Interlocutory order affecting the
merits of a controversy; Preserve status quo
pending further action by the administrative
agency; Essential to the protection of the rights
asserted from the injury threatened; Officer
assumes to act in violation of the Constitution and
other laws; Order not reviewable in any other
way; Order made in excess of power
Doctrine of Primary Jurisdiction
1. This doctrine states that courts cannot or will
not determine a controversy which requires
the expertise, specialized skills and knowledge
of the proper administrative bodies because
technical matters of intricate questions of fact
are involved.
2. Relief must first be obtained in an
administrative proceeding before a remedy
will be supplied by the court even though the
matter is within the proper jurisdiction of a
court.
Doctrino of Prior Resort
When a claim originally cognizable in the courts
involves issues which, under a regulatory scheme
are within the special competence of an
administrative agency, judicial proceedings will be
suspended pending the referral of these issues to
the administrative body for its view.
NOTE: The doctrines of primary jurisdiction and
prior resort have been considered to be
interchangeable.
Doctrine of Exhaustion of Administrative
Remedies
 Under this doctrine, an administrative
decision must first be appealed to the
administrative superiors up to the
highest level before it may be elevated
to a court of justice for review.
NOTE: the premature invocation of a court’s
intervention if fatal to one’s cause of action
 Reasons:
1. to enable the administrative superiors to
correct the errors committed by their
subordinates.
2. courts should refrain from disturbing the
findings of administrative, bodies in deference
to the doctrine of separation of powers.
3. courts should not be saddled with the review
of administrative cases
4. judicial review of administrative cases is
usually effected through special civil actions
which are available only if there is no other
plain, speedy and adequate remedy
 Exceptions
1. when the question raised is purely legal,
involves constitutional questions
2. when the administrative body is in estoppel
3. when act complained of is patently illegal
4. when there is urgent need for judicial
intervention
5. when claim involved is small
6. when irreparable damage is involved
7. when there is no other plain, speedy,
adequate remedy
8. when strong public interest is involved
9. when the subject of controversy is private
land
10. in quo warranto proceedings
11. when the administrative remedy is
permissive, concurrent
12. utter disregard of due process
13. long continued and unreasonable delay
14. amount involved is relatively small
15. when no administrative review is provided
16. respondent is a department secretary
(DOCTRINE OF QUALIFIED POLITICAL
AGENCY – ALTER EGO DOCTRINE)
Substantial evidence – defined to mean not
necessarily preponderant proof as required in
ordinary civil cases but such kind of relevant
evidence which a reasonable mind might accept
as adequate to support a conclusion.
ADMINISTRATIVE PROCEEDINGS;  DUE
PROCESS.
On the due process issue, we agree with the
COMELEC that PGBI’s right to due process was not
violated for PGBI was given an opportunity to
seek, as it did seek, a reconsideration of
Resolution No. 8679.  The essence of due process,
we have consistently held, is simply the
opportunity to be heard; as applied to
administrative proceedings, due process is the
opportunity to explain one’s side or the
opportunity to seek a reconsideration of the action
or ruling complained of.  A formal or trial-type
hearing is not at all times and in all instances
essential.  The requirement is satisfied where the
parties are afforded fair and reasonable
opportunity to explain their side of the
controversy at hand. What is frowned upon is
absolute lack of notice and hearing x  x  x.  We
find it obvious under the attendant circumstances
that PGBI was not denied due process.  In any
case, given the result of this Resolution, PGBI has
no longer any cause for complaint on due process
grounds.   Philippine Guardians Brotherhood, Inc.
(PGBI), etc. vs. Commission on Elections,  G.R.
No. 190529. April 29, 2010
PROCEDURAL DUE PROCESS;
REQUIREMENTS.  
The Ang Tibay formulation was overlapping and
repetitious. Hence, in Air Manila, Inc. v. Balatbat,
the formulation was simplified into four basic
rights, as follows:
1.     The right to notice, be it actual or
constructive, of the institution of the proceedings
that may affect a person’s legal right;
2.     The right to a reasonable opportunity to
appear and defend his rights and to introduce
witnesses and relevant evidence in his favor;
3.     The right to a tribunal so constituted as to
give him reasonable assurance of honesty and
impartiality, and one of competent
jurisdiction;  and
4.     The right to a finding or decision of that
tribunal supported by substantial evidence
presented at the hearing or at least ascertained in
the records or disclosed to the parties.
Gauged upon the foregoing guidelines, Tolentino’s
gripe was unwarranted. He was not denied
procedural due process. The Division had required
him to provide the names of his revisors whose
tasks included the raising of objections, the
claiming votes for him, or the contesting of the
votes in favor of his opponent.  He has neither
alleged being deprived of this opportunity, nor
indicated any situation in which his revisors were
denied access to the revision proceedings. He
could not also insist that the COMELEC did not
consider his legal and factual arguments; besides,
he could still raise them in his memorandum
should he chose to. During the revision stage, he
should raise all objections, present his evidence
and witnesses, and file his memorandum before
the case would be submitted for
resolution.   Mayor Abraham N. Tolentino vs.
Commission on Elections, et al./Vice-Mayor Celso
P. De Castro vs. Commission on Elections, et
al., G.R. Nos. 187958, G.R. No. 187961 &
187962/G.R. No. 187966, G.R. No. 187967 &
187968. April 7, 2010.
REORGANIZATION;  GOOD FAITH.  
The  presidential power to reorganize agencies
and offices in the executive branch of government
is subject to the condition that such
reorganization is carried out in good faith.
If the reorganization is done in good faith, the
abolition of positions, which results in loss of
security of tenure of affected government
employees, would be valid.  In Buklod ng
Kawaning EIIB v. Zamora, we even observed that
there was no such thing as an absolute right to
hold office.  Except those who hold constitutional
offices, which provide for special immunity as
regards salary and tenure, no one can be said to 1. Territory
have any vested right to an office or salary.  Atty. 2. Population
Sylvia Banda, et al. vs.. Eduardo R. Ermita etc., et 3. Charter
al. G.R. No. 166620, April 20, 2010.

Requisites of a De Facto Municipal

LAW ON PUBLIC CORPORATION
Definition of PUBLIC CORPORATION
It is formed or organized for the government of a
portion of the State. (Corporation Code)
Elements of a municipal corporation
0. A legal creation or incorporation
1. A corporate name by which the artificial
personality or legal entity is known and in
which all corporate acts are done
2. Inhabitants constituting the population who
are invested with the political and corporate
powers which are executed through duly
constituted officers and agents
3. A place of territory within which the local civil
government and corporate functions are
exercised.
Dual nature of municipal corporations
0. Governmental
a. The municipal corporation acts as an
agent of the State for the government of
the territory and the inhabitants within the
municipal limits
b. It exercises by delegation a part of the
sovereignty of the State
1. Private/proprietary
a. It acts in a similar category as a business
corporation, performing functions not
strictly governmental or political
b. Those exercised for the special benefit and
advantage of the community.
NOTE: Local Government Code §15. Every LGU
created or recognized under this Code is a body
politic and corporate endowed with powers to be
exercised by it in conformity with law. As such, it
shall exercise powers as a POLITICAL
SUBDIVISION of the national government and as
a CORPORATE ENTITY representing the
inhabitants of its territory.
Requisites for the Incorporation of a
Municipal Corporation
CODE: Te Po C
Corporation
1. A valid law authorizing incorporation
2. An attempt in good faith to organize under it
3. A colorable compliance with the law
4. An assumption of corporate powers
An attack on Legal Existence
A quo warranto proceeding brought by the State
is the proper remedy. It should be commenced
within 5 years from the time the act complained
of was committed.
Creation of Local Government Units (LGUs)
 Authority to Create LGUs (§ 6, LGC)
1. 1. By law enacted by Congress
Province
City
Municipality
Any other political subdivision (A
barangay may also be created by
law. See §386)
2. By ordinance passed by Sangguniang
Panlalawigan/Panlungsod
For barangay located within its
territorial jurisdiction
 Indicators for creation/conversion
a. Income
b. Population
c. Land Area
 Plebiscite Requirement
It applies to the creation, division, merger,
abolition or substantial alteration of boundaries of
LGU.
Creation etc. should be approved by a majority of
the votes cast in a plebiscite called for the
purpose in the political unit or units directly
affected.
Beginning of Corporate Existence (§14, LGC)
Corporate existence commences upon the election
and qualification of its chief executive and a
majority of members of the Sanggunian unless
some other time is fixed by the law or ordinance
creating it.
Local Autonomy
Local autonomy can be considered a measure of
decentralization of the functions of government.
Under the principle of local autonomy and
decentralization, LGUs have more powers,
authority, responsibilities and resources.
Decentralization
It is the devolution of national administration, not
power, to the local levels, in which local official
remain accountable to the central government in
the manner the law may provide.
Levels of Decentralization
1. Administrative Autonomy
a. The central government delegates
administrative powers to the political
subdivisions.
b. Purposes
1. To broaden the local power base
2. To make the units more responsive
and accountable
3. To ensure the full development of
LGUs into self-reliant communities
4. To break the monopoly of the national
government over managing local
affairs
5. To relieve the national government
from the burden of managing local
affairs
2. Political Autonomy
a. Involves the abdication of political power
in favor of LGUs declared to be
autonomous
b. It would amount to self-immolation
because the autonomous government
would become accountable to its
constituency, not to the central
government.
Devolution
It refers to the act by which the national
government confers power and authority upon the
various LGUs to perform specific functions and
responsibilities. (§17, LGC). It is considered
mandatory under the LGC.
Distinction between Supervision and Control
Supervision
 It means the overseeing or the power or
authority of an officer to see that the
subordinate officers perform their
duties.
 In relation to LGUS, the President only
has the power of supervision over LGUS.
Thus, he cannot interfere with the local
governments along as they act within
the scope of their authority.
 Under the LGC (§25), the President
exercises direct supervision over
provinces, highly urbanized cities and
independent component cities. He
exercises indirect supervision over
component cities and municipalities
through the provinces. He also exercises
indirect supervision over barangays
through the city or municipality
concerned.
Control
 It means the power of an officer to alter
or modify or nullify or set aside what a
subordinate officer has done in the
performance of his/her duties and to
substitute the judgment of the former
for that of the latter.
 In relation to LGUs, it is Congress which
exercises control over them.
Police Power
Police power is not inherent in municipal
corporations. Under the LGC, LGUs exercise police
power under the general welfare clause (See §
16)
Branches of the general welfare clause
1. One branch relates to such ordinances and
regulations as may be necessary to carry into
effect and discharge the powers and duties
conferred upon the municipal council by law.
2. The second branch is more independent of the
specific functions of the council. It authorizes
ordinances as are necessary and proper to
provide for the health and safety promote
prosperity, improve moral, peace, good order
etc.
Eminent Domain and Reclassification of Land
Requisites for Valid Exercise
[CODE: OPJO]
1. ORDINANCE authorizing the local chief
executive to subject a certain property to
expropriation
2. Expropriation should be for a PUBLIC
USE/PURPOSE or for the WELFARE of the
POOR/LANDLESS.
3. Payment of JUST COMPENSATION
4. Valid and definite OFFER TO PAY which was
NOT accepted.

Role of Supervising Local Government Unit
It can only declare the ordinance invalid on the
sole ground that it is beyond the power of the
lower LGU to issue. Hence, it cannot declare the
ordinance invalid on the ground that it is
unnecessary. (Monday v. CA, Feb. 20, 1997)
Role of National Government
The approval of the national government is not
required of local governments to exercise the
power of eminent domain.
Role of Judiciary
a. Can inquire into the legality of the
exercise of the right.
b. Can determine whether there was a
genuine necessity.
NOTE: Only cities and municipalities can reclassify
agricultural lands through the proper ordinance
after conducting public hearings for the purpose.
Grounds for Reclassification
1. When the land ceases to be economically
feasible and sound for agricultural purposes as
determined by the Department of Agriculture.
2. When the land shall have substantially greater
economic value for residential, commercial or
industrial purposes as determined by the
Sanggunian concerned.
Taxation
 Power to tax of LGUs is now pursuant to
direct authority conferred by the 1987
Constitution.
 Since LGUs have no inherent power to
tax, their power must yield to a
legislative act.
Legislative Power
1. Local chief executive (except for punong
barangay because he is already a member of
the Sangguniang barangay) has to approve
the ordinance enacted by the council.
2. Veto power of local chief executive. (§ 55)
a. Grounds
b. Ultra vires
c. Prejudicial to public welfare
d. Item veto
Appropriations ordinance
Ordinance/resolution adopting local
development plan and public investment
program
Ordinance directing the payment of
money or creating liability.
e. Veto communicated to sanggunian within
15 days for province and 10 days for city
or municipality.
Review by Higher/Supervising Council
 The higher council can declare the
ordinance/resolution invalid if it is
beyond the scope of the power
conferred upon the lower Sanggunian.
 For barangay ordinance, the higher
council can also rule that it is
inconsistent with law or city/municipal
ordinances.
Corporate Powers (§ 22) CODE: S C Re C O
1. To have continuous succession in its corporate
name
2. To sue and be used
3. To have and use a corporate seal
4. To acquire and convey real or personal
property
5. To enter into contracts
6. To exercise such other powers as are granted
to corporations, subject to limitations in
LGC/other laws.
Requisites of valid municipal contracts:
6. LGU has express, implied or inherent power to
enter into a particular contract;
7. Entered into by proper department, board,
committee, or agent;
8. must comply with substantive requirements;
9. must comply with formal requirements;
10. in case entered into by local chief executive
on behalf of LGU, prior authorization by
Sanggunian concerned is needed
Municipal Liability
Rule: Local Government units and their officials
are not exempt from liability for death or injury to
persons or damage to property (Sec 24 R.A.
7160)
Doctrine of Implied Municipal Liability
A municipality may become obligated upon an
implied contract to pay the reasonable value of
the benefits accepted or appropriated by it as to
which it has the general power to contract; the
doctrine applies to all cases where money or other
property of a party is received under such
circumstances that the general law, independent
or an express contract, implies an obligation to do
justice with respect to the same (Nachura,
Reviewer in Political Law, p. 499)
Qualifications of Elective Local Officials (§
39)
5. Filipino citizen
6. Registered voter in the barangay,
municipality, city or province where he intends
to be elected/Registered voter in the district
where he intends to be elected in case of a
member of the Sangguniang panlalawigan,
Sangguniang panlungsod or Sangguniang
bayan.
7. Resident therein for at least 1 year
immediately preceding the day of the election.
8. Able to read and write Filipino/ any other local
language or dialect
imprisonment within 2 years after serving
sentence
9. Those removed from office as a result of an
administrative case.
10. Those convicted by final judgment for
violating the oath or allegiance to the Republic
11. Those with dual citizenship
12. Fugitives from justice in criminal or non-
political cases here or abroad
13. Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code
14. The insane of feeble minded
Term of Office
 Term of office: 3 years
 No local elective officer shall serve for
more than 3 consecutive terms in the
same position
 Voluntary renunciation of the office for
any length of time shall be considered
an interruption in the continuity of
service for the full term for which the
elective official concerned was elected.

Vacancies
Permanent vacancy
Age requirement e. Grounds
POSITION AGE REQUIREMENT 8. Elective local official fills a higher
Governor, Vice At least 23 years old on vacant office
Governor, Mayor, Vice election day 9. Refuses to assume office
Mayor, member of 10. Fails to qualify
Sangguniang 11. Dies
Panlungsod in highly 12. Removed from office
urbanized cities 13. Voluntarily resigns
Mayor, Vice Mayor of At least 21 years old 14. Permanently incapacitated to
independent discharge the functions of his office
component cities or f. Filling of vacancy
municipalities 3. Automatic succession
Member of At least 18 years old
Sangguniang
Panglungsod, Member VACANCY SUCCESSOR
of Sangguniang 4. In the office of the Vice-Governor, Vice-
Bayan, Punong governor, mayor Mayor
Barangay, Member of 5. In the office of the Highest ranking
Sangguniang governor, vice- Sanggunian member
Barangay governor, mayor or
vice-mayor
6. In the office of the Second highest ranking
Disqualifications for Local Elective Officials Sanggunian member
(§ 40) highest ranking
8. Those sentenced by final judgment for an Sangguniang
offense involving moral turpitude, or for an member (who was
offense punishable by 1 year or more or supposed to fill the
vacant position of
governor etc.
 4. In the office of the Highest ranking Exception: He/she cannot exercise the
punong barangay sangguniang barangay power to appoint, suspend or dismiss
member/2nd highest employees. Exception to exception: If
ranking sanggunian the period of temporary incapacity
member exceeds 30 working days.

4. By appointment Termination of temporary incapacity

Upon submission to the appropriate
VACANCY APPOINTMENT BY Sanggunian of a written declaration by the local
WHOM chief that he has reported back to office
3. Sanggunian President, through If the temporary incapacity was due to
Executive Secretary legal reasons, the local chief executive should also
Panlalawigan or
submit necessary documents showing that the
Panlungsod of
legal cause no longer exist.
highly urbanized
cities and
independent  Appointment of OIC:
component cities The local chief executive can designate
4. Sangguniang Governor in writing an OIC if he is traveling within
Panlungsod of the country but outside his territorial
Component Cities, jurisdiction for a period not exceeding 3
Sangguniang consecutive days.
Bayan The OIC cannot exercise the power to
3. Sangguniang City/Municipal Mayor appoint, suspend or dismiss employees.
Barangay upon Recommendation  Omnibus Election Code (§ 67)
of the Sangunian Any elective official, whether national or
barangay concerned local, running for any office other than
the one which he is holding in a
permanent capacity, except for
President and Vice-President, shall be
considered ipso facto resigned from his
office upon filling of his certificate of
candidacy.
g. Ranking – it is determined on the basis of
proportion of votes obtained by each winning
candidate to the total number of registered Grounds for Disciplinary Actions (§ 60)
voters in each district in the immediately CODE: DCDCAUAS
preceding local election An elective local official may be disciplined,
h. The general rule is that the successor (by suspended or removed from office on any of the
appointment) should come from the same following grounds:
political party as the Sanggunian member 9. Disloyalty to the Republic of the Philippines
whose position has become vacant. The 10. Culpable violation of the Constitution
exception would be in the case of vacancy in 11. Dishonesty, oppression, misconduct in office,
the Sangguniang barangay. gross negligence, dereliction of duty
12. Commission of any offense involving moral
turpitude or an offense punishable by at least
Temporary Vacancy prison mayor
 Grounds (not exclusive list) 13. Abuse authority
4. Leave of absence 14. Unauthorized absence for 15 consecutive
5. Travel abroad working days, except in the case of members
6. Suspension from office of the Sanggunian panlalawigan, Sangguniang
 If the positions of governor, mayor or panlungsod, Sangguniang bayan,
punong barangay become temporarily Sangguniang barangay.
vacant, the vice-governor, vice-mayor 15. Application for acquisition of foreign
or highest ranking Sanggunian member citizenship or residence or the status of an
will automatically exercise the powers immigrant of another country.
and perform the duties and functions of 16. Such other ground as may be provided by the
the local chief executive concerned. Code/other laws.
Preventive Suspension (§ 63)
4. When can it be imposed Two modes of initiating a recall:
d. After the issues are joined 3. adoption of a resolution by the Preparatory
e. When the evidence of guilt is strong Recall Assembly (composed of local officials of
f. Given the gravity of the offense, there is the lower/supervised local government unit)
great probability that the continuance in 4. petition by at least 25% of the registered
office of the respondent could influence voters.
the witnesses or pose a threat to the GROUND = Loss of confidence
safety and integrity of the records and
other evidence
5. Who can impose preventive suspension
Process of Initiating Recall
IMPOSED BY: RESPONDENT LOCAL a. By Preparatory Recall Assembly (PRA)
OFFICIAL (1). Composition of PRA
1. President Elective official of a
province, highly
urbanized IMPOSED BY: RESPONDENT LOCAL
or independent OFFICIAL
component city 1. President Elective official of a province,
2. Governor Elective official of a highly urbanized or
component city or independent component city
municipality 2. Governor Elective official of a
3. Mayor Elective official of a component city or municipality
barangay 3. Mayor Elective official of a barangay
LEVEL COMPOSITION
6. Duration of preventive suspension 1. Provincial Mayors, vice-mayors,
c. Single preventive suspension should not Sanggunian members of the
exceed 60 days. municipalities and component
d. If several administrative cases are filed cities
against an elective official, he cannot be 2. City Punong barangay and
preventively suspended for more than 90 Sangguniang barangay
days within a single year on the same members in the city
ground/s existing and known at the time 3. Legislative Elective municipal/barangay
of the first suspension. District officials
4. Municipal Punong barangay and
Suspension sangguniang barangay
 It should not exceed the unexpired term members in the municipality
of the respondent or a period of 6
months for every administrative offense.
 Penalty is NOT a bar to the candidacy of (2). Procedure
the respondent suspended as long as he Session in a public place to initiate recall
meets the qualifications for the office. proceeding
Resolution adopted by a majority of all the
members of the PRA during the session called for
Removal as result of Administrative the purpose of initiating recall proceedings
Investigation
It serves as a BAR to the candidacy of the
respondent for any elective position. b. By Petition of Registered Voters
6. Petition of at least 25% of the total number of
registered voters in the LGU concerned during
the election in which the local official sought
RECALL (§§ 69-75) to be recalled was elected.
Recall is the power of the electorate (registered 7. The written petition for recall should be dully
voters) to remove a local elected official for loss of signed before the election registrar or his
confidence through the holding of a special/recall representative and in the presence of the
election. representatives of the petitioner and the
official sought to be recalled.
8. It should be signed in a public place
9. Petition should be filed with COMELEC through
its office in the LGU concerned
10. Publication of petition for 10-20 days in order
to verify the authenticity and genuineness of
the petition and the required % of voters.
Conduct of Recall Election
The official/s sought to be recalled are
automatically considered as duly registered
candidates.
The date set for the recall election should not be
less than 30 days after filing of resolution/petition
in the case of barangay, city or municipal officials
and 45 days in the case or provincial officials
Effectivity of Recall
Recall with only be effective upon the election and
proclamation of a successor.
If the official sought to be recalled receives the
highest number of votes, confidence in him is
affirmed and he shall continue in office.
Limitations on Recall
Elective local official can be the subject of a recall
election only once during his term of office
No recall shall take place within 1 year from the
date of the official’s assumption to office or 1 year
immediately preceding a regular local election.
LOCAL INITIATIVE (§§ 120-125)
It is the legal process whereby the registered
voters of a LGU may directly propose, enact or
armed any ordinance
NOTE: IN Garcia v. Comelec, the SC ruled that a
resolution can also be the proper subject of an
initiative
Who May Exercise Power
It may be exercised by all registered voters of the
provinces, cities, municipalities, barangays.
Procedure
1. Number of voters who should file petition with
Sanggunian concerned
a. Provinces and cities - at least 1000
registered voters
b. Municipality - at least 100
c. Barangay - at least 50
2. Sanggunian concerned has 30 days to act on
the petition. If the Sanggunian does not take
any favorable action, the proponents may
invoke the power of initiative, giving notice to
Sanggunian.
3. Proponents will have the following number of
days to collect required number of signatures
a. Provinces and cities - 90 days
b. Municipalities - 60 days
c. Barangays - 30 days
4. Signing of petition
5. Date for initiative set by COMELEC if required
number of signatures has been obtained.
Effectivity of Proposition
If proposition is approved by majority of the votes
cast, it will take effect 15 days after certification
by the COMELEC as if the Sanggunian and the
local chief executive had taken affirmative action.
If it fails to obtain required number of votes, it is
considered defeated
Limitations
1. It should not be exercised more than once a
year.
2. It can only extend to subjects or matters
which are within the legal powers of the
Sanggunians to enact.
3. If the Sanggunian adopts in toto the
proposition presented and the local chief
executive approves the same, the initiative
shall be cancelled.
Limitations upon Sanggunians
1. The Sanggunian cannot repeal, modify or
amend any proposition or ordinance approved
through system of initiative/referendum within
6 months from the date of approval thereof.
2. The Sanggunian can amend, modify or repeal
the proposition/ordinance w/in 3 years
thereafter by a vote of ¾ of all its members.
3. For baranggays, the applicable period is 18
months.
REFERENDUM (§§ 126-127)
It is the legal process whereby the registered
voters of the local government units may approve,
amend or reject any ordinance enacted by the
Sanggunian.
Authority of Courts
The proper courts can still declare void any
proposition adopted pursuant to an
initiative/referendum on the following grounds

a. Violation of the Constitution
b. Want of capacity of the Sanggunian concerned
to enact the measure.
LAW ON PUBLIC OFFICERS
PUBLIC OFFICE is the right, authority, and duty
created by conferred by law, by which for a given
period, either fixed by law or enduring at the
pleasure of the appointing power, an individual is
invested with some portion of the sovereign
functions of the government, to be exercised by
him for the benefit of the public.
Unlike private offices which are held largely on the
dictates of market forces, public offices are public
trust. Public officers are tasked to serve the public
interest, thus the excessive burden for their
retention in the form of numerous prohibitions.
The liberal evidentiary standard of substantial
evidence and the freedom of administrative
proceedings from technical niceties effectuate the
fiduciary nature of public office: they are
procedural mechanisms assuring ease in
maintaining an efficient bureaucracy, free of rent-
seeking officials who exploit government
processes to raise easy money. Respondent’s hold
on his item at the Mandaue City revenue office,
which, like our customs offices, is a common situs
for corrupt activities, is no more lasting than his
fidelity to his trust.  Although no criminal verdict
deprives respondent of his liberty, adequate
evidence justifies his removal from the
bureaucracy for forfeiting the public trust.  Hon.
Primo C. Miro, etc. vs. Reynaldo M. Dosono, G.R.
No. 170697, April 30, 2010.
Essential elements
1. Created by Constitution or by law or by some
body or agency which the power to create the
office has been delegated (enabling law)
2. Invested with authority to exercise some
portion of the sovereign power of the State
3. Powers/Functions defined by the Constitution,
law, or through legislative authority
4. Duties are performed independently without
control unless those of a subordinate
5. Continuing / permanent in nature
Distinctions
Public Official is an officer of the Government
itself, as distinguished from the officers and
employees of instrumentalities of government.
Officer is dignity from an employee in the greater
importance, dignity and independence of his
position, being required to take an official oath,
and perhaps give an official bond and in the
liability to be called to account as a public
offender for misfeasance or nonfeasance in office.
REQUIREMENTS FOR PUBLIC OFFICE
1. Eligibility and Qualification
Eligibility is the state or quality of being legally fit
or qualified to be chosen. Qualification refers to
the act which a person, before entering upon the
performance of his duties, is by law required to do
such as the taking, and often, subscribing and
filling of an official oath, and, in some cases, the
giving of an official bond.
Who are required to give an official bond?
Accountable public officers or those to
whom are entrusted the collection and
custody of public money, and public
ministerial officers whose actions may
effect the rights and interests of
individuals.
2. Formal qualifications:
1. citizenship,
2. age,
3. suffrage,
4. residence,
5. education,
6. ability to read and write,
7. political affiliation,
8. civil service examination
3. Disqualifications
The following are grounds for disqualifications to
hold public office:
1. mental or physical incapacity,
2. misconduct or crime,
3. impeachment,
4. removal or suspension from office,
5. previous tenure of office,
6. consecutive terms,
7. holding more than one office,
8. relationship with the appointing power,
9. office newly created or the emoluments of
which have been increased,
10. being an elective official,
11. having been a candidate for any elective
position, and
12. grounds under the local government code.
  In the absence of constitutional
inhibition, Congress has the same right
to provide disqualifications that it has to
provide qualifications for office.
 When the constitution has attached a
disqualification to the holding of any
office, Congress cannot remove it under
power to prescribe qualifications as to
such offices as it may create.
 Presumption is in favor of eligibility.
 The qualifications are continuing
requirements and must be possessed
not only at the time of appointment or
election or assumption of office but
during the officer’s entire tenure.
Limitations on the power of the legislature to
prescribe qualifications:
1. The legislature may not reduce or increase
the qualifications prescribed in an
exclusive manner by the Constitution.
2. The legislature may prescribe only general
qualifications.
3. The qualifications must be relevant to the
office for which they are prescribed.
4. Selection for Public Office
A public officer is chosen either by appointment or
election.
A) Appointment
 Appointment is the act of designation by
the executive officer, board, or body to
whom that power has been delegated,
of the individual who is to exercise the
powers and functions of a given office.
It is to be distinguished from the
selection or designation by a popular
vote.
 Power to appoint is generally regarded
as an executive function. But it is not
limited to the executive department.
 Power of appointment is absolute when
the choice of the appointing authority is
conclusive. It is conditional where
assent or approval by some other officer
or body is necessary to complete the
appointment.
 Acceptance of appointment is not
necessary for the completion or validity
of appointment. However, acceptance is
necessary to possession of office, and to
enable appointee to the enjoyment and
responsibility of an office. Acceptance
may be express when it is done verbally
or in writing. Acceptance is implied
when without formal acceptance, the
appointee enters upon the exercise of
the duties and functions of an office.
 The general rule is than an appointment
to an office, once made and complete, is
not subject to reconsideration or
revocation. The exception is where an
officer is removable at will of the
appointing power.
Steps in the Appointing Process:
1. Nomination – exclusive prerogative of the
President
2. Confirmation – belongs to Congress i.e.
Commission on Appointments
3. Issuance of commission – a commission is a
written authority from a competent source
given to the officer as his warrant for the
exercise of the powers and duties of the office
to which he is commissioned.
Confirmation on the part of the Civil Service
Commission is called “Attestation”.
B) Designation
 Designation is simply the mere
imposition of new or additional duties
upon an officer to be performed by him
in a special manner. It presupposes that
the officer is already in the service by
virtue of an earlier appointment,
performing other functions.
5. Vacancy
 There is a vacancy when an office is
empty and without a legally qualified
incumbent appointed or elected to it
with a lawful right to exercise its powers
and perform its duties. There can be no
appointment to a non-vacant position.
 Causes of vacancy are death,
permanent disability, removal from
office or resignation of the incumbent,
expiration of term, conviction of a
crime, impeachment conviction,
acceptance of incompatible office,
creation of a new office, reaching the
age limit, and recall.
Petitioners urge this Court to expand the settled
doctrine of condonation to cover coterminous
appointive officials who were administratively
charged along with the reelected
official/appointing authority with infractions
allegedly committed during their preceding term.
The Court rejects petitioners’ thesis.
More than 60 years ago, the Court in Pascual v. Petitioners’ theory is not novel.
Hon. Provincial Board of Nueva Ecija issued the
landmark ruling that prohibits the disciplining of A parallel question was involved in Civil Service
an elective official for a wrongful act committed Commission v. Sojor where the Court found no
during his immediately preceding term of office.  basis to broaden the scope of the doctrine of
The Court explained that “[t]he underlying theory condonation.
is that each term is separate from other terms,
and that the reelection to office operates as a
Contrary to petitioners’ asseveration, the non-
condonation of the officer’s previous misconduct
application of the condonation doctrine
to the extent of cutting off the right to remove
to appointive officials does not violate the right to
him therefor.”
equal protection of the law.

The Court should never remove a public officer for

In the recent case of Quinto v. Commission on
acts done prior to his present term of office.  To
Elections, the Court applied the four-fold test in
do otherwise would be to deprive the people of
an equal protection challenge against the resign-
their right to elect their officers. When the people
to-run provision, wherein it discussed the material
elect[e]d a man to office, it must be assumed that
and substantive distinctions between elective and
they did this with knowledge of his life and
appointive officials that could well apply to the
character, and that they disregarded or forgave
doctrine of condonation.
his faults or misconduct, if he had been guilty of
any.  It is not for the court, by reason of such
faults or misconduct[,] to practically overrule the The electorate’s condonation of the previous
will of the people.  (underscoring supplied) administrative infractions of the reelected official
cannot be extended to that of the reappointed
coterminous employees, the underlying basis of
Lizares v. Hechanova, et al. replicated the
the rule being to uphold the will of the people
doctrine.  The Court dismissed the petition in that
expressed through the ballot.  In other words,
case for being moot, the therein petitioner “having
there is neither subversion of the sovereign will
been duly reelected, is no longer amenable to
nor disenfranchisement of the electorate to speak
administrative sanctions.”
of, in the case of reappointed coterminous
employees.
Ingco v. Sanchez, et al. clarified that the
condonation doctrine does not apply to a criminal
It is the will of the populace, not the whim of one
case.  Luciano v. The Provincial Governor, et al.,
person who happens to be the appointing
Olivarez v. Judge Villaluz, and Aguinaldo v.
authority, that could extinguish an administrative
Santos echoed the qualified rule that reelection of
liability.  Since petitioners hold appointive
a public official does not bar prosecution for
positions, they cannot claim the mandate of the
crimes committed by him prior thereto.
electorate.  The people cannot be charged with
the presumption of full knowledge of the life and
Consistently, the Court has reiterated the doctrine character of each and every probable appointee of
in a string of recent jurisprudence including two the elective official ahead of the latter’s actual
cases involving a Senator and a Member of the reelection.
House of Representatives.
Moreover, the unwarranted expansion of
Salalima v. Guingona, Jr. and Mayor Garcia v. the Pascual doctrine would set a dangerous
Hon. Mojica reinforced the doctrine.  The precedent as it would, as respondents posit,
condonation rule was applied even if the provide civil servants, particularly local
administrative complaint was not filed before the government employees, with blanket immunity
reelection of the public official, and even if the from administrative liability that would spawn and
alleged misconduct occurred four days before the breed abuse in the bureaucracy.  Atty. Vicente E.
elections, respectively.  Salalima did not Salumbides, Jr., et al. vs. Office of the
distinguish as to the date of filing of the Ombudsman, et al., G.R. No. 180917, April 23,
administrative complaint, as long as the alleged 2010.
misconduct was committed during the prior term,
the precise timing or period of which Garcia did
not further distinguish, as long as the wrongdoing
that gave rise to the public official’s culpability
was committed prior to the date of reelection.
DE FACTO AND DE JURE OFFICERS

1. De Facto Officers
A de facto officer is one who actually possesses an
office although he has an imperfect or colorable
title thereto. His acts, though not those of a lawful
officer, the law, upon principles of policy and
justice, will hold valid so far as they involve the
interests of the public and third persons.
The requisites of de facto officership are:
a. There must be a de jure office;
b. There must be color of right or general
acquiescence by the public; and
c. There must be actual physical
possession of the office in good faith.
2. De Jure Officers
A de jure officer is one who has the lawful right to
the office in all respects, but who has either been
ousted from it, or who has never actually taken
possession of it. When the officer de jure is also
the officer de facto, the lawful title and possession
are united.
Usurper is one who takes possession of
the office and undertakes to act officially without
any color of right or authority, either actual or
apparent.
3. Effects of Acts of De Facto Officers
1. The lawful acts of an officer de facto, so
far as the rights of third persons are
concerned are, if done within the scope
and by the apparent authority of the
office, considered valid and binding as if
he were the officer legally elected and
qualified for the office and in full
possession thereof.
2. The de facto officer cannot benefit from
his own status because public policy
demands that unlawful assumption of
public office be discouraged. Thus, as a
general rule, the de facto officer cannot
claim a salary and other compensations
for services rendered by him as such.
However, there is authority to the effect
that the de facto officer may retain
salaries collected by him for services
rendered in good faith where there is no
de jure officer claiming the office.
3. The de facto officer is subject to the
same liabilities imposed on the de jure
officer in the discharge of official duties,
in addition to whatever special damages
may be due from him because of his
unlawful assumption of office.
4. How to challenge a de facto officer:
The incumbency of a de facto officer may not be
challenged collaterally or in action to which he is
not a party. The challenge must be made in a
direct proceeding where title to the office will be
the principal issue. The authorized proceeding is
quo warranto either by the Solicitor General in the
name of the Republic or by any person claiming
title to the office.
THE CIVIL SERVICE
1. Scope of the Civil Service
The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of
the Government, including government-owned or
controlled corporations with original charters. The
civil service does not include government-owned
or controlled corporations which are organized as
subsidiaries of government-owned or controlled
corporations under the general corporation law.
2. Positions in the Civil Service
Positions in the Civil Service are classified into:
1. career service
2. non-career service
Career Service
The Career Service is characterized by:
1. entrance based on merit and fitness to
be determined, as far as practicable, by
competitive examinations, or based on
highly technical qualifications;
2. opportunity for advancement to higher
career positions; and
3. security of tenure
The Career Service includes:
1. Open career positions for which prior
qualification in an appropriate examination
is required;
2. Closed career positions which are
scientific or highly technical in nature;
3. Positions in the Career Executive
Service – Undersecretary, Asst.
Secretary, Bureau Director, Asst. Bureau
Director, Regional Director, Asst. Regional
Director, Chief of Dept. Service, and other
officers of equivalent rank as may be
identified by the Career Executive Service
Board, all of whom are appointed by the
President;
 4. Career officers, other than those in
the Career Executive Service, who are
appointed by the President, such as the
Foreign Service Officers in the DFA;
5. Commissioned officers and enlisted
men in the Armed Forces, which shall
maintain a separate merit system;
6. Personnel of GOCCs, whether
performing governmental or proprietary
functions, who do not fall under the non-
career service; and
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled.
Non-Career Service
The Non-Career Service is characterized by:
1. Entrance on bases other than those of
usual tests of merit and fitness utilized for
the career service; and
2. Tenure which is limited to a period
specified by law, or which is co-terminous
with that of the appointing authority or
subject to his pleasure, or which is limited
to the duration of a particular project for
which purpose employment was made.
The Non-Career Service includes:
1. Elective officials and their personal or
confidential staff;
2. Department Heads and other officials of
Cabinet rank who holds the positions at
the pleasure of the President and their
personal or confidential staff;
3. Chairman and members of
commissions and boards with fixed
terms of office and their personal or
confidential staff;
4. Contractual personnel or those whose
employment in the government is in
accordance with a special contract to
undertake a specific work or job, requiring
special or technical skills not available in
the employing agency, to be accomplished
within a specific period, which in no case
shall exceed one year, and performs or
accomplishes the specific work or job,
under his own responsibility with
minimum of direction and supervision
from the hiring agency; and
5. Emergency and seasonal personnel.
3. Appointments
Appointments in the Civil Service may either be
permanent or temporary;
1. Permanent – issued to a person who meets
all the requirements for the position to which
he is being appointed, including the
appropriate eligibility prescribed, in
accordance with the provisions of the laws,
rules, and standards promulgated in
pursuance thereof.
2. Temporary – issued in the absence of
appropriate eligible when necessary in the
public interest to fill a vacancy to a person
who meets all the requirements for the
position to which he is being appointed,
except the appropriate civil service eligibility.
Temporary appointments shall not exceed 12
months, but the appointee may be replaced
sooner if a qualified civil service eligible
becomes available.
NOTE: Where a temporary appointee acquires
civil service eligibility during his tenure as
such, his temporary appointment does not
thereby automatically become permanent.
What is required is a new appointment.
(Maturan v. Magalona)
Provincial Appointment – one which may
be issued, upon the prior authorization of the
Commissioner of the Civil Service Commission
in accordance with the provisions of the Civil
Service Law and the rules and standards
promulgated thereunder, to a person who has
not qualified in an appropriate examination
but who has not regular position in the
requirements for appointment to a regular
position in the competitive service, whenever
a vacancy occurs and the filling thereof is
necessary in the interest of the service and
there is no appropriate register of eligibles at
the time of appointment.
Distinguished from a Temporary
appointment – temporary appointment given
to a non-civil service eligible is without a
definite tenure and is dependent upon the
pleasure of the appointing power.
4. Exception from Requirement of
Competitive Examinations
The following positions are excepted from the
requirement of competitive examinations:
1. policy determining – charged with
laying down of principal and
fundamental guidelines or rules, such
as that of a head of a department.
2. primarily confidential – denotes
close intimacy which ensures freedom
of intercourse without embarrassment
or freedom from misgivings or
betrayals of personal trust or
confidential matters of state; or one
declared to be so by the President
upon recommendation of the Civil
Service Commission. Their tenure
ends upon loss of confidence.
 3. highly technical – requires in the
appointee to possess technical skill or
training in the supreme or superior
degree.
5. Promotion
The movement from one position to another with
increase in duties and responsibilities as
authorized by law and usually accompanied by an
increase in pay.
Next-in-Rank Rule – The person next in rank shall
be given preference in promotion when the
position immediately above his vacated. However,
the concept of next-in-rank does not import any
mandatory or peremptory requirement that the
person next in rank must be appointed to the
vacancy. The appointing authority has the
discretion to fill the vacancy under the next-in-
rank rule or by any other method authorized by
law, e.g., by transfer.
6. Discipline
Grounds for the discipline of members of the
Civil Service:
1. dishonesty
2. oppression
3. neglect of duty
4. misconduct
5. disgraceful and immoral conduct
6. being notoriously undesirable
7. discourtesy in the course of official
duties
8. inefficiency and incompetence in the
performance of official duties
9. conviction of a crime involving moral
turpitude
10. falsification of official documents
11. habitual drunkenness
12. gambling
13. refusal to perform official duty or
render overtime service
14. physical or mental incapacity due to
immoral or vicious habits
15. willful refusal to pay just debts or
willful failure to pay taxes due to the
government
Preventive Suspension
Two Kinds
1. Preventive Suspension Pending Investigation
2. Preventive Suspension Pending Appeal
The duration of preventive suspension is
coextensive with the period prescribed for
deciding administrative disciplinary cases. If
the case is decided before ninety (90) days
then the suspension will last less than ninety
(90) days, but if the case is not decided with
ninety (90) days, then the suspension may
not exceed the maximum period of ninety
(90) days.
SCOPE OF POWER OF A PUBLIC OFFICER
Scope of power of a public officer consists of those
powers which are:
1. expressly conferred upon him by the
law under which he has been
appointed or elected;
2. expressly annexed to the office by the
law which created it or some other law
referring to it; or
3. attached to the office as incidents to
it.
Doctrine of Necessary Implication:
The fact that a particular power has not been
expressly conferred does not necessarily mean
that it is not possessed by the official claiming it.
Such a power may still be sustained under the
doctrine of necessary implication pursuant to
which all powers necessary to the exercise of the
power expressly granted are deemed impliedly
granted.
Kinds of Duties/Powers:
1. Ministerial – when it is absolute,
certain, and imperative involving
merely execution of a specific duty
arising from fixed and designated
facts. A duty is ministerial when the
law exacting its discharge prescribes
and defines the time, mode and
occasion of its performance with such
certainty that nothing is left for
judgment or discretion.
It is susceptible of delegation and can
be compelled by judicial action.
2. Discretionary – when it requires the
exercise of reason and discretion in
determining how or whether the act
shall be done or the course pursued.
The officer is expected to discharge
the duty directly and not through the
interviewing mind of another.
It cannot be delegated to another,
subject to some exceptions (power of
the President to conclude treaties may
be assigned to a treaty panel, which
can negotiate the treaty on his behalf,
under his instructions and subject to
his approval).

MODES OF TERMINATION OF OFFICIAL
RELATIONS
Natural Causes
1. Expiration of the term or tenure of office
2. Reaching the age limit (retirement)
3. Death or permanent disability
Acts / Neglect of Officer
1. Resignation
2. Acceptance of an incompatible office
3. Abandonment of Office
4. Prescription of Right to Office
Acts of the Government or People
1. Removal
2. Impeachment
3. Abolition of Office
4. Conviction of a crime
5. Recall
OTHER IMPORTANT CONCEPTS
1. HOLD-OVER – a public officer’s term has
expired or his services terminated but he
should continue holding his office until his
successor is appointed or chosen and had
qualified.
2. NEPOTISM – all appointments in the national
and local governments or any branch or
instrumentality thereof, including
government-owned or controlled corporations,
made in favor of a relative of the appointing
authority; recommending authority; chief of
the bureau or office; or person exercising
immediate supervision over the appointee are
PROHIBITED.
Exceptions to the nepotism rule:
1. person employed in a confidential capacity
2. teachers
3. physicians
4. member of the AFP.
3. COMPENSATION IS NOT INDIPENSABLE
TO A PUBLIC OFFICE.
4. DIVESTMENT is when a public official is in a
conflict-of-interest situation. Such official
must resign from his position in any private
business enterprise within 30 days from his
assumption of office and/or divest himself of
his shareholdings or interest within 60 days
from such assumption.
5. OFFICIAL IMMUNITY only protects public
officials from tort liability for damages arising
from discretionary of their official duties.
ELECTION LAW
INTRODUCTION (GENERAL PROVISIONS)
Definition of ELECTION
Embodiment of the popular will, the expression of
the sovereign power of the people.
Components:
 Choice or selection of candidates to
public office by popular vote
 Conduct of the polls
 Listing of votes
 Holding of Electoral campaign
 Act of casting and receiving the ballots
from the voters
 Counting the ballots
 Making the election returns
 Proclaiming the winning candidates
REGULAR ELECTION – an election participated
in by those who possess the right of suffrage and
not disqualified by law and who are registered
voters
SPECIAL ELECTION – one which is held when
there is failure of election on the scheduled date
of regular election in a particular place or which is
conducted to fill up certain vacancies, as provided
by law (ex. To fill in vacancy in office before the
expiration of the term for which incumbent was
elected)
ELECTION PERIOD - shall commence 90 days
before the day of the election and shall end 30
days thereafter.
Postponement of Election (Sec. 6 Omnibus
Election Code)
Pre-Conditions for declaring a failure of
election:
1. That no voting has been held in any precinct
or precincts because of the following grounds:
CODE: OFF_TV
 Force majeure
 Violence
 Terrorism
 Fraud
 Other analogous causes
Under RA 7166, the causes for the declaration of
the failure of election may occur before of after
the casting of votes or on the day of the election.
2. And, that the votes not cast therein are
sufficient to affect the results of the elections.
Effects of the above grounds:
A. Election in any polling place was not held
on the date fixed;
B. Election was suspended before the hour
fixed by law for the closing of the voting
C. Elections results in a failure to elect (after
the voting and during the preparation and
transmission of the election returns or in
the custody or canvass thereof)
Remedy:
COMELEC can, on the basis of a verified petition
by any interested party, and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended, or which resulted in
a failure to elect. This is decided by the COMELEC,
by a majority vote of its members, sitting en
banc.
Holding of the Special Election:
Requisites for holding special elections:
1. There must be failure of election, and
2. Such failure would affect the results of the
election.
NOTE: In fixing the date of the special election,
the Comelec should see to it that:
1. It should not be later than 30 days after
the cessation of the cause of the
postponement or suspension of the
election or failure to elect; and
2. It should be reasonably close to the date
of the election not held, suspended, or
which resulted in failure to elect.
Political Parties
Definition (Omnibus Election Code) – An
organized group of persons pursuing the same
ideology, political ideas or performs of
government including its branches and divisions.
Types of Political Parties
1) Registered Parties:
a. Dominant Majority Party – usually the
administration party; entitled to a copy of
election return.
b. Dominant Minority Party – entitled to a
copy of election return
c. Majority Political Party
d. Top 3 Political Parties – entitled to appoint
principal watcher and a copy of the
certificate of canvass
e. Bottom 3 political parties – entitled to
appoint principal watcher
2) Non-registered parties
Criteria to Determine the Type of Political
Party
a. Established Record of the said parties,
showing in past elections
b. Number of Incumbent Elective Officials
c. Identifiable political organizations and
strengths
d. Ability to fill a complete slate of
candidates
e. Other analogous circumstances
Acquisition of Juridical Personality
It is acquired upon registration with the COMELEC.
NOTE: No religious sect shall be registered as a
political party.
No political party which seeks to achieve its goal
through violence shall be entitled to accreditation.
Forfeiture of Status as Registered Political
Party
The status shall be deemed forfeiture if the
political party, singly or in coalition with others,
fails to obtain at least 10% of the votes cast in
cast in the constituency in which it nominated and
supported a candidate/s in the election next
following its registration. There shall be notice and
hearing.
RA 7941 – Party-List System Act
A. Seeks to promote proportional
representation
B. Any party already registered need
not register anew. File manifestation
not later than 90 days before
election.
Grounds for refusing or canceling
registration of Party-Lists groups
a. Religious sect or denomination, organization
b. Advocates violence
c. Foreign party of organization
d. Receives foreign support
e. Violates election law
f. Untruthful statements in its petition
g. Ceased to exist for at least one year
h. Failed to participate in the last two preceding
elections or fails to obtain at least 2% of the
votes cast under the party-list system in the 2
preceding elections for the constituency in
which it has registered
Nomination of party-list reps should not include
any candidate for any elective office or a person
who has lost his bid for an elective office in the
immediately preceding election
Incumbent sectoral representatives in the House
of Representatives who are nominated in the
party-list system shall not be considered resigned
 No party shall be entitled to more than
3 seats
 Currently, there are 260 (208/0.80)
seats. So 20% of 260 us 52 seats. But
this is only a ceiling.
 A list with 5 names should be submitted
to COMELEC as to who will represent the
party in the Congress. Ranking in the
list submitted determines who shall
represent party or organization.
Q: May political parties participate in the
party-list elections?
A: Yes, provided that the political parties
themselves represent the marginalized and
under represented sectors, parties and
organizations. (Ang Bagong Bayani-OFW Labor
Party v. COMELEC, G.R. No. 147589 26 June
2001).

Party-list Reps constitute 20% of the total number

of the members of the House of Reps including
those under the party-list

Q: How do we determine the number of

party-list seats in the House of Reps?
(# of District Reps / o.80) x 0.20 = # of party list
reps
 There are presently 208 legislative
districts, according to the Veterans
Federation Case
 The 5 major political parties are now
entitled to participate in the party-list
system
 Parties receiving at least 2% of the total
votes cast for the party-list system shall
be entitled to one seat each

Eligibility of Candidates and Certificates of Candidacy

QUALIFICATIONS
Elective Citizenship Age Literacy Voter Presidency
officials

President/ Natural-born 40 Read and Registered 10 in the

VP Write Philippines
Senator Natural-born 35 Read and Registered 2 in the
Write Philippines
District Natural-born 25 Read and Registered in 1 in District
Reps Write District
Party-List Natural-born 25 (if youth sector: 25- Read and Registered 1 in
Reps 30) Write Philippines
 Local Citizen *Gov, Vice-Gov, Read and Registered in 1 in locality
officials member of sangguniang Write locality
panlalawigan, mayor, Filipino or
vice mayor, local dialect
sangguniang
panlungsod, in highly
urbanized cities: 23
*In component
cities/municipalities: 21
*Sangguniang
panlungsod,
sangguniang bayan,
barangay:18
*Sangguniang
kabataan: 15-21

ARMM Natural-born 35 Read and Registered in 5 in ARMM

Governor Write ARMM
ARMM Natural-born 21 Read and Registered in 5 in Districts
Legislator Write District

1. Any candidate may withdraw his/her

Certificates of Candidacy
Rules on filling of certificates of candidacy:
1. No person shall be elected into public office
unless he files his certificate of candidacy
within the prescribed period
2. No person shall be eligible for more than one
office. If he/she files more than one position,
he shall not be eligible for any of them unless
he cancels all and retains one before the
expiration of the period for the filling of
certificates of candidacy.
3. The certificate of candidacy shall be filled by
the candidate personally or by his duly
authorized representative.
4. Upon filling, an individual becomes a
candidate. Thus, he is already covered by
rules, restrictions and processes involving
candidates.
Effect of Filling of Certificate of Candidacy on
Tenure of Incumbent Government Officials
1. On appointive officials: They are
considered ipso facto resigned from office
upon filing.
2. On elective officials: No effect. The
candidate shall continue to hold office,
whether he is running for the same or a
different position. (Fair Election Act)
candidacy anytime before election day.
2. Substitution is only allowed in the
following instances:
a. death
b. withdrawal
c. disqualification
3. No substitution is allowed for an
independent candidate. Only candidates
who are members of and are nominated
by a party can be substituted.
4. Substitute candidate may file his/her
certificate of candidacy not later than mid-
day of election day.
5. No person who has withdrawn his/her
candidacy for a position shall be eligible as
a substituted candidate for any other
position.
6. The filing of the withdrawal shall not affect
the civil, criminal, or administrative
liabilities the substituted candidate may
have already incurred.
7. In case of valid substitutions, votes cast
for substituted candidates are considered
stray, except if the substitute candidate
has the same surname. Official ballots
shall provide spaces where voters may
write the names of the substitute
candidates. (Fair Election Act)

Grounds for disqualification

1. Under Sec. 12 of the Omnibus Election Code:
Rules on Substitution and Withdrawal of a. declared by competent authority as insane
Candidacy or incompetent
 b. sentenced by final judgment for be voted for. The votes cast in his favor
subversion, insurrection, rebellion, or any shall not be counted.
offense for which he has been sentenced B. If the candidate is not disqualified by final
to a penalty of more than 18 months or judgment before the election and receives
for a crime involving moral turpitude, the highest number of votes in the
unless given plenary pardon or amnesty. election, the court or COMELEC will
*disqualification is lifted after the continue with the trial and hearing of the
expiration of 5 years for service of action, inquiry or protest. Upon motion of
sentence the complainant or intervenor, the court
2. Election offenses under Sec 68 of the Omnibus or COMELEC may order the suspension of
Election Code (OEC) the proclamation of the candidate
a. giving money or other material whenever the evidence of his guilt is
consideration to influence, induce, or strong.
corrupt the voters of public officials
performing electoral functions;
b. committing acts of terrorism to enhance
his candidacy; Nuisance candidates
c. spending in his election campaign an A. The term refers to candidates who have no
amount in excess of that allowed bona fide intention to run for the office for
d. soliciting, receiving, making prohibited which the certificate of candidacy has been
contributions; or filed and would thus prevent a faithful
e. committing prohibited acts under Sections determination of the true will of the people.
80, 83, 85, 86, and 261 pars. D, e, k, v,
and cc, sub-par. 6
3. Not possessing qualifications and possessing B. Power of COMELEC
disqualifications under the Local Government
Code 1. May refuse to give due course to or
a. Sentenced by final judgment for an cancel a certificate of candidacy of a
offense involving moral turpitude or for an nuisance candidate. This can be done
offense punishable by one year or more of motu proprio or upon verified petition of
imprisonment within two years after an interested party.
serving sentence 2. There should be a showing that:
b. Removed from office as a result of an A. Certificate of candidacy has
administrative case been filed to put the election
c. Convicted by final judgment for violating process in mockery/disrepute or
the oath of allegiance to the Republic B. To cause confusion among the
d. Dual citizenship (more specifically, dual voters by the similarity of the
allegiance) names of the registered
e. Fugitives from justice in criminal or non- candidates
political cases here or abroad C. Other circumstances which
f. Permanent residents in a foreign country clearly demonstrate that the
or those who have acquired the right to candidate has no bona fide
reside abroad and continue to avail of the intention to run for the office...
same right
g. Insane or feeble-minded
4. Nuisance candidate
5. Violation of sec 73 of OEC with regard to Petition to deny due course to or to cancel a
certificate of candidacy (filing a certificate of certificate of candidacy
candidacy for more than one office) A. Exclusive ground: A material representation in
6. Violation of sec. 78: material the certificate of candidacy is false.
misrepresentation in the certificate of B. The petition should be filed not later than 25
candidacy days from the filling of the certificate of
candidacy.
C. It should be decided not later than 15 days
before the election, after due notice and
Effect of a Disqualification case (under RA hearing.
6646)
A. Any candidate who has been declared by
final judgment to be disqualified shall NOT
Election Campaign/Partisan Political Activity
Definitions
1) It refers to an act designed to promote the
election or defeat of a particular candidates to
a public office
2) It includes:
A. Forming organizations, associations,
clubs, committees or other groups of
persons for the purpose of soliciting votes
and/or undertaking any campaign for
against a candidate.
B. Holding political caucuses, conferences,
meetings, rallies, parades or other similar
assemblies for the purpose of soliciting
votes and/or undertaking any campaign or
propaganda for or against candidate.
C. Making speeches, announcements or
commentaries or holding interviews for or
against the election of any candidate for
public office.
D. Publishing or distributing campaign
literature or materials designed to support
or oppose the election of any candidate.
E. Directly or indirectly soliciting votes,
pledges or support for or against a
candidate.
F. Advertisements
3) When the acts enumerated above are NOT
considered an election campaign/partisan
political activity – if the acts are performed for
the purpose of enhancing the chances of
aspirants for nomination for candidacy to a
public office by a political party, agroupment,
or coalition of parties.
BALLOTS; REVISION.
The COMELEC did not commit grave abuse of
discretion when it order the revision of 44 ballots
with the Senate Electoral Tribunal without first
reolsivng whether 16 of those 44 ballots should be
included in the revision.
In regular election contests, the general averment
of fraud or irregularities in the counting of votes
justifies the examination of the ballots and
recounting of votes.  This process of examination
is the revision of the ballots pursuant to Section 6,
Rule 20 of the 1993 COMELEC Rules of Procedure.
The protests involved herein assailed the
authenticity of the election returns and the
veracity of the counting of the ballots. In that
regard, the ballots themselves are the best
evidence. The only means to overcome the
presumption of legitimacy of the election returns
is to examine and determine first whether the
ballot boxes have been substantially preserved in
the manner mandated by law. Hence, the
necessity to issue the order of revision.
No ruling could be handed down against the
integrity of the ballot boxes that would effectively
render naught the evidentiary value of the ballots
they contained unless a full blown trial on the
merits was first conducted. Tolentino should
accept the legal impossibility for the Division to
rule on the issue of inclusion or exclusion of the
set-aside ballot boxes except after the revision
process. Mayor Abraham N. Tolentino vs.
Commission on Elections, et al./Vice-Mayor Celso
P. De Castro vs. Commission on Elections, et
al., G.R. Nos. 187958, G.R. No. 187961 &
187962/G.R. No. 187966, G.R. No. 187967 &
187968. April 7, 2010.
PARTY LIST; DELISTING.
Our Minero ruling is an erroneous application of
Section 6(8) of RA 7941; hence, it cannot sustain
PGBI’s delisting from the roster of registered
national, regional or sectoral parties,
organizations or coalitions under the party-list
system.
First, the law is clear – the COMELEC may motu
proprio or upon verified complaint of any
interested party, remove or cancel, after due
notice and hearing, the registration of any
national, regional or sectoral party, organization
or coalition if it: (a) fails to participate in the last
two (2) preceding elections; or (b) fails to obtain
at least two per centum (2%) of the votes cast
under the party-list system in the two (2)
preceding elections for the constituency in which it
has registered.  The word “or” is a disjunctive
term signifying disassociation and independence
of one thing from the other things enumerated; it
should, as a rule, be construed in the sense in
which it ordinarily implies, as a disjunctive word. 
Thus, the plain, clear and unmistakable language
of the law provides for two (2) separate reasons
for delisting.
Second, Minero is diametrically opposed to the
legislative intent of Section 6(8) of RA 7941, as
PGBI’s cited congressional deliberations clearly
show.
Minero therefore simply cannot stand.  Its basic
defect lies in its characterization of the non-
participation of a party-list organization in an
election as similar to a failure to garner the 2%
threshold party-list vote.  What Minero effectively
holds is that a party list organization that does not
participate in an election necessarily gets, by
default, less than 2% of the party-list votes.  To
be sure, this is a confused interpretation of the
law, given the law’s clear and categorical
language and the legislative intent to treat the
two scenarios differently.  A delisting based on a
mixture or fusion of these two different and
separate grounds for delisting is therefore a
strained application of the law – in jurisdictional
terms, it is an interpretation not within the
contemplation of the framers of the law and hence
is a gravely abusive interpretation of the law.
What we say here should of course take into
account our ruling in Barangay Association for
Advancement and National Transparency v.
COMELEC (Banat) where we partly invalidated the
2% party-list vote requirement provided in RA
7941 as follows:  ”We rule that, in computing the
allocation of additional seats, the continued
operation of the two percent threshold for the
distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941 is
unconstitutional.  This Court finds that the two
percent threshold makes it mathematically
impossible to achieve the maximum number of
available party list seats when the number of
available party list seats exceeds 50.  The
continued operation of the two percent threshold
in the distribution of the additional seats
frustrates the attainment of the permissive ceiling
that 20% of the members of the House of
Representatives shall consist of party-list
representatives.”
The disqualification for failure to get 2% party-list
votes in two (2) preceding elections should
therefore be understood in light of the Banat
ruling that party-list groups or organizations
garnering less than 2% of the party-list votes may
yet qualify for a seat in the allocation of additional
seats.
We need not extensively discuss Banat’s
significance, except to state that a party-list group
or organization which qualified in the second
round of seat allocation cannot now validly be
delisted for the reason alone that it garnered less
than 2% in the last two elections.  In other words,
the application of this disqualification should
henceforth be contingent on the percentage of
party-list votes garnered by the last party-list
organization that qualified for a seat in the House
of Representatives, a percentage that is less than
the 2% threshold invalidated in Banat.  The
disqualification should now necessarily be read to
apply to party-list groups or organizations that did
not qualify for a seat in the two preceding
elections for the constituency in which it
registered.
To reiterate, (a) Section 6(8) of RA 7941 provides
for two separate grounds for delisting; these
grounds cannot be mixed or combined to support
delisting; and (b) the disqualification for failure to
garner 2% party-list votes in two preceding
elections should now be understood, in light of the
Banat ruling, to mean failure to qualify for a
party-list seat in two preceding elections for the
constituency in which it has registered. This, we
declare, is how Section 6(8) of RA 7941 should be
understood and applied.  We do so under our
authority to state what the law is, and as an
exception to the application of the principle of
stare decisis.   Philippine Guardians Brotherhood,
Inc. (PGBI), etc. vs. Commission on
Elections, G.R. No. 190529. April 29, 2010.
VOTER; RESIDENCY REQUIREMENT.  
The the residency requirement of a voter is at
least one (1) year residence in the Philippines and
at least six (6) months in the place where the
person proposes or intends to vote. “Residence,”
as used in the law prescribing the qualifications
for suffrage and for elective office, is doctrinally
settled to mean “domicile,” importing not only an
intention to reside in a fixed place but also
personal presence in that place, coupled with
conduct indicative of such intention inferable from
a person’s acts, activities, and utterances.
“Domicile” denotes a fixed permanent residence
where, when absent for business or pleasure, or
for like reasons, one intends to return. In the
consideration of circumstances obtaining in each
particular case, three rules must be borne in
mind, namely: (1) that a person must have a
residence or domicile somewhere; (2) once
established, it remains until a new one is
acquired; and (3) that a person can have but one
residence or domicile at a time.
Domicile is not easily lost. To successfully effect a
transfer thereof, one must demonstrate: (1) an
actual removal or change of domicile; (2) a bona
fide intention of abandoning the former place of
residence and establishing a new one; and (3)
acts which correspond with that purpose. There
must be animus manendi coupled with animus
non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period
of time; the change of residence must be
voluntary; and the residence at the place chosen
for the new domicile must be actual.
Asistio has always been a resident of Caloocan
City since his birth or for more than 72 years. His
family is known to be among the prominent
political families in Caloocan City. In fact, Asistio
served in public office as Caloocan City Second
District representative in the House of
Representatives, having been elected as such in
the 1992, 1995, 1998, and 2004 elections. In
2007, he also sought election as City Mayor. In all
of these occasions, Asistio cast his vote in the
same city. Taking these circumstances into
consideration, gauged in the light of the doctrines
above enunciated, it cannot be denied that Asistio
has qualified, and continues to qualify, as a voter
of Caloocan City. There is no showing that he has
established domicile elsewhere, or that he had
consciously and voluntarily abandoned his
residence in Caloocan City. He should, therefore,
remain in the list of permanent registered voters
of Precinct No. 1811A, Barangay 15, Caloocan
City.
That Asistio allegedly indicated in his Certificate of
Candidacy for Mayor, both for the 2007 and 2010
elections, a non-existent or false address, or that
he could not be physically found in the address he
indicated when he registered as a voter, should
not operate to exclude him as a voter of Caloocan
City. These purported misrepresentations in
Asistio’s COC, if true, might serve as basis for an
election offense under the Omnibus Election Code
(OEC), or an action to deny due course to the
COC. But to our mind, they do not serve as proof
that Asistio has abandoned his domicile in
Caloocan City, or that he has established
residence outside of Caloocan City. Luis A. Asistio
vs. Hon. Thelma Canlas Trinidad-Pe Aguirre, etc.
et al.,  G.R. No. 191124. April 27, 2010.
FAIR ELECTION ACT
Important Features:
1) Repeal of Sec. 67 of the OEC – Now, any
ELECTIVE official, whether national or local,
running for any office other than the one
which he is holding in a permanent capacity
shall not be considered ipso facto
resigned from his office upon the filling of his
certificate of candidacy.
2) Lifting of the Political Ad Ban – The
following are now considered lawful election
propaganda:
a. Written and Printed Materials (8.5” W x
14L”)
b. Letter
c. Posters (2’ x 3’) in common-private poster
areas (not more than 10 public places per
political party or independent candidate,
12’ 16’), private places and public places
(allocated equitably and impartially)
d. Rally streamers (3’ x 8’)
e. Paid advertisements at discounted rates:
1. Print: 1/4th page in broadsheet
and ½ page in tabloid 3x a week
2. TV: 120 mins. for candidate for
national office and 60 minutes for
local office
3. Radio: 180 mins. for candidate for
national office and 90 minutes for
local office
f. Comelec free space (3 national
newspapers for national offices and 1
national newspaper for local offices) and
airtime (3 national television networks for
national offices an 1 station for local
offices): equal allocation for all candidates
for 3 calendar days.
Authorized Expenses (multiplied with the total
number of registered voters)
 P 10 for president / vice president
 P 3 for other candidates for every voter
currently registered in the constituency
 P 5 for independent candidates and
political parties
Electoral Contributions and Expenditures
CONTRIBUTION (under Sec 94, Omnibus
Election Code) – includes:
1. a gift,
2. donation,
3. subscription,
4. loan,
5. advance or deposit of money or
anything of value,
6. a contract, promise or agreement
of contribution, whether or not
legally enforceable
7. use of facilities voluntarily donated
by other persons, the money
value of which can be assessed
based on the rates prevailing in
the area.
Made for the purpose of influencing
the results of the elections.
DOES NOT INCLUDE services rendered
without compensation by individuals
volunteering a portion or all of their
 time in behalf of a candidate or
political party.
EXPENDITURE – includes the payment or
delivery of money or anything of value, or a
contract, promise or agreement to make an
expenditure, for the purpose of influencing the
results of the election. It shall also include the use
of facilities personally owned by the candidate,
the money value of the use of which can be
assessed on the rates prevailing in the area.
Prohibited Contributions:
Those made directly or indirectly by any of the
following:
1. public or private financial
institutions (except loans to a
candidate or political party)
2. public utilities or those exploiting
natural resources of the nation
3. persons with contracts to supply
the government with goods or
services or to perform
construction or other works
4. grantees of franchises, incentives,
exemptions, allocations or similar
privileges or concessions by the
government
5. persons who, within one year prior
to the date of the election, have
been granted loans or other
accommodations in excess of
P100,000 by the government
6. educational institutions which
have received grants of public
funds not less than P100,000
7. officials or employees in the Civil
Service or members of the Armed
Forces of the Philippines; and
8. foreigners and foreign
corporations.
Prohibited means of arising of funds (Sec. 97
Omnibus Election Code):
1. Holding any of the following activities:
a. dances
b. lotteries
c. cockfights
d. games
e. boxing bouts
f. bingo
g. beauty contest
h. entertainments
i. cinematographic, theatrical, or other
performances
for the purpose of raising funds for an election
campaign or for the support of any candidate from
the commencement of the election period up to an
including election day.
2. It shall also be unlawful for any person or
organization to solicit and/or accept from any
candidate for public office any gift, food,
transportation, contribution or donation in
cash or in kind from the commencement of
the election period up to and including
election day, EXCEPT normal and customary
religious stipends, tithes or collections.
Lawful Expenditures:
1. For traveling expenses
2. Compensation of campaigners, clerks,
stenographers, messengers, and other
persons actually employed in the campaign
3. Telegraph and telephone tolls, postage,
freight and express delivery charges
4. Stationary, printing and distribution of printed
matters relative to candidacy
5. Employment of watchers at the polls
6. Rent, maintenance and furnishing of campaign
headquarters, office, or place of meetings
7. Political meetings and rallies
8. Advertisements
9. Employment of counsel, the cost of which
shall not be taken into account in determining
the amount of expenses which a candidate or
political party may have incurred
10. Copying and classifying list of voters,
investigating and challenging the right to vote
of persons registered in the lists, the cost of
which shall not be taken into account in
determining the amount of expenses which a
candidate or political party may have incurred
11. Printing sample ballots, the cost of which shall
not be taken into account in determining the
amount of expenses which a candidate or
political party may have incurred
Voters
Qualifications
 Age: 18 years old and over.
 Residence
A. He/she should have resided in the
Philippines for one year and
B. Resided in the city/municipality wherein
he proposes to vote for at least 6 months
immediately preceding the election
Residence Requirement
If the transfer of residence is due to any of the
following reasons, the person concerned will be
deemed NOT to have lost his original residence:
A. Transfer solely because of occupation,
profession, employment in private or
public service
B. Educational activities
C. Work in military or naval reservations
D. Service in the army, navy or air force,
national police force
E. Confinement/detention in government
institutions in accordance with law
NOTE: Residence is equal to domicile. Hence, a
person may be physically absent from his
residence for a short, or even long period of time,
due to work, studies, etc., but as long as he has
the INTENT TO RETURN to his place of residence,
and corollary to this, NO INTENT TO SETTLE in the
place where he is physically present, he/she is still
a resident in his original domicile (see Imelda
Marcos case).
REPUBLIC ACT NO. 9189 – THE OVERSEAS
ABSENTEE
VOTING ACT OF 2003
The Overseas Absentee Voting Act of 2003, also
known as ‘Absentee Voting Law’, is the law that
‘ensures equal opportunity to all qualified citizens
of the Philippines abroad’ to exercise their right to
vote (suffrage) in the election of President, Vice
President, Senators and Party-List
Representatives.
Who are qualified to vote under the Absentee
Voting Law?
All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen
(18) years of age on the day of elections, may
vote for president, vice-president, senators and
party-list representatives. (Sec. 4 R.A. 9189)
Who are disqualified from voting under the
Absentee Voting Law?
1. Those who have lost their Filipino citizenship
in accordance with Philippine laws;
2. Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country;
3. Those who have committed and are convicted
in a final judgment by a court or tribunal of an
offense punishable by imprisonment of not
less than one year, including those who have
committed and been found guilty of Disloyalty
as defined under Article 137 of the Revised
Penal Code, such disability not having been
removed by plenary pardon or amnesty;
Provided, however, That any person
disqualified to vote under this subsection shall
automatically acquire the right to vote upon
expiration of five (5) years after service of
sentence; Provided, further, That the
Commission may take cognizance of final
judgments issued by foreign courts or
tribunals only on the basis of reciprocity and
subject to the formalities and processes
prescribed by the Rules of Court on execution
of judgments;
4. An immigrant or a permanent resident who is
recognized as such in the host country, unless
he/she executes, upon registration, an
affidavit prepared for the purpose by the
Commission declaring that he/she shall
resume actual physical permanent residence
in the Philippines not later than three (3)
years from approval of his/her registration
under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in
another country. Failure to return shall be the
cause for the removal of the name of the
immigrant or permanent resident from the
National Registry of Absentee Voters and
his/her permanent disqualification to vote in
absentia.
5. Any citizen of the Philippines abroad
previously declared insane or incompetent by
competent authority in the Philippines or
abroad, as verified by the Philippine
embassies, consulates or foreign service
establishments concerned, unless such
competent authority subsequently certifies
that such person is no longer insane or
incompetent. (Section 5. R.A. 9189)
How shall registration be done?
Registration as an overseas absentee voter shall
be done in person. (Section 6, RA 9189)
What is the procedure of registration?
A. For Qualified citizens of the Philippines abroad
who failed to register under Republic Act. No.
8189, otherwise known as the “The Voters
Registration Act of 1996”.
1. They may personally apply for registration
with the Election Registration Board of the
city or municipality where they were
domiciled immediately prior to their
departure from the Philippines, or with the
representatives of the Philippines, or with
the representatives of the Commission at
the Philippine embassies, consulates and
other foreign service establishment that
have jurisdiction over the locality where
they temporarily reside.
2. The embassies, consulates and other
foreign service establishments shall
transmit within (5) days from receipt the
accomplished registration forms to the
Commission, after which the Commission
shall coordinate with the Election Officer
of the city or municipality of the
applicant’s stated residence for
verification, hearing and annotation in the
permanent list of voters.
3. Upon receipt of the application for
registration, the Election Official shall
immediately set the application for
hearing, the notice of which shall be
posted in a conspicuous place in the
premises of the city or municipal building
of the applicant’s stated residence for at
least (1) week before the date of the
hearing. The Election Officer shall
immediately furnish a copy of the
application to the designated
representatives of political parties and
other accredited groups.
4. If no verified objection to the application
is filed the Election Officer shall
immediately forward the application to the
Election Registration Board, which shall
decide on the application within one (1)
week from the date of hearing without
waiting for the quarterly meeting of the
Board. The applicant shall be notified of
the approval or disapproval of his/her
application by registered mail.
5. In the event that an objection to the
application is filed prior to or on the date
of hearing, the Election Officer shall notify
the applicant of said objection by
registered mail, enclosing therein copies
of affidavits or documents submitted in
support of the objection filed with the
right to file his counter-affidavit by
registered mail, clearly stating therein
facts and defenses sworn before any
officer in the host country authorized to
administer oaths
6. The applications shall be approved or
disapproved based on the merits of the
objection, counter-affidavit and
documents submitted by the party
objecting and those of the applicant
7. A certificate of Registration as an overseas
absentee voter shall be issued by the
Commission to all applicants whose
applications have been approved,
including those certified as registered
voters. The Commission shall include the
approved applications in the National
Registry of Absentee Voters.
8. In the application has been approved, any
interested party may file a petition for
exclusion not later than two hundred ten
(210) days before the day of elections
with the proper municipal or metropolitan
trial court. The petition shall be decided
within fifteen (15) days after its filling on
the basis of the documents submitted in
connection therewith. Should the court fail
to render a decision within the prescribed
period, the ruling of the Election
Registration Board shall be considered
affirmed.
9. If the application has been disapproved,
the applicant or his authorized
representative shall, within a period of five
(5) days from receipt of the notice of
disapproval, have the right to file a
petition for inclusion with the proper
municipal or metropolitan trial court. The
petition shall be decided within five (5)
days after its filling on the basis of
documents submitted in connection
therewith.
B. For Qualified citizens of the Philippines
abroad, who have previously registered as
voters pursuant to Republic Act No. 8189
They shall apply for certification as
absentee voters and for inclusion in the National
Registry of Overseas Absentee Voters, with a
corresponding annotation in the Certified Voters’
List. (Section 6 of RA 9189)
How shall voting be done?
1. The overseas absentee voter shall personally
accomplish his/her ballot at the embassy,
consulate or other foreign service
establishment that has jurisdiction over the
country where he/she temporarily resides or
at any polling place designated and accredited
by the Commission. (section 16, RA 9189)
2. The overseas absentee voter may also vote
by mail. (Section 17, RA 9189)
When may voting by mail be allowed?
For the May, 2004 elections, the Commission shall
authorize voting by mail in not more than three
(3) countries, subject to the approval of the
Congressional Oversight Committee. Voting by
mail may be allowed in countries that satisfy the
following conditions:
1. Where the mailing system is fairly well-
developed and secure to prevent the
occasion of fraud;
2. Where there exist a technically established
identification system that would preclude
multiple or proxy voting; and
3. Where the system of reception and
custody of mailed ballots in the
embassies, consulates and other foreign
service establishments concerned are
adequate and well-secured.
Thereafter, voting by mail in any country shall
be allowed only upon review and approval of the
Joint Congressional Oversight Committee.
(Section 17.1, RA 9189)
How will the constituting and canvassing of
the votes be done?
 The counting and canvassing of votes
shall be conducted on site in the country
where the votes were actually cast. The
opening of the specially-marked
envelopes containing the ballots and the
counting and canvassing of votes shall
be conducted within the premises of the
embassies, consulates and other foreign
service establishments or in such other
places as may be designated by the
Commission pursuant to the
implementing Rules and Regulations.
The Commission shall ensure that the
start of counting in all polling places
abroad shall be synchronized with the
start of counting in the Philippines.
 The Commission shall constitutes as
many Special Boards of Election
inspectors as may be necessary to
conduct and supervise the counting of
votes.
 Immediately upon the completion of the
counting, the Special Boards of Election
Inspectors shall transmit via facsimile
and/or electronic mail the results to the
Commission in Manila and the
accredited major political parties.
(Section 18, RA 9189)
Can the canvass of the overseas absentee
votes delay the proclamation of winners?
No. The canvass of votes shall not cause the delay
of the proclamation of a winning candidate if the
outcome of the election will not be affected by the
results thereof. Notwithstanding the foregoing,
the Commission is empowered to order the
proclamation of winning candidates despite the
fact that the scheduled election has not taken
place in a particular country or countries, if the
holding of elections therein has been rendered
impossible by events, factors and circumstances
are beyond the control or influence of the
Commission. (Section 18, RA 9189)
RA 8189 – VOTER”S REGISTRATION ACT
OF 1996
Q: Can there still be general registration
of voters?
A: No more, because 8189 (7) provides for
such only for the May ’98 elections
Q: What kind of registration system do we
have?
A: Continuing, Computerized and Permanent
Disqualifications
A. If sentenced by final judgment to suffer
imprisonment for not less than 1 year and
such disability was not removed by plenary
pardon or has not been granted amnesty.
However, any person disqualified to vote shall
automatically reacquire the right to vote upon
expiration of 5 years after service of sentence.
B. Any person who has been adjudged by final
judgment by competent court or tribunal of
having committed any crime involving
disloyalty to the duly constituted government
such as rebellion or any crime against national
security:
1. UNLESS restored to his full civil and
political rights in accordance with law.
2. However, he shall regain his right to
vote automatically upon expiration of 5
years after service of sentence
C. Insane or incompetent person as declared by
competent authority.
Jurisdiction in Inclusion/Exclusion cases
A. The municipal and metropolitan trial courts
shall have original and exclusive jurisdiction
over all matters of inclusion and exclusion of
 voters from the list in their respective
municipalities or cities. Petition filed at any
time except 105 days before regular election
or 75 days before special election
B. Decisions may be appealed to the RTC within
5 days from receipt of notice of decision.
C. RTC will decide the appeal within 10 days.
Decision is final and executory.
D. NOTE: Relate this to Article IX of the
Constitution which provides that the COMELEC
has no jurisdiction over questions involving
the right to vote.
E. Exclusion is through sworn petition and not
later than 100 days before regular election;
65 days before special election
Grounds when the List of Voters will be
altered:
 Deactivation/Reactivation
 Exclusion/ Inclusion
 Cancellation of Registration in case of
Death
 New voters
 Annulment of Book of Voters
 Transfer of Residence
How is challenge to right to register
effected?
Who – any voter, candidate, political party
representatives
How – in writing, stating grounds, under oath,
proof of notice of hearing
DEACTIVATION means removing the registration
records of persons from the precinct book of
voters and places the same, properly marked and
dated in indelible ink, in the inactive file after
entering the cause of deactivation.
How is reactivation of registration effected?
1. Sworn application for reactivation
2. Affidavit
3. Not later than 120 days before regular
election and 90 days before special
election
Annulment of Book of Voters is through
verified petition; notice and hearing; not prepared
in accordance with law or prepared through fraud,
bribery, forgery, impersonation, intimidation,
force, any similar irregularity or which contains
data that are statistically improbable; Cannot be
done within 90 days before election
Pre-Proclamation Controversies
A. A pre-proclamation controversy refers to any
question pertaining to or affecting the
proceedings of the board of canvassers which
may be raised by any candidate or by any
registered political party or coalition of
political parties before the board or directly
with the COMELEC.
B. It would also refer to any matter raised under
Sections 233, 234, 235, and 236 of the
Omnibus Election Code in relation to the
preparation, transmission, receipt, custody,
and appreciation of the election returns.
(Board of canvassers has original jurisdiction
while COMELEC has appellate jurisdiction)
1. When election returns are delayed, lost
or destroyed (Sec.233)
2. Material defects in the election returns
(Sec. 234)
3. When election returns appear to be
tampered with or falsified. (Sec. 235)
4. Discrepancies in election returns (Sec.
236)
C. Those that can be filed with COMELEC directly
are the ff:
 Issue involves the illegal composition or
proceedings of the board of the
canvassers, as when a majority or all of
the members do not hold legal
appointments or are in fact usurpers
 Issue involves the correction of manifest
errors in the tabulation or tallying of the
results during the canvassing
Recount
There can be a recount under the grounds of 234-
236. The returns involved will affect the results
and the integrity of the ballot box has been
preserved
Issues that may be raised in a pre-
proclamation controversy
A. Illegal composition or proceedings of the
board of canvassers
B. The canvassed election returns are
incomplete, contain material defects, appear
to be tampered with or falsified, or contain
discrepancies in the same returns or in
authentic copies thereof.
C. The election returns were prepared under
duress, threats, coercion, or intimidation, or
they are obviously manufactured, or not
authentic.
D. When substitute or fraudulent returns in
controverted polling places were canvassed,
the results of which materially affected the
standing of the aggrieved candidate/s.
Procedure
A. Contested composition or proceedings of the
board (under RA 7166)
It may be initiated in the board or directly
with COMELEC.
B. Contested election returns (under RA 7166)
Matters relating to the
preparation, transmission, receipt, custody
and appreciation of the election returns, and
certificate of canvass, should be brought in
the first instance before the board of
canvassers only.
Summary nature or pre-proclamation
controversy
A. Pre-proclamation controversies shall be
heard summarily by the COMELEC.
B. Its decision shall be executory after the lapse
of 5 days from receipt by the losing party of
the decision, unless restrained by the SC.
Effect of filling petition to annual or suspend
proclamation
It suspends the running of the period within which
to file an election protest or quo warranto
proceeding.
When not allowed
Pre-proclamation cases on matters relating to the
preparation, transmission, receipt, custody and
appreciation of the election returns or the
certificates of canvass NOT allowed in elections
for: (under RA 7166)
 President
 Vice-President
 Senator
 Member of the House of Representatives
BUT: The appropriate canvassing body motu
propio or upon written complaint of an interested
person can correct manifest errors in the
certificate of canvass or election returns before it.
BUT: Questions affecting the composition or
proceedings of the board of canvassers may be
initiated in the board or directly with COMELEC.
When pre-proclamation cases are deemed
TERMINATED (RA 7166)
A. All pre-proclamation cases pending before the
COMELEC shall be deemed terminated at the
beginning of the term of the office involved
and the rulings of the boards of canvassers
concerned deemed affirmed.
B. B. This is without prejudice to the filling of a
regular election protest by the aggrieved
party.
C. HOWEVER: Proceedings MAY CONTINUE if:
1. The COMELEC determines that the
petition is meritorious and issues an
order for the proceedings to continue
or
2. The Supreme Court issues an order
for the proceedings to continue in a
petition for certiorari.
Election Contest
Original Jurisdiction
COMELEC has ORIGINAL jurisdiction over contest
relating to the elections, returns, and
qualifications of all elective:
 Regional
 Provincial
 City officials
Appellate Jurisdiction
COMELEC has APPELLATE jurisdiction over all
contests involving:
A. Elective MUNICIPAL officials decided by
trial courts of GENERAL jurisdiction
B. Elective BARANGAY officials decided by
trial courts of LIMITED jurisdiction
Who can file a petition contesting the
election
Any candidate who has duly filed a certificate of
candidacy and has been voted for the same office

Purpose of an election contest
The defeated candidate seeks to oust the
proclaimed winner and claims the seat.
Final COMELEC Decisions
Provision that decisions, final orders, rulings of
the Commission of Election contests involving
municipal and barangay offices are final,
executory and not appealable:
A. This only applies to question of FACT,
(Flores v. COMELEC, 184 SCRA 484)
B. It does NOT preclude a special civil action
of certiorari. (Galido v. COMELEC, Jan. 18,
1991)
Distinctions between Pre-Proclamation
Controversy and Election Contest
1) Dividing line: Proclamation of a candidate
2) Jurisdiction
A. Pre-proclamation controversy
1. The jurisdiction of COMELEC is
administrative /quasi-judicial
2. It is governed by the requirements of
administrative due process
B. Election contest
1. The jurisdiction of COMELEC is judicial
2. It is governed by the requirement of
judicial process
3. In some cases, even if the case (involving
municipal officials) began with the
COMELEC before proclamation is made
before the controversy is resolved, it
ceases to be a pre-proclamation
controversy is resolved, it ceases to be a
pre-proclamation controversy and
becomes an election contest cognizable by
the RTC.
4. However, in some cases, the SC has
recognized the jurisdiction of COMELEC
over municipal cases even after
proclamation. Relate to the provision in
RA 7166 allowing pre-proclamation
controversy proceedings to continue even
after a proclamation has been made.
Distinctions between Pre-Proclamation
Controversy and Quo Warranto
1. Quo warranto is not, strictly speaking, a
contest. It is a proceeding to unseat an
ineligible person from office. An election
protest more than seeks to oust the
winner. It is strictly a contest between the
winning candidate and the defeated
candidate.
2. Quo warranto may be filed by an voter. An
election protest may be filed only by a
candidate who has duly filed a certificate
of candidacy to the same office and has
been voted for.
3. Grounds for quo warranto are disloyalty or
ineligibility of the winning candidate.
Grounds for election contest are election
fraud and irregularities in the counting
and casting of voters or in the preparation
of the returns.
4. In quo warranto, the respondent may be
unseated, but the petitioner may not be
installed into the office vacated. In
election contest, the protestee may be
unseated and the protestant may be
installed into the office vacated.
Election Offenses (Selected Offenses)
Vote buying and vote-selling
A. Covered acts
1. Give, offer or promise money or
anything of value
2. Making or offer to make any
expenditure, directly or indirectly, or
cause expenditure to be made to any
person, association, corporation,
entity or community
3. Soliciting or receiving, directly or
indirectly, any expenditure or promise
of any office or employment, public or
private
B. Purpose of acts
1. To induce anyone or the public in
general to vote for or against any
candidate or withhold his vote in the
election; or
2. To vote for or against any aspirant for
the nomination or choice of a
candidate in a convention or similar
selection
C. Under RA 6646 (Prosecution of vote-
buying/selling)
1. Presentation of a complaint supported
by affidavits of complaining witnesses
attesting to the offer or promise by or
the voters acceptance of money or
other consideration from the relatives,
leaders or sympathizers of a candidate
is sufficient basis for an investigation
by the COMELEC, directly or through
its duly authorized legal officers.
2. Disputable presumption of conspiracy:
Proof that at least one voter in
different precincts representing at
 least 20% of the total precincts I any 2. Creating or filling any new position
municipality, city or province has been 3. Promoting/giving an increase in salary,
offered, promised or given money, remuneration or privilege to any government
valuable consideration or other official or employee.
expenditure by a candidate relatives, C. Period when acts are prohibited
leaders and/or sympathizers for the 1. 45 days before a regular election
purpose of promoting the election of 2. 30 days before a special election
such candidate. D. Exceptions
3. Disputable presumption of 1. Upon prior authority of COMELEC if it
involvement is satisfied that the position to be
Proof affects at least 20% of the filled is essential to the proper
precincts of the municipality, city or functioning of the office/agency
province to which the public office concerned AND that the position is not
aspired for by the favored candidate filled in a manner that may influence
relate. This will constitute a disputable the election
presumption of the involvement of 2. In case of urgent need, a new
such candidate and of his principal employee may be appointed. Notice of
campaign managers in each of the appointment should be given to
municipalities concerned in the COMELEC within 3 days from
conspiracy appointment.

Coercion of a subordinate Prohibition against release, disbursement or

A. Who can be held liable expenditure of public funds
1. public officer
2. officer of a public/private A. Who can be held liable: Any public official or
corporation/association employee including barangay officials and
3. heads/superior/administrator of any those of GOCCs/subsidiaries
religious organization
4. employer/landowner B. Prohibited acts
B. Prohibited acts The release, disbursement or expenditure of
1. Coercing, intimidating or compelling or public funds for any other kinds of public works
influencing, in any manner, any
subordinates, members, parishioners C. Period when acts are prohibited:
or employers or house helpers, 1. 45 days before a regular election
tenants, overseers, farm helpers, 2. 30 days before a special election
tillers or lease holders to aid, D. Exception
campaign or vote for or against a 1. maintenance of existing/completed
candidate or aspirant for the public works project.
nomination or selection of candidates. 2. work undertaken by contract through
2. Dismissing or threatening to dismiss, public bidding, or by negotiated
punishing or threatening to punish by contract awarded before the 45 day
reducing salary, wage or period before election
compensation or by demotion, 3. payment for the usual cooperation for
transfer, suspension etc. working drawings, specifications and
other procedures preparatory to actual
construction including the purchase of
Appointment of new employees, creation of material and equipment and incidental
new position, promotion or giving salary expenses for wages.
increases 4. Emergency work necessitated by the
occurrence of a public calamity but
A. Who can be held liable: Any such work shall be limited to the
head/official/appointing officer of a restoration of the damaged facility.
government office, agency or instrumentality, 5. Ongoing public work projects
whether national or local, including GOCCs. commenced before the campaign
B. Prohibited acts period or similar projects under
1. Appointing or hiring a new employee foreign agreements.
(provisional, temporary or casual)

Suspension of elective, provincial, city,
municipal or barangay officer
A. General rule: public official CANNOT suspend
any of the officers enumerated above during
the election period.
B. Exceptions
1. With prior approval of COMELEC
2. Suspension is for the purpose of
applying the Anti-Graft and Corrupt
Practices Act
F. A person who has been declared a nuisance
candidate or is otherwise disqualified who
continues to misrepresent himself as a
candidate (Ex. by continuing to campaign)
and any public officer or private individual
who knowingly induces or abets such
misrepresentation by commission or omission.
G. If the chairman of the BEI fails to affix his
signature at the back of the official ballot, in
the presence of the voter, before delivering
the ballot to the voter. (under RA 7166)

Prescription of Election Offenses

a. Election offenses shall prescribe after 5 years
In relation to registration of voters/voting from the date of their commission
b. If the discovery of the offense is made in an
 Unjustifiable refusal to register and vote- election contest proceeding, the period of
NOTE THAT FAILURE TO REGISTER prescription shall commence on the date on
AND/OR VOTE IS NO LONGER A CRIME. which the judgment in such proceedings
becomes final and executory
 Voting more than once in the same
election/voting when not a registered
voter Jurisdiction of courts
 Voting in substitution for another with or A. RTC has exclusive original jurisdiction to
without the latter’s knowledge and/or try and decide any criminal action or
consent etc. proceedings for violation of the Code.
 Other election offenses under RA 6646 B. MTC/MCTC have jurisdiction over offense
A. Causing the printing of official ballots and relating to failure to register or vote.
election returns by printing establishment not
on contract with COMELEC and printing
establishments which undertakes
unauthorized printing
B. Tampering increasing or decreasing the votes
received by a candidate or refusing after
proper verification and hearing to credit the
correct votes or deduct the tampered votes
(committed by a member of the board of
election inspectors)
C. Refusing to issue the certificate of voters to
the duly accredited watchers (committed by a
member of the BEI)
D. Person who violated provisions against
prohibited forms of election propaganda
E. Failure to give notice of meetings to other
members of the board, candidate or political
party (committed by the Chairman of the
board of canvassers)

ELECTION QUO PRE- ANNULMENT ELECTION

PROTEST WARRANTO PROCLAMATION OF OFFENSE
CONTROVERSY PROCLAMATIO
N
 GROUNDS Fraud and 1. Disciplinary Illegal composition Proclamation
irregularities in to the and proceedings of based on
casting, Republic the Board of irregular and
counting of 2. Ineligibility Canvassers illegal canvass
votes, and whether in the
election Irregularities in election returns,
incidents preparation, certificate of
transmission, canvass,
receipt, custody, proceedings
and appreciation of
election returns
and certificates of
canvass

VENUE President and President and Re: Board of Comelec Comelec

VP: Presidential VP: Canvassers: with Law Dept.
Electoral Presidential Board or with for
Tribunal Electoral Comelec preliminary
Tribunal investigatio
n, then
Senators: Re: Election Courts for
Senate Electoral Senators: Returns: with prosecution
Tribunal Senate Board of
Electoral Canvassers
Tribunal
Representatives
: House of Rep.
Electoral Representative
Tribunal s: House of
Rep. Electoral
Tribunal
Regional/
Provincial/City:
Comelec Regional/Provi
ncial/City:
Comelec
Municipal: RTC

Municipal RTC

EFFECT IF Incumbent- Incumbent- Election return set Proclamation Respondent

CASE protestee respondent aside annulled penalized
PROSPERS removed from dislodged Recount with fine,
office Suspension of Filling suspends Imprisonme
Petitioner does Proclamation the running of nt
If protestant not assume the period within disqualificati
gains highest the petition which to file on to hold
number, he/she election protest public office
is proclaimed Follow the or quo warranto or
rules on deprivation
succession of of right to
officers or vote
conduct special
elections
PETITIONER Any candidate Any voter Any candidate or Any candidate or Any voter
 for the position political party political party

PERIOD Within 10 days Within 10 days Upon convening of Within 10 days Within 5
from from Board When from years from
proclamation proclamation election return proclamation commission
presented

ELECTION QUO PRE- ANNULMENT OF ELECTION

PROTEST WARRANTO PROCLAMATION PROCLAMATION OFFENSE
CONTROVERSY
REQts Filed by Filed by voter Filed by candidate Filed by candidate Complaint-
candidate within period or political party or political party affidavit
within period grounds within period
protestee position
proclaimed contested
payment of
filing fee
allegations of
fraud
certification
against forum
shopping

PROCEDURE Revision Trial Two objection Trial Summary

Trial rule proceedings
(oral and
written )

EVIDENCE Ballots Documentary Documentary and Documentary and Affidavits

Election and testimonial testimonial Documentary
returns Testimonial evidence evidence and
Minutes Evidence Election returns testimonial
Documentary Evidence
and
Testimonial
Evidence

OTHER LAWS IN ELECTION
REPUBLIC ACT No. 7941 : AN ACT
PROVIDING FOR THE ELECTION OF PARTY-
LIST REPRESENTATIVES THROUGH THE
PARTY-LIST SYSTEM AND APPROPRIATING
FUNDS THEREFOR
What is the party-list system of election?
It is a mechanism of proportional representation in
the election of representatives to the House of
Representatives from marginalized or
underrepresented national, regional and sectoral
parties, or organizations or coalitions thereof
registered with the Commission on Elections
(Comelec). It is part of the electoral process that
enables small political parties and marginalized
and underrepresented sectors to obtain possible
representation in the House of Representatives,
which traditionally is dominated by parties with big
political machinery.
Who may participate?
Instead of individual candidates, only registered
organized groups may participate and these are:
1. Sectoral Party – an organized group of
citizens whose principal advocacy pertains
to the special interests and concerns of the
following sectors: labor, fisherfolk,
peasant, women, urban poor, youth,
indigenous, overseas workers, veterans,
cultural communities, professionals,
handicapped, elderly
2. Sectoral Organization – a group of qualified
voters bound together by similar physical
attributes or characteristics, or
employment, interests or concerns.
3. Political Party – an organized group of
qualified voters pursuing the same
ideology, political ideas and principles for
the general conduct of the government; it
may be:
a. A national party when its constituency
is spread over the geographical
territory of at least a majority of the
regions; and
b. A regional party when its constituency
is spread over the geographical
territory of at least a majority of the
cities and provinces comprising a
region.
COALITION - an aggrupation of duly-registered
national, regional, sectoral parties or organizations
for political and/or election purposes.
May the Comelec remove and/or cancel
registration of any entity?
The Comelec may, motu proprio or upon verified
complaint of any interested party, remove or
cancel after due notice and hearing, the
registration of any national, regional or sectoral
party, organization or coalition on any of the
following grounds:
[a] It is religious sect of denomination,
organization or association organized for religious
purposes;
[b] It advocates violence or unlawful means to
achieve its goal;
[c] It is a foreign party or organization;
[d] It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or indirectly or
through its officers or members or indirectly third
parties for partisan election purposes;
[e] It violates or fails to comply with laws, rules or
regulations relating to elections;
[f] It has made untruthful statements in its
petition; and
[g] It has ceased to exist for at least one (1) year
from the time the petition is filed.
What are the qualifications of a party-list
nominee?
by [a] A natural-born citizen of the Philippines;
[b] A registered voter;
[c] A resident of the Philippines for a period of not
less than one (1) year immediately preceding the
election day;
[d] Able to read and write;
[e] A bona fide members of the party he seeks to
represent for at least ninety (90) days preceding
election day; and
[f] At least twenty-five (25) years of age on
election day.
NOTE: In case of the youth sector, he must be at
least twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any
youth sectoral representatives who reaches the
age of thirty (30) during his term shall be allowed
to continue in office until the expiration of his
term.
How many seats are available under the
party-list system?
Twenty percent (20%0 of the total membership in
the House of Representative sis reserved for party-
list representatives, or a ratio of one (1) party list
representatives for every four (4) legislative
district representatives. (20% ALLOCATION)
How does the party-list system enhance the
chances or marginized or underrepresented
parties of winning seats in the House of
Representatives?
In the party-list system, no single party may hold
more than three (3) party-list seats. Bigger parties
which traditionally will dominate elections cannot
corner all the seats and crowd out the smaller
parties because of this maximum ceiling. This
system shall pave the way for smaller parties to
also win seats in the House of Representatives. (3-
SEAT LIMIT)
How shall party-list seats be allocated? [See
Veterans Federation Party, et al. vs.
Commission on Elections, et al. (G.R. no.
136781, 06 October 2000)].
Party-list seats shall be allocated as follows:
[1] The parties shall be ranked from highest to
lowest based on the number and percentage of
votes garnered during the elections;
[2] Only a maximum of three seats may be
allowed per party. Seats are allocated at the rate
of one seat per 2% of votes obtained; and
[3] Unallocated seats shall be distributed among
the parties which have not yet obtained the
maximum 3 seats, provided they have mustered at
least 2% of votes.
NOTE: The variance of percentage in excess of 2%
or 4% (equivalent to 1 or 2 seats that have
already been obtained, respectively) shall be
ranked and be the basis for allocating the
remaining seats.
What is the status of the party-list
representatives vis-à-vis representatives of
legislative districts in the House of
Representatives?
Party-list representatives are considered elected
Members of the House and as such, entitled to the
same deliberative rights, salaries, and emoluments
as the regular Members of the House of
representatives. They shall serve for a term of
three (30 years with a maximum of three (3)
consecutive terms.
REPUBLIC ACT NO. 6646 :
AN ACT INTRODUCING ADDITIONAL
REFORMS IN THE ELECTORAL SYSTEM AND
FOR OTHER PURPOSES.
How should City Voters vote?
The registered voters of a highly urbanized city
shall not vote in the election for provincial officials
of the province in which it is located. No
component city shall be declared or classified as a
highly urbanized city within sixty (60) days prior to
a local election. The registered voters of a
component city shall be entitled to vote in the
election for provincial officials of the province of
which it is a part, unless its charter provides
otherwise. (Sec.3)
What is the effect of a disqualification case?
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final
judgment before an election to be disqualified and
he is voted for and receives the winning number of
votes in such election, the Court or Commission
shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the
evidence of his guilt is strong. (Sec. 6)
Aside from the prohibited acts and election
offenses enumerated in Sections 261 and 262
of the Omnibus Election Code (B.P. Blg. 881,
as amended), what are the other ELECTION
OFFENSES?
(a) Any person who causes the printing of official
ballots and election returns by any printing
establishment which is not under contract with
the Commission on Elections and any printing
establishment which undertakes such
unauthorized printing.
(b) Any member of the board of election
inspectors or board of canvassers who
tampers, increases, or decreases the votes
received by a candidate in any election or any
 member of the board who refuses, after proper
verification and hearing, to credit the correct
votes or deduct such tampered votes.
(c) Any member of the board of election
inspectors who refuses to issue to duly
accredited watchers the certificate of votes
provided in Section 16 hereof.
(d) Any person who violates Section 11 hereof
regarding prohibited forms of election
propaganda.
(e) Any chairman of the board of canvassers who
fails to give notice of meetings to other
members of the board, candidate or political
party as required under Section 23 hereof.
(f) Any person declared a nuisance candidate as
defined under Section 69 of Batas Pambansa
Blg. 881, or is otherwise disqualified, by final
and executory judgment, who continues to
misrepresent himself, or holds himself out, as
a candidate, such as by continuing to himself
out, as a candidate, such as by continuing to
campaign thereafter, and/or other public
officer or private individual, who knowingly
induces or abets such misrepresentation, by
commission or omission, shall be guilty of an
election offense and subject to the penalty
provided in Section 264 if the same Code.
(Sec. 27)
REPUBLIC ACT NO. 7166
AN ACT PROVIDING FOR SYNCHRONIZED
NATIONAL AND LOCAL ELECTIONS AND FOR
ELECTORAL REFORMS, AUTHORIZING
APPROPRIATIONS THEREFOR, AND FOR
OTHER PURPOSES
When may special elections be had?
In case a permanent vacancy shall occur in the
Senate or House of Representatives at least one
(1) year before the expiration of the term, the
Commission shall call and hold a special election to
fill the vacancy not earlier than sixty (60) days no
longer than ninety (90) days after occurrence of
the vacancy. However, in case of such vacancy in
the Senate, the special election shall be held
simultaneously with the succeeding regular
election. (Sec. 4)
How long is the election and campaign
period?
Regular elections shall commence ninety (90) days
before the days of the election and shall end thirty
(30) days thereafter. The campaign period for
President, Vice-President and Senators shall be
ninety (90) days before the day of the election and
for Members of the House of Representatives and
elective provincial, city and municipal officials,
forty-five (45) days before the day of the election.
Any election campaign or partisan political
activity for or against any candidate outside of the
campaign period herein provided is prohibited and
shall be considered as an election offense
punishable under Section 263 and 264 of the
Omnibus Election Code.
How much may a candidate or registered
political party spend for election campaign?
(a) FOR CANDIDATES. – Ten pesos (P10.00) for
President and Vice-President; and for other
candidates Three Pesos (P3.00) for every voter
currently registered in the constituency where
he filed his certificate of candidacy: Provided,
That a candidate without any political party
and without support from any political party
may be allowed to spend Five Pesos (P5.00)
for every such voter; and
(b) FOR POLITICAL PARTIES. – Five pesos (P5.00)
for every voter currently registered in the
constituency or constituencies where it has
official candidates. (Sec. 13)
Is the Statement of Contributions and
Expenditures required what is the Effect of
Failure to File Statement? –
 Yes. Every candidate and treasurer of the
political party shall, within thirty (30) days
after the day of the election, file in duplicate
with the offices of the Commission the full,
true and itemized statement of all
contributions and expenditures in connection
with the election.
 No person elected to any public offices shall
enter upon the duties of his office until he has
filed the statement of contributions and
expenditures herein required.
 The same prohibition shall apply if the political
party which nominated the winning candidate
fails to file the statement required herein
within the period prescribed by this Act.
 Except candidates for elective barangay office,
failure to file the statements or reports in
connection with electoral contributions and
expenditures are required herein shall
constitute an administrative offense for which
the offenders shall be liable to pay an
administrative fine ranging from One thousand
pesos (P1,000.00) to Thirty thousand pesos
 (30,000.00), in the discretion of the
Commission.
 The fine shall be paid within thirty (30) days
from receipt of notice of such failure;
otherwise, it shall be enforceable by a writ of
execution issued by the Commission against
the properties of the offender. (Sec. 14)
Are Pre-proclamation Cases Allowed in
Elections for President Vice-President,
Senator, and Member of the House of
Representatives?
As a General Rule, no pre-proclamation cases shall
be allowed on matters relating to the preparation,
transmission, receipt, custody and appreciation of
the election returns or the certificates of canvass,
as the case may be.
However, this does not preclude the
authority of the appropriate canvassing body motu
proprio or upon written compliant of an interested
person to correct manifest errors in the certificate
of canvass or election returns before it.
Are Pre-proclamation Cases Involving
Provincial, City and Municipal Offices
allowed? When are they terminated?
All pre-proclamation cases pending before the
Commission shall be deemed terminated at the
beginning of the term of the office involved and the
rulings of the boards of canvassers concerned shall
be deemed affirmed, without prejudice to the filing
of a regular election protest by the aggrieved
party. However, proceedings may continue when
on the basis of the evidence thus far presented,
the Commission determined that the petition
appears meritorious and accordingly issues an
order for the proceeding to continue or when an
appropriate order has been issued by the Supreme
Court in a petition for certiorari.
How are pre-proclamation controversies
commenced?
Questions affecting the composition or proceedings
of the board of canvassers may be initiated in the
board or directly with the Commission. However,
matters raised in relation to the preparation,
transmission, receipt, custody and appreciation of
the election returns, and the certificates of canvass
shall be brought in the first instance before the
board of canvassers only.
Are Partial Proclamations allowed?
Yes. Notwithstanding the pendency of any pre-
proclamation controversy, the Commission may
summarily order the proclamation of other winning
candidates whose election will not be affected by
the outcome of the controversy.
How are Election Contests for Municipal
Offices resolved?
All election contest involving municipal
offices filled with the Regional Trial Court shall be
decided expeditiously.
The decision may be appealed to the
Commission within five (5) days from promulgation
or receipt of a copy thereof by aggrieved party.
The Commission shall decide the appeal within
sixty (60) days after the filling of the appeal, which
decision shall be final, unappealable and
executory.
How should the Congress as the National
Board of Canvassers for the Election of
President and Vice-President perform such
function, particularly the Determination of
Authenticity and Due Execution of Certificates
of Canvass?
 Congress shall determine the authenticity
and due execution of the certificate of
canvass for President and Vice-President as
accomplished and transmitted to it by the
local boards of canvassers, on a showing
that: (1) each certificate of canvass was
executed, signed and thumbmarked by the
chairman and members of the board of
canvassers and transmitted or caused to
be transmitted to Congress by them; (2)
each certificate of canvass contains the
names of all of the candidates for President
and Vice-President and their corresponding
votes in words and in figures; and (3)
there exists no discrepancy in other
authentic copies of the certificate of
canvass or discrepancy in the votes of any
candidate in words and figures in the
certificate.
 When the certificate of canvass, duly
certified by the board of canvassers of
each province, city or district, appears to
be incomplete, the Senate President shall
require the board of canvassers concerned
to transmit by personal delivery, the
election returns from polling places that
were not included in the certificate of
canvass and supporting statements. Said
election returns shall be submitted by
personal delivery within two (2) days from
receipt of notice.
  When it appears that any certificate of
canvass or supporting statement of votes
by precinct bears erasures or alterations
which may cast doubt as to the veracity of
the number of votes stated therein and
may affect the result of election, upon
request of the Presidential or Vice-
Presidential candidate concerned or his
party, Congress shall, for the sole purpose
of verifying the actual number of votes
cast for President and Vice-President,
count the votes as they appear in the
copies of the election returns submitted to
it.
XVI. PUBLIC INTERNATIONAL LAW
J. INTERNATIONAL HUMANITARIAN LAW
(IHL) and NEUTRALITY
DEFINITION OF IHL: the branch of public
international law which governs armed conflicts to
the end that the use of violence is limited, and that
human suffering is mitigated or reduced by
regulating or limiting the means of military
operations, and by protecting persons who do not
or no longer participate in hostilities.
DEFINITION OF ARMED CONFLICT: whenever
there is a resort to armed force between States or
protracted armed violence between governmental
authorities and organized armed groups or
between such groups within a State.
FUNDAMENTAL PRINCIPLES OF IHL:
 Parties to the armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive
suffering.
 Parties to an armed conflict shall, at all
times, distinguish between the civilian
population and the combatants. Civilians
shall be spared from military attacks which
shall be directed only against military
objectives.
 Persons hors de combat and those who do
not take part directly in hostilities shall be
protected and treated humanely without
any adverse distinction. Their right to life
and physical and moral integrity shall be
respected.
 It is prohibited to kill or injure an enemy
who surrenders or who is hors de combat.
 The wounded and the sick shall be
protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports, and
material.
 Combatants and civilians who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence and reprisals.
a. CATEGORIES OF ARMED CONFLICT
(1) International Armed Conflicts – armed
conflict between two or more states, across or
transcending borders.
(1.1) Internationalized Armed Conflict
– an internal armed conflict which becomes
international when [i] another state intervenes in
that conflict through its troops, or alternatively
when [ii] some of the participants in the internal
armed conflict act on behalf of that other state.
(2) Internal or Non-International Armed
Conflict – armed conflict within the territory of the
state.
(3) War of National Liberation – a conflict in
which people are fighting against colonial
domination and alien occupation and against racist
regimes in the exercise of their right of self-
determination.
b. CORE INTERNARTIONAL OBLIGATIONS OF
STATES IN IHL
Humanitarian law aims to protect people
who do not or are no longer taking part in
hostilities. The rules embodied in IHL impose
duties on all parties to a conflict. Human rights,
being tailored primarily for peacetime, apply to
everyone. Their principal goal is to protect
individuals from arbitrary behavior by their own
governments.
The duty to implement IHL and human
rights lie first and foremost with States.
Humanitarian law obliges States to take practical
and legal measures, such as enacting penal
legislation and disseminating IHL. Similarly, States
are bound by human rights law to accord national
law with international obligations. IHL provides for
several specific mechanisms that help its
implementation. Notably, States are required to
ensure respect also by other States. Provision is
also made for an enquiry procedure, a Protecting
Power mechanism, and the International Fact-
Finding Commission. In addition, the ICRC is given
a key role in ensuring respect for the humanitarian
rules.
 c. PRINCIPLES OF IHL
Pacta Sunt Servanda ("Pacts must be
respected") - the fundamental principle of the law
of treatise which provides that agreements entered
into by the States must be observed and
performed by them in good faith.
Rebus Sic Stantibus ("At this point of affairs") –
the principle that all agreements are concluded
with the implied condition that they are binding
only as long as there are no major changes in the
circumstances within the State. Thus, a state party
may modify or terminate a treaty 9and not comply
with it) due to an unforeseeable and fundamental
change of circumstances.
Opinio Juris Sive Necessitatis – the principle
that for the conduct or practice to become a rule of
customary international law, it must be shown that
nations believe that international law mandates the
conduct or practice; that such is recognized as a
legal norm and therefore obligatory.
Usus ("Usage") – a general practice or conduct
which does not reflect a legal obligation.
Jus Cogens ("Compelling Law") – a universal
peremptory or mandatory norm which is accepted
and recognized by the international community of
States as a whole as a norm from which no
derogation is permitted and which can be modified
only by a subsequent norm of general International
Law having the same character. (e.g. prohibition
against the use of force [Nicaragua v. US], law on
genocide, principle of non-discrimination,
prohibition against slavery and piracy, etc.)
Erga Omnes ("Toward All") – any wrongful acts
that harm everybody and not simply injuring one
individual; thus, an obligation of every State
towards the international community as a whole to
prevent such acts.
Principle of Universal Jurisdiction – the
principle which provides that each and every state
has jurisdiction to try particular offences
constituting grave international crimes.
Principle of Discrimination – the principle which
states that in order to ensure respect for and
protection of the civilian population and civilian
objects, the parties to the conflict shall at all time
distinguish between the civilian population and
combatants and between civilian objects and
military objectives and accordingly shall direct their
operations only against the latter.
Principle of Proportionality – the principle which
prohibits attacking a military objective if doing so
will result in a loss of civilian life, damage to
civilian property, or damage to the natural
environment that outweighs the value of the
objective; any use of force, to be lawful, must be
proportionate
Principle of Complementarity – the principle
which gives primacy to national or domestic
jurisdiction (rather than International Courts) in
prosecuting the persons responsible for
international crimes.
Ne Bis In Idem ("Not twice for the same") – a
rule applied by the International Tribunals which is
equivalent to the constitutional prohibition against
double jeopardy in municipal law.
Actus Non Facit Reum, Nisi Mens Rea ("The act
is not culpable unless the mind is also guilty") –
the fundamental principle that in every crime there
is an actus reus, or the physical act that
constitutes the crime, and the mens rea, or the
mental element of varying standards that is held
by the perpetrator.
Concept of Effective Control - the threshold to
be reached in establishing a superior-subordinate
relationship for the purpose of prosecuting a
superior or commander. Whether the effective
control descends from the superior to the
subordinate culpable of the crime through
intermediary subordinates is immaterial as a
matter of law; instead, what matters is whether
the superior has the material ability to prevent or
punish the criminally responsible subordinate.
Concept of Over-all Control - The control
required by international law for an armed conflict
to be international or internationalized, as when a
State has a role in organizing, coordinating or
planning the military actions of the military group,
in addition to financing, training and equipping or
providing operational support to that group.
(1) Treatment of Civilians
Protected Persons – those who enjoy or are
entitled to protection under under the 1949
Geneva Conventions, viz, [1] the wounded, sick,
shipwrecked and members of the medical services,
under the First and Second Geneva Conventions;
[2] prisoners of war, under the Third Convention;
[3] civilians, under the Fourth Convention; and [4]
hors de combat, under Protocol I.
Hors de Combat ("Out of Combat") – any person
who [1] is in the power of an adverse party and
[2] clearly expresses his intention to surrender or
[3] has been rendered unconscious or is otherwise
incapacitated by wounds or sickness, and therefore
is incapable of defending himself, provided that in
any of these cases, he abstains from any hostile
act and does not attempt to escape.
BASIC PROTECTIONS FOR CIVILIANS:
  The civilian population as such, as well as
individual civilians, shall not be the object
of the attack. Acts or threats of violence
the primary of which is to spread terror
among the civilian population are
prohibited.
 Attacks against the civilian population by
way of reprisals are prohibited.
The wounded and sick shall be cared for
and protected by the party to the conflict which
has them in its power. The emblem of the "Red
Cross," or of the "Red Crescent," shall be required
to be respected as the sign of protection.
(2) Prisoners of War – lawful combatants who
have fallen into the power of the enemy.
BASIC PROTECTIONS FOR PRISONERS OF
WAR:
 They may only be transferred by the
Detaining Power to a Power which is also a
party to the Geneva Convention III.
 They must at all times be humanely
treated. Any unlawful act or omission by
the Detaining Power casuing death or
seriously endangering their health is
prohibited, and will be regarded as a
serious breach of the Convention.
 They must at all times be protected,
particularly against acts of violence or
intimidation and against insults and public
curiosity;
 They shall be provided free of charge for
their maintenance and for the medical
attention required by their State of health.
 They shall be treated alike by the
Detaining Power, without any adverse
distinction based on race, nationality,
religious belief or political opinions, or any
other distinction founded on similar
criteria.
 Women shall be treated with all the regard
due to their sex and shall in all cases
benefit by treatment as favorable as that
granted to men.
 Women shall be held in quarters separated
from men's quarter. They shall be under
the immediate supervision of women.
Nevertheless, in cases where families are
detained or interned, they shall, whenever
possible, be held in the same place and
accommodated as family units.
c. LAW ON NEUTRALITY
DEFINITION OF NEUTRALITY: the legal status
of a State in times of war, by which it adopts
impartiality in relation to the belligerents with their
recognition. The characteristics of a neutralized
States are:
 its neutrality is permanent;
 its neutrality is guaranteed by a treaty;
and
 it is obliged to maintain its status of
neutrality.
DEFINITION OF BELLIGERENCY: the status or
condition of two or more entities being in a state of
war or armed conflict. The qualifications of
belligerents under the Hague Regulations of 1907
are:
 they must be commanded by a person
responsible for his subordinates;
 they must have fixed distinctive emblem
recognizable at a distance;
 they must carry arms openly; and
 they must conduct their operations in
accordance with the laws and customs of
war.
RULES GOVERNING NEUTRALITY AND
BELLIGERENCY (Hague Convention V):
 The territory of the neutral powers is
inviolable.
 Belligerents are forbidden to move troops
or munitions of war and supplies across the
territory of a neutral power.
 A neutral power is forbidden to allow
belligerents to use its territory for moving
troops, establishing communication
facilities or forming corps of combatants.
CASE:
The Republic of Nicaragua v. The USA
(Case Concerning the Military and
Paramilitary Activities in and
against Nicaragua)
(June 27, 1986, ICJ)
Facts:
• July 1979 - the Frente Sandinista de Liberacion
Nacional (FSLN) ruled Nicaragua after the fall
of Pres. Somoza
- Certain opponents of the
Sandinista, primarily supporters of Somoza,
formed themselves into irregular military
 forces, and commenced a policy of armed
opposition.
• 1981 - Nicaragua supported armed groups
(guerrillas) in El Salvador, and established a
trained fighting force operating along the
borders with Honduras and Costa Rica.
• 1983 - USA funded for the Contras, a term
employed to describe those fighting against
the present Nicaraguan Government, for
supporting 'directly or indirectly, military or
paramilitary operations in Nicaragua'.
• 1984 - USA laid mines in Nicaraguan ports;
infringement of Nicaraguan air space;
economic measures against Nicaragua
• 9 April 1984 - Nicaragua’s claim at the ICJ
Arguments – Nicaragua:
• Violations of treaty obligations (supplying
military paramilitary actions)
• Violations of international law (sovereignty,
use of force, intervention)
• Reparations
Arguments – USA:
• Nicaragua supported armed groups
• Cross border military attacks
• Collective self defence
Why customary law important in this case:
• Before evaluating the case on the merits, the
Court had to decide whether the U.S.
reservation stripped the Court of its
jurisdiction.
• The reservation excluded from Article 36 of the
Statute of ICJ “disputes arising under a
multilateral treaty, unless (1) all parties to the
treaty affected by the decision are also parties
to the case before the Court, or (2) the USA
specially agrees to jurisdiction.”
• The Court concluded that the reservation is
applicable in this case because:
- US did not specially agree to the
jurisdiction in this case, and
- Parties to the treaty affected by the
decision were not all parties before the
court. Parties to the dispute included
the US and Nicaragua. However, US
claimed it was acting in collective self-
defense on behalf of El Salvador, who
was not a party before the Court. The
Court determined El Salvador would be
affected by its judgment.
• As a result, the Court determined that the
reservation barred it from applying the
multilateral treaties to this case. But the Court
did not stop there, however.
• The Court viewed the reservation as a
limitation on the type of law that the court
could apply (multilateral treaties), not as a
limitation on its overall jurisdiction to hear the
case.
• Thus, other sources of law under Art. 38 of the
Statute of the ICJ were still applicable,
including customary international law.
• US argued that customary rules whose content
is identical to that of the treaties cannot be
applied due to their reservation.
• The Court rejected this and held that just
because a treaty incorporates customary
international law, it does not deprive the
customary law of its applicability distinctly
from the treaty.
• Thus according to the Court, treaties and
customary law have independent
existence and apply separately, even when
both deal with the same subject matter.
• Court states “. . . Even if the customary norm
and the treaty norm were to have exactly the
same content, this would not be a reason
for the Court to hold that the
incorporation of the customary norm into
treaty-law must deprive the customary
norm of its applicability as distinct from
that of the treaty norm . . . . More
generally, there are no grounds for holding
that when customary international law is
comprised of rules identical to those of treaty
law, the latter “supervenes” the former, so
that the customary law has no further
existence of its own.”
Rules of CIR addressed:
• Not to intervene in the affairs of another State;
• Not to use force against another State;
• Right to self-defence;
• Not to violate sovereignty of States; and
• Collective counter-measures in response to
conduct not amounting to armed attack.
Opinio Juris and State Practice:
• Once the Court had decided to apply
customary law, it had to ascertain which rules
of customary law were relevant to this case.
Therefore, the Court considered whether a
customary rule exists in the opinio juris of
States, and satisfy itself that it is confirmed by
practice.
• It is important to really check the material of
CIL in the actual practice and opinio juris of
States. It doesn’t matter if these rules have
already been collected by several treaties or
any other intruments.
• The Court also noted that both Nicaragua and
US had a considerable degree of agreement as
to the content of the CIL related to the non-
use of force and non-intervention.
• But, the fact that States declare their
recognition of certain rules is not
sufficient for the Court to consider these
as being part of CIL and as applicable as
such to those States. The Court must not
disregard the role played by “general practice”.
The Court must satisfy itself that the existence
of the rule in the opinio juris of States is
confirm by practice.
• Thus, the Court held that the attitude of the
parties and States towards certains
General Assembly Resolutions could be
indicative of opinio juris. As regards the US
in particular, the weight of an expression of
opinio juris can similarly be attached to its
support of the resolution of the Sixth
International Conference of American States
condemning aggressio and ratification of the
Montevideo Convention on Rights and Duties of
States.
• If there is enough evidence of state practice,
opinio juris is not always necessary, and
usually if it does exist, courts use it only to
confirm the existence of state practice as
indicative of customary law.
• But, where there is little evidence of state
practice, court will make up for that with
greater evidence of opinio juris and vice versa.
How Opinio Juris and State Practice addressed:
1. Use of Force
• Party Agreement;
• General Assembly Resolution 2625 (XXV);
• Resolution of The Sixth International
Conference of American States Concerning
Aggression 18 Feb 1928;
• Montevideo Convention on the Rights and
Duties of States 26 December 1933.
2. Self Defence
• Party Agreement;
• UN Charter Article 51;
• General Assembly Resolution 2625 (XXV);
• General Assembly Resolution 3314 (XXIX);
• Charter of Organisations of American
States;
• International Treaty of Reciprocal
Assistance 1947.
3. Non-intervention
• Numerous declarations and resolutions;
• Corfu Channel (Merits) United Kingdom v
Albania 1949 ICJ Reports 4.
4. Collective counter-measures in response to
conduct not amounting to armed attack
• Counter-measures is an exemption of non-
intervention principle;
• Counter-measures is analogous to the right
of self-defence in the case of armed
attack;
• ICJ: “armed attack must be understood as
including not merely action by regular
armed forces across an international
border, but also ‘sending by or on behalf of
a State of armed bands, groups, irregulars
or mercenaries, which carry out attacks of
armed force against another State of such
gravity as to amount to an actual armed
attack conducted by regular forces, or its
substantial involvement therein.”
5. State sovereignty
The concept of sovereignty extends to the
internal waters and territorial sea of every State
and to the airspace above its territory:
- Art. 2(1) of the UN Charter;
- Art. 1 of the Chicago Convention on
International Civil Aviation (1944);
- Geneva Convention on the Territorial Sea
(1958);
- UN Convention on the Law of the Sea
(1982);
- Laying of mines by another State is
infringement of the freedom of
 communications and of maritime
commerce.
6. Humanitarian law
• A breach of the principles of humanitarian
law underlying the specific provisions of
Hague Convention (Art. 3 and 4);
• US committed violation of Art. 3 of the
fourth Geneva Convention;
• The conflict between Contras forces and
those of the Government of Nicaragua is
an armed conflict which is "not of an
international character";
• Obligation on the US Government, in the
terms of Art. 1 of the Geneva Convention
is to "respect" the Conventions and even
"to ensure respect" for them "in all
circumstances" (general principle of
humanitarian law).
How differences in opinion regarding the content of
the substantive rule(s) addressed:
• The court found in its legal verdict that the US
was in breach of its express charter and
treaty obligations to Nicaragua and to the
various international charter and
conventions, including the UN Charter, in
recruiting, training, arming, equipping,
financing, supplying, and otherwise
encouraging, supporting, aiding, and
directing military and paramilitary actions
in and against Nicaragua"; of its legal
obligations under general and customary
international law not to use force against
another state, not to intervene in its
internal affairs, not to violate its
sovereignty, not to interrupt peaceful
maritime commerce, not to endanger the
lives and property of the Nicaraguans; and
of its obligations under Article XIX of the
Treaty of Friendship, Commerce and
Navigation between the Parties signed at
Managua on 21 January 1956.
• It said that it was not necessary that the
practice in question had to be “in absolutely
rigorous conformity” with the purported
customary rule.
• The court continued: In order to deduce the
existence of customary rules, the court deems
it sufficient that the conduct of states should,
in general, be consistent with such rules, and
that instances of state conduct inconsistent
with a given rule should generally have been
treated as breaches of that rule, not as
indications of the recognition of a new rule.
• If a State acts in a way that is incompatible
with a recognized rule, but then defends its
action by trying to appeal to an exception to
that rule, then whether or not the State's
conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather
than to weaken the rule.
Resolutions:
• That, in view of its breaches of the foregoing
legal obligations, the US is under a particular
duty to cease and desist immediately: from
all use of force - whether direct or indirect,
overt or covert - against Nicaragua, and from
all threats of force against Nicaragua; and
• That the US has an obligation to pay
Nicaragua, in its own right and as parens
patriae for the citizens of Nicaragua,
reparations for damages to person, property
and the Nicaraguan economy caused by the
foregoing violations of international law in a
sum to be determined by the Court.
K. LAW OF THE SEA
DEFINITION: a body of treaty rules and
customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise
of jurisdiction over maritime regimes; the branch
of public international law which regulates the
relations of states with respect to the uses of the
oceans.
a. BASELINES
DEFINITION: a line from which the breadth of the
territorial sea and other maritime zones
(contiguous zone and exclusive economic zone) are
measured. It may either be normal or straight.
NORMAL BASELINE: the low-water line along the
coast as marked on the large-scale charts officially
recognized by the coastal state. (Art. 5, UNCLOS;
Art. 3, Convention on the Territorial Sea)
STRAIGHT BASELINE: Where the coastline is
deeply indented and cut into, or if there is a fringe
of islands along the coast in its immediate vicinity,
the method of straight baselines joining the
appropriate points may be employed in drawing
the baseline from which the breadth of the
territorial sea is measured. (Art. 7, UNCLOS;
Anglo-Norwegian Fisheries Case [UK v. Norway,
1951])
LIMITATIONS ON THE USE OF STRAIGHT
BASELINES:
 the drawing of straight baselines must not
depart to any appreciable extent from the
general direction of the coast;
 the sea areas lying within the straight
baselines must be sufficiently close to the
land domain to be subject to the regime of
the internal waters;
 straight baselines should 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 and unless the
baselines to and from the low0tide
elevations have received general
recognition; and
 the straight baseline method may not be
applied by a state in such manner as to cut
off the territorial sea of another state from
the high sea or an exclusive economic
zone. (Art. 7, UNCLOS)
b. ARCHIPELAGIC STATES
ARCHIPELAGIC DOCTRINE/THEORY: a waters where innocent passage shall not
doctrine/theory which considers groups of islands
which are so closely interrelated and their
interconnecting waters as one geographical unit. It
allows an archipelagic State to draw straight
archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the
archipelago. The waters enclosed by the
archipelagic baselines shall become archipelagic
waters regardless of their depth or distance from
the coast, and within these archipelagic waters,
the archipelagic State may draw closing lines for
the delimitation of its internal waters. (Arts. 46-
47, 50, UNCLOS)
The doctrine is reflected in the Article I of
the 1987 Philippine Constitution; thus, "the
national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and the waters around,
between, and connecting the islands of the
archipelago, regardless of their breadth and
dimension, from part of the internal waters of the
Philippines."
STRAIGHT ARCHIPELAGIC BASELINES:
baselines which join 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 in between 1 to 1 and 9 to 1.
These baselines shall not exceed 100 nautical
miles. As an exception, an archipelagic state is
allowed to have 3% of its total number of baselines
in excess of that length, but only up to a maximum
of 125 nautical miles.
ARCHIPELAGIC WATERS: waters which are
enclosed by the archipelagic baselines, regardless
of their depth or distance from the coast.
RIGHT OF INNOCENT PASSAGE THROUGH
ARCHIPELAGIC WATERS: Ships of all States
enjoy the right of innocent passage through
archipelagic waters. However, this right is not
available inside the closing lines within the
archipelagic waters which had been drawn for the
delimitation of internal waters. The State may
suspend the right of innocent passage, subject to
the following conditions:
 the suspension is made without
discrimination in form or in fact among
foreign ships;
 the suspension is only temporary;
 it must specify the areas of its archipelagic
be allowed;
 such suspension is essential for the
protection of its security; and
 such suspension shall take effect only after
having been duly published.
ARCHIPELAGIC SEA LANES PASSAGE: the right
of foreign ships and aircrafts to have continuous,
expeditious and unobstructed passage in sea lanes
and air routes through or over the archipelagic
waters and the adjacent territorial sea of the
archipelagic state, in transit between one part of
the high seas or an exclusive economic zone and
another part of the high seas or an exclusive
economic zone.
c. INTERNAL WATERS
DEFINITION: waters of lakes, rivers and bays
landward of the baseline of the territorial sea.
Generally, there is no right of innocent passage in
these waters. Such right exists only on the
territorial sea and the archipelagic waters.
 d. TERRITORIAL WATERS
BREADTH: States have the right to determine the
breadth of their territorial sea up to a limit not
exceeding 12 nautical miles from the baselines,
established in accordance with the UNCLOS.
RIGHT OF INNOCENT PASSAGE THROUGH
TERRITORIAL WATERS: Coastal States shall not
hamper the innocent passage of the foreign ships,
except in accordance with the UNCLOS. In
particular, it shall not:
 impose requirements on foreign ships,
which have the effects of denying or
impairing the right of innocent passage; or
 discriminate against the ships of any state,
or against ships carrying cargoes to and
from or on behalf of the state.
RIGHTS OF COASTAL STATES RELATING TO
INNOCENT PASSAGE:
 Take the necessary steps in the territorial
sea to prevent passage which is not
innocent;
 Take measures to prevent any breach of
the conditions for the admission of ships to
internal waters, with respect to ships
proceeding to internal waters or ports or to
ships calling at a port facility outside
internal waters;
 Suspend temporarily, without
discrimination, in specified areas of the
territorial sea the innocent passage of
ships if suspension is essential for the
protection of its security, including
weapons exercises, provided that
suspension may take effect only after due
publication; and
 Adopt laws and regulations relating to the
innocent passage, provided that they deal
only with the following matters:
- safety of navigation and the
regulation of maritime traffic;
- protection of navigational aids and
facilities;
- protection of cables and pipelines;
- conservation of living resources of
the sea;
- prevention of infringement of
fisheries laws and regulations of
the coastal state;
- preservation of the environment of
the coastal state and prevention,
reduction, and control of
population;
- marine scientific research and
hydrographic surveys; and
- prevention of infringement of the
customs, fiscal, immigration or
sanitary laws and regulations of
the coastal state.
e. CONTIGUOUS ZONE
DEFINITION/BREADTH: a maritime zone
adjacent to the territorial sea, which extends
beyond 24 nautical miles from the same baseline
which the breath of territorial sea is measured,
where the coastal state may exercise certain
protective jurisdiction. A state could continue to
enforce laws in four specific areas: pollution,
taxation, customs, and immigration.
f. EXCLUSIVE ECONOMIC ZONE (EEZ)
DEFINITION/BREADTH: an area beyond and
adjacent to the territorial sea and the contiguous
zone, not extending beyond 200 nautical miles
from the same baselines from which the territorial
sea and the contiguous zone is measured, in which
the costal state has sovereign rights for the
purpose of exploring and exploiting, conserving,
and managing the natural resources, as well as
with regard to other activities for economic
exploitation and exploration of the zone, and which
it has jurisdiction with regard to artificial islands,
environmental protection and marine scientific
research.
RIGHTS OF COASTAL STATES OVER EEZ:
1. Sovereign Right:
- for the purpose of exploring and exploiting,
conserving and managing the natural
resources, whether living or not living, of
the waters superjacent to the seabed and
the seabed and its subsoil;
- with regard to other activities for the
economic exploitation and exploration of
the zone, such as the production of energy
from the water, currents and winds.
2. Jurisdictional Right:
- establishment and use of artificial islands,
installations and structures;
- marine scientific research;
- protection and preservation of the marine
environment.

PRIMARY RESPONSIBILITIES OF COASTAL
STATES OVER EEZ:
 the duty to ensure through proper
conservation and management measures that
the living resources of the EEZ are not
endangered by over exploitation; particularly:
- to determine the allowable catch of the
living resources;
- to maintain the living resources in such a
way that they are not endangered by over
exploitation;
- to maintain or restore the population of
harvested species at levels which can
produce the maximum sustainable yield;
and
- to maintain the associated or dependent
species above levels at which their
reproduction may become seriously
threatened.
 the duty to promote the objective of optimum
utilization of the living resources.
g. CONTINENTAL SHELF
DEFINITION: the natural prolongation of the land
territory to the continental margin’s outer edge, or
200 nautical miles from the coastal state’s
baseline, whichever is greater. A state’s
continental shelf may exceed 200 nautical miles
until the natural prolongation ends. However, it
may never exceed 350 nautical miles from the
baseline; or it may never exceed 100 nautical
miles beyond the 2,500 meter isobath (the line
connecting the depth of 2,500 meters).
Continental Shelf does not form part of the
territory of the coastal state.
RIGHTS OVER THE CONTINENTAL SHELF:
Coastal states have the right to harvest mineral
and non-living material in the subsoil of its
continental shelf, to the exclusion of others.
Coastal states also have exclusive control over
living resources "attached" to the continental shelf,
but not to creatures living in the water column
beyond the exclusive economic zone.
EXTENDED CONTINENTAL SHELF: x x x x x
h. INTERNATIONAL TRIBUNAL FOR THE LAW
OF THE SEA
ESTABLISHMENT: by the 1982 United Nations
Convention on the Law of the Sea (UNCLOS)
(Annex VI)
COMPOSITION:
 It is composed of 21 "independent members
elected from among the persons enjoying the
highest reputation for fairness and integrity
and of recognized competence in the field of
the law of the sea."
 The composition shall represent the world's
principal legal systems and equitable
geographical distribution.
 The Tribunal may form such special
chambers as may be necessary for particular
categories of disputes, or may do so upon the
request of the parties. Each chamber is
composed of three or more of its elected
members.
 The Tribunal shall have a Seabed Disputes
Chamber composed of 11 members, selected
by a majority of the elected members of the
Tribunal from among themselves. The
Chamber elects its President from among its
members.
 The Seabed Disputes Chamber shall form an
ad hoc chamber, composed of three of its
members, for dealing with a particular dispute.
JURISDICTION OF THE TRIBUNAL: covers all
disputes submitted to it in accordance with the
UNCLOS, as when both State Parties sign, ratify or
accede to the UNCLOS for the compulsory
settlement of dispute. It also includes matters
submitted to it under any other agreement.
APPLICABLE LAWS IN DECIDING A DISPUTE:
UNCLOS and other rules of international law not
incompatible with the UNCLOS. It may decide a
case ex aequo et bono, if the parties so agree.
VOTE REQUIREMENT FOR DECISION: majority
of the members of the Tribunal who are present.
The President, or the acting President, casts a vote
in case of a tie.
JURISDICTION OF THE SEABED DISPUTES
CHAMBER:
1. disputes between State Parties as to
interpretation or application of the provisions
of the UNCLOS and its Annexes pertaining to
the Area;
2. disputes between a State Party and the
International Seabed Authority involving
 violation on their part of the UNCLOS
pertaining to the Area as well as rules and
regulations of the International Seabed
Authority, or acts ultra vires or misuse of
power on the part of the International Seabed
Authority; or
3. disputes between parties to a contract
concerning its interpretation or application, or
with respect to a plan of work, or concerning
acts of party to a contract relating to activities
in the Area.
CASES:
UK v. Norway
(Anglo-Norwegian Fisheries Case)
(December 18, 1951, ICJ)
Facts:
• Under a 1935 decree, Norway delimited its
territorial waters by drawing baselines from
point to point on the islands off its coast.
• Since 1911, British fishing vessels had
operated within the Norwegian Coast,
disregarding the decree claiming the
waters as high seas as not of the islands
were more than 3 miles from each others.
• Eventually, the British fishing vessels were
seized and condemned by Norwegian
authorities for violation of the regulations of
the coastal state by fishing in the Norwegian
territorial sea.
• 1949 – Britain brought the dispute before the
ICJ, on the contention that seizure occurred
more than four miles off the Norwegian
Coast. Both parties agreed that four miles
could be used as the breadth of the territorial
waters, in view of the historic Norwegian
claim to four miles.
Judgment:
• Upholding Norway’s claim to use straight
baselines, the Court rejected Britain's
contentions - (1) that the outer limits of
Norwegian territorial waters must not be more
than four miles from some point of the shore;
and (2) that with the exception of bays, the
baseline must be the actual low water mark.
• Taking cognizance of the extraordinary
geographic peculiarities of the Norwegian
coastline of about 120,000 islands, rocks and
reefs, the court in part ruled – "Some
reference must be made to the close
dependence of the territorial sea upon the land
domain. It is the land which confers upon the
coastal State a right to the waters off its
coasts. It follows that while such a State must
be allowed the latitude necessary in order to
be able to adapt its delimitation to practical
needs and local requirements, the drawing of
baselines must not depart to any
appreciable extent from the general
direction of the coast."
• The real question raised in the choice of
baselines is in effect whether certain sea areas
living within these lines are sufficiently
closely linked to the land domain to be
subject to the regime of internal waters.
This idea, which is at the basis of the
determination of the rules relating to bays,
should be liberally applied in the case of a
coast, the geographical configuration of which
is as unusual as that of Norway.
• Finally, there is one consideration not be
overlooked, the scope of the which extends
beyond purely geographical factors; that of
certain economic interests peculiar to a
region the reality and importance of which
are clearly evidenced by a long usage.
FEDERAL REPUBLIC OF GERMANY v.
DENMARK and THE NETHERLANDS
(North Sea Continental Shelf Case)
(1969, ICJ)
(The determination of a State’s continental shelf,
particularly in adjacent coastal States, is important
in ascertaining jurisdiction over the waters that is
“bordering” them in common.)
Facts:
• The case was submitted to the ICJ to
determine the principles or rules of
international law, applicable, in carrying out
the delimitation of the continental shelf.
• Netherlands and Denmark argue that the
“equidistance principle” in Article 6 of the
Geneva Convention is applicable. Such
principle essentially entails that the country’s
continental shelf will be drawn up to a certain
distance from the shorelines, following the
contours and indentations.
• The "equidistance principle" is to the
disadvantage of Germany, it having an
inward shoreline. If said principle is to be
 applied to Germany, then it would necessarily
lose jurisdiction over certain portions of the
North Sea.
Arguments - Germany:
• All the parties should be given a “just and
equitable share” in proportion to the length of
its sea-frontage (essentially following the area
facing the North sea without regard to inward
or outward indentations). Thus, the States
involved be entitled to a continental shelf area
up to a central point as its median line.
• With respect to Art.6 of the Geneva
Convention, it argues that even if the provision
has gained the status of custom, the
configuration of Germany’s coast constituted a
special circumstance, which would justify a
departure from the equidistance principle.
Netherland and Denmark's Position:
Germany is bound by Art. 6 of the Geneva
Convention, despite the latter’s non-ratification of
said treaty, because that provision has formed part
of international custom and can even be
considered to be a general principle of law.
Issue:
How should the delimitation of the North Sea
continental shelf be carried out?
Judgment:
• It should be carried out by agreement
between the States taking into account
geographical equitable considerations
including general and special features of
the coasts.
• The Court decided the case based on equity
considerations. Since neither treaty nor
custom is governing, the Court tried to reach
an equitable conclusion.
On the argument of custom:
Art. 6 of the Geneva Convention does not
embody an existing customary norm. The
provision cannot be said to have crystallized into a
rule of customary international law for several
reasons:
- First, Art. 6 was framed to be purely
contractual (Suffice it to state that the
Convention was not a treaty of codification but
purely de lege ferenda [creating new rules
between the contracting States]);
- Second, the number of ratifications and
accessions to the treaty was hardly sufficient
to constitute a general rule of international
law;
- Third, state practice was neither extensive
enough nor virtually uniform to show a general
recognition of an evolving norm; and
- fourth, the treaty itself allows for reservations
(in effect, contracting States may practice
or not practice the equidistance principle)
On the argument of treaty:
Germany was not legally bound by Art.
6. Though it signed the Geneva Convention, it has
not ratified said treaty.
UK v. ALBANIA
(Corfu Channel Case)
(1949, ICJ)
Facts:
• October 22, 1946 - a squadron of British
warships (the Mauritius, Leander, Saumarez,
and Volage) left the port of Corfu and
proceeded through the channel, exercising the
right to innocent passage.
• While in Albanian territorial waters, two of the
warships (Saumarez and Volage) hit a
minefield of anchored automatic mines,
resulting to serious damage, death of 44
British officers and crew members and injury of
42 others.
• By a Special Agreement, the British
government instituted this action against
Albania in the ICJ, demanding compensation
for damage to its ships and for the loss of
lives.
Arguments - Britain:
• The minefield was laid by or with the
connivance or knowledge of the Albanian
Government and that the latter did not notify
them of the existence of the minefield which
might endanger the voyage; thus, Albania
failed to comply with its obligation under
international law.
• They have the right of innocent passage
through the Corfu Channel.
Arguments - Albania:
• There was no proof that the damaged the ships
were really caused by their mines.
• It has a right to regulate the passage of
foreign ships through its territorial waters, and
that prior authorization to pass should be
acquired. Since Britain did not obtain prior
authorization, its passage was not innocent.
• For this breach of international law, it counter-
demands compensation from Britain.
Issue:
Should Albania be held responsible for the damage
and injury suffered by the British warships?
Judgment:
• Albania is responsible under international
law for the damage and loss of lives, and
that it owned a duty to pay compensation to
Britain.
• Before and after the incident, the Albanian
Government’s attitude showed its intention to
keep a jealous watch on its territorial waters.
And when Albania came to know of the
minefield, it protested strongly against the
minesweeping conducted by Britain but not to
the laying of mines. It is but showing that
Albania desired the presence of such
mines.
• The inevitable conclusion is that the laying of
the minefield could not have been done
without the knowledge of Albania. It is then
its duty to notify and warn ships
proceeding through the Strait. Its failure
to undertake such constitutes neglect of
its international responsibility.
As to argument of innocent passage:
The Court ruled that the North Corfu
Channel constituted a frontier between Albania and
Greece; that a part of it is wholly within the
territorial waters of these 2 States, and that the
Strait is of special importance to Greece. Hence,
the Channel belongs to a class of
international highways through which
passage cannot be prohibited by a coastal
State in time of peace. Moreover, the passage of
the British warships through the Channel was
carried out in such manner that is consistent
with the principle of innocent passage — the
guns were in a normal position and not targeted to
the shores.
L. INTERNATIONAL
ENVIRONMENTAL LAW
DEFINITION: the branch of public international
law comprising "those substantive, procedural and
institutional rules which have as their primary
objective the protection of the environment", the
term environment being understood as
encompassing "both the features and the products
of the natural world and those of human
civilization".
PRINCIPLE 21 OF THE 1972 STOCKHOLM
DECLARATION: declares that – "States have, in
accordance with the Charter of the United Nations
and the principles of international law, the
sovereign right to exploit their own resources
pursuant to their own environmental policies, and
the responsibility to ensure that activities within
their jurisdiction or control do not cause
damage to the environment of other States or
of areas beyond limits of national
jurisdiction".
Principle 21 is otherwise known as the
GOOD NEIGHBORLINESS PRINCIPLE. Stated
differently, it prohibits States from using or
permitting the use of its territory in a manner that
is injurious to another State, or that other State's
persons or property. It underlies in the Roman law
principle "Sic utere tuo ut alienum non laedas"
(So use your own as not to injure the rights of
others.
The same principle was proclaimed under
Principle 2 of the 1992 Rio Declaration on
Environment and Development and under Article
194(2) of the UNCLOS.
Principle 21 has now become a customary
law, which generally applies to all states and not
only to the parties to a particular instrument.
Principle 21 focuses on transboundary harm or
State responsibility.
CBDS